IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA
SUBHASH CHANDRA AGARWAL
CIVIL APPEAL NO. 10045 OF 2010
CIVIL APPEAL NO. 2683 OF 2010
Date Decided:13th November, 2019
Bench: Justice N.V. Ramana, Hon’ble Dr. Chandrachud, Deepak Gupta, Sanjiv Khanna
This case involves three appeals which arose from separate orders denying the required access to information under the RTI Act. The first of the appeals involved a Right to Information Application filed by Subhash Chandra Agarwal (the respondent). The respondent sought the complete correspondence of the Chief Justice of India regarding a Union Minister having allegedly approached Justice R Raghupati of the Madras High Court, to influence a judicial decision. The second appeal involved an RTI application request to furnish a copy of documents available with the Supreme Court. This included a correspondence between the relevant constitutional authorities relating to the appointment ofJustice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha, superseding other senior judges.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. The third appealmoved by Subhash Chandra Agarwal, seeking information on declaration of assets made by the judges to the Chief Justices in the States, which application was dismissed by the CPIO, Supreme Court of India vide order/letter dated 30th November, 2007 stating that information relating to declaration of assets of the judges of the Supreme Court of India and the High Courts was not held by or was not under control of the Registry of the Supreme Court of India.
Thereupon, Subhash Chandra Agarwal had directly preferred an appeal before the CIC, without filing the first appeal, which appeal was allowed vide order dated 06th January, 2009. Aggrieved by this, the CPIO Supreme Court of India filed a Writ Petition before the Delhi High Court in the favour of the respondent.
- Does public disclosure of information held by the office of the CJI and collegium curtail the independence of the judiciary?
- Does Section 8(i)(e) and/or (j) of the RTI Act exempt the CJI from public disclosure of information, on the grounds of protecting fiduciary and personal information?
- Would disclosing information pertaining to Collegium decision-making, prevent Collegium members from deliberating freely and frankly?
Supreme Court of India and the Chief Justice of India – two separate public authorities?
The question whether the Supreme Court of India and the Chief Justice of India are two separate public authorities, was dismissed. The court referred to the terms ‘competent authority’ and ‘public authority’ defined in clauses (e) and (h) to Section 2 of the RTI Act. Further it referred to the Article 124 of the Indian Constitution which relates to the establishment and constitution of the Supreme Court of India, states that there shall be a Supreme Court of India consisting of a Chief Justice and other judges.It is undebatable that the Supreme Court of India is a ‘public authority’, as defined in clause (h) to Section 2 of the RTI Act as it has been established and constituted by or under the Constitution of India.Further it establishes that the office of the Chief Justice and other judges are a part of Supreme Court of India and not separate entities. This would apply to the High Courts as well.
Information and right to information
“Terms ‘information’, ‘record’ and ‘right to information’ have been defined under clauses (f), (i) and (j) to Section 2 of the RTI Act. ‘Information’ as per the definition clause is broad and wide, as it is defined to mean “material in any form” with amplifying words. The definition of ‘information’ in clause (f) to Section 2 follows and gets affirmation from the definition of ‘right to information’ that the information should be accessible by the public authority and ‘held by or under the control of any public authority’. When information is accessible by a public authority, that is, held or under its control, then the information must be furnished to the information seeker under the RTI Act 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.”
“The expressions ‘held by or under the control of any public authority’ and ‘information accessible under this Act’ are restrictive and reflect the limits to the ‘right to information’ conferred vide Section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act.”
Clause (e) to Section 8(1) of the RTI Act states that information made available to a person in his fiduciary relationship shall not be disclosed unless the competent authority is satisfied that thelarger public interest warrants the disclosure of such information.To understand the meaning of ‘fiduciary relationship’ under section 8(1)(e), the Court referred to Aditya Bandopadhyay case.
“The Court held that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information.” In other words, information available with the public authority relating to beneficiaries cannot be withheld from or denied to the beneficiaries themselves. Further the court referred to the Reserve Bank of India case in which the court outlined the contour of fiduciary relationship. These are 1) no conflict rule2) no profit rule 3) undivided loyalty rule, and 4) duty of confidentiality. Fiduciary relationships, regardless of whether they are formal, informal, voluntary or involuntary, must satisfy the four conditions for a relationship to classify as a fiduciary relationship.
“The court held that the relationship between the Chief Justice and judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.”
Right to privacy and confidentiality
The RTI Act captures this interplay of the competing rights under clause (j) to Section 8(1) and Section 11. While clause (j) to Section 8(1) refers to personal information as distinct from information relating to public activity or interest and seeks to exempt disclosure of such information, as well as such information which, if disclosed, would cause unwarranted invasion of privacyof an individual, unless public interest warrants its disclosure, Section 11 exempts the disclosure of ‘information or record…which relates to or has been supplied by a third party and has been treated as confidential by that third party’
The breach of confidentiality and invasion of privacy are to be well-adjusted with the right to information. The court in Coco v. AN Clark (Engineers) Ltd, have recognized three elements that are essential for a case of breach of confidentiality to succeed. These are (a) information should be of confidential nature; (b) information must be imparted in circumstances importing an obligation of confidentiality; and (c) that there must be unauthorised use of information.
Clause (j) to sub-section (1) of Section 8 of the RTI Act specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest.
Talking about Section 11, the Court highlighted the relevance of confidentiality in the government and its functioning.In Arvind Kejriwal v. Central Public Information Officer and Another, the court explained, “the plea of confidentiality is an absolute bar, for in terms of proviso to Section 11(1) of the RTI Act, the Public Information Officer has to undertake the balancing exercise and weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed.”
Meaning of the term ‘public interest’
The Court observed that the public interest test often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access. Section 8(1)(j) and Section 11 also require balancing of competing public interests. The Court noted that the test prescribed in Section 8(1)(j) is broader than the one in Section 11, as the latter requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of ‘possible’ harm and injury to the third party on disclosure.
The Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Anotherhas held that the phrase ‘public interest’ in Section 8(1)(j) has to be understood in its true connotation to give complete meaning to the relevant provisions of the RTI Act.
The meaning of ‘public interest’ in context to RTI is the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake. Public welfare is different from public interest.
To examine the co relation of doctrine public interest with transparency in the functioning of the judiciary in matters of judicial appointments/selection and importance of judicial independence, the court recognised four major arguments that are generally invoked to deny third-party or public access to information on appointments/selection of judges, namely, (i) confidentiality concerns; (ii) data protection; (ii) reputation of those being considered in the selection process, especially those whose candidature/eligibility stands negated; and (iv) potential chilling effect on future candidates given the degree of exposure and public scrutiny involved.
The Court previously in the judgment emphasized the independence of the judiciary as an institution and judicial independence has to be kept in mindwhen the public interest demands the disclosure of information.
“the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’ which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference.”
“it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to betaken into account in weighing and applying the public interest test. 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.”
“In view of the aforesaid discussion, we dismiss Civil Appeal No.2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation. 90. As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit tothe CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of.”
 Supreme Court Observer https://www.scobserver.in/court-case/rti-act-and-judicial-independence
 AIR 2012 Delhi 29
 Global Freedom of Expression Columbia University https://globalfreedomofexpression.columbia.edu/cases/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-agarwal/#:~:text=The%20respondent%2C%20Subhash%20Chandra%20Agarwal,the%20appointment%20of%20judges%20and
 (2012) 13 SCC 61