2019 Supreme(SC) 1256

SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., N.V. RAMANA, D.Y. CHANDRACHUD, DEEPAK GUPTA, SANJIV KHANNA, JJ.
Central Public Information Officer, Supreme Court of India – Appellants
Versus
Subhash Chandra Agarwal – Respondents
Civil Appeal No.10044, 10045 & 2683 of 2010
Decided On : 13-11-2019

IMPORTANT POINTS
The Chief Justice and the Judges together form and constitute the ‘public authority’, that is, the Supreme Court of India. Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority. Same applies to High Courts.
Right to information is not absolute.
Prohibitory stipulations in Clauses (a), (b), (c), (f), (g), (h) and (i) of section 8(1) incorporate absolute exclusions. On the other hand, Clauses (d), (e) and (j) of Section 8(1) incorporate qualified prohibitions and are conditional and not absolute exemptions.
Disclosure u/s 8(2) by the public authority is not mandatory or compulsive but discretionary.
One’s right to information and other’s right to privacy and confidentiality both must be harmonized.
PIO has to weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed.
The questions of transparency and openness in judicial appointments, and confidentiality of deliberations cannot be answered in absolute terms.
In matters of information on declaration of assets by the judges of the Supreme Court fiduciary relationship rule in terms of clause (e) to Section 8(1) is inapplicable.
Right to speech and expression - Includes right to information.
There is an urgent requirement for integrating the principles of data protection into the right to information jurisprudence.
Independence of judiciary though not a new concept, its meaning is still imprecise.
Section 8 balances interests between privacy right of individuals whose information may be disclosed and broader public interest in ensuring transparency, accountability and an informed electorate.
Right to Information Act, 2005 being a legislation to pursue a legitimate state aim of ensuring, transparency and accountability of government and an informed electorate, is Constitutionally valid.
Certain category of information such as medical information, details of personal relations, employee records and professional income can be classified as personal information.
Broad principles as to how the phrase “public interest” is to be understood laid down.
PIO should record reasons for denying discloser.
The information with respect to which judges of the Supreme Court have declared their assets does not constitute the “personal information” of the judges and does not engage the right to privacy. The contents of the declaration of assets would fall within the meaning of “personal information” and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11.
The basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. Substantive standards which are borne in mind must be formulated and placed in the public realm.

Headnote:

Per Sanjiv Khaanna, J.

(a) Right to Information Act, 2005 - Section 2(e) and (h), and section 28 r/w Article 124, Constitution of India - ‘Competent authority’ and ‘public authority’ - Supreme Court of India is a public authority u/s 2(h) having been established and constituted by or under the Constitution of India - The Chief justice of India is the competent authority u/s 2(e)(ii) competent to frame rules u/s 28 to carry out the provisions of the RTI Act. (Para 13)

(b) Right to Information Act, 2005 - Section 2(h) - The Chief Justice and the Judges together form and constitute the ‘public authority’, that is, the Supreme Court of India - Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority - Same applies to High Courts.(Para 14, 15)

(c) Right to Information Act, 2005 - Section 2(f), (i) and (j) - ‘Information’, ‘record’ and ‘right to information’ - The information should be accessible by the public authority and ‘held by or under the control of any public authority’ - Such information must be furnished to the information seeker even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act, 1923, that restricts or prohibits access to information by the public - Word “hold” not purely a physical concept - Refers to the appropriate connection between the information and the authority. (Para 18, 19, 20)

(d) Right to Information Act, 2005 - Section 3 - The expressions ‘held by or under the control of any public authority’ and ‘information accessible under this Act’ are restrictive - Reflect the limits to the ‘right to information’ - Right to information is not absolute. (Para 22)

(e) Governance - Transparency and accountability - Right to Information Act, 2005- Ensuring transparency and accountability and to making Indian democracy more participatory - Setting out a practical and pragmatic regime to enable citizens to secure greater access to information available with public authorities by balancing diverse interests. (Para 24)

(f) Right to Information Act, 2005 - Section 8(1) - Exceptions - Clauses (d), (e) and (j) of Section 8(1) incorporate qualified prohibitions and are conditional and not absolute exemptions - Prohibitory stipulations in clauses (a), (b), (c), (f), (g), (h) and (i) do not permit disclosure of information on satisfaction of the larger public interest rule - These clauses incorporate absolute exclusions. (Para 26)

(f) Right to Information Act, 2005 - Section 8(2) - Disclosure u/s 8(2) by the public authority is not mandatory or compulsive but discretionary - Once the PIO finds that any of the exemption clauses is applicable, it cannot pass an order directing disclosure of such information. (Para 27)

(g) Right to Information Act, 2005 - Section 8(1)(e) - Fiduciary Relationship - Whether between the Chief Justice and the Judges - Depends upon situation - To be dealt with on settled tests and parameters. (Para 35)

(h) Right to Information Act, 2005 - Section 8(1)(j) and Section 11 - One’s right to information and other’s right to privacy and confidentiality - Both must be harmonized - Section 8(1)(j) and Section 11 do that. (Para 36)

