Judicial independence, CJI and the RTI Act

Articles 124 and 214 of the Constitution of India establish and constitute the Supreme Court of India (“SC”) and the High Court (“HC”) for each State. The RTI Act applies to the public authorities constituted by or under the Constitution of India. SC and HC are therefore public authorities and citizens have been filing RTI applications to their Central Public Information Officers (“CPIO”).

However, when certain right to information requests[1] on declaration of assets by judges and correspondences with the Chief Justice of India (“CJI”) on appointment of judges etc were filed with the CPIO/SC, the matter reached the Central Information Commission (“the CIC”) as this information was not divulged by CPIO/SC.

On hearing the matter, the CIC directed disclosure of information in all the three RTI applications[2]. Aggrieved, the CPIO/SC in the RTI application dated 10.11.2007, filed an appeal before the High Court at Delhi (“DHC”). The single judge of the DHC in its decision dated 2.9.2009[3] held as under:

• CJI is a public authority under the RTI Act.
• Asset declaration by SC Judges pursuant to the 1997 resolution* is information under the RTI Act and is subject to the provisions of the RTI Act.
• The CJI does not hold these asset declarations in fiduciary relationship.
• Contents of asset declarations, pursuant to the 1997 resolution and the 1999 conference resolution** are entitled to be treated as personal information and maybe accessed as per the procedure of Section 8(1) (j).

Thereafter, CPIO/SC filed a further appeal[4] which was listed for hearing before a full bench of DHC. The full bench dismissed the appeal. It also granted the leave to appeal to SC, as it was of the view that the matter involved substantial question of law[5]. Subsequently, civil appeal no. 2683 of 2010 was filed in the SC.

In respect of the other two RTI applications (dated 23.01.2009 and 6.7.2009), CPIO/SC, filed special leave petitions[6] (“the SLPs”) before the SC. The SLPs and civil appeal No. 2683 of 2010 were tagged together and placed before a division bench of the SC. The division bench took the view that the matter involved substantial questions of law as to the interpretation of the Constitution [7]. It directed the SC registry to place the matter before Hon’ble CJI for constitution of a bench of the appropriate strength.

The substantial questions of law framed by the division bench of SC:

1.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?

2. 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?

3. Whether the information sought for is exempt under Section 8 (i) (j) of the Right to Information Act?

Constitution Bench of SC:

In its decision[8], the constitution bench has given an exposition of some of the very important Sections of the RTI Act and has:

1. Interpreted the terms of Information and the Right to Information.
2. Interpreted Sections 8,9, 10 and 11 of the RTI Act.
3. Interpreted in detail Sections 8(1) (e) and 8 (1) (j) and put forth an indicative list of ‘personal information’ under the RTI Act.
4. Defined the elements of the right to confidentiality in the context of the RTI Act.
5. Discussed confidentiality in case of personal information and its co-relation with the right to privacy and disclosure of the personal information on the anvil of the public interest test.
6. Specified the three exception to public interest in protecting confidentiality under Section 11.
7. Compared Section 11 with Section 8 (1) (j).
8. Defined the meaning of the public interest test in the context of the RTI Act.
9. Laid down that in the context of the RTI Act, the right to protect identity and anonymity will be identically subjected to public interest test.
10. Laid down that accountability is an aspect that has to be taken into account while examining the public interest in favour of disclosure of information.
11. Examined the co-relation of public interest with transparency in the functioning of judiciary in matters of judicial appointments/selection and importance of judicial independence.

Public Interest Test:

On page no.88 of its decision, the constitution bench has opined that public interest test in the context of the RTI Act would involve “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 person”.

Constitution Bench’s answers to the substantial questions of law:

1.Independence of Judiciary:

Independence of Judiciary is a matter of public interest. When public interest demands disclosure of information, judicial independence has to be kept in mind. However, it does not mean that independence of judiciary can only be achieved by denial of information.

2.Information relating to appointment/elevation/transfer of judges:

The constitution bench held that a distinction must be drawn between the information relating to 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.

In divulging the input details, data and particulars of the candidate, 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 duty of confidentiality owed to the candidate or the information provider, resulting from furnishing of such details and particulars.

