RTI Act
“(1) Whether the respondent had any "right to information" under Section 2(j) of the Act in respect of
the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?
(2) If the answer to question (1) above is in affirmative, whether CJI held the "information" in his "fiduciary" capacity, within the meaning of the expression used in
Section 8(1)(e) of the Act?
(3) Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act?”
Conclusion
115. The information sought by the respondent pertains to (
1) the correspondence and file notings relating to the elevation of three judges to the Supreme Court, (2) information relating to the declaration of assets made by judges pursuant to the 1997 resolution, and
(3) the identity and nature of disciplinary proceedings instituted against the lawyer and judge named in the newspaper report.
The third referral question requires this Court to determine whether the disclosure of the information sought is exempt under clause (j) of
clause (1) of Section 8.
In arriving at a determination on whether the information sought is exempt under clause (j), it is necessary to
(i) determine whether the information sought is ―personal information‖ and engages the right to privacy,
(ii) identify, in the facts of the present case, the specific heads of public interest in favour ofdisclosure and the specific privacy interests claimed,
(iii) determine the justifications for restricting such interests and
(iv) apply the principle of proportionality to ensure that no right is abridged more than required to fulfil the legitimate aim of the countervailing right.
The process under Section 11 of the RTI must be complied with where the information sought is ‗third party information‘. The substantive content of the terms ‗personal information‘ and
‗public interest‘ have also been set out in the present judgement.
Directions
116. The information sought in Civil Appeal No 2683 with respect to which judges of the Supreme Court have declared their assets does not constitute the―personal information‖ of the judges and does not engage the right to privacy.
The contents of the declaration of assets would fall within the meaning of ―personal information‖ and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11 of the RTI Act. In view of the above observations,
Civil Appeal No. 2683 of 2010 is dismissed and the judgement of the Delhi High Court dated is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO, Supreme Court of India to be examined and a determination arrived at, after applying the principles set out in the present judgement. The information sought in these appeals falls within the meaning of ‗third party information‘ and the procedure under Section 11 must be complied with in arriving at a determination.
Brother Justice Sanjiv Khanna has observed that:―
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‖
I wish to add a few thoughts of my own on the subject. The collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the
constitutional right to information, facilitated by the RTI Act.
If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm.
This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments.
Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.
Essential substantial norms in regard to judicial appointments include:
(i) The basis on which performance of a member of the Bar is evaluated
for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a member of the
Bar fulfils requirements in terms of:
a) Experience as reflected in the quantum and nature of the
practice;
b) Domain specialization in areas which are geared to the evolving
nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature of the
practice and the circumstances prevailing in the court or region
concerned;
d) The commitment demonstrated by a candidate under
consideration to the development of the law in terms of written
work, research and academic qualifications; and
e) The social orientation of the candidate, defined in terms of the
extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an inclusive
institution and its diversity in terms of gender, representation to
minorities and the marginalised, orientation and other relevant factors.
The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the
appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. 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.
Civil Appeal No. 10044 of 2010 & Ors. Page 1 of 108
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA ….. APPELLANT(S)
VERSUS
SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 10045 OF 2010
A N D
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
SANJIV KHANNA, J.
This judgment would decide the afore-captioned appeals
preferred by the Central Public Information Officer (‘CPIO’ for
short), Supreme Court of India (appellant in Civil Appeal Nos.
10044 and 10045 of 2010), and Secretary General, Supreme
Court of India (appellant in Civil Appeal No. 2683 of 2010), against
the common respondent – Subhash Chandra Agarwal, and seeks
Civil Appeal No. 10044 of 2010 & Ors. Page 2 of 108
to answer the question as to ‘how transparent is transparent
enough’
1 under the Right to Information Act, 2005 (‘RTI Act’ for
short) in the context of collegium system for appointment and
elevation of judges to the Supreme Court and the High Courts;
declaration of assets by judges, etc.
2. Civil Appeal No. 10045 of 2010 titled Central Public Information
Officer, Supreme Court of India v. Subhash Chandra Agarwal
arises from an application moved by Subhash Chandra Agarwal
before the CPIO, Supreme Court of India on 6th July, 2009 to
furnish a copy of the complete correspondence with the then Chief
Justice of India as the Times of India had reported that a Union
Minister had approached, through a lawyer, Mr. Justice R.
Reghupathi of the High Court of Madras to influence his judicial
decisions. The information was denied by the CPIO, Supreme
Court of India on the ground that the information sought by the
applicant-respondent was not handled and dealt with by the
Registry of the Supreme Court of India and the information
relating thereto was neither maintained nor available with the
Registry. First appeal filed by Subhash Chandra Aggarwal was
1 Heading of an article written by Alberto Alemanno: “How Transparent is Transparent Enough?
Balancing Access to Information Against Privacy in European Judicial Selection” reproduced in
Michal Bobek (ed.) Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to
the European Courts (Oxford University Press 2015).
Civil Appeal No. 10044 of 2010 & Ors. Page 3 of 108
dismissed by the appellate authority vide order dated 05th
September, 2009. On further appeal, the Central Information
Commission (‘CIC’ for short) vide order dated 24th November,
2009 has directed disclosure of information observing that
disclosure would not infringe upon the constitutional status of the
judges. Aggrieved, the CPIO, Supreme Court of India has
preferred this appeal.
3. Civil Appeal No. 10044 of 2010 arises from an application dated
23rd January, 2009 moved by Subhash Chandra Agarwal before
the CPIO, Supreme Court of India to furnish a copy of complete
file/papers as available with the Supreme Court of India inclusive
of copies of complete correspondence exchanged between the
concerned constitutional authorities with file notings relating to the
appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly
and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.
P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta,
which was allegedly objected to by the Prime Minister. 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.
Appointment of judges to the Supreme Court and the High Courts
are made by the President of India as per the procedure
Civil Appeal No. 10044 of 2010 & Ors. Page 4 of 108
prescribed by law and the matters relating thereto were not dealt
with and handled by the Registry of the Supreme Court. The
information was neither maintained nor available with the Registry.
First appeal preferred by Subhash Chandra Agarwal was rejected
vide order dated 25th March, 2009 by the appellate authority. On
further appeal, the CIC has accepted the appeal and directed
furnishing of information by relying on the judgment dated 02nd
September, 2009 of the Delhi High Court in Writ Petition (Civil)
No. 288 of 2009 titled Central Public Information Officer,
Supreme Court of India v. Subhash Chandra Agarwal &
Another. The CIC has also relied on the decision of this Court in
S.P. Gupta v. Union of India & Others2
to reach its conclusion.
Aggrieved, the CPIO, Supreme Court of India has preferred the
present appeal stating, inter alia, that the judgment in Writ Petition
(Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi
High Court in LPA No. 501 of 2009 vide judgment dated 12th
January, 2010, which judgment is the subject matter of appeal
before this Court in Civil Appeal No.2683 of 2010.
4. Civil Appeal No. 2683 of 2010 arises from an application dated
10th November, 2007 moved by Subhash Chandra Agarwal
2
(1981) Supp SCC 87
Civil Appeal No. 10044 of 2010 & Ors. Page 5 of 108
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. On the first appeal, the
appellate authority had passed an order of remit directing the
CPIO, Supreme Court of India to follow the procedure under
Section 6(3) of the RTI Act and to inform Subhash Chandra
Agarwal about the authority holding such information as was
sought. The CPIO had thereafter vide order dated 07th February,
2008 held that the applicant should approach the CPIO of the
High Courts and filing of the application before the CPIO of the
Supreme Court was against the spirit of Section 6(3) of the RTI
Act. 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 directing:
“… in view of what has been observed above, the
CPIO of the Supreme Court is directed to provide the
information asked for by the appellant in his RTI
application as to whether such declaration of assets
etc. has been filed by the Hon’ble Judges of the
Supreme Court or not within ten working days from the
date of receipt of this decision notice.”
Civil Appeal No. 10044 of 2010 & Ors. Page 6 of 108
5. Aggrieved, the CPIO, Supreme Court of India had filed Writ
Petition (Civil) No. 288 of 2009 before the Delhi High Court, which
was decided by the learned Single Judge vide judgment dated 02nd
September, 2009, and the findings were summarised as:
“84. […]
Re Point Nos. 1 & 2 Whether the CJI is a public
authority and whether the CPIO, of the Supreme Court
of India, is different from the office of the CJI; and if so,
whether the Act covers the office of the CJI;
Answer: The CJI is a public authority under the Right to
Information Act and the CJI holds the information
pertaining to asset declarations in his capacity as Chief
Justice; that office is a “public authority” under the Act
and is covered by its provisions.
Re Point No. 3: Whether asset declaration by Supreme
Court Judges, pursuant to the 1997 Resolution are
“information”, under the Right to Information Act, 2005.
Answer: It is held that the second part of the
respondent's application, relating to declaration of
assets by the Supreme Court Judges, is “information”
within the meaning of the expression, under Section 2
(f) of the Act. The point is answered accordingly; the
information pertaining to declarations given, to the CJI
and the contents of such declaration are “information”
and subject to the provisions of the Right to Information
Act.
Re Point No. 4: If such asset declarations are
“information” does the CJI hold them in a “fiduciary”
capacity, and are they therefore, exempt from
disclosure under the Act
Answer: The petitioners' argument about the CJI
holding asset declarations in a fiduciary capacity,
(which would be breached if it is directed to be
disclosed, in the manner sought by the applicant) is
insubstantial. The CJI does not hold such declarations
in a fiduciary capacity or relationship.
Civil Appeal No. 10044 of 2010 & Ors. Page 7 of 108
Re Point No. 5: Whether such information is exempt
from disclosure by reason of Section 8(1)(j) of the Act.
Answer: It is held that the contents of asset
declarations, pursuant to the 1997 resolution—and the
1999 Conference resolution—are entitled to be treated
as personal information, and may be accessed in
accordance with the procedure prescribed under
Section 8(1)(j); they are not otherwise subject to
disclosure. As far as the information sought by the
applicant in this case is concerned, (i.e. whether the
declarations were made pursuant to the 1997
resolution) the procedure under Section 8(1)(j) is
inapplicable.
Re Point No. (6): Whether the lack of clarity about the
details of asset declaration and about their details, as
well as lack of security renders asset declarations and
their disclosure, unworkable.
Answer: These are not insurmountable obstacles; the
CJI, if he deems it appropriate, may in consultation with
the Supreme Court Judges, evolve uniform standards,
devising the nature of information, relevant formats,
and if required, the periodicity of the declarations to be
made. The forms evolved, as well as the procedures
followed in the United States—including the redaction
norms—under the Ethics in Government Act, 1978,
reports of the US Judicial Conference, as well as the
Judicial Disclosure Responsibility Act, 2007, which
amends the Ethics in Government Act of 1978 to: (1)
restrict disclosure of personal information about family
members of Judges whose revelation might endanger
them; and (2) extend the authority of the Judicial
Conference to redact certain personal information of
judges from financial disclosure reports may be
considered.”
6. On further appeal by the CPIO, Supreme Court of India, LPA No.
501 of 2009 was referred to the Full Bench, which has vide its
decision dated 12th January, 2010 dismissed the appeal. This
Civil Appeal No. 10044 of 2010 & Ors. Page 8 of 108
judgment records that the parties were ad-idem with regard to
point Nos. 1 and 2 as the CPIO, Supreme Court of India had fairly
conceded and accepted the conclusions arrived at by the learned
Single Judge and, thus, need not be disturbed. Nevertheless, the
Full Bench had felt it appropriate to observe that they were in full
agreement with the reasoning given by the learned Single Judge.
The expression ‘public authority’ as used in the RTI Act is of wide
amplitude and includes an authority created by or under the
Constitution of India, which description holds good for the Chief
Justice of India. While the Chief Justice of India is designated as
one of the competent authorities under Section 2(e) of the RTI
Act, the Chief Justice of India besides discharging his role as
‘head of the judiciary’ also performs a multitude of tasks assigned
to him under the Constitution and various other enactments. In the
absence of any indication that the office of the Chief Justice of
India is a separate establishment with its own CPIO, it cannot be
canvassed that “the office of the CPIO of the Supreme Court is
different from the office of the CJI” (that is, the Chief Justice of
India). Further, neither side had made any submissions on the
issue of ‘unworkability’ on account of ‘lack of clarity’ or ‘lack of
security’ vis-à-vis asset declarations by the judges. The Full
Civil Appeal No. 10044 of 2010 & Ors. Page 9 of 108
Bench had, thereafter, re-casted the remaining three questions as
under:
“(1) Whether the respondent had any "right to
information" under Section 2(j) of the Act in respect of
the information regarding making of declarations by the
Judges of the Supreme Court pursuant to 1997
Resolution?
(2) If the answer to question (1) above is in affirmative,
whether CJI held the "information" in his "fiduciary"
capacity, within the meaning of the expression used in
Section 8(1)(e) of the Act?
(3) Whether the information about the declaration of
assets by the Judges of the Supreme Court is exempt
from disclosure under the provisions of Section 8(1)(j)
of the Act?”
The above questions were answered in favour of the
respondent-Subhash Chandra Aggarwal as the Full Bench has
held that the respondent had the right to information under Section
2(j) of the RTI Act with regard to the information in the form of
declarations of assets made pursuant to the 1997 Resolution. The
Chief Justice did not hold such declarations in a fiduciary capacity
or relationship and, therefore, the information was not exempt
under Section 8(1)(e) of the RTI Act. Addressing the third
question, the Bench had observed:
“116. In the present case the particulars sought for by
the respondent do not justify or warrant protection
under Section 8(1)(j) inasmuch as the only information
the applicant sought was whether 1997 Resolution was
complied with. That kind of innocuous information does
not warrant the protection granted by Section 8(1)(j).
Civil Appeal No. 10044 of 2010 & Ors. Page 10 of 108
We concur with the view of the learned single Judge
that the contents of asset declarations, pursuant to the
1997 Resolution, are entitled to be treated as personal
information, and may be accessed in accordance with
the procedure prescribed under Section 8(1)(j); that
they are not otherwise subject to disclosure. Therefore,
as regards contents of the declarations, information
applicants would have to, whenever they approach the
authorities, under the Act satisfy them under Section
8(1)(j) that such disclosure is warranted in “larger
public interest.”
7. The afore-captioned three appeals were tagged to be heard and
decided together vide order dated 26th November, 2010, the
operative portion of which reads as under:
“12. Having heard the learned Attorney General and
the learned counsel for the respondent, we are of the
considered opinion that a substantial question of law as
to the interpretation of the Constitution is involved in
the present case which is required to be heard by a
Constitution Bench. The case on hand raises
important questions of constitutional importance
relating to the position of Hon’ble the Chief Justice of
India under the Constitution and the independence of
the Judiciary in the scheme of the Constitution on the
one hand and on the other, fundamental right to
freedom of speech and expression. Right to
information is an integral part of the fundamental right
to freedom of speech and expression guaranteed by
the Constitution. Right to Information Act merely
recognizes the constitutional right of citizens to
freedom of speech and expression. Independence of
Judiciary forms part of basic structure of the
Constitution of India. The independence of Judiciary
and the fundamental right to free speech and
expression are of a great value and both of them are
required to be balanced.”
Civil Appeal No. 10044 of 2010 & Ors. Page 11 of 108
8. This order while referring the matter to a larger bench had framed
the following substantial questions of law as to the interpretation of
the Constitution, which read as under:
“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(1)(j) of the Right to Information Act?”
9. We have heard Mr. K.K. Venugopal, Attorney General of India, Mr.
Tushar Mehta, Solicitor General of India on behalf of the Supreme
Court of India and Mr. Prashant Bhushan, learned advocate for
Subhash Chandra Agarwal. The appellants have contended that
disclosure of the information sought would impede the
independence of judges as it fails to recognise the unique position
of the judiciary within the framework of the Constitution which
necessitates that the judges ought not to be subjected to ‘litigative
public debate’ and such insulation is constitutional, deliberate and
essential to the effective functioning of the institution. Right to
information is not an unfettered constitutional right, albeit a right
Civil Appeal No. 10044 of 2010 & Ors. Page 12 of 108
available within the framework of the RTI Act, which means that
the right is subject, among other conditions, to the exclusions,
restrictions and conditions listed in the Second Schedule and in
Sections 8 to 11 of the RTI Act. In support, the appellants have
relied upon Re Coe’s Estate Ebert et al v. State et. al3
, Bhudan
Singh and Another v. Nabi Bux and Another4
, Kailash Rai v.
Jai Ram5 and Dollfus Mieg et Compagnie S.A. v. Bank of
England6
. Information sought when exempt under Section 8 of the
RTI Act cannot be disclosed. Information on assets relates to
personal information, the disclosure of which has no bearing on
any public activity or interest and is, therefore, exempt under
Section 8(1)(j) of the RTI Act. Similarly, information of prospective
candidates who are considered for judicial appointments and/or
elevation relates to their personal information, the disclosure of
which would cause unwarranted invasion of an individual’s privacy
and serves no larger public interest. Further, 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.
Consultations and correspondence between the office of the Chief
Justice of India and other constitutional functionaries are made on
3 33 Cal.2d 502
4 1969 (2) SCC 481
5 1973 (1) SCC 527
6
(1950) 2 All E.R. 611
Civil Appeal No. 10044 of 2010 & Ors. Page 13 of 108
the basis of trust and confidence which ascribes the attributes of a
fiduciary to the office of the Chief Justice. Information relating to
the appointment of judges is shared among other constitutional
functionaries in their fiduciary capacities, which makes the
information exempt under Section 8(1)(e) of the RTI Act. The
respondent, on the other hand, has by relying on the dicta in State
of U.P. v. Raj Narain and Others7 and S. P. Gupta (supra)
argued that disclosure of the information sought does not
undermine the independence of the judiciary. Openness and
transparency in functioning would better secure the independence
of the judiciary by placing any attempt made to influence or
compromise the independence of the judiciary in the public
domain. Further, the citizens have a legitimate and constitutional
right to seek information about the details of any such attempt.
Thus, disclosure, and not secrecy, enhances the independence of
the judiciary. No legitimate concerns exist which may inhibit
consultees from freely expressing themselves or which might
expose candidates to spurious allegations by disclosing the
consultative process for appointing judges. Given the nature of the
information sought, disclosure of the information will serve the
larger public interest and, therefore, such interest outweighs the
7
(1975) 4 SCC 428
Civil Appeal No. 10044 of 2010 & Ors. Page 14 of 108
privilege of exemption granted to personal information under
Section 8(1)(j) of the RTI Act. If any personal information is
involved, the same could be dealt with on a case-by-case basis by
disclosing the information that serves public interest after severing
the records as per Section 10 of the RTI Act. There is no fiduciary
relationship between the Chief Justice and the judges or among
the constitutional functionaries as envisaged under Section 8(1)(e)
of the RTI Act which could be a ground for holding back the
information. Reliance was placed on the decisions of this Court in
Central Board of Secondary Education and Another v. Aditya
Bandopadhyay and Others8 and Reserve Bank of India v.
Jayantilal N. Mistry9
, to contend that the duty of a public servant
is not to act for the benefit of another public servant, that is, the
Chief Justice and other functionaries are meant to discharge their
constitutional duties and not act as a fiduciary of anyone, except
the people. In arguendo, even if there exists a fiduciary
relationship among the functionaries, disclosure can be made if it
serves the larger public interest. Additionally, candour and
confidentiality are not heads of exemption under the RTI Act and,
therefore, cannot be invoked as exemptions in this case.
8
(2011) 8 SCC 497
9
(2016) 3 SCC 525
Civil Appeal No. 10044 of 2010 & Ors. Page 15 of 108
10. For clarity and convenience, we would deal with the issues pointwise, albeit would observe that Point no. 1 (referred to as point
Nos.1 and 2 in the judgment in LPA No. 501 of 2009 dated 12th
January, 2010) was not contested before the Full Bench but as
some clarification is required, it has been dealt below.
POINT NO. 1: WHETHER THE SUPREME COURT OF INDIA AND
THE CHIEF JUSTICE OF INDIA ARE TWO
SEPARATE PUBLIC AUTHORITIES?
11. Terms ‘competent authority’ and ‘public authority’ have been
specifically defined in clauses (e) and (h) to Section 2 of the RTI
Act, which read:
“(e) "competent authority" means—
(i) the Speaker in the case of the House of the
People or the Legislative Assembly of a State or a
Union territory having such Assembly and the
Chairman in the case of the Council of States or
Legislative Council of a State;
(ii) the Chief Justice of India in the case of the
Supreme Court;
(iii) the Chief Justice of the High Court in the
case of a High Court;
(iv) the President or the Governor, as the case
may be, in the case of other authorities
established or constituted by or under the
Constitution;
(v) the administrator appointed under article 239
of the Constitution;
xx xx xx
Civil Appeal No. 10044 of 2010 & Ors. Page 16 of 108
(h) "public authority" means any authority or body or
institution of self-government established or
constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the
appropriate Government, and includes any—
(i) body owned, controlled or substantially
financed;
(ii) non-Government organisation substantially
financed,
directly or indirectly by funds provided by
the appropriate Government;”
12. Term ‘public authority’ under Section 2(h) of the RTI Act includes
any authority or body or an institution of self-government
established by the Constitution or under the Constitution.
Interpreting the expression ‘public authority’ in Thalappalam
Service Cooperative Bank Limited and Others v. State of
Kerala and Others10, this Court had observed:
“30. The legislature, in its wisdom, while defining the
expression “public authority” under Section 2(h),
intended to embrace only those categories, which are
specifically included, unless the context of the Act
otherwise requires. Section 2(h) has used the
expressions “means” and “includes”. When a word is
defined to “mean” something, the definition is prima
facie restrictive and where the word is defined to
“include” some other thing, the definition is prima facie
extensive. But when both the expressions “means” and
“includes” are used, the categories mentioned there
10 (2013) 16 SCC 82
Civil Appeal No. 10044 of 2010 & Ors. Page 17 of 108
would exhaust themselves. The meanings of the
expressions “means” and “includes” have been
explained by this Court in DDA v. Bhola Nath Sharma
(in paras 25 to 28). When such expressions are used,
they may afford an exhaustive explanation of the
meaning which for the purpose of the Act, must
invariably be attached to those words and expressions.
31. Section 2(h) exhausts the categories mentioned
therein. The former part of Section 2(h) deals with:
(1) an authority or body or institution of selfgovernment established by or under the
Constitution,
(2) an authority or body or institution of selfgovernment established or constituted by any other
law made by Parliament,
(3) an authority or body or institution of selfgovernment established or constituted by any other
law made by the State Legislature, and
(4) an authority or body or institution of selfgovernment established or constituted by
notification issued or order made by the appropriate
Government.”
13. Article 124 of the 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 vide clause (h) to Section 2
of the RTI Act as it has been established and constituted by or
under the Constitution of India. The Chief Justice of India as per
sub-clause (ii) in clause (e) to Section 2 is the competent authority
in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is empowered
Civil Appeal No. 10044 of 2010 & Ors. Page 18 of 108
to frame rules, which have to be notified in the Official Gazette, to
carry out the provisions of the RTI Act.
14. 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. The office of the
Chief Justice or for that matter the judges is not separate from the
Supreme Court, and is part and parcel of the Supreme Court as a
body, authority and institution. The Chief Justice and the Supreme
Court are not two distinct and separate ‘public authorities’, albeit
the latter is a ‘public authority’ and the Chief Justice and the
judges together form and constitute the ‘public authority’, that is,
the Supreme Court of India. The interpretation to Section 2(h)
cannot be made in derogation 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
Civil Appeal No. 10044 of 2010 & Ors. Page 19 of 108
the institution and neither he nor his office is a separate public
authority.
15. 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.
POINT NO. 2: INFORMATION AND RIGHT TO INFORMATION
UNDER THE RTI ACT
16. Terms ‘information’, ‘record’ and ‘right to information’ have been
defined under clauses (f), (i) and (j) to Section 2 of the RTI Act
which are reproduced below:
“(f) “information” means any material in any form,
including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders,
logbooks, contracts, reports, papers, samples, models,
data material held in any electronic form and
information relating to any private body which can be
accessed by a public authority under any other law for
the time being in force;
xx xx xx
(i) "record" includes—
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a
document;
(c) any reproduction of image or images embodied in
such microfilm (whether enlarged or not); and
Civil Appeal No. 10044 of 2010 & Ors. Page 20 of 108
(d) any other material produced by a computer or any
other device;
(j) “right to information” means the right to information
accessible under this Act which is held by or under the
control of any public authority and includes the right to—
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of
documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other
device;”
17. ‘Information’ as per the definition clause is broad and wide, as it is
defined to mean “material in any form” with amplifying words
including records (a term again defined in widest terms vide
clause (i) to Section 2 of the RTI Act), documents, emails, memos,
advices, logbooks, contracts, reports, papers, samples, models,
data material held in electronic form, etc. The last portion of the
definition clause which states that the term ‘information’ would
include ‘information relating to any private body which can be
accessed by a public authority under any other law for the time
being in force’ has to be read as reference to ‘information’ not
presently available or held by the public authority but which can be
accessed by the public authority from a private body under any
Civil Appeal No. 10044 of 2010 & Ors. Page 21 of 108
other law for the time being in force. The term – ‘private body’ in
the clause has been used to distinguish and is in contradistinction
to the term – ‘public authority’ as defined in Section 2(h) of the RTI
Act. It follows that any requirement in the nature of precondition
and restrictions prescribed by any other law would continue to
apply and are to be satisfied before information can be accessed
and asked to be furnished by a private body.
18. What is explicit as well as implicit from 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’. The word ‘hold’ as defined in
Wharton’s Law Lexicon, 15th Edition, means to have the
ownership or use of; keep as one’s own, but in the context of the
present legislation, we would prefer to adopt a broader definition
of the word ‘hold’ in Black’s Law Dictionary, 6th Edition, as
meaning; to keep, to retain, to maintain possession of or authority
over. The words ‘under the control of any public authority’ as per
their natural meaning would mean the right and power of the
public authority to get access to the information. It refers to
dominion over the information or the right to any material,
document etc. The words ‘under the control of any public
Civil Appeal No. 10044 of 2010 & Ors. Page 22 of 108
authority’ would include within their ambit and scope information
relating to a private body which can be accessed by a public
authority under any other law for the time being in force subject to
the pre-imposed conditions and restrictions as applicable to
access the information.
19. 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. In view of the non-obstante clause in
Section 2211 of the RTI Act, any prohibition or condition which
prevents a citizen from having access to information would not
apply. Restriction on the right of citizens is erased. However,
when access to information by a public authority itself is prohibited
or is accessible subject to conditions, then the prohibition is not
obliterated and the pre-conditions are not erased. 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
11 Section 22 of the RTI Act reads:
"22. Act to have overriding effect. -The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any
other law for the time being in force or in any instrument having effect by virtue of any law other
than this Act.”
Civil Appeal No. 10044 of 2010 & Ors. Page 23 of 108
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.
20. Full Bench of the Delhi High Court in its judgment dated 12th
January 2010 in LPA No. 501 of 2009 had rightly on the
interpretation of word ‘held’, referred to Philip Coppel’s work
‘Information Rights’ (2
nd Edition, Thomson, Sweet & Maxwell
Civil Appeal No. 10044 of 2010 & Ors. Page 24 of 108
2007)
12 interpreting the provisions of the Freedom of Information
Act, 2000 (United Kingdom) in which it has been observed:
“When information is “held” by a public authority
For the purposes of the Freedom of Information Act 2000,
information is “held” by a public authority if it is held by the
authority otherwise than on behalf of another person, or if
it is held by another person on behalf of the authority. The
Act has avoided the technicalities associated with the law
of disclosure, which has conventionally drawn a
distinction between a document in the power, custody or
possession of a person. Putting to one side the effects of
s.3(2) (see para.9-009 below), the word “held” suggests a
relationship between a public authority and the
information akin to that of ownership or bailment of goods.
Information:
- that is, without request or arrangement, sent to or
deposited with a public authority which does not hold itself
out as willing to receive it and which does not
subsequently use it;
- that is accidentally left with a public authority;
- that just passes through a public authority; or
- that “belongs” to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authority’s premises,
will, it is suggested, lack the requisite assumption by the
public authority of responsibility for or dominion over the
information that is necessary before it can be said that the
public authority can be said to “hold” the information. …”
Thereafter, the Full Bench had observed:
“59. Therefore, according to Coppel the word “held”
suggests a relationship between a public authority and
12 Also, see Philip Coppel, ‘Information Rights’ (4th Edition, Hart Publishing 2014) P. 361-62
Civil Appeal No. 10044 of 2010 & Ors. Page 25 of 108
the information akin to that of an ownership or bailment
of goods. In the law of bailment, a slight assumption of
control of the chattel so deposited will render the
recipient a depository (see Newman v. Bourne and
Hollingsworth (1915) 31 T.L.R. 209). Where, therefore,
information has been created, sought, used or
consciously retained by a public authority will be
information held within the meaning of the Act.
However, if the information is sent to or deposited with
the public authority which does not hold itself out as
willing to receive it and which does not subsequently
use it or where it is accidentally left with a public
authority or just passes through a public authority or
where it belongs to an employee or officer of a public
authority but which is brought by that employee or
officer unto the public authority’s premises it will not be
information held by the public authority for the lack of
the requisite assumption by the public authority of
responsibility for or dominion over the information that
is necessary before the public authority can be said to
hold the information… .”
Therefore, the word “hold” is not purely a physical concept
but refers to the appropriate connection between the information
and the authority so that it can properly be said that the
information is held by the public authority.13
21. In Khanapuram Gandaiah v. Administrative Officer and
Others14, this Court on examining the definition clause 2(f) of the
RTI Act had held as under:
“10. […] This definition shows that an applicant under
Section 6 of the RTI Act can get any information which
13 New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection,
[2011] UKUT 185 AAC
14 (2010) 2 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 26 of 108
is already in existence and accessible to the public
authority under law. ...
xx xx xx
12. […] the Public Information Officer is not supposed
to have any material which is not before him; or any
information he could (sic not) have obtained under law.
Under Section 6 of the RTI Act, an applicant is entitled
to get only such information which can be accessed by
the “public authority” under any other law for the time
being in force. …”
The aforesaid observation emphasises on the mandatory
requirement of accessibility of information by the public authority
under any other law for the time being in force. This aspect was
again highlighted by another Division Bench in Aditya
Bandopadhyay (supra), wherein information was divided into
three categories in the following words:
“59. The effect of the provisions and scheme of the RTI
Act is to divide “information” into three categories. They
are:
(i) Information which promotes transparency and
accountability in the working of every public authority,
disclosure of which may also help in containing or
discouraging corruption [enumerated in clauses (b) and
(c) of Section 4(1) of the RTI Act].
(ii) Other information held by public authority [that is, all
information other than those falling under clauses (b)
and (c) of Section 4(1) of the RTI Act].
(iii) Information which is not held by or under the
control of any public authority and which cannot be
accessed by a public authority under any law for the
time being in force.
Civil Appeal No. 10044 of 2010 & Ors. Page 27 of 108
Information under the third category does not fall within
the scope of the RTI Act. Section 3 of the RTI Act gives
every citizen, the right to “information” held by or under
the control of a public authority, which falls either under
the first or second category. In regard to the
information falling under the first category, there is also
a special responsibility upon the public authorities to
suo motu publish and disseminate such information so
that they will be easily and readily accessible to the
public without any need to access them by having
recourse to Section 6 of the RTI Act. There is no such
obligation to publish and disseminate the other
information which falls under the second category.”
The first category refers to the information specified in
clause (b) to sub-section (1) to Section 4 which consists of as
many as seventeen sub-clauses on diverse subjects stated
therein. It also refers to clause (c) to sub-section (1) to Section 4
by which public authority is required to publish all relevant facts
while formulating important public policies or pronouncing its
decision which affects the public. The rationale behind these
clauses is to disseminate most of the information which is in the
public interest and promote openness and transparency in
government.
22. The expressions ‘held by or under the control of any public
authority’ and ‘information accessible under this Act’ are
restrictive15 and reflect the limits to the ‘right to information’
15 See ‘Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC 497
Civil Appeal No. 10044 of 2010 & Ors. Page 28 of 108
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.
23. This aspect was again highlighted when the terms ‘information’
and ‘right to information’ were interpreted in Thalappalam
Service Cooperative Bank Limited (supra) with the following
elucidation:
“63. Section 8 begins with a non obstante clause,
which gives that section an overriding effect, in case of
conflict, over the other provisions of the Act. Even if,
there is any indication to the contrary, still there is no
obligation on the public authority to give information to
any citizen of what has been mentioned in clauses (a)
to (j). The public authority, as already indicated, cannot
access all the information from a private individual, but
only those information which he is legally obliged to
pass on to a public authority by law, and also only
those information to which the public authority can
have access in accordance with law. Even those
information, if personal in nature, can be made
available only subject to the limitations provided in
Section 8(j) of the RTI Act. Right to be left alone, as
propounded in Olmstead v. United States is the most
comprehensive of the rights and most valued by
civilised man.
xx xx xx
67. The Registrar of Cooperative Societies functioning
under the Cooperative Societies Act is a “public
authority” within the meaning of Section 2(h) of the Act.
As a public authority, the Registrar of Cooperative
Societies has been conferred with lot of statutory
powers under the respective Act under which he is
Civil Appeal No. 10044 of 2010 & Ors. Page 29 of 108
functioning. He is also duty-bound to comply with the
obligations under the RTI Act and furnish information to
a citizen under the RTI Act. Information which he is
expected to provide is the information enumerated
in Section 2(f) of the RTI Act subject to the limitations
provided under Section 8 of the Act. The Registrar can
also, to the extent law permits, gather information from
a Society, on which he has supervisory or
administrative control under the Cooperative Societies
Act. Consequently, apart from the information as is
available to him, under Section 2(f), he can also gather
those information from the society, to the extent
permitted by law. The Registrar is also not obliged to
disclose those information if those information fall
under Section 8(1)(j) of the Act. No provision has been
brought to our knowledge indicating that, under
the Cooperative Societies Act, a Registrar can call for
the details of the bank accounts maintained by the
citizens or members in a cooperative bank. Only those
information which a Registrar of Cooperative Societies
can have access under the Cooperative Societies
Act from a society could be said to be the information
which is “held” or “under the control of public authority”.
Even those information, the Registrar, as already
indicated, is not legally obliged to provide if those
information falls under the exempted category
mentioned in Section 8(j) of the Act. Apart from the
Registrar of Co-operative Societies, there may be other
public authorities who can access information from a
co-operative bank of a private account maintained by a
member of society under law, in the event of which, in
a given situation, the society will have to part with that
information. But the demand should have statutory
backing.
68. Consequently, if an information which has been
sought for relates to personal information, the
disclosure of which has no relationship to any public
activity or interest or which would cause unwarranted
invasion of the privacy of the individual, the Registrar of
Cooperative Societies, even if he has got that
information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public
Civil Appeal No. 10044 of 2010 & Ors. Page 30 of 108
interest justifies the disclosure of such information, that
too, for reasons to be recorded in writing.”
Thus, the scope of the expressions ‘information’ and ‘right to
information’ which can be accessed by a citizen under the RTI Act
have to be understood in light of the above discussion.
POINT NO. 3: SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT
24. To ensure transparency and accountability and to make Indian
democracy more participatory, the RTI Act sets out a practical and
pragmatic regime to enable citizens to secure greater access to
information available with public authorities by balancing diverse
interests including efficient governance, optimum use of limited
fiscal operations and preservation of confidentiality of sensitive
information. The preamble to the RTI Act appropriately
summarises the object of harmonising various conflicts in the
following words:
“ xx xx xx
AND WHEREAS democracy requires an informed
citizenry and transparency of information which are
vital to its functioning and also to contain corruption
and to hold Governments and their instrumentalities
accountable to the governed;
AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments,
optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
Civil Appeal No. 10044 of 2010 & Ors. Page 31 of 108
AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy
of the democratic ideal;
xx xx xx”
25. An attempt to resolve conflict and disharmony between these
aspects is evident in the exceptions and conditions on access to
information set out in Sections 8 to 11 of the RTI Act. At the
outset, we would reproduce Section 8 of the RTI Act, which reads
as under:
“8. (1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of
the State, relation with foreign State or lead to
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade
secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party,
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of
such information;
Civil Appeal No. 10044 of 2010 & Ors. Page 32 of 108
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would endanger
the life or physical safety of any person or identify the
source of information or assistance given in confidence
for law enforcement or security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete,
or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
(j) information which relates to personal information the
disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the
Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot be denied
to the Parliament or a State Legislature shall not be
denied to any person.
(2) Notwithstanding anything in the Official Secrets Act,
1923 nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may
allow access to information, if public interest in
Civil Appeal No. 10044 of 2010 & Ors. Page 33 of 108
disclosure outweighs the harm to the protected
interests.
(3) Subject to the provisions of clauses (a), (c) and (i)
of sub-section (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section:
Provided that where any question arises as to the date
from which the said period of twenty years has to be
computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for
in this Act.”
Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
amending the term ‘information’, carves out exceptions when
access to ‘information’, as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that is,
when the exceptions listed in Section 8(1) of the RTI Act are not
attracted. In terms of Section 3 of the RTI Act, all citizens have
right to information, subject to the provisions of the RTI Act, that
is, information ‘held by or under the control of any public authority’,
except when such information is exempt or excluded.
Civil Appeal No. 10044 of 2010 & Ors. Page 34 of 108
26. Clauses in sub-section (1) to Section 8 can be divided into two
categories: clauses (a), (b), (c), (f), (g), (h) and (i), and clauses (d),
(e) and (j). The latter clauses state that the prohibition specified
would not apply or operate when the competent authority in
clauses (d) and (e) and the PIO in clause (j) is satisfied that larger
public interest warrants disclosure of such information.16
Therefore, clauses (d), (e) and (j) of Section 8(1) of the RTI Act
incorporate qualified prohibitions and are conditional and not
absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and (i) do
not have any such stipulation. Prohibitory stipulations in these
clauses do not permit disclosure of information on satisfaction of
the larger public interest rule. These clauses, therefore,
incorporate absolute exclusions.
27. Sub-section (2) to Section 8 states that notwithstanding anything
contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
interest in disclosure outweighs the harm to the protected
interests. The disclosure under Section 8(2) by the public authority
16 For the purpose of the present decision, we do not consider it appropriate to decide who would be
the ‘competent authority’ in the case of other public authorities, if sub-clauses (i) to (v) to clause (e)
of Section 2 are inapplicable. This ‘anomaly’ or question is not required to be decided in the present
case as the Chief Justice of India is a competent authority in the case of the Supreme Court of
India.
Civil Appeal No. 10044 of 2010 & Ors. Page 35 of 108
is not a mandate or compulsion but is in the form of discretionary
disclosure. Section 8(2) acknowledges and empowers the public
authority to lawfully disclose information held by them despite the
exemptions under sub-section (1) to Section 8 if the public
authority is of the opinion that the larger public interest warrants
disclosure. Such disclosure can be made notwithstanding the
provisions of the Official Secrets Act. Section 8(2) does not create
a vested or justiciable right that the citizens can enforce by an
application before the PIO seeking information under the RTI Act.
PIO is under no duty to disclose information covered by
exemptions under Section 8(1) of the RTI Act. Once the PIO
comes to the conclusion that any of the exemption clauses is
applicable, the PIO cannot pass an order directing disclosure
under Section 8(2) of the RTI Act as this discretionary power is
exclusively vested with the public authority.
28. Section 9 provides that without prejudice to the provisions of
Section 8, a request for information may be rejected if such a
request for providing access would involve an infringement of
copyright subsisting in a person other than the State.
29. Section 10 deals with severability of exempted information and
sub-section (1) thereof reads as under:
Civil Appeal No. 10044 of 2010 & Ors. Page 36 of 108
“10. Severability.– (1) Where a request for access to
information is rejected on the ground that it is in
relation to information which is exempt from disclosure,
then, notwithstanding anything contained in this Act,
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and which can
reasonably be severed from any part that contains
exempt information.”
30. Section 11, which deals with third party information, and
incorporates conditional exclusion based on breach of
confidentiality by applying public interest test, reads as under:
“11. (1) Where a Central Public Information Officer or a
State Public Information Officer, as the case may be,
intends to disclose any information or record, or part
thereof on a request made under this Act, which relates
to or has been supplied by a third party and has been
treated as confidential by that third party, the Central
Public Information Officer or State Public Information
Officer, as the case may be, shall, within five days from
the receipt of the request, give a written notice to such
third party of the request and of the fact that the
Central Public Information Officer or State Public
Information Officer, as the case may be, intends to
disclose the information or record, or part thereof, and
invite the third party to make a submission in writing or
orally, regarding whether the information should be
disclosed, and such submission of the third party shall
be kept in view while taking a decision about disclosure
of information:
Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if
the public interest in disclosure outweighs in
importance any possible harm or injury to the interests
of such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information Officer,
as the case may be, under sub-section (1) to a third
party in respect of any information or record or part
Civil Appeal No. 10044 of 2010 & Ors. Page 37 of 108
thereof, the third party shall, within ten days from the
date of receipt of such notice, be given the opportunity
to make representation against the proposed
disclosure.
(3) Notwithstanding anything contained in section 7,
the Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within
forty days after receipt of the request under section 6, if
the third party has been given an opportunity to make
representation under sub-section (2), make a decision
as to whether or not to disclose the information or
record or part thereof and give in writing the notice of
his decision to the third party.
(4) A notice given under sub-section (3) shall include a
statement that the third party to whom the notice is
given is entitled to prefer an appeal under section 19
against the decision.”
We shall subsequently interpret and expound on Section 11
of the RTI Act.
31. At the present stage, we would like to quote from Aditya
Bandopadhyay (supra) wherein this Court, on the aspect of
general principles of interpretation while deciding the conflict
between the right to information and exclusions under Section 8 to
11 of the RTI Act, had observed:
“61. Some High Courts have held that Section 8 of the
RTI Act is in the nature of an exception to Section 3
which empowers the citizens with the right to
information, which is a derivative from the freedom of
speech; and that, therefore, Section 8 should be
construed strictly, literally and narrowly. This may not
be the correct approach. The Act seeks to bring about
a balance between two conflicting interests, as
harmony between them is essential for preserving
democracy. One is to bring about transparency and
Civil Appeal No. 10044 of 2010 & Ors. Page 38 of 108
accountability by providing access to information under
the control of public authorities. The other is to ensure
that the revelation of information, in actual practice,
does not conflict with other public interests which
include efficient operation of the governments,
optimum use of limited fiscal resources and
preservation of confidentiality of sensitive information.
The Preamble to the Act specifically states that the
object of the Act is to harmonise these two conflicting
interests. While Sections 3 and 4 seek to achieve the
first objective, Sections 8, 9, 10 and 11 seek to achieve
the second objective. Therefore, when Section 8
exempts certain information from being disclosed, it
should not be considered to be a fetter on the right to
information, but as an equally important provision
protecting other public interests essential for the
fulfilment and preservation of democratic ideals.
62. When trying to ensure that the right to information
does not conflict with several other public interests
(which includes efficient operations of the
Governments, preservation of confidentiality of
sensitive information, optimum use of limited fiscal
resources, etc.), it is difficult to visualise and
enumerate all types of information which require to be
exempted from disclosure in public interest. The
legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than
the enumeration of exemptions attempted in the earlier
Act, that is, Section 8 of the Freedom to Information
Act, 2002. The courts and Information Commissions
enforcing the provisions of the RTI Act have to adopt a
purposive construction, involving a reasonable and
balanced approach which harmonises the two objects
of the Act, while interpreting Section 8 and the other
provisions of the Act.
63. At this juncture, it is necessary to clear some
misconceptions about the RTI Act. The RTI Act
provides access to all information that is available and
existing. This is clear from a combined reading of
Section 3 and the definitions of “information” and “right
to information” under clauses (f) and (j) of Section 2 of
the Act. If a public authority has any information in the
Civil Appeal No. 10044 of 2010 & Ors. Page 39 of 108
form of data or analysed data, or abstracts, or
statistics, an applicant may access such information,
subject to the exemptions in Section 8 of the Act. But
where the information sought is not a part of the record
of a public authority, and where such information is not
required to be maintained under any law or the rules or
regulations of the public authority, the Act does not
cast an obligation upon the public authority, to collect
or collate such non-available information and then
furnish it to an applicant. A public authority is also not
required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not
required to provide “advice” or “opinion” to an
applicant, nor required to obtain and furnish any
“opinion” or “advice” to an applicant. The reference to
“opinion” or “advice” in the definition of “information” in
Section 2(f) of the Act, only refers to such material
available in the records of the public authority. Many
public authorities have, as a public relation exercise,
provide advice, guidance and opinion to the citizens.
But that is purely voluntary and should not be confused
with any obligation under the RTI Act.”
Paragraph 63 quoted above has to be read with our
observations on the last portion of clause (f) to Section 2 defining
the word ‘information’, albeit, on the observations and findings
recorded, we respectfully concur. For the present decision, we are
required to primarily examine clauses (e) and (j) of sub-section (1)
to Section 8 and Section 11 of the RTI Act.
Point No. 3 (A): Fiduciary Relationship under Section 8(1)(e) of the
RTI Act
32. 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 the
Civil Appeal No. 10044 of 2010 & Ors. Page 40 of 108
larger public interest warrants the disclosure of such information.
The expression ‘fiduciary relationship’ was examined and
explained in Aditya Bandopadhyay (supra), in the following
words:
“39. The term “fiduciary” refers to a person having a
duty to act for the benefit of another, showing good
faith and candour, where such other person reposes
trust and special confidence in the person owing or
discharging the duty. The term “fiduciary relationship”
is used to describe a situation or transaction where one
person (beneficiary) places complete confidence in
another person (fiduciary) in regard to his affairs,
business or transaction(s). The term also refers to a
person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the
beneficiary, and use good faith and fairness in dealing
with the beneficiary or the things belonging to the
beneficiary. If the beneficiary has entrusted anything to
the fiduciary, to hold the thing in trust or to execute
certain acts in regard to or with reference to the
entrusted thing, the fiduciary has to act in confidence
and is expected not to disclose the thing or information
to any third party.
40. There are also certain relationships where both the
parties have to act in a fiduciary capacity treating the
other as the beneficiary. Examples of these are: a
partner vis-à-vis another partner and an employer visà-vis employee. An employee who comes into
possession of business or trade secrets or confidential
information relating to the employer in the course of his
employment, is expected to act as a fiduciary and
cannot disclose it to others. Similarly, if on the request
of the employer or official superior or the head of a
department, an employee furnishes his personal details
and information, to be retained in confidence, the
employer, the official superior or departmental head is
expected to hold such personal information in
confidence as a fiduciary, to be made use of or
Civil Appeal No. 10044 of 2010 & Ors. Page 41 of 108
disclosed only if the employee’s conduct or acts are
found to be prejudicial to the employer.
41. In a philosophical and very wide sense, examining
bodies can be said to act in a fiduciary capacity, with
reference to the students who participate in an
examination, as a Government does while governing
its citizens or as the present generation does with
reference to the future generation while preserving the
environment. But the words “information available to a
person in his fiduciary relationship” are used in Section
8(1)(e) of the RTI Act in its normal and well-recognised
sense, that is, to refer to persons who act in a fiduciary
capacity, with reference to a specific beneficiary or
beneficiaries who are to be expected to be protected or
benefited by the actions of the fiduciary—a trustee with
reference to the beneficiary of the trust, a guardian with
reference to a minor/physically infirm/mentally
challenged, a parent with reference to a child, a lawyer
or a chartered accountant with reference to a client, a
doctor or nurse with reference to a patient, an agent
with reference to a principal, a partner with reference to
another partner, a director of a company with reference
to a shareholder, an executor with reference to a
legatee, a receiver with reference to the parties to a lis,
an employer with reference to the confidential
information relating to the employee, and an employee
with reference to business dealings/transaction of the
employer. We do not find that kind of fiduciary
relationship between the examining body and the
examinee, with reference to the evaluated answer
books, that come into the custody of the examining
body.”
This 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. A
Civil Appeal No. 10044 of 2010 & Ors. Page 42 of 108
fiduciary would, ergo, be duty-bound to make thorough disclosure
of all relevant facts of all transactions between them in a fiduciary
relationship to the beneficiary. In the facts of the said case, this
Court had to consider whether an examining body, the Central
Board of Secondary Education, held information in the form of
evaluated answer-books of the examinees in fiduciary capacity.
Answering in the negative, it was nevertheless observed that even
if the examining body is in a fiduciary relationship with an
examinee, it will be duty-bound to disclose the evaluated answerbooks to the examinee and at the same time, they owe a duty to
the examinee not to disclose the answer-books to anyone else,
that is, any third party. This observation is of significant
importance as it recognises that Section 8(1)(j), and as noticed
below - Section 11, encapsulates another right, that is the right to
protect privacy and confidentiality by barring the furnishing of
information to third parties except when the public interest as
prescribed so requires. In this way, the RTI Act complements both
the right to information and the right to privacy and confidentiality.
Further, it moderates and regulates the conflict between the two
rights by applying the test of larger public interest or comparative
examination of public interest in disclosure of information with
possible harm and injury to the protected interests.
Civil Appeal No. 10044 of 2010 & Ors. Page 43 of 108
33. In Reserve Bank of India (supra) this Court had expounded upon
the expression ‘fiduciary relationship’ used in clause (e) to subsection (1) of Section 8 of the RTI Act by referring to the definition
of ‘fiduciary relationship’ in the Advanced Law Lexicon, 3rd Edition,
2005, which reads as under:
“57. [...] Fiduciary relationship. — A relationship in
which one person is under a duty to act for the benefit
of the other on matters within the scope of the fiduciary
relationship. Fiduciary relationship usually arises in one
of the four situations: (1) when one person places trust
in the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one
person assumes control and responsibility over
another, (3) when one person has a duty to act for or
give advice to another on matters falling within the
scope of the relationship, or (4) when there is a specific
relationship that has traditionally been recognised as
involving fiduciary duties, as with a lawyer and a client,
or a stockbroker and a customer.”
Thereafter, the Court had outlined the contours of the
fiduciary relationship by listing out the governing principles which
read:
“58. [...] (i) No conflict rule — A fiduciary must not place
himself in a position where his own interest conflicts
with that of his customer or the beneficiary. There must
be ‘real sensible possibility of conflict’.
(ii) No profit rule — A fiduciary must not profit from his
position at the expense of his customer, the
beneficiary.
(iii) Undivided loyalty rule — A fiduciary owes undivided
loyalty to the beneficiary, not to place himself in a
position where his duty towards one person conflicts
Civil Appeal No. 10044 of 2010 & Ors. Page 44 of 108
with a duty that he owes to another customer. A
consequence of this duty is that a fiduciary must make
available to a customer all the information that is
relevant to the customer’s affairs.
(iv) Duty of confidentiality — A fiduciary must only use
information obtained in confidence and must not use it
for his own advantage, or for the benefit of another
person.”
34. 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.
Contractual or non-fiduciary relationships could require that the
party should protect and promote the interest of the other and not
cause harm or damage, but the fiduciary relationship casts a
positive obligation and demands that the fiduciary should protect
the beneficiary and not promote personal self-interest. A
Civil Appeal No. 10044 of 2010 & Ors. Page 45 of 108
fiduciary’s loyalty, duties and obligations are stricter than the
morals of the market place and it is not honesty alone, but the
punctilio of an honour which is the most sensitive standard of
behaviour which is applied {See – Opinion of Cardozo, J. in
Meinhard v. Salmon17}. Thus, the level of judicial scrutiny in cases
of fiduciary relationship is intense as the level of commitment and
loyalty expected is higher than non-fiduciary relationships.
Fiduciary relationship may arise because of the statute which
requires a fiduciary to act selflessly with integrity and fidelity and
the other party, that is the beneficiary, depends upon the wisdom
and confidence reposed in the fiduciary. A contractual, statutory
and possibly all relationships cover a broad field, but a fiduciary
relationship could exist, confined to a limited area or an act, as
relationships can have several facets. 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,
17 (1928) 164 N.E. 545, 546
Civil Appeal No. 10044 of 2010 & Ors. Page 46 of 108
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.
35. 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. Whether or not such a
relationship arises in a particular situation would have to be dealt
with on the tests and parameters enunciated above.
Point No. 3 (B): Right to Privacy under Section 8(1)(j) and
Confidentiality under Section 11 of the RTI Act
36. If one’s right to know is absolute, then the same may invade
another’s right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need for
personal privacy, confidentiality of information and effective
governance. 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 privacy
Civil Appeal No. 10044 of 2010 & Ors. Page 47 of 108
of 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’. By differently
wording and inditing the challenge that privacy and confidentiality
throw to information rights, the RTI Act also recognises the
interconnectedness, yet distinctiveness between the breach of
confidentiality and invasion of privacy, as the former is broader
than the latter, as will be noticed below.
37. Breach of confidentiality has an older conception and was
primarily an equitable remedy based on the principle that one
party is entitled to enforce equitable duty on the persons bound by
an obligation of confidentiality on account of the relationship they
share, with actual or constructive knowledge of the confidential
relationship. Conventionally a conception of equity, confidentiality
also arises in a contract, or by a statute.18 Contractually, an
obligation to keep certain information confidential can be
effectuated expressly or implicitly by an oral or written agreement,
whereas in statutes certain extant and defined relationships are
imposed with the duty to maintain details, communication
18 See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton, Spycatcher:
Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip
Coppel, Information Rights, Law and Practice (4
th Edition Hart Publishing 2014)].
Civil Appeal No. 10044 of 2010 & Ors. Page 48 of 108
exchanged and records confidential. Confidentiality referred to in
the phrase 'breach of confidentiality' was initially popularly
perceived and interpreted as confidentiality arising out of a preexisting confidential relationship, as the obligation to keep certain
information confidential was on account of the nature of the
relationship. The insistence of a pre-existing confidential
relationship did not conceive a possibility that a duty to keep
information confidential could arise even if a relationship, in which
such information is exchanged and held, is not pre-existing. This
created a distinction between confidential information obtained
through the violation of a confidential relationship and similar
confidential information obtained in some other way. With time,
courts and jurists, who recognised this anomaly, have diluted the
requirement of the existence of a confidential relationship and held
that three elements were essential for a case of breach of
confidentiality to succeed, namely – (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 (See Coco v.
AN Clark (Engineers) Ltd.19). The “artificial”20 distinction was
emphatically abrogated by the test adopted by Lord Goff of
19 [1969] RPC 41
20 Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 49 of 108
Chieveley in Attorney-General v. Guardian Newspaper Limited
(No. 2)21, who had observed:
“a duty of confidence arises when confidential
information comes to the knowledge of a person... in
circumstances where he has notice, or is held to have
agreed, that the information is confidential, with the
effect that it would be just in all the circumstances that
he should be precluded from disclosing the information
to others.”
Lord Goff, thus, lifted the limiting constraint of a need for
initial confidential relationship stating that a 'duty of confidence'
would apply whenever a person receives information he knows or
ought to know is fairly and reasonably to be regarded as
confidential. Therefore, confidential information must not be
something which is a public property and in public knowledge/
public domain as confidentiality necessarily attributes
inaccessibility, that is, the information must not be generally
accessible, otherwise it cannot be regarded as confidential.
However, self-clarification or certification will not be relevant
because whether or not the information is confidential has to be
determined as a matter of fact. The test to be applied is that of a
reasonable person, that is, information must be such that a
reasonable person would regard it as confidential. Confidentiality
of information also has reference to the quality of information
21 (1990) 1 AC 109
Civil Appeal No. 10044 of 2010 & Ors. Page 50 of 108
though it may apply even if the information is false or partly
incorrect. However, the information must not be trivial or useless.
38. While previously information that could be considered personal
would have been protected only if it were exchanged in a
confidential relationship or considered confidential by nature,
significant developments in jurisprudence since the 1990’s have
posited the acceptance of privacy as a separate right and
something worthy of protection on its own as opposed to being
protected under an actionable claim for breach of confidentiality. A
claim to protect privacy is, in a sense, a claim for the preservation
of confidentiality of personal information. With progression of the
right to privacy, the underlying values of the law that protects
personal information came to be seen differently as the courts
recognised that unlike law of confidentiality that is based upon
duty of good faith, right to privacy focuses on the protection of
human autonomy and dignity by granting the right to control the
dissemination of information about one’s private life and the right
to the esteem and respect of other people (See - Sedley LJ
in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers
Ltd.23, the Supreme Court of the United Kingdom had drawn a
22 (2001) QB 967
23 (2016) UKSC 26
Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108
distinction between the right to respect private and family life or
privacy and claims based upon confidentiality by observing that
the law extends greater protection to privacy rights than rights in
relation to confidential matters. In the former case, the claim for
misuse of private information can survive even when information
is in the public domain as its repetitive use itself leads to violation
of the said right. The right to privacy gets the benefit of both the
quantitative and the qualitative protection. The former refers to the
disclosure already made and what is yet undisclosed, whereas the
latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
would generally fail when the information is in public domain. The
law of privacy is, therefore, not solely concerned with the
information, but more concerned with the intrusion and violation of
private rights. Citing an instance of how publishing of defamatory
material can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the Court had highlighted the
reason why truth or falsity of an allegation or information may be
irrelevant when it comes to invasion of privacy. Therefore, claims
for protection against invasion of private and family life do not
depend upon confidentiality alone. This distinction is important to
Civil Appeal No. 10044 of 2010 & Ors. Page 52 of 108
understand the protection given to two different rights vide Section
8(1)(j) and 11 of the RTI Act.
39. In District Registrar and Collector v. Canara Bank24 this Court
had referred to the judgment of the U.S. Supreme Court in United
States v. Miller25 on the question of “voluntary” parting with
information and under the heading ‘Criticism of Miller’ had
observed:
“48. ...(A) Criticism of Miller
(i) The majority in Miller laid down that a customer
who has conveyed his affairs to another had thereby
lost his privacy rights. Prof. Tribe states in his treatise
(see p. 1391) that this theory reveals “alarming
tendencies” because the Court has gone back to the
old theory that privacy is in relation to property while it
has laid down that the right is one attached to the
person rather than to property. If the right is to be held
to be not attached to the person, then “we would not
shield our account balances, income figures and
personal telephone and address books from the public
eye, but might instead go about with the information
written on our ‘foreheads or our bumper stickers’.” He
observes that the majority in Miller confused “privacy”
with “secrecy” and that “even their notion of secrecy is
a strange one, for a secret remains a secret even when
shared with those whom one selects for one's
confidence”. Our cheques are not merely negotiable
instruments but yet the world can learn a vast amount
about us by knowing how and with whom we have
spent our money. Same is the position when we use
the telephone or post a letter. To say that one assumes
great risks by opening a bank account appeared to be
a wrong conclusion. Prof. Tribe asks a very pertinent
question (p. 1392):
24 (2005) 1 SCC 496
25 425 US 435 (1976)
Civil Appeal No. 10044 of 2010 & Ors. Page 53 of 108
‘Yet one can hardly be said to have assumed a risk
of surveillance in a context where, as a practical
matter, one had no choice. Only the most committed —
and perhaps civilly committable — hermit can live
without a telephone, without a bank account, without
mail. To say that one must take a bitter pill with the
sweet when one licks a stamp is to exact a high
constitutional price indeed for living in contemporary
society.’
He concludes (p. 1400):
‘In our information-dense technological era, when
living inevitably entails leaving not just informational
footprints but parts of one's self in myriad directories,
files, records and computers, to hold that the
Fourteenth Amendment did not reserve to individuals
some power to say when and how and by whom that
information and those confidences were to be used,
would be to denigrate the central role that informational
autonomy must play in any developed concept of the
self.’
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.
1392) says:
‘It is beginning to look as if the only way someone
living in our society can avoid ‘assuming the risk’ that
various intermediate institutions will reveal information
to the police is by engaging in drastic discipline, the
kind of discipline of life under totalitarian regimes.’… ”
Thereafter, it was noticed that with the enactment of the
Right to Financial Privacy Act, 1978 the legal effect of ‘Miller’ was
statutorily done away.
40. The right to privacy though not expressly guaranteed in the
Constitution of India is now recognized as a basic fundamental
Civil Appeal No. 10044 of 2010 & Ors. Page 54 of 108
right vide decision of the Constitutional Bench in K.S.
Puttaswamy and Another v. Union of India and Others26
holding that it is an intrinsic part of the right to life and liberty
guaranteed under Article 21 of the Constitution and recognised
under several international treaties, chief among them being
Article 12 of the Universal Declaration of Human Rights, 1948
which states that no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. The judgment
recognises that everyone has a right to the protection of laws
against such interference or attack.
41. In K.S. Puttaswamy (supra) the main judgment (authored by D.Y.
Chandrachud, J.) has referred to provisions of Section 8(1)(j) of
the RTI Act to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus providing a
touchstone on which validity of executive decisions can be
assessed and validity of laws can be determined vide judicial
review exercised by the courts. This observation highlights the
status and importance of the right to privacy as a constitutional
right. The ratio as recorded in the two concurring judgments of
26 (2017) 10 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 55 of 108
the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.)
are similar. It is observed that privacy involves a person’s right to
his physical body; right to informational privacy which deals with a
person’s mind; and the right to privacy of choice which protects an
individual’s autonomy over personal choices. While physical
privacy enjoys constitutional recognition in Article 19(1)(d) and (e)
read with Article 21, personal informational privacy is relatable to
Article 21 and right to privacy of choice is enshrined in Articles
19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the
concurring opinion, there is a reference to ‘The Right to Privacy’
by Samuel Warren and Louis D. Brandeis on an individual’s right
to control the dissemination of personal information and that an
individual has a right to limit access to such information/shield
such information from unwarranted access. Knowledge about a
person gives another power over that person, as personal data
collected is capable of effecting representations in his decision
making process and shaping behaviour which can have a
stultifying effect on the expression of dissent which is the
cornerstone of democracy. In the said concurring judgment, it has
been further held that the right to protection of reputation from
being unfairly harmed needs to be zealously guarded not only
against falsehood but also against certain truths by observing:
Civil Appeal No. 10044 of 2010 & Ors. Page 56 of 108
“623. An individual has a right to protect his reputation
from being unfairly harmed and such protection of
reputation needs to exist not only against falsehood but
also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by
knowing private details about their lives – people judge
us badly, they judge us in haste, they judge out of
context, they judge without hearing the whole story and
they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments.”27
42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is
essential for liberty and dignity. Therefore, individuals have the
need to preserve an intrusion-free zone for their personality and
family. This facilitates individual freedom. On the question of
invasion of personal liberty, the main judgment has referred to a
three-fold requirement in the form of – (i) legality, which postulates
the existence of law (RTI Act in the present case); (ii) need,
defined in terms of a legitimate State aim; and (iii) proportionality,
which ensures a rational nexus between the objects and the
means to be adopted to achieve them. The third requirement, we
would observe, is achieved in the present case by Sections 8(1)(j)
and 11 of the RTI Act and the RTI Act cannot be faulted on this
ground. The RTI Act also defines the legitimate aim, that is a
public interest in the dissemination of information which can be
confidential or private (or held in a fiduciary relationship) when
27 Daniel Solove: “10 Reasons Why Privacy Matters” published on 20th January 2014 and available at
https://www.teachprivacy.com/10-reasons-privacy-matters/
Civil Appeal No. 10044 of 2010 & Ors. Page 57 of 108
larger public interest or public interest in disclosure outweighs the
protection or any possible harm or injury to the interest of the third
party.
43. Privacy and confidentiality encompass a bundle of rights including
the right to protect identity and anonymity. Anonymity is where an
individual seeks freedom from identification, even when and
despite being in a public space. In K.S. Puttaswamy (supra)
reference is made to Spencer v. R.28 which had set out three key
elements of informational privacy: privacy as secrecy, privacy as
control, and privacy as anonymity, to observe:
“214. […] anonymity may, depending on the totality of
the circumstances, be the foundation of a privacy
interest that engages constitutional protection against
unreasonable search and seizure.
xx xx xx
[…] The disclosure of this information will often amount
to the identification of a user with intimate or sensitive
activities being carried out online, usually on the
understanding that these activities would be
anonymous. A request by a police officer that an ISP
voluntarily disclose such information amounts to a
search.”
Privacy and confidentiality, therefore, include information about
one’s identity.
28 2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43
Civil Appeal No. 10044 of 2010 & Ors. Page 58 of 108
44. In K.S. Puttaswamy (supra), it is observed that the Canadian
Supreme Court in Spencer (supra) had stopped short of
recognising an absolute right of anonymity, but had used the
provisions of Canadian Charter of Rights and Freedoms of 1982
to expand the scope of the right to privacy, used traditionally to
protect individuals from an invasion of their property rights, to an
individual’s “reasonable expectation of privacy”. Yet the Court has
observed that there has to be a careful balancing of the
requirements of privacy with legitimate concerns of the State after
referring to an article29 wherein it was observed that:
“Privacy is the terrorist’s best friend, and the terrorist’s
privacy has been enhanced by the same technological
developments that have both made data mining
feasible and elicited vast quantities of personal
information from innocents …”
45. Referring to an article titled ‘Reasonable Expectations of
Anonymity’
30 authored by Jeffrey M. Skopek, it is observed that
distinction has been drawn between anonymity on one hand and
privacy on the other as privacy involves hiding information
whereas anonymity involves hiding what makes it personal by
giving an example that furnishing of medical records of a patient
would amount to an invasion of privacy, whereas a State may
29 Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago Law Review
(2008), Vol. 75, 251.
30 Virginia Law Review (2015), Vol. 101, at pp. 691-762.
Civil Appeal No. 10044 of 2010 & Ors. Page 59 of 108
have legitimate interest in analysing data borne from hospital
records to understand and deal with a public health epidemic and
to obviate serious impact on the population. If the anonymity of the
individual/patient is preserved, it would legitimately assert a valid
State interest in the preservation of public health.
46. For the purpose of the present case, we are not concerned with
the specific connotations of the right to anonymity and the
restrictions/limitations appended to it. In the context of the RTI Act,
suffice would be to say that the right to protect identity and
anonymity would be identically subjected to the public interest
test.
47. 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
Civil Appeal No. 10044 of 2010 & Ors. Page 60 of 108
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.
48. As per Black’s Law Dictionary, 8th Edition, the word ‘personal’
means ‘of or affecting a person or of or constituting personal
property’. In Collins Dictionary of the English Language, the word
‘personal’ has been defined as under:
“1. Of or relating to the private aspects of a person’s
life.
2. Of or relating to a person’s body, its care or its
appearance.
3. Belonging to or intended for a particular person and
no one else.
4. Undertaken by an individual himself.
5. Referring to, concerning, or involving a person’s
individual personality, intimate affairs, etc., esp. in an
offensive way.
6. Having the attributes of an individual conscious
being.
7. Of or arising from the personality.
8. Of or relating to, or denoting grammatical person.
9. Of or relating to movable property (Law).
10. An item of movable property (Law).”
Civil Appeal No. 10044 of 2010 & Ors. Page 61 of 108
49. In Peck v. United Kingdom31, the European Court of Human
Rights had held that private life is a broad term not susceptible to
exhaustive definition but includes the right to establish and
develop relationships with other human beings such that there is a
zone of interaction of a person with others, even in a public
context, which may fall within the scope of private life.
Recognised facets of an individual’s private life include a person’s
health, ethnicity, personal relationships, sexual conduct; religious
or philosophical convictions and personal image. These facets
resemble what has been categorised as sensitive personal data
within the meaning of the Data Protection Act, 2018 as applicable
in the United Kingdom.
50. Gleeson CJ in Australian Broadcasting Corporation v. Lenah
Game Meats Pty Ltd32
had distinguished between what is public
and private information in the following manner:
“An activity is not private simply because it is not done
in public. It does not suffice to make an act private
that, because it occurs on private proper property, it
has such measure of protection from the public gaze
as the characteristics of the property, the property
owner combine to afford. Certain kinds of information
about a person, such as information relating to health,
personal relationships, or finances, may be easy to
identify as private, as may certain kinds of activity
which a reasonable person, applying contemporary
31 (2003) EMLR 15
32 (2001) 185 ALR 1
Civil Appeal No. 10044 of 2010 & Ors. Page 62 of 108
standards of morals and behaviour, would understand
to be meant to be unobserved. The requirement that
disclosure or observation of information or conduct
would be highly offensive to a reasonable person of
ordinary sensibilities is in many circumstances a useful
practical test of what is private.”
51. This test had been adopted in several English decisions including
decision of the House of Lords in Campbell v. Mirror Group
Newspapers Limited33 wherein Lord Hope of Craighead had
further elucidated that the definition is taken from the definition of
‘privacy’ in the United States, where the right to privacy is invaded
if the matter which is publicised is of a kind that – (a) would be
highly offensive to a reasonable person and (b) not of legitimate
concern to the public. Law of privacy in Campbell (supra), it was
observed, was not intended for the protection of the unduly
sensitive and would cover matters which are offensive and
objectionable to a reasonable man of ordinary sensibilities who
must expect some reporting of his daily activities. The mind that
has to be examined is not that of a reader in general, but that of
the person who is affected by the publicising/dissemination of his
information. The question is what a reasonable person of ordinary
sensibilities would feel if he/she is subjected to such publicity.
Only when publicity is such that a reasonable person would feel
33 (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 63 of 108
justified in feeling seriously aggrieved that there would be an
invasion in the right to privacy which gives rise to a cause of
action.
52. In Douglas (supra), it was also held that there are different
degrees of privacy which would be equally true for information
given in confidentiality, and the potential for disclosure of the
information to cause harm is an important factor to be taken into
account in the assessment of the extent of the restriction to
protect the right to privacy.
53. While clause (j) exempts disclosure of two kinds of information, as
noted in paragraph 47 above, that is “personal information” with
no relation to public activity or interest and “information” that is
exempt from disclosure to prevent unwarranted invasion of
privacy, this Court has not underscored, as will be seen below,
such distinctiveness and treated personal information to be
exempt from disclosure if such disclosure invades on balance the
privacy rights, thereby linking the former kind of information with
the latter kind. This means that information, which if disclosed
could lead to an unwarranted invasion of privacy rights, would
mean personal information, that is, which is not having co-relation
with public information.
Civil Appeal No. 10044 of 2010 & Ors. Page 64 of 108
54. In Girish Ramchandra Deshpande v. Central Information
Commissioner and Others34
, the applicant had sought copies of
all memos, show-cause notices and censure/punishment awarded
to a Government employee from his employer and also details of
his movable/immovable properties, details of investment, loan and
borrowings from financial institutions, details of gifts accepted by
the employee from his family members and relatives at the time of
the marriage of his son. In this context, it was observed:
“12. We are in agreement with the CIC and the courts
below that the details called for by the petitioner i.e.
copies of all memos issued to the third respondent,
show-cause notices and orders of censure/punishment,
etc. are qualified to be personal information as defined
in clause (j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an organisation
is primarily a matter between the employee and the
employer and normally those aspects are governed by
the service rules which fall under the expression
“personal information”, the disclosure of which has no
relationship to any public activity or public interest. On
the other hand, the disclosure of which would cause
unwarranted invasion of privacy of that individual. Of
course, in a given case, if the Central Public
Information Officer or the State Public Information
Officer or the appellate authority is satisfied that the
larger public interest justifies the disclosure of such
information, appropriate orders could be passed but
the petitioner cannot claim those details as a matter of
right.
13. The details disclosed by a person in his income tax
returns are “personal information” which stand
34 (2013) 1 SCC 212
Civil Appeal No. 10044 of 2010 & Ors. Page 65 of 108
exempted from disclosure under clause (j) of Section
8(1) of the RTI Act, unless involves a larger public
interest and the Central Public Information Officer or
the State Public Information Officer or the appellate
authority is satisfied that the larger public interest
justifies the disclosure of such information.”
(emphasis supplied)
55. In Canara Bank v. C.S. Shyam and Another35
, the applicant had
sought information on parameters with regard to transfer of
clerical staff with details of individual employees, such as date of
their joining, promotion earned, date of their joining the branch,
the authorities who had posted the transfer letters, etc. The
information sought was declared to be personal in nature, which
was conditionally exempted from disclosure under Section 8(1)(j)
of the RTI Act.
56. In Subhash Chandra Agarwal v. Registrar, Supreme Court of
India and Others36, the applicant (who is also the respondent in
the present appeals) had sought information relating to details of
medical facilities availed by individual judges of the Supreme
Court and their family members, including information relating to
private treatment in India and abroad in last three years. This
Court had held that the information sought by the applicant was
35 (2018) 11 SCC 426
36 (2018) 11 SCC 634
Civil Appeal No. 10044 of 2010 & Ors. Page 66 of 108
‘personal’ information and was protected under Section 8(1)(j) of
the RTI Act, for disclosure would cause unwarranted invasion of
privacy which prohibition would not apply where larger public
interest justifies disclosure of such information.
57. In R.K. Jain v. Union of India and Another37, the applicant had
sought inspection of documents relating to Annual Confidential
Reports (ACRs) of a Member of Customs Excise and Service Tax
Appellate Tribunal (CESTAT) and follow up action taken by the
authorities based on the ACRs. The information sought was
treated as personal information, which, except in cases involving
overriding public interest, could not be disclosed. It was observed
that the procedure under Section 11 of the RTI Act in such cases
has to be followed. The matter was remitted to examine the
aspect of larger public interest and to follow the procedure
prescribed under Section 11 of the RTI Act which, it was held, was
mandatory.
58. Reference can also be made to Aditya Bandopadhyay (supra),
as discussed earlier in paragraph 32, where this Court has held
that while a fiduciary could not withhold information from the
beneficiary in whose benefit he holds such information, he/she
37 (2013) 14 SCC 794
Civil Appeal No. 10044 of 2010 & Ors. Page 67 of 108
owed a duty to the beneficiary to not disclose the same to anyone
else. This exposition of the Court equally reconciles the right to
know with the rights to privacy under clause (j) to Section 8(1) of
the RTI Act.
59. Reading of the aforesaid judicial precedents, in our opinion, would
indicate that personal records, including name, address, physical,
mental and psychological status, marks obtained, grades and
answer sheets, are all treated as personal information. Similarly,
professional records, including qualification, performance,
evaluation reports, ACRs, disciplinary proceedings, etc. are all
personal information. Medical records, treatment, choice of
medicine, list of hospitals and doctors visited, findings recorded,
including that of the family members, information relating to
assets, liabilities, income tax returns, details of investments,
lending and borrowing, etc. are personal information. Such
personal information is entitled to protection from unwarranted
invasion of privacy and conditional access is available when
stipulation of larger public interest is satisfied. This list is indicative
and not exhaustive.
Civil Appeal No. 10044 of 2010 & Ors. Page 68 of 108
60. In Arvind Kejriwal v. Central Public Information Officer and
Another38
, the Delhi High Court had examined and interpreted
Section 11 of the RTI Act in the following manner:
“12. Section 11(1), (2), (3) and (4) are the procedural
provisions which have to be complied with by the
PIO/appellant authority, when they are required to
apply the said test and give a finding whether
information should be disclosed or not disclosed. If the
said aspect is kept in mind, we feel there would be no
difficulty in interpreting Section 11(1) and the so called
difficulties or impartibility as pointed out by the
appellant will evaporate and lose significance. This will
be also in consonance with the primary rule of
interpretation that the legislative intent is to be
gathered from language employed in a statute which is
normally the determining factor. The presumption is
that the legislature has stated what it intended to state
and has made no mistake. (See Prakash Nath Khanna
vs. CIT, (2004) 9 SCC 686; and several judgments of
Supreme Court cited in B. Premanand and Ors. vs.