(i) Confidentiality - A concept of equity - Also arises in a contract or by a statute - Breach of confidentiality - Elements – Information of confidential nature; must be imparted in circumstances importing an obligation of confidentiality; and unauthorised use of information (Para 37)

(j) Privacy - A separate right in itself - More concerned with the intrusion and violation of private rights - Distinct from actionable claim for breach of confidentiality - Claims for protection against invasion of private and family life do not depend upon confidentiality alone. (Para 38)

(k) Constitution of India - Article 19, 20, 21and 25 - Right to privacy - Now treated a Fundamental right - An intrinsic part of right to life and liberty. (Para 40)

(l) Right to Information Act, 2005 - Sections 8(1)(j) and 11 - Permitting dissemination of confidential or private information in larger public interest - Not invalid - However, right to protect identity and anonymity would be identically subjected to the public interest test - Courts have treated the word ‘information’ to mean personal information, as distinct from public information. (Para 41, 43, 46, 47, 48, 59)

(m) Right to Information Act, 2005 - Section 11 - Not merely procedural but also a substantive provision - Public interest test - Scope of ‘information’ under Section 11 - Much broader than that of clause (j) to Section 8 (1)(j), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. (Para 61, 62)

(n) Right to Information Act, 2005 - Section 11(1), Proviso - PIO has to weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed. (Para 69, 70)

(o) Right to Information Act, 2005 - Section 8(1)(j) and Proviso to Section 11(1) - Public interest - Discloser of information relating to personal information having no relationship with any public activity or interest, or causing unwarranted invasion of privacy of the individual - May be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party - Here ‘public interest’ means the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake - Distinction between public welfare and of interest to the public - Section 8(1)(j) protects and shields one from unwarranted access to personal information and facets like reputation, honour, etc. associated with the right to privacy - Similarly, there is a public interest in the maintenance of confidentiality in the case of private individuals and even government - PIO has to weigh public interest and right to privacy in the information sought to be disclosed. (Para 72, 74, 75, 80)

(p) Right to Information Act, 2005 - Section 8(1)(j) and Proviso to Section 11(1) - Doctrine of public interest and Judicial independence - Independence of judiciary - Decisional independence and functional independence - Transparency, accountability and judicial independence - Independence of the judiciary, matter of public interest - While exercising discretion to allow discloser of information in public interest, judicial independence has to be kept in mind - Transparency and openness in judicial appointments, and confidentiality of deliberations - These questions cannot be answered in absolute terms. (Para 89)

(q) Right to Information Act, 2005 - Section 8(1)(j) and Proviso to Section 11(1) - CIC rightly directing CPIO Supreme Court to furnish information on the judges of the Supreme Court who had declared their assets - In such matter fiduciary relationship rule in terms of clause (e) to Section 8(1) is inapplicable. (Para 89)

Per N.V. Ramana, J. (Concurring)

(r) Constitution of India - Article 19 - Two fundamental rights - Right to information and right to privacy - Though seen as conflicting, both rights are two faces of the same coin - A balancing formula required which can be easily made applicable to individual cases. (Para 2)

(s) Doctrine of necessity - Preliminary objection on the Bench hearing the matter on the ground that Court’s functionality had a direct impact on the matter - Objection overruled as the Court is sitting as a Court of necessity - Appellants have to accept decision of Supreme Court. (Para 9, 10)

(t) Right to Information Act, 2005 - Section 10 - Severability - Request for access to information containing both exempted and non-exempted parts - Non-exempted parts, if could be revealed, such parts could be reasonably severed provided as information under the Act. (Para 15)

(u) Right to Information Act, 2005 - Section 11 - Request for private information of third party - Third party has to be given opportunity to be heard so that PIO may consider whether discloser in public interest outweighs the possible harm in disclosure to the third party. (Para 17)

(v) Constitution of India - Article 19(1)(a) - Right to speech and expression - Includes right to information. (Para 19)

(w) Right to Information Act, 2005 - Section 2(j) - ‘Held’ - Information sought in custody of CJI being administrative head of Supreme Court - Held, Chief Justice of India is holding the information. (Para 21)

(x) Interpretation of statute - Exemption clause - Need to be construed strictly - Given appropriate meaning in terms of the intention of the legislature. (Para 23)

(y) Right to Information Act, 2005 - Section 8(1)(d) - Exemption from discloser - Confidential information - Discloser in public interest - Confidential commercial information - Cannot be disclosed - Discloser of all other confidential information are required to be balanced with public interest - Section 11. (Para 31, 32)

(z) Right to Information Act, 2005 - Section 8(1)(j) - Private information - Exemption from discloser - The provision requires balancing privacy with public interest - First, adjudicating authority has to ascertain whether the information is private and if so it has a reasonable expectation of privacy - Factors - In case of private information has reasonable expectation of privacy then it is exempted from discloser, subject to ‘public interest test’ and ‘proportionality test’. (Para 34, 36, 37, 38, 41, 44)

(aa) Right to Information Act, 2005 - Section 8(1)(j) - Data protection and right to information - There is an urgent requirement for integrating the principles of data protection into the right to information jurisprudence. (Para 41)

(ab) Constitutional law - Transparency, judicial independence and the RTI Act - Equally important concepts - There needs to be a balance between the three - Absolute transparency cannot be allowed - Right to information nota tool of surveillance to scuttle effective functioning of judiciary. (Para 42, 43)

Per Dhananjya Y. Chandrachud, J.