3.Questions cannot be answered in absolute terms:

Further, the constitution bench held that the questions raised by the division bench cannot be answered in absolute terms and that in each case, the public interest test would be applied to weigh the scales and on balance determine to whether give or exempt the information.

Civil Appeal No.2683 of 2010:

Civil appeal No.2683 of 2010 was dismissed.  It was held that the CJI and the Judges together form and constitute the public authority i.e. the SC and that the same position would apply to High Courts.

Information relating to declaration of assets of judges of SC and HC would not in any way impinge upon the personal information and right to privacy of the judges. Fiduciary relationship as defined under Section 8(1) (e) will not be applicable to such an information.

It is when the details and contents of the personal assets is called for, that the right to confidentiality, right to protect personal information and privacy of the judges will be affected, in which event the public interest test as applicable vide Section 8(1) (j) and proviso to Section 11(1) of the RTI Act will apply.

Civil Appeal Nos. 10045 of 2010 and 10044 of 2010:

Were partly allowed with the order of remit to the CPIO, SC to re-examine the matter after following the procedure under Section 11(1) of the RTI Act.

Conclusion:

The Constitution bench judgment has given a detailed analysis on how to address RTI applications which seek information in respect of functioning of judiciary, so as to not to undermine Judicial independence. While doing so, it has for once and for all firmly settled that CJI is a public authority under the RTI Act and the provisions of the RTI Act will be applicable on the office of CJI. It has has also writ that the public interest of judicial independence is to be accounted for, when, deciding an application seeking information regarding functioning of judiciary under the RTI Act.

---

[1] (i) Furnish copy of the complete correspondence with the CJI (ii) Furnish copy of the complete file/papers with the Supreme Court relating to appointment of certain Justices (iii) Information on declaration of assets made by judges to the chief justices in the States made vide RTI Applications dated 10.11.2007, 23.01.2009 and 6.7.2009 by Shri Subhash Chandra Agarwal

[2] CIC orders dated 6.1.2009 and 24.11.2009

[3] CPIO Supreme Court of India Vs. Subhash Chandra Agarwal and another WP (C) No. 288 of 2009 dated 2.9.2009 decided by single bench of Delhi High Court

[4] Secretary General, Supreme Court of India Vs. Subhash Chandra LPA No.501 of 2009 dated 12.1.2010 decided by full bench of Delhi High Court.

[5] Secretary General, Supreme Court of India Vs. Subhash Chandra LPA No.501 of 2009 dated 12.1.2010 decided by full bench of Delhi High Court.

[6] SLP Nos. 32855 and 32856 of 2009

[7] CPIO SC Vs. Subhash Chandra Agrawal, CA No. 10044 of 2010 arising out of SLP (C) No. 32855 of 2009 and CA No. 10045 of 2010 arising out of SLP (C) No. 32856 of 2009 along with Civil Appeal no.2683 of 2010, Secretary General/SC Vs. Subhash Chandra Agarwal dated 26.10.2010 decided by division bench of SC.

[8]Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal, Civil Appeals Nos.10044 of 2010 and 10045 of 2010, filed by CPIO/SC and Civil Appeal no.2683 of 2010 filed by Secretary General/SC decided on 13.11.2019 decided by constitution bench of SC.

*“Through the 1997 Resolution, Hon‟ble Judges of the Supreme Court, inter alia, resolved that “every Judge should make a declaration of all his/her assets in the form of real estate or investment” held in own name or in the name of spouse or any person dependent within a reasonable time and thereafter make a disclosure “whenever any acquisition of a substantial nature is made”[Source: Page No.4, Secretary General, Supreme Court of India Vs. Subhash Chandra Agarwal, LPA No.501/2009, 12th January, 2010, full bench decision of Delhi High Court]

**”The 1999 Resolution, inter alia, referred to the 1997 Resolution and the draft re-statement of values of judicial life prepared on the basis, amongst others, inputs received from various High Courts and an earlier committee as also resolutions passed in the Chief Justices‟ Conference held in 1992. The Code of Conduct, thus finalized, came to be adopted and may also be called 1999 Judicial Conference Resolution“[Source:Page No.4, Secretary General, Supreme Court of India Vs. Subhash Chandra Agarwal, LPA No.501/2009, 12th January, 2010, full bench decision of Delhi High Court]