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Case Reviews, The Law

Central Public Information Officer, Supreme Court of India V. Subhash Chandra Agarwal

The judgment affirmed that the Supreme Court is a public office and is under the purview of RTI. It focused on public accountability and public interest at large which will lead to effective working and transparency along with the protection of personal information, privacy, and confidentiality of judges, It explained sec 8(1)(e) and  Sec 11 which is related to safeguard the confidential, personal and third party data. It opened doors for greater transparency while safeguarding third party data.

By: Anukriti Mathur 

CITATION: CA 10044/2010

BENCH: Justice Ranjan Gogoi, Justice Deepak Gupta, Justice Dr. Dhananjaya Y Chandrachud, Justice Sanjiv Khanna, and Justice NV Ramana

FACTS OF THE CASE:

The appointment of Justices HL Dattu, AK Ganguly, and RM Lodha while senior judges Justices AP Shah, AK Patnaik, and VK Gupta were superseded lead to various RTI applications filed before CIC for disclosure of correspondence between Collegium and Government for this matter. A CIC order was passed for such disclosure on an application filed by Activist Subhash Chandra Agarwal in Nov 2009. Such order was appealed and stayed by order of 4th Dec 2009

A similar issue arose in Jan 2009, before Delhi HC disclose information about judges’ assets. On 2nd Sept 2009, Supreme Court’s CPIO challenged CIC’s order before Justice Ravindra Bhat, who upheld CIC’s order. In Jan 2010, CPIO appealed to Supreme Court before Two judge bench on 26th Nov 2010 which was further referred to as the larger bench. On 17th August 2018, the bench of then CJI Ranjan Gogoi retired Justice Prafulla C Pant, and Justice AM Khanwilkar referred it to the constitutional bench over questions of independence or judiciary and right to privacy. The bench decided the matter on 4th April 2019 but reserved it and the final decision was pronounced on 13th Nov 2019

ISSUES: 

1. Does public disclosure of information held by the office of the CJI and collegium curtail the independence of the judiciary?

2. 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?

3. Would disclose information pertaining to Collegium decision-making, prevent Collegium members from deliberating freely and frankly?

LAW APPLICABLE:

 Sec 8(i)(e), (j) and 11 of Right To Information Act 2005

CONTENTIONS:

 The APPELLANTS argued the following points:

  • Disclosure of communication will unnecessarily lead to intervention in the smooth working of court and the right to information isn’t an absolute right but subject to Protection of private data and confidentiality.
  • The communication among judges in judicial appointments and such disclosure might be futile on the independence of the judiciary and protected under sec 8(1)(e) and information related to assets of judges are protected under sec 8(1)(j).

The information on assets is voluntarily declared by the judges to the Chief Justice of India in his fiduciary capacity as the pater familias of the judiciary.

The RESPONDENT argued the following points:

  • The disclosure of information will not undermine judicial independence but will lead to transparency in the judiciary.
  • The public interest involves outweigh any exemption under sec 8(1)(e) of privacy and confidentiality and the mere existence of a fiduciary relationship does not bar disclosures.
  • Being public servants, The judges of the Supreme Court owe a duty towards citizens and a check over these duties by bona fide disclosure is a boon.1

And no fiduciary relationship is greater than the duty of service towards the citizen.

DECISION:

  • JUSTICE SANJIV KHANNA authored the majority decision while covering the following aspects:
  • On the issue of separate entity of SC and office or CJI and other judges, the bench held that SC is a public authority in the ambit of Sec 2(h) RTI Act as established by the Indian Constitution under Art 124 and the office of CJI and other judges are inclusive in SC making the office of CJI as a public authority 
  • Information is material in any form accessible, held, and controlled by public authority. Reliance was placed on the black’s law dictionary to explain the word ‘hold’ which signifies to keep, retain, maintain, possess, or have authority over. This includes not only physical control but an appropriate connection of that information with the said authority. 
  • Section 3 point out that right to information isn’t absolute but a right with restriction. When any information is asked for it is necessary to balance the right to privacy and public accountability and no information of confidential nature or which violates effective working more than a justification of public interest should be disclosed.3 The sec 8-11 of the RTI Act is a safeguard for the same and it classifies exemptions as absolute and qualified. In the case in hand, the fiduciary relationship between judges is fiduciary and qualifies under sec 8(1)(e), so be disclosed when larger public interest comes to play. 
  • The fiduciary relationship is understood as a capacity in reference to a specific beneficiary who is expected to be protected by certain action4. The rules of No Conflict, No profit, Undivided Loyalty, and duty of confidentiality oblige the people under such relation to having stricter obligations. The judges of the Supreme court share a fiduciary relationship and disclosure of such communication will depend on tests and parameter expressed for that particular situation.

