2019 (11) TMI 895 - SC - Indian Laws

Office of the CJI is part of a single public authority; RTI disclosures subject to Sections 8-11 and balancing

SC held the Supreme Court is a single public authority including the office of the CJI, and the CJI's office is not a separate public authority. The Court ... RTI on personal information and right to privacy of the judges of Supreme court - Transparency and Openness in the functioning of the judiciary in matters of judicial appointments/selection and importance of judicial independence - conflict between the right to information and exclusions under Section 8 to 11 of the RTI Act - Confidentiality in case of personal information and its co-relation with the right to privacy and disclosure of the same on the anvil of the public interest test Chief Justice of India and the Supreme Court of India are two distinct and separate public authorities - Fiduciary Relationship under Section 8(1)(e) of the RTI Act - Principle of confidentiality - Meaning of word ‘personal’ - relationship between the Chief Justice and judges - Terms ‘competent authority’ and ‘public authority’ - scope of the expressions ‘information’ and ‘right to information’ - doctrine of the public interest - ‘proportionality test’. Chief Justice of India and the Supreme Court of India - HELD THAT:- The Supreme Court of India, which is a ‘public authority’, would necessarily include the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. To hold to the contrary would imply that the Chief Justice of India and the Supreme Court of India are two distinct and separate public authorities, and each would have their CPIOs and in terms of subsection (3) to Section 6 of the RTI Act an application made to the CPIO of the Supreme Court or the Chief Justice would have to be transferred to the other when ‘information’ is held or the subject matter is more closely connected with the ‘functions’ of the other. This would lead to anomalies and difficulties as the institution, authority or body is one. The Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority. This is equally true and would apply to the High Courts in the country as Article 214 states that there shall be a High Court for each State and Article 216 states that every High Court shall consist of a Chief Justice and such other judges as the President of India may from time to time deem it appropriate to appoint. INFORMATION AND RIGHT TO INFORMATION UNDER THE RTI ACT - 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. Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private bodies. Rather, clause (f) to Section 2 upholds and accepts the said position when it uses the expression – “which can be accessed”, that is the public authority should be in a position and be entitled to ask for the said information. Section 22 of the RTI Act, an overriding provision, does not militate against the interpretation as there is no contradiction or conflict between the provisions of Section 2(f) of the RTI Act and other statutory enactments/law. Section 22 of the RTI Act is a key that unlocks prohibitions/limitations in any prior enactment on the right of a citizen to access information which is accessible by a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of the public authority to access information. In other words, a private body will be entitled to the same protection as is available to them under the laws of this country. Fiduciary Relationship under Section 8(1)(e) of the RTI Act - 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. In each of the four principles, the emphasis is on trust, reliance, the fiduciary’s superior power or dominant position and corresponding dependence of the beneficiary on the fiduciary which imposes responsibility on the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself. Section 8(1)(e) is a legal acceptance that there are ethical or moral relationships or duties in relationships that create rights and obligations, beyond contractual, routine or even special relationships with standard and typical rights and obligations. Thus, relationships can be partly fiduciary and partly non-fiduciary with the former being confined to a particular act or action which need not manifest itself in entirety in the interaction and relationship between two parties. What would distinguish non-fiduciary relationship from fiduciary relationship or an act is the requirement of trust reposed, higher standard of good faith and honesty required on the part of the fiduciary with reference to a particular transaction(s) due to moral, personal or statutory responsibility of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary. This may arise due to superior knowledge and training of the fiduciary or the position he occupies. Ordinarily 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 under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act - 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. We would like to, however, clarify that in their treatment of this exemption, this Court has treated the word ‘information’ which if disclosed would lead to invasion of privacy to mean personal information, as distinct from public information. This aspect has been dealt with in the succeeding paragraphs. Proviso to Section 11(1) applies in all cases except trade or commercial secrets protected by law. Pertinently, information including trade secrets, intellectual property rights, etc. are governed by clause (d) to sub-section (1) of Section 8 and Section 9 of the RTI Act. In all other cases where the information relates to or has been supplied by the third party and treated as confidential by that third party, disclosure in terms of the proviso may be allowed where the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party. There are certain circumstances where the public interest in maintaining confidentiality may be outweighed by the public interest in disclosure and, thus, in common law, it may not be treated by the courts as confidential information. These aspects would be relevant under the proviso to Section 11(1) of the RTI Act. The expression ‘third party’ has been defined in clause (n) to Section 2 to mean a person other than the citizen making a request for information and includes a public authority. Thus, the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), 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. Third-party could include any individual, natural or juristic entity including the public authority. However, this is not to state