Mohan Koikal and Ors..
13. Read in this manner, what is stipulated by Section
11(1) is that when an information seeker files an
application which relates to or has been supplied by
third party, the PIO has to examine whether the said
information is treated as confidential or can be treated
as confidential by the third party. If the answer is in the
possible sphere of affirmative or "maybe yes", then the
procedure prescribed in Section 11 has to be followed
for determining whether the larger public interest
requires such disclosure. When information per se or
ex facie cannot be regarded as confidential, then the
procedure under section 11 is not to be followed. All
information relating to or furnished by a third party
need not be confidential for various reasons including
the factum that it is already in public domain or in
circulation, right of third party is not affected or by law
38 AIR 2012 Delhi 29
Civil Appeal No. 10044 of 2010 & Ors. Page 69 of 108
is required to be disclosed etc. The aforesaid
interpretation takes care of the difficulties visualised by
the appellant like marks obtained in an examination, list
of BPL families, etc. In such cases, normally plea of
privacy or confidentiality does not arise as the said list
has either been made public, available in the public
domain or has been already circulated to various third
parties. On the other hand, in case the word “or” is
read as “and”, it may lead to difficulties and problems,
including invasion of right of privacy/confidentiality of a
third party. For example, a public authority may have in
its records, medical reports or prescriptions relating to
third person but which have not been supplied by the
third person. If the interpretation given by the appellant
is accepted then such information can be disclosed to
the information seeker without following the procedure
prescribed in Section 11(1) as the information was not
furnished or supplied by the third person. Such
examples can be multiplied. Furthermore, the
difficulties and anomalies pointed out can even arise
when the word “or” is read as “and” in cases where the
information is furnished by the third party. For example,
for being enrolled as a BPL family, information may
have been furnished by the third party who is in the list
of BPL families. Therefore, the reasonable and proper
manner of interpreting Section 11(1) is to keep in mind
the test stipulated by the proviso. It has to be examined
whether information can be treated and regarded as
being of confidential nature, if it relates to a third party
or has been furnished by a third party. Read in this
manner, when information relates to a third party and
can be prima facie regarded and treated as
confidential, the procedure under Section 11(1) must
be followed. Similarly, in case information has been
provided by the third party and has been prima facie
treated by the said third party as confidential, again the
procedure prescribed under Section 11(1) has to be
followed.
xx xx xx
16. Thus, Section 11(1) postulates two circumstances
when the procedure has to be followed. Firstly when
the information relates to a third party and can be
Civil Appeal No. 10044 of 2010 & Ors. Page 70 of 108
prima facie regarded as confidential as it affects the
right of privacy of the third party. The second situation
is when information is provided and given by a third
party to a public authority and prima facie the third
party who has provided information has treated and
regarded the said information as confidential. The
procedure given in Section 11(1) applies to both
cases.”
61. We would clarify that Section 11 is not merely procedural but also
a substantive provision which applies when the PIO intends to
disclose information that relates to or has been supplied by a third
party and has been treated as confidential by that third party. It
requires the PIO to issue notice to the third party who may make
submission in writing or orally, which submission has to be kept in
view while taking a decision. 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. Confidentiality is protected and
preserved in law because the public interest requires such
Civil Appeal No. 10044 of 2010 & Ors. Page 71 of 108
protection. It helps and promotes free communication without fear
of retaliation. However, public interest in protecting confidentiality
is subject to three well-known exceptions. The first exception
being a public interest in the disclosure of iniquity for there cannot
be any loss of confidentiality involving a wrongdoing. Secondly,
there cannot be any public interest when the public has been
misled. Thirdly, the principle of confidentiality does not apply when
the disclosure relates to matters of public concern, which
expression is vastly different from news value or news to satiate
public curiosity. Public concern relates to matters which are an
integral part of free speech and expression and entitlement of
everyone to truth and fair comment about it. 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.
62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of
three exceptions and more when it incorporates public interest
test. It states that information, otherwise treated confidential, can
be disclosed if the public interest in disclosure outweighs the
possible harm and injury to the interest of such a third party. The
Civil Appeal No. 10044 of 2010 & Ors. Page 72 of 108
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.
63. 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 has been discussed above. We now
proceed to look at confidentiality of information concerning the
government and information relating to its inner-workings and the
difference in approach in applying the public interest test in
disclosing such information, as opposed to the approach adopted
for other confidential/personal information. The reason for such
jurisprudential distinction with regard to government information is
best expressed in Attorney General (UK) v. Heinemann
Civil Appeal No. 10044 of 2010 & Ors. Page 73 of 108
Publishers Pty Ltd.39 wherein the High Court of Australia had
observed:
“[…] the relationship between the modern State and its
citizens is so different in kind from that which exists
between private citizens that rules worked out to
govern contractual, property, commercial and private
confidences are not fully applicable where the plaintiff
is a government or one of its agencies. Private citizens
are entitled to protect or further own interests…
[whereas] governments act, or at all events are
constitutionally required to act, in the public interest.
Information is held, received and imparted by
governments, their departments and agencies to
further the public interest. Public and not private
interest, therefore, must be the criterion by which
equity determines whether it will protect information
which a government or governmental body claims is
confidential.”
The High Court of Australia had earlier in Commonwealth
v. John Fairfax and Sons Ltd.40 observed:
“The question, then when the executive government
seeks the protection given by equity, is: What detriment
does it need to show?
The equitable principle has been fashioned to protect
the personal, private and proprietary interests of the
citizen, not to protect the very different interests of the
executive government. It acts, or is supposed to act,
not according to standards of private interest, but in the
public interest. This is not to say that equity will not
protect information in the hands of the government, but
it is to say that when equity protects government
information it will look at the matter through different
spectacles.
39 (1987) 10 NSWLR 86 at 191.
40 (1980) 147 CLR 39 at 51.
Civil Appeal No. 10044 of 2010 & Ors. Page 74 of 108
It may be a sufficient detriment to the citizen that
disclosure of information relating to his affairs will
expose his actions to public discussion and criticism.
But it can scarcely be a relevant detriment to the
government that publication of material concerning its
actions will merely expose it to public discussion and
criticism. It is unacceptable in our democratic society
that there should be a restraint on the publication of
information relating to government when the only vice
of that information is that it enables the public to
discuss, review and criticize government action.
Accordingly, the court will determine the government's
claim to confidentiality by reference to the public
interest. Unless disclosure is likely to injure the public
interest, it will not be protected.
The court will not prevent the publication of information
which merely throws light on the past workings of
government, even if it be not public property, so long
as it does not prejudice the community in other
respects. Then disclosure will itself serve the public
interest in keeping the community informed and in
promoting discussion of public affairs. If, however, it
appears that disclosure will be inimical to the public
interest because national security, relations with
foreign countries or the ordinary business of
government will be prejudiced, disclosure will be
restrained. There will be cases in which the conflicting
considerations will be finely balanced, where it is
difficult to decide whether the public's interest in
knowing and in expressing its opinion, outweighs the
need to protect confidentiality.”
The above principles have also been reiterated and relied
upon by the courts in the United Kingdom [See Coco (supra),
Civil Appeal No. 10044 of 2010 & Ors. Page 75 of 108
Attorney General v. Jonathan Cape Ltd.41]. In Guardian
Newspapers (supra), Lord Keith of Kinkel had observed:
“The position of the Crown, as representing the
continuing government of the country may, however,
be regarded as being special. In some instances
disclosure of confidential information entrusted to a
servant of the Crown may result in a financial loss to
the public. In other instances such disclosure may tend
to harm the public interest by impeding the efficient
attainment of proper governmental ends, and the
revelation of defence or intelligence secrets certainly
falls into that category. The Crown, however, as
representing the nation as a whole, has no private life
or personal feelings capable of being hurt by the
disclosure of confidential information. In so far as the
Crown acts to prevent such disclosure or to seek
redress for it on confidentiality grounds, it must
necessarily, in my opinion, be in a position to show that
the disclosure is likely to damage or has damaged the
public interest. How far the Crown has to go in order to
show this must depend on the circumstances of each
case. In a question with a Crown servant himself, or
others acting as his agents, the general public interest
in the preservation of confidentiality, and in
encouraging other Crown servants to preserve it, may
suffice.”
64. In R.K. Jain v. Union of India42
, this Court, while examining
Section 123 of the Evidence Act, 1872, had paraphrased the
earlier judgment of the Constitution Bench of this Court penned
down by Fazal Ali, J. in S.P. Gupta (supra) (the first Judge’s case)
in which the question of privilege against disclosure of
correspondence between the Chief Justice of Delhi High Court,
41 [1976] QB 752
42 (1993) 4 SCC 119
Civil Appeal No. 10044 of 2010 & Ors. Page 76 of 108
Chief Justice of India and the Law Minister of the Union had
arisen, in the following words:
“41. [...] in a democracy, citizens are to know what their
Govt. is doing. No democratic Govt. can survive
without accountability and the basic postulate of
accountability is that the people should have
information about the functioning of the Govt. It is only
if the people know how the Govt. is functioning and that
they can fulfill their own democratic rights given to
them and make the democracy a really effective
participatory democracy. There can be little doubt that
exposure to public scrutiny is one of the surest means
of running a clean and healthy administration. By
disclosure of information in regard to the functioning of
the Govt. must be the rule and secrecy can be
exceptionally justified only where strict requirement of
public information was assumed. The approach of the
court must be to alleviate the area of secrecy as much
as possible constantly with the requirement of public
interest bearing in mind all the time that the disclosure
also serves an important aspect of public interest.”
65. In R.K. Jain (1993) (supra), reference was also made to Articles
74(2) and 75(3) of the Constitution, to observe:
“21...Article 74(2) precludes this Court from enquiring
into the nature of the advice tendered to the President
and the documents are, therefore, immuned from
disclosure. The disclosure would cause public injury
preventing candid and frank discussion and expression
of views by the bureaucrats at higher level and by the
Minister/Cabinet Sub-committee causing serious injury
to public service. Therefore, Cabinet papers, minutes
of discussion by heads of departments; high level
documents relating to the inner working of the
government machine and all papers concerned with
the government policies belong to a class documents
which in the public interest they or contents thereof
must be protected against disclosure.
xx xx xx
Civil Appeal No. 10044 of 2010 & Ors. Page 77 of 108
30. Collective responsibility under Article 75(3) of the
Constitution inheres maintenance of confidentiality as
enjoined in oaths of office and of secrecy set forth in
Schedule III of the Constitution that the Minister will not
directly or indirectly communicate or reveal to any
person or persons any matter which shall be brought
under his/her consideration or shall become known to
him/her as Minister except as may be required for the
"due discharge of his/her duty as Minister". The base
and basic postulate of its significance is
unexceptionable. But the need for and effect of
confidentiality has to be nurtured not merely from
political imperatives of collective responsibility
envisaged by Article 75(3) but also from its
pragmatism.
xx xx xx
34. Equally every member is entitled to insist that
whatever his own contribution was to the making of the
decision, whether favourable or unfavourable, every
other member will keep it secret. Maintenance of
secrecy by an individual's contribution to discussion, or
vote in the Cabinet guarantees most favourable and
conducive atmosphere to express view formally…”
It was held that the Ministers and the government servants
were required to maintain secrecy and confidentiality in the
performance of the duties of the office entrusted by the
Constitution and the laws. Elucidating on the importance of
confidentiality, it was observed:
“34. [...] Confidentiality and collective responsibility in that
scenario are twins to effectuate the object of frank and open
debate to augment efficiency of public service or effectivity
of collective decision to elongate public interest. To hamper
and impair them without any compelling or at least strong
reasons, would be detrimental to the efficacy of public
administration. It would tantamount to wanton rejection of
Civil Appeal No. 10044 of 2010 & Ors. Page 78 of 108
the fruits of democratic governance, and abdication of an
office of responsibility and dependability. Maintaining of top
secrecy of new taxation policies is a must but leaking
budget proposals a day before presentation of the budget
may be an exceptional occurrence as an instance.”
66. Thereafter, reference was made to the decision of the House of
Lords in Burmah Oil Ltd v. Governor And Company Of The
Bank Of England And Another43 wherein the Lords had rejected
the notion that “any competent and conscientious public servant
would be inhibited at all in the candour of his writings by
consideration of the off chance that they might have to be
produced in a litigation as grotesque” to hold that this contention
would be utterly insubstantial ground to deny access to the
relevant document. In Burma Oil Ltd. (supra), it was held that the
candour doctrine stands in a different category from that aspect of
public interest, which, in appropriate circumstances, may require
that the ‘sources and nature of information confidentially tendered’
should be withheld from disclosure. Several other cases were
also referred expressing the same ratio [See – Butters Gas and
Oil Co. v. Hammer44; Air Canada v. Secretary of State for
43 [1980] AC 1090
44 1982 AC 888 (H.L.)
Civil Appeal No. 10044 of 2010 & Ors. Page 79 of 108
Trade45; and Council of Civil Service Unions v. Minister for the
Civil Service46].
67. Having held so, the Bench in R.K. Jain (1993) (supra) had
proceeded to observe:
“48. In a democracy it is inherently difficult to function
at high governmental level without some degree of
secrecy. No Minister, nor a Senior Officer would
effectively discharge his official responsibilities if every
document prepared to formulate sensitive policy
decisions or to make assessment of character rolls of
co-ordinate officers at that level if they were to be
made public. Generally assessment of honesty and
integrity is a high responsibility. At high co-ordinate
level it would be a delicate one which would further get
compounded when it is not backed up with material.
Seldom material will be available in sensitive areas.
Reputation gathered by an officer around him would
form the base. If the reports are made known, or if the
disclosure is routine, public interest grievously would
suffer. On the other hand, confidentiality would
augment honest assessment to improve efficiency and
integrity in the officers.
49. The business of the Govt., when transacted by
bureaucrats, even in personal, it would be difficult to
have equanimity if the inner working of the Govt.
machinery is needlessly exposed to the public. On
such sensitive issues it would hamper to express frank
and forthright views or opinions. therefore, it may be
that at that level the deliberations and in exceptional
cases that class or category or documents get
protection, in particular, on policy matters. Therefore,
the court would be willing to respond to the executive
public interest immunity to disclose certain documents
where national security or high policy, high sensitivity is
involved.
45 1983 2 AC 394 (H.L.)
46 1985 AC 374 (H.L.)
Civil Appeal No. 10044 of 2010 & Ors. Page 80 of 108
xx xx xx
54. […] In President Nixon's case, the Supreme Court
of the United States held that it is the court's duty to
construe and delineate claims arising under express
powers, to interpret claims with respect to powers
alleged to derive from enumerated powers of the
Constitution, In deciding whether the matter has in any
measure been committed by the Constitution to
another branch of government, or whether the action of
that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is the responsibility of the court as
ultimate interpreter of the Constitution…”
68. At the same time, it was held:
“55. [...] Article 74(2) is not a total bar for production of
the records. Only the actual advice tendered by the
Minister or Council of Ministers to the President and
the question whether any and if so, what advice was
tendered by the Minister or Council of Ministers to the
President, shall not be enquired into by the court. In
other words the bar of Judicial review is confined to the
factum of advice, its extent, ambit and scope but not
the record i.e. the material on which the advice is
founded. In S.P. Gupta's case this Court held that only
the actual advice tendered to the President is immuned
from enquiry and the immunity does not extend to other
documents or records which form part of the advice
tendered to the President.
56. There is discernible modern trends towards more
open government than was prevalent in the past. In its
judicial review the court would adopt in camera
procedure to inspect the record and evaluate the
balancing act between the competing public interest
and administration of justice. It is equally the
paramount consideration that justice should not only be
done but also would be publicly recognised as having
been done. Under modern conditions of responsible
government, Parliament should not always be relied on
as a check on excess of power by the Council of
Civil Appeal No. 10044 of 2010 & Ors. Page 81 of 108
Ministers or Minister. Though the court would not
substitute its views to that of the executive on matters
of policy, it is its undoubted power and duty to see that
the executive exercises its power only for the purpose
for which it is granted. Secrecy of the advice or opinion
is by no means conclusive. Candour, frankness and
confidentiality though are integral facets of the common
genus i.e., efficient governmental functioning, per se by
means conclusive but be kept in view in weighing the
balancing act. Decided cases show that power often
was exercised in excess thereof or for an ulterior
purpose etc. Sometimes the public service reasons will
be decisive of the issue, but they should never prevent
the court from weighing them against the injury which
would be suffered in the administration of justice if the
document was not to be disclosed, and the likely injury
to the cause of justice must also be assessed and
weighed. Its weight will vary according to the nature of
the proceedings in which disclosure is sought, level at
which the matter was considered; the subject matter of
consideration; the relevance of the documents and that
degree of likelihood that the document will be of
importance in the litigation. In striking the balance, the
court may always, if it thinks it necessary, itself inspect
the documents. It is, therefore the constitutional,
legitimate and lawful power and duty of this Court to
ensure that powers, constitutional, statutory or
executive are exercised in accordance with the
Constitution and the law. This may demand, though no
doubt only in limited number of cases, yet the inner
workings of government may be exposed to public
gaze. The contentions of Attorney General and
Solicitor General that the inner workings of the
government would be exposed to public gaze, and that
some one who would regard this as an occasion
without sufficient material to ill-informed criticism is no
longer relevant. Criticism calculated to improve the
nature of that working as affecting the individual citizen
is welcome.”
69. The aforesaid passages highlight the relevance of confidentiality
in the government and its functioning. However, this is not to state
Civil Appeal No. 10044 of 2010 & Ors. Page 82 of 108
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).
70. Most jurists would accept that absolute transparency in all facets
of government is neither feasible nor desirable,47 for there are
several limitations on complete disclosure of governmental
information, especially in matters relating to national security,
diplomatic relations, internal security or sensitive diplomatic
correspondence. There is also a need to accept and trust the
government’s decision-makers, which they have to also earn,
when they plead that confidentiality in their meetings and
47 Michael Schudson, ‘The Right to Know vs the Need for Secrecy: The US Experience’ The
Conversation (May 2015) <https://theconversation.com/the-right-to-know-vs-the-need-for-secrecythe-us-experience-40948>; Eric R. Boot, ‘The Feasibility of a Public Interest Defense for
Whistleblowing’, Law and Philosophy (2019). See generally Michael Schudson, The Rise of the
Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge (MA): Harvard
University Press 2015).
Civil Appeal No. 10044 of 2010 & Ors. Page 83 of 108
exchange of views is needed to have a free flow of views on
sensitive, vexatious and pestilent issues in which there can be
divergent views. This is, however, not to state that there are no
dangers in maintaining secrecy even on aspects that relate to
national security, diplomatic relations, internal security or sensitive
diplomatic correspondence. 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.
POINT NO. 4: MEANING OF THE TERM ‘PUBLIC INTEREST’
71. In Union of India v. Association for Democratic Reforms and
Another48 recognising the voters’ right to know the antecedents of
the candidates and the right to information which stems from
Article 19(1)(a) of the Constitution, it was held that directions could
48 (2002) 5 SCC 294
Civil Appeal No. 10044 of 2010 & Ors. Page 84 of 108
be issued by the Court to subserve public interest in creating an
informed citizenry, observing:
“46. […] The right to get information in democracy is
recognised all throughout and it is natural right flowing
from the concept of democracy. At this stage, we would
refer to Article 19(1) and (2) of the International
Covenant of Civil and Political Rights which is as
under:
(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of
his choice.
6. Cumulative reading of plethora of decisions of this
Court as referred to, it is clear that if the field meant for
legislature and executive is left unoccupied detrimental
to the public interest, this Court would have ample
jurisdiction under Article 32 read with Article 141 and
142 of the Constitution to issue necessary directions to
the Executive to subserve public interest.”
Clearly, the larger public interest in having an informed
electorate, fair elections and creating a dialectical democracy had
outweighed and compelled this Court to issue the directions
notwithstanding disclosure of information relating to the personal
assets, educational qualifications and antecedents including
previous involvement in a criminal case of the contesting
candidate.
Civil Appeal No. 10044 of 2010 & Ors. Page 85 of 108
72. Public interest, sometimes criticised as inherently amorphous and
incapable of a precise definition, is a time tested and historical
conflict of rights test which is often applied in the right to
information legislation to balance right to access and protection of
the conflicting right to deny access. In Mosley v. News Group
Papers Ltd.49 it has been observed:
“130… It is not simply a matter of personal privacy
versus the public interest. The modern perception is
that there is a public interest in respecting personal
privacy. It is thus a question of taking account of
conflicting public interest considerations and evaluating
them according to increasingly well recognized
criteria.”
The RTI Act is no exception. Section 8(1)(j) of the RTI Act
prescribes the requirement of satisfaction of ‘larger public interest’
for access to information when the information relates to personal
information having no relationship with any public activity or
interest, or would cause unwarranted invasion of privacy of the
individual. Proviso to Section 11(1) states that except in case of
trade or commercial secrets protected by law, disclosure may be
allowed if the public interest in disclosure outweighs in importance
any possible harm or injury to the interest of the third party. The
words ‘possible harm or injury’ to the interest of the third party is
preceded by the word ‘importance’ for the purpose of comparison.
49 2008 EWHC 1777 (QB)
Civil Appeal No. 10044 of 2010 & Ors. Page 86 of 108
‘Possible’ in the context of the proviso does not mean something
remote, far-fetched or hypothetical, but a calculable, foreseeable
and substantial possibility of harm and injury to the third party.
73. Comparison or balancing exercise of competing public interests
has to be undertaken in both sections, albeit under Section 8(1)(j)
the comparison is between public interest behind the exemption,
that is personal information or invasion of privacy of the individual
and public interest behind access to information, whereas the test
prescribed by the proviso to Section 11(1) is somewhat broader
and wider as it 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.
74. This Court in Bihar Public Service Commission v. Saiyed
Hussain Abbas Rizwi and Another50 has 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. However, the RTI Act does not specifically identify
factors to be taken into account in determining where the public
50 (2012) 13 SCC 61
Civil Appeal No. 10044 of 2010 & Ors. Page 87 of 108
interest lies. Therefore, it is important to understand the meaning
of the expression ‘public interest’ in the context of the RTI Act.
This Court held ‘public interest’ to mean the general welfare of the
public warranting the disclosure and the protection applicable, in
which the public as a whole has a stake, and observed:
“23. The satisfaction has to be arrived at by the
authorities objectively and the consequences of such
disclosure have to be weighed with regard to the
circumstances of a given case. The decision has to be
based on objective satisfaction recorded for ensuring
that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the
provision. Certain matters, particularly in relation to
appointment, are required to be dealt with great
confidentiality. The information may come to
knowledge of the authority as a result of disclosure by
others who give that information in confidence and with
complete faith, integrity and fidelity. Secrecy of such
information shall be maintained, thus, bringing it within
the ambit of fiduciary capacity. Similarly, there may be
cases where the disclosure has no relationship to any
public activity or interest or it may even cause
unwarranted invasion of privacy of the individual. All
these protections have to be given their due
implementation as they spring from statutory
exemptions. It is not a decision simpliciter between
private interest and public interest. It is a matter where
a constitutional protection is available to a person with
regard to the right to privacy. Thus, the public interest
has to be construed while keeping in mind the balance
factor between right to privacy and right to information
with the purpose sought to be achieved and the
purpose that would be served in the larger public
interest, particularly when both these rights emerge
from the constitutional values under the Constitution of
India.”
Civil Appeal No. 10044 of 2010 & Ors. Page 88 of 108
75. 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. For
example, the public may be interested in private matters with
which the public may have no concern and pressing need to
know. However, such interest of the public in private matters
would repudiate and directly traverse the protection of privacy.
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.
76. 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. In an article ‘Freedom of Information
Civil Appeal No. 10044 of 2010 & Ors. Page 89 of 108
and the Public Interest: the Commonwealth experience’ published
in the Oxford University Commonwealth Law Journal,51 the factors
identified as favouring disclosure, those against disclosure and
lastly those irrelevant for consideration of public interest have
been elucidated as under:
“it is generally accepted that the public interest is not
synonymous with what is of interest to the public, in the
sense of satisfying public curiosity about some matter.
For example, the UK Information Tribunal has drawn a
distinction between ‘matters which were in the interests
of the public to know and matters which were merely
interesting to the public (i.e. which the public would like
to know about, and which sell newspapers, but... are
not relevant).
Factors identified as favouring disclosure include
the public interest in: contributing to a debate on a
matter of public importance; accountability of officials;
openness in the expenditure of public funds, the
performance by a public authority of its regulatory
functions, the handling of complaints by public
authorities; exposure of wrongdoing, inefficiency or
unfairness; individuals being able to refute allegations
made against them; enhancement of scrutiny of
decision-making; and protecting against danger to
public health or safety.
Factors that have been found to weigh against
disclosure include: the likelihood of damage to security
or international relations; the likelihood of damage to
the integrity or viability of decision-making processes:
the public interest in public bodies being able to
perform their functions effectively; the public interest in
preserving the privacy of individuals and the public
interest in the preservation of confidences.
51 Published online on 28th August, 2017
Civil Appeal No. 10044 of 2010 & Ors. Page 90 of 108
Factors irrelevant to the consideration of the public
interest have also been identified. These include: that
the information might be misunderstood; that the
requested information in overly technical in nature; and
that disclosure would result in embarrassment to the
government or to officials.”
77. In Campbell (supra), reference was made to the Press
Complaints Commission Code of Practice to further elucidate on
the test of public interest which stands at the intersection of
freedom of expression and the privacy rights of an individual to
hold that:
“1. Public interest includes:
(i) Detecting or exposing crime or a serious
misdemeanour.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by some
statement or action of an individual or organisation....”
78. Public interest has no relationship and is not connected with the
number of individuals adversely affected by the disclosure which
may be small and insignificant in comparison to the substantial
number of individuals wanting disclosure. It will vary according to
the information sought and all circumstances of the case that bear
upon the public interest in maintaining the exemptions and those
in disclosing the information must be accounted for to judge the
right balance. Public interest is not immutable and even time-gap
Civil Appeal No. 10044 of 2010 & Ors. Page 91 of 108
may make a significant difference. The type and likelihood of harm
to the public interest behind the exemption and public interest in
disclosure would matter. 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.
79. The last aspect in the context of public interest test would be in
the form of clarification as to the effect of sub-section (2) to
Section 6 of the RTI Act which does not require the information
seeker to give any reason for making a request for the
information. Clearly, ‘motive’ and ‘purpose’ for making the request
for information is irrelevant, and being extraneous cannot be a
ground for refusing the information. However, this is not to state
that ‘motive’ and ‘purpose’ may not be relevant factor while
applying the public interest test in case of qualified exemptions
governed by the public interest test. It is in this context that this
Court in Aditya Bandopadhyay (supra) has held that beneficiary
Civil Appeal No. 10044 of 2010 & Ors. Page 92 of 108
cannot be denied personal information relating to him. Similarly, in
other cases, public interest may weigh in favour of the disclosure
when the information sought may be of special interest or special
significance to the applicant. It could equally be a negative factor
when the ‘motive’ and ‘purpose’ is vexatious or it is a case of clear
abuse of law.
80. 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.
POINT NO. 5: JUDICIAL INDEPENDENCE
81. Having dealt with the doctrine of the public interest under the RTI
Act, we would now turn to examining its co-relation with
Civil Appeal No. 10044 of 2010 & Ors. Page 93 of 108
transparency in the functioning of the judiciary in matters of
judicial appointments/selection and importance of judicial
independence.
82. Four major arguments 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.52 These arguments have
become subject matter of considerable debate, if not outright
criticism at the hands of jurists and authors.53 Yet there are those
who have expressed cynicism about the ‘interview’ process
undertaken by the Judicial Service Commission (JSC) in
recommending judges for appointment in South Africa, by pointing
out the precariousness and the chilling effect it has on prospective
candidates and consequently the best candidates often do not
apply.54 Recently, the majority judgment of the Constitutional Court
52 See: How Transparent is Transparent Enough?: Balancing Access to Information Against Privacy
in European Judicial Selections by Alberto Alemanno in Michal Bobek (ed.), Selecting Europe’s
Judges, 2015 Edition.
53 Kate Malleson, ‘Parliamentary Scrutiny of Supreme Court Nominees: A View from the United
Kingdom’ Osgoode Hall Law Journal (2007) 44, 557.
54 WH Gravett, ‘Towards an algorithmic model of judicial appointment: The necessity for radical
revision of the Judicial Service Commission’s interview procedures’ 2017 (80) THRHR.
Civil Appeal No. 10044 of 2010 & Ors. Page 94 of 108
of South Africa in Helen Suzman Foundation v. Judicial Service
Commission55 by relying upon Rule 53(1)(b) of the Uniform Rules
of Court, South Africa,
56 had directed the JSC to furnish the record
of its deliberations, rejecting the contrary argument of candour and
robustness as that of ‘timorous fainthearts’. Debating with
candour, the Court observed, is not equivalent to expression of
impropriety. The candidates, it was noticed, had undergone
gruelling scrutiny in the public interviews, and therefore disclosure
of deliberation would not act as a dampener for future candidates.
More importantly, the Constitutional Court had distinguished the
authority and power with the Courts under Rule 53 to access the
deliberation record, with the different right to access information
under the Promotion to Access to Information Act, 2000 (PAIA),
which was the basis of the minority judgment for rejection of
production of the JSC’s deliberation record. The majority held that
PAIA and Rule 53 serve different purposes, there being a
55 Case 289/16 decided on 24th April 2018
56 Rule 53(1)(b) of the Uniform Rules of Court, South Africa states:
“(1) Save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasijudicial or administrative functions shall be by way of notice of motion directed and delivered by
the party seeking to review such decision or proceedings to the magistrate, presiding officer or
chairman of the court, tribunal or board or to the officer, as the case may be, and to all other
parties affected-
(a) […]
(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to
despatch, within fifteen days after receipt of the notice of motion, to the registrar the record
of such proceedings sought to be corrected or set aside, together with such reasons as he
is by law required or desires to give or make, and to notify the applicant that he has done
so.”
Civil Appeal No. 10044 of 2010 & Ors. Page 95 of 108
difference in the nature of, and purposes, and therefore it would
be inapt to transpose PAIA proscriptions on access under Rule
53. The PAIA grants any person or busybody a right to access any
information without explaining whatsoever as to why she or he
requires the information. This had to be balanced, with the need to
incentivise people to furnish private information, where such
information is required for facilitating the government machinery,
and therefore, considerations of confidentiality are applied as the
person furnishing information must be made aware that the
information would not be unhesitatingly divulged to others,
including busybodies, for no particular reason. This facilitates the
exercise of power and performance of functions of the state
functionaries. In court matters under Rule 53, concerns of
confidentiality could be addressed by imposing stringent and
restrictive conditions on the right to access information, including
furnishing of confidentiality undertakings for restraining the
divulgence of details to third parties.
83. The United Kingdom’s Data Protection Act, 2018 grants class
exemption to all personal data processed for the purpose of
assessing a person’s suitability for judicial office, from certain
rights including the right of the data subject to be informed,
guaranteed under the European Union General Data Protection
Civil Appeal No. 10044 of 2010 & Ors. Page 96 of 108
Regulation being given effect to by the Data Protection Act.57
Similarly, in the context of the European Union, opinions of ‘the
Article 255 Panel’58 and ‘the Advisory Panel’59
, entrusted with the
task of advising on the suitability of candidates as judges to the
Court of Justice of the European Union and the European Court of
Human Rights are inaccessible to the public and their opinions
have limited circulation, as they are exclusively forwarded to the
representatives of governments of the member states in the case
of European Union60 and the individual governments in the case of
Council of Europe61
, respectively. The Council of the European
Union,62 for instance, in consultation with ‘Article 255’ Panel, has
denied requests for public access to opinions issued by the
Panel,63 in light of the applicable exceptions provided for in
Regulation No 1049/200164. Such opinions, the Council has
57 Schedule 2, Part-2, Paragraph 14.
58 Article 255, Treaty on the Functioning of the European Union states:
“A panel shall be set up in order to give an opinion on candidates' suitability to perform the duties of
Judge and Advocate-General of the Court of Justice and the General Court before the governments
of the Member States make the appointments referred to in Articles 253 and 254…”
59 Set up under Resolution ‘Establishment of an Advisory Panel of Experts on Candidates for Election
as Judge to the European Court of Human Rights’, CM/Res (2010) 26 adopted by the Committee of
Ministers on 10 November 2010.
60 CJEU is the judicial branch of the European Union, administering justice in the 28 member states
of the international organisation.
61 Comprising of 47 member European states, Council of Europe adopted the European Convention
on Human Rights, which established ECtHR.
62 One of the seven constituent bodies of the European Union comprising of the ministers from the
member states of the European Union.
63 Reply Adopted by the Council on 12 July 2016 to Confirmatory Application 13/c/01/16 pursuant to
Article 7(2) of Regulation (EC) No 1049/2001 for public access to all the opinions issued by the
Panel provided for by Article 255 of the Treaty on the Functioning of the European Union.
64 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission documents
Civil Appeal No. 10044 of 2010 & Ors. Page 97 of 108
observed, largely include personal data of the candidates, viz.
factual elements concerning the candidates’ professional
experience and qualifications and the Panel’s assessment of the
candidate’s competences and, therefore, access to relevant
documents is denied in order to protect the privacy and integrity of
the individual.65 However, a part of these opinions which do not
contain personal data and provide a description of the procedure
adopted and criteria applied by the Panel have been released as
“Activity Reports” in the framework of partial access to such
information. Opinions that are unfavourable to the appointment of
the candidates will be exempt from disclosure as they can hamper
commercial interests of the candidates in their capacity as legal
practitioners,66 whereas positive opinions are exempted from
disclosure as such opinions can lead to comparison and public
scrutiny of the most and least favoured qualities of the successful
candidates, potentially interfering with the proceedings of the
Court of Justice.67 Lastly, disclosure of opinions, the Council has
observed, will be exempted if such disclosure could “seriously
65 Article 4(1)(b), Regulation No 1049/2001
66 First indent of Article 4(2), Regulation No 1049/2001
67 Second indent of Article 4(2), Regulation No 1049/2001
Civil Appeal No. 10044 of 2010 & Ors. Page 98 of 108
undermine the institution's decision-making process, unless there
is an overriding public interest in disclosure.”68
84. More direct and relevant in the Indian context would be the
decision of this Court in Supreme Court Advocates-on-Record
Association v. Union of India69, where a Constitutional Bench of
five judges had dealt with the constitutional validity of the National
Judicial Appointments Commission. A concurring judgment had
dealt with the aspect of transparency in appointment and transfer
of judges and the privacy concerns of the judges who divulge their
personal information in confidence, to opine as under:
“949. In the context of confidentiality requirements, the
submission of the learned Attorney General was that
the functioning of NJAC would be completely
transparent. Justifying the need for transparency it was
submitted that so far the process of appointment of
Judges in the Collegium System has been extremely
secret in the sense that no one outside the Collegium
or the Department of Justice is aware of the
recommendations made by the Chief Justice of India
for appointment of a Judge of the Supreme Court or
the High Courts. Reference was made
to Renu v. District & Sessions Judge, (2014) 14 SCC
50 to contend that in the matter of appointment in all
judicial institutions “complete darkness in the
lighthouse has to be removed”.
950. In addition to the issue of transparency a
submission was made that in the matter of appointment
of Judges, civil society has the right to know who is
being considered for appointment. In this regard, it was
68 Article 4(3), Regulation No 1049/2001
69 (2016) 5 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 99 of 108
held in Indian Express Newspapers (Bombay) (P)
Ltd. v. Union of India (1985) 1 SCC 641 that the people
have a right to know. Reliance was placed on Attorney
General v. Times Newspapers Ltd. 1974 AC 273: (1973)
3 WLR 298: (1973) 3 All ER 54 (HL) where the right to
know was recognised as a fundamental principle of the
freedom of expression and the freedom of discussion.
951. In State of U.P. v. Raj Narain (1975) 4 SCC 428 the
right to know was recognised as having been derived
from the concept of freedom of speech.
952. Finally, in Reliance Petrochemicals Ltd. v. Indian
Express Newspapers Bombay (P) Ltd., (1988) 4 SCC
592 it was held that the right to know is a basic right
which citizens of a free country aspire in the broader
horizon of the right to live in this age in our land under
Article 21 of our Constitution.
953. The balance between transparency and
confidentiality is very delicate and if some sensitive
information about a particular person is made public, it
can have a far-reaching impact on his/her reputation and
dignity. The 99th Constitution Amendment Act and the
NJAC Act have not taken note of the privacy concerns of
an individual. This is important because it was submitted
by the learned Attorney General that the proceedings of
NJAC will be completely transparent and any one can
have access to information that is available with NJAC.
This is a rather sweeping generalisation which obviously
does not take into account the privacy of a person who
has been recommended for appointment, particularly as
a Judge of the High Court or in the first instance as a
Judge of the Supreme Court. The right to know is not a
fundamental right but at best it is an implicit fundamental
right and it is hedged in with the implicit fundamental
right to privacy that all people enjoy. The balance
between the two implied fundamental rights is difficult to
maintain, but the 99th Constitution Amendment Act and
the NJAC Act do not even attempt to consider, let alone
achieve that balance.
954. It is possible to argue that information voluntarily
supplied by a person who is recommended for
appointment as a Judge might not have a right to
privacy, but at the same time, since the information is
supplied in confidence, it is possible to argue that it
Civil Appeal No. 10044 of 2010 & Ors. Page 100 of 108
ought not to be disclosed to third party unconcerned
persons. Also, if the recommendation is not accepted
by the President, does the recommended person have
a right to non-disclosure of the adverse information
supplied by the President? These are difficult questions
to which adequate thought has not been given and
merely on the basis of a right to know, the reputation of
a person cannot be whitewashed in a dhobi-ghat.”
85. Earlier, the Constitution Bench of nine judges had in Second
Judges’ Case, that is Supreme Court Advocates on Record
Association and Others v. Union of India70 overruled the
majority opinion in S.P. Gupta (supra) (the first Judge’s case) and
had provided for primacy to the role of the Chief Justice of India
and the collegium in the matters of appointment and transfer of
judges. Speaking on behalf of the majority, J.S. Verma, J., had
with regard to the justiciability of transfers, summarised the legal
position as under:
“480. The primacy of the judiciary in the matter of
appointments and its determinative nature in transfers
introduces the judicial element in the process, and is
itself a sufficient justification for the absence of the
need for further judiciary review of those decisions,
which is ordinarily needed as a check against possible
executive excess or arbitrariness. Plurality of judges in
the formation of the opinion of the Chief Justice of
India, as indicated, is another inbuilt check against the
likelihood of arbitrariness or bias, even subconsciously,
of any individual. The judicial element being
predominant in the case of appointments, and decisive
in transfers, as indicated, the need for further judicial
review, as in other executive actions, is eliminated.
70 (1993) 4 SCC 441
Civil Appeal No. 10044 of 2010 & Ors. Page 101 of 108
The reduction of the area of discretion to the minimum,
the element of plurality of judges in formation of the
opinion of the Chief Justice of India, effective
consultation in writing, and prevailing norms to regulate
the area of discretion are sufficient checks against
arbitrariness.
481. These guidelines in the form of norms are not to
be construed as conferring any justiciable right in the
transferred Judge. Apart from the constitutional
requirement of a transfer being made only on the
recommendation of the Chief Justice of India, the issue
of transfer is not justiciable on any other ground,
including the reasons for the transfer or their
sufficiency. The opinion of the Chief Justice of India
formed in the manner indicated is sufficient safeguard
and protection against any arbitrariness or bias, as well
as any erosion of the independence of the judiciary.
482. This is also in accord with the public interest of
excluding these appointments and transfers from
litigative debate, 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. The
growing tendency of needless intrusion by strangers
and busy-bodies in the functioning of the judiciary
under the garb of public interest litigation, in spite of the
caution in S.P. Gupta which expanding the concept of
locus standi, was adverted to recently by a Constitution
Bench in Krishna Swami v. Union of India (1992) 4
SCC 605. It is therefore, necessary to spell out clearly
the limited scope of judicial review in such matters, t
avoid similar situations in future. Except on the ground
of want of consultation with the named constitutional
functionaries or lack of any condition of eligibility in the
cases of an appointment, or of a transfer being made
without the recommendation of the Chief Justice of
India, these matters are not justiciable on any other
ground, including that of bias, which in any case is
excluded by the element of plurality in the process of
decision-making.”
Civil Appeal No. 10044 of 2010 & Ors. Page 102 of 108
86. That the independence of the judiciary forms part of our basic
structure is now well established. S. P. Gupta (supra) (the first
Judge’s case) had observed that this independence is one
amongst the many other principles that run through the entire
fabric of the Constitution and is a part of the rule of law under the
Constitution. The judiciary is entrusted with the task of keeping the
other two organs within the limits of law and to make the rule of
law meaningful and effective. Further, the independence of
judiciary is not limited to judicial appointments to the Supreme
Court and the High Courts, as it is a much wider concept which
takes within its sweep independence from many other pressures
and prejudices. It consists of many dimensions including
fearlessness from other power centres, social, economic and
political, freedom from prejudices acquired and nurtured by the
class to which the judges belong and the like. This wider concept
of independence of judiciary finds mention in C. Ravichandran
Iyer v. Justice A.M. Bhattacharjee and Others71
, High Court of
Judicature at Bombay v. Shashikant S. Patil72 and Jasbir
Singh v. State of Punjab73
.
71 (1995) 5 SCC 457
72 (1997) 6 SCC 339
73 (2006) 8 SCC 294
Civil Appeal No. 10044 of 2010 & Ors. Page 103 of 108
87. In Supreme Court Advocates’ on Record Association (2016)
(supra) on the aspect of the independence of the judiciary, it has
been observed:
“713. What are the attributes of an independent
judiciary? It is impossible to define them, except
illustratively. At this stage, it is worth recalling the
words of Sir Ninian Stephen, a former Judge of the
High Court of Australia who memorably said:
“[An] independent judiciary, although a formidable
protector of individual liberty, is at the same time a very
vulnerable institution, a fragile bastion indeed.”
It is this fragile bastion that needs protection to maintain
its independence and if this fragile bastion is subject to a
challenge, constitutional protection is necessary.
714. The independence of the judiciary takes within its
fold two broad concepts: (1) Independence of an
individual Judge, that is, decisional independence; and
(2) Independence of the judiciary as an institution or an
organ of the State, that is, functional independence. In a
lecture on Judicial Independence, Lord Phillips said:
“In order to be impartial a Judge must be
independent; personally independent, that is free
of personal pressures and institutionally
independent, that is free of pressure from the
State.”
xx xx xx
726. Generally speaking, therefore, the independence
of the judiciary is manifested in the ability of a Judge to
take a decision independent of any external (or
internal) pressure or fear of any external (or internal)
pressure and that is “decisional independence”. It is
also manifested in the ability of the institution to have
“functional independence”. A comprehensive and
composite definition of “independence of the judiciary”
is elusive but it is easy to perceive.”
Civil Appeal No. 10044 of 2010 & Ors. Page 104 of 108
It is clear from the aforesaid quoted passages that 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’74 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.
88. We have referred to the decisions and viewpoints to highlight the
contentious nature of the issue of transparency, accountability and
judicial independence with various arguments and counterarguments on both sides, each of which commands merit and
cannot be ignored. Therefore, 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 be
74 Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon
Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley,
Professor Dr. Andrzej Zoll. <http://www.interights.org/document/142/index.html>
Civil Appeal No. 10044 of 2010 & Ors. Page 105 of 108
taken 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.
Independence in a given case may well demand openness and
transparency by furnishing the information. Reference to the
principle of judicial independence is not to undermine and avoid
accountability which is an aspect we perceive and believe has to
be taken into account while examining the public interest in favour
of disclosure of information. Judicial independence and
accountability go hand in hand as accountability ensures, and is a
facet of judicial independence. Further, 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,
Civil Appeal No. 10044 of 2010 & Ors. Page 106 of 108
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, 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
Civil Appeal No. 10044 of 2010 & Ors. Page 107 of 108
exempt. Therefore, a universal affirmative or negative answer is
not possible. However, independence of judiciary is a matter of
public interest.
CONCLUSIONS
89. 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 to
Civil Appeal No. 10044 of 2010 & Ors. Page 108 of 108
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.
......................................CJI
(RANJAN GOGOI)
........................................J.
(N.V. RAMANA)
........................................J.
(DR. D.Y. CHANDRACHUD)
........................................J.
(DEEPAK GUPTA)
........................................J.
(SANJIV KHANNA)
NEW DELHI;
NOVEMBER 13, 2019.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER, … APPELLANT
SUPREME COURT OF INDIA
VERSUS
SUBHASH CHANDRA AGRAWAL … RESPONDENT
WITH
CIVIL APPEAL NO. 10045 OF 2010
AND
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
N.V. RAMANA, J.
“In the domain of human rights, right to privacy
and right to information have to be treated as coequals and none can take precedence over the
other, rather a balance needs to be struck”
1. I have had the opportunity to peruse the erudite judgments of my
learned brothers, who have reflected extensively on the
importance of this case, concerning the aspect of privacy and right
to information in detail. However, while concurring with the view
of the majority, I feel the need to provide independent reasons with
respect to certain aspects for coming to the aforesaid conclusion,
REPORTABLE
2
as this case has large ramification on the rights of an individual
in comparison to the rights of the society. The aspect of
transparency and accountability which are required to be
balanced with right to privacy, has not been expounded by this
Court anytime before, thereby mandating a separate opinion.
2. This case concerns the balance which is required between two
important fundamental rights i.e. right to information and right
to privacy. Often these two rights are seen as conflicting, however,
we need to reiterate that both rights are two faces of the same
coin. There is no requirement to see the two facets of the right in
a manner to further the conflict, what is herein required is to
provide balancing formula which can be easily made applicable to
individual cases. Moreover, due to the fact of infancy in privacy
jurisprudence has also contributed to the meticulous task we are
burdened herein.
3. In this view, this case is before us to adjudicate whether the
application dated 06.07.2009 (hereinafter referred to as “first
application”) seeking information by the respondent, separate
3
applications dated 23.01.2009 (hereinafter referred to as “second
application”) and 10.11.2007 (hereinafter referred to as “third
application”) are maintainable or not. The first application
concerns the information relating to complete correspondence
between the Chief Justice of India and Mr. Justice R. Reghupati.
The second application concerns the collegium file notings
relating to the appointment of Justice H. L. Dattu, Justice A. K.
Ganguly and Justice R. M. Lodha. The third application relates to
information concerning declaration of assets made by the puisne
judges of the Supreme Court to the Chief Justice of India and the
judges of the High Courts to the Chief Justices of the respective
High Courts.
4. The respondent/applicant submitted that the aforesaid three
applications before the Central Public Information Officer of the
Supreme Court of India (hereinafter “CPIO, Supreme Court of
India”) came to be dismissed vide orders dated 04.08.2009,
25.02.2009 and 30.11.2007 respectively.
5. Aggrieved by rejection of the first application the respondent
approached the first appellate authority in appeal which was also
4
dismissed vide order dated 05.09.2009. Being aggrieved, the
respondent further preferred a second appeal to the Central
Information Commission [for short “CIC”]. The CIC allowed this
appeal vide order dated 25.11.2009 and directed the disclosure of
information sought. Aggrieved by the same, the CPIO, Supreme
Court of India has preferred Civil Appeal No. 10045 of 2010.
6. Concerning the second application, the CPIO, Supreme Court of
India, by order dated 25.02.2009 had denied the information
sought therein. Being aggrieved, the respondent preferred the first
appeal which came to be dismissed vide order dated 25.03.2009
by the first appellate authority. The second appeal filed before the
CIC was allowed vide order dated 24.11.2009. Aggrieved the CPIO,
Supreme Court of India has preferred Civil Appeal No. 10044 of
2010.
7. The third application was dismissed by the CPIO, Supreme Court
of India vide order dated 30.11.2007 on the ground that the
information was not held by the Registry of the Supreme Court of
India. The first appeal was disposed of with an order directing the
CPIO, Supreme Court of India to consider the question of
5
applicability of Section 6(3) of the Right to Information Act, 2005
(hereinafter “the RTI Act”). The CPIO vide order 07.02.2009
required the respondent/applicant to approach the concerned
public authority of the High Courts. Aggrieved the
respondent/applicant directly approached the CIC in appeal
which was allowed by order dated 06.01.2009. Aggrieved by the
same the appellant filed Writ Petition (C) No. 288 of 2009 before
the Delhi High Court. The Ld. Single Judge by order dated
02.09.2009 directed the CPIO, Supreme Court of India to release
the information sought by the respondent. Being aggrieved, the
CPIO, Supreme Court of India filed Letter Patent Appeal No. 501
of 2009 which was subsequently referred to a full Bench of the
High Court. The full Bench by order dated 12.01.2010 dismissed
the letter patent appeal. Aggrieved, CPIO, Supreme Court of India
has filed Civil Appeal No. 2683 of 2010 before this Court.
8. In this context, all the three appeals were tagged by an order dated
26.11.2010, a reference was made for constituting a larger Bench
and accordingly it is before us.
6
9. Before we dwell into any other aspect a preliminary objections
were taken by the appellants that this Bench could not have dealt
with this matter considering the fact that this Court’s
functionality had a direct impact on the same. We do not
subscribe to the aforesaid opinion for the reason that this Court
while hearing this matter is sitting as a Court of necessity. In the
case of Election Commission of India v. Dr Subramaniam
Swamy, (1996) 4 SCC 104, it was held as under:
16. We must have a clear conception of the
doctrine. It is well settled that the law permits
certain things to be done as a matter of
necessity which it would otherwise not
countenance on the touchstone of judicial
propriety. Stated differently, the doctrine of
necessity makes it imperative for the authority
to decide and considerations of judicial
propriety must yield. It is often invoked in
cases of bias where there is no other authority
or Judge to decide the issue. If the doctrine of
necessity is not allowed full play in certain
unavoidable situations, it would impede the
course of justice itself and the defaulting party
would benefit there from. Take the case of a
certain taxing statute which taxes certain
perquisites allowed to Judges. If the validity of
such a provision is challenged who but the
members of the judiciary must decide it. If all
the Judges are disqualified on the plea that
striking down of such a legislation would
benefit them, a stalemate situation may
develop. In such cases the doctrine of necessity
comes into play. If the choice is between
7
allowing a biased person to act or to stifle the
action altogether, the choice must fall in favour
of the former as it is the only way to promote
decision-making. In the present case also if the
two Election Commissioners are able to reach
a unanimous decision, there is no need for the
Chief Election Commissioner to participate, if
not the doctrine of necessity may have to be
invoked.
10. In this light, appellants have to accept the decision of this Court
which is the final arbiter of any disputes in India and also the
highest court of constitutional matters. In this light, such
objections cannot be sustained.
11. Before we proceed any further we need to have a brief reference to
the scheme of RTI Act. The statement of objects and reasons
envisage a noble goal of creating a democracy which is consisting
of informed citizens and a transparent government. It also
provides for a balance between effective government, efficient
operations, expenditure of such transparent systems and
requirements of confidentiality for certain sensitive information.
It recognises that these principles are inevitable to create
friction inter se and there needs to be harmonisation of such
conflicting interests and there is further requirement to preserve
8
the supremacy of democratic ideal. The recognition of this
normative democratic ideal requires us to further expound upon
the optimum levels of accountability and transparency of efficient
operations of the government. Under Section 2(f), information is
defined as ‘any material in any form including records, documents,
memos, e-mails, opinions, advises, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any
private body which can be accessed by a public authority under
any other law for the time being in force.’
12. The purport of this section was to cover all types of information
contained in any format to be available under the ambit of the RTI
Act. The aforesaid definition is further broadened by the definition
of ‘record’ provided under Section 2(i) of the RTI Act. Right to
Information as defined under Section 2(j) of the RTI Act means the
right to information accessible under this Act which is held by or
under the control of any public authority.
13. Chapter II of the RTI Act begins with a statement under Section 3
by proclaiming that all citizens shall have right to information
9
subject to the provisions of the RTI Act. Section 4 creates an
obligation on public authorities to maintain a minimum standard
of data which would be freely available for the citizens. Further
this section also mandates proactive dissemination of data for
informing the citizens by utilizing various modes and means of
communications. Section 5 requires every public authority to
designate concerned CPIO or SPIO, as the case may be for
providing information to those who seeks the same.
14. Section 6 of the RTI Act provides for procedure required to be
followed by a person who desires to obtain information under the
RTI Act. Section 7 further provides the time frame within such
designated officers are to decide the applications filed by the
information seeker. For our purposes Section 8 deems relevant
and is accordingly extracted hereunder –
“8. Exemption from disclosure of
information.—
(1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen,
…
(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
10
position of a third party, unless the competent
authority is satisfied that larger public interest
warrants the disclosure of such information;
(e) information available to a person in his
fiduciary relationship, unless the competent
authority is satisfied that the larger public interest
warrants the disclosure of such information;
(j) information which relates to personal
information the disclosure of which has not
relationship to any public activity or interest, or
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information
Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot
be denied to the Parliament or a State Legislature
shall not be denied to any person.”
15. It may be relevant to note Section 10 of the RTI Act which deals
with severability of the exempted information. The mandate of the
section is that where a request for access to information contains
both exempted as well as non-exempted parts, if the nonexempted parts could be revealed, such parts which could be
reasonably severed and can be provided as information under the
Act.
16. Section 11 which is material for the discussion involved herein
states as under -
11
“11. Third party information.—
(1) Where a Central Public Information Officer or the
State Public Information Officer, as the case may
be, intends to disclose any information or record, or
part thereof on a request made under this Act,
which relates to or has been supplied by a third
party and has been treated as confidential by that
third party, the Central Public Information Officer or
State Public Information Officer, as the case may
be, shall, within five days from the receipt of the
request, give a written notice to such third party of
the request and of the fact that the Central Public
Information Officer or State Public Information
Officer, as the case may be, intends to disclose the
information or record, or part thereof, and invite the
third party to make a submission in writing or
orally, regarding whether the information should be
disclosed, and such submission of the third party
shall be kept in view while taking a decision about
disclosure of information:
Provided that except in the case of trade or
commercial secrets protected by law, disclosure
may be allowed if the public interest in disclosure
outweighs in importance any possible harm or
injury to the interests of such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information
Officer, as the case may be, under sub-section (1)
to a third party in respect of any information or
record or part thereof, the third party shall, within
ten days from the date of receipt of such notice, be
given the opportunity to make representation
against the proposed disclosure.
(3) Notwithstanding anything contained in section
7, the Central Public Information Officer or State
Public Information Officer, as the case may be,
shall, within forty days after receipt of the request
under section 6, if the third party has been given an
12
opportunity to make representation under
sub-section (2), make a decision as to whether or
not to disclose the information or record or part
thereof and give in writing the notice of his decision
to the third party.
(4) A notice given under sub-section (3) shall include
a statement that the third party to whom the notice
is given is entitled to prefer an appeal under section
19 against the decision.”
17. The mandate under Section 11 of the RTI Act enshrines the
principles of natural justice, wherein, the third party is provided
with an opportunity to be heard and the authority needs to
consider whether the disclosure in public interest outweighs the
possible harm in disclosure to the third party. It must be noted
that the use of term ‘confidential’ as occurring under Section 11,
subsumes commercial confidential information, other types of
confidential information and private information.
18. We may not concentrate on other procedural section provided
under the RTI Act as they do not have any bearing on the case
concerned.
19. Having observed the scheme of the RTI Act we need to understand
that right to information stems from Article 19(1)(a) of the
13
Constitution which guarantees freedom of expression.
Accordingly, this Court in State of Uttar Pradesh v. Raj Narain,
(1975) 4 SCC 428 and S.P. Gupta v. Union of India, (1981)
Supp. (1) SCC 87, held that a citizen cannot effectively exercise
his freedom of speech and expression unless he/she is informed
of the governmental activities. Our country being democratic, the
right to criticise the government can only be effectively
undertaken if accountability and transparency are maintained at
appropriate levels. In view of the same, right to information can
squarely said to be a corollary to the right to speech and
expression.
20. Firstly, the appellants have contended that the information are
not held with the Registry of the Supreme Court, rather the Chief
Justice of India is holding the aforesaid information concerning
the exchanges between Mr. Justice R. Reghupati and the then
Chief Justice of India. In this context, the term ‘held’ acquires
important position. The term ‘held’ usually connotes the power,
custody, or possession with the person. However, the mandate of
the Act requires this term to be interpreted wherein the
association between held and the authority needs to be taken into
14
consideration while providing a meaning for the aforesaid term.
At this juncture, we need to observe the case of University of New
Castle upon Tyne v. Information Commissioner and British
Union for Abolition of Vivisection, [2011] UKUT 185 AAC,
wherein the upper tribunal has held as under –
“‘Hold’ is an ordinary English word. In
our judgment it is not used in some
technical sense in the Act. We do not
consider that it is appropriate to define
its meaning by reference to concepts
such as legal possession or bailment, or
by using phrases taken from court rules
concerning the obligation to give
disclosure of documents in litigation.
Sophisticated legal analysis of its
meaning is not required or appropriate.
However, it is necessary to observe that
‘holding’ is not a purely physical
concept, and it has to be understood
with the purpose of the Act in mind.
Section 3(2)(b) illustrates this: an
authority cannot evade the
requirements of the Act by having its
information held on its behalf by some
other person who is not a public
authority. Conversely, we consider that
s.1 would not apply merely because
information is contained in a document
that happens to be physically on the
authority’s premises: there must be an
appropriate connection between the
information and the authority, so that it
can be properly said that the
information is held by the authority. For
example, an employee of the authority
15
may have his own personal information
on a document in his pocket while at
work, or in the drawer of his office desk;
that does not mean that the information
is held by the authority.”
21. From the aforesaid it can be concluded that a similar
interpretation can be provided for term ‘held’ as occurring under
Section 2(j) of the Act. Therefore, in view of the same the term
‘held’ does not include following information –
1. That is, without request or arrangement, sent to or
deposited with a public authority which does not hold itself
out as willing to receive it and which does not
subsequently use it;
2. That is accidentally left with a public authority;
3. That just passes through a public authority;
4. That ‘belongs’ to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authority’s premises.
1
Having clarified the aforesaid aspect we are of the opinion that the
nature of information in relation to the authority concerned
requires to be seen. The fact that the information sought in the
instant matter is in custody with the Chief Justice of India as he
is the administrative head of the Supreme Court, squarely require
1 Phillip Coppel, Information Rights Law and Practice (4th Edn. (2014)), Pg. 362.
16
us to hold that the concerned authority is holding the information
and accordingly the contention of the appellants does not have
any merit.
22. The appellants have argued that the information with respect to
the assets declared with the Chief Justice of India or Chief
Justices of respective High Courts are held in confidence,
fiduciary capacity; moreover, the aforesaid information is private
information of the judges which cannot be revealed under the RTI
Act.
23. The exemptions to right to information as noted above are
contained under Section 8 of the RTI Act. Before we analyse the
aforesaid provision, we need to observe basic principles,
concerning interpretation of exemption clauses. There is no doubt
it is now well settled that exemption clauses need to be construed
strictly. They need to be given appropriate meaning in terms of
the intention of the legislature [see Commissioner of Customs
(Import) v. Dilip Kumar & Ors., (2018) 9 SCC
40; Rechnungshof v. Österreichischer Rundfunk and Ors., C465/00].
17
24. At the cost of repetition we note that the exemption of right to
information for confidential information is covered under Section
8(1)(d), exemption from right to information under a fiduciary
relationship is covered under Section 8(1)(e) and the exemption
from private information is contained under Section 8(1)(j) of the
RTI Act.
25. The first contention raised by the appellants is that the aforesaid
information is confidential, therefore the same is covered under
the exemption as provided under Section 8(1)(d) of the RTI Act.
The aforesaid exemption originates from a long time of judge made
law concerning breach of confidence (which are recently termed
as misuse of private information).
26. Under the classic breach of confidence action, three requirements
were necessary for bringing an action under this head. These
conditions are clearly mentioned in the opinion of Megarry, J.,
in Coco vs. Clark, [1968] FSR 415; wherein, the conditions
are first, the information itself, i.e. ‘information is required to have
necessary quality about confidence of the same’; second, ‘the
information must have been imparted in circumstances importing
18
an obligation of confidence’; third, ‘there must be unauthorized
use of information which will be detriment to the party
communicating’.
27. Breach of confidence was not an absolute right and public
interest, incorporated from long time under the common law
jurisprudence. This defence of public interest can be traced to
initial case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113,
wherein it was held that there is no confidence as to disclosure in
iniquity. This iniquity was later expanded by Lord Denning
in Fraser v. Evans, [1969] 1 QB 349, wherein the iniquity was
referred as merely as an example of ‘justice cause or excuse’ for a
breach of confidence. This iniquity was widened further in Initial
Service v. Putterill, [1968] 1 QB 396, wherein it was held that
iniquity covers any misconduct of nature that it ought to be
disclosed to others in the public interest. In this line of precedents
Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All ER 24,
noted that iniquity would cover ‘any matter, carried out or
contemplated, in breach of country’s security or in breach of law
including statutory duty, fraud or otherwise destructive of the
19
country or its people and doubtless other misdeeds of similar
gravity.’
28. Eventually the language of iniquity was shaken and discourse on
public interest took over as a defence for breach of confidence [See
Lion Laboratories v. Evans, [1985] QB 526]. It would be
necessary to quote Lord Goff in Her Majesty’s Attorney General
v. The Observer Ltd. & Ors., [1991] AC 109, wherein he noted
that “it is now clear that the principle [of iniquity] extends to
matters of which disclosure is required in public interest”.
29. The aforesaid expansion from the rule of iniquity to public interest
defence has not caught the attention of Australian courts wherein,
Justice Gummow, in Corrs Pavey Whiting and Byrne v.
Collector of Customs, (1987) 14 FCR 434 and Smith Kline and
French Laboratories [Australia] Ltd. v. Department of
Community Services and Health, (1990) 22 FCR 73, reasoned
that public interest was “picturesque if somewhat imprecise” and
“not so much a rule of law as an invitation to judicial idiosyncrasy
by deciding each case on ad-hoc basis as to whether, on the facts
20
overall, it is better to respect or to override the obligation of
confidence”.
30. Even in England there has been a shift of reasoning from an
absolute public interest defence to balancing of public interest. At
this point we may observe the case of Woodward v.
Hutchins,[1977] 1 WLR 760, wherein it was observed “It is a
question of balancing the public interest in maintaining the
confidence against the public interest in knowing the truth”.
31. Section 8(1)(d) of the RTI Act has limited the action of defence of
confidentiality to only commercial information, intellectual
property rights and those which are concerned with maintaining
the competitive superiority. Therefore, aforesaid section is only
relatable to breach of confidence of commercial information as
classically developed. Although there are examples wherein
commercial confidentiality are also expanded to other types of
breach of confidential information, however, under Section 8(1)(d)
does not take into its fold such breach of confidential information
actions.
21
32. Coming to other types of confidentiality, we need to note that the
confidentiality cannot be only restricted to commercial
confidentiality, rather needs to extend to other types of
confidentialities as well. [Duchess of Argyll v. Duke of Argyll,
1967 Ch 302] Under the RTI Scheme such other confidential
information are taken care under Section 11 of the RTI Act. The
language and purport under Section 11 extends to all types of
confidentialities, inclusive of both commercial and other types of
confidentialities. The purport of this Section is that an
opportunity should be provided to third party, who treats the
information as confidential. The ‘test of balancing public interest’
needs to be applied in cases of confidential information other than
commercial information as well, under Section 11 of the RTI Act,
as discussed. In this light, the concerned third parties need to be
heard and thereafter the authorities are required to pass order as
indicated herein.
33. Further, the appellants have contended that the information
sought herein relating to the third party are covered under
exemptions as provided in Section 8(1)(j) of the RTI Act i.e. private
information.
22
34. The development from breach of confidence to misuse of private
information/privacy claim was gradual. There was shift from the
focus on relationship to whether the information itself had a
requisite confidential quality [refer to Her Majesty’s Attorney
General case (supra)]. This shift in focus resulted in the evolution
of misuse of private information or privacy claim, from its
predecessor of confidentiality. In the case of Campbell v. M.G.N.,
[2004] UKHL 22, wherein the breach of misuse of private
information evolved as cause of action. The modification which
happened in the new cause of action is that the initial confidential
relationship was not material, which was earlier required under
the breach of confidence action. The use of term confidential
information was replaced with more natural descriptive term
information in private. The change from breach of confidence
which was an action of equity, to misuse of private information,
which was a tort provided more structural definitiveness and
reduced the discretionary aspect.
35. The purport of the Section 8(1)(j) of the RTI Act is to balance
privacy with public interest. Under the provision a two steps test
23
could be identified wherein the first step was: (i) whether there is
a reasonable expectation of privacy, and (ii) whether on an
ultimate balancing analysis, does privacy give way to freedom of
expression? We should acknowledge that these two tests are very
difficult to be kept separate analytically.
FIRST STEP
36. The first step for the adjudicating authority is to ascertain
whether the information is private and whether the information
relating the concerned party has a reasonable expectation of
privacy. In Murray v. Express Newspaper plc, [2009] Ch 481, it
was held as under
“As we see it, the question whether there is a
reasonable expectation of privacy is a broad one,
which takes account of all the circumstances of the
case. They include the attributes of the claimant,
the nature of the activity in which the claimant was
engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence
of consent and whether it was known or could be
inferred, the effect on the claimant and the
circumstances in which and the purposes for which
the information came into the hands of the
publisher.”
24
37. From the aforesaid discussion we can note that there are certain
factors which needs to be considered before concluding whether
there was a reasonable expectation of privacy of the person
concerned. These non-exhaustive factors are;
1. The nature of information.
2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the information
was found.
6. Attributes of claimants such as being a public figure, a
minor etc and their reputation.
7. Absence of consent.
8. Circumstances and purposes for which the information
came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion’s nature and purpose.
These non-exhaustive factors are to be considered in order to
come to a conclusion whether the information sought is private or
does the persons has a reasonable expectations of privacy. In
certain cases we may conclude that there could be certain
information which are inherently private and are presumptively
25
protected under the privacy rights. These informations include
gender, age and sexual preferences etc. These instances need to
be kept in mind while assessing the first requirement under the
aforesaid test.
38. If the information is strictly covered under the aforesaid
formulation, then the person is exempted from the right to
information unless ‘the public interest test’ requires to trump the
same.
SECOND STEP
39. Having ascertained whether the information is private or not, a
judge is required to adopt a balancing test to note whether the
public interest justifies discloser of such information under
Section 8(1)(j) of the RTI Act. The term ‘larger public interest’
needs to be understood in light of the above discussion which
points that a ‘balancing test’ needs to be incorporated to see the
appropriateness of discloser. There are certain basic principles
which we need to keep in mind while balancing the rights which
are relevant herein.
26
40. That the right to information and right to privacy are at an equal
footing. There is no requirement to take an a priori view that one
right trumps other. Although there are American cases, which
have taken the view that the freedom of speech and expression
trumps all other rights in every case. However, in India we cannot
accord any such priority to the rights.
41. The contextual balancing involves ‘proportionality test’. [See K
S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is
to see whether the release of information would be necessary,
depends on the information seeker showing the ‘pressing social
need’ or ‘compelling requirement for upholding the democratic
values’. We can easily conclude that the exemption of public
interest as occurring under Section 8(1)(j) requires a balancing
test to be adopted. We need to distinguish two separate concepts
i.e. “interest of the public” and “something in the public interest.”
Therefore, the material distinction between the aforesaid concepts
concern those matters which affect political, moral and material
welfare of the public need to be distinguished from those for
public entertainment, curiosity or amusement. Under Section
8(1)(j) of the RTI Act requires us to hold that only the former is an
27
exception to the exemption. Although we must note that the
majority opinion in K S Puttaswamy (supra) has held that the
data privacy is part of the right to privacy, however, we need to
note that the concept of data protection is still developing
[refer Google Spain v. AEPD, C/131/12; Bavarian
Lager v Commission, [2007] ECR II-4523]. As we are not
concerned with the aforesaid aspects, we need not indulge any
more than to state that there is an urgent requirement for
integrating the principles of data protection into the right to
information jurisprudence.
42. Coming to the aspect of transparency, judicial independence and
the RTI Act, we need to note that there needs to be a balance
between the three equally important concepts. The whole bulwark
of preserving our Constitution, is trusted upon judiciary, when
other branches have not been able to do so. As a shield, the
judicial independence is the basis with which judiciary has
maintained its trust reposed by the citizens. In light of the same,
the judiciary needs to be protected from attempts to breach its
independence. Such interference requires calibration of
28
appropriate amount of transparency in consonance with judicial
independence.
43. It must be kept in the mind that the transparency cannot be
allowed to run to its absolute, considering the fact that efficiency
is equally important principle to be taken into fold. We may note
that right to information should not be allowed to be used as a
tool of surveillance to scuttle effective functioning of judiciary.
While applying the second step the concerned authority needs to
balance these considerations as well.
44. In line with the aforesaid discussion, we need to note that
following non-exhaustive considerations needs to be considered
while assessing the ‘public interest’ under Section 8 of the RTI
Acta. Nature and content of the information
b. Consequences of non-disclosure; dangers and benefits
to public
c. Type of confidential obligation.
d. Beliefs of the confidant; reasonable suspicion
e. Party to whom information is disclosed
29
f. Manner in which information acquired
g. Public and private interests
h.Freedom of expression and proportionality.
45. Having ascertained the test which is required to be applied while
considering the exemption under Section 8(1)(j) of the RTI Act, I
may note that there is no requirement to elaborate on the factual
nuances of the cases presented before us. Accordingly, I concur
with the conclusions reached by the majority.
..........................J.
(N.V. Ramana)
NEW DELHI;
November 13, 2019.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 10044 of 2010
Central Public Information Officer, …Appellant
Supreme Court of India
Versus
Subhash Chandra Agarwal …Respondent
WITH
Civil Appeal No. 10045 of 2010
AND WITH
Civil Appeal No. 2683 of 2010
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
INDEX
A Introduction
B Reference to the Constitution Bench
C Submissions of Counsel
D Relevant statutory provisions
E S P Gupta, candour and class immunity
F Judicial independence
F.1 Judicial accountability
G Fiduciary relationship
H The right to privacy and the right to know
I Conclusion
J Directions
PART A
3
A Introduction
The backdrop
1. This batch of three civil appeals1
raises questions of constitutional
importance bearing on the right to know, the right to privacy and the
transparency, accountability and independence of the judiciary.
2. In the first of the appeals2
(―the appointments case‖), the Central Public
Information Officer3
of the Supreme Court of India challenges an order dated 24
November 2009 of the Central Information Commission4
. The order directs the
CPIO to provide information sought by the respondent in application under the
Right to Information Act 20055
. The respondent, in an application dated 23
January 2009 sought copies of the correspondence exchanged between
constitutional authorities together with file notings, relating to the appointment of
Justice H L Dattu, Justice A K Ganguly and Justice R M Lodha (superseding the
seniority of Justice A P Shah, Justice A K Patnaik and Justice V K Gupta). The
appellant declined to provide the information sought in the application on the
ground that the Registry of the Supreme Court does not deal with matters
pertaining to the appointment of judges, and appointments of judges to the higher
judiciary are made by the President of India, according to procedure prescribed
by law. The first appellate authority rejected the appeal on the ground that the
information sought by the respondent was not covered within the ambit of
1 Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/2010
2 Civil Appeal no 10044 of 2010
3
―CPIO‖
4
―CIC‖
5
―RTI Act‖
PART A
4
Section 2 (f)6
and (j)7
of the RTI Act. The respondent preferred a second appeal
before the CIC. On 24 November 2009, the CIC directed the appellant to provide
the information sought by the respondent. The appellant has moved this Court
under Article 136 of the Constitution challenging the decision of the CIC ordering
disclosure.
3. In the second of the three appeals8
(―the assets case‖), the appellant
challenges a judgment dated 12 January, 2010 of a Full Bench of the Delhi High
Court upholding the orders of the Single Judge9
dated 2 September 2009 and the
CIC dated 6 January 200910 directing the disclosure of information. On 10
November 2007, the respondent filed an application seeking a copy of the
resolution dated 7 May 1997 of the judges of the Supreme Court requiring every
sitting judge, and all future judges upon assuming office, to make a declaration of
assets in the form of real estate or investments held in their names or the names
of their spouses or any person dependant on them to the Chief Justice of the
Court within a reasonable time. The respondent also requested ―information on
any such declaration of assets etc to respective Chief Justices in State‖. While
the appellant provided a copy of the resolution dated 7 May 1997, the CPIO
declined (by an order dated 30 November 2007) to provide information
concerning the declaration of assets by judges of the Supreme Court and the
6
Section 2(f) – ―Information‖ means any material in any form, including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any private body which can be accessed by a
public authority under any other law for the time being in force.
7
Section 2(j) – ―Right to Information‖ means the right to information accessible under this Act which is held by or
under the control of any public authority and includes the right to— (i) inspection of work, documents, records; (ii)
taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv)
obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or
through printouts where such information is stored in a computer or in any other device.
8 Civil Appeal no 2683 of 2010
9
The CPIO, Supreme Court of India v Subhash Chandra Agarwal & Anr, Writ Petition (C) 288/2009
10 Appeal no CIC/WB/A/2008/00426
PART A
5
High Court on the ground that the Registry of the Supreme Court did not hold it.
The information pertaining to the declaration of assets by High Court judges, the
appellant stated, were in the possession of the Chief Justices of the High Courts.
The first appellate authority remanded the matter back to the appellant for
transfer of the RTI application to the High Courts under Section 6(3)11. The
appellant declined to transfer the RTI application to the CPIOs of the High Courts
on the ground that when the respondent filed the RTI application, he was aware
that the information with respect to the declaration of assets by the judges of the
High Court was available with the High Courts which formed distinct public
authorities. On 6 January 2009, the CIC held in the second appeal that the
information concerning the judges of the Supreme Court was available with its
Registry and that the appellant represented the Supreme Court as a public
authority. Therefore, the appellant was held to be obliged to provide the
information under the RTI Act unless, the disclosure of information was
exempted by law. The CIC held that the information sought by the respondent
was not covered under the exemptions in clauses (e) or (j) of Section 8(1)12 and
directed the appellant to provide the information sought by the respondent. The
11 Section 6 (3) - Where an application is made to a public authority requesting for an
information,—
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the
functions of another public authority,
the public authority, to which such application is made, shall transfer the application
or such part of it as may be appropriate to that other public authority and inform the
applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but
in no case later than five days from the date of receipt of the application.
12 Section 8 - Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that
the larger public interest warrants the disclosure of such information;
(j) information which relates to personal information the disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is
satisfied that the larger public interest justifies the disclosure of such information.
PART A
6
appellant instituted a writ petition13 before the Delhi High Court. On 2 September
2009, a Single Judge of the High Court dismissed the petition holding, inter alia,
that the declaration of assets furnished by the judges of the Supreme Court to
the Chief Justice of India and its contents constituted ―information‖, subject to the
provisions of the RTI Act. The Single Judge held that: (i) judges of the Supreme
Court hold an independent office; (ii) there exist no hierarchies in judicial
functions; (iii) the Chief Justice of India does not hold such ―information‖ in a
fiduciary capacity; and (iv) the information sought by the respondent was not
exempt under Section 8 (1)(e). In a Letters Patent Appeal, the Full Bench of the
Delhi High Court upheld the decision of the Single Judge. The appellant has
challenged the decision of the Full Bench.
