In the Supreme Court of India Civil appellate jurisdiction Civil appeal no. 10044 of 2010 Appellant Central Public Information Officer; Supreme Court of India Respondents Subhash Chandra Agarwal Date of Judgement 22nd April , 2019 Bench Hon’ble Justice Sanjiv Khanna
Facts of the case
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 to answer the question as to ‘how transparent is transparent enough’ 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.
1. Whether the concept of independence of the judiciary requires and demands the prohibition of furnishing of the information sought?
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?
- Right to Privacy under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act. 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 harmonized 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 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 Justice R F Nariman in his separate concurring opinion made the following observations:
- 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. Unauthorized 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 choice
- 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. To the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited.
The present case 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, engenders public confidence in the process and provides a safeguard against extraneous considerations entering into the process.
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 justifications for restricting such interests and (iv) apply the principle of proportionality to ensure that no right is abridged more than required to fulfill 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 has also been set out in the present judgment.
“The views of the authors are personal“