(ac) Right to Information Act, 2005 - Section 2(h), 2(j) and 3 - Supreme Court and High Courts are public authorities - Office of the Chief Justice of India not distinct from the Supreme Court of India - Information held by them or under their control liable to be disclosed - Chief Justice of India and Chief Justices of High Courts competent authorities for the respective courts. (Para 12, 13)

(ad) Indian Evidence Act, 1872 - Sections 123 and 164 - Section 123 protects the information in relation to affairs of the State from discloser - Under Section 162 court has to balance between “the detriment to the public interest on the administrative or executive side resulting from disclosure of the document against the detriment to the public interest on the judicial side resulting from non-disclosure of the document though relevant to the proceeding - The principal consideration will always be that of public interest - Balancing must be carried out between transparency and accountability of our institutions. (Para 25, 33)

(ae) Independence of judiciary - Concept not new - Meaning still imprecise. (Para 35)

(af) Constitution of India - Articles 124(2), 125(2), 129, 145, 146(1) and (2), 229(1) and (2), 215, 217, 221(2), 227(1) and (2) - Judicial independence - Constitutional safeguards to ensure independence of judiciary guaranteeing freedom to function independent of the will of the legislature and executive - Independence is secured by accountability - Transparency and scrutiny are instruments to secure accountability - However, judicial independence cannot be used for avoiding accountability and transparency. (Para 36, 37, 38, 45, 48, 57)

(ag) Right to Information Act, 2005 - Section 8(1)(e) - Fiduciary relationship - Assets declared by Judges - Chief Justice of India in exercising his official functions while holding asset information of other judges does not act for and on behalf of other judges of the Supreme Court - There exists no fiduciary relationship between them. (Para 69)

(ah) Right to Information Act, 2005 - Section 8(1) - Clauses (a), (b), (c), (f), (g) and (h) provide an absolute exemption from the obligation of disclosure - On the other hand clauses (d), (e), (i) and (j) provide a qualified exemption from disclosure - Larger public interest overrides qualified exemptions. (Para 75, 76)

(ai) Right to Information Act, 2005 - Section 11 - Third party information - Procedure for discloser of third party (including public authority, other than the seeker) information treated as confidential. (Para 77)

(aj) Right to Information Act, 2005 - Section 8(1)(j) and 11 - For discloser of personal information procedure u/s 11 must be complied with - Instantly, information sought pertaining to the declaration of assets of members of the judiciary and official file notings and correspondence with respect to the elevation of judges to the Supreme Court - Information with respect to assets of judges not generated by Supreme Court, but provided by individual judges - Similarly file notings with respect to elevation of judges to Supreme Court do not merely contain information regarding operation of Supreme Court, but also relate to individual judges being considered for elevation - Both information being third party information, procedure u/s 11 must be complied with. (Para 78, 80)

(ak) Constitution of India - Article 19(1)(a), and Article 21 r/w section 8(1), RTI - Right to information or right to know is a facet of Article 19(1)(a) - Similarly right to privacy is a facet of Article 21 - The Act fulfilling positive content of the right to know but with certain restrictions under Section 8 - Balances interests between privacy right of individuals whose information may be disclosed and broader public interest in ensuring transparency, accountability and an informed electorate. (Para 83, 88)

(al) Right to Information Act, 2005 - Validity - A legislation to pursue a legitimate state aim of ensuring, transparency and accountability of government and an informed electorate - Constitutionally valid. (Para 87)

(am) Right to Information Act, 2005 - Section 8 - Personal information - Certain category of information such as medical information, details of personal relations, employee records and professional income can be classified as personal information - CPIO has to determine, on a case to case basis, whether such information must be disclosed depending on the public interest demonstrated in favour of disclosure. (Para 97)

(an) Right to Information Act, 2005 - Section 8 - Public interest - Broad principles as to how the phrase “public interest” is to be understood laid down. (Para 107)

(ao) Right to Information Act, 2005 - Section 8 - Section 8 - Balancing interests in disclosure with privacy interests - PIO should record reasons for denying discloser giving the analytical framework adopted. (Para 108, 110, 111, 112)

Facts of the case:

This case raises the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (‘RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.

The respondent Subhash Chandra Agarwal had moved two applications before the CPIO, Supreme Court of India: (1) to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached, through a lawyer, Mr. Justice R. Reghupathi of the High Court of Madras to influence his judicial decisions. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority. On further appeal, the Central Information Commission has directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the judges. (2) to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A. P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009.

Finding of the Court:

The information with respect to which judges of the Supreme Court have declared their assets does not constitute the “personal information” of the judges and does not engage the right to privacy. The contents of the declaration of assets would fall within the meaning of “personal information” and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11.

The basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. Substantive standards which are borne in mind must be formulated and placed in the public realm.

Result: Civil Appeal No. 2683 of 2010 dismissed and the judgment of the Delhi High Court dated 12 January 2010 in LPA No 501 of 2009 upheld.