IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO. 10044 OF 2010
W.P. (C) 288/2009
Central Public Information Officer, Supreme Court Of India
Subhash Chandra Agarwal
Date of Judgement
13 November, 2019
Ranjan Gogoi, C.J.I; V. Ramana, J.; D.Y. Chandrachud, J.; Deepak Gupta, J.; Sanjiv Khanna, J.
This is a landmark case that determines the balance between the right to information guaranteed to all individuals with the principle of confidentiality. It focuses on transparency in all government institutions. More importantly, it strikes an equilibrium between the right to privacy, a recognized fundamental right, along with the larger interest of the public which would necessitate the disclosure of information. It addresses questions related to disclosure of information related to the appointment of judges, their assets revelation and correspondence of judges and other authorities in light of judicial independence.
Facts of the case
The present appeals arise from 3 applications moved by Subhash Chandra Agarwal (Respondent) before the Central Public Information Officer (CPIO), Supreme Court of India. It asked to furnish a copy of the complete correspondence with the then Chief Justice of India as there had been a report that a Union Minister had influenced the decisions of Mr. Justice R. Reghupathi of the High Court of Madras and for the correspondence 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. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought was not dealt with or available with the Registry of the Supreme Court of India. On appeal, the Central Information Commission (‘CIC’) has directed disclosure of information. Aggrieved, the CPIO, Supreme Court of India has preferred these appeals.
The third the application sought information on the declaration of assets made by the judges to the Chief Justices in the States which was dismissed by the CPIO on the ground that it was not held by the Registry of the Supreme Court of India. The appellate authority passed an order of remit directing the CPIO to follow the procedure under Section 6(3) of the RTI Act and to inform the Respondent about the authority holding such information. The CPIO held that filing of the application before the CPIO of the Supreme Court was against Section 6(3) of the RTI Act and the same should be put before the CPIO of the High Courts. Thereupon, the Respondent had directly preferred an appeal before the CIC which was allowed directing the CPIO to provide the information. CPIO had then filed a Writ Petition before the Delhi HC which was in the favor of the Respondent. On further appeal, the matter was referred to the Full Bench which dismissed the appeal and the Full Bench was in full agreement with the reasoning of the learned Single Judge of the High Court.
Statue and provisions discussed
1. Section 8(1)(e), Right to Information Act, 2005
2. Section 8(1)(j), Right to Information Act, 2005
3. Section 2(j), Right to Information Act, 2005
1. Is the information in the context of a collegium system for appointment and elevation of judges to the Supreme Court and the High Court’s; declaration of assets by judges, etc. protected under Right to Information Act, 2005?
Arguments from Petitioner:
The appellants contended that disclosure of the information sought would impede the independence of judges and that judges are ought not to be subjected to ‘litigative public debate’. The right to information is not an absolute constitutional right and is subject to the exclusions, restrictions, and conditions listed in the Second Schedule and Sections 8 to 11 of the RTI Act. Information sought which is exempted under Section 8 of the RTI Act cannot be disclosed. Information on assets amounts to personal information and thus falls in the ambit of exemption laid down 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. Moreover, the information on assets is voluntarily declared by the judges to the Chief Justice of India in his fiduciary capacity. Consultations and correspondence between the office of the Chief Justice of India and other constitutional functionaries and information relating to the appointment of judges are shared in their fiduciary capacities, which makes the information exempt under Section 8(1)(e) of the RTI Act.
Arguments from Respondent:
The Respondents have argued that disclosure of the information sought does not undermine the independence of the judiciary. The citizens have a legitimate and constitutional right to seek information about the details of any attempt made to influence or compromise the independence of the judiciary in the public domain. That disclosing the consultative process for appointing judges would not inhibit the consultees from freely expressing themselves. The disclosure of this information will serve the larger public interest which would waive the exemption under Section 8(1)(j). Moreover, 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 not disclosing the information. It was contested that the duty the Chief Justice and other functionaries to discharge their constitutional duties and not act as a fiduciary of anyone, except the people. That even if there exists a fiduciary relationship among the functionaries, disclosure can be made if it serves the larger public interest. Information cannot be held back on account of confidentiality as the same is not protected under the Act.
The Court dismissed Civil Appeal No.2683 of 2010 upholding the judgment of the Delhi High Court. The direction was given to the CPIO, Supreme Court of India by the CIC to furnish information on the judges of the Supreme Court who had declared their assets was upheld. The respondent was held to have the right to information under Section 2(j) of the RTI Act with regard to the information in the form of declarations of assets. It held that such disclosure would not encroach the personal information and right to privacy of the judges. The Chief Justice did not hold such declarations in a fiduciary capacity or relationship and in terms of Section 8(1)(e) of the RTI Act and that the information was neither protected under Section 8(j) of the Act.
Civil Appeal No.s 10045 of 2010 and 10044 of 2010 are partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. The concerned third parties are required to be issued notice and heard.
The question of whether the Supreme Court of India and the Chief Justice of India are to be considered as two separate public authorities is answered in negative. The reference is made to the terms ‘competent authority’ and ‘public authority’ as given in S.2(e) and (h) of the RTI Act. The term ‘public authority’ is interpreted extensively because of the expression ‘includes’.