4. In the third civil appeal (―the undue influence case‖), the appellant has
challenged the order of the CIC dated 24 November 200914, by which the
appellant was directed to provide information sought by the respondent in his RTI
application. On 6 July, 2009, the respondent filed an RTI application on the basis
of a newspaper report seeking the complete correspondence exchanged with the
Chief Justice of India in regards to a Union Minister having allegedly approached
Justice R Raghupati of the Madras High Court, through a lawyer to influence a
judicial decision. The application sought a disclosure of the name of the Union
Minister and the lawyer, and of the steps taken against them for approaching the
judge of the Madras High Court for influencing the judicial decision. On 4 August
2009, the appellant rejected the request on the ground that no such information
was available with the Registry of the Supreme Court. The first appellate
13 Writ Petition (C) 288/2009
14 Appeal no CICWB/A/2009/000859
PART B
7
authority rejected the appeal. The second appeal before the CIC led to a
direction on 24 November 2009, to provide the information sought, except
information sought in questions 7 and 8 on recourse taken to the in-house
procedure. The appellant approached this Court challenging the decision of the
CIC.
B Reference to the Constitution Bench
5. On 26 November 2010, a two judge Bench of this Court directed the
Registry to place the present batch of appeals before the Chief Justice of India
for constituting a Bench of appropriate strength and framed the following
substantial questions of law:
―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(1)(j) of the Right to Information Act?‖
6. On 17 August 2016, a three judge Bench referred these civil appeals to a
Constitution Bench for adjudication.
PART C
8
C Submissions of Counsel
7. Mr K K Venugopal, Attorney General for India appearing on behalf of the
appellant made the following submissions:
(i) The present case is not covered by the decision of this Court in S P Gupta
v President of India15, which is based on distinguishable facts. The
decision in S P Gupta does not consider the relationship between the
restrictions on the right to know and the restrictions existing under Article
19 (2) of the Constitution. Once Article 19(1)(a) is attracted, the restrictions
under Article 19 (2) become applicable. The RTI Act came into force in
2005 and lists out the rights and restrictions on the right to information.
The provisions of the RTI Act must be construed in a manner which makes
it consistent with constitutional values including the independence of the
judiciary;
(ii) Information of which disclosure is sought under Section 2 (f) of the RTI
Act, includes only that information which is in a physical form and which is
already in existence and accessible to a public authority under law. The
judge can decide to disclose assets voluntarily and place relevant
information in the public domain. A third party cannot seek information on
the disclosure of assets of a judge which does not exist in the public
domain;
(iii) The decision of this court in S P Gupta is based on a factually distinct
situation where disclosure of correspondence regarding the non-
15 1981 Supp SCC 87
PART C
9
appointment of an additional judge was ordered on the ground that the
judge was a party to the proceeding before the Court. Further, the decision
established a restriction on the disclosure of information to third parties;
(iv) The correspondence and file notings with respect to recommendations for
appointments of judges to the higher judiciary falls under a ―class of
information‖ that is highly confidential. Disclosure will result in damage to
the institution and adversely affect the independence of the judiciary;
(v) The process of concurrence by the members of the Collegium requires
free and frank discussion on the character, integrity and competence of
prospective appointee judges in order to ensure that the most suitable
judges are appointed. It is in the public interest to uphold candour in
matters of appointment and transfer of judges and to avoid unnecessary
litigative debate by third parties. Disclosure of such information would
undermine the independence of the judiciary and adversely impact the
candour or uninhibited expression of views by the Collegium.
Independence of judiciary is not limited to independence from executive
influence. It is multi-dimensional and also independence from other
pressure and prejudices including fearlessness from power centres,
economic or political, and freedom from prejudices acquired and nourished
by the class to which judges belong (C Ravichandran Iyer v Justice A M
Bhattacharjee16);
16 (1995) 5 SCC 457
PART C
10
(vi) Information sought regarding the assets and liabilities of judges and
correspondence and file notings relating to character, conduct, integrity
and competence of a judge includes certain ―personal information‖ and is
hence, exempt under Section 8 (1)(j) of the RTI Act;
(vii) The correspondence and file notings that form the basis of the decision
under Article 124 (2) of the Constitution includes information received from
third parties in a fiduciary capacity. The information is held by the Chief
Justice of India as a result of disclosure by third parties who give the
information in confidence, complete good faith, integrity and fidelity.
Therefore, disclosure of such information is exempt under Section 8 (1)(e);
(viii) The disclosure of correspondence relating to conduct, character, integrity
and competence of a judge may cause irreparable loss to their reputation,
violate their right to privacy and adversely affect their functioning. There is
also no remedy available to a judge for the comments made in the
appointment process as the Chief Justice of India along with other judges
are protected from civil/criminal proceedings under Section 3(1) of the
Judges (Protection) Act 1985. While regulating the disclosure of
information, the Supreme Court is required to balance the right of an
individual to reputation and privacy under Article 21 and the right to
information of third-party parties under Article 19(1)(a). The doctrine of
proportionality has to be applied to resolve the conflict between the two
rights and the right to reputation and privacy of a judge should prevail over
the right to information of third parties; and
PART C
11
(ix) Legislation and rules with respect to disclosure of assets and liabilities of
public servants do not provide for placing such information in the public
domain or granting third party access to such information. The judiciary is
seeking self-regulation by providing a voluntary disclosure of assets and
liabilities and it is up to the Supreme Court to disclose such information.
No third party can seek information which is not in the public domain.
8. On the contrary, Mr Prashant Bhushan, learned Counsel appearing on
behalf of the respondent made the following submissions:
(i) The observations made by the seven judge Bench of this Court in S P
Gupta are binding on the present Bench. Even though certain aspects of
the judgment have been overruled in Supreme Court Advocates-onRecord Assn v Union of India17, the decision of this Court vis-à-vis the
disclosure of correspondence in respect of the appointment process
remains unaffected. If S P Gupta has to be overruled, this could be only
done by a Bench comprising of more than seven judges;
(ii) This Court has interpreted Article 19(1)(a) to include the right to
information under the ambit of free speech and expression even before the
RTI Act was enacted by the Parliament. Disclosure of the information
sought in the present batch of cases is an essential part of the freedom of
speech and expression guaranteed in Article 19(1)(a) and involves a
significant public interest;
(iii) Free flow of information to citizens is necessary, particularly in matters
which form part of public administration for ensuring good governance and
17 (1993) 4 SCC 441
PART C
12
transparency. The fundamental right of free speech and expression
includes every citizen‘s right to know about assets, criminal antecedents
and educational backgrounds of candidates contesting for public office. To
cover public acts with a veil of secrecy is not in the interest of the public
and may lead to oppression and abuse by, and distrust of, public
functionaries. The lack of transparency, accountability and objectivity in
the collegium system does not enhance the credibility of the institution.
Disclosure of the information sought, on the other hand, would promote
transparency and prevent undue influence over the judiciary;
(iv) The claim of class privilege or class immunity to the correspondence
between the Chief Justice of India and the Law Minister was rejected in S
P Gupta. After the enactment of the RTI Act, information otherwise held by
a public authority cannot be excluded from disclosure unless it falls under
the exemptions laid down in Section 8 or relates to an institution excluded
under Section 2418 of the RTI Act. When information regarding a judge is
18 Section 24 - Act not to apply to certain organisations
(1)Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second
Schedule, being organisations established by the Central Government or any information furnished by such
organisations to that Government: Provided that the information pertaining to the allegations of corruption and
human rights violations shall not be excluded under this sub-section: Provided further that in the case of
information sought for is in respect of allegations of violation of human rights, the information shall only be
provided after the approval of the Central Information Commission, and notwithstanding anything contained in
section 7, such information shall be provided within forty-five days from the date of the receipt of request.
(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein
any other intelligence or security organisation established by that Government or omitting therefrom any
organisation already specified therein and on the publication of such notification, such organisation shall be
deemed to be included in or, as the case may be, omitted from the Schedule.
(3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.
(4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations
established by the State Government, as that Government may, from time to time, by notification in the Official
Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights
violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations of violation of human rights,
the information shall only be provided after the approval of the State Information Commission and,
notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the
date of the receipt of request. (5) Every notification issued under sub-section (4) shall be laid before the State
Legislature.
PART C
13
provided to the Chief Justice of India, it constitutes information held by a
public authority and thus, would be amenable to the provisions of the RTI
Act;
(v) In S P Gupta, the argument that disclosure of correspondence between
constitutional functionaries in relation to the appointment process of judges
would preclude the free and frank expression of opinions was rejected.
During the drafting of the Right to Information Bill, the argument that
disclosure will deter consultees from expressing themselves freely and
fairly and that the dignity and reputation of people would be tarnished was
rejected. The argument of candour does not fall under any of the
exemptions under the RTI Act and therefore, this disclosure of information
cannot be excluded from the purview of the RTI Act;
(vi) The disclosure of assets of judges is warranted in the larger public
interest. It cannot be argued that information regarding the assets of
judges, who are public functionaries, is personal information having no
relationship with any public activity or interest. Hence, the information
sought is not exempt under Section 8 (1)(j);
(vii) There exists no fiduciary relationship between those who are vested with
the responsibility of determining whether an appointee is suitable for
elevation as a judge and the appointee herself. The duty of a public
servant is to act in the interest of the public and not in the interest of
another public servant. The entire process of consultation and making
information available to the members of the collegium regarding
credentials and the suitability of the appointee is a matter of public interest.
PART D
14
Further, when judges act in their official capacity in compliance with the
1997 resolution and disclose their assets, it cannot be said that the Chief
Justice of India acts in a fiduciary capacity for the judges. The Chief
Justice of India and other members of the collegium discharge official
duties vested in them by the law and the information sought is not exempt
under Section 8(1)(e). Even if some part of the information is personal,
that part can be severed after due examination on a case to case basis
under Section 10; and
(viii) The argument that the independence of the judiciary will be affected
prejudicially due to the disclosure of information is misconceived. The
independence of the judiciary means independence from the legislature
and the executive and not from the public. It is a constitutional and legal
right of the respondent to access information and identify the persons who
have attempted to compromise the functioning of the judiciary. Disclosure
of such information is essential for the citizenry to maintain their faith in the
independence of the judiciary.
9. The rival submissions fall for our consideration.
D Relevant statutory provisions
10. For the purpose of the present dispute it is necessary to analyse the
relevant provisions contained in the statutory framework of the RTI Act. Sections
2 and 3 read:
―2. Definitions. – In this Act, unless the context otherwise
requires, -
PART D
15
…
(e) ―competent authority‖ means –
(i) the Speaker in the case of the House of People or the
Legislative Assembly of a State or a Union territory having
such Assembly and the Chairman in the case of the
Council of States of a Legislative Council of States;
(ii) the Chief Justice of India in the case of the Supreme
Court;
(iii) the Chief Justices of the High Court in the case of a
High Court;
(iv) the President or the Governor, as the case may be, in
the case of other authorities established or constituted by
or under the Constitution;
(v) the administrator appointed under article 239 of the
Constitution;
(f) ―information‖ means any material in any form, including
records, documents, memos, e-mails, opinions, advices,
press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic
form and information relating to any private body which can
be accessed by a public authority under any law for the time
being in force.
…
(h) ―public authority‖ means any authority or body or
institution of self-government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially
financed,
Directly or indirectly by finds provided by the appropriate
Government;
…
(j) ―right to information‖ means the right to information
accessible under the Act which is held by or under the control
of any public authority and includes the rights to –
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of
documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other
device;
…
3. Right to information. – Subject to the provisions of this Act,
all citizens shall have the right to information.
PART D
16
11. Both the terms ―public authority‖ and ―information‖ have been broadly
defined. Section 2(j) which defines the ―right to information‖ stipulates that the
information accessible under the RTI Act is held by or under the control of any
―public authority‖, which is defined in Section 2(h) of the RTI Act. Section 3 of the
Act confers on all citizens the substantive right to seek information covered within
the ambit of the Act, subject to its provisions. The remaining scheme of the RTI
Act operationalises the substantive right conferred by Section 3. Section 4
imposes a statutory duty on public authorities to create and maintain a record of
the activities stipulated therein to ensure that these records are available to
applicants. Section 6 empowers an individual to file a request with the relevant
Central Public Information Officer (―CPIO‖) or State Public Information Officer
(―SPIO‖) or their corresponding Assistant Officers (collectively hereafter
―Information Officer‖). Section 7 empowers the Information Officer to either
provide the information sought or reject the application for reasons set out in
Section 8 and 9.
12. For an authority to be covered under the RTI Act, it must be a ―public
authority‖ as defined under Section 2(h) of the Act. ―Public authority‖ is defined
as any authority or body or institution or self-government which falls within the
ambit of any of the enumerated provisions in that sub-section. The Supreme
Court of India is established by virtue of Article 124(1) of the Constitution of India.
Similarly, Article 214 of the Constitution stipulates that there shall be a High
Court for each state. In terms of Section 2(h)(a), a body or an institution which is
established or constituted by or under the Constitution would be a public
authority. But virtue of being established by the Constitution, the Supreme Court
PART D
17
and the High Courts would fall within the ambit of ―public authority‖ in Section
2(h) of the Act.
13. Section 2(e)(ii) expressly stipulates that the competent authority means
the Chief Justice of India in the case of the Supreme Court and Section 2(e)(iii)
stipulates that the competent authority in the case of a high Court is the Chief
Justice of that Court. Significantly, Article 124 of the Constitution of India
stipulates that there shall be a Supreme Court of India consisting of a Chief
Justice of India and other judges. The office of the Chief Justice of India is not
distinct from the Supreme Court of India. The Supreme Court is constituted by
virtue of the Constitution and consists of judges, of which the Chief Justice is the
head. This however, does not mean that the Supreme Court and the Chief
Justice are two separate ‗public authorities‘ within the RTI Act.
14. The term information under Section 2(f) has been defined broadly to
include ―any material in any form‖. The word ‗including‘ denotes the intention of
the Parliament to provide a non-exhaustive list of materials that fall within the
ambit of the sub-clause. The sub-clause includes information relating to any
private body ―which can be accessed by a public authority under any law for the
time being in force‖. The import of this phrase is that information relating to a
third party is included only where the requisite pre-conditions of any law in force
to access such information is satisfied. The right sought to be exercised and
information asked for should fall within the scope of ‗information‘ and ‗right to
information‘ as defined under the Act. The information sought must be in
existence and must be held or under the control of the public authority.
PART D
18
15. Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything
contained in this Act‖. The import of this phrase is that clause (1) of Section 8
carves out an exception to the general obligation to disclose under the RTI Act.
Where the conditions set out in any of the sub-clauses to clause (1) of Section 8
are satisfied, the Information Officer is under no obligation to provide information
to the applicant. The scope of the exception and its applicability to the present
dispute shall be discussed in the course of the judgment.
16. Section 2219 contains a non-obstance clause and stipulates that the RTI
Act has an overriding effect over laws. The import of this provision is to impart
priority to the salient objectives of the Act and ensure that where information is
held by or is under the control of a public authority, such information must be
furnished to the applicant notwithstanding any prohibition in any other law in
force at that time. It is pertinent to state that Section 22 does not obviate legal
restrictions that apply to a public authority to the access to any information which
is clarified by the use of the phrase ―which can be accessed by a public authority
under any law for the time being in force‖ in Section 2(f).
19 22. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time
being in force or in any instrument having effect by virtue of any law other than this Act.
PART E
19
E S P Gupta, candour and class immunity
17. Relevant to the present controversy, is the question whether the decision
of this Court in S P Gupta v Union of India20 is a binding precedent on the
issues raised. Mr Prashant Bhushan, learned counsel appearing on behalf of the
respondent contended that the points for determination that arise in the present
case have been answered by the seven judge Bench in S P Gupta where this
Court ordered the disclosure of the correspondence between the Chief Justice of
India, the Chief Justice of Delhi and the Law Minister which concerned the nonappointment of an additional judge for a full term of two years. Counsel
contended that this Court held that the public interest in disclosure outweighed
the potential harm resulting from disclosure and that a free and open democratic
society mandated the disclosure of correspondences concerning the appointment
process of judges.
18. Opposing the submission, Mr K K Venugopal, learned Attorney General for
India appearing on behalf of the appellant, urged that the decision of this Court in
S P Gupta was based on a factually distinguishable situation. The Court in that
case was concerned with the disclosure of the correspondence concerning the
appointment process for the purpose of adjudicating the case before it. Moreover
the judge whose appointment was in issue was a party to the case. The court did
not address the potential harm to public interest by the disclosure of
correspondence in all circumstances. The Attorney General contended that the
20 (1982) 2 SCR 365
PART E
20
decision assessed the right to know in a passing observation and contrary to the
submission of the respondent, it established a restriction on the disclosure of
personal information.
19. In S P Gupta, this Court was concerned with two issues: (i) the initial
appointment of additional judges and their reappointment on the expiry of their
terms; and (ii) the transfer of High Court judges and the Chief Justices of the High
Courts. Among the issues involved in the proceedings, one concerned the
disclosure of the correspondence exchanged between the Chief Justice of India,
the Chief Justice of Delhi and the Law Minister concerning the decision to grant
an extension in the tenure to Justice O N Vohra and Justice S N Kumar as
additional judges of the Delhi High Court by a period of three months. It was
contended that Justice O N Vohra should have been appointed as a permanent
judge and that Justice S N Kumar should have been reappointed as an additional
judge for the complete tenure of two years upon the expiry of their initial tenure.
During the course of the proceedings, their terms expired and a decision was
communicated by the Central Government to not renew their terms. An
application was filed to contend that the withholding of the re-appointment was
mala fide and unconstitutional. Both former judges were impleaded as
respondents. While Justice O N Vohra did not appear in the proceedings, Justice
S N Kumar appeared through counsel and contended that the decision of the
Central Government to not reappoint him for a complete term of two years was
vitiated since it was reached without full and effective consultation with the Chief
Justice of India.
PART E
21
20. The government resisted the disclosure of the correspondence and urged
that as it formed a part of the advice tendered by the Council of Ministers to the
President of India, the court was precluded from ordering disclosure by virtue of
Article 74(2)21 of the Constitution. It was also contended that the correspondence
related to the ‗affairs of the state‘ and its disclosure was precluded by virtue of
Section 12322 of the Indian Evidence Act 1872.
21. An interim order dated 16 October 1981 ordered the disclosure of the
correspondence to the Court. In its final judgment dated 30 December 1981, the
Court, by a majority, rejected the contention of the Central Government and
upheld the disclosure of the correspondence exchanged between the Chief
Justice of India, the Chief Justice of Delhi and the Law Minister concerning the
decision to not continue Justice S N Kumar as an additional Judge of the Delhi
High Court for another full term.
22. Mr K K Venugopal, learned Attorney General for the Union of India sought
to distinguish the decision in S P Gupta by contending that the order of
disclosure was made in the specific context of Sections 123 and 16223 of the
Indian Evidence Act and in respect of judicial proceedings to which Justice S N
Kumar was a party. Hence he urged that the decision does not establish the duty
to disclose the correspondence in all circumstances. Justice S N Kumar had
21 ―The question whether any, and if so what, advice was tendered by Ministers to the President shall not be
inquired into in any court.‖
22 ―123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the officer at the head of
the department concerned, who shall give or withhold such permission as he thinks fit.‖
23 ―162. Production of documents.—A witness summoned to produce a document shall, if it is in his possession
or power, bring it to court, notwithstanding any objection which there may be to its production or to its
admissibility. The validity of any such objection shall be decided on by the court.
The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to
enable it to determine on its admissibility….‖
PART E
22
actively participated in the proceedings before the Court and information
regarding his non-appointment was sought during the course of the proceedings
to adjudicate upon the contention that there was no effective consultation
between the Central Government and the Chief Justice of India. The balancing of
interests in that case was between the public harm resulting from disclosure and
the public interest in the administration of justice (by securing complete justice for
the litigant before the court) which, it is urged, is materially different from the
present case.
23. In S P Gupta, this Court, by an interim order directed the disclosure of the
file notings only in respect of the non-renewal of the term of Justice S N Kumar.
Justice O N Vohra had chosen to not appear in or participate in the proceedings
before the court. As no relief was sought by the latter before the Court, the Court
held that the correspondence pertaining to him was not relevant to the
controversy. Consequently, the Union of India was not required to disclose it.
Justice PN Bhagwati (as he then was) noted the comparably distinct role of
Justice S N Kumar in the proceedings in the following terms:
―58. That takes us to the case of S.N. Kumar which stands on
a totally different footing, because S.N. Kumar has appeared
in the writ petition, filed an affidavit supporting the writ petition
and contested, bitterly and vehemently, the decision of the
Central Government not to continue him as an Additional
Judge for a further term. Since S.N. Kumar has claimed relief
from the Court in regard to his continuance as an Additional
Judge, an issue is squarely joined between the petitioners
and S.N. Kumar on the one hand and the Union of India on
the other which requires to be determined for the purpose of
deciding whether relief as claimed in the writ petition can be
granted to S.N. Kumar.‖
PART E
23
24. In its final judgment, the Court first rejected the contention that the
correspondence formed part of the advice tendered to the President by the
Council of Ministers. The Court noted that while the advice tendered by the
Council of Ministers to the President is information protected under Article 74(2),
the principal question was whether the correspondence between the Chief
Justice of India, Chief Justice of the Delhi High Court and the Law Minister
formed part of the advice tendered by the Council of Ministers to the President so
as to preclude its disclosure by virtue of Article 74(2). The Court rejected this
contention and held that any advice tendered by the Council of Ministers would
be based on the views expressed by the two Chief Justices and their views would
not form part of the advice tendered. In this view, the material on the basis of
which the Council of Ministers formed a view and subsequently tendered the
same to the President would not constitute advice protected under Article 74(2).
Justice Bhagwati held:
―61…The advice is given by the Council of
Ministers after consultation with the Chief Justice of the High
Court and the Chief Justice of India. The two Chief Justices
are consulted on ―full and identical facts‖ and their views are
obtained and it is after considering those views that the
Council of Ministers arrives at its decision and tenders its
advice to the President. The views expressed by the two
Chief Justices precede the formation of the advice and merely
because they are referred to in the advice which is ultimately
tendered by the Council of Ministers, they do not necessarily
become part of the advice. What is protected against
disclosure under clause (2) or Article 74 is only the advice
tendered by the Council of Ministers…But the material on
which the reasoning of the Council of Ministers is based and
the advice is given cannot be said to form part of the advice.‖
25. The Court then proceeded to the claim against disclosure under Section
123 of the Indian Evidence Act. It held that where protection from disclosure is
PART E
24
sought under Section 123 on the ground that the correspondence relates to the
affairs of the state, the court, by virtue of Section 162, is called upon to carry out
a balancing task between ―the detriment to the public interest on the
administrative or executive side which would result from the disclosure of the
document against the detriment to the public interest on the judicial side which
would result from non-disclosure of the document though relevant to the
proceeding‖. It held that the court balances the competing aspects of public
interest and decides which should prevail in the particular case before it. A claim
for non-disclosure, in this view, would be sustainable where the disclosure of the
document would be injurious to the public interest to a greater degree than the
harm caused to the administration of justice by non-disclosure. Analysing the
claim in the context of Section 123, Justice Bhagwati noted:
―73. We have already pointed out that whenever an objection
to the disclosure of a document under Section 123 is raised,
two questions fall for the determination of the court, namely,
whether the document relates to affairs of State and whether
its disclosure would, in the particular case before the court, be
injurious to public interest. The court in reaching its
decision on these two questions has to balance two
competing aspects of public interest, because the
document being one relating to affairs of State, its
disclosure would cause some injury to the interest of the
State or the proper functioning of the public service and
on the other hand if it is not disclosed, the nondisclosure
would thwart the administration of justice by keeping
back from the court a material document…The court has
to decide which aspect of the public interest predominates or
in other words, whether the public interest which requires that
the document should not be produced, outweighs the public
interest that a court of justice in performing its function should
not be denied access to relevant evidence.‖
(Emphasis supplied)
PART E
25
26. The Court held that the nature of the proceeding in which the disclosure is
sought, the relevance of the document and the degree of importance that the
document holds in the litigation are relevant factors in the balancing process. If
the correspondence alone would furnish evidence relevant to adjudicating the
dispute before the court, it would be inappropriate to ‗exclude these documents
which constitute the only evidence, if at all, for establishing this charge, by saying
that the disclosure of these documents would impair the efficient functioning of
the judicial institution.‘ The Court held thus:
―82. …Apart from these documents, there would be no
other documentary evidence available to the petitioner to
establish that there was no full and effective consultation
or that the decision of the Central Government was
based on irrelevant considerations … It is only through
these documents that the petitioner can, if at all, hope to
show that there was no full and effective consultation by the
Central Government with the Chief Justice of the High Court,
the State Government and the Chief Justice of India or that
the decision of the Central Government was mala fide or
based on irrelevant grounds and therefore, to accord
immunity against disclosure to these documents would be
tantamount to summarily throwing out the challenge against
the discontinuance of the Additional Judge…The harm that
would be caused to the public interest in justice by the
non-disclosure of these documents would in the
circumstances far outweigh the injury which may
possibly be caused by their disclosure, because the nondisclosure would almost inevitably result in the dismissal
of the writ petition and consequent denial of justice even
though the claim of the petitioner may be true and just.‖
(Emphasis supplied)
The Court held that the potential injury caused by disclosure is outweighed by the
public interest in justice as the non-disclosure of documents relevant to decide
the controversy would inevitably lead to the dismissal of the writ petition. On a
balancing of the above two competing public interests, the Court upheld the
PART E
26
interim order requiring the disclosure of the correspondence concerning the
reappointment in respect of Justice S N Kumar.
27. The Court in S P Gupta was required to adjudicate claims resisting
disclosure of documents in a judicial proceeding based on Sections 123 and 162
of the Indian Evidence Act. The balancing exercise was between the public harm
resulting from a disclosure of documents relating to the affairs of the state and
the public interest in the administration of justice. The public interest in the
administration of justice pertained to the disposal of the case instituted before the
court in which the judge was a party. The decision in S P Gupta did not lay down
a general proposition that the correspondence between constitutional
functionaries in regard to the appointment process must be disclosed to a
member of the public in all circumstances. The view that the disclosure was
ordered in the specific context of a judicial proceeding was also affirmed in the
separate opinion of Justice E S Venkataramiah (as he then was):
―1194. It may be necessary to deal with the question of official
secrecy in greater detail in a case where the constitutionality
of the claim for official secrecy, independently of the power
of the Court to order discovery of official documents in
judicial proceedings, arises for consideration. We are
concerned in this case with the power of the Court to
direct the disclosure of official documents in judicial
proceedings.
1203… we felt that a decision not to direct disclosure of the
documents would result in graver public prejudice than the
decision to direct such disclosure and that the public interest
involved in the administration of justice should prevail over
the public interest of the public service in the peculiar
circumstances of the case.‖
(Emphasis supplied)
PART E
27
28. Though, the decision in S P Gupta is not a precedent in support of a
proposition for general disclosure in all circumstances, it is, however, relevant to
the present dispute for it rejected the contention that: (i) disclosure and candour
are incompatible; and (ii) such correspondence is entitled to class immunity.
Candour
29. The Court addressed the contention that the reason for protecting a certain
class of documents is that they concern decision making at the highest level of
government and only complete freedom from public gaze will enable freedom of
expression and candour amongst government functionaries. In this view, public
scrutiny was contended to adversely affect the ability of the participants in the
decision-making process to express their opinion in a free and frank manner. The
Court, however, rejected the contention that candour and frankness justify the
grant of complete immunity against disclosures. Justice PN Bhagwati (as he then
was) addressed the argument founded on candour in the following terms:
―71…The candour argument has also not prevailed with
judges.
The candour argument has also not prevailed with Judges
and jurists in the United States and it is interesting to note
what Raoul Berger while speaking about the immunity
claimed by President Nixon against the demand for disclosure
of the Watergate Tapes, says in his book Executive
Privilege”: A Constitutional Myth at page 264:
―Candid interchange‖ is yet another pretext for
doubtful secrecy. It will not explain Mr. Nixon's
claim of blanket immunity for members of his
White House staff on the basis of mere
membership without more; it will not justify
Kleindienst's assertion of immunity from
congressional inquiry for two and one-half
million federal employees. It is merely
another testimonial to the greedy
expansiveness of power, the costs of
PART E
28
which patently outweigh its benefits. As
the latest branch in a line of illegitimate
succession, it illustrates the excess bred
by the claim of executive privilege.
We agree with these learned Judges that the need for
candour and frankness cannot justify granting of
complete immunity against disclosure of documents of
this class, but as pointed out by Gibbs, ACJ in Sankey v.
Whitlam, it would not be altogether unreal to suppose
―that in some matters at least communications between
ministers and servants of the Crown may be more frank
and candid if those concerned believe that they are
protected from disclosure‖ because not all Crown
servants can be expected to be made of ―sterner stuff‖.
The need for candour and frankness must therefore
certainly be regarded as a factor to be taken into account
in determining whether, on balance, the public interest
lies in favour of disclosure or against it (vide: the
observations of Lord Denning in Neilson v, Lougharre (1981)
1 All ER at P. 835.
…
81. It is undoubtedly true that appointment or nonappointment of a High Court Judge or a Supreme Court
Judge and transfer of a High Court Judge are extremely
important matters affecting the quality and efficiency of the
judicial institution and it is therefore absolutely essential that
the various constitutional functionaries concerned with these
matters should be able to freely and frankly express their
views in regard to these matters…We have no doubt that
high level constitutional functionaries like the Chief
Justice of a High Court and the Chief Justice of India
would not be deterred from performing their
constitutional duty of expressing their views boldly and
fearlessly even if they were told that the correspondence
containing their views might subsequently be
disclosed…We have already dealt with the argument
based on the need for candour and frankness and we
must reject it in its application to the case of holders of
high constitutional offices like the Chief Justice of a High
Court and the Chief Justice of India. Be it noted — and of
this we have no doubt — that our Chief Justices and
Judges are made of sterner stuff; they have inherited a
long and ancient tradition of independence and
impartiality…‖
(Emphasis supplied)
PART E
29
The Court held that though candour may be a factor in determining what set of
communications require protection, the measure of protection depends whether,
on a balance of all competing interests, public interest favours disclosure or
secrecy. While the Court noted that candour may be a relevant factor to prevent
disclosure in some circumstances, it expressly rejects its weight as a relevant
factor when it comes to constitutional functionaries such as the Chief Justice of
India and the Chief Justices of the High Courts. Constitutional functionaries are
bound to the oath of their office to discharge their duties in a fair manner in
accordance with the principles enshrined in the Constitution. It cannot be
countenanced that public gaze or subsequent disclosure will detract an individual
from discharging their duty in an effective manner true to the dignity and ethic
associated with their office. Candour and frankness cannot be the reason to
preclude disclosures of correspondence between constitutional functionaries
which concern the appointment process of judges.
Class immunity
30. The second argument rejected in S P Gupta and relevant to the present
case is the contention that the correspondence between ―the Law Minister or
other high level functionary of the Central Government, the Chief Justice of the
High Court, the Chief Minister or the Law Minister of the State Government and
the Chief Justice of India in regard to appointment or non-appointment of a High
Court Judge or a Supreme Court Judge or transfer of a High Court Judge and the
notings made by these constitutional functionaries in that behalf‖, belong to a
protected class of documents. It was contended that the disclosure of these
PART E
30
documents would be prejudicial to national interest and the dignity of the
judiciary. In this view, the court is not required to assess the effects of the
disclosure of correspondence in a particular case, as all correspondence of such
nature belongs to a special class which is exempt from disclosure. In this view,
disclosure is not precluded because of the specific contents of the documents,
but because of its membership of a certain class of documents that require nondisclosure.
31. Justice Bhagwati, with whom five other judges agreed, held that a claim for
class immunity is an ‗extraordinary claim‘ which is granted as a ‗highly
exceptional measure‘ as such broad claims are contradictory to and destructive
of the concept of an open government. He cautioned against blanket immunity
and lay emphasis on the commitment to an open and transparent government in
the following terms:
―80…It is only under the severest compulsion of the
requirement of public interest that the court may extend
the immunity to any other class or classes of documents
and in the context of our commitment to an open
Government with the concomitant right of the citizen to
know what is happening in the Government, the court
should be reluctant to expand the classes of documents
to which immunity may be granted. The court must on the
contrary move in the direction of attenuating the protected
class or classes of documents, because by and large secrecy
is the badge of an authoritarian Government…‖
(Emphasis supplied)
The Court adopted a high standard for the conferral of class immunity which
would be accorded ―only under the severest compulsion of the requirement of
public interest‖. With these observations, the Court rejected the contention that
PART E
31
correspondence between constitutional functionaries constitutes a class of
documents exempt from public disclosure:
―81. …it will be clear that the class of documents consisting of
the correspondence exchanged between the Law Minister or
other high level functionary of the Central Government, the
Chief Justice of the High Court, the State Government and
the Chief Justice of India in regard to appointment or nonappointment of a High Court Judge or Supreme Court Judge
or the transfer of a High Court Judge and the notes made by
these constitutional functionaries in that behalf cannot be
regarded as a protected class entitled to immunity against
disclosure…Confidentiality is not a head of privilege and the
need for confidentiality of high level communications without
more cannot sustain a claim for immunity against
disclosure…‖
Thus, the disclosure of correspondence between constitutional functionaries was
held not to fall within a protected category exempt from disclosure. Disclosure is
precluded only where it is injurious to public interest. Justice Bhagwati clarified
that the principal consideration before the Court when assessing a claim for the
non-disclosure of any document is that of public interest:
―80…Every claim for immunity in respect of a document,
whatever be the ground on which the immunity is
claimed and whatever be the nature of the document,
must stand scrutiny of the court with reference to one and
only one test, namely, what does public interest require —
disclosure or non-disclosure…this exercise has to be
performed in the context of the democratic ideal of an
open Government.‖
(Emphasis supplied)
32. A claim of immunity from disclosure for any document is subject to the
controlling factor of public interest – a determination informed by the commitment
to an open and transparent government:
―67…The concept of an open Government is the direct
emanation from the right to know which seems to be
implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of
PART E
32
information in regard to the functioning of Government must
be the rule and secrecy an exception justified only where
the strictest requirement of public interest so demands.
The approach of the court must be to attenuate the area of
secrecy as much as possible consistently with the
requirement of public interest, bearing in mind all the time that
disclosure also serves an important aspect of public interest.‖
(Emphasis supplied)
Justice Bhagwati expanded on the socio-political background that must inform
any approach in a ―democratic society wedded to the basic values enshrined in
the Constitution‖. He drew an interconnection between democracy, transparency
and accountability to hold that a basic postulate of accountability, which is
fundamental to a democratic government, is that information about the
government is accessible to the people. He held that participatory democracy is
premised on the availability of information about the functioning of the
government. The right to know as a ―pillar of a democratic state‖ imputes positive
content to democracy and ensures that democracy does not remain static but
becomes a ―continuous process‖. Thus, a limitation on transparency must be
supported by more than a claim to confidentiality – it must demonstrate the public
harm arising from disclosure is greater than the public interest in transparency.
Justice Bhagwati emphasized transparency in the judicial apparatus in the
following terms:
―85…We believe in an open Government and openness in
Government does not mean openness merely in the
functioning of the executive arm of the State. The same
openness must characterise the functioning of the
judicial apparatus including judicial appointments and
transfers. Today the process of judicial appointments and
transfers is shrouded in mystery. The public does not know
how Judges are selected and appointed or transferred and
whether any and if so what, principles and norms govern this
process. The exercise of the power of appointment and
transfer remains a sacred ritual whose mystery is confined
PART E
33
only to a handful of high priests, namely, the Chief Justice of
the High Court, the Chief Minister of the State, the Law
Minister of the Central Government and the Chief Justice of
India in case of appointment or non-appointment of a High
Court Judge and the Law Minister of the Central Government
and the Chief Justice of India in case of appointment of a
Supreme Court Judge or transfer of a High Court Judge. The
mystique of this process is kept secret and confidential
between just a few individuals, not more than two or four as
the case may be, and the possibility cannot therefore be ruled
out that howsoever highly placed may be these individuals,
the process may on occasions result in making of wrong
appointments and transfers and may also at times, though
fortunately very rare, lend itself to nepotism, political as well
as personal and even trade-off. We do not see any reason
why this process of appointment and transfer of Judges
should be regarded as so sacrosanct that no one should
be able to pry into it and it should not be protected
against disclosure at all events and in all circumstances.‖
(Emphasis supplied)
The Court extended its observations on the indispensable nature of openness
and transparency to the judiciary and held that there is no basis to conclude that
information concerning appointments must be protected against disclosure ―at all
events and in all circumstances.‖ The circumstances which justify disclosure on
one hand and non-disclosure on the other calls into consideration a variety of
factors which shall be adverted to in the course of the judgment. At this juncture,
it is sufficient to note the observations of this Court that transparency in the
functioning of the government serves a cleansing purpose:
―66….Now, if secrecy were to be observed in the functioning
of Government and the processes of Government were to be
kept hidden from public scrutiny, it would tend to promote and
encourage oppression, corruption and misuse or abuse of
authority, for it would all be shrouded in the veil of secrecy
without any public accountability. But if there is an open
Government with means of information available to the public,
there would be greater exposure of the functioning of
Government and it would help to assure the people a better
and more efficient administration. There can be little doubt
that exposure to public gaze and scrutiny is one of the surest
PART F
34
means of achieving a clean and healthy administration. It has
been truly said that an open Government is clean
Government and a powerful safeguard against political and
administrative aberration and inefficiency.‖
33. The approach adopted by Justice Bhagwati in S P Gupta, with which we
are in agreement provides a bright line standard for the Court on the approach
that must be adopted when answering questions of disclosure in regards to the
appointment process. The principal consideration will always be that of public
interest. Any balancing must be carried out in the context of our commitment to
the transparency and accountability of our institutions. The specific content of
public interest and its role in the balancing process will be explored in the course
of the judgment.
It was contended by the respondents that the decision of this Court in S P Gupta
did not deal with the trade-off between disclosure and judicial independence. It is
necessary to turn to this issue.
F Judicial independence
34. Mr K K Venugopal, learned Attorney General for India appearing on behalf
of the appellant, contended that the disclosure of file notings between
constitutional functionaries which concern the appointment process will erode the
independence of the judiciary, which is part of the basic structure of the
Constitution. It was further contended that disclosures will result in damage to the
institution and adversely impact the independence of the judiciary. It is necessary
to briefly analyse the contours of this concept in assessing the contention urged.
PART F
35
35. At the outset, it must be noted that while the term ‗independence of the
judiciary‘ is not new, its meaning is still imprecise.24 There may be a debate over
various facets of judicial independence: for instance, from whom and to do what
is independence engrafted. Broadly speaking, judicial independence entails the
ability of judges to adjudicate and decide cases without the fear of retribution.
Judicial independence and the ability of judges to apply the law freely is crucial to
the rule of law.
In his seminal work ―Cornerstone of a Nation‖, Granville Austin states:
―The [Constituent] Assembly went to great lengths to ensure
that the courts would be independent, devoting more hours of
debate to this subject than to almost any other aspect.‖25
However, it was the independence of the judiciary, and not its absolute insulation
that appeared to be the prevailing view of members of the Constituent
Assembly.26 This, they believed was necessary for the preservation of interinstitutional equilibrium. The starting point of the independence of the judiciary is
constitutional design through the provisions of the Constitution.
36. Article 124(2) guarantees a security of tenure for judges. Article 124(4)
stipulates that a Judge of the Supreme Court shall not be removed from their
office except on the ground of proved misbehaviour or incapacity. The proviso to
clause (2) of Article 125 guarantees that a judges‘ privileges, allowances and
rights in respect of leave of absence or pension shall not be varied to their
24 MP Jain, Securing the Independence of the Judiciary – The Indian Experience, Indian International and
Comparative Law Review, p. 246
25 Granville Austin, Cornerstone of a Nation (1999), p. 164
26 Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary (2019), p. 17
PART F
36
disadvantage after their appointment. Article 129 empowers the Supreme Court
to punish for the contempt of itself. Article 145 empowers the Supreme Court to
make rules for regulating generally the practice and procedure of the Court.
Clauses (1) and (2) of Article 146 stipulate that the Chief Justice of India or such
other Judge or officer of the Court, as may direct, shall be responsible for the
appointments and prescription of rules governing the conditions of service of the
officers and servants of the Supreme Court. Clauses (1) and (2) of Article 229
assign responsibility to the Chief Justice of a High Court or such other judge or
officer of the court, as they may direct, in respect of matters of appointment and
prescription of rules governing the conditions of service of the officers and
servants of a High Court.
37. Article 215 empowers the High Court to punish for contempt of itself.
Article 217 provides security of tenure. The proviso to clause (2) of Article 221
stipulates that the allowances of a Judge of a High Court as well as the rights in
respect of leave of absence or pension shall not be varied to their disadvantage
after their appointment. Article 227(2) stipulates that each High Court may, by
virtue of its power of superintendence under Article 227(1): (i) call for returns
from certain courts and tribunals, (ii) make and issue general rules and prescribe
forms for regulating the practice and proceedings of such courts; and (iii)
prescribe forms in which books, entries and accounts shall be kept by the officers
of any such courts.
38. These provisions reflect constitutional safeguards to ensure the
independence of the judiciary and guarantee to it the freedom to function
PART F
37
independent of the will of the legislature and executive. Supriya Routh discusses
these provisions in the following words:
―[T]he Constitution provides for adequate safeguards in
furtherance of the independence of the judiciary in a
democratic republic. It separates the judiciary from the
executive and prohibits the Parliament and the state
legislatures from questioning the conduct of judges of the
higher judiciary in furtherance of their judicial duties...It also
provides for an arduous and elaborate process for the
impeachment of judges...‖27
The constitutional safeguards for judicial independence were noticed by this
Court in L Chandra Kumar v Union of India28
. Chief Justice AM Ahmadi,
speaking for a seven judge Bench of this Court held:
―78…While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it also
contains elaborate provisions dealing with the tenure, salaries,
allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts. The
inclusion of such elaborate provisions appears to have been
occasioned by the belief that, armed with such provisions, the
superior courts would be insulated from any executive or
legislative attempts to interfere with the making of their
decisions.‖
Justice Ruma Pal discussed the position in the following words:
―To ensure freedom from Executive and Legislative control,
the pay and pension due to judges in the superior courts are
charged on the Consolidated Funds of the States in the case
of High Court judges and the Consolidated Fund of India in
the case of Supreme Court judges and are not subject to the
vote of the Legislative Assembly in the case of the former or
Parliament in the latter case. Salaries are specified in the
Second Schedule to the Constitution and cannot be varied
without an amendment of the Constitution.‖
29
27 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian
Judiciary, 13 Washington University Global Studies Law Review 321 (2014)
28 (1997) 3 SCC 261
29 ―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial
Lecture, November 10, 2011.
PART F
38
39. The above provisions are indicative of the intention of the founders of the
Constitution to create a strong foundation to secure the independence of the
judiciary. This also marked a strong departure from the ‗pleasure doctrine‘ under
the pre-constitutional colonial framework. Under the Government of India Act,
1935 the judges of the High Court held office during the pleasure of the Crown.
Through Article 217(1) of the Constitution of India, tenure at the pleasure of the
Crown was substituted with a fixed tenure subject to limited exceptions. Justice
Srikrishna (speaking in non-judicial capacity) elucidates upon the importance of
this tradition in the following words:
―A judge of the High Court or Supreme Court is thus not
removable from office except for proved misbehaviour or
incapacity during his tenure of office. The very obviation of
the pleasure doctrine as controlling the tenure of office of a
judge of the High Court or the Supreme Court is explicit of the
intention of the founding fathers to insulate the judges of the
superior courts from the pleasure of the executive. The
several Articles embedded in the Constitution ensure that a
judge is fully independent and capable of rendering justice not
only between citizens and citizens but also between citizens
and the State, without let, hindrance, or interference by
anyone in the State polity. This kind of insulation or immunity
from the pleasure of the executive is essential in view of the
fact that the Constitution has guaranteed several fundamental
rights to the citizens and persons and also empowered the
High Courts and Supreme Court under Article 226 and 32 to
render justice against acts of the State.‖30
It becomes evident that judicial independence is secured through security over
judicial tenure. The edifice of judicial independence is built on the constitutional
safeguards to guard against interference by the legislature and the executive.
Judicial independence is not secured by the secrecy of cloistered halls. It cannot
be said that increasing transparency would threaten judicial independence.
30 Justice BN Srikrishna, Judicial Independence, The Oxford Handbook of the Indian Constitution (2016) at p.
350.
PART F
39
40. The need for transparency and accountability has been emphasised in
decisions of this Court. In Supreme Court Advocates-on-Record Association
v Union of India31 (‗NJAC‘), a Constitution Bench of this Court struck down the
99th Constitutional Amendment Act setting up the National Judicial Appointments
Commission as ultra vires the Constitution by a four-to-one majority. Significantly,
Justice Kurian Joseph, in his separate concurring opinion and Justice
Chelameswar, in his dissenting opinion, pointed to the lack of transparency and
accountability in the manner of making appointments to the judiciary. Justice
Kurian Joseph observed:
―990. All told, all was and is not well. To that extent, I agree
with Chelameswar, J. that the present Collegium system lacks
transparency, accountability and objectivity. The trust deficit
has affected the credibility of the Collegium system, as
sometimes observed by the civic society. Quite often, very
serious allegations and many a time not unfounded too, have
been raised that its approach has been highly subjective.
Deserving persons have been ignored wholly for subjective
reasons, social and other national realities were overlooked,
certain appointments were purposely delayed so as either to
benefit vested choices or to deny such benefits to the less
patronised, selection of patronised or favoured persons were
made in blatant violation of the guidelines resulting in
unmerited, if not, bad appointments, the dictatorial attitude of
the Collegium seriously affecting the self-respect and dignity,
if not, independence of Judges, the court, particularly the
Supreme Court, often being styled as the Court of the
Collegium, the looking forward syndrome affecting impartial
assessment, etc., have been some of the other allegations in
the air for quite some time. These allegations certainly call for
a deep introspection as to whether the institutional trusteeship
has kept up the expectations of the framers of the
Constitution… To me, it is a curable situation yet.‖
The need for greater transparency and accountability in the appointment
procedure or the lack of the same, has also been highlighted by other eminent
31 (2016) 5 SCC 1
PART F
40
retired judges such as Justice JS Verma and Justice Ruma Pal. In an article
quoted in Justice Lokur‘s separate concurring opinion in the NJAC decision,
Justice Verma while speaking about the collegium system observed:
―546…Have any system you like, its worth and efficacy will
depend on the worth of the people who work it! It is, therefore,
the working of the system that must be monitored to ensure
transparency and accountability.‖
Furthermore, Justice Chelameswar, in his dissenting opinion, references a
speech made by Justice Ruma Pal,32 where she stated thus:
―… [T]he process by which a judge is appointed to a superior
court is one of the best kept secrets in this country. The very
secrecy of the process leads to an inadequate input of
information as to the abilities and suitability of a possible
candidate for appointment as a judge. A chance remark, a
rumour or even third-hand information may be sufficient to
damn a judge‘s prospects. Contrariwise a personal friendship
or unspoken obligation may colour a recommendation.
Consensus within the collegium is sometimes resolved
through a trade-off resulting in dubious appointments with
disastrous consequences for the litigants and the credibility of
the judicial system. Besides, institutional independence has
also been compromised by growing sycophancy and
‗lobbying‘ within the system.‖
41. The collegium system has come under immense criticism for its lack of
transparency. As early as in S P Gupta, this Court acknowledged that disclosure
would lead to bona fide consideration and deliberation and proper application of
mind on the part of the judges.33 Even in NJAC, the need for transparency and
accountability has not been denied in any of the separate opinions. The 99th
Constitutional Amendment was struck down on the ground that it would
adversely affect the independence of the judiciary by giving the executive a
32 ―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde
Memorial Lecture, November 10, 2011.
33 S.P. Gupta v. Union of India, 1981 Supp SCC 87, 85 (per Bhagwati J.)
PART F
41
definitive say in the appointment of judges. The dilution of the judiciary‘s
autonomy in the context of making judicial appointments was deemed to be
unconstitutional. However, the need to reduce the opacity and usher in a regime
of transparency in judicial appointments has not been denied and has in fact
been specifically acknowledged by some of the learned Judges.
42. Scholars caution that while judicial independence is important, one should
not lose sight of the larger goals and purposes which judicial independence is
intended to serve. Charles Gardner Geyh considers such ends to include
upholding of the rule of law, preserving the separation of governmental powers,
and promotion of due process, amongst many others. Therefore, he believes that
if judges are free to disregard such ends in their decision making, judicial
independence serves no purpose. He notes thus:
―Most thoughtful scholars recognize that judicial
independence is an instrumental value-a means to achieve
other ends. As an instrumental value, judicial independence
has limits, defined by the purposes it serves…[Hence,] judges
who are so independent that they can disregard the law
altogether without fear of reprisal likewise undermine the rule
of law values that judicial independence is supposed to
further. Judicial accountability is yin to the judicial
independence yang.‖34
Burt Neuborne in his incisive article on the Supreme Court of India observes: ―We
care about constitutional courts not for the aesthetic value of their structures, but
because where certain prerequisites are assembled, constitutional courts are
capable of preserving the values of open, democratic governance.‖35
34 Charles Gardner Geyh, ‗Rescuing Judicial Accountability from the Realm of Political Rhetoric‘, 56 Case
Western Reserve Law Review 911 (2006)
35 International Journal of Constitutional Law, Volume 1, Issue 3, July 2003, Pages 476–510
PART F
42
43. Lorne Sossin argues that transparency is necessary to ensure the public
perception of the judiciary as independent. In the context of judicial
appointments, he believes that appointments may happen on a proper, welljustified, substantive understanding of judicial ‗merit‘. However, in order for the
same to be truly independent, they must include within themselves the
transparency of the criteria and openness of the process. He notes that:
―What matters most in a democracy, I would suggest, is not
the precise criteria for merit but the transparency of the
criteria, and the authenticity of the reasons for choosing one
individual over another. Merit, in other words, is as much
about process as substance.‖ 36
He then goes on to address how the transparency of criteria and the process is a
logical extension of the judicial appointment being ‗meritorious‘, and that doing so
would remove the ‗arbitrariness‘ of the process, leading to upholding of rule of
law:
―We often frame our concern with the rule of law as one
designed to prevent "arbitrary" decisions. Arbitrary decisions
are not, however, decisions taken for no reason. They are,
rather, decisions taken for undisclosed reason. In a
democracy, some reasons for judicial selection will and
should be seen as more legitimate than others. Increasingly,
however, it is the demand for justification itself that is
coming to define our democratic aspirations. This
demand, in my view, not only arises as a logical extension to
the requirement of merit, but is also justified as a necessary
condition of judicial independence.‖
(Emphasis supplied)
44. The fault that was identified with the purported framework under Article
124A of the Constitution of India for ensuring transparency was the lack of
36 Lorne Sossin, ‗Judicial Appointment, Democratic Aspirations, and the Culture of Accountability‘, 58 University
of New Brunswick Law Journal 11 (2008)
PART F
43
adequate safeguards for protecting the right to privacy of the appointees.
37 This
was in the context of the deliberations of the NJAC falling within the purview of
the RTI Act. Justice Madan B Lokur in his separate concurring opinion noted that
the right to know was circumscribed by the right to privacy of individuals:38
―555. The balance between transparency and confidentiality
is very delicate and if some sensitive information about a
particular person is made public, it can have a far-reaching
impact on his/her reputation and dignity. The 99th
Constitution Amendment Act and the NJAC Act have not
taken note of the privacy concerns of an individual. This is
important because it was submitted by the learned Attorney
General that the proceedings of NJAC will be completely
transparent and any one can have access to information that
is available with NJAC. This is a rather sweeping
generalisation which obviously does not take into account the
privacy of a person who has been recommended for
appointment, particularly as a Judge of the High Court or in
the first instance as a Judge of the Supreme Court. The right
to know is not a fundamental right but at best it is an implicit
fundamental right and it is hedged in with the implicit
fundamental right to privacy that all people enjoy. The
balance between the two implied fundamental rights is difficult
to maintain, but the 99th Constitution Amendment Act and the
NJAC Act do not even attempt to consider, let alone achieve
that balance.‖
None of these failings of the specific framework envisaged by the 99th
Constitutional Amendment Act however can be interpreted as a denial of the
importance of disclosure, transparency and accountability in the context of
judicial appointments or of its constitutionality. They only point to the need for a
balance between the right to know and the right to privacy, the specific contours
of which will be explored shortly.
37 NJAC., 953
38 Id
PART F
44
45. Judicial independence cannot be used as a byword for avoiding the
accountability and criticism that accompanies transparency:
―[T]hrough judicial activism, the Supreme Court of India has
completely insulated the judiciary from any democratic
deliberation, thereby sacrificing accountability and
transparency in the functioning of the judges…Accountability
and transparency are not only necessary for upholding the
democratic underpinnings of the Constitution, but are also
necessary for the independence of the judiciary itself,
because if public trust and confidence in the judiciary cannot
be maintained, the judiciary is destined to lose its
independence.‖39
The judiciary is an important organ of the Indian state, and it has a vital role in the
proper functioning of the state as a democracy based on the rule of law. The
integrity, independence, and impartiality of the judiciary are preconditions for fair
and effective access to justice and for the protection of rights. The judiciary has a
vital role to play as a bulwark of the integrity infrastructure in the country.
Failure to bring about accountability reforms would erode trust in the courts‘
impartiality, harming core judicial functions. Further, it also harms the broader
accountability function that the judiciary is entrusted with in democratic systems
including upholding citizens‘ rights and sanctioning representatives of other
branches when they act in contravention of the law. Transparency and the right to
information are crucially linked to the rule of law itself.
F.1 Judicial accountability
46. Questions of judicial accountability raise three interconnected questions:
39 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian
Judiciary, 13 Washington University Global Studies Law Review 321 (2014)
PART F
45
(i) What is the source of accountability?;
(ii) To whom is the accountability owed?; and
(iii) What does accountability entail?
Judicial independence and judicial accountability are often seen as conflicting
values. It is believed that judicial independence, which mandates that
adjudication take place free from interference by the legislature and the
executive, is compromised by the questions of responsibility which judicial
accountability entails. In this view, accountability compromises the ability of
judges to decide free from external pressure and is undesirable. There is a fallacy
about the postulate that independence and accountability are conflicting values.
47. Judicial independence is defined by the existence of conditions which
enable a judge to decide objectively, without succumbing to pressures and
influences which detract from the course of justice. To be independent a judge
must have the ability to decide ‗without fear or favour, affection or ill will‘. The
Constitution creates conditions to secure the independence of judges by setting
out provisions to govern appointments, tenure and conditions of service. These
are provisions through which the conditions necessary to secure judicial
independence are engrafted as mandatory institutional requirements. These are
intrinsic elements of our constitutional design. But constitutional design must be
realised through the actual working of its functionaries. Mechanisms which
facilitate independence are hence a crucial link in ensuring that constitutional
design translates into the realisation of judicial independence. Facilitative
mechanisms include those which promote transparency. For true judicial
PART F
46
independence is not a shield to protect wrong doing but an instrument to secure
the fulfilment of those constitutional values which an independent judiciary is
tasked to achieve. Judicial independence is hence not a carte blanche to
arbitrary behaviour. Where the provisions of the Constitution secure a standard
of judicial independence for free and impartial adjudication, the independence
guaranteed by the Constitution must be employed in a manner that furthers the
objective for which it was secured. In the quest for a balance between the
freedom guaranteed and the responsibility that attaches to the freedom, judicial
independence and judicial accountability converge.
48. Accountability, defined narrowly, is ―a relationship between an actor and a
forum, in which the actor has an obligation to explain and to justify his or her
conduct, the forum can pose questions and pass judgment, and the actor may
face consequences‖40. The narrow conception of accountability however suffers
from a straight-jacket view devoid of general guiding principles. Professor
Stephen Burbank stipulates:
―…the concept of accountability, defined inclusively
…includes a broader complex of values which public
organisations must adopt based in the fundamental values
of democratic regimes. Accountability is conceived in such
a way as to enable the democratic process of establishing
respect for those values, whether of efficiency or
independence, efficacy in achieving objectives, or
impartiality in the treatment of citizens.‖41
In this view, accountability is the search for normative values informed by
democratic values that guide the exercise of power and freedom granted by the
40 M Bovens, Analysing and Assessing Accountability: A Conceptual Framework, European Law Journal (2007),
p. 450.
41 Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review
(2007), p. 31
PART F
47
Constitution. The judiciary, like other institutions envisaged by the Constitution, is
essentially a human institution. The independence of the judiciary was not
envisaged to mean its insulation from the checks and balances that are inherent
in the exercise of constitution power. The independence of the judiciary, is a
constitutional guarantee of freedom. Notions of accountability however, concern
the manner and ends for which the freedom guaranteed is employed. Where
judicial independence focuses on freedom, judicial accountability is concerned
with the manner in which that freedom is exercised by the adjudicator.
49. Article 124(6) and Article 219 of the Constitution of India prescribe that
every person who is appointed to be a judge of the Supreme Court or the High
Court respectively, shall, prior to entering office, make and subscribe to an Oath
or affirmation set out in the Third Schedule of the Constitution. The Oath for the
office reads:
―I, (name), having been appointed Chief Justice (or a
Judge) of the Supreme Court of India, do swear in the
name of God (or affirm) that I will bear true faith and
allegiance to the Constitution of India as by law
established, that I will uphold the sovereignty and integrity
of India, that I will duly and faithfully and to the best of my
ability, knowledge and judgment perform the duties of my
office without fear or favour, affection or ill-will and that
I will uphold the Constitution and the laws.‖
(Emphasis supplied)
Prior to the advent of the Constitution, the oath or affirmation for a person
appointed to the Federal Court was prescribed in Schedule IV to the Government
of India Act, 1935. Significantly, the words ―without fear or favour, affection or illwill‖, contained in the present Constitution in Form VIII did not find place in the
PART F
48
oath prescribed42 in Schedule IV to the Government of India Act, 1935. Added to
the present Constitution, these are words with significance. The framers of the
Constitution were alive to the need for the exercise of judicial power in
accordance with the ethics of judicial office. The express inclusion of these words
indicates that persons entering judicial office bind themselves to the principles
inherent in the effective discharge of the judicial function, in conformity with the
rule of law and the values of the Constitution.
50. The oath of office postulates that the judge shall discharge the duties of
the office without fear or favour, affection or ill-will. Any action that abridges the
discharge of judicial duty in conformity with the principles enunciated in the oath
negates the fundamental precept underlying the conferment of judicial power.
Commenting on the significance of the inclusion of the term in its application to
judges of the High Courts in Union of India v Sankalchand Himatlal43, Justice
PN Bhagwati (as he then was) held:
―These words, of course, do not add anything to the nature of
the judicial function to be discharged by the High Court Judge
because, even without them, the High Court Judge would, by
the very nature of the judicial function, have to perform the
duties of his office without fear or favour, but they serve to
highlight two basic characteristics of the judicial
function, namely, independence and impartiality…‖
(Emphasis supplied)
As constitutional functionaries tasked with adjudication, judges of the High Courts
and Supreme Court are bound to discharge their duties in a fair and impartial
42 ―I, A.B., having been appointed Chief Justice [or a judge] of the Court do solemnly swear [or affirm] that saving
the faith and allegiance which I owe to C.D., his heirs and successors, I will be faithful and bear true allegiance in
my judicial capacity to His Majesty the King, Emperor of India, His heirs and successors, and that I will faithfully
perform the duties of my office to the best of my ability, knowledge and judgment.‖
43 (1977) 4 SCC 193
PART F
49
manner in accordance with law and the principles enshrined in the Constitution.
But this indeed is only a restatement of a principle which attaches to all judicial
office. The principles embodied in the oath furnish a non-derogable obligation
upon the person affirming it to abide by its mandate.
51. On 21 November 1993, the then Chief Justice of India constituted a
Committee to draft and circulate a statement on the values that must be reflected
in judicial life. In December 1999, the Conference of Chief Justices of all High
Courts resolved and adopted the Restatement of Values of Judicial Life. The
statement serves as a guiding light of the values that must be followed in
conformity with the dignity and ethic required of judicial life. The statement, apart
from mentioning 16 values of judicial life concludes that the values enumerated
are not exhaustive but illustrative of what is expected of a judge. The Bangalore
Principles of Judicial Conduct 2002 which were adopted at the Round Table
Meeting of Chief Justices held at the Peace Palace, The Hague in 2002 defined
six main values as an inherent element of the judicial system: independence,
impartiality, integrity, propriety, equality and competence, and diligence.
52. Judicial accountability also stems from the principle that the entrustment
and exercise of power in a constitutional democracy is not unfettered. The
Constitution confers upon judges with the power to dispense justice, which is a
foundational value in the Preamble to the Constitution. Judicial power, conferred
in public interest as a necessary element in the administration of justice cannot
be used to achieve extraneous ends. The private interests of an individual have
PART F
50
no nexus to the discharge of the official duties of a judge. Professor TRS Allen
stipulates:
―Powers may be conferred on public officials and agencies for
the attainment of appropriate ends, consistent with a plausible
account of the public good; but such powers must not be
abused for extraneous ends, serving only private interests,
nor wielded in a manner that undermines the ideal of freedom
as independence. No one should be at the mercy of
unfettered official discretion; and the enforcement of legal
constraints on such discretion is a necessary part of the idea
of government according to law.‖44
The rule of law commands compliance with the law, without exception. It requires
the protection of individuals against the unfettered discretion by officials on one
hand and the protection of individuals from depredations by other private
individuals.
53. Adjudicators in robes are human and may be pre-disposed to the failings
that are inherently human. But the law demands that they must aspire to a
standard of behaviour that does not condone those failings of a human persona
in the discharge of judicial duties. Recognition of the fallibility of individuals who
work constitutional institutions and of the need for safeguards to prevent the
abuse of power found articulation in the Constitutional Assembly Debates. Dr B R
Ambedkar, K T Shah, H V Kamath, S Nagappa, Hussain Imam, Pandit Lakshmi
Kanta Maitra, Alladi Krishnaswami Ayyar, B Pocker Sahib Bahadur, Z H Lari, A K
Ghosh, and R K Sidhva all emphasized the possibility of human error in the
inherently human institutions that the Constitution envisaged. This idea was
given its clearest articulation in by Dr B R Ambedkar when he reminded us that:
44 TRS Allen, Accountability to Law, in Accountability in the Contemporary Constitution (Nicholas Bamforth and
Peter Leyland eds.) (2013), Oxford Scholarship Online, p. 84
PART F
51
―however good a Constitution may be, it is sure to turn out bad because those
who are called to work it, happen to be a bad lot.‘
54. To equate the actions of an individual which have no nexus with the
discharge of official duties as a judge with the institution may have dangerous
portents. The shield of the institution cannot be entitled to protect those actions
from scrutiny. The institution cannot be called upon to insulate and protect a
judge from actions which have no bearing on the discharge of official duty. It is
for this reason that judicial accountability is an inherent component of the justice
delivery system. Accountability is expected to animate the day to day functioning
of the courts. Judges are required to issue reasoned orders after affording an
opportunity to both sides of a dispute to present their case. Judicial ethic requires
that a judge ought to recuse herself from hearing a case where there is a
potential conflict of interest. These illustration norms serve to further the
democratic ideal that no constitutional functionary is above the rule of law.
55. In the view explored above, judicial accountability traces itself from both
the oath of office and the nature of the judicial power itself. In a broader sense
however, there is a significant public interest in ensuring the smooth and efficient
functioning of the justice delivery system, consistent with the requirements of
justice in individual cases. The legitimacy of the institution which depends on
public trust is a function of an assurance that the judiciary and the people that
work it are free from bias and partiality. Mark Tushnet explores the idea of judicial
accountability in the following terms:
―Under prevailing understandings in liberal democracies, law
is a human artefact, so accountability ‗to law‘ must involve
PART F
52
accountability to someone. Roughly, ‗political accountability‘
refers to accountability to contemporaneous power-holders as
representatives of today‘s people, whereas ‗accountability
to law‘ refers to accountability to the people and their
representatives in the more distant past. Accountability
to law is a form of indirect accountability to the people in
the past, taking its route through their enactments of
law.
45
(Emphasis supplied)
In this view, accountability is not confined to elected posts. The creation of the
legal system founded on constitutional precept marked a break from its colonial
past. An independent judiciary is the guardian and final arbiter of the text and
spirit of the Constitution. To ensure this, the Constitution envisages a system of
checks and balances. Article 124(4)46 of the Constitution stipulates that a judge of
the Supreme Court may be removed by an order of the President on the ground
of proven misbehavior or incapacity. Article 21847 of the Constitution makes the
substantive provisions in Article 124(4) and Article 124(5) applicable to judges of
the High Courts. The Judges (Enquiry) Act 1986 was enacted in furtherance of
Article 124(5) which empowered the Parliament to regulate the presentation of an
address and investigation of judges. A notice of motion to present an address to
the President of India for the removal of judge is given in the Lok Sabha on
receiving the signatures of not less than one hundred members or in the Rajya
Sabha on receiving the signature of not less than fifty members. The Speaker of
the Lok Sabha or the Chairman of the Rajya Sabha constitutes a Committee as
45 Mark Tushnet, Judicial Accountability in Comparative Perspective, in Accountability in the Contemporary
Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship Online at Tushnet, p. 69
46 124(4) - A Judge of the Supreme Court shall not be removed from his office except by an order of the
President passed after as address by each House of Parliament supported by a majority of the total membership
of that House and by a majority of not less than two-thirds of the members of that House present and voting has
been presented to the President in the same session for such removal on the ground of proved misbehaviour or
incapacity.
47 218 – The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in
relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme
Court.
PART F
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stipulated in the Act to enquire into the alleged misbehavior of incapacity. If the
report of the Committee finds that a judge is guilty of misbehavior or suffers from
any incapacity, each house of the Parliament votes on the motion in accordance
with Article 124(4) of the Constitution. The Lok Sabha and the Rajya Sabha must
both pass a motion to impeach the judge with a majority of not less than twothirds of the members of the house present and voting. The stringent procedure
adopted by the Parliament for the impeachment of a judge draws a balance
between ensuring the independence of judges from political will and ensuring the
accountability of judges for their actions.
56. Judicial independence does not mean the insulation of judges from the
rule of law. In a constitutional democracy committed to the rule of law and to the
equality of its citizens, it cannot be countenanced that judges are above the law.
The notion of a responsible judiciary furthers the ideal for which an independent
judiciary was envisaged. It is the exercise of the decision making authority
guaranteed by judicial independence in a just and responsible manner, true to
the ethos of judicial office that sub-serves the founding vision of the judiciary.
Professor Stephen Burbank has characterized judicial independence and
accountability as "different sides of the same coin‖.48Professor Charles Gardner
has stated that:
―Judicial accountability is yin to the judicial independence
yang. Although some trumpet judicial accountability as if it
were an end in itself, accountability-like independence-is
better characterized as an instrumental value that promotes
three discrete ends: the rule of law, public confidence in the
courts, and institutional responsibility.‖49
48 Stephen Burbank, The Past and Present of Judicial Independence, California Law Review (1999).
49 Charles Gardner, Rescuing Judicial Accountability from the Realm of Political Rhetoric (2006), p .916
PART F
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Hence, independence and accountability are mutually reinforcing concepts. The
specific form of accountability which this Court has been called to address is in
regard to the appointment process and disclosure of assets owned by judges.
This form of accountability involves competing interests between the need for
transparency and accountability and the privacy interests of judges. The nature
and balancing of the competing interests involved in such a determination shall
be explored in the course of the judgment.
57. The executive in a cabinet form of government in accountable to the
legislature. Ministers of the government are elected members of the legislature.
Collectively, the government is accountable to the legislature as an institution
and through the legislature to the people. Unlike the elected representatives of
the people, judges of the district and higher judiciary are not elected. The
accountability which the political process exacts from members of the legislature
is hence distinct from the accountability of judges who are accountable to the
trust which is vested in them as independent decision makers. Making them
accountable in the discharge of that trust does not dilute their independence. The
independence of judges is designed to protect them from the pressures of the
executive and the legislature and of the organised interests in society which may
detract judges from discharging the trust as dispassionate adjudicators. Scrutiny
and transparency, properly understood are not placed in an antithesis to
independence. They create conditions where judges are protected against
unwholesome influences. Scrutiny and transparency are allies of the
conscientious because they are powerful instruments to guard against influences
which threaten to suborn the judicial conscience. To use judicial independence
PART G
55
as a plea to refuse accountability is fallacious. Independence is secured by
accountability. Transparency and scrutiny are instruments to secure
accountability.
G Fiduciary relationship
58. The appellant argued that the information about the assets of judges is
exempt from disclosure, by virtue of Section 8(1)(e) of the RTI Act which casts a
fiduciary duty on the Chief Justice of India to hold the asset declarations in
confidence. It is argued by the respondent that judges, while declaring their
assets, do so in their official capacity in accordance with the 1997 resolution and
not as private individuals. It is urged that the process of information gathering
about the assets of the judges by the Chief Justice of India, is in his official
capacity and therefore, no fiduciary relationship exists between them.
59. In order to determine whether the Chief Justice of India holds information
with respect to asset declarations of judges of the Supreme Court in a fiduciary
capacity, it is necessary to assess the nature of the relationship and the power
dynamics between the parties. Justice Frankfurter of the United States Supreme
Court in SEC v Chenery Corp50, while determining the question whether officers
and directors who manage a holding company in the process of reorganisation
occupy positions of trust, stated:
― But to say that a man is a fiduciary only begins analysis; it
gives direction to further inquiry. To whom is he a fiduciary?
What obligations does he owe as a fiduciary? In what respect
50 SEC v. Chenery Corp., 318 U.S. 80, 85–86 (1942)
PART G
56
has he failed to discharge these obligations? And what are
the consequences of his deviation from duty?‖51
60. Black‘s Law Dictionary52, defines ―fiduciary relationship‖ thus:
―A relationship in which one person is under a duty to act for
the benefit of the other on matters within the scope of the
relationship. Fiduciary relationships – such as trusteebeneficiary, guardian-ward, principal-agent, and attorneyclient – require an unusually high degree of care. Fiduciary
relationships usually arise in one of four situations : (1) when
one person places trust in the faithful integrity of another,
who as a result gains superiority or influence over the
first, (2) when one person assumes control and
responsibility over another, (3) when one person has a
duty to act for or give advice to another on matters falling
within the scope of the relationship, or (4) when there is a
specific relationship that has traditionally been recognized as
involving fiduciary duties, as with a lawyer and a client or a
stockbroker and a customer.‖
(Emphasis supplied)
In Words and Phrases53 the term ―fiduciary‖ is defined:
―Generally, the term ‗fiduciary‘ applies to any person who
occupies a position of peculiar confidence towards another...
It refers to integrity and fidelity... It contemplates fair dealing
and good faith, rather than legal obligation, as the basis of the
transaction… The term includes those informal relations
which exist whenever one party trusts and relies upon
another, as well as technical fiduciary relations.‖
(Emphasis supplied)
In Corpus Juris Secundum54 ―fiduciary‖ is defined thus:
―A general definition of the word which is sufficiently
comprehensive to embrace all cases cannot well be given.
The term is derived from the civil, or Roman law. It connotes
the idea of trust or confidence, contemplates good faith,
rather than legal obligation, as the basis of the transaction,
52 Black‘s Law Dictionary, Tenth Edition, p. 744
53 Words and Phrases, Volume 16-A, St. Paul: West Pub. Co, 1940
54 Corpus Juris Secundum: A Complete Restatement of the Entire American Law As Developed by All Reported
Cases, Volume 36-A, p. 38
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refers to the integrity, the fidelity, of the party trusted, rather
than his credit or ability, and has been held to apply to all
persons who occupy a position of peculiar confidence toward
others, and to include those informal relations which exist
whenever one party trusts and relies on another, as well as
technical fiduciary relations.
The word ‗fiduciary‘, as a noun, means one who holds a thing
in trust for another, a trustee, a person holding the character
of a trustee, or a character analogous to that of a trustee, with
respect to the trust and confidence involved in it and the
scrupulous good faith and candor which it requires; a person
having the duty, created by his undertaking, to act primarily
for another's benefit in matters connected with such
undertaking. Also more specifically, in a statute, a guardian,
trustee, executor, administrator, receiver, conservator or any
person acting in any fiduciary capacity for any person, trust or
estate. Some examples of what, in particular connections, the
term has been held to include and not to include are set out in
the note.‖
61. In CBSE v Aditya Bandopadhyay55, a two judge Bench of this Court
while discussing the nature of fiduciary relationships relied upon several
decisions and explained the terms ―fiduciary‖ and ―fiduciary relationship‖ thus:
―39. The term ―fiduciary‖ refers to a person having a duty to
act for the benefit of another, showing good faith and
candour, where such other person reposes trust and special
confidence in the person owing or discharging the duty. The
term ―fiduciary relationship‖ is used to describe a
situation or transaction where one person (beneficiary)
places complete confidence in another person (fiduciary)
in regard to his affairs, business or transaction(s). The
term also refers to a person who holds a thing in trust for
another (beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the
beneficiary, and use good faith and fairness in dealing with
the beneficiary or the things belonging to the beneficiary. If
the beneficiary has entrusted anything to the fiduciary, to hold
the thing in trust or to execute certain acts in regard to or with
reference to the entrusted thing, the fiduciary has to act in
confidence and is expected not to disclose the thing or
information to any third party.‖
(Emphasis supplied)
55 (2011) 8 SCC 497
PART G
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62. In RBI v Jayantilal N Mistry56, a two judge Bench of this Court reiterated
the observations made in CBSE v Aditya Bandopadhyay and held that RBI did
not place itself in a fiduciary relationship with other financial institutions by virtue
of collecting their reports of inspections, statements of the banks and information
related to the business. It was held that the information collected by the RBI was
required under law and not under the pretext of confidence or trust:
―64. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
information, for which disclosure is unwarranted or
undesirable. If information is available with a regulatory
agency not in fiduciary relationship, there is no reason to
withhold the disclosure of the same. However, where
information is required by mandate of law to be provided
to an authority, it cannot be said that such information is
being provided in a fiduciary relationship. As in the instant
case, the financial institutions have an obligation to provide all
the information to RBI and such information shared under an
obligation/duty cannot be considered to come under the
purview of being shared in fiduciary relationship.‖
(Emphasis supplied)
63. The Canadian Supreme Court in the case of Hodgkinson v Simms57
,
discussed the term ‗fiduciary‘ thus:
―A party becomes a fiduciary where it, acting pursuant to
statute, agreement or unilateral undertaking, has an
obligation to act for the benefit of another and that obligation
carries with it a discretionary power. Several indicia are of
assistance in recognizing the existence of fiduciary
relationships: (1) scope for the exercise of some discretion or
power; (2) that power or discretion can be exercised
unilaterally so as to effect the beneficiary's legal or practical
interests; and, (3) a peculiar vulnerability to the exercise of
that discretion or power.