that plea of confidentiality is an absolute bar, for in terms of proviso to Section 11(1) of the RTI Act, the PIO 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. We have already referred to the general approach on the right of access to government records under the heading “Section 8(1)(j) and Section 11 of the RTI Act” with reference to the decisions of the High Court of Australia in Heinemann Publishers Pty Ltd. (supra) and John Fairfax and Sons Ltd. (supra). MEANING OF THE TERM ‘PUBLIC INTEREST’ - Public interest in access to information refers to something that is in the interest of the public welfare to know. Public welfare is widely different from what is of interest to the public. “Something which is of interest to the public” and “something which is in the public interest” are two separate and different parameters. The object and purpose behind the specific exemption vide clause (j) to Section 8(1) is to protect and shield oneself from unwarranted access to personal information and to protect 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, an aspect we have already discussed. In the RTI Act, in the absence of any positive indication as to the considerations which the PIO has to bear in mind while making a decision, the legislature had intended to vest a general discretion in the PIO to weigh the competing interests, which is to be limited only by the object, scope and purpose of the protection and the right to access information and in Section 11(1), the ‘possible’ harm and injury to the third party. It imports a discretionary value judgment on the part of the PIO and the appellate forums as it mandates that any conclusion arrived at must be fair and just by protecting each right which is required to be upheld in public interest. There is no requirement to take a fortiori view that one trumps the other. JUDICIAL INDEPENDENCE - While applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. 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, that is 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. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly answered. However, independence of judiciary is a matter of public interest. Conclusion - Thus, we dismiss Civil Appeal and uphold the judgment of the Delhi High Court [2010 (1) TMI 1104 - DELHI HIGH COURT] 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. As far as Civil Appeal further, they are to be partly allowed with an order of remit to the 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. Issues Involved:1. Transparency in the appointment and elevation of judges.2. Declaration of assets by judges.3. Disclosure of correspondence related to judicial decisions.4. Right to Information (RTI) vs. Right to Privacy.5. Fiduciary relationship and confidentiality.6. Public interest in disclosure.7. Judicial independence and accountability.Issue-wise Detailed Analysis:1. Transparency in the Appointment and Elevation of Judges:The judgment addresses the appeals concerning the disclosure of correspondence and file notings related to the appointment of judges to the Supreme Court. The court held that such information does not inherently fall under a protected class of documents and must be disclosed unless it is shown that disclosure would harm public interest more than non-disclosure. The court emphasized that transparency in judicial appointments is crucial for maintaining public confidence in the judiciary.2. Declaration of Assets by Judges:The court upheld the CIC's directive for the disclosure of information on whether judges of the Supreme Court have declared their assets. It was clarified that while the contents of the asset declarations are 'personal information' and may be exempt from disclosure under Section 8(1)(j) of the RTI Act, the fact of whether such declarations have been made is not personal information and must be disclosed.3. Disclosure of Correspondence Related to Judicial Decisions:The court examined the appeal concerning the disclosure of correspondence related to a Union Minister allegedly influencing a judge of the Madras High Court. The court directed the CPIO to re-examine the matter, following the procedure under Section 11 of the RTI Act, which involves notifying third parties and considering their objections before deciding on disclosure.4. Right to Information (RTI) vs. Right to Privacy:The judgment extensively discusses the balance between the right to information and the right to privacy. It was held that while the RTI Act promotes transparency and accountability, it also recognizes the need to protect personal information and privacy. The court emphasized that the right to information is not absolute and must be balanced against privacy rights, with the larger public interest being a determining factor.5. Fiduciary Relationship and Confidentiality:The court rejected the argument that the Chief Justice of India holds asset declarations of judges in a fiduciary capacity. It was held that the Chief Justice does not act for the benefit of individual judges but in an official capacity, and therefore, the information is not exempt under Section 8(1)(e) of the RTI Act.6. Public Interest in Disclosure:The court elaborated on the concept of public interest, stating that it is not limited to democratic accountability but includes promoting public debate, intellectual and educational purposes, and artistic expression. The court provided guidelines for Information Officers to balance public interest against privacy interests, emphasizing that the principle of proportionality must be applied to ensure that no right is abridged more than necessary.7. Judicial Independence and Accountability:The judgment underscores that judicial independence is not compromised by transparency and accountability. The court highlighted that transparency in judicial appointments and the disclosure of information related to the judiciary are essential for maintaining public trust and ensuring that the judiciary remains free from undue influence and bias.Conclusion:The court dismissed Civil Appeal No. 2683 of 2010, upholding the Delhi High Court's judgment directing the disclosure of whether judges have declared their assets. Civil Appeals Nos. 10044 and 10045 of 2010 were remanded to the CPIO, Supreme Court of India, for re-examination following the principles set out in the judgment. The court emphasized the need for transparency and accountability in the judiciary while balancing these with the right to privacy and confidentiality where applicable.