The Constitution bench of the Supreme Court held that the office of the Chief Justice of India is a public authority under the Right to Information Act. It upheld the judgment given by the Delhi High Court in 2010 which had ruled the same.
The Constitution bench comprised of Chief Justice of India Ranjan Gogoi and Justices D.Y. Chandrachud, Deepak Gupta, N.V. Ramana and Sanjiv Khanna.
While writing the majority opinion on behalf of the bench, Justice Sanjiv Khanna said: “Transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand. Disclosure is a facet of public interest”. Justice Chandrachud and Justice Ramana gave concurring opinions in their separate judgments. But the right to information was qualified by the apex court on grounds of public interest by ordering maintenance of confidentiality in some aspects of judicial administration. The court stated:
“Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature”.
The court laid down certain parameters to test as to what may constitute public interest:
“The public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person”.
“The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the ‘possible’ harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties”.
The judgment stated that while considering the application, the motive of the applicant is not a relevant consideration. The court stated this while referring to section 6(2) of the RTI Act. However, the top court said that ‘motive’ and ‘purpose’ are relevant considerations in case of qualified exemptions while applying the public interest test. The Public Information Officer is conferred with vast discretionary powers under the RTI Act in taking a call on these matters. While applying the public interest test, the independence of judiciary is one of the indispensable factors that has to be kept in mind: “Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information”. The judgment of Justice Khanna drew a distinction between “input” and “output”. It said that the “input” are the observations, indicative reasons, inputs and data which the collegium had examined whereas the “output” is the final outcome of the collegium resolution.
“The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, tis the decision.
In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars”. With respect to the direction issued by the Delhi High Court pertaining to the disclosure of information dealing with the contemplations of the collegium, the top court directed the CPIO to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information related to third parties.
The court held that the disclosure of the information with regards to the assets of the judges would not infringe their right to privacy in any manner. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is also inapplicable to this information. The information commissioner was asked by the court to use proportionality test while considering the applications seeking information from the CJI’s office. This has to be done while keeping the privacy and independence of the judiciary at the forefront. Justice Khanna noted: “Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest”. While concurring with Justice Khanna’s opinion, Justice Ramana said:
“Right to privacy and right to information go hand in hand. None can take precedence over the other”.
Justice Chandrachud stated that the information with respect to the assets of the judges cannot be kept out of the purview of the RTI as it does not constitute personal information. He further stated that judiciary cannot work in total isolation as judges enjoy constitutional post and discharge public duty. He observed: “There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process”.
Other crucial observations
The crucial findings in the case authored by Justice Khanna on behalf of himself, CJI Gogoi and Justice Gupta are:
- In view of the Article 124 of the Indian Constitution, the office of the CJI is an essential part of the Supreme Court. Two of them are not two distinct public authorities.
- The disclosure of the information regarding the personal assets of the judges would not amount to an infringement of their right to privacy. As such information cannot be ascribed as personal.
- In certain circumstances, the relation between the chief justice and the judges may become fiduciary. But it is not an absolute rule as generally, the relationship between them is not that of a fiduciary and a beneficiary.
While determining the ‘public interest’ under Section 8 of the RTI Act, as per Justice Ramana, the following non-exhaustive factors are needed to be kept in mind:
- Nature and content of the information.
- Consequences of non-disclosure, dangers and benefits to public.
- Type of confidential obligation.
- Beliefs of the confidant; reasonable suspicion.
- Party to whom information is disclosed.
- Manner in which information acquired.
- Public and private interests.
- Freedom of expression and proportionality.
Justice Ramana laid out some considerations which are needed to be taken care of before coming to the conclusion that whether there was a reasonable expectation of privacy of the person concerned.
- The nature of information.
- Impact on private life.
- Improper conduct.
- Criminality
- Place where the activity occurred or the information was found.
- Attributes of claimants such as being a public figure, a minor etc and their reputation.
- Absence of consent.
- Circumstances and purposes for which the information came into the hands of the publishers.
- Effect on the claimant.
- Intrusion’s nature and purpose
Background
The Delhi High Court three-judge bench had upheld the decision of the single-judge bench. It had held that the Supreme Court and the Chief Justice of India are duty-bound by the virtue of the statute. The duty is to furnish the information sought by the citizens regarding the functioning and administration of the Supreme Court. The single bench had dismissed the challenge against the order of Central Information Commission whereby it had directed the Supreme Court CPIO to provide the information requested by Subhash Chandra Agarwal for supply of information concerning declaration of personal assets by the Judges of the Supreme Court.
The three-judge bench comprised of the then Chief Justice of Delhi High Court A.P. Shah and Justices Vikramjeet Sen and S. Muralidhar.
These appeals were referred to the Constitution bench by a three-judge bench headed by Justice Ranjan Gogoi in August 2016. Although, these appeals were filed in 2010. The bench also took a reference of the following questions formulated by a bench of Justices S.S. Nijjar and B. Sudershan Reddy along with the appeals:
- Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
- Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?
- Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?