The term fiduciary is properly used in two ways. The first
describes certain relationships having as their essence
56 (2016) 3 SCC 525
57 [1994] 3 SCR. 377
PART G
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discretion, influence over interests, and an inherent
vulnerability. A rebuttable presumption arises out of the
inherent purpose of the relationship that one party has a duty
to act in the best interests of the other party. The second,
slightly different use of fiduciary exists where fiduciary
obligations, though not innate to a given relationship, arise as
a matter of fact out of the specific circumstances of that
particular relationship. In such a case the question to ask is
whether, given all the surrounding circumstances, one party
could reasonably have expected that the other party would
act in the former's best interests with respect to the subject
matter at issue. Discretion, influence, vulnerability and trust
are non-exhaustive examples of evidentiary factors to be
considered in making this determination. Outside the
established categories of fiduciary relationships, what is
required is evidence of a mutual understanding that one party
has relinquished its own self-interest and agreed to act solely
on behalf of the other party. In relation to the advisory
context, then, there must be something more than a simple
undertaking by one party to provide information and execute
orders for the other for a relationship to be enforced as
fiduciary.‖
64. Dr Paul Finn in his comprehensive work on ―Fiduciary Obligations‖
58
,
describes a fiduciary as someone who has an obligation to act ―in the interests
of‖ or ―for the benefit of‖ their beneficiaries in some particular matter. For a
person to act as a fiduciary they must first have bound themselves in some way
to protect and further the interests of another.59 Where such a position has been
assumed by one party then that party's position is potentially of a fiduciary.60 The
Federal Court of Australia in the case of Australian Sec & Inv Comm‘n v
Citigroup Global Markets Australia Pty Ltd61 has held:
―The question of whether a fiduciary relationship exists, and
the scope of any duty, will depend upon the factual
circumstances and an examination of the contractual terms
between the parties... Apart from the established categories,
perhaps the most that can be said is that a fiduciary
58 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 15
59 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 9
60 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p.9
61 Australian Sec. & Inv. Comm‘n v Citigroup Global Markets Australia Pty. Ltd., [2007] FCA 963 (Citing P.D.
Finn, The Fiduciary Principle, in Equity, Fiduciaries and Trusts (T. Youden ed., 1989))
PART G
60
relationship exists where a person has undertaken to act
in the interests of another and not in his or her own
interests but all of the facts and circumstances must be
carefully examined to see whether the relationship is, in
substance, fiduciary… The critical matter in the end is
the role that the alleged fiduciary has, or should be taken
to have, in the relationship. It must so implicate that party in
the other‘s affairs or so align him with the protection or
advancement of that other‘s interests that foundation exists
for the fiduciary expectation.‖ (Emphasis supplied)
65. A fiduciary must be entrusted with a degree of discretion (power) and must
have freedom to act without resorting to prior approval of the beneficiary.62 The
greater the independent authority to be exercised by the fiduciary, the greater the
scope of fiduciary duty.63 The person so entrusted with power is required to
determine how to exercise that power.64 Fiduciaries are identified by ascendancy,
power and control on the part of the stronger party and therefore, a fiduciary
relationship implies a condition of superiority of one of the parties over the
other.65 It is not necessary that the relationship has to be defined as per law, it
may exist under various circumstances, and exists in cases where there has
been a special confidence placed in someone who is bound to act in good faith
and with due regard to the interests of the one reposing the confidence. Such is
normally the case with, inter alia, attorney-client, agent-principal, doctor-patient,
parent-child, trustees-beneficiaries66, legal guardian-ward67, personal
representatives, court appointed receivers and between the directors of company
and its shareholders. In Needle Industries (India) Ltd v Needle Industries
62 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
63 Scott, Austin W. "The Fiduciary Principle." California Law Review 37, no. 4 (1949): 539-55.
64 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
65 Ken Coghill, Charles Sampford and Tim Smith ―Fiduciary Duty and the Atmospheric Trust‖, Ashgate (2012)
66 Section 88, Indian Trusts Act 1882
67 Section 20, Guardians and Wards Act 1890
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Newey (India) Holding Ltd68 and Dale & Carrington Invt (P) Lt v P K
Prathaphan69, this Court held that the directors of the company owe a fiduciary
duty to its shareholders. In P V Sankara Kurup v Leelavathy Nambier70, this
Court held that an agent and power of attorney can be said to owe a fiduciary
relationship to the principal.
66. Other structural properties of the fiduciary relationship are dependence
and vulnerability, where the beneficiary is dependent upon the fiduciary to
exercise power and impact the practical interests.71 Once a fiduciary relationship
is established, fiduciary duties include the duty of loyalty and duty of care
towards the interests of the beneficiaries.72
67. From the discussion above, it can be seen that a fiduciary is someone who
acts for and on behalf of another in a particular matter giving rise to a relationship
of trust and confidence. A fiduciary relationship implies a condition of superiority
of one of the parties over the other, where special confidence has been reposed
in an individual to act in the best interests of another.
68. The dispute before us is whether the Chief Justice of India while exercising
its official function and holding asset declaration information of the judges acts in
a fiduciary capacity. The Full Bench of the Delhi High Court agreed with the
learned single judge and held:
68 (1981) 3 SCC 333
69 (2005) 1 SCC 212
70 (1994) 6 SCC 68
71 Gold, Andrew S.; Miller, Paul B. ―Philosophical foundations of fiduciary law‖ Oxford University Press, 2016.
72 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
PART G
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―The CJI cannot be a fiduciary vis-à-vis Judges of the
Supreme Court. The Judges of the Supreme Court hold
independent office, and there is no hierarchy, in their judicial
functions, which places them at a different plane than the CJI.
The declarations are not furnished to the CJI in a private
relationship or as a trust but in discharge of the constitutional
obligation to maintain higher standards and probity of judicial
life and are in the larger public interest. In these
circumstances, it cannot be held that the asset information
shared with the CJI, by the Judges of the Supreme Court, are
held by him in the capacity of fiduciary, which if directed to be
revealed, would result in breach of such duty.‖
We are in agreement with the above observation. The words ―held by‖ or ―under
the control of‖ under Section 2(j) of the RTI Act will include not only information
under the legal control of the public authority but also all such information which
is otherwise received or used or consciously retained by the public authority while
exercising functions in its official capacity. The 1997 resolution on declaration of
judge‘s assets as adopted on 7 May 1997 states:
―RESOLVED FURTHER THAT every Judge should make a
declaration of all his/her assets in the form of real estate or
investments (held by him/her in his/her own name or in the
name of his/her spouse or any person dependent on him/her)
within a reasonable time of assuming office and in the case of
sitting Judges within a reasonable time of adoption of this
Resolution and thereafter whenever any acquisition of a
substantial nature is made, it shall be disclosed within a
reasonable time. The declaration so made should be to the
Chief Justice of the Court. The Chief Justice should make a
similar declaration for the purpose of the record. The
declaration made by the Judges or the Chief Justice, as the
case may be, shall be confidential.‖
69. The Chief Justice of India in exercising his official functions in accordance
with the 1997 resolution while holding asset information of other judges does not
act for and on behalf of other judges of the Supreme Court. There exists no
fiduciary relationship between them. The Chief Justice of India is not entrusted
PART G
63
with the power to protect and further the interests of individual judges who
disclose their assets. The information is required by the mandate of the
resolution dated 7 May 1997 passed by all the then sitting judges of the Supreme
Court and it cannot be said that such information is being provided in any
personal capacity. The Chief Justice of India merely holds the information in
accordance with the official functions and not in any fiduciary capacity. The
judges of the Supreme Court, including the Chief Justice of India occupy a
constitutional office. There exists no set hierarchies between the judges and they
enjoy the same judicial powers and immunities. The judges who disclose their
assets cannot be said to be vulnerable to and dependent on the Chief Justice of
India. In these circumstances, it cannot be held that asset information shared
with the Chief Justice of India, by the judges of the Supreme Court, are held by
him in a fiduciary capacity, which if revealed, would result in breach of fiduciary
duty. Therefore, the argument that the information sought is held in a fiduciary
capacity is inapplicable and cannot be used to prevent the information from being
made public.
70. While we have not accepted the argument of the appellant regarding the
existence of the fiduciary relationship between the Chief Justice of India and the
judges, it is relevant to point out the application of the fiduciary principle to public
institutions where judges hold citizens‘ interests in public trust, guided by
fiduciary standards.73
A Judge‘s public fiduciary obligation towards the citizen
includes a duty of loyalty, duty of care and the cluster comprising the duties of
73 Robert G. Natelson, ―Judicial Review of Special Interest Spending: The General Welfare Clause and the
Fiduciary Law of the Founders‖, 11 Tex. Rev. L. & PoL 239, 245
PART H
64
candour, disclosure and accounting.74 The duty of loyalty for a judge entails
them being loyal to the citizenry by remaining impartial towards the litigants
before them.75 The duty of care for judges includes the expectation from judges
to fulfil their responsibilities with reasonable diligence and to engage in reason
based decision making.76 The duties of candour, disclosure and accounting are
based on the premise of judicial transparency and judicial honesty.
H The right to privacy and the right to know
71. The third referral question to be answered by this Court is: ―Whether the
information sought for is exempt under Section 8(1)(j) of the RTI Act77.‖ The
question requires this Court to determine whether and under what circumstances
the information sought by the applicant should be disclosed under the provisions
of the RTI Act. This Court is cognisant that in interpreting the statutory scheme of
the RTI Act, the constitutional right to know and the constitutional right to privacy
of citizens are also implicated. In answering the question, it is necessary to
analyse the scheme of the RTI Act, the role of the exemptions under Section 8,
the interface between the statutory rights and duties under Section 8(1)(j) and the
constitutional rights under Part III of the Constitution.
74 Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law
Review 101, no. 3 (2013): 699-753.
75 Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias, 2008 PUB. L.
58 (2008)
76 Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law
Review 101, no. 3 (2013): 699-753. See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial
Review, 2 J. LEGAL analysis 227, 249 n.23 (2010).
77 ―RTI Act‖
PART H
65
72. In order to facilitate effective governance, the government or ‗public
authority‘ must be empowered to efficiently coordinate diverse activities and at
the same time be constrained to ensure that it does not override the freedoms of
those it serves. In explaining the system of checks and balances in the American
Constitution, James Madison noted:
―If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over
men, the great difficulty lies in this: you must first enable
the government to control the governed; and in the next
place oblige it to control itself. A dependence on the
people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary
precautions.‖78
(Emphasis supplied)
Our Constitution institutes and operationalises the functions of government. It is
necessary to empower the government to operationalise the public functions of
the state and ensure the governance of the public lives of citizens. However, the
framers of our Constitution recognised that this act of empowerment also carried
certain associated risks, that no government of people is infallible and that in
addition to democratic controls, certain additional checks and balances on
governmental power are necessary. Part III of the Constitution represents a
crucial aspect of the constitutional scheme by which governmental power is
restricted, and the government is obligated to respect the rights and freedoms of
citizens.
78 James Madison, Federalist No 51 (1788)
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Scheme of Sections 8 and 11
73. The RTI Act was enacted in furtherance of the principles found in Part III of
the Constitution. The RTI Act operationalises the disclosure of information held
by ‗public authorities‘ in order to reduce the asymmetry of information between
individual citizens and the state apparatus. The RTI Act facilities transparency in
the decisions of public authorities, the accountability of public officials for any
misconduct or illegality and empowers individuals to bring to light matters of
public interest. The RTI Act has provided a powerful instrument to citizens: to
individuals engaged in advocacy and journalism. It facilitates a culture of
assertion to the citizen – activist, to the whistle-blower, but above all to each
citizen who has a general interest in the affairs of the state. The preamble of the
RTI Act notes:
―An Act to provide for setting out the practical regime of right
to information for citizens to secure access to information
under the control of public authorities, in order to
promote transparency and accountability in the working
of every public authority, the constitution of a Central
Information Commission and State Information Commissions
and for matters connected therewith or incidental thereto.
…
AND WHEREAS democracy requires an informed citizenry
and transparency of information which are vital to its
functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the
governed;‖
(Emphasis supplied)
As observed earlier in the judgement, the provisions of the RTI Act are dedicated
to operationalising access to information held by public authorities. The scheme
of the RTI Act and its applicability to the judiciary has already been examined in
detail. In answering the third referral question, this Court can confine itself to the
PART H
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statutory exemptions carved out from the general obligation of disclosure. When
enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of
information could be fiscally inefficient, result in real world harms and infringe on
the rights of others. In addition to the extracts above, the preamble to the RTI Act
also states:
―AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments, optimum
use of limited fiscal resources and the preservation of
confidentiality of sensitive information;‖
(Emphasis supplied)
74. To address the harms that may result from an unrestricted disclosure of
information, the legislature included certain qualified and unqualified exemptions
to the general obligation to disclose under Sections 3, 4 and 7 of the RTI Act.
Section 8(1) sets out certain classes of information, the disclosure of which, the
legislature foresaw may result in harm to the nation or the rights and interests of
other citizens. Section 8 reads as under:
―8. Exemption from disclosure of information –
(1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen, -
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation
with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure
of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence,
trade secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party, unless
the competent authority is satisfied that larger public interest
warrants the disclosure of such information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that
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the larger public interest warrants the disclosure of such
information;
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would
endanger the life or physical safety of any person or identify
the source of information or assistance given in confidence
for law enforcement or security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers,
the reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is
satisfied that the larger public interest justifies the disclosure
of such information:
Provided that the information which cannot be denied
to the Parliament or a State Legislature shall not be denied to
any person.
(2) Notwithstanding anything in the Official Secrets
Act, 1923 (19 of 1923) nor any of the exemptions permissible
in accordance with sub-section (1), a public authority may
allow access to information, if public interest in disclosure
outweighs the harm to the protected interests….‖
Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything
contained in this Act‖. The import of this phrase is that clause (1) of Section 8
carves out an exception to the general obligation to disclose under the RTI Act.
Where the conditions set out in any of the sub-clauses to clause (1) of Section 8
are satisfied, the Information Officer is under no obligation to provide information
to the applicant. By expressly enumerating the circumstances in which the
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disclosure of information may be restricted on the grounds of certain identified
harms, the RTI Act negates the notion that information may be withheld on the
grounds of confidentiality simpliciter. A harm under clause (1) of Section 8 must
be identified and invoked to justify the non-disclosure of a document requested
for under the RTI Act.
75. It is also pertinent to note that clauses (a), (b), (c), (f), (g) and (h) to clause
(1) of Section 8 provide an absolute exemption from the obligation of disclosure
under the RTI Act. However, clauses (d), (e), (i) and (j) to clause (1) of Section 8
provide a qualified exemption from disclosure. For example, clause (a) to sub
section (1) of Section 8 provides an unconditional exemption where it is
determined that disclosure of the information sought ―would prejudicially affect
the sovereignty and integrity of India‖. On the other hand, while clause (d) to
Section 8(1) similarly provides that information is exempt from disclosure where
such disclosure ―would harm the competitive position of a third party‖ the
exemption is further qualified by the phrase, ―unless the competent authority is
satisfied that larger public interest warrants the disclosure‖. Thus, the exemption
under clause (d) is not absolute but is qualified and cannot be invoked where
there exists a ―larger public interest‖. Where the Information Officer determines
that the ―larger public interest‖ warrants a disclosure, the exemption in clause (d)
cannot be invoked and the information must be disclosed.
76. Clause (j) of Section 8(1) provides a qualified exemption from disclosure
where the information sought relates to ―personal information the disclosure of
which has no relationship to any public activity or interest‖ or the disclosure of the
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information would cause an ―unwarranted invasion of the privacy‖. However, the
exemption may be overridden where the Information Officer is ―satisfied that the
larger public interest justifies the disclosure‖. Clause (j) is not an absolute
exemption from the disclosure of information on the ground of privacy but states
that disclosure is exempted in cases where ―personal information‖ is sought and
there exists no ―larger public interest‖. Where the Information Officer is satisfied
that the existence of the ―larger public interest‖ justifies the disclosure of the
―personal information‖, the information must be disclosed. The exact contours of
the phrases ―personal information‖ and ―larger public interest‖ with respect to
members of the judiciary, and the exact manner in which they relate to each
other form the subject matter of the third referral question and shall be analysed
during the course of this judgement.
77. Sections 2(n) and 11 of the RTI Act read as under:
―2(n) ―third party‖ means a person other than the citizen
making a request for information and includes a public
authority‖
―11. Third party information.—(1) Where a Central Public
Information Officer or a State Public Information Officer, as
the case may be, intends to disclose any information or
record, or part thereof on a request made under this Act,
which relates to or has been supplied by a third party and
has been treated as confidential by that third party, the
Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within five
days from the receipt of the request, give a written notice to
such third party of the request and of the fact that the Central
Public Information Officer or State Public Information Officer,
as the case may be, intends to disclose the information or
record, or part thereof, and invite the third party to make a
submission in writing or orally, regarding whether the
information should be disclosed, and such submission of the
third party shall be kept in view while taking a decision about
disclosure of information:
Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if the
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public interest in disclosure outweighs in importance any
possible harm or injury to the interests of such third
party.
(2) Where a notice is served by the Central Public Information
Officer or State Public Information Officer, as the case may
be, under sub-section (1) to a third party in respect of any
information or record or part thereof, the third party shall,
within ten days from the date of receipt of such notice, be
given the opportunity to make representation against the
proposed disclosure.
(Emphasis supplied)
The definition of a ―third party‖ includes a public authority. ‗Third party
information‘ is information which ―relates to or has been supplied by any other
person (including a public authority) other than the information applicant and has
been treated as confidential by such third party. Where disclosure of ‗third party
information‘ is sought, and such information has been prima facie treated as
confidential by the third party in question, the procedure under Section 11 of the
RTI Act is mandatory. The Information Officer shall, within five days of receiving
the request for ‗third party information‘ notify the relevant third party to whom the
information relates or which had supplied it. The notice shall invite the third party
to submit reasons (in writing or orally) as to whether or not the information sought
should be disclosed. Section 11(2) provides the third party with a right to make a
representation against the proposed disclosure within ten days of receiving the
notice. The provision expressly mandates the Information Officer to take into
consideration the objections of the third party when making a decision with
respect to disclosure or non-disclosure of the information. It encapsulates the
fundamental idea that a party whose personal information is sought to be
disclosed is afforded the opportunity to contest disclosure. The proviso to sub
section (1) of Section 11 permits disclosure where the ―public interest‖ in
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disclosure ―outweighs‖ any possible harms in disclosure highlighted by the third
party.
78. Sections 8 and 11 must be read together. Other than in a case where the
information applicant seeks the disclosure of information which relates to the
information applicant herself, information sought that falls under the category of
―personal information‖ within the meaning of clause (j) of Section 8(1) is also
―third party information‖ within the ambit of Section 11. Therefore, in every case
where the information requested is ―personal information‖ within the operation of
clause (j) of sub section 1 of Section 8, the procedure of notice and objections
under Section 11 must be complied with. The two provisions create a substantive
system of checks and balances which seek to balance the right of the information
applicant to receive information with the right of the third party to prevent the
disclosure of personal information by permitting the latter to contest the proposed
disclosure.
79. In Arvind Kejriwal v Central Public Information Officer79 it was
contended that the procedure for notifying the third party and inviting objections
under Section 11 only applied to situations where the information sought was
directly supplied by the third party, and not to situations where the information
‗related to‘ the third party but was not supplied by it. Rejecting this contention,
Justice Sanjeev Khanna, (as our learned Brother then was) speaking for a
Division Bench of the Delhi High Court held:
79 AIR 2012 Del 29
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―13… On the other hand, in case the word ‗or‘ is read as
‗and‘, it may lead to difficulties and problems, including the
invasion of right of privacy/confidentiality of a third party. For
example, a public authority may have in its records,
medical reports or prescriptions relating to third person
but which have not been supplied by the third person. If
the interpretation given by the appellant is accepted then
such information can be disclosed to the information
seeker without following the procedure prescribed in
Section 11(1) as the information was not furnished or
supplied by the third person. … when information relates to
a third party and can be prima facie regarded and treated as
confidential, the procedure under Section 11(1) must be
followed. Similarly, in case information has been provided by
the third party and has been prima facie treated by the said
third party as confidential, again the procedure under Section
11(1) has to be followed.
…
15. Section 11 also ensures that the principles of natural
justice are complied with. Information which is confidential
relating to a third party or furnished by a third party, is not
furnished to the information seeker without notice or without
hearing the third party‘s point of view. A third party may
have reasons, grounds and explanations as to why the
information should not be furnished, which may not be in
the knowledge of the PIO/appellate authorities or
available in the records. The information seeker is not
required to give any reason why he has made an application
for information. There may be facts, causes or reasons
unknown to the PIO or the appellant authority which may
justify and require denial of information. Fair and just
decision is the essence of natural justice. Issuance of
notice and giving an opportunity to the third party serves
a salutary purpose and ensures that there is a fair and
just decision. In fact issue of notice to a third party may in
cases curtail litigation and complications that may arise if
information is furnished without hearing the third party
concerned. Section 11 prescribes a fairly strict time schedule
to ensure that the proceedings are not delayed.
(Emphasis supplied)
The procedure under Section 11 must be complied with not only in cases where
information has been supplied to the public authority by a third party, but equally
when the information which is held by the public authority ―relates to‖ a third
party. Section 11 is not merely a procedural provision, but a substantive
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protection to third parties against the disclosure of their personal information held
by public authorities, without their knowledge or consent. The mere fact that the
public authority holds information relating to a third party does not render it freely
disclosable under the RTI Act. A third party may have good reason to object to
the disclosure of the information, including on the ground that the disclosure
would constitute a breach of the right to privacy. By including the requirement of
inviting objections and providing a hearing on the proposed disclosure of third
party information to the very party who may be adversely impacted by the
disclosure, Section 11 embodies the principles of natural justice.
80. In the present case, the information sought pertains to the declaration of
assets of members of the judiciary and official file notings and correspondence
with respect to the elevation of judges to the Supreme Court. The information
sought with respect to the assets of judges is not generated by the Supreme
Court itself, but is provided by individual judges to the Supreme Court. The file
notings with respect to the elevation of judges do not merely contain information
regarding the operation of the Supreme Court, but also relate to the individual
judges being considered for elevation. Thus, the information sought both ―relates
to‖ and ―has been supplied by‖ a third party and has been treated as confidential
by that third party‖. The procedure under Section 11 is applicable in regard to the
information sought by the respondent and must be complied with.
Constitutional rights implicated
81. The RTI Act, although a statutory enactment, engages the rights contained
in Part III of the Constitution of India. Article 19(1)(a) of the Constitution contains
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the right to freedom of expression which grants all citizens not merely the right to
free speech, but also the right to freely disseminate speech. The freedom of the
press to disseminate speech has long been recognised under our Constitution.80
An inherent component of the right to disseminate speech freely is the
corresponding right of the audience to receive speech freely. The right to receive
information disseminated has also been recognised as a facet of the freedom of
expression protected by Article 19(1)(a) of the Constitution.81 In addition to the
right to receive information already being disseminated in the public domain,
Article 19(1)(a) includes a positive right to information. Contrasted with the
negative content of the right to receive information, which prohibits the State from
restricting a citizen‘s access to information already in the public domain, the right
to information, as a facet of Article 19(1)(a), casts a positive duty on the State to
make available certain information not already in the public domain.
82. In State of Uttar Pradesh v Raj Narain82, Chief Justice A N Ray,
speaking for a Constitution Bench of this Court observed:
―74. In a Government of responsibility like ours, where all the
agents of the public must be responsible for their conduct,
there can be but few secrets. The people of this country
have a right to know every public act, everything that is
done in a public way, by their public functionaries. They
are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though
not absolute, is a factor which should make one wary,
when secrecy is claimed for transactions which can, at
any rate, have no repercussion on public security. [ See
New York Times Co. v. United States, 29 L Ed 822: 403 US
713] To cover with veil of secrecy, the common routine
business, is not in the interest of the public. Such secrecy can
seldom be legitimately desired. It is generally desired for the
80 Express Newspaper v Union of India 1959 SCR 12
81 Bennet Coleman v Union of India (1972) 2 SCC 788
82 (1975) 4 SCC 428
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purpose of parties and politics or personal self-interest or
bureaucratic routine…‖
(Emphasis supplied)
These observations were reiterated by the seven judge Bench of this Court in
case of S P Gupta v Union of India83
. Justice P N Bhagwati (as he then was)
noted:
―64. Now it is obvious from the Constitution that we have
adopted a democratic form of Government. Where a society
has chosen to accept democracy as its credal faith, it is
elementary that the citizens ought to know what their
Government is doing. The citizens have a right to decide
by whom and by what rules they shall be governed and
they are entitled to call on those who govern on their
behalf to account for their conduct. No democratic
Government can survive without accountability and the
basic postulate of accountability is that the people
should have information about the functioning of the
Government. It is only if people know how Government is
functioning that they can fulfil the role which democracy
assigns to them and make democracy a really effective
participatory democracy. ―Knowledge‖ said James Madison,
―will for ever govern ignorance and a people who mean to be
their own governors must arm themselves with the power
knowledge gives. A popular Government without popular
information or the means of obtaining it, is but a
prologue to a force or tragedy or perhaps both‖. The
citizens' right to know the facts, the true facts, about the
administration of the country is thus one of the pillars of a
democratic State…‖
(Emphasis supplied)
The above-mentioned extract accurately and succinctly summarises the position
of law and has been consistently followed by this Court.84 The right to freedom of
expression under Article 19(1)(a) casts both positive and negative obligations on
the State. It restricts the State from interfering with the right of citizens to receive
information and its freely disseminated. It also imposes an obligation on the State
83 (1981) Supp SCC 87
84 People's Union for Civil Liberties v Union of India (2003) 4 SCC 399; Thalappalam Service Cooperative
Bank Limited v State of Kerala (2013) 16 SCC 82 and Reserve Bank of India v Jayantilal Mistry (2016) 3
SCC 525.
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to provide citizens with information about the public functioning of government to
ensure accountability and create an informed electorate.
83. Parliament enacted the RTI Act in pursuance of the State‘s positive
obligation to provide citizens with information about the functioning of
government. It is a statute to operationalise the right of citizens to access
information, otherwise only held by the government, under the ‗right to know‘ or
‗right to information‘ as protected by Article 19(1)(a). In requesting for information
under the provisions of the RTI Act, a citizen engages certain statutory rights and
duties under its provisions, but simultaneously also engages the ‗right to know‘
under the Article 19(1)(a) of the Constitution. The ‗right to know‘ is not absolute.
The RTI Act envisages certain restrictions on the ‗right to know‘ in the form of
exemptions enumerated in clause (1) to Section 8. Crucially, restrictions on the
disclosure of information under the RTI Act also constitute restrictions on the
information applicant‘s ‗right to know‘ which is protected under Article 19(1)(a) of
the Constitution. The constitutional permissibility of the statutory restrictions on
disclosure contained within the RTI Act is not in challenge before this Court. But
it is trite to state that any restrictions on the disclosure of information would
necessarily need to comport with the existing law on the protection of the ‗right to
know‘ as a facet of the freedom of expression. In the decision in Thalappalam
Service Cooperative Bank Limited v State of Kerala85 Justice Radhakrishnan,
speaking for a two judge Bench of this Court, noted:
―56. The Right to Information Act, 2005 is an Act which
provides for setting up the practical regime of right to
information for citizens to secure access to information under
the control of public authorities in order to promote
85 (2013) 16 SCC 82
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transparency and accountability in the working of every public
authority. The Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens have,
however, the right to secure access to information of only
those matters which are ―under the control of public
authorities‖, the purpose is to hold ―the Government and its
instrumentalities‖ accountable to the governed.
Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the
Constitution, limits are being prescribed under the Act
itself, which are reasonable restrictions within the
meaning of Article 19(2) of the Constitution of India.‖
(Emphasis supplied)
The court expressly acknowledged that the RTI Act was enacted to fulfil the
positive content of the right to know that existed under Article 19(1)(a). Further,
restrictions on the disclosure of information under the RTI Act constitute
restrictions on the ‗right to know‘ as a facet of Article 19(1)(a).
84. Clause (j) of sub section (1) of Section 8 uses the phrases ―personal
information‖ and ―unwarranted invasion of the privacy of the individual‖. In
interpreting the harm to be caused in disclosing personal information, this Court
must be cognisant that the privacy of the individual is the subject of constitutional
protection. In K S Puttaswamy v Union of India86 a nine judge bench of this
Court unanimously held that there exists a constitutional right to privacy located
within Part III of the Constitution. Justice D Y Chandrachud, speaking for a
plurality of four judges, held:
―250. … The nine primary types of privacy are, according to
the above depiction:
(i) bodily privacy which reflects the privacy of the physical
body. Implicit in this is the negative freedom of being able to
86 (2017) 10 SCC 1
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prevent others from violating one's body or from restraining
the freedom of bodily movement;
(ii) spatial privacy which is reflected in the privacy of a private
space through which access of others can be restricted to the
space; intimate relations and family life are an apt illustration
of spatial privacy;
…
(ix) informational privacy which reflects an interest in
preventing information about the self from being
disseminated and controlling the extent of access to
information.
…
320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and personal
liberty in Article 21 of the Constitution. Elements of privacy
also arise in varying contexts from the other facets of freedom
and dignity recognised and guaranteed by the fundamental
rights contained in Part III.
…
323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy
also connotes a right to be left alone. Privacy safeguards
individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises
the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an essential
facet of the dignity of the human being.
…
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life
and personal liberty under Article 21, privacy is not an
absolute right. A law which encroaches upon privacy will
have to withstand the touchstone of permissible
restrictions on fundamental rights. In the context of Article
21 an invasion of privacy must be justified on the basis of a
law which stipulates a procedure which is fair, just and
reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21.
An invasion of life or personal liberty must meet the
threefold requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a legitimate
State aim; and (iii) proportionality which ensures a
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rational nexus between the objects and the means
adopted to achieve them.
326. Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take all
necessary measures to protect the privacy of the individual.
327. Decisions rendered by this Court subsequent to
Kharak Singh upholding the right to privacy would be
read subject to the above principles.‖
(Emphasis supplied)
Justice R F Nariman in his separate concurring opinion made the following
observations:
―521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some
invasion by the State of a person's rights relatable to his
physical body, such as the right to move freely;
• Informational privacy which does not deal with a
person's body but deals with a person's mind, and
therefore recognises that an individual may have control
over the dissemination of material that is personal to
him. Unauthorised use of such information may,
therefore lead to infringement of this right; and
• The privacy of choice, which protects an individual's
autonomy over fundamental personal choices….
…
536. This reference is answered by stating that the
inalienable fundamental right to privacy resides in Article
21 and other fundamental freedoms contained in Part III
of the Constitution of India. M.P. Sharma [M.P. Sharma v.
Satish Chandra, AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954
SCR 1077] and the majority in Kharak Singh [Kharak Singh v.
State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 :
(1964) 1 SCR 332] , to the extent that they indicate to the
contrary, stand overruled. The later judgments of this Court
recognising privacy as a fundamental right do not need to be
revisited.
(Emphasis supplied)
85. The right to privacy is a constitutional right emanating from the right to life
and personal liberty in Article 21 of the Constitution and from the facets of
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freedom and dignity embodied in Part III of the Constitution. Any restriction on
the right to privacy by the State must be provided for by law, pursue a legitimate
aim of the State and satisfy the test of proportionality. The requirement of
proportionality is satisfied when the nature and extent of the abridgement of the
right is proportionate to the legitimate aim being pursued by the State. The
constitutional protection of privacy encompasses not merely personal intimacies
but also extends to decisional and informational autonomy. An individual has a
constitutionally protected right to control the dissemination of personal
information. The unauthorised use of information abridges a citizen‘s right to
privacy.
86. The information disclosed under the RTI Act may include personal
information relating to individuals. The RTI Act does not contain any restrictions
on the end-use of the information disclosed under its provisions. The information
disclosed by an Information Officer of the State pursuant to a right to information
application may subsequently be widely disseminated. Clause (j) of sub section
(1) of Section 8 provides that, in certain situations, even personal information of
an individual may be disclosed under the RTI Act. Where the RTI Act
contemplates the disclosure of ―personal information‖, the right to privacy of the
individual is engaged. The Act recognise that the absolute or unwarranted
disclosure of an individual‘s personal information under the RTI Act would
constitute an ―unwarranted invasion of the right to privacy‖ under the statutory
provisions of the RTI Act and also abridge the individual‘s constitutional right to
privacy. However, the RTI Act has various checks and balances to guard against
the unadulterated disclosure of personal information under the RTI Act.
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87. The constitutional validity of the RTI Act as a measure abridging the right
to privacy is not in question before this Court. But it is trite to say that the RTI Act
satisfies the test of legality (by virtue of being a legislation) and also pursues a
legitimate state aim of ensuring, transparency and accountability of government
and an informed electorate. By requiring the Information Officer to balance the
public interest in disclosure against the privacy harm caused, clause (j) creates a
legislatively mandated measure of proportionality to ensure that the harm to the
individual‘s right to privacy is not disproportionate to the aim of securing
transparency and accountability.
A balancing of interests
88. The RTI Act is a legislative enactment which contains a finely tuned
balancing of interests between the privacy right of individuals whose information
may be disclosed and the broader public interest in ensuring transparency,
accountability and an informed electorate. Both these interests have significant
implications as they engage constitutional rights under Part III. The overarching
scheme of the RTI Act, and in particular Sections 3, 4 and 7 constitutes a
mandate to fulfil the positive content of the ‗right to information‘ as a facet of
Article 19(1)(a) of the Constitution. The privacy interest protected by clause (j) to
sub section (1) of Section 8 engages the principle of informational privacy as a
facet of the constitutional privacy as recognised by this Court in K S
Puttaswamy. Neither the ‗right to information‘ as a facet of Article 19(1)(a) nor
the right to informational privacy as a facet to the right to privacy are absolute.
The rights under Article 19(1)(a) may be restricted on the grounds enumerated in
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clause (2) of Article 19. The right to privacy and its numerous facets may be
permissibly restricted where the abridgement is provided by law, pursues a
legitimate State objective and complies with the principle of proportionality.
89. Clause (j) of sub section (1) of Section 8 requires the Information Officer to
first determine whether the information sought falls within the meaning of
―personal information‖. Where the information sought falls within the scope of
―personal information‖ and has ―no relationship to any public activity or interest‖
the information is exempt from disclosure under the RTI Act. However, where
there exists a ‗public interest‘ in the disclosure of the information sought, the test
to be applied by the Information Officer is different. The Information Officer must
evaluate whether the ―larger public interest‖ justifies the disclosure of the
information notwithstanding the fact that the information is ―personal information‖.
In doing so, the Information Officer must balance the privacy interest of the
individual whose personal information will be disclosed with the right to
information of the public to know the information sought. The substantive content
of the terms ―personal information‖ and ―public interest‖ must be informed by the
constitutional standards applicable to the ‗right to know‘ and the ‗right to privacy‘
as disclosure and non-disclosure under the RTI Act directly implicate these
constitutional rights. In striking a balance within the framework of the RTI Act, the
Information Officer must be cognisant of the substantive contents of these rights
and the extent to which they can be restricted within our constitutional scheme. It
is also crucial for the standard of proportionality to be applied to ensure that
neither right is restricted to a greater extent than necessary to fulfil the legitimate
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interest of the countervailing interest in question. It is now necessary to examine
the content of ―personal information‖ and ―public interest‖.
Defining Personal Information
90. To understand the scope of information which is protected from disclosure
under the RTI Act, it is of relevance to identify the nature of information which
may be regarded as ―personal information‖. The RTI Act does not put forth a
definition of the term ―personal information‖. However, ―personal information‖ has
been defined under other statutory frameworks. These definitions obviously do
not bind the interpretation of the RTI Act but are useful sources of guidance in
understanding the amplitude of the expression. We must of course read them
with a caveat because the context of usage is not the same.
Section 2(i) of the Information Technology (Reasonable Security Practices
And Procedures And Sensitive Personal Data Or Information) Rules, 2011
defines the term ―personal information‖ in the following terms:
―Personal information means any information that relates to a
natural person, which, either directly or indirectly, in
combination with other information available or likely to be
available with a body corporate, is capable of identifying such
person.‖
Thus, any information which is capable of identifying a natural person is
classified as personal information.
91. Article 4(1) of the EU General Data Protection Regulation (GDPR)
defines personal data in similar terms:
―Personal data‘ means any information relating to an
identified or identifiable natural person (‗data subject‘); an
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identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier
such as a name, an identification number, location data, an
online identifier or to one or more factors specific to the
physical, physiological, genetic, mental, economic, cultural or
social identity of that natural person.‖
The data protection regime in the European Union regards information such as
the name and surname, home address, location data, data held by a hospital or
doctor and identification card number of an individual as personal data.87 Courts
from the jurisdiction have interpreted the term ―personal data‖ broadly to even
include information relating to the professional life of an individual.
In Worten v Autoridade para as Condições de Trabalho88, the European Court
of Justice held the work timings of an employee constitute personal data:
―19. In that respect, it suffices to note that, as maintained by
all of the interested parties who submitted written
observations, the data contained in a record of working time
such as that at issue in the main proceedings, which concern,
in relation to each worker, the daily work periods and rest
periods, constitute personal data within the meaning of
Article 2(a) of Directive 95/46, because they represent
‗information relating to an identified or identifiable natural
person‖
(Emphasis supplied)
In Rechnungshof v Österreichischer Rundfunk,
89 the European Court of
Justice held that details of professional income received by employees from an
organisation subject to regulation by the Austrian Court of Audit amounts to
―personal data‖. It was held:
―It should be noted, to begin with, that the data at issue in the
main proceedings, which relate both to the monies paid by
87 What is personal data?, Official Website of the European Union https://ec.europa.eu/info/law/law-topic/dataprotection/reform/what-personal-data_en
88 C-342/12 dated 30 May 2013
89 Joined cases (C-465/00), (C-138/01) and (C-139/01) dated 20 May 2003
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certain bodies and the recipients, constitute personal data
within the meaning of Article 2(a) of Directive 95/46, being
information relating to an identified or identifiable natural
person. Their recording and use by the body concerned,
and their transmission to the Rechnungshof and
inclusion by the latter in a report intended to be
communicated to various political institutions and widely
diffused, constitute processing of personal data within
the meaning of Article 2(b) of the directive.‖
(Emphasis supplied)
92. The Protection of Personal Information Act, 2013 of South Africa
contains an illustrative and comprehensive definition of personal information:
‗‗personal information‘‘ means information relating to an
identifiable, living, natural person, and where it is applicable,
an identifiable, existing juristic person, including, but not
limited to—
(a) information relating to the race, gender, sex, pregnancy,
marital status, national, ethnic or social origin, colour, sexual
orientation, age, physical or mental health, well-being,
disability, religion, conscience, belief, culture, language and
birth of the person;
(b) information relating to the education or the medical,
financial, criminal or employment history of the person;
(c) any identifying number, symbol, e-mail address, physical
address, telephone number, location information, online
identifier or other particular assignment to the person;
(d) the biometric information of the person;
(e) the personal opinions, views or preferences of the person;
(f) correspondence sent by the person that is implicitly or
explicitly of a private or confidential nature or further
correspondence that would reveal the contents of the original
correspondence;
(g) the views or opinions of another individual about the
person; and
(h) the name of the person if it appears with other personal
information relating to the person or if the disclosure of the
name itself would reveal information about the person.‖
Protection from disclosure of personal information has been recognised as a
facet of the right to privacy in South Africa. In National Media Limited v
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Jooste90, it was alleged by the respondent that intimate details of her personal
life had been published by the appellant publishers without her consent. The
information published included details of her child as well as her relationship with
the father of the child. Justice Harms elucidated the right to privacy in the
following terms:
―A right to privacy encompasses the competence to
determine the destiny of private facts. The individual
concerned is entitled to dictate the ambit of disclosure e g to a
circle of friends, a professional adviser or the public. He may
prescribe the purpose and method the disclosure. Similarly, I
am of the view that a person is entitled to decide when and
under what conditions private facts may be made public…‖
(Emphasis supplied)
In NM v Smith91
, the names of three women who were HIV positive were
disclosed in a biography. It was alleged by the women that their names had been
disclosed without any prior consent and their rights to privacy, dignity and
psychological integrity had been violated by the disclosure. The opinion of four
judges in Puttaswamy noted the two conceptions of privacy that emerged from
the judgement of the Constitutional Court of South Africa which recognised the
value of privacy in medical information:
―According to the decision in Smith case , there are two
interrelated reasons for the constitutional protection of
privacy—one flows from the ―constitutional conception of what
it means to be a human being‖ and the second from the
―constitutional conception of the State‖:
―An implicit part of [the first] aspect of privacy is the right to
choose what personal information of ours is released into the
public space. The more intimate that information, the more
important it is in fostering privacy, dignity and autonomy
that an individual makes the primary decision whether to
release the information. That decision should not be
90 1996 (3) SA 262 (SCA)
91 [2007] ZACC 6
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made by others. This aspect of the right to privacy must
be respected by all of us, not only the state.
… Secondly, we value privacy as a necessary part of a
democratic society and as a constraint on the power of the
State… In authoritarian societies, the state generally does not
afford such protection. People and homes are often routinely
searched and the possibility of a private space from which the
state can be excluded is often denied. The consequence is a
denial of liberty and human dignity. In democratic societies,
this is impermissible.‖
….
On the interrelationship between the right to privacy, liberty
and dignity, the Court observed that:
―The right to privacy recognises the importance of protecting
the sphere of our personal daily lives from the public. In so
doing, it highlights the interrelationship between privacy,
liberty and dignity as the key constitutional rights which
construct our understanding of what it means to be a
human being. All these rights are therefore
interdependent and mutually reinforcing. We value privacy
for this reason at least—that the constitutional conception of
being a human being asserts and seeks to foster the
possibility of human beings choosing how to live their lives
within the overall framework of a broader community.‖
(Emphasis supplied)
93. In Australian Broadcasting Corporation v Lenah Game Meats92, the
Australian High Court heard an appeal with regard to an application for an
interlocutory injunction to restrain the broadcasting of a film depicting the
activities of the Respondent. The Respondent was a processor and supplier of
game meat and sold possum meat for export. Unknown persons had entered the
respondent's premises and installed hidden cameras. The possum-killing
operations were filmed without the knowledge or consent of the respondent. It
was claimed that the film was made surreptitiously and unlawfully and supplied to
92 [2001] HCA 63
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the appellant with the intention that the appellant would broadcast the film. In
determining the Respondent Corporation‘s claim to privacy, Chief Justice
Gleeson made the following observations:
―42. There is no bright line which can be drawn between what
is private and what is not. Use of the term "public" is often a
convenient method of contrast, but there is a large area in
between what is necessarily public and what is necessarily
private. An activity is not private simply because it is not done
in public. It does not suffice to make an act private that,
because it occurs on private property, it has such measure of
protection from the public gaze as the characteristics of the
property, the nature of the activity, the locality, and the
disposition of the property owner combine to afford. Certain
kinds of information about a person, such as information
relating to health, personal relationships, or finances,
may be easy to identify as private; as may certain kinds
of activity, which a reasonable person, applying
contemporary standards of morals and behaviour, would
understand to be meant to be unobserved. The
requirement that disclosure or observation of information
or conduct would be highly offensive to a reasonable
person of ordinary sensibilities is in many circumstances
a useful practical test of what is private.‖
(Emphasis supplied)
94. In Campbell v MGN Limited93
, the claimant was a supermodel who had
instituted proceedings against a publication called the ‗Mirror‘ for publishing
details of her efforts to overcome her drug addiction along with pictures of her
attending meetings of the ‗Narcotics Anonymous‘. The appeal was before the
House of Lords. In her opinion, Baroness Hale noted:
―145. It has always been accepted that information about a
person's health and treatment for ill-health is both private and
confidential. This stems not only from the confidentiality of the
93 [2003] 1 All ER 224
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doctor-patient relationship but from the nature of the
information itself…‖
….
147. I start, therefore, from the fact - indeed, it is common
ground - that all of the information about Miss Campbell's
addiction and attendance at NA which was revealed in
the Daily Mirror article was both private and confidential,
because it related to an important aspect of Miss
Campbell's physical and mental health and the treatment
she was receiving for it. It had also been received from
an insider in breach of confidence. That simple fact has
been obscured by the concession properly made on her
behalf that the newspaper's countervailing freedom of
expression did serve to justify the publication of some of
this information. But the starting point must be that it was all
private and its publication required specific justification.
(Emphasis supplied)
95. Courts in India have interpreted the scope of information which constitutes
―personal information‖ under the RTI Act. In Girish Ramchandra Deshpande v
Central Information Commissioner94, the petitioner sought copies of memos,
show-cause notices and punishments awarded to the third respondent by his
employer along with details of movable and immovable properties, investments,
lending and borrowing from banks and other financial institutions. The petitioner
also sought the details of gifts stated to have been accepted by the third
respondent. A large portion of the information sought was located in the income
tax returns of the third respondent. A two judge bench of the Court classified the
information sought as ―personal information‖ and held:
―12. … The performance of an employee/officer in an
organisation is primarily a matter between the employee and
the employer and normally those aspects are governed by the
service rules which fall under the expression ―personal
information‖, the disclosure of which has no relationship to
any public activity or public interest. On the other hand, the
disclosure of which would cause unwarranted invasion of
94 (2013) 1 SCC 212
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privacy of that individual. Of course, in a given case, if the
Central Public Information Officer or the State Public
Information Officer or the appellate authority is satisfied that
the larger public interest justifies the disclosure of such
information, appropriate orders could be passed but the
petitioner cannot claim those details as a matter of right.
13. The details disclosed by a person in his income tax
returns are ―personal information‖ which stand exempted from
disclosure under clause (j) of Section 8(1) of the RTI Act,
unless involves a larger public interest and the Central Public
Information Officer or the State Public Information Officer or
the appellate authority is satisfied that the larger public
interest justifies the disclosure of such information.‖
Thus, even in cases where information may be classified as ―personal
information‖, the CPIO is required to undertake an enquiry on a case to case
basis to determine if the disclosure of information is justified.
96. In R K Jain v Union of India95
, the appellant‘s application to the Chief
Information Commissioner seeking copies of note-sheets and files relating to a
member of CESTAT, was rejected. The two-judge bench of this Court placed
reliance on the holding in Girish Deshpande and rejected the appellant‘s claim
for inspection of documents relating to the Annual Confidential Reports of the
member of CESTAT, including documents relating to adverse entries in the
Annual Confidential Reports and the ―follow-up action‖ taken. In Canara Bank v
C S Shyam96, the respondent was employed by the appellant bank as clerical
staff and had asked for information relating to the transfer and posting of other
clerical staff employed by the bank. This information sought included personal
details such as the date of joining, designation of employee, details of promotion
95 (2013) 14 SCC 794
96 (2018) 11 SCC 426
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earned, date of joining to the branch. Speaking for a two-judge Bench of this
Court, Justice A M Sapre considered the holding in Girish Deshpande and held
―14. In our considered opinion, the aforementioned principle
of law applies to the facts of this case on all force. It is for the
reasons that, firstly, the information sought by Respondent 1
of individual employees working in the Bank was personal in
nature; secondly, it was exempted from being disclosed under
Section 8(1)(j) of the Act and lastly, neither Respondent 1
disclosed any public interest much less larger public interest
involved in seeking such information of the individual
employee nor was any finding recorded by the Central
Information Commission [C.S. Shyam v. Canara Bank, 2007
SCC OnLine CIC 626] and the High Court [Canara
Bank v. CIC, 2007 SCC OnLine Ker 659] as to the
involvement of any larger public interest in supplying such
information to Respondent 1.‖
97. In Subhash Chandra Agarwal v Registrar, Supreme Court of India97
,
the appellant had filed an application under the RTI Act seeking information
relating to the details of the medical facilities availed by the Judges of the
Supreme Court and their family members in the preceding three years, including
information relating to expenses on private treatment in India or abroad. The
Court held that disclosure of information regarding medical facilities availed by
judges amounts to an invasion of privacy:
―11. The information sought by the appellant includes the
details of the medical facilities availed by the individual
Judges. The same being personal information, we are of the
view that providing such information would undoubtedly
amount to invasion of the privacy. We have also taken note of
the fact that it was conceded before the learned Single Judge
by the learned counsel for the appellant herein that no larger
public interest is involved in seeking the details of the medical
facilities availed by the individual Judges. It may also be
mentioned that the total expenditure incurred for the medical
treatment of the Judges for the period in question was already
furnished by the CPIO by his letter dated 30-8-2011 and it is
97 (2018) 11 SCC 634
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not the case of the appellant that the said expenditure is
excessive or exorbitant. That being so, we are unable to
understand how the public interest requires disclosure of the
details of the medical facilities availed by the individual
Judges. In the absence of any such larger public interest, no
direction whatsoever can be issued under Section 19(8)(a)(iv)
of the Act by the appellate authorities. Therefore on that
ground also the order passed by the CIC dated 1-2-2012 is
unsustainable and the same has rightly been set aside by the
learned Single Judge.‖
Thus, it emerges from the discussion that certain category of information such as
medical information, details of personal relations, employee records and
professional income can be classified as personal information. The question of
whether such information must be disclosed has to be determined by the CPIO
on a case to case basis, depending on the public interest demonstrated in favour
of disclosure.
Public Interest
98. The right to information and the need for transparency in the case of
elected officials is grounded in the democratic need to facilitate better decision
making by the public. Transparency and the right to information directly
contribute to the ability of citizens to monitor and make more informed decisions
with respect to the conduct of elected officials. Where the misconduct of an
elected representative is exposed to the public, citizens can choose not to vote
for the person at the next poll. In this manner, the democratic process coupled
with the right to information facilitates better administration and provides powerful
incentives for good public decision making. In the case of judges, citizens do not
possess a direct agency relationship. Therefore, the ‗public interest‘ in disclosing
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information in regard to a judge cannot be sourced on the need for ensuring
democratic accountability through better public decision making but must be
located elsewhere.
99. In common law countries, public interest has always been understood to
operate as an interest independent to that of the State. Public interest operates
equally against the State as it does against non-State actors. This is of
significance in the context of the RTI Act as the right to information seeks to bring
about disclosure of information previously held exclusively by the State. Public
interest therefore operates as a standalone viewpoint independent of whether the
interest of the State favours disclosure or non-disclosure. At its core, the
objective test for ‗public interest‘ is far broader than democratic decision making
and takes into consideration both shared conceptions of the common good in
society at any given point and yet recognises that such conceptions are always
the product of contestation and disagreement, necessitating a robust set of
viewpoints to facilitate the self-fulfilment of the individual and the search for truth.
100. In Secy., Ministry of Information & Broadcasting, Govt. of India v
Cricket Assn. of Bengal98 Justice P B Sawant speaking for a three judge bench
of this Court observed:
―43. We may now summarise the law on the freedom of
speech and expression under Article 19(1)(a) as restricted by
Article 19(2). The freedom of speech and expression includes
right to acquire information and to disseminate it. Freedom of
speech and expression is necessary, for self-expression
which is an important means of free conscience and selffulfilment. It enables people to contribute to debates on social
and moral issues. It is the best way to find a truest model of
anything, since it is only through it that the widest possible
98 (1995) 2 SCC 161
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range of ideas can circulate. It is the only vehicle of political
discourse so essential to democracy. Equally important is the
role it plays in facilitating artistic and scholarly endeavours of
all sorts. The right to communicate, therefore, includes right
to communicate through any media that is available whether
print or electronic or audio-visual such as advertisement,
movie, article, speech etc. That is why freedom of speech
and expression includes freedom of the press. The freedom
of the press in terms includes right to circulate and also to
determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one's
opinion without interference to as large a population in the
country, as well as abroad, as is possible to reach.‖
The right to information is not solely premised on improving the quality of
democratic decision making but also finds its roots in other bases of freedom of
expression, including the self-fulfilment of the individual, the introduction of
competing views into the ‗marketplace of ideas‘ and the autonomy and dignity of
the individual. Limiting the term ‗public interest‘ to information that allows
individuals to make better public choices with respect to public officials fails to
take into consideration the powerful benefits that the dissemination of information
held by public authorities may have on the development of discourse, private
decision making and the nourishment of the individual.
101. We have already observed that the accountability of the judiciary to the
citizenry is inherent in the office of the judge. The administration of justice in our
country is a vast, crucial and expensive endeavour that impacts millions of
citizens on a daily basis. The contention that merely because a judge cannot be
elected out of office, the conduct of judges and their general administration is not
a matter of great public interest cannot be countenanced. The disclosure of
information about the conduct of judges and their administration is necessary to
ensure that the broader societal goals in the administration of justice are
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achieved. The disclosure of information can highlight areas where robust
mechanisms of oversight and accountability are required. Lastly, the disclosure
of information with respect to the judiciary also facilitates the self-fulfilment of the
freedom of expression of individuals engaged in reporting, critiquing and
discussing the activities of the court. The freedom of the press in exercising its
role as a ‗public watchdog‘ is also facilitated by the disclosure of information.
102. The factors that weigh in favour of disclosure in the ‗public interest‘ are
specific to each unique case. However, over the years several authorities have
given shape to the concept of public interest and provided indicative factors that
weigh in favour of the disclosure of information. In an article titled ―Freedom of
information and the public interest: the Commonwealth experience‖
99 the
authors lay down several factors that, when found to exist in any given case,
would weigh in favour of disclosure. The authors state:
―It is generally accepted that the public interest is not
synonymous with what is of interest to the public, in the sense
of satisfying public curiosity about some matter. For example,
the UK Information Tribunal has drawn a distinction between
‗matters which were in the interest of the public to know and
matters which were merely interesting to the public (ie which
the public would like to know about, and which sell
newspapers, but … are not relevant)‘
Factors identified as favouring disclosure include the public
interest in: contributing to a debate on a matter of public
importance; accountability of officials; openness in the
expenditure of public funds, the performance by a public
authority of its regulatory functions, the handling of
complaints by public authorities; exposure of wrongdoing,
inefficiency or unfairness; individuals being able to refute
allegations made against them; enhancements of scrutiny of
decision-making; and protecting against danger to public
health or safety.‖
99 Moira Paterson and Maeve McDonagh, Freedom of information and the public interest: the Commonwealth
experience, Oxford University Commonwealth Law Journal, 17:2, 189-210 pp. 201.
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The factors identified fulfil a significantly broader gamut of goals than merely
holding democratically elected officials accountable. The contribution made by
the disclosure of information to debate on matters of public importance is in itself
a factor in favour of disclosure. Where the disclosure of documents casts a light
on the adequate performance of public authorities and any mala fide actions or
wrongdoings by public figures, facilitating the broader goal of accountability, there
exists a public interest in favour of disclosure.
103. In Campbell v MGN Limited100 the House of Lords was called upon to
balance the freedom of expression with the right to privacy. The claimant was a
model who had been photographed leaving a drug rehabilitation meeting. The
photographs were published, and the claimant claimed compensation for a
breach of confidentiality. While the claimant admitted that there existed a public
interest in the photographs of her attending the drug rehabilitation therapy, in
evaluating the right of the defendant to publish the information Baroness Hale
made the following observations:
―148. What was the nature of the freedom of expression
which was being asserted on the other side? There are
undoubtedly different types of speech, just as there are
different types of private information, some of which are more
deserving of protection in a democratic society than others.
Top of the list is political speech. The free exchange of
information and ideas on matters relevant to the
organisation of the economic, social and political life of
the country is crucial to any democracy. Without this, it
can scarcely be called a democracy at all. This includes
revealing information about public figures, especially those in
elective office, which would otherwise be private but is
relevant to their participation in public life. Intellectual and
educational speech and expression are also important in
a democracy, not least because they enable the
development of individuals' potential to play a full part in
100 [2004] UKHL 22
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society and in our democratic life. Artistic speech and
expression is important for similar reasons, in fostering
both individual originality and creativity and the freethinking and dynamic society we so much value. No
doubt there are other kinds of speech and expression for
which similar claims can be made.‖
(Emphasis supplied)
As a facet of the freedom of expression, the ‗public interest‘ element of the right
to information has several jurisprudential bases. The public interest in disclosure
extends to information which informs political debate and the organisation of
―economic, social and political life‖. There also exists public interest in information
which is ―intellectual or educational‖ and furthers the development of the
individual. Lastly, public interest would also cover information which is of artistic
relevance or fosters and nourishes the individual.
104. The opinion of Baroness Hale indicates a priority of interests in the
determination of whether speech is in the ‗public interest‘ and is deserving of
protection. However, this Court should caution against such an approach. The
freedom of expression protects a broad range of ideas, including those that
‗offend, shock and disturb‘. In deciding whether information should be disclosed
in the public interest, it is not for the Court to sit in judgement of society and
make a determination on whether society would be ‗better off‘ or ‗worse off‘ if the
information is disclosed. In the prescient words of Justice Tugendhat: ―It is not for
the judge to express personal views on such matters, still less to impose
whatever personal views he might have.‖101 It is well established that ‗public
interest‘ does not amount to what the public may find interesting. However,
where the information sought to be disclosed falls within the various fields
101 Terry (previously ‗LNS‘) v Persons Unknown [2010] EWHC 119
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discussed above, including the promotion of public debate, intellectual or
educational information or artistic information, the information possesses a
‗public interest‘ connotation in favour of disclosure.
105. Section 11B of the Australian Freedom of Information Act 1982 provides a
list of indicative factors that may be used by courts to determine whether a
document should be disclosed in the ―public interest‖. Section 11B is as under:
―11B Public interest exemptions – factors
(1) This section applies for the purpose of working out
whether access to a conditionally exempt document would,
on balance, be contrary to the public interest under
subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public
interest include whether access to the document would do
any of the following:
(a) promote the objects of this Act (including all the matters
set out in sections 3 and 3A);
(b) inform public debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal
information.‖
The Australian statute notes that ―public interest‖ must be interpreted as the
factors and circumstances that promote the objectives of the legislation. In
addition to these objectives, crucial factors weighing in favour of public interest
are the promotion of public debate and matters relating to public expenditure.
106. The understanding that, in interpreting the phrase ‗public interest‘ courts
should pay heed to the objects of the legislation has been adopted in our country
as well. In Bihar Public Service Commission v Saiyed Hussain Abbas
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Rizwi102, Justice Swatanter Kumar speaking for a two judge bench of this Court
made the following observations:
―22. The expression ―public interest‖ has to be
understood in its true connotation so as to give complete
meaning to the relevant provisions of the Act. The
expression ―public interest‖ must be viewed in its strict sense
with all its exceptions so as to justify denial of a statutory
exemption in terms of the Act. In its common parlance, the
expression ―public interest‖, like ―public purpose‖, is not
capable of any precise definition. It does not have a rigid
meaning, is elastic and takes its colour from the statute
in which it occurs, the concept varying with time and
state of society and its needs (State of Bihar v. Kameshwar
Singh [AIR 1952 SC 252]). It also means the general welfare
of the public that warrants recognition and protection;
something in which the public as a whole has a stake [Black's
Law Dictionary (8th Edn.)].‖
(Emphasis supplied)
The Court noted that the phrase ‗public interest‘ must be understood within the
context of the enactment the phrase is used in. In the present case, the use of
the phrase ‗public interest‘ must be understood in light of the object and purpose
of the RTI Act. The Court in Bihar Public Service Commission observed that
the existence of certain exemptions from disclosure under clause (1) of Section 8
would lead to a narrow reading of the phrase ―public interest‖. This is not the
correct approach. As noted previously in this judgement, the overarching principle
of the RTI Act is to operationalise the disclosure of information held by public
authorities in furtherance of the right to information under Article 19(1)(a) of the
Constitution. Merely because the provisions of the RTI Act contain certain
restrictions on the disclosure of information cannot lead to a conclusion that the
phrase ―public interest‖ under the RTI Act must be construed narrowly. Rather,
under the scheme of clause (j) of clause (1) of Section 8, ―public interest‖ is the
102 (2012) 13 SCC 61
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measure of factors favouring the disclosure of information, which is subsequently
weighed against the factors of privacy which weight in favour of non-disclosure.
The existence of the balancing test creates a restriction on disclosure under the
RTI Act but does not affect the wide meaning independently accorded to ―public
interest‖ understood as emanating from the freedom of speech and expression.
107. Clause (j) of clause (1) of Section 8 requires the Information Officer to
weigh the ―public interest‖ in disclosure against the privacy harm. The disclosure
of different documents in different circumstances will give rise to unique ―public
interest‖ factors in favour of disclosure. However, a few broad principles may be
laid out as to how the phrase ―public interest‖ is to be understood. Where factors
fall within this interpretation ―public interest‖ so interpreted, they are factors that
weigh in favour of disclosure. The principles are as follows:
(i) Public interest is not limited to information which directly promotes
the democratic accountability of elected officials;
(ii) There exists public interest in the disclosure of information where
the information sought informs political debate, is educational or
intellectual or serves artistic purposes;
(iii) Where the information sought will promote public debate on political,
economic or social issues, there exists a public interest in
disclosure;
(iv) Judges and Information Officers should not pass a value judgement
on whether the speech in question furthers their own conception of
societal good or interest for it to satisfy the test of public interest;
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102
(v) As an indicative list, information concerning the accountability of
officials, public expenditure, the performance of public duties, the
handling of complaints, the existence of any wrongdoing by a public
official, inefficiency in public administration and unfairness in public
administration all possess public interest value, their relative
strength to be determined on a case by case basis;
(vi) Where the disclosure of information would promote the aims and
objectives of the RTI Act, there exists a ―public interest‖ in disclosing
such information; and
(vii) The object and purpose of the RTI Act is the fulfilment of the positive
obligation on the State to provide access to information under Article
19(1)(a) of the Constitution and the existence of the restrictions on
the disclosure of information does not restrict the meaning of ―public
interest‖ under the Act.
Balancing interests in disclosure with privacy interests
108. We have adverted to the substantive content of ―personal information‖ and
―public interest‖ as distinct factors to be considered by the Information Officer
when arriving at a determination under clause (j) of clause (1) of Section 8. In the
present case, the information sought by the respondent raises both
considerations of ―public interest‖ and ―personal information‖. The text of clause
(j) requires the Information Officer to make a determination whether the ―larger
public interest justifies the disclosure‖ of personal information sought. The
PART H
103
Information Officer must conduct balancing or weighing of interests in making a
determination in favour of disclosure or non-disclosure. The Information Officer
must be cognisant that any determination under clause (j) of clause (1) of Section
8 implicates the right to information and the right to privacy as constitutional
rights. Reason forms the heart of the law and the decision of the Information
Officer must provide cogent and articulate reasons for the factors considered and
conclusions arrived at in balancing the two interests. In answering the third
referral question in its entirety, this Court would be remiss in not setting out the
analytical approach to be applied by the Information Officer in balancing the
interests in disclosure with the countervailing privacy interests. Justice S C
Agrawal speaking for a Constitution Bench of this Court in S N Mukherjee v
Union of India103 observed:
―9. The object underlying the rules of natural justice ―is to
prevent miscarriage of justice‖ and secure ―fair play in action‖.
As pointed out earlier the requirement about recording of
reasons for its decision by an administrative authority
exercising quasi-judicial functions achieves this object
by excluding chances of arbitrariness and ensuring a
degree of fairness in the process of decision-making.
Keeping in view the expanding horizon of the principles of
natural justice, we are of the opinion, that the requirement to
record reason can be regarded as one of the principles of
natural justice which govern exercise of power by
administrative authorities. The rules of natural justice are
not embodied rules.
(Emphasis supplied)
The requirement to record reasons is a principle of natural justice and a check
against the arbitrary exercise of power by judicial and quasi-judicial bodies. In
making a determination under clause (j) of clause (1) of Section 8 in a given
case, it would not be satisfactory if an Information Officer were merely to record
103 (1990) 4 SCC 495
PART H
104
that the privacy interest outweighed the public interest. Something more is
required. By providing an analytical framework to address the two interests to be
weighed and requiring the Information Officer record detailed reasons within this
framework, the arbitrary exercise or discretion of the Information Officer is
guarded against.
109. In the prescient words of Lord Denning:
―…each man should be free to develop his own personality to
the full: and the only duties which should restrict this freedom
are those which are necessary to enable everyone else to do
the same."104
Neither the right to information nor the right to privacy are absolute rights under
the framework of the RTI Act. Where the right to information of an information
applicant in requesting information touches upon the right to privacy of the person
whose information is sought, the RTI Act calls upon the Information Officer to
weigh the two interests and determine which is stronger. In Thalappalam
Service Coop. Bank Ltd. v State of Kerala105 Justice K S P Radhakrishnan,
speaking for a two judge bench of this Court, noted:
―61. The right to information and right to privacy are,
therefore, not absolute rights, both the rights, one of which
falls under Article 19(1)(a) and the other under Article 21 of
the Constitution of India, can obviously be regulated,
restricted and curtailed in the larger public interest. Absolute
or uncontrolled individual rights do not and cannot exist
in any modern State. Citizens' right to get information is
statutorily recognised by the RTI Act, but at the same
time limitations are also provided in the Act itself, which
is discernible from the Preamble and other provisions of
the Act…. The citizens, in that event, can always claim a
104 Lord Denning, Freedom Under the Law (Hamlyn Lectures) 1968 (Sweet & Maxwell).
105 (2013) 16 SCC 82
PART H
105
right to privacy, the right of a citizen to access information
should be respected, so also a citizen's right to privacy.‖
(Emphasis supplied)
110. In setting out the precise approach to be adopted by the Information
Officer in making a determination under clause (j) of clause (1) of Section 8 it is
worth adverting to the decision of Campbell v MGM Limited106 the facts of which
have already been discussed above. In that case, the House of Lords was called
upon to balance the privacy rights of the claimant, being photographed leaving a
‗Narcotics Anonymous‘ meeting, under Article 8 of the European Convention of
Human Rights107 and the right of the defendant to publish the information under
Article 10 of the ECHR which provides for the freedom of expression. Although
not a case with respect to the disclosure of documents, the House of Lords
makes several notable observations about balancing privacy and free speech
interests. Lord Nicholls observed:
―20. I should take this a little further on one point. Article 8(1)
recognises the need to respect private and family life.
Article 8(2) recognises there are occasions when intrusion
into private and family life may be justified. One of these is
where the intrusion is necessary for the protection of the
rights and freedoms of others. Article 10(1) recognises the
importance of freedom of expression. But article 10(2), like
article 8(2), recognises there are occasions when protection
of the rights of others may make it necessary for freedom of
expression to give way. When both these articles are
engaged a difficult question of proportionality may arise.
This question is distinct from the initial question of
whether the published information engaged article 8 at all
by being within the sphere of the complainant's private
or family life.‖
(Emphasis supplied)
106 [2004] UKHL 22
107 ―ECHR‖
PART H
106
The first question of significance is whether the right to privacy of the person
whose information is sought is engaged. This approach was subsequently
applied by the Court of Appeal in HRH Prince of Wales v Associated
Newspapers Ltd108. The text of clause (j) of clause (1) of Section 8 also
articulates this threshold. For clause (j) to be engaged at the first instance, the
information sought must constitute ―personal information‖. This is an inquiry
independent to the question of how the privacy interest should be balanced with
the free speech interest.
111. Where the information sought is ―personal information‖ the court must next
balance the interest in disclosure or dissemination with the privacy interest at
stake. Baroness Hale in her opinion in Campbell stated:
―137. It should be emphasised that the ‗reasonable
expectation of privacy‘ is a threshold test which brings the
balancing exercise into play. It is not the end of the story.
Once the information is identified as ‗private‘ in this way, the
court must balance the claimant‘s interest in keeping the
information private against the countervailing interest of the
recipient in publishing it. Very often, it can be expected that
the countervailing rights of the recipient will prevail.
…
140. The application of the proportionality test is more
straightforward when only one Convention right is in play: the
question then is whether the private right claimed offers
sufficient justification for the degree of interference with the
fundamental right. It is much less straightforward when
two Convention rights are in play, and the proportionality
of interfering with one has to be balanced against the
proportionality of restricting the other. As each is a
fundamental right, there is evidently a ―pressing social
need‖ to protect it.
141. Both parties accepted the basic approach of the Court of
Appeal in In re S [2003] 3 WLR 1425, 1451-1452, at paras 54
to 60. This involves looking first at the comparative
importance of the actual rights being claimed in the
individual case; then at the justifications for interfering
108 [2006] EWHA Civ 1776
PART H
107
with or restricting each of those rights; and applying the
proportionality test to each. The parties in this case differed
about whether the trial judge or the Court of Appeal had done
this, the appellant arguing that the Court of Appeal had
assumed primacy for the Article 10 right while the respondent
argued that the trial judge had assumed primacy for the
Article 8 right.
(Emphasis supplied)
112. Once the information sought has been identified as ―personal information‖
the Information Officer must identify the actual rights being claimed in the
individual case. In setting out the substantive content of ‗public interest‘ and
‗privacy‘ various facets of these concepts have been set out. In any given case,
the Information Officer must identify the precise interests weighing in favour of
‗public interest‘ disclosure, and those interests weighing in favour of ‗privacy‘ and
non-disclosure. The Information Officer must then examine the justifications for
restricting each right and whether they are countenanced under the scheme of
RTI Act and in law generally. The ground of confidentiality simpliciter is not a
ground to restrict the right to information under the RTI Act or Article 19(1)(a) of
the Constitution. Lastly, the Information Officer must employ the principle of
proportionality. As observed by Baroness Hale, both the right to privacy and the
right to information are legitimate aims. In applying the principle of proportionality,
the Information Officer must ensure that the abridgement of a right is not
disproportionate to the legitimate aim sought to be achieved by enforcing the
countervailing right.
113. Take the example of where an information applicant sought the disclosure
of how many leaves were taken by a public employee and the reasons for such
leave. The need to ensure accountability of public employees is of clear public
PART H
108
interest in favour of disclosure. The reasons for the leave may also include
medical information with respect to the public employee, creating a clear privacy
interest in favour of non-disclosure. It is insufficient to state that the privacy
interest in medical records is extremely high and therefore the outcome should
be blanket non-disclosure. The principle of proportionality may necessitate that
the number of and reasons for the leaves be disclosed and the medical reasons
for the leave be omitted. This would ensure that the interest in accountability is
only abridged to the extent necessary to protect the legitimate aim of the privacy
of the public employee.
114. Having adverted to the analytical test to be applied by the Information
Officers in balancing the two interests, it is also worth setting out certain factors
that should not be considered in such a balancing. Section 11B of the Australian
Freedom of Information Act 1982 lays down certain ‗Irrelevant factors‘ that
should not be considered in determining whether to disclose information. Section
11B is as under:
―…Irrelevant factors
(4) The following factors must not be taken into account in
deciding whether access to the document would, on balance,
be contrary to the public interest:
(a) access to the document could result in embarrassment to
the Commonwealth Government, or cause a loss of
confidence in the Commonwealth Government;
(b) access to the document could result in any person
misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in
the agency to which the request for access to the document
was made;
(d) access to the document could result in confusion or
unnecessary debate.‖
PART I
109
The factors set out above are not relevant or permissible restrictions on the right
to information and should not be considered in determining whether or not to
disclose information under the RTI Act. Clause (2) of Section 6 of the RTI Act
provides that an information applicant need not provide any reason as to why the
information is sought. It would not be open for an Information Officer to deny the
disclosure of information on the ground that the information would lead to
confusion, embarrassment or unnecessary debate in the public sphere. By
enumerating the grounds on which information may be exempted from the
general obligation to disclose, clause (1) of Section 8 negates the notion that
information may be withheld on the sole ground of confidentiality.
I Conclusion
115. The information sought by the respondent pertains to (1) the
correspondence and file notings relating to the elevation of three judges to the
Supreme Court, (2) information relating to the declaration of assets made by
judges pursuant to the 1997 resolution, and (3) the identity and nature of
disciplinary proceedings instituted against the lawyer and judge named in the
newspaper report. The third referral question requires this Court to determine
whether the disclosure of the information sought is exempt under clause (j) of
clause (1) of Section 8. In arriving at a determination on whether the information
sought is exempt under clause (j), it is necessary to (i) determine whether the
information sought is ―personal information‖ and engages the right to privacy, (ii)
identify, in the facts of the present case, the specific heads of public interest in
favour of disclosure and the specific privacy interests claimed, (iii) determine the
PART J
110
justifications for restricting such interests and (iv) apply the principle of
proportionality to ensure that no right is abridged more than required to fulfil the
legitimate aim of the countervailing right. The process under Section 11 of the
RTI must be complied with where the information sought is ‗third party
information‘. The substantive content of the terms ‗personal information‘ and
‗public interest‘ have also been set out in the present judgement.
J Directions
116. The information sought in Civil Appeal No 2683 with respect to which
judges of the Supreme Court have declared their assets does not constitute the
―personal information‖ of the judges and does not engage the right to privacy.
The contents of the declaration of assets would fall within the meaning of
―personal information‖ and the test set out under clause (j) of clause (1) of
Section 8 would be applicable along with the procedure under Section 11 of the
RTI Act. In view of the above observations, Civil Appeal No. 2683 of 2010 is
dismissed and the judgement of the Delhi High Court dated 12 January 2010 in
LPA No 501 of 2009 is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO,
Supreme Court of India to be examined and a determination arrived at, after
applying the principles set out in the present judgement. The information sought
in these appeals falls within the meaning of ‗third party information‘ and the
procedure under Section 11 must be complied with in arriving at a determination.
PART J
111
Brother Justice Sanjiv Khanna has observed that:
―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‖
I wish to add a few thoughts of my own on the subject. The collegium owes its
birth to judicial interpretation. In significant respects, the collegium is a victim of
its own birth – pangs. Bereft of information pertaining to both the criteria
governing the selection and appointment of judges to the higher judiciary and the
application of those criteria in individual cases, citizens have engaged the
constitutional right to information, facilitated by the RTI Act.
If the content of the right and the enforcement of the statute are to possess a
meaningful dimension in their application to the judiciary – as it must, certain
steps are necessary. Foremost among them is that the basis for the selection and
appointment of judges to the higher judiciary must be defined and placed in the
public realm. This is the procedure which is followed in making appointments but
also in terms of the substantive norms which are adopted while making judicial
appointments. There can be no denying the fact that there is a vital element of
public interest in knowing about the norms which are taken into consideration in
selecting candidates for higher judicial officer and making judicial appointments.
Knowledge is a powerful instrument which secures consistency in application and
PART J
112
generates the confidence that is essential to the sanctity of the process of judicial
appointments. This is essentially because the collegium system postulates that
proposals for appointment of judges are initiated by the judges themselves.
Essential substantial norms in regard to judicial appointments include:
(i) The basis on which performance of a member of the Bar is evaluated
for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a member of the
Bar fulfils requirements in terms of:
a) Experience as reflected in the quantum and nature of the
practice;
b) Domain specialization in areas which are geared to the evolving
nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature of the
practice and the circumstances prevailing in the court or region
concerned;
d) The commitment demonstrated by a candidate under
consideration to the development of the law in terms of written
work, research and academic qualifications; and
e) The social orientation of the candidate, defined in terms of the
extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an inclusive
institution and its diversity in terms of gender, representation to
minorities and the marginalised, orientation and other relevant factors.
PART J
113
The present judgment does not seek to define what the standards for judicial
appointments should be. However, what needs to be emphasised is that the
substantive standards which are borne in mind must be formulated and placed
in the public realm as a measure that would promote confidence in the
appointments process. Due publicity to the norms which have been
formulated and are applied would foster a degree of transparency and
promote accountability in decision making at all levels within the judiciary and
the government. The norms may also spell out the criteria followed for
assessing the judges of the district judiciary for higher judicial office. 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.
.……......................................................J
[Dr Dhananjaya Y Chandrachud]
New Delhi;
November 13, 2019.
“(1) Whether the respondent had any "right to information" under Section 2(j) of the Act in respect of
the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?
(2) If the answer to question (1) above is in affirmative, whether CJI held the "information" in his "fiduciary" capacity, within the meaning of the expression used in
Section 8(1)(e) of the Act?
(3) Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act?”