Section 8 and 11 of the RTI Act protect the disclosure of information which may lead to violation of privacy and confidentiality to harmonize these rights with effective governance.

  • The court while commenting on sec 8 noted that court documents may contain a name, address, physical, mental and psychological status, medical records, finding records, etc., which are personal information entitled to protection from unwarranted invasion of privacy but can be accessed in larger public interest is involved. Similarly, sec 11, which deals with third party information needs to create an equilibrium with the harm of disclosure of such third party data with authoritative answerability.5. The disclosure of the information is highly dependent on if the right to access or the right to know outweighs the harm or injury caused to the third party when such information is confidential. 6 
  • The word ‘public interest’ is used repeatedly and defining it becomes necessary for establishing the boundaries. The court in interpreting ‘public interest’ emphasized on object and purpose of such disclosure and weighing the breach of privacy and confidentiality over the greater good associated.7 The stress is placed on weigh in favour of public accountability, public health, safety, International relation, Integrity, etc.
  • The PIO while disclosing the information regarding the RTI application must examine possible harm and injury to a third party on disclosure of such information. The vexatious motive or an application filed merely to abuse the power should be dealt with iron hands.
  • The other obstacle in the disclosure of information is Judicial independence and the need for transparency in judicial appointments. The arguments against non-inclusion of CJI’s office under RTI were confidentiality concern, data protection, the reputation of the selection committee, public scrutiny of future candidates. The independence of the judiciary includes judicial appointments as well as economic, social, and political concerns involved8. So, whenever the information is disclosed it must be an indicator of public interest and judicial independence. The existence of a fiduciary relationship among judges’ privacy and right to protect the personal information of judges need to be studied in light of Sec 8(1)(e) read with sec 11of the RTI Act and due procedure must be followed.
  • JUSTICE DY CHANDRACHUD in his concurring opinion emphasized on public accountability of CJI and other judge’s offices. In his opinion, such disclosure will bring more transparency and not dilute the independence or fiduciary relationship among judges. He threw light on the duty of loyalty, candour, disclosure, and accounting towards the citizens. He too stressed on balance between privacy and public interest along with curbing malicious applications.
  • JUSTICE NV RAMANA too agreed with fair disclosure but show his disquiet towards RTI applications which are just tool of surveillance to scuttle effective functioning of the judiciary. 

 ANALYSIS

The decision is authoritative and of binding nature and extended the scope of accessing information through RTI application to the Supreme court. However, concerns have been raised on Justice Ramana’s statement that RTI is used here as a tool of surveillance and scuttle functioning of the judiciary. The word ‘Motive’ behind seeking application is considered as a discretionary power in the hand of PIO to refuse applications and confidentiality in public office are highly controversial topics for the judgment.

Justice NV Ramana was highly criticized in light of the accountability of public office. The element of public interest in the disclosure of information depends highly on the motive for which it is sought. The judgment will balance the privacy and dignity of the court along with judicial transparency and right to know. The positions and salary of PIO are subject to the pleasure of the centre along with the word ‘disclosure in public interest’ which may act as a hurdle to the efficiency of the RTI process which is a matter of grave concern

ENDNOTES:

  • Central Board of Secondary Education and another v. Aditya Bandopadhyay and others (2011) 8 SCC 497
  • Reserve Bank of India v. Jayantilal N. Mistry (2016) 3 SCC 525
  • Thalappalam Service Cooperative Bank Limited v. State of Kerala and others (2013) 16 SCC 82
  • Aditya Bandopadhyay case
  • Commonwealth v. John Fairfax and Sons Ltd (1980) 147 CLR 39
  • Attorney General (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86
  • Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61
  • Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1

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