Conclusion
115. The information sought by the respondent pertains to (
1) the correspondence and file notings relating to the elevation of three judges to the Supreme Court, (2) information relating to the declaration of assets made by judges pursuant to the 1997 resolution, and
(3) the identity and nature of disciplinary proceedings instituted against the lawyer and judge named in the newspaper report.
The third referral question requires this Court to determine whether the disclosure of the information sought is exempt under clause (j) of
clause (1) of Section 8.
In arriving at a determination on whether the information sought is exempt under clause (j), it is necessary to
(i) determine whether the information sought is ―personal information‖ and engages the right to privacy,
(ii) identify, in the facts of the present case, the specific heads of public interest in favour ofdisclosure and the specific privacy interests claimed,
(iii) determine the justifications for restricting such interests and
(iv) apply the principle of proportionality to ensure that no right is abridged more than required to fulfil the legitimate aim of the countervailing right.
The process under Section 11 of the RTI must be complied with where the information sought is ‗third party information‘. The substantive content of the terms ‗personal information‘ and
‗public interest‘ have also been set out in the present judgement.
Directions
116. The information sought in Civil Appeal No 2683 with respect to which judges of the Supreme Court have declared their assets does not constitute the―personal information‖ of the judges and does not engage the right to privacy.
The contents of the declaration of assets would fall within the meaning of ―personal information‖ and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11 of the RTI Act. In view of the above observations,
Civil Appeal No. 2683 of 2010 is dismissed and the judgement of the Delhi High Court dated is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO, Supreme Court of India to be examined and a determination arrived at, after applying the principles set out in the present judgement. The information sought in these appeals falls within the meaning of ‗third party information‘ and the procedure under Section 11 must be complied with in arriving at a determination.
Brother Justice Sanjiv Khanna has observed that:―
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‖
I wish to add a few thoughts of my own on the subject. The collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the
constitutional right to information, facilitated by the RTI Act.
If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm.
This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments.
Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves.
Essential substantial norms in regard to judicial appointments include:
(i) The basis on which performance of a member of the Bar is evaluated
for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a member of the
Bar fulfils requirements in terms of:
a) Experience as reflected in the quantum and nature of the
practice;
b) Domain specialization in areas which are geared to the evolving
nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature of the
practice and the circumstances prevailing in the court or region
concerned;
d) The commitment demonstrated by a candidate under
consideration to the development of the law in terms of written
work, research and academic qualifications; and
e) The social orientation of the candidate, defined in terms of the
extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an inclusive
institution and its diversity in terms of gender, representation to
minorities and the marginalised, orientation and other relevant factors.
The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the
appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. 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.
Civil Appeal No. 10044 of 2010 & Ors. Page 1 of 108
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA ….. APPELLANT(S)
VERSUS
SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 10045 OF 2010
A N D
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
SANJIV KHANNA, J.
This judgment would decide the afore-captioned appeals
preferred by the Central Public Information Officer (‘CPIO’ for
short), Supreme Court of India (appellant in Civil Appeal Nos.
10044 and 10045 of 2010), and Secretary General, Supreme
Court of India (appellant in Civil Appeal No. 2683 of 2010), against
the common respondent – Subhash Chandra Agarwal, and seeks
Civil Appeal No. 10044 of 2010 & Ors. Page 2 of 108
to answer the question as to ‘how transparent is transparent
enough’
1 under the Right to Information Act, 2005 (‘RTI Act’ for
short) in the context of collegium system for appointment and
elevation of judges to the Supreme Court and the High Courts;
declaration of assets by judges, etc.
2. Civil Appeal No. 10045 of 2010 titled Central Public Information
Officer, Supreme Court of India v. Subhash Chandra Agarwal
arises from an application moved by Subhash Chandra Agarwal
before the CPIO, Supreme Court of India on 6th July, 2009 to
furnish a copy of the complete correspondence with the then Chief
Justice of India as the Times of India had reported that a Union
Minister had approached, through a lawyer, Mr. Justice R.
Reghupathi of the High Court of Madras to influence his judicial
decisions. The information was denied by the CPIO, Supreme
Court of India on the ground that the information sought by the
applicant-respondent was not handled and dealt with by the
Registry of the Supreme Court of India and the information
relating thereto was neither maintained nor available with the
Registry. First appeal filed by Subhash Chandra Aggarwal was
1 Heading of an article written by Alberto Alemanno: “How Transparent is Transparent Enough?
Balancing Access to Information Against Privacy in European Judicial Selection” reproduced in
Michal Bobek (ed.) Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to
the European Courts (Oxford University Press 2015).
Civil Appeal No. 10044 of 2010 & Ors. Page 3 of 108
dismissed by the appellate authority vide order dated 05th
September, 2009. On further appeal, the Central Information
Commission (‘CIC’ for short) vide order dated 24th November,
2009 has directed disclosure of information observing that
disclosure would not infringe upon the constitutional status of the
judges. Aggrieved, the CPIO, Supreme Court of India has
preferred this appeal.
3. Civil Appeal No. 10044 of 2010 arises from an application dated
23rd January, 2009 moved by Subhash Chandra Agarwal before
the CPIO, Supreme Court of India to furnish a copy of complete
file/papers as available with the Supreme Court of India inclusive
of copies of complete correspondence exchanged between the
concerned constitutional authorities with file notings relating to the
appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly
and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.
P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta,
which was allegedly objected to by the Prime Minister. 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.
Appointment of judges to the Supreme Court and the High Courts
are made by the President of India as per the procedure
Civil Appeal No. 10044 of 2010 & Ors. Page 4 of 108
prescribed by law and the matters relating thereto were not dealt
with and handled by the Registry of the Supreme Court. The
information was neither maintained nor available with the Registry.
First appeal preferred by Subhash Chandra Agarwal was rejected
vide order dated 25th March, 2009 by the appellate authority. On
further appeal, the CIC has accepted the appeal and directed
furnishing of information by relying on the judgment dated 02nd
September, 2009 of the Delhi High Court in Writ Petition (Civil)
No. 288 of 2009 titled Central Public Information Officer,
Supreme Court of India v. Subhash Chandra Agarwal &
Another. The CIC has also relied on the decision of this Court in
S.P. Gupta v. Union of India & Others2
to reach its conclusion.
Aggrieved, the CPIO, Supreme Court of India has preferred the
present appeal stating, inter alia, that the judgment in Writ Petition
(Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi
High Court in LPA No. 501 of 2009 vide judgment dated 12th
January, 2010, which judgment is the subject matter of appeal
before this Court in Civil Appeal No.2683 of 2010.
4. Civil Appeal No. 2683 of 2010 arises from an application dated
10th November, 2007 moved by Subhash Chandra Agarwal
2
(1981) Supp SCC 87
Civil Appeal No. 10044 of 2010 & Ors. Page 5 of 108
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. On the first appeal, the
appellate authority had passed an order of remit directing the
CPIO, Supreme Court of India to follow the procedure under
Section 6(3) of the RTI Act and to inform Subhash Chandra
Agarwal about the authority holding such information as was
sought. The CPIO had thereafter vide order dated 07th February,
2008 held that the applicant should approach the CPIO of the
High Courts and filing of the application before the CPIO of the
Supreme Court was against the spirit of Section 6(3) of the RTI
Act. 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 directing:
“… in view of what has been observed above, the
CPIO of the Supreme Court is directed to provide the
information asked for by the appellant in his RTI
application as to whether such declaration of assets
etc. has been filed by the Hon’ble Judges of the
Supreme Court or not within ten working days from the
date of receipt of this decision notice.”
Civil Appeal No. 10044 of 2010 & Ors. Page 6 of 108
5. Aggrieved, the CPIO, Supreme Court of India had filed Writ
Petition (Civil) No. 288 of 2009 before the Delhi High Court, which
was decided by the learned Single Judge vide judgment dated 02nd
September, 2009, and the findings were summarised as:
“84. […]
Re Point Nos. 1 & 2 Whether the CJI is a public
authority and whether the CPIO, of the Supreme Court
of India, is different from the office of the CJI; and if so,
whether the Act covers the office of the CJI;
Answer: The CJI is a public authority under the Right to
Information Act and the CJI holds the information
pertaining to asset declarations in his capacity as Chief
Justice; that office is a “public authority” under the Act
and is covered by its provisions.
Re Point No. 3: Whether asset declaration by Supreme
Court Judges, pursuant to the 1997 Resolution are
“information”, under the Right to Information Act, 2005.
Answer: It is held that the second part of the
respondent's application, relating to declaration of
assets by the Supreme Court Judges, is “information”
within the meaning of the expression, under Section 2
(f) of the Act. The point is answered accordingly; the
information pertaining to declarations given, to the CJI
and the contents of such declaration are “information”
and subject to the provisions of the Right to Information
Act.
Re Point No. 4: If such asset declarations are
“information” does the CJI hold them in a “fiduciary”
capacity, and are they therefore, exempt from
disclosure under the Act
Answer: The petitioners' argument about the CJI
holding asset declarations in a fiduciary capacity,
(which would be breached if it is directed to be
disclosed, in the manner sought by the applicant) is
insubstantial. The CJI does not hold such declarations
in a fiduciary capacity or relationship.
Civil Appeal No. 10044 of 2010 & Ors. Page 7 of 108
Re Point No. 5: Whether such information is exempt
from disclosure by reason of Section 8(1)(j) of the Act.
Answer: It is held that the contents of asset
declarations, pursuant to the 1997 resolution—and the
1999 Conference resolution—are entitled to be treated
as personal information, and may be accessed in
accordance with the procedure prescribed under
Section 8(1)(j); they are not otherwise subject to
disclosure. As far as the information sought by the
applicant in this case is concerned, (i.e. whether the
declarations were made pursuant to the 1997
resolution) the procedure under Section 8(1)(j) is
inapplicable.
Re Point No. (6): Whether the lack of clarity about the
details of asset declaration and about their details, as
well as lack of security renders asset declarations and
their disclosure, unworkable.
Answer: These are not insurmountable obstacles; the
CJI, if he deems it appropriate, may in consultation with
the Supreme Court Judges, evolve uniform standards,
devising the nature of information, relevant formats,
and if required, the periodicity of the declarations to be
made. The forms evolved, as well as the procedures
followed in the United States—including the redaction
norms—under the Ethics in Government Act, 1978,
reports of the US Judicial Conference, as well as the
Judicial Disclosure Responsibility Act, 2007, which
amends the Ethics in Government Act of 1978 to: (1)
restrict disclosure of personal information about family
members of Judges whose revelation might endanger
them; and (2) extend the authority of the Judicial
Conference to redact certain personal information of
judges from financial disclosure reports may be
considered.”
6. On further appeal by the CPIO, Supreme Court of India, LPA No.
501 of 2009 was referred to the Full Bench, which has vide its
decision dated 12th January, 2010 dismissed the appeal. This
Civil Appeal No. 10044 of 2010 & Ors. Page 8 of 108
judgment records that the parties were ad-idem with regard to
point Nos. 1 and 2 as the CPIO, Supreme Court of India had fairly
conceded and accepted the conclusions arrived at by the learned
Single Judge and, thus, need not be disturbed. Nevertheless, the
Full Bench had felt it appropriate to observe that they were in full
agreement with the reasoning given by the learned Single Judge.
The expression ‘public authority’ as used in the RTI Act is of wide
amplitude and includes an authority created by or under the
Constitution of India, which description holds good for the Chief
Justice of India. While the Chief Justice of India is designated as
one of the competent authorities under Section 2(e) of the RTI
Act, the Chief Justice of India besides discharging his role as
‘head of the judiciary’ also performs a multitude of tasks assigned
to him under the Constitution and various other enactments. In the
absence of any indication that the office of the Chief Justice of
India is a separate establishment with its own CPIO, it cannot be
canvassed that “the office of the CPIO of the Supreme Court is
different from the office of the CJI” (that is, the Chief Justice of
India). Further, neither side had made any submissions on the
issue of ‘unworkability’ on account of ‘lack of clarity’ or ‘lack of
security’ vis-à-vis asset declarations by the judges. The Full
Civil Appeal No. 10044 of 2010 & Ors. Page 9 of 108
Bench had, thereafter, re-casted the remaining three questions as
under:
“(1) Whether the respondent had any "right to
information" under Section 2(j) of the Act in respect of
the information regarding making of declarations by the
Judges of the Supreme Court pursuant to 1997
Resolution?
(2) If the answer to question (1) above is in affirmative,
whether CJI held the "information" in his "fiduciary"
capacity, within the meaning of the expression used in
Section 8(1)(e) of the Act?
(3) Whether the information about the declaration of
assets by the Judges of the Supreme Court is exempt
from disclosure under the provisions of Section 8(1)(j)
of the Act?”
The above questions were answered in favour of the
respondent-Subhash Chandra Aggarwal as the Full Bench has
held that the respondent had the right to information under Section
2(j) of the RTI Act with regard to the information in the form of
declarations of assets made pursuant to the 1997 Resolution. The
Chief Justice did not hold such declarations in a fiduciary capacity
or relationship and, therefore, the information was not exempt
under Section 8(1)(e) of the RTI Act. Addressing the third
question, the Bench had observed:
“116. In the present case the particulars sought for by
the respondent do not justify or warrant protection
under Section 8(1)(j) inasmuch as the only information
the applicant sought was whether 1997 Resolution was
complied with. That kind of innocuous information does
not warrant the protection granted by Section 8(1)(j).
Civil Appeal No. 10044 of 2010 & Ors. Page 10 of 108
We concur with the view of the learned single Judge
that the contents of asset declarations, pursuant to the
1997 Resolution, are entitled to be treated as personal
information, and may be accessed in accordance with
the procedure prescribed under Section 8(1)(j); that
they are not otherwise subject to disclosure. Therefore,
as regards contents of the declarations, information
applicants would have to, whenever they approach the
authorities, under the Act satisfy them under Section
8(1)(j) that such disclosure is warranted in “larger
public interest.”
7. The afore-captioned three appeals were tagged to be heard and
decided together vide order dated 26th November, 2010, the
operative portion of which reads as under:
“12. Having heard the learned Attorney General and
the learned counsel for the respondent, we are of the
considered opinion that a substantial question of law as
to the interpretation of the Constitution is involved in
the present case which is required to be heard by a
Constitution Bench. The case on hand raises
important questions of constitutional importance
relating to the position of Hon’ble the Chief Justice of
India under the Constitution and the independence of
the Judiciary in the scheme of the Constitution on the
one hand and on the other, fundamental right to
freedom of speech and expression. Right to
information is an integral part of the fundamental right
to freedom of speech and expression guaranteed by
the Constitution. Right to Information Act merely
recognizes the constitutional right of citizens to
freedom of speech and expression. Independence of
Judiciary forms part of basic structure of the
Constitution of India. The independence of Judiciary
and the fundamental right to free speech and
expression are of a great value and both of them are
required to be balanced.”
Civil Appeal No. 10044 of 2010 & Ors. Page 11 of 108
8. This order while referring the matter to a larger bench had framed
the following substantial questions of law as to the interpretation of
the Constitution, which read as under:
“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(1)(j) of the Right to Information Act?”
9. We have heard Mr. K.K. Venugopal, Attorney General of India, Mr.
Tushar Mehta, Solicitor General of India on behalf of the Supreme
Court of India and Mr. Prashant Bhushan, learned advocate for
Subhash Chandra Agarwal. The appellants have contended that
disclosure of the information sought would impede the
independence of judges as it fails to recognise the unique position
of the judiciary within the framework of the Constitution which
necessitates that the judges ought not to be subjected to ‘litigative
public debate’ and such insulation is constitutional, deliberate and
essential to the effective functioning of the institution. Right to
information is not an unfettered constitutional right, albeit a right
Civil Appeal No. 10044 of 2010 & Ors. Page 12 of 108
available within the framework of the RTI Act, which means that
the right is subject, among other conditions, to the exclusions,
restrictions and conditions listed in the Second Schedule and in
Sections 8 to 11 of the RTI Act. In support, the appellants have
relied upon Re Coe’s Estate Ebert et al v. State et. al3
, Bhudan
Singh and Another v. Nabi Bux and Another4
, Kailash Rai v.
Jai Ram5 and Dollfus Mieg et Compagnie S.A. v. Bank of
England6
. Information sought when exempt under Section 8 of the
RTI Act cannot be disclosed. Information on assets relates to
personal information, the disclosure of which has no bearing on
any public activity or interest and is, therefore, exempt under
Section 8(1)(j) of the RTI Act. Similarly, information of prospective
candidates who are considered for judicial appointments and/or
elevation relates to their personal information, the disclosure of
which would cause unwarranted invasion of an individual’s privacy
and serves no larger public interest. Further, 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.
Consultations and correspondence between the office of the Chief
Justice of India and other constitutional functionaries are made on
3 33 Cal.2d 502
4 1969 (2) SCC 481
5 1973 (1) SCC 527
6
(1950) 2 All E.R. 611
Civil Appeal No. 10044 of 2010 & Ors. Page 13 of 108
the basis of trust and confidence which ascribes the attributes of a
fiduciary to the office of the Chief Justice. Information relating to
the appointment of judges is shared among other constitutional
functionaries in their fiduciary capacities, which makes the
information exempt under Section 8(1)(e) of the RTI Act. The
respondent, on the other hand, has by relying on the dicta in State
of U.P. v. Raj Narain and Others7 and S. P. Gupta (supra)
argued that disclosure of the information sought does not
undermine the independence of the judiciary. Openness and
transparency in functioning would better secure the independence
of the judiciary by placing any attempt made to influence or
compromise the independence of the judiciary in the public
domain. Further, the citizens have a legitimate and constitutional
right to seek information about the details of any such attempt.
Thus, disclosure, and not secrecy, enhances the independence of
the judiciary. No legitimate concerns exist which may inhibit
consultees from freely expressing themselves or which might
expose candidates to spurious allegations by disclosing the
consultative process for appointing judges. Given the nature of the
information sought, disclosure of the information will serve the
larger public interest and, therefore, such interest outweighs the
7
(1975) 4 SCC 428
Civil Appeal No. 10044 of 2010 & Ors. Page 14 of 108
privilege of exemption granted to personal information under
Section 8(1)(j) of the RTI Act. If any personal information is
involved, the same could be dealt with on a case-by-case basis by
disclosing the information that serves public interest after severing
the records as per Section 10 of the RTI Act. There is no fiduciary
relationship between the Chief Justice and the judges or among
the constitutional functionaries as envisaged under Section 8(1)(e)
of the RTI Act which could be a ground for holding back the
information. Reliance was placed on the decisions of this Court in
Central Board of Secondary Education and Another v. Aditya
Bandopadhyay and Others8 and Reserve Bank of India v.
Jayantilal N. Mistry9
, to contend that the duty of a public servant
is not to act for the benefit of another public servant, that is, the
Chief Justice and other functionaries are meant to discharge their
constitutional duties and not act as a fiduciary of anyone, except
the people. In arguendo, even if there exists a fiduciary
relationship among the functionaries, disclosure can be made if it
serves the larger public interest. Additionally, candour and
confidentiality are not heads of exemption under the RTI Act and,
therefore, cannot be invoked as exemptions in this case.
8
(2011) 8 SCC 497
9
(2016) 3 SCC 525
Civil Appeal No. 10044 of 2010 & Ors. Page 15 of 108
10. For clarity and convenience, we would deal with the issues pointwise, albeit would observe that Point no. 1 (referred to as point
Nos.1 and 2 in the judgment in LPA No. 501 of 2009 dated 12th
January, 2010) was not contested before the Full Bench but as
some clarification is required, it has been dealt below.
POINT NO. 1: WHETHER THE SUPREME COURT OF INDIA AND
THE CHIEF JUSTICE OF INDIA ARE TWO
SEPARATE PUBLIC AUTHORITIES?
11. Terms ‘competent authority’ and ‘public authority’ have been
specifically defined in clauses (e) and (h) to Section 2 of the RTI
Act, which read:
“(e) "competent authority" means—
(i) the Speaker in the case of the House of the
People or the Legislative Assembly of a State or a
Union territory having such Assembly and the
Chairman in the case of the Council of States or
Legislative Council of a State;
(ii) the Chief Justice of India in the case of the
Supreme Court;
(iii) the Chief Justice of the High Court in the
case of a High Court;
(iv) the President or the Governor, as the case
may be, in the case of other authorities
established or constituted by or under the
Constitution;
(v) the administrator appointed under article 239
of the Constitution;
xx xx xx
Civil Appeal No. 10044 of 2010 & Ors. Page 16 of 108
(h) "public authority" means any authority or body or
institution of self-government established or
constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the
appropriate Government, and includes any—
(i) body owned, controlled or substantially
financed;
(ii) non-Government organisation substantially
financed,
directly or indirectly by funds provided by
the appropriate Government;”
12. Term ‘public authority’ under Section 2(h) of the RTI Act includes
any authority or body or an institution of self-government
established by the Constitution or under the Constitution.
Interpreting the expression ‘public authority’ in Thalappalam
Service Cooperative Bank Limited and Others v. State of
Kerala and Others10, this Court had observed:
“30. The legislature, in its wisdom, while defining the
expression “public authority” under Section 2(h),
intended to embrace only those categories, which are
specifically included, unless the context of the Act
otherwise requires. Section 2(h) has used the
expressions “means” and “includes”. When a word is
defined to “mean” something, the definition is prima
facie restrictive and where the word is defined to
“include” some other thing, the definition is prima facie
extensive. But when both the expressions “means” and
“includes” are used, the categories mentioned there
10 (2013) 16 SCC 82
Civil Appeal No. 10044 of 2010 & Ors. Page 17 of 108
would exhaust themselves. The meanings of the
expressions “means” and “includes” have been
explained by this Court in DDA v. Bhola Nath Sharma
(in paras 25 to 28). When such expressions are used,
they may afford an exhaustive explanation of the
meaning which for the purpose of the Act, must
invariably be attached to those words and expressions.
31. Section 2(h) exhausts the categories mentioned
therein. The former part of Section 2(h) deals with:
(1) an authority or body or institution of selfgovernment established by or under the
Constitution,
(2) an authority or body or institution of selfgovernment established or constituted by any other
law made by Parliament,
(3) an authority or body or institution of selfgovernment established or constituted by any other
law made by the State Legislature, and
(4) an authority or body or institution of selfgovernment established or constituted by
notification issued or order made by the appropriate
Government.”
13. Article 124 of the 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 vide clause (h) to Section 2
of the RTI Act as it has been established and constituted by or
under the Constitution of India. The Chief Justice of India as per
sub-clause (ii) in clause (e) to Section 2 is the competent authority
in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is empowered
Civil Appeal No. 10044 of 2010 & Ors. Page 18 of 108
to frame rules, which have to be notified in the Official Gazette, to
carry out the provisions of the RTI Act.
14. 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. The office of the
Chief Justice or for that matter the judges is not separate from the
Supreme Court, and is part and parcel of the Supreme Court as a
body, authority and institution. The Chief Justice and the Supreme
Court are not two distinct and separate ‘public authorities’, albeit
the latter is a ‘public authority’ and the Chief Justice and the
judges together form and constitute the ‘public authority’, that is,
the Supreme Court of India. The interpretation to Section 2(h)
cannot be made in derogation 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
Civil Appeal No. 10044 of 2010 & Ors. Page 19 of 108
the institution and neither he nor his office is a separate public
authority.
15. 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.
POINT NO. 2: INFORMATION AND RIGHT TO INFORMATION
UNDER THE RTI ACT
16. Terms ‘information’, ‘record’ and ‘right to information’ have been
defined under clauses (f), (i) and (j) to Section 2 of the RTI Act
which are reproduced below:
“(f) “information” means any material in any form,
including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders,
logbooks, contracts, reports, papers, samples, models,
data material held in any electronic form and
information relating to any private body which can be
accessed by a public authority under any other law for
the time being in force;
xx xx xx
(i) "record" includes—
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a
document;
(c) any reproduction of image or images embodied in
such microfilm (whether enlarged or not); and
Civil Appeal No. 10044 of 2010 & Ors. Page 20 of 108
(d) any other material produced by a computer or any
other device;
(j) “right to information” means the right to information
accessible under this Act which is held by or under the
control of any public authority and includes the right to—
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of
documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other
device;”
17. ‘Information’ as per the definition clause is broad and wide, as it is
defined to mean “material in any form” with amplifying words
including records (a term again defined in widest terms vide
clause (i) to Section 2 of the RTI Act), documents, emails, memos,
advices, logbooks, contracts, reports, papers, samples, models,
data material held in electronic form, etc. The last portion of the
definition clause which states that the term ‘information’ would
include ‘information relating to any private body which can be
accessed by a public authority under any other law for the time
being in force’ has to be read as reference to ‘information’ not
presently available or held by the public authority but which can be
accessed by the public authority from a private body under any
Civil Appeal No. 10044 of 2010 & Ors. Page 21 of 108
other law for the time being in force. The term – ‘private body’ in
the clause has been used to distinguish and is in contradistinction
to the term – ‘public authority’ as defined in Section 2(h) of the RTI
Act. It follows that any requirement in the nature of precondition
and restrictions prescribed by any other law would continue to
apply and are to be satisfied before information can be accessed
and asked to be furnished by a private body.
18. What is explicit as well as implicit from 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’. The word ‘hold’ as defined in
Wharton’s Law Lexicon, 15th Edition, means to have the
ownership or use of; keep as one’s own, but in the context of the
present legislation, we would prefer to adopt a broader definition
of the word ‘hold’ in Black’s Law Dictionary, 6th Edition, as
meaning; to keep, to retain, to maintain possession of or authority
over. The words ‘under the control of any public authority’ as per
their natural meaning would mean the right and power of the
public authority to get access to the information. It refers to
dominion over the information or the right to any material,
document etc. The words ‘under the control of any public
Civil Appeal No. 10044 of 2010 & Ors. Page 22 of 108
authority’ would include within their ambit and scope information
relating to a private body which can be accessed by a public
authority under any other law for the time being in force subject to
the pre-imposed conditions and restrictions as applicable to
access the information.
19. 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. In view of the non-obstante clause in
Section 2211 of the RTI Act, any prohibition or condition which
prevents a citizen from having access to information would not
apply. Restriction on the right of citizens is erased. However,
when access to information by a public authority itself is prohibited
or is accessible subject to conditions, then the prohibition is not
obliterated and the pre-conditions are not erased. 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
11 Section 22 of the RTI Act reads:
"22. Act to have overriding effect. -The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any
other law for the time being in force or in any instrument having effect by virtue of any law other
than this Act.”
Civil Appeal No. 10044 of 2010 & Ors. Page 23 of 108
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.
20. Full Bench of the Delhi High Court in its judgment dated 12th
January 2010 in LPA No. 501 of 2009 had rightly on the
interpretation of word ‘held’, referred to Philip Coppel’s work
‘Information Rights’ (2
nd Edition, Thomson, Sweet & Maxwell
Civil Appeal No. 10044 of 2010 & Ors. Page 24 of 108
2007)
12 interpreting the provisions of the Freedom of Information
Act, 2000 (United Kingdom) in which it has been observed:
“When information is “held” by a public authority
For the purposes of the Freedom of Information Act 2000,
information is “held” by a public authority if it is held by the
authority otherwise than on behalf of another person, or if
it is held by another person on behalf of the authority. The
Act has avoided the technicalities associated with the law
of disclosure, which has conventionally drawn a
distinction between a document in the power, custody or
possession of a person. Putting to one side the effects of
s.3(2) (see para.9-009 below), the word “held” suggests a
relationship between a public authority and the
information akin to that of ownership or bailment of goods.
Information:
- that is, without request or arrangement, sent to or
deposited with a public authority which does not hold itself
out as willing to receive it and which does not
subsequently use it;
- that is accidentally left with a public authority;
- that just passes through a public authority; or
- that “belongs” to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authority’s premises,
will, it is suggested, lack the requisite assumption by the
public authority of responsibility for or dominion over the
information that is necessary before it can be said that the
public authority can be said to “hold” the information. …”
Thereafter, the Full Bench had observed:
“59. Therefore, according to Coppel the word “held”
suggests a relationship between a public authority and
12 Also, see Philip Coppel, ‘Information Rights’ (4th Edition, Hart Publishing 2014) P. 361-62
Civil Appeal No. 10044 of 2010 & Ors. Page 25 of 108
the information akin to that of an ownership or bailment
of goods. In the law of bailment, a slight assumption of
control of the chattel so deposited will render the
recipient a depository (see Newman v. Bourne and
Hollingsworth (1915) 31 T.L.R. 209). Where, therefore,
information has been created, sought, used or
consciously retained by a public authority will be
information held within the meaning of the Act.
However, if the information is sent to or deposited with
the public authority which does not hold itself out as
willing to receive it and which does not subsequently
use it or where it is accidentally left with a public
authority or just passes through a public authority or
where it belongs to an employee or officer of a public
authority but which is brought by that employee or
officer unto the public authority’s premises it will not be
information held by the public authority for the lack of
the requisite assumption by the public authority of
responsibility for or dominion over the information that
is necessary before the public authority can be said to
hold the information… .”
Therefore, the word “hold” is not purely a physical concept
but refers to the appropriate connection between the information
and the authority so that it can properly be said that the
information is held by the public authority.13
21. In Khanapuram Gandaiah v. Administrative Officer and
Others14, this Court on examining the definition clause 2(f) of the
RTI Act had held as under:
“10. […] This definition shows that an applicant under
Section 6 of the RTI Act can get any information which
13 New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection,
[2011] UKUT 185 AAC
14 (2010) 2 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 26 of 108
is already in existence and accessible to the public
authority under law. ...
xx xx xx
12. […] the Public Information Officer is not supposed
to have any material which is not before him; or any
information he could (sic not) have obtained under law.
Under Section 6 of the RTI Act, an applicant is entitled
to get only such information which can be accessed by
the “public authority” under any other law for the time
being in force. …”
The aforesaid observation emphasises on the mandatory
requirement of accessibility of information by the public authority
under any other law for the time being in force. This aspect was
again highlighted by another Division Bench in Aditya
Bandopadhyay (supra), wherein information was divided into
three categories in the following words:
“59. The effect of the provisions and scheme of the RTI
Act is to divide “information” into three categories. They
are:
(i) Information which promotes transparency and
accountability in the working of every public authority,
disclosure of which may also help in containing or
discouraging corruption [enumerated in clauses (b) and
(c) of Section 4(1) of the RTI Act].
(ii) Other information held by public authority [that is, all
information other than those falling under clauses (b)
and (c) of Section 4(1) of the RTI Act].
(iii) Information which is not held by or under the
control of any public authority and which cannot be
accessed by a public authority under any law for the
time being in force.
Civil Appeal No. 10044 of 2010 & Ors. Page 27 of 108
Information under the third category does not fall within
the scope of the RTI Act. Section 3 of the RTI Act gives
every citizen, the right to “information” held by or under
the control of a public authority, which falls either under
the first or second category. In regard to the
information falling under the first category, there is also
a special responsibility upon the public authorities to
suo motu publish and disseminate such information so
that they will be easily and readily accessible to the
public without any need to access them by having
recourse to Section 6 of the RTI Act. There is no such
obligation to publish and disseminate the other
information which falls under the second category.”
The first category refers to the information specified in
clause (b) to sub-section (1) to Section 4 which consists of as
many as seventeen sub-clauses on diverse subjects stated
therein. It also refers to clause (c) to sub-section (1) to Section 4
by which public authority is required to publish all relevant facts
while formulating important public policies or pronouncing its
decision which affects the public. The rationale behind these
clauses is to disseminate most of the information which is in the
public interest and promote openness and transparency in
government.
22. The expressions ‘held by or under the control of any public
authority’ and ‘information accessible under this Act’ are
restrictive15 and reflect the limits to the ‘right to information’
15 See ‘Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC 497
Civil Appeal No. 10044 of 2010 & Ors. Page 28 of 108
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.
23. This aspect was again highlighted when the terms ‘information’
and ‘right to information’ were interpreted in Thalappalam
Service Cooperative Bank Limited (supra) with the following
elucidation:
“63. Section 8 begins with a non obstante clause,
which gives that section an overriding effect, in case of
conflict, over the other provisions of the Act. Even if,
there is any indication to the contrary, still there is no
obligation on the public authority to give information to
any citizen of what has been mentioned in clauses (a)
to (j). The public authority, as already indicated, cannot
access all the information from a private individual, but
only those information which he is legally obliged to
pass on to a public authority by law, and also only
those information to which the public authority can
have access in accordance with law. Even those
information, if personal in nature, can be made
available only subject to the limitations provided in
Section 8(j) of the RTI Act. Right to be left alone, as
propounded in Olmstead v. United States is the most
comprehensive of the rights and most valued by
civilised man.
xx xx xx
67. The Registrar of Cooperative Societies functioning
under the Cooperative Societies Act is a “public
authority” within the meaning of Section 2(h) of the Act.
As a public authority, the Registrar of Cooperative
Societies has been conferred with lot of statutory
powers under the respective Act under which he is
Civil Appeal No. 10044 of 2010 & Ors. Page 29 of 108
functioning. He is also duty-bound to comply with the
obligations under the RTI Act and furnish information to
a citizen under the RTI Act. Information which he is
expected to provide is the information enumerated
in Section 2(f) of the RTI Act subject to the limitations
provided under Section 8 of the Act. The Registrar can
also, to the extent law permits, gather information from
a Society, on which he has supervisory or
administrative control under the Cooperative Societies
Act. Consequently, apart from the information as is
available to him, under Section 2(f), he can also gather
those information from the society, to the extent
permitted by law. The Registrar is also not obliged to
disclose those information if those information fall
under Section 8(1)(j) of the Act. No provision has been
brought to our knowledge indicating that, under
the Cooperative Societies Act, a Registrar can call for
the details of the bank accounts maintained by the
citizens or members in a cooperative bank. Only those
information which a Registrar of Cooperative Societies
can have access under the Cooperative Societies
Act from a society could be said to be the information
which is “held” or “under the control of public authority”.
Even those information, the Registrar, as already
indicated, is not legally obliged to provide if those
information falls under the exempted category
mentioned in Section 8(j) of the Act. Apart from the
Registrar of Co-operative Societies, there may be other
public authorities who can access information from a
co-operative bank of a private account maintained by a
member of society under law, in the event of which, in
a given situation, the society will have to part with that
information. But the demand should have statutory
backing.
68. Consequently, if an information which has been
sought for relates to personal information, the
disclosure of which has no relationship to any public
activity or interest or which would cause unwarranted
invasion of the privacy of the individual, the Registrar of
Cooperative Societies, even if he has got that
information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public
Civil Appeal No. 10044 of 2010 & Ors. Page 30 of 108
interest justifies the disclosure of such information, that
too, for reasons to be recorded in writing.”
Thus, the scope of the expressions ‘information’ and ‘right to
information’ which can be accessed by a citizen under the RTI Act
have to be understood in light of the above discussion.
POINT NO. 3: SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT
24. To ensure transparency and accountability and to make Indian
democracy more participatory, the RTI Act sets out a practical and
pragmatic regime to enable citizens to secure greater access to
information available with public authorities by balancing diverse
interests including efficient governance, optimum use of limited
fiscal operations and preservation of confidentiality of sensitive
information. The preamble to the RTI Act appropriately
summarises the object of harmonising various conflicts in the
following words:
“ xx xx xx
AND WHEREAS democracy requires an informed
citizenry and transparency of information which are
vital to its functioning and also to contain corruption
and to hold Governments and their instrumentalities
accountable to the governed;
AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments,
optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
Civil Appeal No. 10044 of 2010 & Ors. Page 31 of 108
AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy
of the democratic ideal;
xx xx xx”
25. An attempt to resolve conflict and disharmony between these
aspects is evident in the exceptions and conditions on access to
information set out in Sections 8 to 11 of the RTI Act. At the
outset, we would reproduce Section 8 of the RTI Act, which reads
as under:
“8. (1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of
the State, relation with foreign State or lead to
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade
secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party,
unless the competent authority is satisfied that larger
public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of
such information;
Civil Appeal No. 10044 of 2010 & Ors. Page 32 of 108
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would endanger
the life or physical safety of any person or identify the
source of information or assistance given in confidence
for law enforcement or security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete,
or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
(j) information which relates to personal information the
disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the
Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot be denied
to the Parliament or a State Legislature shall not be
denied to any person.
(2) Notwithstanding anything in the Official Secrets Act,
1923 nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may
allow access to information, if public interest in
Civil Appeal No. 10044 of 2010 & Ors. Page 33 of 108
disclosure outweighs the harm to the protected
interests.
(3) Subject to the provisions of clauses (a), (c) and (i)
of sub-section (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section:
Provided that where any question arises as to the date
from which the said period of twenty years has to be
computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for
in this Act.”
Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
amending the term ‘information’, carves out exceptions when
access to ‘information’, as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that is,
when the exceptions listed in Section 8(1) of the RTI Act are not
attracted. In terms of Section 3 of the RTI Act, all citizens have
right to information, subject to the provisions of the RTI Act, that
is, information ‘held by or under the control of any public authority’,
except when such information is exempt or excluded.
Civil Appeal No. 10044 of 2010 & Ors. Page 34 of 108
26. Clauses in sub-section (1) to Section 8 can be divided into two
categories: clauses (a), (b), (c), (f), (g), (h) and (i), and clauses (d),
(e) and (j). The latter clauses state that the prohibition specified
would not apply or operate when the competent authority in
clauses (d) and (e) and the PIO in clause (j) is satisfied that larger
public interest warrants disclosure of such information.16
Therefore, clauses (d), (e) and (j) of Section 8(1) of the RTI Act
incorporate qualified prohibitions and are conditional and not
absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and (i) do
not have any such stipulation. Prohibitory stipulations in these
clauses do not permit disclosure of information on satisfaction of
the larger public interest rule. These clauses, therefore,
incorporate absolute exclusions.
27. Sub-section (2) to Section 8 states that notwithstanding anything
contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
interest in disclosure outweighs the harm to the protected
interests. The disclosure under Section 8(2) by the public authority
16 For the purpose of the present decision, we do not consider it appropriate to decide who would be
the ‘competent authority’ in the case of other public authorities, if sub-clauses (i) to (v) to clause (e)
of Section 2 are inapplicable. This ‘anomaly’ or question is not required to be decided in the present
case as the Chief Justice of India is a competent authority in the case of the Supreme Court of
India.
Civil Appeal No. 10044 of 2010 & Ors. Page 35 of 108
is not a mandate or compulsion but is in the form of discretionary
disclosure. Section 8(2) acknowledges and empowers the public
authority to lawfully disclose information held by them despite the
exemptions under sub-section (1) to Section 8 if the public
authority is of the opinion that the larger public interest warrants
disclosure. Such disclosure can be made notwithstanding the
provisions of the Official Secrets Act. Section 8(2) does not create
a vested or justiciable right that the citizens can enforce by an
application before the PIO seeking information under the RTI Act.
PIO is under no duty to disclose information covered by
exemptions under Section 8(1) of the RTI Act. Once the PIO
comes to the conclusion that any of the exemption clauses is
applicable, the PIO cannot pass an order directing disclosure
under Section 8(2) of the RTI Act as this discretionary power is
exclusively vested with the public authority.
28. Section 9 provides that without prejudice to the provisions of
Section 8, a request for information may be rejected if such a
request for providing access would involve an infringement of
copyright subsisting in a person other than the State.
29. Section 10 deals with severability of exempted information and
sub-section (1) thereof reads as under:
Civil Appeal No. 10044 of 2010 & Ors. Page 36 of 108
“10. Severability.– (1) Where a request for access to
information is rejected on the ground that it is in
relation to information which is exempt from disclosure,
then, notwithstanding anything contained in this Act,
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and which can
reasonably be severed from any part that contains
exempt information.”
30. Section 11, which deals with third party information, and
incorporates conditional exclusion based on breach of
confidentiality by applying public interest test, reads as under:
“11. (1) Where a Central Public Information Officer or a
State Public Information Officer, as the case may be,
intends to disclose any information or record, or part
thereof on a request made under this Act, which relates
to or has been supplied by a third party and has been
treated as confidential by that third party, the Central
Public Information Officer or State Public Information
Officer, as the case may be, shall, within five days from
the receipt of the request, give a written notice to such
third party of the request and of the fact that the
Central Public Information Officer or State Public
Information Officer, as the case may be, intends to
disclose the information or record, or part thereof, and
invite the third party to make a submission in writing or
orally, regarding whether the information should be
disclosed, and such submission of the third party shall
be kept in view while taking a decision about disclosure
of information:
Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if
the public interest in disclosure outweighs in
importance any possible harm or injury to the interests
of such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information Officer,
as the case may be, under sub-section (1) to a third
party in respect of any information or record or part
Civil Appeal No. 10044 of 2010 & Ors. Page 37 of 108
thereof, the third party shall, within ten days from the
date of receipt of such notice, be given the opportunity
to make representation against the proposed
disclosure.
(3) Notwithstanding anything contained in section 7,
the Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within
forty days after receipt of the request under section 6, if
the third party has been given an opportunity to make
representation under sub-section (2), make a decision
as to whether or not to disclose the information or
record or part thereof and give in writing the notice of
his decision to the third party.
(4) A notice given under sub-section (3) shall include a
statement that the third party to whom the notice is
given is entitled to prefer an appeal under section 19
against the decision.”
We shall subsequently interpret and expound on Section 11
of the RTI Act.
31. At the present stage, we would like to quote from Aditya
Bandopadhyay (supra) wherein this Court, on the aspect of
general principles of interpretation while deciding the conflict
between the right to information and exclusions under Section 8 to
11 of the RTI Act, had observed:
“61. Some High Courts have held that Section 8 of the
RTI Act is in the nature of an exception to Section 3
which empowers the citizens with the right to
information, which is a derivative from the freedom of
speech; and that, therefore, Section 8 should be
construed strictly, literally and narrowly. This may not
be the correct approach. The Act seeks to bring about
a balance between two conflicting interests, as
harmony between them is essential for preserving
democracy. One is to bring about transparency and
Civil Appeal No. 10044 of 2010 & Ors. Page 38 of 108
accountability by providing access to information under
the control of public authorities. The other is to ensure
that the revelation of information, in actual practice,
does not conflict with other public interests which
include efficient operation of the governments,
optimum use of limited fiscal resources and
preservation of confidentiality of sensitive information.
The Preamble to the Act specifically states that the
object of the Act is to harmonise these two conflicting
interests. While Sections 3 and 4 seek to achieve the
first objective, Sections 8, 9, 10 and 11 seek to achieve
the second objective. Therefore, when Section 8
exempts certain information from being disclosed, it
should not be considered to be a fetter on the right to
information, but as an equally important provision
protecting other public interests essential for the
fulfilment and preservation of democratic ideals.
62. When trying to ensure that the right to information
does not conflict with several other public interests
(which includes efficient operations of the
Governments, preservation of confidentiality of
sensitive information, optimum use of limited fiscal
resources, etc.), it is difficult to visualise and
enumerate all types of information which require to be
exempted from disclosure in public interest. The
legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than
the enumeration of exemptions attempted in the earlier
Act, that is, Section 8 of the Freedom to Information
Act, 2002. The courts and Information Commissions
enforcing the provisions of the RTI Act have to adopt a
purposive construction, involving a reasonable and
balanced approach which harmonises the two objects
of the Act, while interpreting Section 8 and the other
provisions of the Act.
63. At this juncture, it is necessary to clear some
misconceptions about the RTI Act. The RTI Act
provides access to all information that is available and
existing. This is clear from a combined reading of
Section 3 and the definitions of “information” and “right
to information” under clauses (f) and (j) of Section 2 of
the Act. If a public authority has any information in the
Civil Appeal No. 10044 of 2010 & Ors. Page 39 of 108
form of data or analysed data, or abstracts, or
statistics, an applicant may access such information,
subject to the exemptions in Section 8 of the Act. But
where the information sought is not a part of the record
of a public authority, and where such information is not
required to be maintained under any law or the rules or
regulations of the public authority, the Act does not
cast an obligation upon the public authority, to collect
or collate such non-available information and then
furnish it to an applicant. A public authority is also not
required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not
required to provide “advice” or “opinion” to an
applicant, nor required to obtain and furnish any
“opinion” or “advice” to an applicant. The reference to
“opinion” or “advice” in the definition of “information” in
Section 2(f) of the Act, only refers to such material
available in the records of the public authority. Many
public authorities have, as a public relation exercise,
provide advice, guidance and opinion to the citizens.
But that is purely voluntary and should not be confused
with any obligation under the RTI Act.”
Paragraph 63 quoted above has to be read with our
observations on the last portion of clause (f) to Section 2 defining
the word ‘information’, albeit, on the observations and findings
recorded, we respectfully concur. For the present decision, we are
required to primarily examine clauses (e) and (j) of sub-section (1)
to Section 8 and Section 11 of the RTI Act.
Point No. 3 (A): Fiduciary Relationship under Section 8(1)(e) of the
RTI Act
32. 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 the
Civil Appeal No. 10044 of 2010 & Ors. Page 40 of 108
larger public interest warrants the disclosure of such information.
The expression ‘fiduciary relationship’ was examined and
explained in Aditya Bandopadhyay (supra), in the following
words:
“39. The term “fiduciary” refers to a person having a
duty to act for the benefit of another, showing good
faith and candour, where such other person reposes
trust and special confidence in the person owing or
discharging the duty. The term “fiduciary relationship”
is used to describe a situation or transaction where one
person (beneficiary) places complete confidence in
another person (fiduciary) in regard to his affairs,
business or transaction(s). The term also refers to a
person who holds a thing in trust for another
(beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the
beneficiary, and use good faith and fairness in dealing
with the beneficiary or the things belonging to the
beneficiary. If the beneficiary has entrusted anything to
the fiduciary, to hold the thing in trust or to execute
certain acts in regard to or with reference to the
entrusted thing, the fiduciary has to act in confidence
and is expected not to disclose the thing or information
to any third party.
40. There are also certain relationships where both the
parties have to act in a fiduciary capacity treating the
other as the beneficiary. Examples of these are: a
partner vis-à-vis another partner and an employer visà-vis employee. An employee who comes into
possession of business or trade secrets or confidential
information relating to the employer in the course of his
employment, is expected to act as a fiduciary and
cannot disclose it to others. Similarly, if on the request
of the employer or official superior or the head of a
department, an employee furnishes his personal details
and information, to be retained in confidence, the
employer, the official superior or departmental head is
expected to hold such personal information in
confidence as a fiduciary, to be made use of or
Civil Appeal No. 10044 of 2010 & Ors. Page 41 of 108
disclosed only if the employee’s conduct or acts are
found to be prejudicial to the employer.
41. In a philosophical and very wide sense, examining
bodies can be said to act in a fiduciary capacity, with
reference to the students who participate in an
examination, as a Government does while governing
its citizens or as the present generation does with
reference to the future generation while preserving the
environment. But the words “information available to a
person in his fiduciary relationship” are used in Section
8(1)(e) of the RTI Act in its normal and well-recognised
sense, that is, to refer to persons who act in a fiduciary
capacity, with reference to a specific beneficiary or
beneficiaries who are to be expected to be protected or
benefited by the actions of the fiduciary—a trustee with
reference to the beneficiary of the trust, a guardian with
reference to a minor/physically infirm/mentally
challenged, a parent with reference to a child, a lawyer
or a chartered accountant with reference to a client, a
doctor or nurse with reference to a patient, an agent
with reference to a principal, a partner with reference to
another partner, a director of a company with reference
to a shareholder, an executor with reference to a
legatee, a receiver with reference to the parties to a lis,
an employer with reference to the confidential
information relating to the employee, and an employee
with reference to business dealings/transaction of the
employer. We do not find that kind of fiduciary
relationship between the examining body and the
examinee, with reference to the evaluated answer
books, that come into the custody of the examining
body.”
This 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. A
Civil Appeal No. 10044 of 2010 & Ors. Page 42 of 108
fiduciary would, ergo, be duty-bound to make thorough disclosure
of all relevant facts of all transactions between them in a fiduciary
relationship to the beneficiary. In the facts of the said case, this
Court had to consider whether an examining body, the Central
Board of Secondary Education, held information in the form of
evaluated answer-books of the examinees in fiduciary capacity.
Answering in the negative, it was nevertheless observed that even
if the examining body is in a fiduciary relationship with an
examinee, it will be duty-bound to disclose the evaluated answerbooks to the examinee and at the same time, they owe a duty to
the examinee not to disclose the answer-books to anyone else,
that is, any third party. This observation is of significant
importance as it recognises that Section 8(1)(j), and as noticed
below - Section 11, encapsulates another right, that is the right to
protect privacy and confidentiality by barring the furnishing of
information to third parties except when the public interest as
prescribed so requires. In this way, the RTI Act complements both
the right to information and the right to privacy and confidentiality.
Further, it moderates and regulates the conflict between the two
rights by applying the test of larger public interest or comparative
examination of public interest in disclosure of information with
possible harm and injury to the protected interests.
Civil Appeal No. 10044 of 2010 & Ors. Page 43 of 108
33. In Reserve Bank of India (supra) this Court had expounded upon
the expression ‘fiduciary relationship’ used in clause (e) to subsection (1) of Section 8 of the RTI Act by referring to the definition
of ‘fiduciary relationship’ in the Advanced Law Lexicon, 3rd Edition,
2005, which reads as under:
“57. [...] Fiduciary relationship. — A relationship in
which one person is under a duty to act for the benefit
of the other on matters within the scope of the fiduciary
relationship. Fiduciary relationship usually arises in one
of the four situations: (1) when one person places trust
in the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one
person assumes control and responsibility over
another, (3) when one person has a duty to act for or
give advice to another on matters falling within the
scope of the relationship, or (4) when there is a specific
relationship that has traditionally been recognised as
involving fiduciary duties, as with a lawyer and a client,
or a stockbroker and a customer.”
Thereafter, the Court had outlined the contours of the
fiduciary relationship by listing out the governing principles which
read:
“58. [...] (i) No conflict rule — A fiduciary must not place
himself in a position where his own interest conflicts
with that of his customer or the beneficiary. There must
be ‘real sensible possibility of conflict’.
(ii) No profit rule — A fiduciary must not profit from his
position at the expense of his customer, the
beneficiary.
(iii) Undivided loyalty rule — A fiduciary owes undivided
loyalty to the beneficiary, not to place himself in a
position where his duty towards one person conflicts
Civil Appeal No. 10044 of 2010 & Ors. Page 44 of 108
with a duty that he owes to another customer. A
consequence of this duty is that a fiduciary must make
available to a customer all the information that is
relevant to the customer’s affairs.
(iv) Duty of confidentiality — A fiduciary must only use
information obtained in confidence and must not use it
for his own advantage, or for the benefit of another
person.”
34. 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.
Contractual or non-fiduciary relationships could require that the
party should protect and promote the interest of the other and not
cause harm or damage, but the fiduciary relationship casts a
positive obligation and demands that the fiduciary should protect
the beneficiary and not promote personal self-interest. A
Civil Appeal No. 10044 of 2010 & Ors. Page 45 of 108
fiduciary’s loyalty, duties and obligations are stricter than the
morals of the market place and it is not honesty alone, but the
punctilio of an honour which is the most sensitive standard of
behaviour which is applied {See – Opinion of Cardozo, J. in
Meinhard v. Salmon17}. Thus, the level of judicial scrutiny in cases
of fiduciary relationship is intense as the level of commitment and
loyalty expected is higher than non-fiduciary relationships.
Fiduciary relationship may arise because of the statute which
requires a fiduciary to act selflessly with integrity and fidelity and
the other party, that is the beneficiary, depends upon the wisdom
and confidence reposed in the fiduciary. A contractual, statutory
and possibly all relationships cover a broad field, but a fiduciary
relationship could exist, confined to a limited area or an act, as
relationships can have several facets. 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,
17 (1928) 164 N.E. 545, 546
Civil Appeal No. 10044 of 2010 & Ors. Page 46 of 108
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.
35. 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. Whether or not such a
relationship arises in a particular situation would have to be dealt
with on the tests and parameters enunciated above.
Point No. 3 (B): Right to Privacy under Section 8(1)(j) and
Confidentiality under Section 11 of the RTI Act
36. If one’s right to know is absolute, then the same may invade
another’s right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need for
personal privacy, confidentiality of information and effective
governance. 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 privacy
Civil Appeal No. 10044 of 2010 & Ors. Page 47 of 108
of 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’. By differently
wording and inditing the challenge that privacy and confidentiality
throw to information rights, the RTI Act also recognises the
interconnectedness, yet distinctiveness between the breach of
confidentiality and invasion of privacy, as the former is broader
than the latter, as will be noticed below.
37. Breach of confidentiality has an older conception and was
primarily an equitable remedy based on the principle that one
party is entitled to enforce equitable duty on the persons bound by
an obligation of confidentiality on account of the relationship they
share, with actual or constructive knowledge of the confidential
relationship. Conventionally a conception of equity, confidentiality
also arises in a contract, or by a statute.18 Contractually, an
obligation to keep certain information confidential can be
effectuated expressly or implicitly by an oral or written agreement,
whereas in statutes certain extant and defined relationships are
imposed with the duty to maintain details, communication
18 See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton, Spycatcher:
Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip
Coppel, Information Rights, Law and Practice (4
th Edition Hart Publishing 2014)].
Civil Appeal No. 10044 of 2010 & Ors. Page 48 of 108
exchanged and records confidential. Confidentiality referred to in
the phrase 'breach of confidentiality' was initially popularly
perceived and interpreted as confidentiality arising out of a preexisting confidential relationship, as the obligation to keep certain
information confidential was on account of the nature of the
relationship. The insistence of a pre-existing confidential
relationship did not conceive a possibility that a duty to keep
information confidential could arise even if a relationship, in which
such information is exchanged and held, is not pre-existing. This
created a distinction between confidential information obtained
through the violation of a confidential relationship and similar
confidential information obtained in some other way. With time,
courts and jurists, who recognised this anomaly, have diluted the
requirement of the existence of a confidential relationship and held
that three elements were essential for a case of breach of
confidentiality to succeed, namely – (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 (See Coco v.
AN Clark (Engineers) Ltd.19). The “artificial”20 distinction was
emphatically abrogated by the test adopted by Lord Goff of
19 [1969] RPC 41
20 Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 49 of 108
Chieveley in Attorney-General v. Guardian Newspaper Limited
(No. 2)21, who had observed:
“a duty of confidence arises when confidential
information comes to the knowledge of a person... in
circumstances where he has notice, or is held to have
agreed, that the information is confidential, with the
effect that it would be just in all the circumstances that
he should be precluded from disclosing the information
to others.”
Lord Goff, thus, lifted the limiting constraint of a need for
initial confidential relationship stating that a 'duty of confidence'
would apply whenever a person receives information he knows or
ought to know is fairly and reasonably to be regarded as
confidential. Therefore, confidential information must not be
something which is a public property and in public knowledge/
public domain as confidentiality necessarily attributes
inaccessibility, that is, the information must not be generally
accessible, otherwise it cannot be regarded as confidential.
However, self-clarification or certification will not be relevant
because whether or not the information is confidential has to be
determined as a matter of fact. The test to be applied is that of a
reasonable person, that is, information must be such that a
reasonable person would regard it as confidential. Confidentiality
of information also has reference to the quality of information
21 (1990) 1 AC 109
Civil Appeal No. 10044 of 2010 & Ors. Page 50 of 108
though it may apply even if the information is false or partly
incorrect. However, the information must not be trivial or useless.
38. While previously information that could be considered personal
would have been protected only if it were exchanged in a
confidential relationship or considered confidential by nature,
significant developments in jurisprudence since the 1990’s have
posited the acceptance of privacy as a separate right and
something worthy of protection on its own as opposed to being
protected under an actionable claim for breach of confidentiality. A
claim to protect privacy is, in a sense, a claim for the preservation
of confidentiality of personal information. With progression of the
right to privacy, the underlying values of the law that protects
personal information came to be seen differently as the courts
recognised that unlike law of confidentiality that is based upon
duty of good faith, right to privacy focuses on the protection of
human autonomy and dignity by granting the right to control the
dissemination of information about one’s private life and the right
to the esteem and respect of other people (See - Sedley LJ
in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers
Ltd.23, the Supreme Court of the United Kingdom had drawn a
22 (2001) QB 967
23 (2016) UKSC 26
Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108
distinction between the right to respect private and family life or
privacy and claims based upon confidentiality by observing that
the law extends greater protection to privacy rights than rights in
relation to confidential matters. In the former case, the claim for
misuse of private information can survive even when information
is in the public domain as its repetitive use itself leads to violation
of the said right. The right to privacy gets the benefit of both the
quantitative and the qualitative protection. The former refers to the
disclosure already made and what is yet undisclosed, whereas the
latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
would generally fail when the information is in public domain. The
law of privacy is, therefore, not solely concerned with the
information, but more concerned with the intrusion and violation of
private rights. Citing an instance of how publishing of defamatory
material can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the Court had highlighted the
reason why truth or falsity of an allegation or information may be
irrelevant when it comes to invasion of privacy. Therefore, claims
for protection against invasion of private and family life do not
depend upon confidentiality alone. This distinction is important to
Civil Appeal No. 10044 of 2010 & Ors. Page 52 of 108
understand the protection given to two different rights vide Section
8(1)(j) and 11 of the RTI Act.
39. In District Registrar and Collector v. Canara Bank24 this Court
had referred to the judgment of the U.S. Supreme Court in United
States v. Miller25 on the question of “voluntary” parting with
information and under the heading ‘Criticism of Miller’ had
observed:
“48. ...(A) Criticism of Miller
(i) The majority in Miller laid down that a customer
who has conveyed his affairs to another had thereby
lost his privacy rights. Prof. Tribe states in his treatise
(see p. 1391) that this theory reveals “alarming
tendencies” because the Court has gone back to the
old theory that privacy is in relation to property while it
has laid down that the right is one attached to the
person rather than to property. If the right is to be held
to be not attached to the person, then “we would not
shield our account balances, income figures and
personal telephone and address books from the public
eye, but might instead go about with the information
written on our ‘foreheads or our bumper stickers’.” He
observes that the majority in Miller confused “privacy”
with “secrecy” and that “even their notion of secrecy is
a strange one, for a secret remains a secret even when
shared with those whom one selects for one's
confidence”. Our cheques are not merely negotiable
instruments but yet the world can learn a vast amount
about us by knowing how and with whom we have
spent our money. Same is the position when we use
the telephone or post a letter. To say that one assumes
great risks by opening a bank account appeared to be
a wrong conclusion. Prof. Tribe asks a very pertinent
question (p. 1392):
24 (2005) 1 SCC 496
25 425 US 435 (1976)
Civil Appeal No. 10044 of 2010 & Ors. Page 53 of 108
‘Yet one can hardly be said to have assumed a risk
of surveillance in a context where, as a practical
matter, one had no choice. Only the most committed —
and perhaps civilly committable — hermit can live
without a telephone, without a bank account, without
mail. To say that one must take a bitter pill with the
sweet when one licks a stamp is to exact a high
constitutional price indeed for living in contemporary
society.’
He concludes (p. 1400):
‘In our information-dense technological era, when
living inevitably entails leaving not just informational
footprints but parts of one's self in myriad directories,
files, records and computers, to hold that the
Fourteenth Amendment did not reserve to individuals
some power to say when and how and by whom that
information and those confidences were to be used,
would be to denigrate the central role that informational
autonomy must play in any developed concept of the
self.’
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.
1392) says:
‘It is beginning to look as if the only way someone
living in our society can avoid ‘assuming the risk’ that
various intermediate institutions will reveal information
to the police is by engaging in drastic discipline, the
kind of discipline of life under totalitarian regimes.’… ”
Thereafter, it was noticed that with the enactment of the
Right to Financial Privacy Act, 1978 the legal effect of ‘Miller’ was
statutorily done away.
40. The right to privacy though not expressly guaranteed in the
Constitution of India is now recognized as a basic fundamental
Civil Appeal No. 10044 of 2010 & Ors. Page 54 of 108
right vide decision of the Constitutional Bench in K.S.
Puttaswamy and Another v. Union of India and Others26
holding that it is an intrinsic part of the right to life and liberty
guaranteed under Article 21 of the Constitution and recognised
under several international treaties, chief among them being
Article 12 of the Universal Declaration of Human Rights, 1948
which states that no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. The judgment
recognises that everyone has a right to the protection of laws
against such interference or attack.
41. In K.S. Puttaswamy (supra) the main judgment (authored by D.Y.
Chandrachud, J.) has referred to provisions of Section 8(1)(j) of
the RTI Act to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus providing a
touchstone on which validity of executive decisions can be
assessed and validity of laws can be determined vide judicial
review exercised by the courts. This observation highlights the
status and importance of the right to privacy as a constitutional
right. The ratio as recorded in the two concurring judgments of
26 (2017) 10 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 55 of 108
the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.)
are similar. It is observed that privacy involves a person’s right to
his physical body; right to informational privacy which deals with a
person’s mind; and the right to privacy of choice which protects an
individual’s autonomy over personal choices. While physical
privacy enjoys constitutional recognition in Article 19(1)(d) and (e)
read with Article 21, personal informational privacy is relatable to
Article 21 and right to privacy of choice is enshrined in Articles
19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the
concurring opinion, there is a reference to ‘The Right to Privacy’
by Samuel Warren and Louis D. Brandeis on an individual’s right
to control the dissemination of personal information and that an
individual has a right to limit access to such information/shield
such information from unwarranted access. Knowledge about a
person gives another power over that person, as personal data
collected is capable of effecting representations in his decision
making process and shaping behaviour which can have a
stultifying effect on the expression of dissent which is the
cornerstone of democracy. In the said concurring judgment, it has
been further held that the right to protection of reputation from
being unfairly harmed needs to be zealously guarded not only
against falsehood but also against certain truths by observing:
Civil Appeal No. 10044 of 2010 & Ors. Page 56 of 108
“623. An individual has a right to protect his reputation
from being unfairly harmed and such protection of
reputation needs to exist not only against falsehood but
also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by
knowing private details about their lives – people judge
us badly, they judge us in haste, they judge out of
context, they judge without hearing the whole story and
they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments.”27
42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is
essential for liberty and dignity. Therefore, individuals have the
need to preserve an intrusion-free zone for their personality and
family. This facilitates individual freedom. On the question of
invasion of personal liberty, the main judgment has referred to a
three-fold requirement in the form of – (i) legality, which postulates
the existence of law (RTI Act in the present case); (ii) need,
defined in terms of a legitimate State aim; and (iii) proportionality,
which ensures a rational nexus between the objects and the
means to be adopted to achieve them. The third requirement, we
would observe, is achieved in the present case by Sections 8(1)(j)
and 11 of the RTI Act and the RTI Act cannot be faulted on this
ground. The RTI Act also defines the legitimate aim, that is a
public interest in the dissemination of information which can be
confidential or private (or held in a fiduciary relationship) when
27 Daniel Solove: “10 Reasons Why Privacy Matters” published on 20th January 2014 and available at
https://www.teachprivacy.com/10-reasons-privacy-matters/
Civil Appeal No. 10044 of 2010 & Ors. Page 57 of 108
larger public interest or public interest in disclosure outweighs the
protection or any possible harm or injury to the interest of the third
party.
43. Privacy and confidentiality encompass a bundle of rights including
the right to protect identity and anonymity. Anonymity is where an
individual seeks freedom from identification, even when and
despite being in a public space. In K.S. Puttaswamy (supra)
reference is made to Spencer v. R.28 which had set out three key
elements of informational privacy: privacy as secrecy, privacy as
control, and privacy as anonymity, to observe:
“214. […] anonymity may, depending on the totality of
the circumstances, be the foundation of a privacy
interest that engages constitutional protection against
unreasonable search and seizure.
xx xx xx
[…] The disclosure of this information will often amount
to the identification of a user with intimate or sensitive
activities being carried out online, usually on the
understanding that these activities would be
anonymous. A request by a police officer that an ISP
voluntarily disclose such information amounts to a
search.”
Privacy and confidentiality, therefore, include information about
one’s identity.
28 2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43
Civil Appeal No. 10044 of 2010 & Ors. Page 58 of 108
44. In K.S. Puttaswamy (supra), it is observed that the Canadian
Supreme Court in Spencer (supra) had stopped short of
recognising an absolute right of anonymity, but had used the
provisions of Canadian Charter of Rights and Freedoms of 1982
to expand the scope of the right to privacy, used traditionally to
protect individuals from an invasion of their property rights, to an
individual’s “reasonable expectation of privacy”. Yet the Court has
observed that there has to be a careful balancing of the
requirements of privacy with legitimate concerns of the State after
referring to an article29 wherein it was observed that:
“Privacy is the terrorist’s best friend, and the terrorist’s
privacy has been enhanced by the same technological
developments that have both made data mining
feasible and elicited vast quantities of personal
information from innocents …”
45. Referring to an article titled ‘Reasonable Expectations of
Anonymity’
30 authored by Jeffrey M. Skopek, it is observed that
distinction has been drawn between anonymity on one hand and
privacy on the other as privacy involves hiding information
whereas anonymity involves hiding what makes it personal by
giving an example that furnishing of medical records of a patient
would amount to an invasion of privacy, whereas a State may
29 Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago Law Review
(2008), Vol. 75, 251.
30 Virginia Law Review (2015), Vol. 101, at pp. 691-762.
Civil Appeal No. 10044 of 2010 & Ors. Page 59 of 108
have legitimate interest in analysing data borne from hospital
records to understand and deal with a public health epidemic and
to obviate serious impact on the population. If the anonymity of the
individual/patient is preserved, it would legitimately assert a valid
State interest in the preservation of public health.
46. For the purpose of the present case, we are not concerned with
the specific connotations of the right to anonymity and the
restrictions/limitations appended to it. In the context of the RTI Act,
suffice would be to say that the right to protect identity and
anonymity would be identically subjected to the public interest
test.
47. 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
Civil Appeal No. 10044 of 2010 & Ors. Page 60 of 108
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.
48. As per Black’s Law Dictionary, 8th Edition, the word ‘personal’
means ‘of or affecting a person or of or constituting personal
property’. In Collins Dictionary of the English Language, the word
‘personal’ has been defined as under:
“1. Of or relating to the private aspects of a person’s
life.
2. Of or relating to a person’s body, its care or its
appearance.
3. Belonging to or intended for a particular person and
no one else.
4. Undertaken by an individual himself.
5. Referring to, concerning, or involving a person’s
individual personality, intimate affairs, etc., esp. in an
offensive way.
6. Having the attributes of an individual conscious
being.
7. Of or arising from the personality.
8. Of or relating to, or denoting grammatical person.
9. Of or relating to movable property (Law).
10. An item of movable property (Law).”
Civil Appeal No. 10044 of 2010 & Ors. Page 61 of 108
49. In Peck v. United Kingdom31, the European Court of Human
Rights had held that private life is a broad term not susceptible to
exhaustive definition but includes the right to establish and
develop relationships with other human beings such that there is a
zone of interaction of a person with others, even in a public
context, which may fall within the scope of private life.
Recognised facets of an individual’s private life include a person’s
health, ethnicity, personal relationships, sexual conduct; religious
or philosophical convictions and personal image. These facets
resemble what has been categorised as sensitive personal data
within the meaning of the Data Protection Act, 2018 as applicable
in the United Kingdom.
50. Gleeson CJ in Australian Broadcasting Corporation v. Lenah
Game Meats Pty Ltd32
had distinguished between what is public
and private information in the following manner:
“An activity is not private simply because it is not done
in public. It does not suffice to make an act private
that, because it occurs on private proper property, it
has such measure of protection from the public gaze
as the characteristics of the property, the property
owner combine to afford. Certain kinds of information
about a person, such as information relating to health,
personal relationships, or finances, may be easy to
identify as private, as may certain kinds of activity
which a reasonable person, applying contemporary
31 (2003) EMLR 15
32 (2001) 185 ALR 1
Civil Appeal No. 10044 of 2010 & Ors. Page 62 of 108
standards of morals and behaviour, would understand
to be meant to be unobserved. The requirement that
disclosure or observation of information or conduct
would be highly offensive to a reasonable person of
ordinary sensibilities is in many circumstances a useful
practical test of what is private.”
51. This test had been adopted in several English decisions including
decision of the House of Lords in Campbell v. Mirror Group
Newspapers Limited33 wherein Lord Hope of Craighead had
further elucidated that the definition is taken from the definition of
‘privacy’ in the United States, where the right to privacy is invaded
if the matter which is publicised is of a kind that – (a) would be
highly offensive to a reasonable person and (b) not of legitimate
concern to the public. Law of privacy in Campbell (supra), it was
observed, was not intended for the protection of the unduly
sensitive and would cover matters which are offensive and
objectionable to a reasonable man of ordinary sensibilities who
must expect some reporting of his daily activities. The mind that
has to be examined is not that of a reader in general, but that of
the person who is affected by the publicising/dissemination of his
information. The question is what a reasonable person of ordinary
sensibilities would feel if he/she is subjected to such publicity.
Only when publicity is such that a reasonable person would feel
33 (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 63 of 108
justified in feeling seriously aggrieved that there would be an
invasion in the right to privacy which gives rise to a cause of
action.
52. In Douglas (supra), it was also held that there are different
degrees of privacy which would be equally true for information
given in confidentiality, and the potential for disclosure of the
information to cause harm is an important factor to be taken into
account in the assessment of the extent of the restriction to
protect the right to privacy.
53. While clause (j) exempts disclosure of two kinds of information, as
noted in paragraph 47 above, that is “personal information” with
no relation to public activity or interest and “information” that is
exempt from disclosure to prevent unwarranted invasion of
privacy, this Court has not underscored, as will be seen below,
such distinctiveness and treated personal information to be
exempt from disclosure if such disclosure invades on balance the
privacy rights, thereby linking the former kind of information with
the latter kind. This means that information, which if disclosed
could lead to an unwarranted invasion of privacy rights, would
mean personal information, that is, which is not having co-relation
with public information.
Civil Appeal No. 10044 of 2010 & Ors. Page 64 of 108
54. In Girish Ramchandra Deshpande v. Central Information
Commissioner and Others34
, the applicant had sought copies of
all memos, show-cause notices and censure/punishment awarded
to a Government employee from his employer and also details of
his movable/immovable properties, details of investment, loan and
borrowings from financial institutions, details of gifts accepted by
the employee from his family members and relatives at the time of
the marriage of his son. In this context, it was observed:
“12. We are in agreement with the CIC and the courts
below that the details called for by the petitioner i.e.
copies of all memos issued to the third respondent,
show-cause notices and orders of censure/punishment,
etc. are qualified to be personal information as defined
in clause (j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an organisation
is primarily a matter between the employee and the
employer and normally those aspects are governed by
the service rules which fall under the expression
“personal information”, the disclosure of which has no
relationship to any public activity or public interest. On
the other hand, the disclosure of which would cause
unwarranted invasion of privacy of that individual. Of
course, in a given case, if the Central Public
Information Officer or the State Public Information
Officer or the appellate authority is satisfied that the
larger public interest justifies the disclosure of such
information, appropriate orders could be passed but
the petitioner cannot claim those details as a matter of
right.
13. The details disclosed by a person in his income tax
returns are “personal information” which stand
34 (2013) 1 SCC 212
Civil Appeal No. 10044 of 2010 & Ors. Page 65 of 108
exempted from disclosure under clause (j) of Section
8(1) of the RTI Act, unless involves a larger public
interest and the Central Public Information Officer or
the State Public Information Officer or the appellate
authority is satisfied that the larger public interest
justifies the disclosure of such information.”
(emphasis supplied)
55. In Canara Bank v. C.S. Shyam and Another35
, the applicant had
sought information on parameters with regard to transfer of
clerical staff with details of individual employees, such as date of
their joining, promotion earned, date of their joining the branch,
the authorities who had posted the transfer letters, etc. The
information sought was declared to be personal in nature, which
was conditionally exempted from disclosure under Section 8(1)(j)
of the RTI Act.
56. In Subhash Chandra Agarwal v. Registrar, Supreme Court of
India and Others36, the applicant (who is also the respondent in
the present appeals) had sought information relating to details of
medical facilities availed by individual judges of the Supreme
Court and their family members, including information relating to
private treatment in India and abroad in last three years. This
Court had held that the information sought by the applicant was
35 (2018) 11 SCC 426
36 (2018) 11 SCC 634
Civil Appeal No. 10044 of 2010 & Ors. Page 66 of 108
‘personal’ information and was protected under Section 8(1)(j) of
the RTI Act, for disclosure would cause unwarranted invasion of
privacy which prohibition would not apply where larger public
interest justifies disclosure of such information.
57. In R.K. Jain v. Union of India and Another37, the applicant had
sought inspection of documents relating to Annual Confidential
Reports (ACRs) of a Member of Customs Excise and Service Tax
Appellate Tribunal (CESTAT) and follow up action taken by the
authorities based on the ACRs. The information sought was
treated as personal information, which, except in cases involving
overriding public interest, could not be disclosed. It was observed
that the procedure under Section 11 of the RTI Act in such cases
has to be followed. The matter was remitted to examine the
aspect of larger public interest and to follow the procedure
prescribed under Section 11 of the RTI Act which, it was held, was
mandatory.
58. Reference can also be made to Aditya Bandopadhyay (supra),
as discussed earlier in paragraph 32, where this Court has held
that while a fiduciary could not withhold information from the
beneficiary in whose benefit he holds such information, he/she
37 (2013) 14 SCC 794
Civil Appeal No. 10044 of 2010 & Ors. Page 67 of 108
owed a duty to the beneficiary to not disclose the same to anyone
else. This exposition of the Court equally reconciles the right to
know with the rights to privacy under clause (j) to Section 8(1) of
the RTI Act.
59. Reading of the aforesaid judicial precedents, in our opinion, would
indicate that personal records, including name, address, physical,
mental and psychological status, marks obtained, grades and
answer sheets, are all treated as personal information. Similarly,
professional records, including qualification, performance,
evaluation reports, ACRs, disciplinary proceedings, etc. are all
personal information. Medical records, treatment, choice of
medicine, list of hospitals and doctors visited, findings recorded,
including that of the family members, information relating to
assets, liabilities, income tax returns, details of investments,
lending and borrowing, etc. are personal information. Such
personal information is entitled to protection from unwarranted
invasion of privacy and conditional access is available when
stipulation of larger public interest is satisfied. This list is indicative
and not exhaustive.
Civil Appeal No. 10044 of 2010 & Ors. Page 68 of 108
60. In Arvind Kejriwal v. Central Public Information Officer and
Another38
, the Delhi High Court had examined and interpreted
Section 11 of the RTI Act in the following manner:
“12. Section 11(1), (2), (3) and (4) are the procedural
provisions which have to be complied with by the
PIO/appellant authority, when they are required to
apply the said test and give a finding whether
information should be disclosed or not disclosed. If the
said aspect is kept in mind, we feel there would be no
difficulty in interpreting Section 11(1) and the so called
difficulties or impartibility as pointed out by the
appellant will evaporate and lose significance. This will
be also in consonance with the primary rule of
interpretation that the legislative intent is to be
gathered from language employed in a statute which is
normally the determining factor. The presumption is
that the legislature has stated what it intended to state
and has made no mistake. (See Prakash Nath Khanna
vs. CIT, (2004) 9 SCC 686; and several judgments of
Supreme Court cited in B. Premanand and Ors. vs.
Mohan Koikal and Ors..
13. Read in this manner, what is stipulated by Section
11(1) is that when an information seeker files an
application which relates to or has been supplied by
third party, the PIO has to examine whether the said
information is treated as confidential or can be treated
as confidential by the third party. If the answer is in the
possible sphere of affirmative or "maybe yes", then the
procedure prescribed in Section 11 has to be followed
for determining whether the larger public interest
requires such disclosure. When information per se or
ex facie cannot be regarded as confidential, then the
procedure under section 11 is not to be followed. All
information relating to or furnished by a third party
need not be confidential for various reasons including
the factum that it is already in public domain or in
circulation, right of third party is not affected or by law
38 AIR 2012 Delhi 29
Civil Appeal No. 10044 of 2010 & Ors. Page 69 of 108
is required to be disclosed etc. The aforesaid
interpretation takes care of the difficulties visualised by
the appellant like marks obtained in an examination, list
of BPL families, etc. In such cases, normally plea of
privacy or confidentiality does not arise as the said list
has either been made public, available in the public
domain or has been already circulated to various third
parties. On the other hand, in case the word “or” is
read as “and”, it may lead to difficulties and problems,
including invasion of right of privacy/confidentiality of a
third party. For example, a public authority may have in
its records, medical reports or prescriptions relating to
third person but which have not been supplied by the
third person. If the interpretation given by the appellant
is accepted then such information can be disclosed to
the information seeker without following the procedure
prescribed in Section 11(1) as the information was not
furnished or supplied by the third person. Such
examples can be multiplied. Furthermore, the
difficulties and anomalies pointed out can even arise
when the word “or” is read as “and” in cases where the
information is furnished by the third party. For example,
for being enrolled as a BPL family, information may
have been furnished by the third party who is in the list
of BPL families. Therefore, the reasonable and proper
manner of interpreting Section 11(1) is to keep in mind
the test stipulated by the proviso. It has to be examined
whether information can be treated and regarded as
being of confidential nature, if it relates to a third party
or has been furnished by a third party. Read in this
manner, when information relates to a third party and
can be prima facie regarded and treated as
confidential, the procedure under Section 11(1) must
be followed. Similarly, in case information has been
provided by the third party and has been prima facie
treated by the said third party as confidential, again the
procedure prescribed under Section 11(1) has to be
followed.
xx xx xx
16. Thus, Section 11(1) postulates two circumstances
when the procedure has to be followed. Firstly when
the information relates to a third party and can be
Civil Appeal No. 10044 of 2010 & Ors. Page 70 of 108
prima facie regarded as confidential as it affects the
right of privacy of the third party. The second situation
is when information is provided and given by a third
party to a public authority and prima facie the third
party who has provided information has treated and
regarded the said information as confidential. The
procedure given in Section 11(1) applies to both
cases.”
61. We would clarify that Section 11 is not merely procedural but also
a substantive provision which applies when the PIO intends to
disclose information that relates to or has been supplied by a third
party and has been treated as confidential by that third party. It
requires the PIO to issue notice to the third party who may make
submission in writing or orally, which submission has to be kept in
view while taking a decision. 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. Confidentiality is protected and
preserved in law because the public interest requires such
Civil Appeal No. 10044 of 2010 & Ors. Page 71 of 108
protection. It helps and promotes free communication without fear
of retaliation. However, public interest in protecting confidentiality
is subject to three well-known exceptions. The first exception
being a public interest in the disclosure of iniquity for there cannot
be any loss of confidentiality involving a wrongdoing. Secondly,
there cannot be any public interest when the public has been
misled. Thirdly, the principle of confidentiality does not apply when
the disclosure relates to matters of public concern, which
expression is vastly different from news value or news to satiate
public curiosity. Public concern relates to matters which are an
integral part of free speech and expression and entitlement of
everyone to truth and fair comment about it. 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.
62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of
three exceptions and more when it incorporates public interest
test. It states that information, otherwise treated confidential, can
be disclosed if the public interest in disclosure outweighs the
possible harm and injury to the interest of such a third party. The
Civil Appeal No. 10044 of 2010 & Ors. Page 72 of 108
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.
63. 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 has been discussed above. We now
proceed to look at confidentiality of information concerning the
government and information relating to its inner-workings and the
difference in approach in applying the public interest test in
disclosing such information, as opposed to the approach adopted
for other confidential/personal information. The reason for such
jurisprudential distinction with regard to government information is
best expressed in Attorney General (UK) v. Heinemann
Civil Appeal No. 10044 of 2010 & Ors. Page 73 of 108
Publishers Pty Ltd.39 wherein the High Court of Australia had
observed:
“[…] the relationship between the modern State and its
citizens is so different in kind from that which exists
between private citizens that rules worked out to
govern contractual, property, commercial and private
confidences are not fully applicable where the plaintiff
is a government or one of its agencies. Private citizens
are entitled to protect or further own interests…
[whereas] governments act, or at all events are
constitutionally required to act, in the public interest.
Information is held, received and imparted by
governments, their departments and agencies to
further the public interest. Public and not private
interest, therefore, must be the criterion by which
equity determines whether it will protect information
which a government or governmental body claims is
confidential.”
The High Court of Australia had earlier in Commonwealth
v. John Fairfax and Sons Ltd.40 observed:
“The question, then when the executive government
seeks the protection given by equity, is: What detriment
does it need to show?
The equitable principle has been fashioned to protect
the personal, private and proprietary interests of the
citizen, not to protect the very different interests of the
executive government. It acts, or is supposed to act,
not according to standards of private interest, but in the
public interest. This is not to say that equity will not
protect information in the hands of the government, but
it is to say that when equity protects government
information it will look at the matter through different
spectacles.
39 (1987) 10 NSWLR 86 at 191.
40 (1980) 147 CLR 39 at 51.
Civil Appeal No. 10044 of 2010 & Ors. Page 74 of 108
It may be a sufficient detriment to the citizen that
disclosure of information relating to his affairs will
expose his actions to public discussion and criticism.
But it can scarcely be a relevant detriment to the
government that publication of material concerning its
actions will merely expose it to public discussion and
criticism. It is unacceptable in our democratic society
that there should be a restraint on the publication of
information relating to government when the only vice
of that information is that it enables the public to
discuss, review and criticize government action.
Accordingly, the court will determine the government's
claim to confidentiality by reference to the public
interest. Unless disclosure is likely to injure the public
interest, it will not be protected.
The court will not prevent the publication of information
which merely throws light on the past workings of
government, even if it be not public property, so long
as it does not prejudice the community in other
respects. Then disclosure will itself serve the public
interest in keeping the community informed and in
promoting discussion of public affairs. If, however, it
appears that disclosure will be inimical to the public
interest because national security, relations with
foreign countries or the ordinary business of
government will be prejudiced, disclosure will be
restrained. There will be cases in which the conflicting
considerations will be finely balanced, where it is
difficult to decide whether the public's interest in
knowing and in expressing its opinion, outweighs the
need to protect confidentiality.”
The above principles have also been reiterated and relied
upon by the courts in the United Kingdom [See Coco (supra),
Civil Appeal No. 10044 of 2010 & Ors. Page 75 of 108
Attorney General v. Jonathan Cape Ltd.41]. In Guardian
Newspapers (supra), Lord Keith of Kinkel had observed:
“The position of the Crown, as representing the
continuing government of the country may, however,
be regarded as being special. In some instances
disclosure of confidential information entrusted to a
servant of the Crown may result in a financial loss to
the public. In other instances such disclosure may tend
to harm the public interest by impeding the efficient
attainment of proper governmental ends, and the
revelation of defence or intelligence secrets certainly
falls into that category. The Crown, however, as
representing the nation as a whole, has no private life
or personal feelings capable of being hurt by the
disclosure of confidential information. In so far as the
Crown acts to prevent such disclosure or to seek
redress for it on confidentiality grounds, it must
necessarily, in my opinion, be in a position to show that
the disclosure is likely to damage or has damaged the
public interest. How far the Crown has to go in order to
show this must depend on the circumstances of each
case. In a question with a Crown servant himself, or
others acting as his agents, the general public interest
in the preservation of confidentiality, and in
encouraging other Crown servants to preserve it, may
suffice.”
64. In R.K. Jain v. Union of India42
, this Court, while examining
Section 123 of the Evidence Act, 1872, had paraphrased the
earlier judgment of the Constitution Bench of this Court penned
down by Fazal Ali, J. in S.P. Gupta (supra) (the first Judge’s case)
in which the question of privilege against disclosure of
correspondence between the Chief Justice of Delhi High Court,
41 [1976] QB 752
42 (1993) 4 SCC 119
Civil Appeal No. 10044 of 2010 & Ors. Page 76 of 108
Chief Justice of India and the Law Minister of the Union had
arisen, in the following words:
“41. [...] in a democracy, citizens are to know what their
Govt. is doing. No democratic Govt. can survive
without accountability and the basic postulate of
accountability is that the people should have
information about the functioning of the Govt. It is only
if the people know how the Govt. is functioning and that
they can fulfill their own democratic rights given to
them and make the democracy a really effective
participatory democracy. There can be little doubt that
exposure to public scrutiny is one of the surest means
of running a clean and healthy administration. By
disclosure of information in regard to the functioning of
the Govt. must be the rule and secrecy can be
exceptionally justified only where strict requirement of
public information was assumed. The approach of the
court must be to alleviate the area of secrecy as much
as possible constantly with the requirement of public
interest bearing in mind all the time that the disclosure
also serves an important aspect of public interest.”
65. In R.K. Jain (1993) (supra), reference was also made to Articles
74(2) and 75(3) of the Constitution, to observe:
“21...Article 74(2) precludes this Court from enquiring
into the nature of the advice tendered to the President
and the documents are, therefore, immuned from
disclosure. The disclosure would cause public injury
preventing candid and frank discussion and expression
of views by the bureaucrats at higher level and by the
Minister/Cabinet Sub-committee causing serious injury
to public service. Therefore, Cabinet papers, minutes
of discussion by heads of departments; high level
documents relating to the inner working of the
government machine and all papers concerned with
the government policies belong to a class documents
which in the public interest they or contents thereof
must be protected against disclosure.
xx xx xx
Civil Appeal No. 10044 of 2010 & Ors. Page 77 of 108
30. Collective responsibility under Article 75(3) of the
Constitution inheres maintenance of confidentiality as
enjoined in oaths of office and of secrecy set forth in
Schedule III of the Constitution that the Minister will not
directly or indirectly communicate or reveal to any
person or persons any matter which shall be brought
under his/her consideration or shall become known to
him/her as Minister except as may be required for the
"due discharge of his/her duty as Minister". The base
and basic postulate of its significance is
unexceptionable. But the need for and effect of
confidentiality has to be nurtured not merely from
political imperatives of collective responsibility
envisaged by Article 75(3) but also from its
pragmatism.
xx xx xx
34. Equally every member is entitled to insist that
whatever his own contribution was to the making of the
decision, whether favourable or unfavourable, every
other member will keep it secret. Maintenance of
secrecy by an individual's contribution to discussion, or
vote in the Cabinet guarantees most favourable and
conducive atmosphere to express view formally…”
It was held that the Ministers and the government servants
were required to maintain secrecy and confidentiality in the
performance of the duties of the office entrusted by the
Constitution and the laws. Elucidating on the importance of
confidentiality, it was observed:
“34. [...] Confidentiality and collective responsibility in that
scenario are twins to effectuate the object of frank and open
debate to augment efficiency of public service or effectivity
of collective decision to elongate public interest. To hamper
and impair them without any compelling or at least strong
reasons, would be detrimental to the efficacy of public
administration. It would tantamount to wanton rejection of
Civil Appeal No. 10044 of 2010 & Ors. Page 78 of 108
the fruits of democratic governance, and abdication of an
office of responsibility and dependability. Maintaining of top
secrecy of new taxation policies is a must but leaking
budget proposals a day before presentation of the budget
may be an exceptional occurrence as an instance.”
66. Thereafter, reference was made to the decision of the House of
Lords in Burmah Oil Ltd v. Governor And Company Of The
Bank Of England And Another43 wherein the Lords had rejected
the notion that “any competent and conscientious public servant
would be inhibited at all in the candour of his writings by
consideration of the off chance that they might have to be
produced in a litigation as grotesque” to hold that this contention
would be utterly insubstantial ground to deny access to the
relevant document. In Burma Oil Ltd. (supra), it was held that the
candour doctrine stands in a different category from that aspect of
public interest, which, in appropriate circumstances, may require
that the ‘sources and nature of information confidentially tendered’
should be withheld from disclosure. Several other cases were
also referred expressing the same ratio [See – Butters Gas and
Oil Co. v. Hammer44; Air Canada v. Secretary of State for
43 [1980] AC 1090
44 1982 AC 888 (H.L.)
Civil Appeal No. 10044 of 2010 & Ors. Page 79 of 108
Trade45; and Council of Civil Service Unions v. Minister for the
Civil Service46].
67. Having held so, the Bench in R.K. Jain (1993) (supra) had
proceeded to observe:
“48. In a democracy it is inherently difficult to function
at high governmental level without some degree of
secrecy. No Minister, nor a Senior Officer would
effectively discharge his official responsibilities if every
document prepared to formulate sensitive policy
decisions or to make assessment of character rolls of
co-ordinate officers at that level if they were to be
made public. Generally assessment of honesty and
integrity is a high responsibility. At high co-ordinate
level it would be a delicate one which would further get
compounded when it is not backed up with material.
Seldom material will be available in sensitive areas.
Reputation gathered by an officer around him would
form the base. If the reports are made known, or if the
disclosure is routine, public interest grievously would
suffer. On the other hand, confidentiality would
augment honest assessment to improve efficiency and
integrity in the officers.
49. The business of the Govt., when transacted by
bureaucrats, even in personal, it would be difficult to
have equanimity if the inner working of the Govt.
machinery is needlessly exposed to the public. On
such sensitive issues it would hamper to express frank
and forthright views or opinions. therefore, it may be
that at that level the deliberations and in exceptional
cases that class or category or documents get
protection, in particular, on policy matters. Therefore,
the court would be willing to respond to the executive
public interest immunity to disclose certain documents
where national security or high policy, high sensitivity is
involved.
45 1983 2 AC 394 (H.L.)
46 1985 AC 374 (H.L.)
Civil Appeal No. 10044 of 2010 & Ors. Page 80 of 108
xx xx xx
54. […] In President Nixon's case, the Supreme Court
of the United States held that it is the court's duty to
construe and delineate claims arising under express
powers, to interpret claims with respect to powers
alleged to derive from enumerated powers of the
Constitution, In deciding whether the matter has in any
measure been committed by the Constitution to
another branch of government, or whether the action of
that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is the responsibility of the court as
ultimate interpreter of the Constitution…”
68. At the same time, it was held:
“55. [...] Article 74(2) is not a total bar for production of
the records. Only the actual advice tendered by the
Minister or Council of Ministers to the President and
the question whether any and if so, what advice was
tendered by the Minister or Council of Ministers to the
President, shall not be enquired into by the court. In
other words the bar of Judicial review is confined to the
factum of advice, its extent, ambit and scope but not
the record i.e. the material on which the advice is
founded. In S.P. Gupta's case this Court held that only
the actual advice tendered to the President is immuned
from enquiry and the immunity does not extend to other
documents or records which form part of the advice
tendered to the President.
56. There is discernible modern trends towards more
open government than was prevalent in the past. In its
judicial review the court would adopt in camera
procedure to inspect the record and evaluate the
balancing act between the competing public interest
and administration of justice. It is equally the
paramount consideration that justice should not only be
done but also would be publicly recognised as having
been done. Under modern conditions of responsible
government, Parliament should not always be relied on
as a check on excess of power by the Council of
Civil Appeal No. 10044 of 2010 & Ors. Page 81 of 108
Ministers or Minister. Though the court would not
substitute its views to that of the executive on matters
of policy, it is its undoubted power and duty to see that
the executive exercises its power only for the purpose
for which it is granted. Secrecy of the advice or opinion
is by no means conclusive. Candour, frankness and
confidentiality though are integral facets of the common
genus i.e., efficient governmental functioning, per se by
means conclusive but be kept in view in weighing the
balancing act. Decided cases show that power often
was exercised in excess thereof or for an ulterior
purpose etc. Sometimes the public service reasons will
be decisive of the issue, but they should never prevent
the court from weighing them against the injury which
would be suffered in the administration of justice if the
document was not to be disclosed, and the likely injury
to the cause of justice must also be assessed and
weighed. Its weight will vary according to the nature of
the proceedings in which disclosure is sought, level at
which the matter was considered; the subject matter of
consideration; the relevance of the documents and that
degree of likelihood that the document will be of
importance in the litigation. In striking the balance, the
court may always, if it thinks it necessary, itself inspect
the documents. It is, therefore the constitutional,
legitimate and lawful power and duty of this Court to
ensure that powers, constitutional, statutory or
executive are exercised in accordance with the
Constitution and the law. This may demand, though no
doubt only in limited number of cases, yet the inner
workings of government may be exposed to public
gaze. The contentions of Attorney General and
Solicitor General that the inner workings of the
government would be exposed to public gaze, and that
some one who would regard this as an occasion
without sufficient material to ill-informed criticism is no
longer relevant. Criticism calculated to improve the
nature of that working as affecting the individual citizen
is welcome.”
69. The aforesaid passages highlight the relevance of confidentiality
in the government and its functioning. However, this is not to state
Civil Appeal No. 10044 of 2010 & Ors. Page 82 of 108
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).
70. Most jurists would accept that absolute transparency in all facets
of government is neither feasible nor desirable,47 for there are
several limitations on complete disclosure of governmental
information, especially in matters relating to national security,
diplomatic relations, internal security or sensitive diplomatic
correspondence. There is also a need to accept and trust the
government’s decision-makers, which they have to also earn,
when they plead that confidentiality in their meetings and
47 Michael Schudson, ‘The Right to Know vs the Need for Secrecy: The US Experience’ The
Conversation (May 2015) <https://theconversation.com/the-right-to-know-vs-the-need-for-secrecythe-us-experience-40948>; Eric R. Boot, ‘The Feasibility of a Public Interest Defense for
Whistleblowing’, Law and Philosophy (2019). See generally Michael Schudson, The Rise of the
Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge (MA): Harvard
University Press 2015).
Civil Appeal No. 10044 of 2010 & Ors. Page 83 of 108
exchange of views is needed to have a free flow of views on
sensitive, vexatious and pestilent issues in which there can be
divergent views. This is, however, not to state that there are no
dangers in maintaining secrecy even on aspects that relate to
national security, diplomatic relations, internal security or sensitive
diplomatic correspondence. 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.
POINT NO. 4: MEANING OF THE TERM ‘PUBLIC INTEREST’
71. In Union of India v. Association for Democratic Reforms and
Another48 recognising the voters’ right to know the antecedents of
the candidates and the right to information which stems from
Article 19(1)(a) of the Constitution, it was held that directions could
48 (2002) 5 SCC 294
Civil Appeal No. 10044 of 2010 & Ors. Page 84 of 108
be issued by the Court to subserve public interest in creating an
informed citizenry, observing:
“46. […] The right to get information in democracy is
recognised all throughout and it is natural right flowing
from the concept of democracy. At this stage, we would
refer to Article 19(1) and (2) of the International
Covenant of Civil and Political Rights which is as
under:
(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of
his choice.
6. Cumulative reading of plethora of decisions of this
Court as referred to, it is clear that if the field meant for
legislature and executive is left unoccupied detrimental
to the public interest, this Court would have ample
jurisdiction under Article 32 read with Article 141 and
142 of the Constitution to issue necessary directions to
the Executive to subserve public interest.”
Clearly, the larger public interest in having an informed
electorate, fair elections and creating a dialectical democracy had
outweighed and compelled this Court to issue the directions
notwithstanding disclosure of information relating to the personal
assets, educational qualifications and antecedents including
previous involvement in a criminal case of the contesting
candidate.
Civil Appeal No. 10044 of 2010 & Ors. Page 85 of 108
72. Public interest, sometimes criticised as inherently amorphous and
incapable of a precise definition, is a time tested and historical
conflict of rights test which is often applied in the right to
information legislation to balance right to access and protection of
the conflicting right to deny access. In Mosley v. News Group
Papers Ltd.49 it has been observed:
“130… It is not simply a matter of personal privacy
versus the public interest. The modern perception is
that there is a public interest in respecting personal
privacy. It is thus a question of taking account of
conflicting public interest considerations and evaluating
them according to increasingly well recognized
criteria.”
The RTI Act is no exception. Section 8(1)(j) of the RTI Act
prescribes the requirement of satisfaction of ‘larger public interest’
for access to information when the information relates to personal
information having no relationship with any public activity or
interest, or would cause unwarranted invasion of privacy of the
individual. Proviso to Section 11(1) states that except in case of
trade or commercial secrets protected by law, disclosure may be
allowed if the public interest in disclosure outweighs in importance
any possible harm or injury to the interest of the third party. The
words ‘possible harm or injury’ to the interest of the third party is
preceded by the word ‘importance’ for the purpose of comparison.
49 2008 EWHC 1777 (QB)
Civil Appeal No. 10044 of 2010 & Ors. Page 86 of 108
‘Possible’ in the context of the proviso does not mean something
remote, far-fetched or hypothetical, but a calculable, foreseeable
and substantial possibility of harm and injury to the third party.
73. Comparison or balancing exercise of competing public interests
has to be undertaken in both sections, albeit under Section 8(1)(j)
the comparison is between public interest behind the exemption,
that is personal information or invasion of privacy of the individual
and public interest behind access to information, whereas the test
prescribed by the proviso to Section 11(1) is somewhat broader
and wider as it 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.
74. This Court in Bihar Public Service Commission v. Saiyed
Hussain Abbas Rizwi and Another50 has 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. However, the RTI Act does not specifically identify
factors to be taken into account in determining where the public
50 (2012) 13 SCC 61
Civil Appeal No. 10044 of 2010 & Ors. Page 87 of 108
interest lies. Therefore, it is important to understand the meaning
of the expression ‘public interest’ in the context of the RTI Act.
This Court held ‘public interest’ to mean the general welfare of the
public warranting the disclosure and the protection applicable, in
which the public as a whole has a stake, and observed:
“23. The satisfaction has to be arrived at by the
authorities objectively and the consequences of such
disclosure have to be weighed with regard to the
circumstances of a given case. The decision has to be
based on objective satisfaction recorded for ensuring
that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the
provision. Certain matters, particularly in relation to
appointment, are required to be dealt with great
confidentiality. The information may come to
knowledge of the authority as a result of disclosure by
others who give that information in confidence and with
complete faith, integrity and fidelity. Secrecy of such
information shall be maintained, thus, bringing it within
the ambit of fiduciary capacity. Similarly, there may be
cases where the disclosure has no relationship to any
public activity or interest or it may even cause
unwarranted invasion of privacy of the individual. All
these protections have to be given their due
implementation as they spring from statutory
exemptions. It is not a decision simpliciter between
private interest and public interest. It is a matter where
a constitutional protection is available to a person with
regard to the right to privacy. Thus, the public interest
has to be construed while keeping in mind the balance
factor between right to privacy and right to information
with the purpose sought to be achieved and the
purpose that would be served in the larger public
interest, particularly when both these rights emerge
from the constitutional values under the Constitution of
India.”
Civil Appeal No. 10044 of 2010 & Ors. Page 88 of 108
75. 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. For
example, the public may be interested in private matters with
which the public may have no concern and pressing need to
know. However, such interest of the public in private matters
would repudiate and directly traverse the protection of privacy.
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.
76. 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. In an article ‘Freedom of Information
Civil Appeal No. 10044 of 2010 & Ors. Page 89 of 108
and the Public Interest: the Commonwealth experience’ published
in the Oxford University Commonwealth Law Journal,51 the factors
identified as favouring disclosure, those against disclosure and
lastly those irrelevant for consideration of public interest have
been elucidated as under:
“it is generally accepted that the public interest is not
synonymous with what is of interest to the public, in the
sense of satisfying public curiosity about some matter.
For example, the UK Information Tribunal has drawn a
distinction between ‘matters which were in the interests
of the public to know and matters which were merely
interesting to the public (i.e. which the public would like
to know about, and which sell newspapers, but... are
not relevant).
Factors identified as favouring disclosure include
the public interest in: contributing to a debate on a
matter of public importance; accountability of officials;
openness in the expenditure of public funds, the
performance by a public authority of its regulatory
functions, the handling of complaints by public
authorities; exposure of wrongdoing, inefficiency or
unfairness; individuals being able to refute allegations
made against them; enhancement of scrutiny of
decision-making; and protecting against danger to
public health or safety.
Factors that have been found to weigh against
disclosure include: the likelihood of damage to security
or international relations; the likelihood of damage to
the integrity or viability of decision-making processes:
the public interest in public bodies being able to
perform their functions effectively; the public interest in
preserving the privacy of individuals and the public
interest in the preservation of confidences.
51 Published online on 28th August, 2017
Civil Appeal No. 10044 of 2010 & Ors. Page 90 of 108
Factors irrelevant to the consideration of the public
interest have also been identified. These include: that
the information might be misunderstood; that the
requested information in overly technical in nature; and
that disclosure would result in embarrassment to the
government or to officials.”
77. In Campbell (supra), reference was made to the Press
Complaints Commission Code of Practice to further elucidate on
the test of public interest which stands at the intersection of
freedom of expression and the privacy rights of an individual to
hold that:
“1. Public interest includes:
(i) Detecting or exposing crime or a serious
misdemeanour.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by some
statement or action of an individual or organisation....”
78. Public interest has no relationship and is not connected with the
number of individuals adversely affected by the disclosure which
may be small and insignificant in comparison to the substantial
number of individuals wanting disclosure. It will vary according to
the information sought and all circumstances of the case that bear
upon the public interest in maintaining the exemptions and those
in disclosing the information must be accounted for to judge the
right balance. Public interest is not immutable and even time-gap
Civil Appeal No. 10044 of 2010 & Ors. Page 91 of 108
may make a significant difference. The type and likelihood of harm
to the public interest behind the exemption and public interest in
disclosure would matter. 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.
79. The last aspect in the context of public interest test would be in
the form of clarification as to the effect of sub-section (2) to
Section 6 of the RTI Act which does not require the information
seeker to give any reason for making a request for the
information. Clearly, ‘motive’ and ‘purpose’ for making the request
for information is irrelevant, and being extraneous cannot be a
ground for refusing the information. However, this is not to state
that ‘motive’ and ‘purpose’ may not be relevant factor while
applying the public interest test in case of qualified exemptions
governed by the public interest test. It is in this context that this
Court in Aditya Bandopadhyay (supra) has held that beneficiary
Civil Appeal No. 10044 of 2010 & Ors. Page 92 of 108
cannot be denied personal information relating to him. Similarly, in
other cases, public interest may weigh in favour of the disclosure
when the information sought may be of special interest or special
significance to the applicant. It could equally be a negative factor
when the ‘motive’ and ‘purpose’ is vexatious or it is a case of clear
abuse of law.
80. 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.
POINT NO. 5: JUDICIAL INDEPENDENCE
81. Having dealt with the doctrine of the public interest under the RTI
Act, we would now turn to examining its co-relation with
Civil Appeal No. 10044 of 2010 & Ors. Page 93 of 108
transparency in the functioning of the judiciary in matters of
judicial appointments/selection and importance of judicial
independence.
82. Four major arguments 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.52 These arguments have
become subject matter of considerable debate, if not outright
criticism at the hands of jurists and authors.53 Yet there are those
who have expressed cynicism about the ‘interview’ process
undertaken by the Judicial Service Commission (JSC) in
recommending judges for appointment in South Africa, by pointing
out the precariousness and the chilling effect it has on prospective
candidates and consequently the best candidates often do not
apply.54 Recently, the majority judgment of the Constitutional Court
52 See: How Transparent is Transparent Enough?: Balancing Access to Information Against Privacy
in European Judicial Selections by Alberto Alemanno in Michal Bobek (ed.), Selecting Europe’s
Judges, 2015 Edition.
53 Kate Malleson, ‘Parliamentary Scrutiny of Supreme Court Nominees: A View from the United
Kingdom’ Osgoode Hall Law Journal (2007) 44, 557.
54 WH Gravett, ‘Towards an algorithmic model of judicial appointment: The necessity for radical
revision of the Judicial Service Commission’s interview procedures’ 2017 (80) THRHR.
Civil Appeal No. 10044 of 2010 & Ors. Page 94 of 108
of South Africa in Helen Suzman Foundation v. Judicial Service
Commission55 by relying upon Rule 53(1)(b) of the Uniform Rules
of Court, South Africa,
56 had directed the JSC to furnish the record
of its deliberations, rejecting the contrary argument of candour and
robustness as that of ‘timorous fainthearts’. Debating with
candour, the Court observed, is not equivalent to expression of
impropriety. The candidates, it was noticed, had undergone
gruelling scrutiny in the public interviews, and therefore disclosure
of deliberation would not act as a dampener for future candidates.
More importantly, the Constitutional Court had distinguished the
authority and power with the Courts under Rule 53 to access the
deliberation record, with the different right to access information
under the Promotion to Access to Information Act, 2000 (PAIA),
which was the basis of the minority judgment for rejection of
production of the JSC’s deliberation record. The majority held that
PAIA and Rule 53 serve different purposes, there being a
55 Case 289/16 decided on 24th April 2018
56 Rule 53(1)(b) of the Uniform Rules of Court, South Africa states:
“(1) Save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasijudicial or administrative functions shall be by way of notice of motion directed and delivered by
the party seeking to review such decision or proceedings to the magistrate, presiding officer or
chairman of the court, tribunal or board or to the officer, as the case may be, and to all other
parties affected-
(a) […]
(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to
despatch, within fifteen days after receipt of the notice of motion, to the registrar the record
of such proceedings sought to be corrected or set aside, together with such reasons as he
is by law required or desires to give or make, and to notify the applicant that he has done
so.”
Civil Appeal No. 10044 of 2010 & Ors. Page 95 of 108
difference in the nature of, and purposes, and therefore it would
be inapt to transpose PAIA proscriptions on access under Rule
53. The PAIA grants any person or busybody a right to access any
information without explaining whatsoever as to why she or he
requires the information. This had to be balanced, with the need to
incentivise people to furnish private information, where such
information is required for facilitating the government machinery,
and therefore, considerations of confidentiality are applied as the
person furnishing information must be made aware that the
information would not be unhesitatingly divulged to others,
including busybodies, for no particular reason. This facilitates the
exercise of power and performance of functions of the state
functionaries. In court matters under Rule 53, concerns of
confidentiality could be addressed by imposing stringent and
restrictive conditions on the right to access information, including
furnishing of confidentiality undertakings for restraining the
divulgence of details to third parties.
83. The United Kingdom’s Data Protection Act, 2018 grants class
exemption to all personal data processed for the purpose of
assessing a person’s suitability for judicial office, from certain
rights including the right of the data subject to be informed,
guaranteed under the European Union General Data Protection
Civil Appeal No. 10044 of 2010 & Ors. Page 96 of 108
Regulation being given effect to by the Data Protection Act.57
Similarly, in the context of the European Union, opinions of ‘the
Article 255 Panel’58 and ‘the Advisory Panel’59
, entrusted with the
task of advising on the suitability of candidates as judges to the
Court of Justice of the European Union and the European Court of
Human Rights are inaccessible to the public and their opinions
have limited circulation, as they are exclusively forwarded to the
representatives of governments of the member states in the case
of European Union60 and the individual governments in the case of
Council of Europe61
, respectively. The Council of the European
Union,62 for instance, in consultation with ‘Article 255’ Panel, has
denied requests for public access to opinions issued by the
Panel,63 in light of the applicable exceptions provided for in
Regulation No 1049/200164. Such opinions, the Council has
57 Schedule 2, Part-2, Paragraph 14.
58 Article 255, Treaty on the Functioning of the European Union states:
“A panel shall be set up in order to give an opinion on candidates' suitability to perform the duties of
Judge and Advocate-General of the Court of Justice and the General Court before the governments
of the Member States make the appointments referred to in Articles 253 and 254…”
59 Set up under Resolution ‘Establishment of an Advisory Panel of Experts on Candidates for Election
as Judge to the European Court of Human Rights’, CM/Res (2010) 26 adopted by the Committee of
Ministers on 10 November 2010.
60 CJEU is the judicial branch of the European Union, administering justice in the 28 member states
of the international organisation.
61 Comprising of 47 member European states, Council of Europe adopted the European Convention
on Human Rights, which established ECtHR.
62 One of the seven constituent bodies of the European Union comprising of the ministers from the
member states of the European Union.
63 Reply Adopted by the Council on 12 July 2016 to Confirmatory Application 13/c/01/16 pursuant to
Article 7(2) of Regulation (EC) No 1049/2001 for public access to all the opinions issued by the
Panel provided for by Article 255 of the Treaty on the Functioning of the European Union.
64 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission documents
Civil Appeal No. 10044 of 2010 & Ors. Page 97 of 108
observed, largely include personal data of the candidates, viz.
factual elements concerning the candidates’ professional
experience and qualifications and the Panel’s assessment of the
candidate’s competences and, therefore, access to relevant
documents is denied in order to protect the privacy and integrity of
the individual.65 However, a part of these opinions which do not
contain personal data and provide a description of the procedure
adopted and criteria applied by the Panel have been released as
“Activity Reports” in the framework of partial access to such
information. Opinions that are unfavourable to the appointment of
the candidates will be exempt from disclosure as they can hamper
commercial interests of the candidates in their capacity as legal
practitioners,66 whereas positive opinions are exempted from
disclosure as such opinions can lead to comparison and public
scrutiny of the most and least favoured qualities of the successful
candidates, potentially interfering with the proceedings of the
Court of Justice.67 Lastly, disclosure of opinions, the Council has
observed, will be exempted if such disclosure could “seriously
65 Article 4(1)(b), Regulation No 1049/2001
66 First indent of Article 4(2), Regulation No 1049/2001
67 Second indent of Article 4(2), Regulation No 1049/2001
Civil Appeal No. 10044 of 2010 & Ors. Page 98 of 108
undermine the institution's decision-making process, unless there
is an overriding public interest in disclosure.”68
84. More direct and relevant in the Indian context would be the
decision of this Court in Supreme Court Advocates-on-Record
Association v. Union of India69, where a Constitutional Bench of
five judges had dealt with the constitutional validity of the National
Judicial Appointments Commission. A concurring judgment had
dealt with the aspect of transparency in appointment and transfer
of judges and the privacy concerns of the judges who divulge their
personal information in confidence, to opine as under:
“949. In the context of confidentiality requirements, the
submission of the learned Attorney General was that
the functioning of NJAC would be completely
transparent. Justifying the need for transparency it was
submitted that so far the process of appointment of
Judges in the Collegium System has been extremely
secret in the sense that no one outside the Collegium
or the Department of Justice is aware of the
recommendations made by the Chief Justice of India
for appointment of a Judge of the Supreme Court or
the High Courts. Reference was made
to Renu v. District & Sessions Judge, (2014) 14 SCC
50 to contend that in the matter of appointment in all
judicial institutions “complete darkness in the
lighthouse has to be removed”.
950. In addition to the issue of transparency a
submission was made that in the matter of appointment
of Judges, civil society has the right to know who is
being considered for appointment. In this regard, it was
68 Article 4(3), Regulation No 1049/2001
69 (2016) 5 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 99 of 108
held in Indian Express Newspapers (Bombay) (P)
Ltd. v. Union of India (1985) 1 SCC 641 that the people
have a right to know. Reliance was placed on Attorney
General v. Times Newspapers Ltd. 1974 AC 273: (1973)
3 WLR 298: (1973) 3 All ER 54 (HL) where the right to
know was recognised as a fundamental principle of the
freedom of expression and the freedom of discussion.
951. In State of U.P. v. Raj Narain (1975) 4 SCC 428 the
right to know was recognised as having been derived
from the concept of freedom of speech.
952. Finally, in Reliance Petrochemicals Ltd. v. Indian
Express Newspapers Bombay (P) Ltd., (1988) 4 SCC
592 it was held that the right to know is a basic right
which citizens of a free country aspire in the broader
horizon of the right to live in this age in our land under
Article 21 of our Constitution.
953. The balance between transparency and
confidentiality is very delicate and if some sensitive
information about a particular person is made public, it
can have a far-reaching impact on his/her reputation and
dignity. The 99th Constitution Amendment Act and the
NJAC Act have not taken note of the privacy concerns of
an individual. This is important because it was submitted
by the learned Attorney General that the proceedings of
NJAC will be completely transparent and any one can
have access to information that is available with NJAC.
This is a rather sweeping generalisation which obviously
does not take into account the privacy of a person who
has been recommended for appointment, particularly as
a Judge of the High Court or in the first instance as a
Judge of the Supreme Court. The right to know is not a
fundamental right but at best it is an implicit fundamental
right and it is hedged in with the implicit fundamental
right to privacy that all people enjoy. The balance
between the two implied fundamental rights is difficult to
maintain, but the 99th Constitution Amendment Act and
the NJAC Act do not even attempt to consider, let alone
achieve that balance.
954. It is possible to argue that information voluntarily
supplied by a person who is recommended for
appointment as a Judge might not have a right to
privacy, but at the same time, since the information is
supplied in confidence, it is possible to argue that it
Civil Appeal No. 10044 of 2010 & Ors. Page 100 of 108
ought not to be disclosed to third party unconcerned
persons. Also, if the recommendation is not accepted
by the President, does the recommended person have
a right to non-disclosure of the adverse information
supplied by the President? These are difficult questions
to which adequate thought has not been given and
merely on the basis of a right to know, the reputation of
a person cannot be whitewashed in a dhobi-ghat.”
85. Earlier, the Constitution Bench of nine judges had in Second
Judges’ Case, that is Supreme Court Advocates on Record
Association and Others v. Union of India70 overruled the
majority opinion in S.P. Gupta (supra) (the first Judge’s case) and
had provided for primacy to the role of the Chief Justice of India
and the collegium in the matters of appointment and transfer of
judges. Speaking on behalf of the majority, J.S. Verma, J., had
with regard to the justiciability of transfers, summarised the legal
position as under:
“480. The primacy of the judiciary in the matter of
appointments and its determinative nature in transfers
introduces the judicial element in the process, and is
itself a sufficient justification for the absence of the
need for further judiciary review of those decisions,
which is ordinarily needed as a check against possible
executive excess or arbitrariness. Plurality of judges in
the formation of the opinion of the Chief Justice of
India, as indicated, is another inbuilt check against the
likelihood of arbitrariness or bias, even subconsciously,
of any individual. The judicial element being
predominant in the case of appointments, and decisive
in transfers, as indicated, the need for further judicial
review, as in other executive actions, is eliminated.
70 (1993) 4 SCC 441
Civil Appeal No. 10044 of 2010 & Ors. Page 101 of 108
The reduction of the area of discretion to the minimum,
the element of plurality of judges in formation of the
opinion of the Chief Justice of India, effective
consultation in writing, and prevailing norms to regulate
the area of discretion are sufficient checks against
arbitrariness.
481. These guidelines in the form of norms are not to
be construed as conferring any justiciable right in the
transferred Judge. Apart from the constitutional
requirement of a transfer being made only on the
recommendation of the Chief Justice of India, the issue
of transfer is not justiciable on any other ground,
including the reasons for the transfer or their
sufficiency. The opinion of the Chief Justice of India
formed in the manner indicated is sufficient safeguard
and protection against any arbitrariness or bias, as well
as any erosion of the independence of the judiciary.
482. This is also in accord with the public interest of
excluding these appointments and transfers from
litigative debate, 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. The
growing tendency of needless intrusion by strangers
and busy-bodies in the functioning of the judiciary
under the garb of public interest litigation, in spite of the
caution in S.P. Gupta which expanding the concept of
locus standi, was adverted to recently by a Constitution
Bench in Krishna Swami v. Union of India (1992) 4
SCC 605. It is therefore, necessary to spell out clearly
the limited scope of judicial review in such matters, t
avoid similar situations in future. Except on the ground
of want of consultation with the named constitutional
functionaries or lack of any condition of eligibility in the
cases of an appointment, or of a transfer being made
without the recommendation of the Chief Justice of
India, these matters are not justiciable on any other
ground, including that of bias, which in any case is
excluded by the element of plurality in the process of
decision-making.”
Civil Appeal No. 10044 of 2010 & Ors. Page 102 of 108
86. That the independence of the judiciary forms part of our basic
structure is now well established. S. P. Gupta (supra) (the first
Judge’s case) had observed that this independence is one
amongst the many other principles that run through the entire
fabric of the Constitution and is a part of the rule of law under the
Constitution. The judiciary is entrusted with the task of keeping the
other two organs within the limits of law and to make the rule of
law meaningful and effective. Further, the independence of
judiciary is not limited to judicial appointments to the Supreme
Court and the High Courts, as it is a much wider concept which
takes within its sweep independence from many other pressures
and prejudices. It consists of many dimensions including
fearlessness from other power centres, social, economic and
political, freedom from prejudices acquired and nurtured by the
class to which the judges belong and the like. This wider concept
of independence of judiciary finds mention in C. Ravichandran
Iyer v. Justice A.M. Bhattacharjee and Others71
, High Court of
Judicature at Bombay v. Shashikant S. Patil72 and Jasbir
Singh v. State of Punjab73
.
71 (1995) 5 SCC 457
72 (1997) 6 SCC 339
73 (2006) 8 SCC 294
Civil Appeal No. 10044 of 2010 & Ors. Page 103 of 108
87. In Supreme Court Advocates’ on Record Association (2016)
(supra) on the aspect of the independence of the judiciary, it has
been observed:
“713. What are the attributes of an independent
judiciary? It is impossible to define them, except
illustratively. At this stage, it is worth recalling the
words of Sir Ninian Stephen, a former Judge of the
High Court of Australia who memorably said:
“[An] independent judiciary, although a formidable
protector of individual liberty, is at the same time a very
vulnerable institution, a fragile bastion indeed.”
It is this fragile bastion that needs protection to maintain
its independence and if this fragile bastion is subject to a
challenge, constitutional protection is necessary.
714. The independence of the judiciary takes within its
fold two broad concepts: (1) Independence of an
individual Judge, that is, decisional independence; and
(2) Independence of the judiciary as an institution or an
organ of the State, that is, functional independence. In a
lecture on Judicial Independence, Lord Phillips said:
“In order to be impartial a Judge must be
independent; personally independent, that is free
of personal pressures and institutionally
independent, that is free of pressure from the
State.”
xx xx xx
726. Generally speaking, therefore, the independence
of the judiciary is manifested in the ability of a Judge to
take a decision independent of any external (or
internal) pressure or fear of any external (or internal)
pressure and that is “decisional independence”. It is
also manifested in the ability of the institution to have
“functional independence”. A comprehensive and
composite definition of “independence of the judiciary”
is elusive but it is easy to perceive.”
Civil Appeal No. 10044 of 2010 & Ors. Page 104 of 108
It is clear from the aforesaid quoted passages that 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’74 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.
88. We have referred to the decisions and viewpoints to highlight the
contentious nature of the issue of transparency, accountability and
judicial independence with various arguments and counterarguments on both sides, each of which commands merit and
cannot be ignored. Therefore, 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 be
74 Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon
Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley,
Professor Dr. Andrzej Zoll. <http://www.interights.org/document/142/index.html>
Civil Appeal No. 10044 of 2010 & Ors. Page 105 of 108
taken 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.
Independence in a given case may well demand openness and
transparency by furnishing the information. Reference to the
principle of judicial independence is not to undermine and avoid
accountability which is an aspect we perceive and believe has to
be taken into account while examining the public interest in favour
of disclosure of information. Judicial independence and
accountability go hand in hand as accountability ensures, and is a
facet of judicial independence. Further, 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,
Civil Appeal No. 10044 of 2010 & Ors. Page 106 of 108
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, 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
Civil Appeal No. 10044 of 2010 & Ors. Page 107 of 108
exempt. Therefore, a universal affirmative or negative answer is
not possible. However, independence of judiciary is a matter of
public interest.
CONCLUSIONS
89. 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 to
Civil Appeal No. 10044 of 2010 & Ors. Page 108 of 108
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.
......................................CJI
(RANJAN GOGOI)
........................................J.
(N.V. RAMANA)
........................................J.
(DR. D.Y. CHANDRACHUD)
........................................J.
(DEEPAK GUPTA)
........................................J.
(SANJIV KHANNA)
NEW DELHI;
NOVEMBER 13, 2019.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER, … APPELLANT
SUPREME COURT OF INDIA
VERSUS
SUBHASH CHANDRA AGRAWAL … RESPONDENT
WITH
CIVIL APPEAL NO. 10045 OF 2010
AND
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
N.V. RAMANA, J.
“In the domain of human rights, right to privacy
and right to information have to be treated as coequals and none can take precedence over the
other, rather a balance needs to be struck”
1. I have had the opportunity to peruse the erudite judgments of my
learned brothers, who have reflected extensively on the
importance of this case, concerning the aspect of privacy and right
to information in detail. However, while concurring with the view
of the majority, I feel the need to provide independent reasons with
respect to certain aspects for coming to the aforesaid conclusion,
REPORTABLE
2
as this case has large ramification on the rights of an individual
in comparison to the rights of the society. The aspect of
transparency and accountability which are required to be
balanced with right to privacy, has not been expounded by this
Court anytime before, thereby mandating a separate opinion.
2. This case concerns the balance which is required between two
important fundamental rights i.e. right to information and right
to privacy. Often these two rights are seen as conflicting, however,
we need to reiterate that both rights are two faces of the same
coin. There is no requirement to see the two facets of the right in
a manner to further the conflict, what is herein required is to
provide balancing formula which can be easily made applicable to
individual cases. Moreover, due to the fact of infancy in privacy
jurisprudence has also contributed to the meticulous task we are
burdened herein.
3. In this view, this case is before us to adjudicate whether the
application dated 06.07.2009 (hereinafter referred to as “first
application”) seeking information by the respondent, separate
3
applications dated 23.01.2009 (hereinafter referred to as “second
application”) and 10.11.2007 (hereinafter referred to as “third
application”) are maintainable or not. The first application
concerns the information relating to complete correspondence
between the Chief Justice of India and Mr. Justice R. Reghupati.
The second application concerns the collegium file notings
relating to the appointment of Justice H. L. Dattu, Justice A. K.
Ganguly and Justice R. M. Lodha. The third application relates to
information concerning declaration of assets made by the puisne
judges of the Supreme Court to the Chief Justice of India and the
judges of the High Courts to the Chief Justices of the respective
High Courts.
4. The respondent/applicant submitted that the aforesaid three
applications before the Central Public Information Officer of the
Supreme Court of India (hereinafter “CPIO, Supreme Court of
India”) came to be dismissed vide orders dated 04.08.2009,
25.02.2009 and 30.11.2007 respectively.
5. Aggrieved by rejection of the first application the respondent
approached the first appellate authority in appeal which was also
4
dismissed vide order dated 05.09.2009. Being aggrieved, the
respondent further preferred a second appeal to the Central
Information Commission [for short “CIC”]. The CIC allowed this
appeal vide order dated 25.11.2009 and directed the disclosure of
information sought. Aggrieved by the same, the CPIO, Supreme
Court of India has preferred Civil Appeal No. 10045 of 2010.
6. Concerning the second application, the CPIO, Supreme Court of
India, by order dated 25.02.2009 had denied the information
sought therein. Being aggrieved, the respondent preferred the first
appeal which came to be dismissed vide order dated 25.03.2009
by the first appellate authority. The second appeal filed before the
CIC was allowed vide order dated 24.11.2009. Aggrieved the CPIO,
Supreme Court of India has preferred Civil Appeal No. 10044 of
2010.
7. The third application was dismissed by the CPIO, Supreme Court
of India vide order dated 30.11.2007 on the ground that the
information was not held by the Registry of the Supreme Court of
India. The first appeal was disposed of with an order directing the
CPIO, Supreme Court of India to consider the question of
5
applicability of Section 6(3) of the Right to Information Act, 2005
(hereinafter “the RTI Act”). The CPIO vide order 07.02.2009
required the respondent/applicant to approach the concerned
public authority of the High Courts. Aggrieved the
respondent/applicant directly approached the CIC in appeal
which was allowed by order dated 06.01.2009. Aggrieved by the
same the appellant filed Writ Petition (C) No. 288 of 2009 before
the Delhi High Court. The Ld. Single Judge by order dated
02.09.2009 directed the CPIO, Supreme Court of India to release
the information sought by the respondent. Being aggrieved, the
CPIO, Supreme Court of India filed Letter Patent Appeal No. 501
of 2009 which was subsequently referred to a full Bench of the
High Court. The full Bench by order dated 12.01.2010 dismissed
the letter patent appeal. Aggrieved, CPIO, Supreme Court of India
has filed Civil Appeal No. 2683 of 2010 before this Court.
8. In this context, all the three appeals were tagged by an order dated
26.11.2010, a reference was made for constituting a larger Bench
and accordingly it is before us.
6
9. Before we dwell into any other aspect a preliminary objections
were taken by the appellants that this Bench could not have dealt
with this matter considering the fact that this Court’s
functionality had a direct impact on the same. We do not
subscribe to the aforesaid opinion for the reason that this Court
while hearing this matter is sitting as a Court of necessity. In the
case of Election Commission of India v. Dr Subramaniam
Swamy, (1996) 4 SCC 104, it was held as under:
16. We must have a clear conception of the
doctrine. It is well settled that the law permits
certain things to be done as a matter of
necessity which it would otherwise not
countenance on the touchstone of judicial
propriety. Stated differently, the doctrine of
necessity makes it imperative for the authority
to decide and considerations of judicial
propriety must yield. It is often invoked in
cases of bias where there is no other authority
or Judge to decide the issue. If the doctrine of
necessity is not allowed full play in certain
unavoidable situations, it would impede the
course of justice itself and the defaulting party
would benefit there from. Take the case of a
certain taxing statute which taxes certain
perquisites allowed to Judges. If the validity of
such a provision is challenged who but the
members of the judiciary must decide it. If all
the Judges are disqualified on the plea that
striking down of such a legislation would
benefit them, a stalemate situation may
develop. In such cases the doctrine of necessity
comes into play. If the choice is between
7
allowing a biased person to act or to stifle the
action altogether, the choice must fall in favour
of the former as it is the only way to promote
decision-making. In the present case also if the
two Election Commissioners are able to reach
a unanimous decision, there is no need for the
Chief Election Commissioner to participate, if
not the doctrine of necessity may have to be
invoked.
10. In this light, appellants have to accept the decision of this Court
which is the final arbiter of any disputes in India and also the
highest court of constitutional matters. In this light, such
objections cannot be sustained.
11. Before we proceed any further we need to have a brief reference to
the scheme of RTI Act. The statement of objects and reasons
envisage a noble goal of creating a democracy which is consisting
of informed citizens and a transparent government. It also
provides for a balance between effective government, efficient
operations, expenditure of such transparent systems and
requirements of confidentiality for certain sensitive information.
It recognises that these principles are inevitable to create
friction inter se and there needs to be harmonisation of such
conflicting interests and there is further requirement to preserve
8
the supremacy of democratic ideal. The recognition of this
normative democratic ideal requires us to further expound upon
the optimum levels of accountability and transparency of efficient
operations of the government. Under Section 2(f), information is
defined as ‘any material in any form including records, documents,
memos, e-mails, opinions, advises, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any
private body which can be accessed by a public authority under
any other law for the time being in force.’
12. The purport of this section was to cover all types of information
contained in any format to be available under the ambit of the RTI
Act. The aforesaid definition is further broadened by the definition
of ‘record’ provided under Section 2(i) of the RTI Act. Right to
Information as defined under Section 2(j) of the RTI Act means the
right to information accessible under this Act which is held by or
under the control of any public authority.
13. Chapter II of the RTI Act begins with a statement under Section 3
by proclaiming that all citizens shall have right to information
9
subject to the provisions of the RTI Act. Section 4 creates an
obligation on public authorities to maintain a minimum standard
of data which would be freely available for the citizens. Further
this section also mandates proactive dissemination of data for
informing the citizens by utilizing various modes and means of
communications. Section 5 requires every public authority to
designate concerned CPIO or SPIO, as the case may be for
providing information to those who seeks the same.
14. Section 6 of the RTI Act provides for procedure required to be
followed by a person who desires to obtain information under the
RTI Act. Section 7 further provides the time frame within such
designated officers are to decide the applications filed by the
information seeker. For our purposes Section 8 deems relevant
and is accordingly extracted hereunder –
“8. Exemption from disclosure of
information.—
(1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen,
…
(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
10
position of a third party, unless the competent
authority is satisfied that larger public interest
warrants the disclosure of such information;
(e) information available to a person in his
fiduciary relationship, unless the competent
authority is satisfied that the larger public interest
warrants the disclosure of such information;
(j) information which relates to personal
information the disclosure of which has not
relationship to any public activity or interest, or
which would cause unwarranted invasion of the
privacy of the individual unless the Central Public
Information Officer or the State Public Information
Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information which cannot
be denied to the Parliament or a State Legislature
shall not be denied to any person.”
15. It may be relevant to note Section 10 of the RTI Act which deals
with severability of the exempted information. The mandate of the
section is that where a request for access to information contains
both exempted as well as non-exempted parts, if the nonexempted parts could be revealed, such parts which could be
reasonably severed and can be provided as information under the
Act.
16. Section 11 which is material for the discussion involved herein
states as under -
11
“11. Third party information.—
(1) Where a Central Public Information Officer or the
State Public Information Officer, as the case may
be, intends to disclose any information or record, or
part thereof on a request made under this Act,
which relates to or has been supplied by a third
party and has been treated as confidential by that
third party, the Central Public Information Officer or
State Public Information Officer, as the case may
be, shall, within five days from the receipt of the
request, give a written notice to such third party of
the request and of the fact that the Central Public
Information Officer or State Public Information
Officer, as the case may be, intends to disclose the
information or record, or part thereof, and invite the
third party to make a submission in writing or
orally, regarding whether the information should be
disclosed, and such submission of the third party
shall be kept in view while taking a decision about
disclosure of information:
Provided that except in the case of trade or
commercial secrets protected by law, disclosure
may be allowed if the public interest in disclosure
outweighs in importance any possible harm or
injury to the interests of such third party.
(2) Where a notice is served by the Central Public
Information Officer or State Public Information
Officer, as the case may be, under sub-section (1)
to a third party in respect of any information or
record or part thereof, the third party shall, within
ten days from the date of receipt of such notice, be
given the opportunity to make representation
against the proposed disclosure.
(3) Notwithstanding anything contained in section
7, the Central Public Information Officer or State
Public Information Officer, as the case may be,
shall, within forty days after receipt of the request
under section 6, if the third party has been given an
12
opportunity to make representation under
sub-section (2), make a decision as to whether or
not to disclose the information or record or part
thereof and give in writing the notice of his decision
to the third party.
(4) A notice given under sub-section (3) shall include
a statement that the third party to whom the notice
is given is entitled to prefer an appeal under section
19 against the decision.”
17. The mandate under Section 11 of the RTI Act enshrines the
principles of natural justice, wherein, the third party is provided
with an opportunity to be heard and the authority needs to
consider whether the disclosure in public interest outweighs the
possible harm in disclosure to the third party. It must be noted
that the use of term ‘confidential’ as occurring under Section 11,
subsumes commercial confidential information, other types of
confidential information and private information.
18. We may not concentrate on other procedural section provided
under the RTI Act as they do not have any bearing on the case
concerned.
19. Having observed the scheme of the RTI Act we need to understand
that right to information stems from Article 19(1)(a) of the
13
Constitution which guarantees freedom of expression.
Accordingly, this Court in State of Uttar Pradesh v. Raj Narain,
(1975) 4 SCC 428 and S.P. Gupta v. Union of India, (1981)
Supp. (1) SCC 87, held that a citizen cannot effectively exercise
his freedom of speech and expression unless he/she is informed
of the governmental activities. Our country being democratic, the
right to criticise the government can only be effectively
undertaken if accountability and transparency are maintained at
appropriate levels. In view of the same, right to information can
squarely said to be a corollary to the right to speech and
expression.
20. Firstly, the appellants have contended that the information are
not held with the Registry of the Supreme Court, rather the Chief
Justice of India is holding the aforesaid information concerning
the exchanges between Mr. Justice R. Reghupati and the then
Chief Justice of India. In this context, the term ‘held’ acquires
important position. The term ‘held’ usually connotes the power,
custody, or possession with the person. However, the mandate of
the Act requires this term to be interpreted wherein the
association between held and the authority needs to be taken into
14
consideration while providing a meaning for the aforesaid term.
At this juncture, we need to observe the case of University of New
Castle upon Tyne v. Information Commissioner and British
Union for Abolition of Vivisection, [2011] UKUT 185 AAC,
wherein the upper tribunal has held as under –
“‘Hold’ is an ordinary English word. In
our judgment it is not used in some
technical sense in the Act. We do not
consider that it is appropriate to define
its meaning by reference to concepts
such as legal possession or bailment, or
by using phrases taken from court rules
concerning the obligation to give
disclosure of documents in litigation.
Sophisticated legal analysis of its
meaning is not required or appropriate.
However, it is necessary to observe that
‘holding’ is not a purely physical
concept, and it has to be understood
with the purpose of the Act in mind.
Section 3(2)(b) illustrates this: an
authority cannot evade the
requirements of the Act by having its
information held on its behalf by some
other person who is not a public
authority. Conversely, we consider that
s.1 would not apply merely because
information is contained in a document
that happens to be physically on the
authority’s premises: there must be an
appropriate connection between the
information and the authority, so that it
can be properly said that the
information is held by the authority. For
example, an employee of the authority
15
may have his own personal information
on a document in his pocket while at
work, or in the drawer of his office desk;
that does not mean that the information
is held by the authority.”
21. From the aforesaid it can be concluded that a similar
interpretation can be provided for term ‘held’ as occurring under
Section 2(j) of the Act. Therefore, in view of the same the term
‘held’ does not include following information –
1. That is, without request or arrangement, sent to or
deposited with a public authority which does not hold itself
out as willing to receive it and which does not
subsequently use it;
2. That is accidentally left with a public authority;
3. That just passes through a public authority;
4. That ‘belongs’ to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authority’s premises.
1
Having clarified the aforesaid aspect we are of the opinion that the
nature of information in relation to the authority concerned
requires to be seen. The fact that the information sought in the
instant matter is in custody with the Chief Justice of India as he
is the administrative head of the Supreme Court, squarely require
1 Phillip Coppel, Information Rights Law and Practice (4th Edn. (2014)), Pg. 362.
16
us to hold that the concerned authority is holding the information
and accordingly the contention of the appellants does not have
any merit.
22. The appellants have argued that the information with respect to
the assets declared with the Chief Justice of India or Chief
Justices of respective High Courts are held in confidence,
fiduciary capacity; moreover, the aforesaid information is private
information of the judges which cannot be revealed under the RTI
Act.
23. The exemptions to right to information as noted above are
contained under Section 8 of the RTI Act. Before we analyse the
aforesaid provision, we need to observe basic principles,
concerning interpretation of exemption clauses. There is no doubt
it is now well settled that exemption clauses need to be construed
strictly. They need to be given appropriate meaning in terms of
the intention of the legislature [see Commissioner of Customs
(Import) v. Dilip Kumar & Ors., (2018) 9 SCC
40; Rechnungshof v. Österreichischer Rundfunk and Ors., C465/00].
17
24. At the cost of repetition we note that the exemption of right to
information for confidential information is covered under Section
8(1)(d), exemption from right to information under a fiduciary
relationship is covered under Section 8(1)(e) and the exemption
from private information is contained under Section 8(1)(j) of the
RTI Act.
25. The first contention raised by the appellants is that the aforesaid
information is confidential, therefore the same is covered under
the exemption as provided under Section 8(1)(d) of the RTI Act.
The aforesaid exemption originates from a long time of judge made
law concerning breach of confidence (which are recently termed
as misuse of private information).
26. Under the classic breach of confidence action, three requirements
were necessary for bringing an action under this head. These
conditions are clearly mentioned in the opinion of Megarry, J.,
in Coco vs. Clark, [1968] FSR 415; wherein, the conditions
are first, the information itself, i.e. ‘information is required to have
necessary quality about confidence of the same’; second, ‘the
information must have been imparted in circumstances importing
18
an obligation of confidence’; third, ‘there must be unauthorized
use of information which will be detriment to the party
communicating’.
27. Breach of confidence was not an absolute right and public
interest, incorporated from long time under the common law
jurisprudence. This defence of public interest can be traced to
initial case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113,
wherein it was held that there is no confidence as to disclosure in
iniquity. This iniquity was later expanded by Lord Denning
in Fraser v. Evans, [1969] 1 QB 349, wherein the iniquity was
referred as merely as an example of ‘justice cause or excuse’ for a
breach of confidence. This iniquity was widened further in Initial
Service v. Putterill, [1968] 1 QB 396, wherein it was held that
iniquity covers any misconduct of nature that it ought to be
disclosed to others in the public interest. In this line of precedents
Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All ER 24,
noted that iniquity would cover ‘any matter, carried out or
contemplated, in breach of country’s security or in breach of law
including statutory duty, fraud or otherwise destructive of the
19
country or its people and doubtless other misdeeds of similar
gravity.’
28. Eventually the language of iniquity was shaken and discourse on
public interest took over as a defence for breach of confidence [See
Lion Laboratories v. Evans, [1985] QB 526]. It would be
necessary to quote Lord Goff in Her Majesty’s Attorney General
v. The Observer Ltd. & Ors., [1991] AC 109, wherein he noted
that “it is now clear that the principle [of iniquity] extends to
matters of which disclosure is required in public interest”.
29. The aforesaid expansion from the rule of iniquity to public interest
defence has not caught the attention of Australian courts wherein,
Justice Gummow, in Corrs Pavey Whiting and Byrne v.
Collector of Customs, (1987) 14 FCR 434 and Smith Kline and
French Laboratories [Australia] Ltd. v. Department of
Community Services and Health, (1990) 22 FCR 73, reasoned
that public interest was “picturesque if somewhat imprecise” and
“not so much a rule of law as an invitation to judicial idiosyncrasy
by deciding each case on ad-hoc basis as to whether, on the facts
20
overall, it is better to respect or to override the obligation of
confidence”.
30. Even in England there has been a shift of reasoning from an
absolute public interest defence to balancing of public interest. At
this point we may observe the case of Woodward v.
Hutchins,[1977] 1 WLR 760, wherein it was observed “It is a
question of balancing the public interest in maintaining the
confidence against the public interest in knowing the truth”.
31. Section 8(1)(d) of the RTI Act has limited the action of defence of
confidentiality to only commercial information, intellectual
property rights and those which are concerned with maintaining
the competitive superiority. Therefore, aforesaid section is only
relatable to breach of confidence of commercial information as
classically developed. Although there are examples wherein
commercial confidentiality are also expanded to other types of
breach of confidential information, however, under Section 8(1)(d)
does not take into its fold such breach of confidential information
actions.
21
32. Coming to other types of confidentiality, we need to note that the
confidentiality cannot be only restricted to commercial
confidentiality, rather needs to extend to other types of
confidentialities as well. [Duchess of Argyll v. Duke of Argyll,
1967 Ch 302] Under the RTI Scheme such other confidential
information are taken care under Section 11 of the RTI Act. The
language and purport under Section 11 extends to all types of
confidentialities, inclusive of both commercial and other types of
confidentialities. The purport of this Section is that an
opportunity should be provided to third party, who treats the
information as confidential. The ‘test of balancing public interest’
needs to be applied in cases of confidential information other than
commercial information as well, under Section 11 of the RTI Act,
as discussed. In this light, the concerned third parties need to be
heard and thereafter the authorities are required to pass order as
indicated herein.
33. Further, the appellants have contended that the information
sought herein relating to the third party are covered under
exemptions as provided in Section 8(1)(j) of the RTI Act i.e. private
information.
22
34. The development from breach of confidence to misuse of private
information/privacy claim was gradual. There was shift from the
focus on relationship to whether the information itself had a
requisite confidential quality [refer to Her Majesty’s Attorney
General case (supra)]. This shift in focus resulted in the evolution
of misuse of private information or privacy claim, from its
predecessor of confidentiality. In the case of Campbell v. M.G.N.,
[2004] UKHL 22, wherein the breach of misuse of private
information evolved as cause of action. The modification which
happened in the new cause of action is that the initial confidential
relationship was not material, which was earlier required under
the breach of confidence action. The use of term confidential
information was replaced with more natural descriptive term
information in private. The change from breach of confidence
which was an action of equity, to misuse of private information,
which was a tort provided more structural definitiveness and
reduced the discretionary aspect.
35. The purport of the Section 8(1)(j) of the RTI Act is to balance
privacy with public interest. Under the provision a two steps test
23
could be identified wherein the first step was: (i) whether there is
a reasonable expectation of privacy, and (ii) whether on an
ultimate balancing analysis, does privacy give way to freedom of
expression? We should acknowledge that these two tests are very
difficult to be kept separate analytically.
FIRST STEP
36. The first step for the adjudicating authority is to ascertain
whether the information is private and whether the information
relating the concerned party has a reasonable expectation of
privacy. In Murray v. Express Newspaper plc, [2009] Ch 481, it
was held as under
“As we see it, the question whether there is a
reasonable expectation of privacy is a broad one,
which takes account of all the circumstances of the
case. They include the attributes of the claimant,
the nature of the activity in which the claimant was
engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence
of consent and whether it was known or could be
inferred, the effect on the claimant and the
circumstances in which and the purposes for which
the information came into the hands of the
publisher.”
24
37. From the aforesaid discussion we can note that there are certain
factors which needs to be considered before concluding whether
there was a reasonable expectation of privacy of the person
concerned. These non-exhaustive factors are;
1. The nature of information.
2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the information
was found.
6. Attributes of claimants such as being a public figure, a
minor etc and their reputation.
7. Absence of consent.
8. Circumstances and purposes for which the information
came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion’s nature and purpose.
These non-exhaustive factors are to be considered in order to
come to a conclusion whether the information sought is private or
does the persons has a reasonable expectations of privacy. In
certain cases we may conclude that there could be certain
information which are inherently private and are presumptively
25
protected under the privacy rights. These informations include
gender, age and sexual preferences etc. These instances need to
be kept in mind while assessing the first requirement under the
aforesaid test.
38. If the information is strictly covered under the aforesaid
formulation, then the person is exempted from the right to
information unless ‘the public interest test’ requires to trump the
same.
SECOND STEP
39. Having ascertained whether the information is private or not, a
judge is required to adopt a balancing test to note whether the
public interest justifies discloser of such information under
Section 8(1)(j) of the RTI Act. The term ‘larger public interest’
needs to be understood in light of the above discussion which
points that a ‘balancing test’ needs to be incorporated to see the
appropriateness of discloser. There are certain basic principles
which we need to keep in mind while balancing the rights which
are relevant herein.
26
40. That the right to information and right to privacy are at an equal
footing. There is no requirement to take an a priori view that one
right trumps other. Although there are American cases, which
have taken the view that the freedom of speech and expression
trumps all other rights in every case. However, in India we cannot
accord any such priority to the rights.
41. The contextual balancing involves ‘proportionality test’. [See K
S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is
to see whether the release of information would be necessary,
depends on the information seeker showing the ‘pressing social
need’ or ‘compelling requirement for upholding the democratic
values’. We can easily conclude that the exemption of public
interest as occurring under Section 8(1)(j) requires a balancing
test to be adopted. We need to distinguish two separate concepts
i.e. “interest of the public” and “something in the public interest.”
Therefore, the material distinction between the aforesaid concepts
concern those matters which affect political, moral and material
welfare of the public need to be distinguished from those for
public entertainment, curiosity or amusement. Under Section
8(1)(j) of the RTI Act requires us to hold that only the former is an
27
exception to the exemption. Although we must note that the
majority opinion in K S Puttaswamy (supra) has held that the
data privacy is part of the right to privacy, however, we need to
note that the concept of data protection is still developing
[refer Google Spain v. AEPD, C/131/12; Bavarian
Lager v Commission, [2007] ECR II-4523]. As we are not
concerned with the aforesaid aspects, we need not indulge any
more than to state that there is an urgent requirement for
integrating the principles of data protection into the right to
information jurisprudence.
42. Coming to the aspect of transparency, judicial independence and
the RTI Act, we need to note that there needs to be a balance
between the three equally important concepts. The whole bulwark
of preserving our Constitution, is trusted upon judiciary, when
other branches have not been able to do so. As a shield, the
judicial independence is the basis with which judiciary has
maintained its trust reposed by the citizens. In light of the same,
the judiciary needs to be protected from attempts to breach its
independence. Such interference requires calibration of
28
appropriate amount of transparency in consonance with judicial
independence.
43. It must be kept in the mind that the transparency cannot be
allowed to run to its absolute, considering the fact that efficiency
is equally important principle to be taken into fold. We may note
that right to information should not be allowed to be used as a
tool of surveillance to scuttle effective functioning of judiciary.
While applying the second step the concerned authority needs to
balance these considerations as well.
44. In line with the aforesaid discussion, we need to note that
following non-exhaustive considerations needs to be considered
while assessing the ‘public interest’ under Section 8 of the RTI
Acta. Nature and content of the information
b. Consequences of non-disclosure; dangers and benefits
to public
c. Type of confidential obligation.
d. Beliefs of the confidant; reasonable suspicion
e. Party to whom information is disclosed
29
f. Manner in which information acquired
g. Public and private interests
h.Freedom of expression and proportionality.
45. Having ascertained the test which is required to be applied while
considering the exemption under Section 8(1)(j) of the RTI Act, I
may note that there is no requirement to elaborate on the factual
nuances of the cases presented before us. Accordingly, I concur
with the conclusions reached by the majority.
..........................J.
(N.V. Ramana)
NEW DELHI;
November 13, 2019.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 10044 of 2010
Central Public Information Officer, …Appellant
Supreme Court of India
Versus
Subhash Chandra Agarwal …Respondent
WITH
Civil Appeal No. 10045 of 2010
AND WITH
Civil Appeal No. 2683 of 2010
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
INDEX
A Introduction
B Reference to the Constitution Bench
C Submissions of Counsel
D Relevant statutory provisions
E S P Gupta, candour and class immunity
F Judicial independence
F.1 Judicial accountability
G Fiduciary relationship
H The right to privacy and the right to know
I Conclusion
J Directions
PART A
3
A Introduction
The backdrop
1. This batch of three civil appeals1
raises questions of constitutional
importance bearing on the right to know, the right to privacy and the
transparency, accountability and independence of the judiciary.
2. In the first of the appeals2
(―the appointments case‖), the Central Public
Information Officer3
of the Supreme Court of India challenges an order dated 24
November 2009 of the Central Information Commission4
. The order directs the
CPIO to provide information sought by the respondent in application under the
Right to Information Act 20055
. The respondent, in an application dated 23
January 2009 sought copies of the correspondence exchanged between
constitutional authorities together with file notings, relating to the appointment of
Justice H L Dattu, Justice A K Ganguly and Justice R M Lodha (superseding the
seniority of Justice A P Shah, Justice A K Patnaik and Justice V K Gupta). The
appellant declined to provide the information sought in the application on the
ground that the Registry of the Supreme Court does not deal with matters
pertaining to the appointment of judges, and appointments of judges to the higher
judiciary are made by the President of India, according to procedure prescribed
by law. The first appellate authority rejected the appeal on the ground that the
information sought by the respondent was not covered within the ambit of
1 Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/2010
2 Civil Appeal no 10044 of 2010
3
―CPIO‖
4
―CIC‖
5
―RTI Act‖
PART A
4
Section 2 (f)6
and (j)7
of the RTI Act. The respondent preferred a second appeal
before the CIC. On 24 November 2009, the CIC directed the appellant to provide
the information sought by the respondent. The appellant has moved this Court
under Article 136 of the Constitution challenging the decision of the CIC ordering
disclosure.
3. In the second of the three appeals8
(―the assets case‖), the appellant
challenges a judgment dated 12 January, 2010 of a Full Bench of the Delhi High
Court upholding the orders of the Single Judge9
dated 2 September 2009 and the
CIC dated 6 January 200910 directing the disclosure of information. On 10
November 2007, the respondent filed an application seeking a copy of the
resolution dated 7 May 1997 of the judges of the Supreme Court requiring every
sitting judge, and all future judges upon assuming office, to make a declaration of
assets in the form of real estate or investments held in their names or the names
of their spouses or any person dependant on them to the Chief Justice of the
Court within a reasonable time. The respondent also requested ―information on
any such declaration of assets etc to respective Chief Justices in State‖. While
the appellant provided a copy of the resolution dated 7 May 1997, the CPIO
declined (by an order dated 30 November 2007) to provide information
concerning the declaration of assets by judges of the Supreme Court and the
6
Section 2(f) – ―Information‖ means any material in any form, including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any private body which can be accessed by a
public authority under any other law for the time being in force.
7
Section 2(j) – ―Right to Information‖ means the right to information accessible under this Act which is held by or
under the control of any public authority and includes the right to— (i) inspection of work, documents, records; (ii)
taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv)
obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or
through printouts where such information is stored in a computer or in any other device.
8 Civil Appeal no 2683 of 2010
9
The CPIO, Supreme Court of India v Subhash Chandra Agarwal & Anr, Writ Petition (C) 288/2009
10 Appeal no CIC/WB/A/2008/00426
PART A
5
High Court on the ground that the Registry of the Supreme Court did not hold it.
The information pertaining to the declaration of assets by High Court judges, the
appellant stated, were in the possession of the Chief Justices of the High Courts.
The first appellate authority remanded the matter back to the appellant for
transfer of the RTI application to the High Courts under Section 6(3)11. The
appellant declined to transfer the RTI application to the CPIOs of the High Courts
on the ground that when the respondent filed the RTI application, he was aware
that the information with respect to the declaration of assets by the judges of the
High Court was available with the High Courts which formed distinct public
authorities. On 6 January 2009, the CIC held in the second appeal that the
information concerning the judges of the Supreme Court was available with its
Registry and that the appellant represented the Supreme Court as a public
authority. Therefore, the appellant was held to be obliged to provide the
information under the RTI Act unless, the disclosure of information was
exempted by law. The CIC held that the information sought by the respondent
was not covered under the exemptions in clauses (e) or (j) of Section 8(1)12 and
directed the appellant to provide the information sought by the respondent. The
11 Section 6 (3) - Where an application is made to a public authority requesting for an
information,—
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the
functions of another public authority,
the public authority, to which such application is made, shall transfer the application
or such part of it as may be appropriate to that other public authority and inform the
applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but
in no case later than five days from the date of receipt of the application.
12 Section 8 - Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that
the larger public interest warrants the disclosure of such information;
(j) information which relates to personal information the disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is
satisfied that the larger public interest justifies the disclosure of such information.
PART A
6
appellant instituted a writ petition13 before the Delhi High Court. On 2 September
2009, a Single Judge of the High Court dismissed the petition holding, inter alia,
that the declaration of assets furnished by the judges of the Supreme Court to
the Chief Justice of India and its contents constituted ―information‖, subject to the
provisions of the RTI Act. The Single Judge held that: (i) judges of the Supreme
Court hold an independent office; (ii) there exist no hierarchies in judicial
functions; (iii) the Chief Justice of India does not hold such ―information‖ in a
fiduciary capacity; and (iv) the information sought by the respondent was not
exempt under Section 8 (1)(e). In a Letters Patent Appeal, the Full Bench of the
Delhi High Court upheld the decision of the Single Judge. The appellant has
challenged the decision of the Full Bench.
4. In the third civil appeal (―the undue influence case‖), the appellant has
challenged the order of the CIC dated 24 November 200914, by which the
appellant was directed to provide information sought by the respondent in his RTI
application. On 6 July, 2009, the respondent filed an RTI application on the basis
of a newspaper report seeking the complete correspondence exchanged with the
Chief Justice of India in regards to a Union Minister having allegedly approached
Justice R Raghupati of the Madras High Court, through a lawyer to influence a
judicial decision. The application sought a disclosure of the name of the Union
Minister and the lawyer, and of the steps taken against them for approaching the
judge of the Madras High Court for influencing the judicial decision. On 4 August
2009, the appellant rejected the request on the ground that no such information
was available with the Registry of the Supreme Court. The first appellate
13 Writ Petition (C) 288/2009
14 Appeal no CICWB/A/2009/000859
PART B
7
authority rejected the appeal. The second appeal before the CIC led to a
direction on 24 November 2009, to provide the information sought, except
information sought in questions 7 and 8 on recourse taken to the in-house
procedure. The appellant approached this Court challenging the decision of the
CIC.
B Reference to the Constitution Bench
5. On 26 November 2010, a two judge Bench of this Court directed the
Registry to place the present batch of appeals before the Chief Justice of India
for constituting a Bench of appropriate strength and framed the following
substantial questions of law:
―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(1)(j) of the Right to Information Act?‖
6. On 17 August 2016, a three judge Bench referred these civil appeals to a
Constitution Bench for adjudication.
PART C
8
C Submissions of Counsel
7. Mr K K Venugopal, Attorney General for India appearing on behalf of the
appellant made the following submissions:
(i) The present case is not covered by the decision of this Court in S P Gupta
v President of India15, which is based on distinguishable facts. The
decision in S P Gupta does not consider the relationship between the
restrictions on the right to know and the restrictions existing under Article
19 (2) of the Constitution. Once Article 19(1)(a) is attracted, the restrictions
under Article 19 (2) become applicable. The RTI Act came into force in
2005 and lists out the rights and restrictions on the right to information.
The provisions of the RTI Act must be construed in a manner which makes
it consistent with constitutional values including the independence of the
judiciary;
(ii) Information of which disclosure is sought under Section 2 (f) of the RTI
Act, includes only that information which is in a physical form and which is
already in existence and accessible to a public authority under law. The
judge can decide to disclose assets voluntarily and place relevant
information in the public domain. A third party cannot seek information on
the disclosure of assets of a judge which does not exist in the public
domain;
(iii) The decision of this court in S P Gupta is based on a factually distinct
situation where disclosure of correspondence regarding the non-
15 1981 Supp SCC 87
PART C
9
appointment of an additional judge was ordered on the ground that the
judge was a party to the proceeding before the Court. Further, the decision
established a restriction on the disclosure of information to third parties;
(iv) The correspondence and file notings with respect to recommendations for
appointments of judges to the higher judiciary falls under a ―class of
information‖ that is highly confidential. Disclosure will result in damage to
the institution and adversely affect the independence of the judiciary;
(v) The process of concurrence by the members of the Collegium requires
free and frank discussion on the character, integrity and competence of
prospective appointee judges in order to ensure that the most suitable
judges are appointed. It is in the public interest to uphold candour in
matters of appointment and transfer of judges and to avoid unnecessary
litigative debate by third parties. Disclosure of such information would
undermine the independence of the judiciary and adversely impact the
candour or uninhibited expression of views by the Collegium.
Independence of judiciary is not limited to independence from executive
influence. It is multi-dimensional and also independence from other
pressure and prejudices including fearlessness from power centres,
economic or political, and freedom from prejudices acquired and nourished
by the class to which judges belong (C Ravichandran Iyer v Justice A M
Bhattacharjee16);
16 (1995) 5 SCC 457
PART C
10
(vi) Information sought regarding the assets and liabilities of judges and
correspondence and file notings relating to character, conduct, integrity
and competence of a judge includes certain ―personal information‖ and is
hence, exempt under Section 8 (1)(j) of the RTI Act;
(vii) The correspondence and file notings that form the basis of the decision
under Article 124 (2) of the Constitution includes information received from
third parties in a fiduciary capacity. The information is held by the Chief
Justice of India as a result of disclosure by third parties who give the
information in confidence, complete good faith, integrity and fidelity.
Therefore, disclosure of such information is exempt under Section 8 (1)(e);
(viii) The disclosure of correspondence relating to conduct, character, integrity
and competence of a judge may cause irreparable loss to their reputation,
violate their right to privacy and adversely affect their functioning. There is
also no remedy available to a judge for the comments made in the
appointment process as the Chief Justice of India along with other judges
are protected from civil/criminal proceedings under Section 3(1) of the
Judges (Protection) Act 1985. While regulating the disclosure of
information, the Supreme Court is required to balance the right of an
individual to reputation and privacy under Article 21 and the right to
information of third-party parties under Article 19(1)(a). The doctrine of
proportionality has to be applied to resolve the conflict between the two
rights and the right to reputation and privacy of a judge should prevail over
the right to information of third parties; and
PART C
11
(ix) Legislation and rules with respect to disclosure of assets and liabilities of
public servants do not provide for placing such information in the public
domain or granting third party access to such information. The judiciary is
seeking self-regulation by providing a voluntary disclosure of assets and
liabilities and it is up to the Supreme Court to disclose such information.
No third party can seek information which is not in the public domain.
8. On the contrary, Mr Prashant Bhushan, learned Counsel appearing on
behalf of the respondent made the following submissions:
(i) The observations made by the seven judge Bench of this Court in S P
Gupta are binding on the present Bench. Even though certain aspects of
the judgment have been overruled in Supreme Court Advocates-onRecord Assn v Union of India17, the decision of this Court vis-à-vis the
disclosure of correspondence in respect of the appointment process
remains unaffected. If S P Gupta has to be overruled, this could be only
done by a Bench comprising of more than seven judges;
(ii) This Court has interpreted Article 19(1)(a) to include the right to
information under the ambit of free speech and expression even before the
RTI Act was enacted by the Parliament. Disclosure of the information
sought in the present batch of cases is an essential part of the freedom of
speech and expression guaranteed in Article 19(1)(a) and involves a
significant public interest;
(iii) Free flow of information to citizens is necessary, particularly in matters
which form part of public administration for ensuring good governance and
17 (1993) 4 SCC 441
PART C
12
transparency. The fundamental right of free speech and expression
includes every citizen‘s right to know about assets, criminal antecedents
and educational backgrounds of candidates contesting for public office. To
cover public acts with a veil of secrecy is not in the interest of the public
and may lead to oppression and abuse by, and distrust of, public
functionaries. The lack of transparency, accountability and objectivity in
the collegium system does not enhance the credibility of the institution.
Disclosure of the information sought, on the other hand, would promote
transparency and prevent undue influence over the judiciary;
(iv) The claim of class privilege or class immunity to the correspondence
between the Chief Justice of India and the Law Minister was rejected in S
P Gupta. After the enactment of the RTI Act, information otherwise held by
a public authority cannot be excluded from disclosure unless it falls under
the exemptions laid down in Section 8 or relates to an institution excluded
under Section 2418 of the RTI Act. When information regarding a judge is
18 Section 24 - Act not to apply to certain organisations
(1)Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second
Schedule, being organisations established by the Central Government or any information furnished by such
organisations to that Government: Provided that the information pertaining to the allegations of corruption and
human rights violations shall not be excluded under this sub-section: Provided further that in the case of
information sought for is in respect of allegations of violation of human rights, the information shall only be
provided after the approval of the Central Information Commission, and notwithstanding anything contained in
section 7, such information shall be provided within forty-five days from the date of the receipt of request.
(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein
any other intelligence or security organisation established by that Government or omitting therefrom any
organisation already specified therein and on the publication of such notification, such organisation shall be
deemed to be included in or, as the case may be, omitted from the Schedule.
(3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.
(4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations
established by the State Government, as that Government may, from time to time, by notification in the Official
Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights
violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations of violation of human rights,
the information shall only be provided after the approval of the State Information Commission and,
notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the
date of the receipt of request. (5) Every notification issued under sub-section (4) shall be laid before the State
Legislature.
PART C
13
provided to the Chief Justice of India, it constitutes information held by a
public authority and thus, would be amenable to the provisions of the RTI
Act;
(v) In S P Gupta, the argument that disclosure of correspondence between
constitutional functionaries in relation to the appointment process of judges
would preclude the free and frank expression of opinions was rejected.
During the drafting of the Right to Information Bill, the argument that
disclosure will deter consultees from expressing themselves freely and
fairly and that the dignity and reputation of people would be tarnished was
rejected. The argument of candour does not fall under any of the
exemptions under the RTI Act and therefore, this disclosure of information
cannot be excluded from the purview of the RTI Act;
(vi) The disclosure of assets of judges is warranted in the larger public
interest. It cannot be argued that information regarding the assets of
judges, who are public functionaries, is personal information having no
relationship with any public activity or interest. Hence, the information
sought is not exempt under Section 8 (1)(j);
(vii) There exists no fiduciary relationship between those who are vested with
the responsibility of determining whether an appointee is suitable for
elevation as a judge and the appointee herself. The duty of a public
servant is to act in the interest of the public and not in the interest of
another public servant. The entire process of consultation and making
information available to the members of the collegium regarding
credentials and the suitability of the appointee is a matter of public interest.
PART D
14
Further, when judges act in their official capacity in compliance with the
1997 resolution and disclose their assets, it cannot be said that the Chief
Justice of India acts in a fiduciary capacity for the judges. The Chief
Justice of India and other members of the collegium discharge official
duties vested in them by the law and the information sought is not exempt
under Section 8(1)(e). Even if some part of the information is personal,
that part can be severed after due examination on a case to case basis
under Section 10; and
(viii) The argument that the independence of the judiciary will be affected
prejudicially due to the disclosure of information is misconceived. The
independence of the judiciary means independence from the legislature
and the executive and not from the public. It is a constitutional and legal
right of the respondent to access information and identify the persons who
have attempted to compromise the functioning of the judiciary. Disclosure
of such information is essential for the citizenry to maintain their faith in the
independence of the judiciary.
9. The rival submissions fall for our consideration.
D Relevant statutory provisions
10. For the purpose of the present dispute it is necessary to analyse the
relevant provisions contained in the statutory framework of the RTI Act. Sections
2 and 3 read:
―2. Definitions. – In this Act, unless the context otherwise
requires, -
PART D
15
…
(e) ―competent authority‖ means –
(i) the Speaker in the case of the House of People or the
Legislative Assembly of a State or a Union territory having
such Assembly and the Chairman in the case of the
Council of States of a Legislative Council of States;
(ii) the Chief Justice of India in the case of the Supreme
Court;
(iii) the Chief Justices of the High Court in the case of a
High Court;
(iv) the President or the Governor, as the case may be, in
the case of other authorities established or constituted by
or under the Constitution;
(v) the administrator appointed under article 239 of the
Constitution;
(f) ―information‖ means any material in any form, including
records, documents, memos, e-mails, opinions, advices,
press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic
form and information relating to any private body which can
be accessed by a public authority under any law for the time
being in force.
…
(h) ―public authority‖ means any authority or body or
institution of self-government established or constituted,-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially
financed,
Directly or indirectly by finds provided by the appropriate
Government;
…
(j) ―right to information‖ means the right to information
accessible under the Act which is held by or under the control
of any public authority and includes the rights to –
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of
documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other
device;
…
3. Right to information. – Subject to the provisions of this Act,
all citizens shall have the right to information.
PART D
16
11. Both the terms ―public authority‖ and ―information‖ have been broadly
defined. Section 2(j) which defines the ―right to information‖ stipulates that the
information accessible under the RTI Act is held by or under the control of any
―public authority‖, which is defined in Section 2(h) of the RTI Act. Section 3 of the
Act confers on all citizens the substantive right to seek information covered within
the ambit of the Act, subject to its provisions. The remaining scheme of the RTI
Act operationalises the substantive right conferred by Section 3. Section 4
imposes a statutory duty on public authorities to create and maintain a record of
the activities stipulated therein to ensure that these records are available to
applicants. Section 6 empowers an individual to file a request with the relevant
Central Public Information Officer (―CPIO‖) or State Public Information Officer
(―SPIO‖) or their corresponding Assistant Officers (collectively hereafter
―Information Officer‖). Section 7 empowers the Information Officer to either
provide the information sought or reject the application for reasons set out in
Section 8 and 9.
12. For an authority to be covered under the RTI Act, it must be a ―public
authority‖ as defined under Section 2(h) of the Act. ―Public authority‖ is defined
as any authority or body or institution or self-government which falls within the
ambit of any of the enumerated provisions in that sub-section. The Supreme
Court of India is established by virtue of Article 124(1) of the Constitution of India.
Similarly, Article 214 of the Constitution stipulates that there shall be a High
Court for each state. In terms of Section 2(h)(a), a body or an institution which is
established or constituted by or under the Constitution would be a public
authority. But virtue of being established by the Constitution, the Supreme Court
PART D
17
and the High Courts would fall within the ambit of ―public authority‖ in Section
2(h) of the Act.
13. Section 2(e)(ii) expressly stipulates that the competent authority means
the Chief Justice of India in the case of the Supreme Court and Section 2(e)(iii)
stipulates that the competent authority in the case of a high Court is the Chief
Justice of that Court. Significantly, Article 124 of the Constitution of India
stipulates that there shall be a Supreme Court of India consisting of a Chief
Justice of India and other judges. The office of the Chief Justice of India is not
distinct from the Supreme Court of India. The Supreme Court is constituted by
virtue of the Constitution and consists of judges, of which the Chief Justice is the
head. This however, does not mean that the Supreme Court and the Chief
Justice are two separate ‗public authorities‘ within the RTI Act.
14. The term information under Section 2(f) has been defined broadly to
include ―any material in any form‖. The word ‗including‘ denotes the intention of
the Parliament to provide a non-exhaustive list of materials that fall within the
ambit of the sub-clause. The sub-clause includes information relating to any
private body ―which can be accessed by a public authority under any law for the
time being in force‖. The import of this phrase is that information relating to a
third party is included only where the requisite pre-conditions of any law in force
to access such information is satisfied. The right sought to be exercised and
information asked for should fall within the scope of ‗information‘ and ‗right to
information‘ as defined under the Act. The information sought must be in
existence and must be held or under the control of the public authority.
PART D
18
15. Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything
contained in this Act‖. The import of this phrase is that clause (1) of Section 8
carves out an exception to the general obligation to disclose under the RTI Act.
Where the conditions set out in any of the sub-clauses to clause (1) of Section 8
are satisfied, the Information Officer is under no obligation to provide information
to the applicant. The scope of the exception and its applicability to the present
dispute shall be discussed in the course of the judgment.
16. Section 2219 contains a non-obstance clause and stipulates that the RTI
Act has an overriding effect over laws. The import of this provision is to impart
priority to the salient objectives of the Act and ensure that where information is
held by or is under the control of a public authority, such information must be
furnished to the applicant notwithstanding any prohibition in any other law in
force at that time. It is pertinent to state that Section 22 does not obviate legal
restrictions that apply to a public authority to the access to any information which
is clarified by the use of the phrase ―which can be accessed by a public authority
under any law for the time being in force‖ in Section 2(f).
19 22. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time
being in force or in any instrument having effect by virtue of any law other than this Act.
PART E
19
E S P Gupta, candour and class immunity
17. Relevant to the present controversy, is the question whether the decision
of this Court in S P Gupta v Union of India20 is a binding precedent on the
issues raised. Mr Prashant Bhushan, learned counsel appearing on behalf of the
respondent contended that the points for determination that arise in the present
case have been answered by the seven judge Bench in S P Gupta where this
Court ordered the disclosure of the correspondence between the Chief Justice of
India, the Chief Justice of Delhi and the Law Minister which concerned the nonappointment of an additional judge for a full term of two years. Counsel
contended that this Court held that the public interest in disclosure outweighed
the potential harm resulting from disclosure and that a free and open democratic
society mandated the disclosure of correspondences concerning the appointment
process of judges.
18. Opposing the submission, Mr K K Venugopal, learned Attorney General for
India appearing on behalf of the appellant, urged that the decision of this Court in
S P Gupta was based on a factually distinguishable situation. The Court in that
case was concerned with the disclosure of the correspondence concerning the
appointment process for the purpose of adjudicating the case before it. Moreover
the judge whose appointment was in issue was a party to the case. The court did
not address the potential harm to public interest by the disclosure of
correspondence in all circumstances. The Attorney General contended that the
20 (1982) 2 SCR 365
PART E
20
decision assessed the right to know in a passing observation and contrary to the
submission of the respondent, it established a restriction on the disclosure of
personal information.
19. In S P Gupta, this Court was concerned with two issues: (i) the initial
appointment of additional judges and their reappointment on the expiry of their
terms; and (ii) the transfer of High Court judges and the Chief Justices of the High
Courts. Among the issues involved in the proceedings, one concerned the
disclosure of the correspondence exchanged between the Chief Justice of India,
the Chief Justice of Delhi and the Law Minister concerning the decision to grant
an extension in the tenure to Justice O N Vohra and Justice S N Kumar as
additional judges of the Delhi High Court by a period of three months. It was
contended that Justice O N Vohra should have been appointed as a permanent
judge and that Justice S N Kumar should have been reappointed as an additional
judge for the complete tenure of two years upon the expiry of their initial tenure.
During the course of the proceedings, their terms expired and a decision was
communicated by the Central Government to not renew their terms. An
application was filed to contend that the withholding of the re-appointment was
mala fide and unconstitutional. Both former judges were impleaded as
respondents. While Justice O N Vohra did not appear in the proceedings, Justice
S N Kumar appeared through counsel and contended that the decision of the
Central Government to not reappoint him for a complete term of two years was
vitiated since it was reached without full and effective consultation with the Chief
Justice of India.
PART E
21
20. The government resisted the disclosure of the correspondence and urged
that as it formed a part of the advice tendered by the Council of Ministers to the
President of India, the court was precluded from ordering disclosure by virtue of
Article 74(2)21 of the Constitution. It was also contended that the correspondence
related to the ‗affairs of the state‘ and its disclosure was precluded by virtue of
Section 12322 of the Indian Evidence Act 1872.
21. An interim order dated 16 October 1981 ordered the disclosure of the
correspondence to the Court. In its final judgment dated 30 December 1981, the
Court, by a majority, rejected the contention of the Central Government and
upheld the disclosure of the correspondence exchanged between the Chief
Justice of India, the Chief Justice of Delhi and the Law Minister concerning the
decision to not continue Justice S N Kumar as an additional Judge of the Delhi
High Court for another full term.
22. Mr K K Venugopal, learned Attorney General for the Union of India sought
to distinguish the decision in S P Gupta by contending that the order of
disclosure was made in the specific context of Sections 123 and 16223 of the
Indian Evidence Act and in respect of judicial proceedings to which Justice S N
Kumar was a party. Hence he urged that the decision does not establish the duty
to disclose the correspondence in all circumstances. Justice S N Kumar had
21 ―The question whether any, and if so what, advice was tendered by Ministers to the President shall not be
inquired into in any court.‖
22 ―123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the officer at the head of
the department concerned, who shall give or withhold such permission as he thinks fit.‖
23 ―162. Production of documents.—A witness summoned to produce a document shall, if it is in his possession
or power, bring it to court, notwithstanding any objection which there may be to its production or to its
admissibility. The validity of any such objection shall be decided on by the court.
The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to
enable it to determine on its admissibility….‖
PART E
22
actively participated in the proceedings before the Court and information
regarding his non-appointment was sought during the course of the proceedings
to adjudicate upon the contention that there was no effective consultation
between the Central Government and the Chief Justice of India. The balancing of
interests in that case was between the public harm resulting from disclosure and
the public interest in the administration of justice (by securing complete justice for
the litigant before the court) which, it is urged, is materially different from the
present case.
23. In S P Gupta, this Court, by an interim order directed the disclosure of the
file notings only in respect of the non-renewal of the term of Justice S N Kumar.
Justice O N Vohra had chosen to not appear in or participate in the proceedings
before the court. As no relief was sought by the latter before the Court, the Court
held that the correspondence pertaining to him was not relevant to the
controversy. Consequently, the Union of India was not required to disclose it.
Justice PN Bhagwati (as he then was) noted the comparably distinct role of
Justice S N Kumar in the proceedings in the following terms:
―58. That takes us to the case of S.N. Kumar which stands on
a totally different footing, because S.N. Kumar has appeared
in the writ petition, filed an affidavit supporting the writ petition
and contested, bitterly and vehemently, the decision of the
Central Government not to continue him as an Additional
Judge for a further term. Since S.N. Kumar has claimed relief
from the Court in regard to his continuance as an Additional
Judge, an issue is squarely joined between the petitioners
and S.N. Kumar on the one hand and the Union of India on
the other which requires to be determined for the purpose of
deciding whether relief as claimed in the writ petition can be
granted to S.N. Kumar.‖
PART E
23
24. In its final judgment, the Court first rejected the contention that the
correspondence formed part of the advice tendered to the President by the
Council of Ministers. The Court noted that while the advice tendered by the
Council of Ministers to the President is information protected under Article 74(2),
the principal question was whether the correspondence between the Chief
Justice of India, Chief Justice of the Delhi High Court and the Law Minister
formed part of the advice tendered by the Council of Ministers to the President so
as to preclude its disclosure by virtue of Article 74(2). The Court rejected this
contention and held that any advice tendered by the Council of Ministers would
be based on the views expressed by the two Chief Justices and their views would
not form part of the advice tendered. In this view, the material on the basis of
which the Council of Ministers formed a view and subsequently tendered the
same to the President would not constitute advice protected under Article 74(2).
Justice Bhagwati held:
―61…The advice is given by the Council of
Ministers after consultation with the Chief Justice of the High
Court and the Chief Justice of India. The two Chief Justices
are consulted on ―full and identical facts‖ and their views are
obtained and it is after considering those views that the
Council of Ministers arrives at its decision and tenders its
advice to the President. The views expressed by the two
Chief Justices precede the formation of the advice and merely
because they are referred to in the advice which is ultimately
tendered by the Council of Ministers, they do not necessarily
become part of the advice. What is protected against
disclosure under clause (2) or Article 74 is only the advice
tendered by the Council of Ministers…But the material on
which the reasoning of the Council of Ministers is based and
the advice is given cannot be said to form part of the advice.‖
25. The Court then proceeded to the claim against disclosure under Section
123 of the Indian Evidence Act. It held that where protection from disclosure is
PART E
24
sought under Section 123 on the ground that the correspondence relates to the
affairs of the state, the court, by virtue of Section 162, is called upon to carry out
a balancing task between ―the detriment to the public interest on the
administrative or executive side which would result from the disclosure of the
document against the detriment to the public interest on the judicial side which
would result from non-disclosure of the document though relevant to the
proceeding‖. It held that the court balances the competing aspects of public
interest and decides which should prevail in the particular case before it. A claim
for non-disclosure, in this view, would be sustainable where the disclosure of the
document would be injurious to the public interest to a greater degree than the
harm caused to the administration of justice by non-disclosure. Analysing the
claim in the context of Section 123, Justice Bhagwati noted:
―73. We have already pointed out that whenever an objection
to the disclosure of a document under Section 123 is raised,
two questions fall for the determination of the court, namely,
whether the document relates to affairs of State and whether
its disclosure would, in the particular case before the court, be
injurious to public interest. The court in reaching its
decision on these two questions has to balance two
competing aspects of public interest, because the
document being one relating to affairs of State, its
disclosure would cause some injury to the interest of the
State or the proper functioning of the public service and
on the other hand if it is not disclosed, the nondisclosure
would thwart the administration of justice by keeping
back from the court a material document…The court has
to decide which aspect of the public interest predominates or
in other words, whether the public interest which requires that
the document should not be produced, outweighs the public
interest that a court of justice in performing its function should
not be denied access to relevant evidence.‖
(Emphasis supplied)
PART E
25
26. The Court held that the nature of the proceeding in which the disclosure is
sought, the relevance of the document and the degree of importance that the
document holds in the litigation are relevant factors in the balancing process. If
the correspondence alone would furnish evidence relevant to adjudicating the
dispute before the court, it would be inappropriate to ‗exclude these documents
which constitute the only evidence, if at all, for establishing this charge, by saying
that the disclosure of these documents would impair the efficient functioning of
the judicial institution.‘ The Court held thus:
―82. …Apart from these documents, there would be no
other documentary evidence available to the petitioner to
establish that there was no full and effective consultation
or that the decision of the Central Government was
based on irrelevant considerations … It is only through
these documents that the petitioner can, if at all, hope to
show that there was no full and effective consultation by the
Central Government with the Chief Justice of the High Court,
the State Government and the Chief Justice of India or that
the decision of the Central Government was mala fide or
based on irrelevant grounds and therefore, to accord
immunity against disclosure to these documents would be
tantamount to summarily throwing out the challenge against
the discontinuance of the Additional Judge…The harm that
would be caused to the public interest in justice by the
non-disclosure of these documents would in the
circumstances far outweigh the injury which may
possibly be caused by their disclosure, because the nondisclosure would almost inevitably result in the dismissal
of the writ petition and consequent denial of justice even
though the claim of the petitioner may be true and just.‖
(Emphasis supplied)
The Court held that the potential injury caused by disclosure is outweighed by the
public interest in justice as the non-disclosure of documents relevant to decide
the controversy would inevitably lead to the dismissal of the writ petition. On a
balancing of the above two competing public interests, the Court upheld the
PART E
26
interim order requiring the disclosure of the correspondence concerning the
reappointment in respect of Justice S N Kumar.
27. The Court in S P Gupta was required to adjudicate claims resisting
disclosure of documents in a judicial proceeding based on Sections 123 and 162
of the Indian Evidence Act. The balancing exercise was between the public harm
resulting from a disclosure of documents relating to the affairs of the state and
the public interest in the administration of justice. The public interest in the
administration of justice pertained to the disposal of the case instituted before the
court in which the judge was a party. The decision in S P Gupta did not lay down
a general proposition that the correspondence between constitutional
functionaries in regard to the appointment process must be disclosed to a
member of the public in all circumstances. The view that the disclosure was
ordered in the specific context of a judicial proceeding was also affirmed in the
separate opinion of Justice E S Venkataramiah (as he then was):
―1194. It may be necessary to deal with the question of official
secrecy in greater detail in a case where the constitutionality
of the claim for official secrecy, independently of the power
of the Court to order discovery of official documents in
judicial proceedings, arises for consideration. We are
concerned in this case with the power of the Court to
direct the disclosure of official documents in judicial
proceedings.
1203… we felt that a decision not to direct disclosure of the
documents would result in graver public prejudice than the
decision to direct such disclosure and that the public interest
involved in the administration of justice should prevail over
the public interest of the public service in the peculiar
circumstances of the case.‖
(Emphasis supplied)
PART E
27
28. Though, the decision in S P Gupta is not a precedent in support of a
proposition for general disclosure in all circumstances, it is, however, relevant to
the present dispute for it rejected the contention that: (i) disclosure and candour
are incompatible; and (ii) such correspondence is entitled to class immunity.
Candour
29. The Court addressed the contention that the reason for protecting a certain
class of documents is that they concern decision making at the highest level of
government and only complete freedom from public gaze will enable freedom of
expression and candour amongst government functionaries. In this view, public
scrutiny was contended to adversely affect the ability of the participants in the
decision-making process to express their opinion in a free and frank manner. The
Court, however, rejected the contention that candour and frankness justify the
grant of complete immunity against disclosures. Justice PN Bhagwati (as he then
was) addressed the argument founded on candour in the following terms:
―71…The candour argument has also not prevailed with
judges.
The candour argument has also not prevailed with Judges
and jurists in the United States and it is interesting to note
what Raoul Berger while speaking about the immunity
claimed by President Nixon against the demand for disclosure
of the Watergate Tapes, says in his book Executive
Privilege”: A Constitutional Myth at page 264:
―Candid interchange‖ is yet another pretext for
doubtful secrecy. It will not explain Mr. Nixon's
claim of blanket immunity for members of his
White House staff on the basis of mere
membership without more; it will not justify
Kleindienst's assertion of immunity from
congressional inquiry for two and one-half
million federal employees. It is merely
another testimonial to the greedy
expansiveness of power, the costs of
PART E
28
which patently outweigh its benefits. As
the latest branch in a line of illegitimate
succession, it illustrates the excess bred
by the claim of executive privilege.
We agree with these learned Judges that the need for
candour and frankness cannot justify granting of
complete immunity against disclosure of documents of
this class, but as pointed out by Gibbs, ACJ in Sankey v.
Whitlam, it would not be altogether unreal to suppose
―that in some matters at least communications between
ministers and servants of the Crown may be more frank
and candid if those concerned believe that they are
protected from disclosure‖ because not all Crown
servants can be expected to be made of ―sterner stuff‖.
The need for candour and frankness must therefore
certainly be regarded as a factor to be taken into account
in determining whether, on balance, the public interest
lies in favour of disclosure or against it (vide: the
observations of Lord Denning in Neilson v, Lougharre (1981)
1 All ER at P. 835.
…
81. It is undoubtedly true that appointment or nonappointment of a High Court Judge or a Supreme Court
Judge and transfer of a High Court Judge are extremely
important matters affecting the quality and efficiency of the
judicial institution and it is therefore absolutely essential that
the various constitutional functionaries concerned with these
matters should be able to freely and frankly express their
views in regard to these matters…We have no doubt that
high level constitutional functionaries like the Chief
Justice of a High Court and the Chief Justice of India
would not be deterred from performing their
constitutional duty of expressing their views boldly and
fearlessly even if they were told that the correspondence
containing their views might subsequently be
disclosed…We have already dealt with the argument
based on the need for candour and frankness and we
must reject it in its application to the case of holders of
high constitutional offices like the Chief Justice of a High
Court and the Chief Justice of India. Be it noted — and of
this we have no doubt — that our Chief Justices and
Judges are made of sterner stuff; they have inherited a
long and ancient tradition of independence and
impartiality…‖
(Emphasis supplied)
PART E
29
The Court held that though candour may be a factor in determining what set of
communications require protection, the measure of protection depends whether,
on a balance of all competing interests, public interest favours disclosure or
secrecy. While the Court noted that candour may be a relevant factor to prevent
disclosure in some circumstances, it expressly rejects its weight as a relevant
factor when it comes to constitutional functionaries such as the Chief Justice of
India and the Chief Justices of the High Courts. Constitutional functionaries are
bound to the oath of their office to discharge their duties in a fair manner in
accordance with the principles enshrined in the Constitution. It cannot be
countenanced that public gaze or subsequent disclosure will detract an individual
from discharging their duty in an effective manner true to the dignity and ethic
associated with their office. Candour and frankness cannot be the reason to
preclude disclosures of correspondence between constitutional functionaries
which concern the appointment process of judges.
Class immunity
30. The second argument rejected in S P Gupta and relevant to the present
case is the contention that the correspondence between ―the Law Minister or
other high level functionary of the Central Government, the Chief Justice of the
High Court, the Chief Minister or the Law Minister of the State Government and
the Chief Justice of India in regard to appointment or non-appointment of a High
Court Judge or a Supreme Court Judge or transfer of a High Court Judge and the
notings made by these constitutional functionaries in that behalf‖, belong to a
protected class of documents. It was contended that the disclosure of these
PART E
30
documents would be prejudicial to national interest and the dignity of the
judiciary. In this view, the court is not required to assess the effects of the
disclosure of correspondence in a particular case, as all correspondence of such
nature belongs to a special class which is exempt from disclosure. In this view,
disclosure is not precluded because of the specific contents of the documents,
but because of its membership of a certain class of documents that require nondisclosure.
31. Justice Bhagwati, with whom five other judges agreed, held that a claim for
class immunity is an ‗extraordinary claim‘ which is granted as a ‗highly
exceptional measure‘ as such broad claims are contradictory to and destructive
of the concept of an open government. He cautioned against blanket immunity
and lay emphasis on the commitment to an open and transparent government in
the following terms:
―80…It is only under the severest compulsion of the
requirement of public interest that the court may extend
the immunity to any other class or classes of documents
and in the context of our commitment to an open
Government with the concomitant right of the citizen to
know what is happening in the Government, the court
should be reluctant to expand the classes of documents
to which immunity may be granted. The court must on the
contrary move in the direction of attenuating the protected
class or classes of documents, because by and large secrecy
is the badge of an authoritarian Government…‖
(Emphasis supplied)
The Court adopted a high standard for the conferral of class immunity which
would be accorded ―only under the severest compulsion of the requirement of
public interest‖. With these observations, the Court rejected the contention that
PART E
31
correspondence between constitutional functionaries constitutes a class of
documents exempt from public disclosure:
―81. …it will be clear that the class of documents consisting of
the correspondence exchanged between the Law Minister or
other high level functionary of the Central Government, the
Chief Justice of the High Court, the State Government and
the Chief Justice of India in regard to appointment or nonappointment of a High Court Judge or Supreme Court Judge
or the transfer of a High Court Judge and the notes made by
these constitutional functionaries in that behalf cannot be
regarded as a protected class entitled to immunity against
disclosure…Confidentiality is not a head of privilege and the
need for confidentiality of high level communications without
more cannot sustain a claim for immunity against
disclosure…‖
Thus, the disclosure of correspondence between constitutional functionaries was
held not to fall within a protected category exempt from disclosure. Disclosure is
precluded only where it is injurious to public interest. Justice Bhagwati clarified
that the principal consideration before the Court when assessing a claim for the
non-disclosure of any document is that of public interest:
―80…Every claim for immunity in respect of a document,
whatever be the ground on which the immunity is
claimed and whatever be the nature of the document,
must stand scrutiny of the court with reference to one and
only one test, namely, what does public interest require —
disclosure or non-disclosure…this exercise has to be
performed in the context of the democratic ideal of an
open Government.‖
(Emphasis supplied)
32. A claim of immunity from disclosure for any document is subject to the
controlling factor of public interest – a determination informed by the commitment
to an open and transparent government:
―67…The concept of an open Government is the direct
emanation from the right to know which seems to be
implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of
PART E
32
information in regard to the functioning of Government must
be the rule and secrecy an exception justified only where
the strictest requirement of public interest so demands.
The approach of the court must be to attenuate the area of
secrecy as much as possible consistently with the
requirement of public interest, bearing in mind all the time that
disclosure also serves an important aspect of public interest.‖
(Emphasis supplied)
Justice Bhagwati expanded on the socio-political background that must inform
any approach in a ―democratic society wedded to the basic values enshrined in
the Constitution‖. He drew an interconnection between democracy, transparency
and accountability to hold that a basic postulate of accountability, which is
fundamental to a democratic government, is that information about the
government is accessible to the people. He held that participatory democracy is
premised on the availability of information about the functioning of the
government. The right to know as a ―pillar of a democratic state‖ imputes positive
content to democracy and ensures that democracy does not remain static but
becomes a ―continuous process‖. Thus, a limitation on transparency must be
supported by more than a claim to confidentiality – it must demonstrate the public
harm arising from disclosure is greater than the public interest in transparency.
Justice Bhagwati emphasized transparency in the judicial apparatus in the
following terms:
―85…We believe in an open Government and openness in
Government does not mean openness merely in the
functioning of the executive arm of the State. The same
openness must characterise the functioning of the
judicial apparatus including judicial appointments and
transfers. Today the process of judicial appointments and
transfers is shrouded in mystery. The public does not know
how Judges are selected and appointed or transferred and
whether any and if so what, principles and norms govern this
process. The exercise of the power of appointment and
transfer remains a sacred ritual whose mystery is confined
PART E
33
only to a handful of high priests, namely, the Chief Justice of
the High Court, the Chief Minister of the State, the Law
Minister of the Central Government and the Chief Justice of
India in case of appointment or non-appointment of a High
Court Judge and the Law Minister of the Central Government
and the Chief Justice of India in case of appointment of a
Supreme Court Judge or transfer of a High Court Judge. The
mystique of this process is kept secret and confidential
between just a few individuals, not more than two or four as
the case may be, and the possibility cannot therefore be ruled
out that howsoever highly placed may be these individuals,
the process may on occasions result in making of wrong
appointments and transfers and may also at times, though
fortunately very rare, lend itself to nepotism, political as well
as personal and even trade-off. We do not see any reason
why this process of appointment and transfer of Judges
should be regarded as so sacrosanct that no one should
be able to pry into it and it should not be protected
against disclosure at all events and in all circumstances.‖
(Emphasis supplied)
The Court extended its observations on the indispensable nature of openness
and transparency to the judiciary and held that there is no basis to conclude that
information concerning appointments must be protected against disclosure ―at all
events and in all circumstances.‖ The circumstances which justify disclosure on
one hand and non-disclosure on the other calls into consideration a variety of
factors which shall be adverted to in the course of the judgment. At this juncture,
it is sufficient to note the observations of this Court that transparency in the
functioning of the government serves a cleansing purpose:
―66….Now, if secrecy were to be observed in the functioning
of Government and the processes of Government were to be
kept hidden from public scrutiny, it would tend to promote and
encourage oppression, corruption and misuse or abuse of
authority, for it would all be shrouded in the veil of secrecy
without any public accountability. But if there is an open
Government with means of information available to the public,
there would be greater exposure of the functioning of
Government and it would help to assure the people a better
and more efficient administration. There can be little doubt
that exposure to public gaze and scrutiny is one of the surest
PART F
34
means of achieving a clean and healthy administration. It has
been truly said that an open Government is clean
Government and a powerful safeguard against political and
administrative aberration and inefficiency.‖
33. The approach adopted by Justice Bhagwati in S P Gupta, with which we
are in agreement provides a bright line standard for the Court on the approach
that must be adopted when answering questions of disclosure in regards to the
appointment process. The principal consideration will always be that of public
interest. Any balancing must be carried out in the context of our commitment to
the transparency and accountability of our institutions. The specific content of
public interest and its role in the balancing process will be explored in the course
of the judgment.
It was contended by the respondents that the decision of this Court in S P Gupta
did not deal with the trade-off between disclosure and judicial independence. It is
necessary to turn to this issue.
F Judicial independence
34. Mr K K Venugopal, learned Attorney General for India appearing on behalf
of the appellant, contended that the disclosure of file notings between
constitutional functionaries which concern the appointment process will erode the
independence of the judiciary, which is part of the basic structure of the
Constitution. It was further contended that disclosures will result in damage to the
institution and adversely impact the independence of the judiciary. It is necessary
to briefly analyse the contours of this concept in assessing the contention urged.
PART F
35
35. At the outset, it must be noted that while the term ‗independence of the
judiciary‘ is not new, its meaning is still imprecise.24 There may be a debate over
various facets of judicial independence: for instance, from whom and to do what
is independence engrafted. Broadly speaking, judicial independence entails the
ability of judges to adjudicate and decide cases without the fear of retribution.
Judicial independence and the ability of judges to apply the law freely is crucial to
the rule of law.
In his seminal work ―Cornerstone of a Nation‖, Granville Austin states:
―The [Constituent] Assembly went to great lengths to ensure
that the courts would be independent, devoting more hours of
debate to this subject than to almost any other aspect.‖25
However, it was the independence of the judiciary, and not its absolute insulation
that appeared to be the prevailing view of members of the Constituent
Assembly.26 This, they believed was necessary for the preservation of interinstitutional equilibrium. The starting point of the independence of the judiciary is
constitutional design through the provisions of the Constitution.
36. Article 124(2) guarantees a security of tenure for judges. Article 124(4)
stipulates that a Judge of the Supreme Court shall not be removed from their
office except on the ground of proved misbehaviour or incapacity. The proviso to
clause (2) of Article 125 guarantees that a judges‘ privileges, allowances and
rights in respect of leave of absence or pension shall not be varied to their
24 MP Jain, Securing the Independence of the Judiciary – The Indian Experience, Indian International and
Comparative Law Review, p. 246
25 Granville Austin, Cornerstone of a Nation (1999), p. 164
26 Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary (2019), p. 17
PART F
36
disadvantage after their appointment. Article 129 empowers the Supreme Court
to punish for the contempt of itself. Article 145 empowers the Supreme Court to
make rules for regulating generally the practice and procedure of the Court.
Clauses (1) and (2) of Article 146 stipulate that the Chief Justice of India or such
other Judge or officer of the Court, as may direct, shall be responsible for the
appointments and prescription of rules governing the conditions of service of the
officers and servants of the Supreme Court. Clauses (1) and (2) of Article 229
assign responsibility to the Chief Justice of a High Court or such other judge or
officer of the court, as they may direct, in respect of matters of appointment and
prescription of rules governing the conditions of service of the officers and
servants of a High Court.
37. Article 215 empowers the High Court to punish for contempt of itself.
Article 217 provides security of tenure. The proviso to clause (2) of Article 221
stipulates that the allowances of a Judge of a High Court as well as the rights in
respect of leave of absence or pension shall not be varied to their disadvantage
after their appointment. Article 227(2) stipulates that each High Court may, by
virtue of its power of superintendence under Article 227(1): (i) call for returns
from certain courts and tribunals, (ii) make and issue general rules and prescribe
forms for regulating the practice and proceedings of such courts; and (iii)
prescribe forms in which books, entries and accounts shall be kept by the officers
of any such courts.
38. These provisions reflect constitutional safeguards to ensure the
independence of the judiciary and guarantee to it the freedom to function
PART F
37
independent of the will of the legislature and executive. Supriya Routh discusses
these provisions in the following words:
―[T]he Constitution provides for adequate safeguards in
furtherance of the independence of the judiciary in a
democratic republic. It separates the judiciary from the
executive and prohibits the Parliament and the state
legislatures from questioning the conduct of judges of the
higher judiciary in furtherance of their judicial duties...It also
provides for an arduous and elaborate process for the
impeachment of judges...‖27
The constitutional safeguards for judicial independence were noticed by this
Court in L Chandra Kumar v Union of India28
. Chief Justice AM Ahmadi,
speaking for a seven judge Bench of this Court held:
―78…While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it also
contains elaborate provisions dealing with the tenure, salaries,
allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts. The
inclusion of such elaborate provisions appears to have been
occasioned by the belief that, armed with such provisions, the
superior courts would be insulated from any executive or
legislative attempts to interfere with the making of their
decisions.‖
Justice Ruma Pal discussed the position in the following words:
―To ensure freedom from Executive and Legislative control,
the pay and pension due to judges in the superior courts are
charged on the Consolidated Funds of the States in the case
of High Court judges and the Consolidated Fund of India in
the case of Supreme Court judges and are not subject to the
vote of the Legislative Assembly in the case of the former or
Parliament in the latter case. Salaries are specified in the
Second Schedule to the Constitution and cannot be varied
without an amendment of the Constitution.‖
29
27 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian
Judiciary, 13 Washington University Global Studies Law Review 321 (2014)
28 (1997) 3 SCC 261
29 ―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial
Lecture, November 10, 2011.
PART F
38
39. The above provisions are indicative of the intention of the founders of the
Constitution to create a strong foundation to secure the independence of the
judiciary. This also marked a strong departure from the ‗pleasure doctrine‘ under
the pre-constitutional colonial framework. Under the Government of India Act,
1935 the judges of the High Court held office during the pleasure of the Crown.
Through Article 217(1) of the Constitution of India, tenure at the pleasure of the
Crown was substituted with a fixed tenure subject to limited exceptions. Justice
Srikrishna (speaking in non-judicial capacity) elucidates upon the importance of
this tradition in the following words:
―A judge of the High Court or Supreme Court is thus not
removable from office except for proved misbehaviour or
incapacity during his tenure of office. The very obviation of
the pleasure doctrine as controlling the tenure of office of a
judge of the High Court or the Supreme Court is explicit of the
intention of the founding fathers to insulate the judges of the
superior courts from the pleasure of the executive. The
several Articles embedded in the Constitution ensure that a
judge is fully independent and capable of rendering justice not
only between citizens and citizens but also between citizens
and the State, without let, hindrance, or interference by
anyone in the State polity. This kind of insulation or immunity
from the pleasure of the executive is essential in view of the
fact that the Constitution has guaranteed several fundamental
rights to the citizens and persons and also empowered the
High Courts and Supreme Court under Article 226 and 32 to
render justice against acts of the State.‖30
It becomes evident that judicial independence is secured through security over
judicial tenure. The edifice of judicial independence is built on the constitutional
safeguards to guard against interference by the legislature and the executive.
Judicial independence is not secured by the secrecy of cloistered halls. It cannot
be said that increasing transparency would threaten judicial independence.
30 Justice BN Srikrishna, Judicial Independence, The Oxford Handbook of the Indian Constitution (2016) at p.
350.
PART F
39
40. The need for transparency and accountability has been emphasised in
decisions of this Court. In Supreme Court Advocates-on-Record Association
v Union of India31 (‗NJAC‘), a Constitution Bench of this Court struck down the
99th Constitutional Amendment Act setting up the National Judicial Appointments
Commission as ultra vires the Constitution by a four-to-one majority. Significantly,
Justice Kurian Joseph, in his separate concurring opinion and Justice
Chelameswar, in his dissenting opinion, pointed to the lack of transparency and
accountability in the manner of making appointments to the judiciary. Justice
Kurian Joseph observed:
―990. All told, all was and is not well. To that extent, I agree
with Chelameswar, J. that the present Collegium system lacks
transparency, accountability and objectivity. The trust deficit
has affected the credibility of the Collegium system, as
sometimes observed by the civic society. Quite often, very
serious allegations and many a time not unfounded too, have
been raised that its approach has been highly subjective.
Deserving persons have been ignored wholly for subjective
reasons, social and other national realities were overlooked,
certain appointments were purposely delayed so as either to
benefit vested choices or to deny such benefits to the less
patronised, selection of patronised or favoured persons were
made in blatant violation of the guidelines resulting in
unmerited, if not, bad appointments, the dictatorial attitude of
the Collegium seriously affecting the self-respect and dignity,
if not, independence of Judges, the court, particularly the
Supreme Court, often being styled as the Court of the
Collegium, the looking forward syndrome affecting impartial
assessment, etc., have been some of the other allegations in
the air for quite some time. These allegations certainly call for
a deep introspection as to whether the institutional trusteeship
has kept up the expectations of the framers of the
Constitution… To me, it is a curable situation yet.‖
The need for greater transparency and accountability in the appointment
procedure or the lack of the same, has also been highlighted by other eminent
31 (2016) 5 SCC 1
PART F
40
retired judges such as Justice JS Verma and Justice Ruma Pal. In an article
quoted in Justice Lokur‘s separate concurring opinion in the NJAC decision,
Justice Verma while speaking about the collegium system observed:
―546…Have any system you like, its worth and efficacy will
depend on the worth of the people who work it! It is, therefore,
the working of the system that must be monitored to ensure
transparency and accountability.‖
Furthermore, Justice Chelameswar, in his dissenting opinion, references a
speech made by Justice Ruma Pal,32 where she stated thus:
―… [T]he process by which a judge is appointed to a superior
court is one of the best kept secrets in this country. The very
secrecy of the process leads to an inadequate input of
information as to the abilities and suitability of a possible
candidate for appointment as a judge. A chance remark, a
rumour or even third-hand information may be sufficient to
damn a judge‘s prospects. Contrariwise a personal friendship
or unspoken obligation may colour a recommendation.
Consensus within the collegium is sometimes resolved
through a trade-off resulting in dubious appointments with
disastrous consequences for the litigants and the credibility of
the judicial system. Besides, institutional independence has
also been compromised by growing sycophancy and
‗lobbying‘ within the system.‖
41. The collegium system has come under immense criticism for its lack of
transparency. As early as in S P Gupta, this Court acknowledged that disclosure
would lead to bona fide consideration and deliberation and proper application of
mind on the part of the judges.33 Even in NJAC, the need for transparency and
accountability has not been denied in any of the separate opinions. The 99th
Constitutional Amendment was struck down on the ground that it would
adversely affect the independence of the judiciary by giving the executive a
32 ―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde
Memorial Lecture, November 10, 2011.
33 S.P. Gupta v. Union of India, 1981 Supp SCC 87, 85 (per Bhagwati J.)
PART F
41
definitive say in the appointment of judges. The dilution of the judiciary‘s
autonomy in the context of making judicial appointments was deemed to be
unconstitutional. However, the need to reduce the opacity and usher in a regime
of transparency in judicial appointments has not been denied and has in fact
been specifically acknowledged by some of the learned Judges.
42. Scholars caution that while judicial independence is important, one should
not lose sight of the larger goals and purposes which judicial independence is
intended to serve. Charles Gardner Geyh considers such ends to include
upholding of the rule of law, preserving the separation of governmental powers,
and promotion of due process, amongst many others. Therefore, he believes that
if judges are free to disregard such ends in their decision making, judicial
independence serves no purpose. He notes thus:
―Most thoughtful scholars recognize that judicial
independence is an instrumental value-a means to achieve
other ends. As an instrumental value, judicial independence
has limits, defined by the purposes it serves…[Hence,] judges
who are so independent that they can disregard the law
altogether without fear of reprisal likewise undermine the rule
of law values that judicial independence is supposed to
further. Judicial accountability is yin to the judicial
independence yang.‖34
Burt Neuborne in his incisive article on the Supreme Court of India observes: ―We
care about constitutional courts not for the aesthetic value of their structures, but
because where certain prerequisites are assembled, constitutional courts are
capable of preserving the values of open, democratic governance.‖35
34 Charles Gardner Geyh, ‗Rescuing Judicial Accountability from the Realm of Political Rhetoric‘, 56 Case
Western Reserve Law Review 911 (2006)
35 International Journal of Constitutional Law, Volume 1, Issue 3, July 2003, Pages 476–510
PART F
42
43. Lorne Sossin argues that transparency is necessary to ensure the public
perception of the judiciary as independent. In the context of judicial
appointments, he believes that appointments may happen on a proper, welljustified, substantive understanding of judicial ‗merit‘. However, in order for the
same to be truly independent, they must include within themselves the
transparency of the criteria and openness of the process. He notes that:
―What matters most in a democracy, I would suggest, is not
the precise criteria for merit but the transparency of the
criteria, and the authenticity of the reasons for choosing one
individual over another. Merit, in other words, is as much
about process as substance.‖ 36
He then goes on to address how the transparency of criteria and the process is a
logical extension of the judicial appointment being ‗meritorious‘, and that doing so
would remove the ‗arbitrariness‘ of the process, leading to upholding of rule of
law:
―We often frame our concern with the rule of law as one
designed to prevent "arbitrary" decisions. Arbitrary decisions
are not, however, decisions taken for no reason. They are,
rather, decisions taken for undisclosed reason. In a
democracy, some reasons for judicial selection will and
should be seen as more legitimate than others. Increasingly,
however, it is the demand for justification itself that is
coming to define our democratic aspirations. This
demand, in my view, not only arises as a logical extension to
the requirement of merit, but is also justified as a necessary
condition of judicial independence.‖
(Emphasis supplied)
44. The fault that was identified with the purported framework under Article
124A of the Constitution of India for ensuring transparency was the lack of
36 Lorne Sossin, ‗Judicial Appointment, Democratic Aspirations, and the Culture of Accountability‘, 58 University
of New Brunswick Law Journal 11 (2008)
PART F
43
adequate safeguards for protecting the right to privacy of the appointees.
37 This
was in the context of the deliberations of the NJAC falling within the purview of
the RTI Act. Justice Madan B Lokur in his separate concurring opinion noted that
the right to know was circumscribed by the right to privacy of individuals:38
―555. The balance between transparency and confidentiality
is very delicate and if some sensitive information about a
particular person is made public, it can have a far-reaching
impact on his/her reputation and dignity. The 99th
Constitution Amendment Act and the NJAC Act have not
taken note of the privacy concerns of an individual. This is
important because it was submitted by the learned Attorney
General that the proceedings of NJAC will be completely
transparent and any one can have access to information that
is available with NJAC. This is a rather sweeping
generalisation which obviously does not take into account the
privacy of a person who has been recommended for
appointment, particularly as a Judge of the High Court or in
the first instance as a Judge of the Supreme Court. The right
to know is not a fundamental right but at best it is an implicit
fundamental right and it is hedged in with the implicit
fundamental right to privacy that all people enjoy. The
balance between the two implied fundamental rights is difficult
to maintain, but the 99th Constitution Amendment Act and the
NJAC Act do not even attempt to consider, let alone achieve
that balance.‖
None of these failings of the specific framework envisaged by the 99th
Constitutional Amendment Act however can be interpreted as a denial of the
importance of disclosure, transparency and accountability in the context of
judicial appointments or of its constitutionality. They only point to the need for a
balance between the right to know and the right to privacy, the specific contours
of which will be explored shortly.
37 NJAC., 953
38 Id
PART F
44
45. Judicial independence cannot be used as a byword for avoiding the
accountability and criticism that accompanies transparency:
―[T]hrough judicial activism, the Supreme Court of India has
completely insulated the judiciary from any democratic
deliberation, thereby sacrificing accountability and
transparency in the functioning of the judges…Accountability
and transparency are not only necessary for upholding the
democratic underpinnings of the Constitution, but are also
necessary for the independence of the judiciary itself,
because if public trust and confidence in the judiciary cannot
be maintained, the judiciary is destined to lose its
independence.‖39
The judiciary is an important organ of the Indian state, and it has a vital role in the
proper functioning of the state as a democracy based on the rule of law. The
integrity, independence, and impartiality of the judiciary are preconditions for fair
and effective access to justice and for the protection of rights. The judiciary has a
vital role to play as a bulwark of the integrity infrastructure in the country.
Failure to bring about accountability reforms would erode trust in the courts‘
impartiality, harming core judicial functions. Further, it also harms the broader
accountability function that the judiciary is entrusted with in democratic systems
including upholding citizens‘ rights and sanctioning representatives of other
branches when they act in contravention of the law. Transparency and the right to
information are crucially linked to the rule of law itself.
F.1 Judicial accountability
46. Questions of judicial accountability raise three interconnected questions:
39 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian
Judiciary, 13 Washington University Global Studies Law Review 321 (2014)
PART F
45
(i) What is the source of accountability?;
(ii) To whom is the accountability owed?; and
(iii) What does accountability entail?
Judicial independence and judicial accountability are often seen as conflicting
values. It is believed that judicial independence, which mandates that
adjudication take place free from interference by the legislature and the
executive, is compromised by the questions of responsibility which judicial
accountability entails. In this view, accountability compromises the ability of
judges to decide free from external pressure and is undesirable. There is a fallacy
about the postulate that independence and accountability are conflicting values.
47. Judicial independence is defined by the existence of conditions which
enable a judge to decide objectively, without succumbing to pressures and
influences which detract from the course of justice. To be independent a judge
must have the ability to decide ‗without fear or favour, affection or ill will‘. The
Constitution creates conditions to secure the independence of judges by setting
out provisions to govern appointments, tenure and conditions of service. These
are provisions through which the conditions necessary to secure judicial
independence are engrafted as mandatory institutional requirements. These are
intrinsic elements of our constitutional design. But constitutional design must be
realised through the actual working of its functionaries. Mechanisms which
facilitate independence are hence a crucial link in ensuring that constitutional
design translates into the realisation of judicial independence. Facilitative
mechanisms include those which promote transparency. For true judicial
PART F
46
independence is not a shield to protect wrong doing but an instrument to secure
the fulfilment of those constitutional values which an independent judiciary is
tasked to achieve. Judicial independence is hence not a carte blanche to
arbitrary behaviour. Where the provisions of the Constitution secure a standard
of judicial independence for free and impartial adjudication, the independence
guaranteed by the Constitution must be employed in a manner that furthers the
objective for which it was secured. In the quest for a balance between the
freedom guaranteed and the responsibility that attaches to the freedom, judicial
independence and judicial accountability converge.
48. Accountability, defined narrowly, is ―a relationship between an actor and a
forum, in which the actor has an obligation to explain and to justify his or her
conduct, the forum can pose questions and pass judgment, and the actor may
face consequences‖40. The narrow conception of accountability however suffers
from a straight-jacket view devoid of general guiding principles. Professor
Stephen Burbank stipulates:
―…the concept of accountability, defined inclusively
…includes a broader complex of values which public
organisations must adopt based in the fundamental values
of democratic regimes. Accountability is conceived in such
a way as to enable the democratic process of establishing
respect for those values, whether of efficiency or
independence, efficacy in achieving objectives, or
impartiality in the treatment of citizens.‖41
In this view, accountability is the search for normative values informed by
democratic values that guide the exercise of power and freedom granted by the
40 M Bovens, Analysing and Assessing Accountability: A Conceptual Framework, European Law Journal (2007),
p. 450.
41 Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review
(2007), p. 31
PART F
47
Constitution. The judiciary, like other institutions envisaged by the Constitution, is
essentially a human institution. The independence of the judiciary was not
envisaged to mean its insulation from the checks and balances that are inherent
in the exercise of constitution power. The independence of the judiciary, is a
constitutional guarantee of freedom. Notions of accountability however, concern
the manner and ends for which the freedom guaranteed is employed. Where
judicial independence focuses on freedom, judicial accountability is concerned
with the manner in which that freedom is exercised by the adjudicator.
49. Article 124(6) and Article 219 of the Constitution of India prescribe that
every person who is appointed to be a judge of the Supreme Court or the High
Court respectively, shall, prior to entering office, make and subscribe to an Oath
or affirmation set out in the Third Schedule of the Constitution. The Oath for the
office reads:
―I, (name), having been appointed Chief Justice (or a
Judge) of the Supreme Court of India, do swear in the
name of God (or affirm) that I will bear true faith and
allegiance to the Constitution of India as by law
established, that I will uphold the sovereignty and integrity
of India, that I will duly and faithfully and to the best of my
ability, knowledge and judgment perform the duties of my
office without fear or favour, affection or ill-will and that
I will uphold the Constitution and the laws.‖
(Emphasis supplied)
Prior to the advent of the Constitution, the oath or affirmation for a person
appointed to the Federal Court was prescribed in Schedule IV to the Government
of India Act, 1935. Significantly, the words ―without fear or favour, affection or illwill‖, contained in the present Constitution in Form VIII did not find place in the
PART F
48
oath prescribed42 in Schedule IV to the Government of India Act, 1935. Added to
the present Constitution, these are words with significance. The framers of the
Constitution were alive to the need for the exercise of judicial power in
accordance with the ethics of judicial office. The express inclusion of these words
indicates that persons entering judicial office bind themselves to the principles
inherent in the effective discharge of the judicial function, in conformity with the
rule of law and the values of the Constitution.
50. The oath of office postulates that the judge shall discharge the duties of
the office without fear or favour, affection or ill-will. Any action that abridges the
discharge of judicial duty in conformity with the principles enunciated in the oath
negates the fundamental precept underlying the conferment of judicial power.
Commenting on the significance of the inclusion of the term in its application to
judges of the High Courts in Union of India v Sankalchand Himatlal43, Justice
PN Bhagwati (as he then was) held:
―These words, of course, do not add anything to the nature of
the judicial function to be discharged by the High Court Judge
because, even without them, the High Court Judge would, by
the very nature of the judicial function, have to perform the
duties of his office without fear or favour, but they serve to
highlight two basic characteristics of the judicial
function, namely, independence and impartiality…‖
(Emphasis supplied)
As constitutional functionaries tasked with adjudication, judges of the High Courts
and Supreme Court are bound to discharge their duties in a fair and impartial
42 ―I, A.B., having been appointed Chief Justice [or a judge] of the Court do solemnly swear [or affirm] that saving
the faith and allegiance which I owe to C.D., his heirs and successors, I will be faithful and bear true allegiance in
my judicial capacity to His Majesty the King, Emperor of India, His heirs and successors, and that I will faithfully
perform the duties of my office to the best of my ability, knowledge and judgment.‖
43 (1977) 4 SCC 193
PART F
49
manner in accordance with law and the principles enshrined in the Constitution.
But this indeed is only a restatement of a principle which attaches to all judicial
office. The principles embodied in the oath furnish a non-derogable obligation
upon the person affirming it to abide by its mandate.
51. On 21 November 1993, the then Chief Justice of India constituted a
Committee to draft and circulate a statement on the values that must be reflected
in judicial life. In December 1999, the Conference of Chief Justices of all High
Courts resolved and adopted the Restatement of Values of Judicial Life. The
statement serves as a guiding light of the values that must be followed in
conformity with the dignity and ethic required of judicial life. The statement, apart
from mentioning 16 values of judicial life concludes that the values enumerated
are not exhaustive but illustrative of what is expected of a judge. The Bangalore
Principles of Judicial Conduct 2002 which were adopted at the Round Table
Meeting of Chief Justices held at the Peace Palace, The Hague in 2002 defined
six main values as an inherent element of the judicial system: independence,
impartiality, integrity, propriety, equality and competence, and diligence.
52. Judicial accountability also stems from the principle that the entrustment
and exercise of power in a constitutional democracy is not unfettered. The
Constitution confers upon judges with the power to dispense justice, which is a
foundational value in the Preamble to the Constitution. Judicial power, conferred
in public interest as a necessary element in the administration of justice cannot
be used to achieve extraneous ends. The private interests of an individual have
PART F
50
no nexus to the discharge of the official duties of a judge. Professor TRS Allen
stipulates:
―Powers may be conferred on public officials and agencies for
the attainment of appropriate ends, consistent with a plausible
account of the public good; but such powers must not be
abused for extraneous ends, serving only private interests,
nor wielded in a manner that undermines the ideal of freedom
as independence. No one should be at the mercy of
unfettered official discretion; and the enforcement of legal
constraints on such discretion is a necessary part of the idea
of government according to law.‖44
The rule of law commands compliance with the law, without exception. It requires
the protection of individuals against the unfettered discretion by officials on one
hand and the protection of individuals from depredations by other private
individuals.
53. Adjudicators in robes are human and may be pre-disposed to the failings
that are inherently human. But the law demands that they must aspire to a
standard of behaviour that does not condone those failings of a human persona
in the discharge of judicial duties. Recognition of the fallibility of individuals who
work constitutional institutions and of the need for safeguards to prevent the
abuse of power found articulation in the Constitutional Assembly Debates. Dr B R
Ambedkar, K T Shah, H V Kamath, S Nagappa, Hussain Imam, Pandit Lakshmi
Kanta Maitra, Alladi Krishnaswami Ayyar, B Pocker Sahib Bahadur, Z H Lari, A K
Ghosh, and R K Sidhva all emphasized the possibility of human error in the
inherently human institutions that the Constitution envisaged. This idea was
given its clearest articulation in by Dr B R Ambedkar when he reminded us that:
44 TRS Allen, Accountability to Law, in Accountability in the Contemporary Constitution (Nicholas Bamforth and
Peter Leyland eds.) (2013), Oxford Scholarship Online, p. 84
PART F
51
―however good a Constitution may be, it is sure to turn out bad because those
who are called to work it, happen to be a bad lot.‘
54. To equate the actions of an individual which have no nexus with the
discharge of official duties as a judge with the institution may have dangerous
portents. The shield of the institution cannot be entitled to protect those actions
from scrutiny. The institution cannot be called upon to insulate and protect a
judge from actions which have no bearing on the discharge of official duty. It is
for this reason that judicial accountability is an inherent component of the justice
delivery system. Accountability is expected to animate the day to day functioning
of the courts. Judges are required to issue reasoned orders after affording an
opportunity to both sides of a dispute to present their case. Judicial ethic requires
that a judge ought to recuse herself from hearing a case where there is a
potential conflict of interest. These illustration norms serve to further the
democratic ideal that no constitutional functionary is above the rule of law.
55. In the view explored above, judicial accountability traces itself from both
the oath of office and the nature of the judicial power itself. In a broader sense
however, there is a significant public interest in ensuring the smooth and efficient
functioning of the justice delivery system, consistent with the requirements of
justice in individual cases. The legitimacy of the institution which depends on
public trust is a function of an assurance that the judiciary and the people that
work it are free from bias and partiality. Mark Tushnet explores the idea of judicial
accountability in the following terms:
―Under prevailing understandings in liberal democracies, law
is a human artefact, so accountability ‗to law‘ must involve
PART F
52
accountability to someone. Roughly, ‗political accountability‘
refers to accountability to contemporaneous power-holders as
representatives of today‘s people, whereas ‗accountability
to law‘ refers to accountability to the people and their
representatives in the more distant past. Accountability
to law is a form of indirect accountability to the people in
the past, taking its route through their enactments of
law.
45
(Emphasis supplied)
In this view, accountability is not confined to elected posts. The creation of the
legal system founded on constitutional precept marked a break from its colonial
past. An independent judiciary is the guardian and final arbiter of the text and
spirit of the Constitution. To ensure this, the Constitution envisages a system of
checks and balances. Article 124(4)46 of the Constitution stipulates that a judge of
the Supreme Court may be removed by an order of the President on the ground
of proven misbehavior or incapacity. Article 21847 of the Constitution makes the
substantive provisions in Article 124(4) and Article 124(5) applicable to judges of
the High Courts. The Judges (Enquiry) Act 1986 was enacted in furtherance of
Article 124(5) which empowered the Parliament to regulate the presentation of an
address and investigation of judges. A notice of motion to present an address to
the President of India for the removal of judge is given in the Lok Sabha on
receiving the signatures of not less than one hundred members or in the Rajya
Sabha on receiving the signature of not less than fifty members. The Speaker of
the Lok Sabha or the Chairman of the Rajya Sabha constitutes a Committee as
45 Mark Tushnet, Judicial Accountability in Comparative Perspective, in Accountability in the Contemporary
Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship Online at Tushnet, p. 69
46 124(4) - A Judge of the Supreme Court shall not be removed from his office except by an order of the
President passed after as address by each House of Parliament supported by a majority of the total membership
of that House and by a majority of not less than two-thirds of the members of that House present and voting has
been presented to the President in the same session for such removal on the ground of proved misbehaviour or
incapacity.
47 218 – The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in
relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme
Court.
PART F
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stipulated in the Act to enquire into the alleged misbehavior of incapacity. If the
report of the Committee finds that a judge is guilty of misbehavior or suffers from
any incapacity, each house of the Parliament votes on the motion in accordance
with Article 124(4) of the Constitution. The Lok Sabha and the Rajya Sabha must
both pass a motion to impeach the judge with a majority of not less than twothirds of the members of the house present and voting. The stringent procedure
adopted by the Parliament for the impeachment of a judge draws a balance
between ensuring the independence of judges from political will and ensuring the
accountability of judges for their actions.
56. Judicial independence does not mean the insulation of judges from the
rule of law. In a constitutional democracy committed to the rule of law and to the
equality of its citizens, it cannot be countenanced that judges are above the law.
The notion of a responsible judiciary furthers the ideal for which an independent
judiciary was envisaged. It is the exercise of the decision making authority
guaranteed by judicial independence in a just and responsible manner, true to
the ethos of judicial office that sub-serves the founding vision of the judiciary.
Professor Stephen Burbank has characterized judicial independence and
accountability as "different sides of the same coin‖.48Professor Charles Gardner
has stated that:
―Judicial accountability is yin to the judicial independence
yang. Although some trumpet judicial accountability as if it
were an end in itself, accountability-like independence-is
better characterized as an instrumental value that promotes
three discrete ends: the rule of law, public confidence in the
courts, and institutional responsibility.‖49
48 Stephen Burbank, The Past and Present of Judicial Independence, California Law Review (1999).
49 Charles Gardner, Rescuing Judicial Accountability from the Realm of Political Rhetoric (2006), p .916
PART F
54
Hence, independence and accountability are mutually reinforcing concepts. The
specific form of accountability which this Court has been called to address is in
regard to the appointment process and disclosure of assets owned by judges.
This form of accountability involves competing interests between the need for
transparency and accountability and the privacy interests of judges. The nature
and balancing of the competing interests involved in such a determination shall
be explored in the course of the judgment.
57. The executive in a cabinet form of government in accountable to the
legislature. Ministers of the government are elected members of the legislature.
Collectively, the government is accountable to the legislature as an institution
and through the legislature to the people. Unlike the elected representatives of
the people, judges of the district and higher judiciary are not elected. The
accountability which the political process exacts from members of the legislature
is hence distinct from the accountability of judges who are accountable to the
trust which is vested in them as independent decision makers. Making them
accountable in the discharge of that trust does not dilute their independence. The
independence of judges is designed to protect them from the pressures of the
executive and the legislature and of the organised interests in society which may
detract judges from discharging the trust as dispassionate adjudicators. Scrutiny
and transparency, properly understood are not placed in an antithesis to
independence. They create conditions where judges are protected against
unwholesome influences. Scrutiny and transparency are allies of the
conscientious because they are powerful instruments to guard against influences
which threaten to suborn the judicial conscience. To use judicial independence
PART G
55
as a plea to refuse accountability is fallacious. Independence is secured by
accountability. Transparency and scrutiny are instruments to secure
accountability.
G Fiduciary relationship
58. The appellant argued that the information about the assets of judges is
exempt from disclosure, by virtue of Section 8(1)(e) of the RTI Act which casts a
fiduciary duty on the Chief Justice of India to hold the asset declarations in
confidence. It is argued by the respondent that judges, while declaring their
assets, do so in their official capacity in accordance with the 1997 resolution and
not as private individuals. It is urged that the process of information gathering
about the assets of the judges by the Chief Justice of India, is in his official
capacity and therefore, no fiduciary relationship exists between them.
59. In order to determine whether the Chief Justice of India holds information
with respect to asset declarations of judges of the Supreme Court in a fiduciary
capacity, it is necessary to assess the nature of the relationship and the power
dynamics between the parties. Justice Frankfurter of the United States Supreme
Court in SEC v Chenery Corp50, while determining the question whether officers
and directors who manage a holding company in the process of reorganisation
occupy positions of trust, stated:
― But to say that a man is a fiduciary only begins analysis; it
gives direction to further inquiry. To whom is he a fiduciary?
What obligations does he owe as a fiduciary? In what respect
50 SEC v. Chenery Corp., 318 U.S. 80, 85–86 (1942)
PART G
56
has he failed to discharge these obligations? And what are
the consequences of his deviation from duty?‖51
60. Black‘s Law Dictionary52, defines ―fiduciary relationship‖ thus:
―A relationship in which one person is under a duty to act for
the benefit of the other on matters within the scope of the
relationship. Fiduciary relationships – such as trusteebeneficiary, guardian-ward, principal-agent, and attorneyclient – require an unusually high degree of care. Fiduciary
relationships usually arise in one of four situations : (1) when
one person places trust in the faithful integrity of another,
who as a result gains superiority or influence over the
first, (2) when one person assumes control and
responsibility over another, (3) when one person has a
duty to act for or give advice to another on matters falling
within the scope of the relationship, or (4) when there is a
specific relationship that has traditionally been recognized as
involving fiduciary duties, as with a lawyer and a client or a
stockbroker and a customer.‖
(Emphasis supplied)
In Words and Phrases53 the term ―fiduciary‖ is defined:
―Generally, the term ‗fiduciary‘ applies to any person who
occupies a position of peculiar confidence towards another...
It refers to integrity and fidelity... It contemplates fair dealing
and good faith, rather than legal obligation, as the basis of the
transaction… The term includes those informal relations
which exist whenever one party trusts and relies upon
another, as well as technical fiduciary relations.‖
(Emphasis supplied)
In Corpus Juris Secundum54 ―fiduciary‖ is defined thus:
―A general definition of the word which is sufficiently
comprehensive to embrace all cases cannot well be given.
The term is derived from the civil, or Roman law. It connotes
the idea of trust or confidence, contemplates good faith,
rather than legal obligation, as the basis of the transaction,
52 Black‘s Law Dictionary, Tenth Edition, p. 744
53 Words and Phrases, Volume 16-A, St. Paul: West Pub. Co, 1940
54 Corpus Juris Secundum: A Complete Restatement of the Entire American Law As Developed by All Reported
Cases, Volume 36-A, p. 38
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refers to the integrity, the fidelity, of the party trusted, rather
than his credit or ability, and has been held to apply to all
persons who occupy a position of peculiar confidence toward
others, and to include those informal relations which exist
whenever one party trusts and relies on another, as well as
technical fiduciary relations.
The word ‗fiduciary‘, as a noun, means one who holds a thing
in trust for another, a trustee, a person holding the character
of a trustee, or a character analogous to that of a trustee, with
respect to the trust and confidence involved in it and the
scrupulous good faith and candor which it requires; a person
having the duty, created by his undertaking, to act primarily
for another's benefit in matters connected with such
undertaking. Also more specifically, in a statute, a guardian,
trustee, executor, administrator, receiver, conservator or any
person acting in any fiduciary capacity for any person, trust or
estate. Some examples of what, in particular connections, the
term has been held to include and not to include are set out in
the note.‖
61. In CBSE v Aditya Bandopadhyay55, a two judge Bench of this Court
while discussing the nature of fiduciary relationships relied upon several
decisions and explained the terms ―fiduciary‖ and ―fiduciary relationship‖ thus:
―39. The term ―fiduciary‖ refers to a person having a duty to
act for the benefit of another, showing good faith and
candour, where such other person reposes trust and special
confidence in the person owing or discharging the duty. The
term ―fiduciary relationship‖ is used to describe a
situation or transaction where one person (beneficiary)
places complete confidence in another person (fiduciary)
in regard to his affairs, business or transaction(s). The
term also refers to a person who holds a thing in trust for
another (beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the
beneficiary, and use good faith and fairness in dealing with
the beneficiary or the things belonging to the beneficiary. If
the beneficiary has entrusted anything to the fiduciary, to hold
the thing in trust or to execute certain acts in regard to or with
reference to the entrusted thing, the fiduciary has to act in
confidence and is expected not to disclose the thing or
information to any third party.‖
(Emphasis supplied)
55 (2011) 8 SCC 497
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62. In RBI v Jayantilal N Mistry56, a two judge Bench of this Court reiterated
the observations made in CBSE v Aditya Bandopadhyay and held that RBI did
not place itself in a fiduciary relationship with other financial institutions by virtue
of collecting their reports of inspections, statements of the banks and information
related to the business. It was held that the information collected by the RBI was
required under law and not under the pretext of confidence or trust:
―64. The exemption contained in Section 8(1)(e) applies to
exceptional cases and only with regard to certain pieces of
information, for which disclosure is unwarranted or
undesirable. If information is available with a regulatory
agency not in fiduciary relationship, there is no reason to
withhold the disclosure of the same. However, where
information is required by mandate of law to be provided
to an authority, it cannot be said that such information is
being provided in a fiduciary relationship. As in the instant
case, the financial institutions have an obligation to provide all
the information to RBI and such information shared under an
obligation/duty cannot be considered to come under the
purview of being shared in fiduciary relationship.‖
(Emphasis supplied)
63. The Canadian Supreme Court in the case of Hodgkinson v Simms57
,
discussed the term ‗fiduciary‘ thus:
―A party becomes a fiduciary where it, acting pursuant to
statute, agreement or unilateral undertaking, has an
obligation to act for the benefit of another and that obligation
carries with it a discretionary power. Several indicia are of
assistance in recognizing the existence of fiduciary
relationships: (1) scope for the exercise of some discretion or
power; (2) that power or discretion can be exercised
unilaterally so as to effect the beneficiary's legal or practical
interests; and, (3) a peculiar vulnerability to the exercise of
that discretion or power.
The term fiduciary is properly used in two ways. The first
describes certain relationships having as their essence
56 (2016) 3 SCC 525
57 [1994] 3 SCR. 377
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discretion, influence over interests, and an inherent
vulnerability. A rebuttable presumption arises out of the
inherent purpose of the relationship that one party has a duty
to act in the best interests of the other party. The second,
slightly different use of fiduciary exists where fiduciary
obligations, though not innate to a given relationship, arise as
a matter of fact out of the specific circumstances of that
particular relationship. In such a case the question to ask is
whether, given all the surrounding circumstances, one party
could reasonably have expected that the other party would
act in the former's best interests with respect to the subject
matter at issue. Discretion, influence, vulnerability and trust
are non-exhaustive examples of evidentiary factors to be
considered in making this determination. Outside the
established categories of fiduciary relationships, what is
required is evidence of a mutual understanding that one party
has relinquished its own self-interest and agreed to act solely
on behalf of the other party. In relation to the advisory
context, then, there must be something more than a simple
undertaking by one party to provide information and execute
orders for the other for a relationship to be enforced as
fiduciary.‖
64. Dr Paul Finn in his comprehensive work on ―Fiduciary Obligations‖
58
,
describes a fiduciary as someone who has an obligation to act ―in the interests
of‖ or ―for the benefit of‖ their beneficiaries in some particular matter. For a
person to act as a fiduciary they must first have bound themselves in some way
to protect and further the interests of another.59 Where such a position has been
assumed by one party then that party's position is potentially of a fiduciary.60 The
Federal Court of Australia in the case of Australian Sec & Inv Comm‘n v
Citigroup Global Markets Australia Pty Ltd61 has held:
―The question of whether a fiduciary relationship exists, and
the scope of any duty, will depend upon the factual
circumstances and an examination of the contractual terms
between the parties... Apart from the established categories,
perhaps the most that can be said is that a fiduciary
58 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 15
59 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 9
60 P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p.9
61 Australian Sec. & Inv. Comm‘n v Citigroup Global Markets Australia Pty. Ltd., [2007] FCA 963 (Citing P.D.
Finn, The Fiduciary Principle, in Equity, Fiduciaries and Trusts (T. Youden ed., 1989))
PART G
60
relationship exists where a person has undertaken to act
in the interests of another and not in his or her own
interests but all of the facts and circumstances must be
carefully examined to see whether the relationship is, in
substance, fiduciary… The critical matter in the end is
the role that the alleged fiduciary has, or should be taken
to have, in the relationship. It must so implicate that party in
the other‘s affairs or so align him with the protection or
advancement of that other‘s interests that foundation exists
for the fiduciary expectation.‖ (Emphasis supplied)
65. A fiduciary must be entrusted with a degree of discretion (power) and must
have freedom to act without resorting to prior approval of the beneficiary.62 The
greater the independent authority to be exercised by the fiduciary, the greater the
scope of fiduciary duty.63 The person so entrusted with power is required to
determine how to exercise that power.64 Fiduciaries are identified by ascendancy,
power and control on the part of the stronger party and therefore, a fiduciary
relationship implies a condition of superiority of one of the parties over the
other.65 It is not necessary that the relationship has to be defined as per law, it
may exist under various circumstances, and exists in cases where there has
been a special confidence placed in someone who is bound to act in good faith
and with due regard to the interests of the one reposing the confidence. Such is
normally the case with, inter alia, attorney-client, agent-principal, doctor-patient,
parent-child, trustees-beneficiaries66, legal guardian-ward67, personal
representatives, court appointed receivers and between the directors of company
and its shareholders. In Needle Industries (India) Ltd v Needle Industries
62 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
63 Scott, Austin W. "The Fiduciary Principle." California Law Review 37, no. 4 (1949): 539-55.
64 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
65 Ken Coghill, Charles Sampford and Tim Smith ―Fiduciary Duty and the Atmospheric Trust‖, Ashgate (2012)
66 Section 88, Indian Trusts Act 1882
67 Section 20, Guardians and Wards Act 1890
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61
Newey (India) Holding Ltd68 and Dale & Carrington Invt (P) Lt v P K
Prathaphan69, this Court held that the directors of the company owe a fiduciary
duty to its shareholders. In P V Sankara Kurup v Leelavathy Nambier70, this
Court held that an agent and power of attorney can be said to owe a fiduciary
relationship to the principal.
66. Other structural properties of the fiduciary relationship are dependence
and vulnerability, where the beneficiary is dependent upon the fiduciary to
exercise power and impact the practical interests.71 Once a fiduciary relationship
is established, fiduciary duties include the duty of loyalty and duty of care
towards the interests of the beneficiaries.72
67. From the discussion above, it can be seen that a fiduciary is someone who
acts for and on behalf of another in a particular matter giving rise to a relationship
of trust and confidence. A fiduciary relationship implies a condition of superiority
of one of the parties over the other, where special confidence has been reposed
in an individual to act in the best interests of another.
68. The dispute before us is whether the Chief Justice of India while exercising
its official function and holding asset declaration information of the judges acts in
a fiduciary capacity. The Full Bench of the Delhi High Court agreed with the
learned single judge and held:
68 (1981) 3 SCC 333
69 (2005) 1 SCC 212
70 (1994) 6 SCC 68
71 Gold, Andrew S.; Miller, Paul B. ―Philosophical foundations of fiduciary law‖ Oxford University Press, 2016.
72 Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011
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62
―The CJI cannot be a fiduciary vis-à-vis Judges of the
Supreme Court. The Judges of the Supreme Court hold
independent office, and there is no hierarchy, in their judicial
functions, which places them at a different plane than the CJI.
The declarations are not furnished to the CJI in a private
relationship or as a trust but in discharge of the constitutional
obligation to maintain higher standards and probity of judicial
life and are in the larger public interest. In these
circumstances, it cannot be held that the asset information
shared with the CJI, by the Judges of the Supreme Court, are
held by him in the capacity of fiduciary, which if directed to be
revealed, would result in breach of such duty.‖
We are in agreement with the above observation. The words ―held by‖ or ―under
the control of‖ under Section 2(j) of the RTI Act will include not only information
under the legal control of the public authority but also all such information which
is otherwise received or used or consciously retained by the public authority while
exercising functions in its official capacity. The 1997 resolution on declaration of
judge‘s assets as adopted on 7 May 1997 states:
―RESOLVED FURTHER THAT every Judge should make a
declaration of all his/her assets in the form of real estate or
investments (held by him/her in his/her own name or in the
name of his/her spouse or any person dependent on him/her)
within a reasonable time of assuming office and in the case of
sitting Judges within a reasonable time of adoption of this
Resolution and thereafter whenever any acquisition of a
substantial nature is made, it shall be disclosed within a
reasonable time. The declaration so made should be to the
Chief Justice of the Court. The Chief Justice should make a
similar declaration for the purpose of the record. The
declaration made by the Judges or the Chief Justice, as the
case may be, shall be confidential.‖
69. The Chief Justice of India in exercising his official functions in accordance
with the 1997 resolution while holding asset information of other judges does not
act for and on behalf of other judges of the Supreme Court. There exists no
fiduciary relationship between them. The Chief Justice of India is not entrusted
PART G
63
with the power to protect and further the interests of individual judges who
disclose their assets. The information is required by the mandate of the
resolution dated 7 May 1997 passed by all the then sitting judges of the Supreme
Court and it cannot be said that such information is being provided in any
personal capacity. The Chief Justice of India merely holds the information in
accordance with the official functions and not in any fiduciary capacity. The
judges of the Supreme Court, including the Chief Justice of India occupy a
constitutional office. There exists no set hierarchies between the judges and they
enjoy the same judicial powers and immunities. The judges who disclose their
assets cannot be said to be vulnerable to and dependent on the Chief Justice of
India. In these circumstances, it cannot be held that asset information shared
with the Chief Justice of India, by the judges of the Supreme Court, are held by
him in a fiduciary capacity, which if revealed, would result in breach of fiduciary
duty. Therefore, the argument that the information sought is held in a fiduciary
capacity is inapplicable and cannot be used to prevent the information from being
made public.
70. While we have not accepted the argument of the appellant regarding the
existence of the fiduciary relationship between the Chief Justice of India and the
judges, it is relevant to point out the application of the fiduciary principle to public
institutions where judges hold citizens‘ interests in public trust, guided by
fiduciary standards.73
A Judge‘s public fiduciary obligation towards the citizen
includes a duty of loyalty, duty of care and the cluster comprising the duties of
73 Robert G. Natelson, ―Judicial Review of Special Interest Spending: The General Welfare Clause and the
Fiduciary Law of the Founders‖, 11 Tex. Rev. L. & PoL 239, 245
PART H
64
candour, disclosure and accounting.74 The duty of loyalty for a judge entails
them being loyal to the citizenry by remaining impartial towards the litigants
before them.75 The duty of care for judges includes the expectation from judges
to fulfil their responsibilities with reasonable diligence and to engage in reason
based decision making.76 The duties of candour, disclosure and accounting are
based on the premise of judicial transparency and judicial honesty.
H The right to privacy and the right to know
71. The third referral question to be answered by this Court is: ―Whether the
information sought for is exempt under Section 8(1)(j) of the RTI Act77.‖ The
question requires this Court to determine whether and under what circumstances
the information sought by the applicant should be disclosed under the provisions
of the RTI Act. This Court is cognisant that in interpreting the statutory scheme of
the RTI Act, the constitutional right to know and the constitutional right to privacy
of citizens are also implicated. In answering the question, it is necessary to
analyse the scheme of the RTI Act, the role of the exemptions under Section 8,
the interface between the statutory rights and duties under Section 8(1)(j) and the
constitutional rights under Part III of the Constitution.
74 Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law
Review 101, no. 3 (2013): 699-753.
75 Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias, 2008 PUB. L.
58 (2008)
76 Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law
Review 101, no. 3 (2013): 699-753. See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial
Review, 2 J. LEGAL analysis 227, 249 n.23 (2010).
77 ―RTI Act‖
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65
72. In order to facilitate effective governance, the government or ‗public
authority‘ must be empowered to efficiently coordinate diverse activities and at
the same time be constrained to ensure that it does not override the freedoms of
those it serves. In explaining the system of checks and balances in the American
Constitution, James Madison noted:
―If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over
men, the great difficulty lies in this: you must first enable
the government to control the governed; and in the next
place oblige it to control itself. A dependence on the
people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary
precautions.‖78
(Emphasis supplied)
Our Constitution institutes and operationalises the functions of government. It is
necessary to empower the government to operationalise the public functions of
the state and ensure the governance of the public lives of citizens. However, the
framers of our Constitution recognised that this act of empowerment also carried
certain associated risks, that no government of people is infallible and that in
addition to democratic controls, certain additional checks and balances on
governmental power are necessary. Part III of the Constitution represents a
crucial aspect of the constitutional scheme by which governmental power is
restricted, and the government is obligated to respect the rights and freedoms of
citizens.
78 James Madison, Federalist No 51 (1788)
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Scheme of Sections 8 and 11
73. The RTI Act was enacted in furtherance of the principles found in Part III of
the Constitution. The RTI Act operationalises the disclosure of information held
by ‗public authorities‘ in order to reduce the asymmetry of information between
individual citizens and the state apparatus. The RTI Act facilities transparency in
the decisions of public authorities, the accountability of public officials for any
misconduct or illegality and empowers individuals to bring to light matters of
public interest. The RTI Act has provided a powerful instrument to citizens: to
individuals engaged in advocacy and journalism. It facilitates a culture of
assertion to the citizen – activist, to the whistle-blower, but above all to each
citizen who has a general interest in the affairs of the state. The preamble of the
RTI Act notes:
―An Act to provide for setting out the practical regime of right
to information for citizens to secure access to information
under the control of public authorities, in order to
promote transparency and accountability in the working
of every public authority, the constitution of a Central
Information Commission and State Information Commissions
and for matters connected therewith or incidental thereto.
…
AND WHEREAS democracy requires an informed citizenry
and transparency of information which are vital to its
functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the
governed;‖
(Emphasis supplied)
As observed earlier in the judgement, the provisions of the RTI Act are dedicated
to operationalising access to information held by public authorities. The scheme
of the RTI Act and its applicability to the judiciary has already been examined in
detail. In answering the third referral question, this Court can confine itself to the
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statutory exemptions carved out from the general obligation of disclosure. When
enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of
information could be fiscally inefficient, result in real world harms and infringe on
the rights of others. In addition to the extracts above, the preamble to the RTI Act
also states:
―AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments, optimum
use of limited fiscal resources and the preservation of
confidentiality of sensitive information;‖
(Emphasis supplied)
74. To address the harms that may result from an unrestricted disclosure of
information, the legislature included certain qualified and unqualified exemptions
to the general obligation to disclose under Sections 3, 4 and 7 of the RTI Act.
Section 8(1) sets out certain classes of information, the disclosure of which, the
legislature foresaw may result in harm to the nation or the rights and interests of
other citizens. Section 8 reads as under:
―8. Exemption from disclosure of information –
(1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen, -
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation
with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the disclosure
of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence,
trade secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party, unless
the competent authority is satisfied that larger public interest
warrants the disclosure of such information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that
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the larger public interest warrants the disclosure of such
information;
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would
endanger the life or physical safety of any person or identify
the source of information or assistance given in confidence
for law enforcement or security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers,
the reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
(j) information which relates to personal information
the disclosure of which has no relationship to any public
activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is
satisfied that the larger public interest justifies the disclosure
of such information:
Provided that the information which cannot be denied
to the Parliament or a State Legislature shall not be denied to
any person.
(2) Notwithstanding anything in the Official Secrets
Act, 1923 (19 of 1923) nor any of the exemptions permissible
in accordance with sub-section (1), a public authority may
allow access to information, if public interest in disclosure
outweighs the harm to the protected interests….‖
Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything
contained in this Act‖. The import of this phrase is that clause (1) of Section 8
carves out an exception to the general obligation to disclose under the RTI Act.
Where the conditions set out in any of the sub-clauses to clause (1) of Section 8
are satisfied, the Information Officer is under no obligation to provide information
to the applicant. By expressly enumerating the circumstances in which the
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disclosure of information may be restricted on the grounds of certain identified
harms, the RTI Act negates the notion that information may be withheld on the
grounds of confidentiality simpliciter. A harm under clause (1) of Section 8 must
be identified and invoked to justify the non-disclosure of a document requested
for under the RTI Act.
75. It is also pertinent to note that clauses (a), (b), (c), (f), (g) and (h) to clause
(1) of Section 8 provide an absolute exemption from the obligation of disclosure
under the RTI Act. However, clauses (d), (e), (i) and (j) to clause (1) of Section 8
provide a qualified exemption from disclosure. For example, clause (a) to sub
section (1) of Section 8 provides an unconditional exemption where it is
determined that disclosure of the information sought ―would prejudicially affect
the sovereignty and integrity of India‖. On the other hand, while clause (d) to
Section 8(1) similarly provides that information is exempt from disclosure where
such disclosure ―would harm the competitive position of a third party‖ the
exemption is further qualified by the phrase, ―unless the competent authority is
satisfied that larger public interest warrants the disclosure‖. Thus, the exemption
under clause (d) is not absolute but is qualified and cannot be invoked where
there exists a ―larger public interest‖. Where the Information Officer determines
that the ―larger public interest‖ warrants a disclosure, the exemption in clause (d)
cannot be invoked and the information must be disclosed.
76. Clause (j) of Section 8(1) provides a qualified exemption from disclosure
where the information sought relates to ―personal information the disclosure of
which has no relationship to any public activity or interest‖ or the disclosure of the
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information would cause an ―unwarranted invasion of the privacy‖. However, the
exemption may be overridden where the Information Officer is ―satisfied that the
larger public interest justifies the disclosure‖. Clause (j) is not an absolute
exemption from the disclosure of information on the ground of privacy but states
that disclosure is exempted in cases where ―personal information‖ is sought and
there exists no ―larger public interest‖. Where the Information Officer is satisfied
that the existence of the ―larger public interest‖ justifies the disclosure of the
―personal information‖, the information must be disclosed. The exact contours of
the phrases ―personal information‖ and ―larger public interest‖ with respect to
members of the judiciary, and the exact manner in which they relate to each
other form the subject matter of the third referral question and shall be analysed
during the course of this judgement.
77. Sections 2(n) and 11 of the RTI Act read as under:
―2(n) ―third party‖ means a person other than the citizen
making a request for information and includes a public
authority‖
―11. Third party information.—(1) Where a Central Public
Information Officer or a State Public Information Officer, as
the case may be, intends to disclose any information or
record, or part thereof on a request made under this Act,
which relates to or has been supplied by a third party and
has been treated as confidential by that third party, the
Central Public Information Officer or State Public
Information Officer, as the case may be, shall, within five
days from the receipt of the request, give a written notice to
such third party of the request and of the fact that the Central
Public Information Officer or State Public Information Officer,
as the case may be, intends to disclose the information or
record, or part thereof, and invite the third party to make a
submission in writing or orally, regarding whether the
information should be disclosed, and such submission of the
third party shall be kept in view while taking a decision about
disclosure of information:
Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if the
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public interest in disclosure outweighs in importance any
possible harm or injury to the interests of such third
party.
(2) Where a notice is served by the Central Public Information
Officer or State Public Information Officer, as the case may
be, under sub-section (1) to a third party in respect of any
information or record or part thereof, the third party shall,
within ten days from the date of receipt of such notice, be
given the opportunity to make representation against the
proposed disclosure.
(Emphasis supplied)
The definition of a ―third party‖ includes a public authority. ‗Third party
information‘ is information which ―relates to or has been supplied by any other
person (including a public authority) other than the information applicant and has
been treated as confidential by such third party. Where disclosure of ‗third party
information‘ is sought, and such information has been prima facie treated as
confidential by the third party in question, the procedure under Section 11 of the
RTI Act is mandatory. The Information Officer shall, within five days of receiving
the request for ‗third party information‘ notify the relevant third party to whom the
information relates or which had supplied it. The notice shall invite the third party
to submit reasons (in writing or orally) as to whether or not the information sought
should be disclosed. Section 11(2) provides the third party with a right to make a
representation against the proposed disclosure within ten days of receiving the
notice. The provision expressly mandates the Information Officer to take into
consideration the objections of the third party when making a decision with
respect to disclosure or non-disclosure of the information. It encapsulates the
fundamental idea that a party whose personal information is sought to be
disclosed is afforded the opportunity to contest disclosure. The proviso to sub
section (1) of Section 11 permits disclosure where the ―public interest‖ in
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disclosure ―outweighs‖ any possible harms in disclosure highlighted by the third
party.
78. Sections 8 and 11 must be read together. Other than in a case where the
information applicant seeks the disclosure of information which relates to the
information applicant herself, information sought that falls under the category of
―personal information‖ within the meaning of clause (j) of Section 8(1) is also
―third party information‖ within the ambit of Section 11. Therefore, in every case
where the information requested is ―personal information‖ within the operation of
clause (j) of sub section 1 of Section 8, the procedure of notice and objections
under Section 11 must be complied with. The two provisions create a substantive
system of checks and balances which seek to balance the right of the information
applicant to receive information with the right of the third party to prevent the
disclosure of personal information by permitting the latter to contest the proposed
disclosure.
79. In Arvind Kejriwal v Central Public Information Officer79 it was
contended that the procedure for notifying the third party and inviting objections
under Section 11 only applied to situations where the information sought was
directly supplied by the third party, and not to situations where the information
‗related to‘ the third party but was not supplied by it. Rejecting this contention,
Justice Sanjeev Khanna, (as our learned Brother then was) speaking for a
Division Bench of the Delhi High Court held:
79 AIR 2012 Del 29
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73
―13… On the other hand, in case the word ‗or‘ is read as
‗and‘, it may lead to difficulties and problems, including the
invasion of right of privacy/confidentiality of a third party. For
example, a public authority may have in its records,
medical reports or prescriptions relating to third person
but which have not been supplied by the third person. If
the interpretation given by the appellant is accepted then
such information can be disclosed to the information
seeker without following the procedure prescribed in
Section 11(1) as the information was not furnished or
supplied by the third person. … when information relates to
a third party and can be prima facie regarded and treated as
confidential, the procedure under Section 11(1) must be
followed. Similarly, in case information has been provided by
the third party and has been prima facie treated by the said
third party as confidential, again the procedure under Section
11(1) has to be followed.
…
15. Section 11 also ensures that the principles of natural
justice are complied with. Information which is confidential
relating to a third party or furnished by a third party, is not
furnished to the information seeker without notice or without
hearing the third party‘s point of view. A third party may
have reasons, grounds and explanations as to why the
information should not be furnished, which may not be in
the knowledge of the PIO/appellate authorities or
available in the records. The information seeker is not
required to give any reason why he has made an application
for information. There may be facts, causes or reasons
unknown to the PIO or the appellant authority which may
justify and require denial of information. Fair and just
decision is the essence of natural justice. Issuance of
notice and giving an opportunity to the third party serves
a salutary purpose and ensures that there is a fair and
just decision. In fact issue of notice to a third party may in
cases curtail litigation and complications that may arise if
information is furnished without hearing the third party
concerned. Section 11 prescribes a fairly strict time schedule
to ensure that the proceedings are not delayed.
(Emphasis supplied)
The procedure under Section 11 must be complied with not only in cases where
information has been supplied to the public authority by a third party, but equally
when the information which is held by the public authority ―relates to‖ a third
party. Section 11 is not merely a procedural provision, but a substantive
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protection to third parties against the disclosure of their personal information held
by public authorities, without their knowledge or consent. The mere fact that the
public authority holds information relating to a third party does not render it freely
disclosable under the RTI Act. A third party may have good reason to object to
the disclosure of the information, including on the ground that the disclosure
would constitute a breach of the right to privacy. By including the requirement of
inviting objections and providing a hearing on the proposed disclosure of third
party information to the very party who may be adversely impacted by the
disclosure, Section 11 embodies the principles of natural justice.
80. In the present case, the information sought pertains to the declaration of
assets of members of the judiciary and official file notings and correspondence
with respect to the elevation of judges to the Supreme Court. The information
sought with respect to the assets of judges is not generated by the Supreme
Court itself, but is provided by individual judges to the Supreme Court. The file
notings with respect to the elevation of judges do not merely contain information
regarding the operation of the Supreme Court, but also relate to the individual
judges being considered for elevation. Thus, the information sought both ―relates
to‖ and ―has been supplied by‖ a third party and has been treated as confidential
by that third party‖. The procedure under Section 11 is applicable in regard to the
information sought by the respondent and must be complied with.
Constitutional rights implicated
81. The RTI Act, although a statutory enactment, engages the rights contained
in Part III of the Constitution of India. Article 19(1)(a) of the Constitution contains
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the right to freedom of expression which grants all citizens not merely the right to
free speech, but also the right to freely disseminate speech. The freedom of the
press to disseminate speech has long been recognised under our Constitution.80
An inherent component of the right to disseminate speech freely is the
corresponding right of the audience to receive speech freely. The right to receive
information disseminated has also been recognised as a facet of the freedom of
expression protected by Article 19(1)(a) of the Constitution.81 In addition to the
right to receive information already being disseminated in the public domain,
Article 19(1)(a) includes a positive right to information. Contrasted with the
negative content of the right to receive information, which prohibits the State from
restricting a citizen‘s access to information already in the public domain, the right
to information, as a facet of Article 19(1)(a), casts a positive duty on the State to
make available certain information not already in the public domain.
82. In State of Uttar Pradesh v Raj Narain82, Chief Justice A N Ray,
speaking for a Constitution Bench of this Court observed:
―74. In a Government of responsibility like ours, where all the
agents of the public must be responsible for their conduct,
there can be but few secrets. The people of this country
have a right to know every public act, everything that is
done in a public way, by their public functionaries. They
are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though
not absolute, is a factor which should make one wary,
when secrecy is claimed for transactions which can, at
any rate, have no repercussion on public security. [ See
New York Times Co. v. United States, 29 L Ed 822: 403 US
713] To cover with veil of secrecy, the common routine
business, is not in the interest of the public. Such secrecy can
seldom be legitimately desired. It is generally desired for the
80 Express Newspaper v Union of India 1959 SCR 12
81 Bennet Coleman v Union of India (1972) 2 SCC 788
82 (1975) 4 SCC 428
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purpose of parties and politics or personal self-interest or
bureaucratic routine…‖
(Emphasis supplied)
These observations were reiterated by the seven judge Bench of this Court in
case of S P Gupta v Union of India83
. Justice P N Bhagwati (as he then was)
noted:
―64. Now it is obvious from the Constitution that we have
adopted a democratic form of Government. Where a society
has chosen to accept democracy as its credal faith, it is
elementary that the citizens ought to know what their
Government is doing. The citizens have a right to decide
by whom and by what rules they shall be governed and
they are entitled to call on those who govern on their
behalf to account for their conduct. No democratic
Government can survive without accountability and the
basic postulate of accountability is that the people
should have information about the functioning of the
Government. It is only if people know how Government is
functioning that they can fulfil the role which democracy
assigns to them and make democracy a really effective
participatory democracy. ―Knowledge‖ said James Madison,
―will for ever govern ignorance and a people who mean to be
their own governors must arm themselves with the power
knowledge gives. A popular Government without popular
information or the means of obtaining it, is but a
prologue to a force or tragedy or perhaps both‖. The
citizens' right to know the facts, the true facts, about the
administration of the country is thus one of the pillars of a
democratic State…‖
(Emphasis supplied)
The above-mentioned extract accurately and succinctly summarises the position
of law and has been consistently followed by this Court.84 The right to freedom of
expression under Article 19(1)(a) casts both positive and negative obligations on
the State. It restricts the State from interfering with the right of citizens to receive
information and its freely disseminated. It also imposes an obligation on the State
83 (1981) Supp SCC 87
84 People's Union for Civil Liberties v Union of India (2003) 4 SCC 399; Thalappalam Service Cooperative
Bank Limited v State of Kerala (2013) 16 SCC 82 and Reserve Bank of India v Jayantilal Mistry (2016) 3
SCC 525.
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to provide citizens with information about the public functioning of government to
ensure accountability and create an informed electorate.
83. Parliament enacted the RTI Act in pursuance of the State‘s positive
obligation to provide citizens with information about the functioning of
government. It is a statute to operationalise the right of citizens to access
information, otherwise only held by the government, under the ‗right to know‘ or
‗right to information‘ as protected by Article 19(1)(a). In requesting for information
under the provisions of the RTI Act, a citizen engages certain statutory rights and
duties under its provisions, but simultaneously also engages the ‗right to know‘
under the Article 19(1)(a) of the Constitution. The ‗right to know‘ is not absolute.
The RTI Act envisages certain restrictions on the ‗right to know‘ in the form of
exemptions enumerated in clause (1) to Section 8. Crucially, restrictions on the
disclosure of information under the RTI Act also constitute restrictions on the
information applicant‘s ‗right to know‘ which is protected under Article 19(1)(a) of
the Constitution. The constitutional permissibility of the statutory restrictions on
disclosure contained within the RTI Act is not in challenge before this Court. But
it is trite to state that any restrictions on the disclosure of information would
necessarily need to comport with the existing law on the protection of the ‗right to
know‘ as a facet of the freedom of expression. In the decision in Thalappalam
Service Cooperative Bank Limited v State of Kerala85 Justice Radhakrishnan,
speaking for a two judge Bench of this Court, noted:
―56. The Right to Information Act, 2005 is an Act which
provides for setting up the practical regime of right to
information for citizens to secure access to information under
the control of public authorities in order to promote
85 (2013) 16 SCC 82
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transparency and accountability in the working of every public
authority. The Preamble of the Act also states that the
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their
instrumentalities accountable to the governed. Citizens have,
however, the right to secure access to information of only
those matters which are ―under the control of public
authorities‖, the purpose is to hold ―the Government and its
instrumentalities‖ accountable to the governed.
Consequently, though right to get information is a
fundamental right guaranteed under Article 19(1)(a) of the
Constitution, limits are being prescribed under the Act
itself, which are reasonable restrictions within the
meaning of Article 19(2) of the Constitution of India.‖
(Emphasis supplied)
The court expressly acknowledged that the RTI Act was enacted to fulfil the
positive content of the right to know that existed under Article 19(1)(a). Further,
restrictions on the disclosure of information under the RTI Act constitute
restrictions on the ‗right to know‘ as a facet of Article 19(1)(a).
84. Clause (j) of sub section (1) of Section 8 uses the phrases ―personal
information‖ and ―unwarranted invasion of the privacy of the individual‖. In
interpreting the harm to be caused in disclosing personal information, this Court
must be cognisant that the privacy of the individual is the subject of constitutional
protection. In K S Puttaswamy v Union of India86 a nine judge bench of this
Court unanimously held that there exists a constitutional right to privacy located
within Part III of the Constitution. Justice D Y Chandrachud, speaking for a
plurality of four judges, held:
―250. … The nine primary types of privacy are, according to
the above depiction:
(i) bodily privacy which reflects the privacy of the physical
body. Implicit in this is the negative freedom of being able to
86 (2017) 10 SCC 1
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prevent others from violating one's body or from restraining
the freedom of bodily movement;
(ii) spatial privacy which is reflected in the privacy of a private
space through which access of others can be restricted to the
space; intimate relations and family life are an apt illustration
of spatial privacy;
…
(ix) informational privacy which reflects an interest in
preventing information about the self from being
disseminated and controlling the extent of access to
information.
…
320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and personal
liberty in Article 21 of the Constitution. Elements of privacy
also arise in varying contexts from the other facets of freedom
and dignity recognised and guaranteed by the fundamental
rights contained in Part III.
…
323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy
also connotes a right to be left alone. Privacy safeguards
individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises
the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an essential
facet of the dignity of the human being.
…
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life
and personal liberty under Article 21, privacy is not an
absolute right. A law which encroaches upon privacy will
have to withstand the touchstone of permissible
restrictions on fundamental rights. In the context of Article
21 an invasion of privacy must be justified on the basis of a
law which stipulates a procedure which is fair, just and
reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21.
An invasion of life or personal liberty must meet the
threefold requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a legitimate
State aim; and (iii) proportionality which ensures a
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rational nexus between the objects and the means
adopted to achieve them.
326. Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take all
necessary measures to protect the privacy of the individual.
327. Decisions rendered by this Court subsequent to
Kharak Singh upholding the right to privacy would be
read subject to the above principles.‖
(Emphasis supplied)
Justice R F Nariman in his separate concurring opinion made the following
observations:
―521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some
invasion by the State of a person's rights relatable to his
physical body, such as the right to move freely;
• Informational privacy which does not deal with a
person's body but deals with a person's mind, and
therefore recognises that an individual may have control
over the dissemination of material that is personal to
him. Unauthorised use of such information may,
therefore lead to infringement of this right; and
• The privacy of choice, which protects an individual's
autonomy over fundamental personal choices….
…
536. This reference is answered by stating that the
inalienable fundamental right to privacy resides in Article
21 and other fundamental freedoms contained in Part III
of the Constitution of India. M.P. Sharma [M.P. Sharma v.
Satish Chandra, AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954
SCR 1077] and the majority in Kharak Singh [Kharak Singh v.
State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 :
(1964) 1 SCR 332] , to the extent that they indicate to the
contrary, stand overruled. The later judgments of this Court
recognising privacy as a fundamental right do not need to be
revisited.
(Emphasis supplied)
85. The right to privacy is a constitutional right emanating from the right to life
and personal liberty in Article 21 of the Constitution and from the facets of
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freedom and dignity embodied in Part III of the Constitution. Any restriction on
the right to privacy by the State must be provided for by law, pursue a legitimate
aim of the State and satisfy the test of proportionality. The requirement of
proportionality is satisfied when the nature and extent of the abridgement of the
right is proportionate to the legitimate aim being pursued by the State. The
constitutional protection of privacy encompasses not merely personal intimacies
but also extends to decisional and informational autonomy. An individual has a
constitutionally protected right to control the dissemination of personal
information. The unauthorised use of information abridges a citizen‘s right to
privacy.
86. The information disclosed under the RTI Act may include personal
information relating to individuals. The RTI Act does not contain any restrictions
on the end-use of the information disclosed under its provisions. The information
disclosed by an Information Officer of the State pursuant to a right to information
application may subsequently be widely disseminated. Clause (j) of sub section
(1) of Section 8 provides that, in certain situations, even personal information of
an individual may be disclosed under the RTI Act. Where the RTI Act
contemplates the disclosure of ―personal information‖, the right to privacy of the
individual is engaged. The Act recognise that the absolute or unwarranted
disclosure of an individual‘s personal information under the RTI Act would
constitute an ―unwarranted invasion of the right to privacy‖ under the statutory
provisions of the RTI Act and also abridge the individual‘s constitutional right to
privacy. However, the RTI Act has various checks and balances to guard against
the unadulterated disclosure of personal information under the RTI Act.
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87. The constitutional validity of the RTI Act as a measure abridging the right
to privacy is not in question before this Court. But it is trite to say that the RTI Act
satisfies the test of legality (by virtue of being a legislation) and also pursues a
legitimate state aim of ensuring, transparency and accountability of government
and an informed electorate. By requiring the Information Officer to balance the
public interest in disclosure against the privacy harm caused, clause (j) creates a
legislatively mandated measure of proportionality to ensure that the harm to the
individual‘s right to privacy is not disproportionate to the aim of securing
transparency and accountability.
A balancing of interests
88. The RTI Act is a legislative enactment which contains a finely tuned
balancing of interests between the privacy right of individuals whose information
may be disclosed and the broader public interest in ensuring transparency,
accountability and an informed electorate. Both these interests have significant
implications as they engage constitutional rights under Part III. The overarching
scheme of the RTI Act, and in particular Sections 3, 4 and 7 constitutes a
mandate to fulfil the positive content of the ‗right to information‘ as a facet of
Article 19(1)(a) of the Constitution. The privacy interest protected by clause (j) to
sub section (1) of Section 8 engages the principle of informational privacy as a
facet of the constitutional privacy as recognised by this Court in K S
Puttaswamy. Neither the ‗right to information‘ as a facet of Article 19(1)(a) nor
the right to informational privacy as a facet to the right to privacy are absolute.
The rights under Article 19(1)(a) may be restricted on the grounds enumerated in
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clause (2) of Article 19. The right to privacy and its numerous facets may be
permissibly restricted where the abridgement is provided by law, pursues a
legitimate State objective and complies with the principle of proportionality.
89. Clause (j) of sub section (1) of Section 8 requires the Information Officer to
first determine whether the information sought falls within the meaning of
―personal information‖. Where the information sought falls within the scope of
―personal information‖ and has ―no relationship to any public activity or interest‖
the information is exempt from disclosure under the RTI Act. However, where
there exists a ‗public interest‘ in the disclosure of the information sought, the test
to be applied by the Information Officer is different. The Information Officer must
evaluate whether the ―larger public interest‖ justifies the disclosure of the
information notwithstanding the fact that the information is ―personal information‖.
In doing so, the Information Officer must balance the privacy interest of the
individual whose personal information will be disclosed with the right to
information of the public to know the information sought. The substantive content
of the terms ―personal information‖ and ―public interest‖ must be informed by the
constitutional standards applicable to the ‗right to know‘ and the ‗right to privacy‘
as disclosure and non-disclosure under the RTI Act directly implicate these
constitutional rights. In striking a balance within the framework of the RTI Act, the
Information Officer must be cognisant of the substantive contents of these rights
and the extent to which they can be restricted within our constitutional scheme. It
is also crucial for the standard of proportionality to be applied to ensure that
neither right is restricted to a greater extent than necessary to fulfil the legitimate
PART H
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interest of the countervailing interest in question. It is now necessary to examine
the content of ―personal information‖ and ―public interest‖.
Defining Personal Information
90. To understand the scope of information which is protected from disclosure
under the RTI Act, it is of relevance to identify the nature of information which
may be regarded as ―personal information‖. The RTI Act does not put forth a
definition of the term ―personal information‖. However, ―personal information‖ has
been defined under other statutory frameworks. These definitions obviously do
not bind the interpretation of the RTI Act but are useful sources of guidance in
understanding the amplitude of the expression. We must of course read them
with a caveat because the context of usage is not the same.
Section 2(i) of the Information Technology (Reasonable Security Practices
And Procedures And Sensitive Personal Data Or Information) Rules, 2011
defines the term ―personal information‖ in the following terms:
―Personal information means any information that relates to a
natural person, which, either directly or indirectly, in
combination with other information available or likely to be
available with a body corporate, is capable of identifying such
person.‖
Thus, any information which is capable of identifying a natural person is
classified as personal information.
91. Article 4(1) of the EU General Data Protection Regulation (GDPR)
defines personal data in similar terms:
―Personal data‘ means any information relating to an
identified or identifiable natural person (‗data subject‘); an
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identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier
such as a name, an identification number, location data, an
online identifier or to one or more factors specific to the
physical, physiological, genetic, mental, economic, cultural or
social identity of that natural person.‖
The data protection regime in the European Union regards information such as
the name and surname, home address, location data, data held by a hospital or
doctor and identification card number of an individual as personal data.87 Courts
from the jurisdiction have interpreted the term ―personal data‖ broadly to even
include information relating to the professional life of an individual.
In Worten v Autoridade para as Condições de Trabalho88, the European Court
of Justice held the work timings of an employee constitute personal data:
―19. In that respect, it suffices to note that, as maintained by
all of the interested parties who submitted written
observations, the data contained in a record of working time
such as that at issue in the main proceedings, which concern,
in relation to each worker, the daily work periods and rest
periods, constitute personal data within the meaning of
Article 2(a) of Directive 95/46, because they represent
‗information relating to an identified or identifiable natural
person‖
(Emphasis supplied)
In Rechnungshof v Österreichischer Rundfunk,
89 the European Court of
Justice held that details of professional income received by employees from an
organisation subject to regulation by the Austrian Court of Audit amounts to
―personal data‖. It was held:
―It should be noted, to begin with, that the data at issue in the
main proceedings, which relate both to the monies paid by
87 What is personal data?, Official Website of the European Union https://ec.europa.eu/info/law/law-topic/dataprotection/reform/what-personal-data_en
88 C-342/12 dated 30 May 2013
89 Joined cases (C-465/00), (C-138/01) and (C-139/01) dated 20 May 2003
PART H
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certain bodies and the recipients, constitute personal data
within the meaning of Article 2(a) of Directive 95/46, being
information relating to an identified or identifiable natural
person. Their recording and use by the body concerned,
and their transmission to the Rechnungshof and
inclusion by the latter in a report intended to be
communicated to various political institutions and widely
diffused, constitute processing of personal data within
the meaning of Article 2(b) of the directive.‖
(Emphasis supplied)
92. The Protection of Personal Information Act, 2013 of South Africa
contains an illustrative and comprehensive definition of personal information:
‗‗personal information‘‘ means information relating to an
identifiable, living, natural person, and where it is applicable,
an identifiable, existing juristic person, including, but not
limited to—
(a) information relating to the race, gender, sex, pregnancy,
marital status, national, ethnic or social origin, colour, sexual
orientation, age, physical or mental health, well-being,
disability, religion, conscience, belief, culture, language and
birth of the person;
(b) information relating to the education or the medical,
financial, criminal or employment history of the person;
(c) any identifying number, symbol, e-mail address, physical
address, telephone number, location information, online
identifier or other particular assignment to the person;
(d) the biometric information of the person;
(e) the personal opinions, views or preferences of the person;
(f) correspondence sent by the person that is implicitly or
explicitly of a private or confidential nature or further
correspondence that would reveal the contents of the original
correspondence;
(g) the views or opinions of another individual about the
person; and
(h) the name of the person if it appears with other personal
information relating to the person or if the disclosure of the
name itself would reveal information about the person.‖
Protection from disclosure of personal information has been recognised as a
facet of the right to privacy in South Africa. In National Media Limited v
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Jooste90, it was alleged by the respondent that intimate details of her personal
life had been published by the appellant publishers without her consent. The
information published included details of her child as well as her relationship with
the father of the child. Justice Harms elucidated the right to privacy in the
following terms:
―A right to privacy encompasses the competence to
determine the destiny of private facts. The individual
concerned is entitled to dictate the ambit of disclosure e g to a
circle of friends, a professional adviser or the public. He may
prescribe the purpose and method the disclosure. Similarly, I
am of the view that a person is entitled to decide when and
under what conditions private facts may be made public…‖
(Emphasis supplied)
In NM v Smith91
, the names of three women who were HIV positive were
disclosed in a biography. It was alleged by the women that their names had been
disclosed without any prior consent and their rights to privacy, dignity and
psychological integrity had been violated by the disclosure. The opinion of four
judges in Puttaswamy noted the two conceptions of privacy that emerged from
the judgement of the Constitutional Court of South Africa which recognised the
value of privacy in medical information:
―According to the decision in Smith case , there are two
interrelated reasons for the constitutional protection of
privacy—one flows from the ―constitutional conception of what
it means to be a human being‖ and the second from the
―constitutional conception of the State‖:
―An implicit part of [the first] aspect of privacy is the right to
choose what personal information of ours is released into the
public space. The more intimate that information, the more
important it is in fostering privacy, dignity and autonomy
that an individual makes the primary decision whether to
release the information. That decision should not be
90 1996 (3) SA 262 (SCA)
91 [2007] ZACC 6
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made by others. This aspect of the right to privacy must
be respected by all of us, not only the state.
… Secondly, we value privacy as a necessary part of a
democratic society and as a constraint on the power of the
State… In authoritarian societies, the state generally does not
afford such protection. People and homes are often routinely
searched and the possibility of a private space from which the
state can be excluded is often denied. The consequence is a
denial of liberty and human dignity. In democratic societies,
this is impermissible.‖
….
On the interrelationship between the right to privacy, liberty
and dignity, the Court observed that:
―The right to privacy recognises the importance of protecting
the sphere of our personal daily lives from the public. In so
doing, it highlights the interrelationship between privacy,
liberty and dignity as the key constitutional rights which
construct our understanding of what it means to be a
human being. All these rights are therefore
interdependent and mutually reinforcing. We value privacy
for this reason at least—that the constitutional conception of
being a human being asserts and seeks to foster the
possibility of human beings choosing how to live their lives
within the overall framework of a broader community.‖
(Emphasis supplied)
93. In Australian Broadcasting Corporation v Lenah Game Meats92, the
Australian High Court heard an appeal with regard to an application for an
interlocutory injunction to restrain the broadcasting of a film depicting the
activities of the Respondent. The Respondent was a processor and supplier of
game meat and sold possum meat for export. Unknown persons had entered the
respondent's premises and installed hidden cameras. The possum-killing
operations were filmed without the knowledge or consent of the respondent. It
was claimed that the film was made surreptitiously and unlawfully and supplied to
92 [2001] HCA 63
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the appellant with the intention that the appellant would broadcast the film. In
determining the Respondent Corporation‘s claim to privacy, Chief Justice
Gleeson made the following observations:
―42. There is no bright line which can be drawn between what
is private and what is not. Use of the term "public" is often a
convenient method of contrast, but there is a large area in
between what is necessarily public and what is necessarily
private. An activity is not private simply because it is not done
in public. It does not suffice to make an act private that,
because it occurs on private property, it has such measure of
protection from the public gaze as the characteristics of the
property, the nature of the activity, the locality, and the
disposition of the property owner combine to afford. Certain
kinds of information about a person, such as information
relating to health, personal relationships, or finances,
may be easy to identify as private; as may certain kinds
of activity, which a reasonable person, applying
contemporary standards of morals and behaviour, would
understand to be meant to be unobserved. The
requirement that disclosure or observation of information
or conduct would be highly offensive to a reasonable
person of ordinary sensibilities is in many circumstances
a useful practical test of what is private.‖
(Emphasis supplied)
94. In Campbell v MGN Limited93
, the claimant was a supermodel who had
instituted proceedings against a publication called the ‗Mirror‘ for publishing
details of her efforts to overcome her drug addiction along with pictures of her
attending meetings of the ‗Narcotics Anonymous‘. The appeal was before the
House of Lords. In her opinion, Baroness Hale noted:
―145. It has always been accepted that information about a
person's health and treatment for ill-health is both private and
confidential. This stems not only from the confidentiality of the
93 [2003] 1 All ER 224
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doctor-patient relationship but from the nature of the
information itself…‖
….
147. I start, therefore, from the fact - indeed, it is common
ground - that all of the information about Miss Campbell's
addiction and attendance at NA which was revealed in
the Daily Mirror article was both private and confidential,
because it related to an important aspect of Miss
Campbell's physical and mental health and the treatment
she was receiving for it. It had also been received from
an insider in breach of confidence. That simple fact has
been obscured by the concession properly made on her
behalf that the newspaper's countervailing freedom of
expression did serve to justify the publication of some of
this information. But the starting point must be that it was all
private and its publication required specific justification.
(Emphasis supplied)
95. Courts in India have interpreted the scope of information which constitutes
―personal information‖ under the RTI Act. In Girish Ramchandra Deshpande v
Central Information Commissioner94, the petitioner sought copies of memos,
show-cause notices and punishments awarded to the third respondent by his
employer along with details of movable and immovable properties, investments,
lending and borrowing from banks and other financial institutions. The petitioner
also sought the details of gifts stated to have been accepted by the third
respondent. A large portion of the information sought was located in the income
tax returns of the third respondent. A two judge bench of the Court classified the
information sought as ―personal information‖ and held:
―12. … The performance of an employee/officer in an
organisation is primarily a matter between the employee and
the employer and normally those aspects are governed by the
service rules which fall under the expression ―personal
information‖, the disclosure of which has no relationship to
any public activity or public interest. On the other hand, the
disclosure of which would cause unwarranted invasion of
94 (2013) 1 SCC 212
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privacy of that individual. Of course, in a given case, if the
Central Public Information Officer or the State Public
Information Officer or the appellate authority is satisfied that
the larger public interest justifies the disclosure of such
information, appropriate orders could be passed but the
petitioner cannot claim those details as a matter of right.
13. The details disclosed by a person in his income tax
returns are ―personal information‖ which stand exempted from
disclosure under clause (j) of Section 8(1) of the RTI Act,
unless involves a larger public interest and the Central Public
Information Officer or the State Public Information Officer or
the appellate authority is satisfied that the larger public
interest justifies the disclosure of such information.‖
Thus, even in cases where information may be classified as ―personal
information‖, the CPIO is required to undertake an enquiry on a case to case
basis to determine if the disclosure of information is justified.
96. In R K Jain v Union of India95
, the appellant‘s application to the Chief
Information Commissioner seeking copies of note-sheets and files relating to a
member of CESTAT, was rejected. The two-judge bench of this Court placed
reliance on the holding in Girish Deshpande and rejected the appellant‘s claim
for inspection of documents relating to the Annual Confidential Reports of the
member of CESTAT, including documents relating to adverse entries in the
Annual Confidential Reports and the ―follow-up action‖ taken. In Canara Bank v
C S Shyam96, the respondent was employed by the appellant bank as clerical
staff and had asked for information relating to the transfer and posting of other
clerical staff employed by the bank. This information sought included personal
details such as the date of joining, designation of employee, details of promotion
95 (2013) 14 SCC 794
96 (2018) 11 SCC 426
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earned, date of joining to the branch. Speaking for a two-judge Bench of this
Court, Justice A M Sapre considered the holding in Girish Deshpande and held
―14. In our considered opinion, the aforementioned principle
of law applies to the facts of this case on all force. It is for the
reasons that, firstly, the information sought by Respondent 1
of individual employees working in the Bank was personal in
nature; secondly, it was exempted from being disclosed under
Section 8(1)(j) of the Act and lastly, neither Respondent 1
disclosed any public interest much less larger public interest
involved in seeking such information of the individual
employee nor was any finding recorded by the Central
Information Commission [C.S. Shyam v. Canara Bank, 2007
SCC OnLine CIC 626] and the High Court [Canara
Bank v. CIC, 2007 SCC OnLine Ker 659] as to the
involvement of any larger public interest in supplying such
information to Respondent 1.‖
97. In Subhash Chandra Agarwal v Registrar, Supreme Court of India97
,
the appellant had filed an application under the RTI Act seeking information
relating to the details of the medical facilities availed by the Judges of the
Supreme Court and their family members in the preceding three years, including
information relating to expenses on private treatment in India or abroad. The
Court held that disclosure of information regarding medical facilities availed by
judges amounts to an invasion of privacy:
―11. The information sought by the appellant includes the
details of the medical facilities availed by the individual
Judges. The same being personal information, we are of the
view that providing such information would undoubtedly
amount to invasion of the privacy. We have also taken note of
the fact that it was conceded before the learned Single Judge
by the learned counsel for the appellant herein that no larger
public interest is involved in seeking the details of the medical
facilities availed by the individual Judges. It may also be
mentioned that the total expenditure incurred for the medical
treatment of the Judges for the period in question was already
furnished by the CPIO by his letter dated 30-8-2011 and it is
97 (2018) 11 SCC 634
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not the case of the appellant that the said expenditure is
excessive or exorbitant. That being so, we are unable to
understand how the public interest requires disclosure of the
details of the medical facilities availed by the individual
Judges. In the absence of any such larger public interest, no
direction whatsoever can be issued under Section 19(8)(a)(iv)
of the Act by the appellate authorities. Therefore on that
ground also the order passed by the CIC dated 1-2-2012 is
unsustainable and the same has rightly been set aside by the
learned Single Judge.‖
Thus, it emerges from the discussion that certain category of information such as
medical information, details of personal relations, employee records and
professional income can be classified as personal information. The question of
whether such information must be disclosed has to be determined by the CPIO
on a case to case basis, depending on the public interest demonstrated in favour
of disclosure.
Public Interest
98. The right to information and the need for transparency in the case of
elected officials is grounded in the democratic need to facilitate better decision
making by the public. Transparency and the right to information directly
contribute to the ability of citizens to monitor and make more informed decisions
with respect to the conduct of elected officials. Where the misconduct of an
elected representative is exposed to the public, citizens can choose not to vote
for the person at the next poll. In this manner, the democratic process coupled
with the right to information facilitates better administration and provides powerful
incentives for good public decision making. In the case of judges, citizens do not
possess a direct agency relationship. Therefore, the ‗public interest‘ in disclosing
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information in regard to a judge cannot be sourced on the need for ensuring
democratic accountability through better public decision making but must be
located elsewhere.
99. In common law countries, public interest has always been understood to
operate as an interest independent to that of the State. Public interest operates
equally against the State as it does against non-State actors. This is of
significance in the context of the RTI Act as the right to information seeks to bring
about disclosure of information previously held exclusively by the State. Public
interest therefore operates as a standalone viewpoint independent of whether the
interest of the State favours disclosure or non-disclosure. At its core, the
objective test for ‗public interest‘ is far broader than democratic decision making
and takes into consideration both shared conceptions of the common good in
society at any given point and yet recognises that such conceptions are always
the product of contestation and disagreement, necessitating a robust set of
viewpoints to facilitate the self-fulfilment of the individual and the search for truth.
100. In Secy., Ministry of Information & Broadcasting, Govt. of India v
Cricket Assn. of Bengal98 Justice P B Sawant speaking for a three judge bench
of this Court observed:
―43. We may now summarise the law on the freedom of
speech and expression under Article 19(1)(a) as restricted by
Article 19(2). The freedom of speech and expression includes
right to acquire information and to disseminate it. Freedom of
speech and expression is necessary, for self-expression
which is an important means of free conscience and selffulfilment. It enables people to contribute to debates on social
and moral issues. It is the best way to find a truest model of
anything, since it is only through it that the widest possible
98 (1995) 2 SCC 161
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range of ideas can circulate. It is the only vehicle of political
discourse so essential to democracy. Equally important is the
role it plays in facilitating artistic and scholarly endeavours of
all sorts. The right to communicate, therefore, includes right
to communicate through any media that is available whether
print or electronic or audio-visual such as advertisement,
movie, article, speech etc. That is why freedom of speech
and expression includes freedom of the press. The freedom
of the press in terms includes right to circulate and also to
determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one's
opinion without interference to as large a population in the
country, as well as abroad, as is possible to reach.‖
The right to information is not solely premised on improving the quality of
democratic decision making but also finds its roots in other bases of freedom of
expression, including the self-fulfilment of the individual, the introduction of
competing views into the ‗marketplace of ideas‘ and the autonomy and dignity of
the individual. Limiting the term ‗public interest‘ to information that allows
individuals to make better public choices with respect to public officials fails to
take into consideration the powerful benefits that the dissemination of information
held by public authorities may have on the development of discourse, private
decision making and the nourishment of the individual.
101. We have already observed that the accountability of the judiciary to the
citizenry is inherent in the office of the judge. The administration of justice in our
country is a vast, crucial and expensive endeavour that impacts millions of
citizens on a daily basis. The contention that merely because a judge cannot be
elected out of office, the conduct of judges and their general administration is not
a matter of great public interest cannot be countenanced. The disclosure of
information about the conduct of judges and their administration is necessary to
ensure that the broader societal goals in the administration of justice are
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achieved. The disclosure of information can highlight areas where robust
mechanisms of oversight and accountability are required. Lastly, the disclosure
of information with respect to the judiciary also facilitates the self-fulfilment of the
freedom of expression of individuals engaged in reporting, critiquing and
discussing the activities of the court. The freedom of the press in exercising its
role as a ‗public watchdog‘ is also facilitated by the disclosure of information.
102. The factors that weigh in favour of disclosure in the ‗public interest‘ are
specific to each unique case. However, over the years several authorities have
given shape to the concept of public interest and provided indicative factors that
weigh in favour of the disclosure of information. In an article titled ―Freedom of
information and the public interest: the Commonwealth experience‖
99 the
authors lay down several factors that, when found to exist in any given case,
would weigh in favour of disclosure. The authors state:
―It is generally accepted that the public interest is not
synonymous with what is of interest to the public, in the sense
of satisfying public curiosity about some matter. For example,
the UK Information Tribunal has drawn a distinction between
‗matters which were in the interest of the public to know and
matters which were merely interesting to the public (ie which
the public would like to know about, and which sell
newspapers, but … are not relevant)‘
Factors identified as favouring disclosure include the public
interest in: contributing to a debate on a matter of public
importance; accountability of officials; openness in the
expenditure of public funds, the performance by a public
authority of its regulatory functions, the handling of
complaints by public authorities; exposure of wrongdoing,
inefficiency or unfairness; individuals being able to refute
allegations made against them; enhancements of scrutiny of
decision-making; and protecting against danger to public
health or safety.‖
99 Moira Paterson and Maeve McDonagh, Freedom of information and the public interest: the Commonwealth
experience, Oxford University Commonwealth Law Journal, 17:2, 189-210 pp. 201.
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The factors identified fulfil a significantly broader gamut of goals than merely
holding democratically elected officials accountable. The contribution made by
the disclosure of information to debate on matters of public importance is in itself
a factor in favour of disclosure. Where the disclosure of documents casts a light
on the adequate performance of public authorities and any mala fide actions or
wrongdoings by public figures, facilitating the broader goal of accountability, there
exists a public interest in favour of disclosure.
103. In Campbell v MGN Limited100 the House of Lords was called upon to
balance the freedom of expression with the right to privacy. The claimant was a
model who had been photographed leaving a drug rehabilitation meeting. The
photographs were published, and the claimant claimed compensation for a
breach of confidentiality. While the claimant admitted that there existed a public
interest in the photographs of her attending the drug rehabilitation therapy, in
evaluating the right of the defendant to publish the information Baroness Hale
made the following observations:
―148. What was the nature of the freedom of expression
which was being asserted on the other side? There are
undoubtedly different types of speech, just as there are
different types of private information, some of which are more
deserving of protection in a democratic society than others.
Top of the list is political speech. The free exchange of
information and ideas on matters relevant to the
organisation of the economic, social and political life of
the country is crucial to any democracy. Without this, it
can scarcely be called a democracy at all. This includes
revealing information about public figures, especially those in
elective office, which would otherwise be private but is
relevant to their participation in public life. Intellectual and
educational speech and expression are also important in
a democracy, not least because they enable the
development of individuals' potential to play a full part in
100 [2004] UKHL 22
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society and in our democratic life. Artistic speech and
expression is important for similar reasons, in fostering
both individual originality and creativity and the freethinking and dynamic society we so much value. No
doubt there are other kinds of speech and expression for
which similar claims can be made.‖
(Emphasis supplied)
As a facet of the freedom of expression, the ‗public interest‘ element of the right
to information has several jurisprudential bases. The public interest in disclosure
extends to information which informs political debate and the organisation of
―economic, social and political life‖. There also exists public interest in information
which is ―intellectual or educational‖ and furthers the development of the
individual. Lastly, public interest would also cover information which is of artistic
relevance or fosters and nourishes the individual.
104. The opinion of Baroness Hale indicates a priority of interests in the
determination of whether speech is in the ‗public interest‘ and is deserving of
protection. However, this Court should caution against such an approach. The
freedom of expression protects a broad range of ideas, including those that
‗offend, shock and disturb‘. In deciding whether information should be disclosed
in the public interest, it is not for the Court to sit in judgement of society and
make a determination on whether society would be ‗better off‘ or ‗worse off‘ if the
information is disclosed. In the prescient words of Justice Tugendhat: ―It is not for
the judge to express personal views on such matters, still less to impose
whatever personal views he might have.‖101 It is well established that ‗public
interest‘ does not amount to what the public may find interesting. However,
where the information sought to be disclosed falls within the various fields
101 Terry (previously ‗LNS‘) v Persons Unknown [2010] EWHC 119
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discussed above, including the promotion of public debate, intellectual or
educational information or artistic information, the information possesses a
‗public interest‘ connotation in favour of disclosure.
105. Section 11B of the Australian Freedom of Information Act 1982 provides a
list of indicative factors that may be used by courts to determine whether a
document should be disclosed in the ―public interest‖. Section 11B is as under:
―11B Public interest exemptions – factors
(1) This section applies for the purpose of working out
whether access to a conditionally exempt document would,
on balance, be contrary to the public interest under
subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public
interest include whether access to the document would do
any of the following:
(a) promote the objects of this Act (including all the matters
set out in sections 3 and 3A);
(b) inform public debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal
information.‖
The Australian statute notes that ―public interest‖ must be interpreted as the
factors and circumstances that promote the objectives of the legislation. In
addition to these objectives, crucial factors weighing in favour of public interest
are the promotion of public debate and matters relating to public expenditure.
106. The understanding that, in interpreting the phrase ‗public interest‘ courts
should pay heed to the objects of the legislation has been adopted in our country
as well. In Bihar Public Service Commission v Saiyed Hussain Abbas
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Rizwi102, Justice Swatanter Kumar speaking for a two judge bench of this Court
made the following observations:
―22. The expression ―public interest‖ has to be
understood in its true connotation so as to give complete
meaning to the relevant provisions of the Act. The
expression ―public interest‖ must be viewed in its strict sense
with all its exceptions so as to justify denial of a statutory
exemption in terms of the Act. In its common parlance, the
expression ―public interest‖, like ―public purpose‖, is not
capable of any precise definition. It does not have a rigid
meaning, is elastic and takes its colour from the statute
in which it occurs, the concept varying with time and
state of society and its needs (State of Bihar v. Kameshwar
Singh [AIR 1952 SC 252]). It also means the general welfare
of the public that warrants recognition and protection;
something in which the public as a whole has a stake [Black's
Law Dictionary (8th Edn.)].‖
(Emphasis supplied)
The Court noted that the phrase ‗public interest‘ must be understood within the
context of the enactment the phrase is used in. In the present case, the use of
the phrase ‗public interest‘ must be understood in light of the object and purpose
of the RTI Act. The Court in Bihar Public Service Commission observed that
the existence of certain exemptions from disclosure under clause (1) of Section 8
would lead to a narrow reading of the phrase ―public interest‖. This is not the
correct approach. As noted previously in this judgement, the overarching principle
of the RTI Act is to operationalise the disclosure of information held by public
authorities in furtherance of the right to information under Article 19(1)(a) of the
Constitution. Merely because the provisions of the RTI Act contain certain
restrictions on the disclosure of information cannot lead to a conclusion that the
phrase ―public interest‖ under the RTI Act must be construed narrowly. Rather,
under the scheme of clause (j) of clause (1) of Section 8, ―public interest‖ is the
102 (2012) 13 SCC 61
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measure of factors favouring the disclosure of information, which is subsequently
weighed against the factors of privacy which weight in favour of non-disclosure.
The existence of the balancing test creates a restriction on disclosure under the
RTI Act but does not affect the wide meaning independently accorded to ―public
interest‖ understood as emanating from the freedom of speech and expression.
107. Clause (j) of clause (1) of Section 8 requires the Information Officer to
weigh the ―public interest‖ in disclosure against the privacy harm. The disclosure
of different documents in different circumstances will give rise to unique ―public
interest‖ factors in favour of disclosure. However, a few broad principles may be
laid out as to how the phrase ―public interest‖ is to be understood. Where factors
fall within this interpretation ―public interest‖ so interpreted, they are factors that
weigh in favour of disclosure. The principles are as follows:
(i) Public interest is not limited to information which directly promotes
the democratic accountability of elected officials;
(ii) There exists public interest in the disclosure of information where
the information sought informs political debate, is educational or
intellectual or serves artistic purposes;
(iii) Where the information sought will promote public debate on political,
economic or social issues, there exists a public interest in
disclosure;
(iv) Judges and Information Officers should not pass a value judgement
on whether the speech in question furthers their own conception of
societal good or interest for it to satisfy the test of public interest;
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(v) As an indicative list, information concerning the accountability of
officials, public expenditure, the performance of public duties, the
handling of complaints, the existence of any wrongdoing by a public
official, inefficiency in public administration and unfairness in public
administration all possess public interest value, their relative
strength to be determined on a case by case basis;
(vi) Where the disclosure of information would promote the aims and
objectives of the RTI Act, there exists a ―public interest‖ in disclosing
such information; and
(vii) The object and purpose of the RTI Act is the fulfilment of the positive
obligation on the State to provide access to information under Article
19(1)(a) of the Constitution and the existence of the restrictions on
the disclosure of information does not restrict the meaning of ―public
interest‖ under the Act.
Balancing interests in disclosure with privacy interests
108. We have adverted to the substantive content of ―personal information‖ and
―public interest‖ as distinct factors to be considered by the Information Officer
when arriving at a determination under clause (j) of clause (1) of Section 8. In the
present case, the information sought by the respondent raises both
considerations of ―public interest‖ and ―personal information‖. The text of clause
(j) requires the Information Officer to make a determination whether the ―larger
public interest justifies the disclosure‖ of personal information sought. The
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Information Officer must conduct balancing or weighing of interests in making a
determination in favour of disclosure or non-disclosure. The Information Officer
must be cognisant that any determination under clause (j) of clause (1) of Section
8 implicates the right to information and the right to privacy as constitutional
rights. Reason forms the heart of the law and the decision of the Information
Officer must provide cogent and articulate reasons for the factors considered and
conclusions arrived at in balancing the two interests. In answering the third
referral question in its entirety, this Court would be remiss in not setting out the
analytical approach to be applied by the Information Officer in balancing the
interests in disclosure with the countervailing privacy interests. Justice S C
Agrawal speaking for a Constitution Bench of this Court in S N Mukherjee v
Union of India103 observed:
―9. The object underlying the rules of natural justice ―is to
prevent miscarriage of justice‖ and secure ―fair play in action‖.
As pointed out earlier the requirement about recording of
reasons for its decision by an administrative authority
exercising quasi-judicial functions achieves this object
by excluding chances of arbitrariness and ensuring a
degree of fairness in the process of decision-making.
Keeping in view the expanding horizon of the principles of
natural justice, we are of the opinion, that the requirement to
record reason can be regarded as one of the principles of
natural justice which govern exercise of power by
administrative authorities. The rules of natural justice are
not embodied rules.
(Emphasis supplied)
The requirement to record reasons is a principle of natural justice and a check
against the arbitrary exercise of power by judicial and quasi-judicial bodies. In
making a determination under clause (j) of clause (1) of Section 8 in a given
case, it would not be satisfactory if an Information Officer were merely to record
103 (1990) 4 SCC 495
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that the privacy interest outweighed the public interest. Something more is
required. By providing an analytical framework to address the two interests to be
weighed and requiring the Information Officer record detailed reasons within this
framework, the arbitrary exercise or discretion of the Information Officer is
guarded against.
109. In the prescient words of Lord Denning:
―…each man should be free to develop his own personality to
the full: and the only duties which should restrict this freedom
are those which are necessary to enable everyone else to do
the same."104
Neither the right to information nor the right to privacy are absolute rights under
the framework of the RTI Act. Where the right to information of an information
applicant in requesting information touches upon the right to privacy of the person
whose information is sought, the RTI Act calls upon the Information Officer to
weigh the two interests and determine which is stronger. In Thalappalam
Service Coop. Bank Ltd. v State of Kerala105 Justice K S P Radhakrishnan,
speaking for a two judge bench of this Court, noted:
―61. The right to information and right to privacy are,
therefore, not absolute rights, both the rights, one of which
falls under Article 19(1)(a) and the other under Article 21 of
the Constitution of India, can obviously be regulated,
restricted and curtailed in the larger public interest. Absolute
or uncontrolled individual rights do not and cannot exist
in any modern State. Citizens' right to get information is
statutorily recognised by the RTI Act, but at the same
time limitations are also provided in the Act itself, which
is discernible from the Preamble and other provisions of
the Act…. The citizens, in that event, can always claim a
104 Lord Denning, Freedom Under the Law (Hamlyn Lectures) 1968 (Sweet & Maxwell).
105 (2013) 16 SCC 82
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right to privacy, the right of a citizen to access information
should be respected, so also a citizen's right to privacy.‖
(Emphasis supplied)
110. In setting out the precise approach to be adopted by the Information
Officer in making a determination under clause (j) of clause (1) of Section 8 it is
worth adverting to the decision of Campbell v MGM Limited106 the facts of which
have already been discussed above. In that case, the House of Lords was called
upon to balance the privacy rights of the claimant, being photographed leaving a
‗Narcotics Anonymous‘ meeting, under Article 8 of the European Convention of
Human Rights107 and the right of the defendant to publish the information under
Article 10 of the ECHR which provides for the freedom of expression. Although
not a case with respect to the disclosure of documents, the House of Lords
makes several notable observations about balancing privacy and free speech
interests. Lord Nicholls observed:
―20. I should take this a little further on one point. Article 8(1)
recognises the need to respect private and family life.
Article 8(2) recognises there are occasions when intrusion
into private and family life may be justified. One of these is
where the intrusion is necessary for the protection of the
rights and freedoms of others. Article 10(1) recognises the
importance of freedom of expression. But article 10(2), like
article 8(2), recognises there are occasions when protection
of the rights of others may make it necessary for freedom of
expression to give way. When both these articles are
engaged a difficult question of proportionality may arise.
This question is distinct from the initial question of
whether the published information engaged article 8 at all
by being within the sphere of the complainant's private
or family life.‖
(Emphasis supplied)
106 [2004] UKHL 22
107 ―ECHR‖
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The first question of significance is whether the right to privacy of the person
whose information is sought is engaged. This approach was subsequently
applied by the Court of Appeal in HRH Prince of Wales v Associated
Newspapers Ltd108. The text of clause (j) of clause (1) of Section 8 also
articulates this threshold. For clause (j) to be engaged at the first instance, the
information sought must constitute ―personal information‖. This is an inquiry
independent to the question of how the privacy interest should be balanced with
the free speech interest.
111. Where the information sought is ―personal information‖ the court must next
balance the interest in disclosure or dissemination with the privacy interest at
stake. Baroness Hale in her opinion in Campbell stated:
―137. It should be emphasised that the ‗reasonable
expectation of privacy‘ is a threshold test which brings the
balancing exercise into play. It is not the end of the story.
Once the information is identified as ‗private‘ in this way, the
court must balance the claimant‘s interest in keeping the
information private against the countervailing interest of the
recipient in publishing it. Very often, it can be expected that
the countervailing rights of the recipient will prevail.
…
140. The application of the proportionality test is more
straightforward when only one Convention right is in play: the
question then is whether the private right claimed offers
sufficient justification for the degree of interference with the
fundamental right. It is much less straightforward when
two Convention rights are in play, and the proportionality
of interfering with one has to be balanced against the
proportionality of restricting the other. As each is a
fundamental right, there is evidently a ―pressing social
need‖ to protect it.
141. Both parties accepted the basic approach of the Court of
Appeal in In re S [2003] 3 WLR 1425, 1451-1452, at paras 54
to 60. This involves looking first at the comparative
importance of the actual rights being claimed in the
individual case; then at the justifications for interfering
108 [2006] EWHA Civ 1776
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with or restricting each of those rights; and applying the
proportionality test to each. The parties in this case differed
about whether the trial judge or the Court of Appeal had done
this, the appellant arguing that the Court of Appeal had
assumed primacy for the Article 10 right while the respondent
argued that the trial judge had assumed primacy for the
Article 8 right.
(Emphasis supplied)
112. Once the information sought has been identified as ―personal information‖
the Information Officer must identify the actual rights being claimed in the
individual case. In setting out the substantive content of ‗public interest‘ and
‗privacy‘ various facets of these concepts have been set out. In any given case,
the Information Officer must identify the precise interests weighing in favour of
‗public interest‘ disclosure, and those interests weighing in favour of ‗privacy‘ and
non-disclosure. The Information Officer must then examine the justifications for
restricting each right and whether they are countenanced under the scheme of
RTI Act and in law generally. The ground of confidentiality simpliciter is not a
ground to restrict the right to information under the RTI Act or Article 19(1)(a) of
the Constitution. Lastly, the Information Officer must employ the principle of
proportionality. As observed by Baroness Hale, both the right to privacy and the
right to information are legitimate aims. In applying the principle of proportionality,
the Information Officer must ensure that the abridgement of a right is not
disproportionate to the legitimate aim sought to be achieved by enforcing the
countervailing right.
113. Take the example of where an information applicant sought the disclosure
of how many leaves were taken by a public employee and the reasons for such
leave. The need to ensure accountability of public employees is of clear public
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interest in favour of disclosure. The reasons for the leave may also include
medical information with respect to the public employee, creating a clear privacy
interest in favour of non-disclosure. It is insufficient to state that the privacy
interest in medical records is extremely high and therefore the outcome should
be blanket non-disclosure. The principle of proportionality may necessitate that
the number of and reasons for the leaves be disclosed and the medical reasons
for the leave be omitted. This would ensure that the interest in accountability is
only abridged to the extent necessary to protect the legitimate aim of the privacy
of the public employee.
114. Having adverted to the analytical test to be applied by the Information
Officers in balancing the two interests, it is also worth setting out certain factors
that should not be considered in such a balancing. Section 11B of the Australian
Freedom of Information Act 1982 lays down certain ‗Irrelevant factors‘ that
should not be considered in determining whether to disclose information. Section
11B is as under:
―…Irrelevant factors
(4) The following factors must not be taken into account in
deciding whether access to the document would, on balance,
be contrary to the public interest:
(a) access to the document could result in embarrassment to
the Commonwealth Government, or cause a loss of
confidence in the Commonwealth Government;
(b) access to the document could result in any person
misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in
the agency to which the request for access to the document
was made;
(d) access to the document could result in confusion or
unnecessary debate.‖
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The factors set out above are not relevant or permissible restrictions on the right
to information and should not be considered in determining whether or not to
disclose information under the RTI Act. Clause (2) of Section 6 of the RTI Act
provides that an information applicant need not provide any reason as to why the
information is sought. It would not be open for an Information Officer to deny the
disclosure of information on the ground that the information would lead to
confusion, embarrassment or unnecessary debate in the public sphere. By
enumerating the grounds on which information may be exempted from the
general obligation to disclose, clause (1) of Section 8 negates the notion that
information may be withheld on the sole ground of confidentiality.
I Conclusion
115. The information sought by the respondent pertains to (1) the
correspondence and file notings relating to the elevation of three judges to the
Supreme Court, (2) information relating to the declaration of assets made by
judges pursuant to the 1997 resolution, and (3) the identity and nature of
disciplinary proceedings instituted against the lawyer and judge named in the
newspaper report. The third referral question requires this Court to determine
whether the disclosure of the information sought is exempt under clause (j) of
clause (1) of Section 8. In arriving at a determination on whether the information
sought is exempt under clause (j), it is necessary to (i) determine whether the
information sought is ―personal information‖ and engages the right to privacy, (ii)
identify, in the facts of the present case, the specific heads of public interest in
favour of disclosure and the specific privacy interests claimed, (iii) determine the
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justifications for restricting such interests and (iv) apply the principle of
proportionality to ensure that no right is abridged more than required to fulfil the
legitimate aim of the countervailing right. The process under Section 11 of the
RTI must be complied with where the information sought is ‗third party
information‘. The substantive content of the terms ‗personal information‘ and
‗public interest‘ have also been set out in the present judgement.
J Directions
116. The information sought in Civil Appeal No 2683 with respect to which
judges of the Supreme Court have declared their assets does not constitute the
―personal information‖ of the judges and does not engage the right to privacy.
The contents of the declaration of assets would fall within the meaning of
―personal information‖ and the test set out under clause (j) of clause (1) of
Section 8 would be applicable along with the procedure under Section 11 of the
RTI Act. In view of the above observations, Civil Appeal No. 2683 of 2010 is
dismissed and the judgement of the Delhi High Court dated 12 January 2010 in
LPA No 501 of 2009 is upheld.
117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO,
Supreme Court of India to be examined and a determination arrived at, after
applying the principles set out in the present judgement. The information sought
in these appeals falls within the meaning of ‗third party information‘ and the
procedure under Section 11 must be complied with in arriving at a determination.
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Brother Justice Sanjiv Khanna has observed that:
―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‖
I wish to add a few thoughts of my own on the subject. The collegium owes its
birth to judicial interpretation. In significant respects, the collegium is a victim of
its own birth – pangs. Bereft of information pertaining to both the criteria
governing the selection and appointment of judges to the higher judiciary and the
application of those criteria in individual cases, citizens have engaged the
constitutional right to information, facilitated by the RTI Act.
If the content of the right and the enforcement of the statute are to possess a
meaningful dimension in their application to the judiciary – as it must, certain
steps are necessary. Foremost among them is that the basis for the selection and
appointment of judges to the higher judiciary must be defined and placed in the
public realm. This is the procedure which is followed in making appointments but
also in terms of the substantive norms which are adopted while making judicial
appointments. There can be no denying the fact that there is a vital element of
public interest in knowing about the norms which are taken into consideration in
selecting candidates for higher judicial officer and making judicial appointments.
Knowledge is a powerful instrument which secures consistency in application and
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generates the confidence that is essential to the sanctity of the process of judicial
appointments. This is essentially because the collegium system postulates that
proposals for appointment of judges are initiated by the judges themselves.
Essential substantial norms in regard to judicial appointments include:
(i) The basis on which performance of a member of the Bar is evaluated
for the purpose of higher judicial office;
(ii) The criteria which are applied in determining whether a member of the
Bar fulfils requirements in terms of:
a) Experience as reflected in the quantum and nature of the
practice;
b) Domain specialization in areas which are geared to the evolving
nature of litigation and the requirements of each court;
c) Income requirements, if any, having regard to the nature of the
practice and the circumstances prevailing in the court or region
concerned;
d) The commitment demonstrated by a candidate under
consideration to the development of the law in terms of written
work, research and academic qualifications; and
e) The social orientation of the candidate, defined in terms of the
extent of pro bono or legal aid work;
(iii) The need for promoting the role of the judiciary as an inclusive
institution and its diversity in terms of gender, representation to
minorities and the marginalised, orientation and other relevant factors.
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The present judgment does not seek to define what the standards for judicial
appointments should be. However, what needs to be emphasised is that the
substantive standards which are borne in mind must be formulated and placed
in the public realm as a measure that would promote confidence in the
appointments process. Due publicity to the norms which have been
formulated and are applied would foster a degree of transparency and
promote accountability in decision making at all levels within the judiciary and
the government. The norms may also spell out the criteria followed for
assessing the judges of the district judiciary for higher judicial office. 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.
.……......................................................J
[Dr Dhananjaya Y Chandrachud]
New Delhi;
November 13, 2019.