Supreme Court of India is a ‘public authority’, as defined in Section 2 (h) 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 Section 2(e) (ii) is the competent authority in the case of the Supreme Court. The Supreme Court of India is a ‘public authority’ and includes the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The interpretation to Section 2(h) cannot be made in derogation of the Constitution and neither the Chief Justice nor his office is a separate public authority. The same principle would apply to the High Courts of the country as well.
The understanding of information and the right to information under the RTI Act is put into analysis. The terms ‘information’, ‘record’ and ‘right to information’ are defined under clauses (f), (i) and (j) to Section 2 of the RTI Act. The definition of ‘information’ is broad and wide. This definition 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’ means to keep, to retain, to maintain possession of or authority over. The words ‘under the control of any public authority’ mean the right and power of the public authority to get access to the information. It includes information relating to a private body which can be accessed by a public authority under any other law for the time being in force. However, this information would be subject to the pre-imposed conditions and restrictions. When information is accessible by a public authority then the non-obstante clause in Section 22 of the RTI Act, any prohibition or condition which prevents a citizen from having access to information would not apply. However, when access to information is itself prohibited subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased.
The Full Bench observed ‘held’ as not purely a physical concept but referring to the appropriate connection between the information and the authority. Emphasis is placed on the mandatory requirement of accessibility of information by the public authority under any other law for the time being in force
The expressions ‘held by or under the control of any public authority’ and ‘information accessible under this Act’ are restrictive and reflect the limits to the ‘right to information’ 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 a qualified right as it is subjected to the conditions and exemptions under the RTI Act.
The exceptions and conditions set out in Sections 8 to 11 of RTI Act helps to harmonize the various conflicts relating to bringing about transparency and accountability by providing access to information under the control of public authorities and to ensure that the revelation of information, does not conflict with other public interests
Section 8(1) is a non-obstante clause which makes the sub-sections under it override the rest of the provisions of the Act in case of conflict. Consequently, the right to information is available when information is accessible under the RTI Act and is not covered under the exceptions.
Section 8(1) can be divided into two categories
- clauses (a), (b), (c), (f), (g), (h) and (i) which do not have any exemptional stipulation
- and clauses (d), (e) and (j) which incorporates qualified prohibitions and are conditional in nature.
The disclosure under Section 8(2) by the public authority is not a mandate or compulsion but is in the form of discretionary disclosure. It acknowledges and empowers the public authority to lawfully disclose information held by them despite the exemptions under Section 8(1) 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 9 provides that without prejudice to the provisions of Section 8, a request for information may be rejected if such a request would involve an infringement of copyright subsisting in a person other than the State. Section 10 deals with the severability of exempted information. Section 11 deals with third party information and incorporates conditional exclusion based on breach of confidentiality by applying public interest test.
Point 3(A)- Fiduciary Relationship under Section 8(1)(e) of the RTI Act
Section 8(1)(e) of the RTI Act states that information made available to a person in his fiduciary relationship shall not be disclosed unless larger public interest warrants the disclosure of such information. This section creates rights and obligations beyond contractual or non-fiduciary relationships. The balance is created between confidentiality and the right to information by applying the test of larger public interest.
This exemption would not apply to beneficiaries regarding whom the fiduciary holds information. A fiduciary would be duty-bound to make thorough disclosure of all relevant facts of all transactions between them in a fiduciary relationship to the beneficiary. The four principles of fiduciary relationships, being that of no conflict rule, no-profit rule, undivided loyalty rule, a duty of confidentiality must be satisfied. The emphasis is on trust, reliance, the fiduciary’s superior power or dominant position and the corresponding dependence of the beneficiary on the fiduciary. It imposes a responsibility on the fiduciary to act for the benefit of the beneficiary and not promote personal self-interest.
Generally, the relationship between the Chief Justice and judges would not be that of a fiduciary and a beneficiary, however, in certain situations and acts, a fiduciary relationship may arise and would solely depend on the particular case.
Point 3(B): Right to Privacy under Section 8(1) (j) and Confidentiality under Section 11 of the RTI Act
Section 8(1) (j) refers to personal information as distinct from information relating to the public activity or interest and seeks to exempt disclosure of such information. It also includes such information which if disclosed, would cause unwarranted invasion of privacy 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. The interplay of these two sections is captured by the RTI Act.
The breach of confidentiality and invasion of privacy are to be well-adjusted with the right to information. Courts have recognized three elements that are essential for a case of breach of confidentiality to succeed, namely – (a) information should be of confidential nature; (b) There must be an obligation of confidentiality; and (c) there must be unauthorized use of information. The confidentiality of information is to be tested according to the perception of a reasonable person.
There persists acceptance of privacy as a separate right 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 a claim for the preservation of confidentiality of personal information.
The right to privacy has been determined as a basic fundamental right under Article 21 of the Constitution. The invasion of personal liberty has 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 RTI Act defines the legitimate aim, that information that can be confidential or private or held in a fiduciary relationship is to be disclosed if the larger public interest overrides the protection or any possible harm or injury to the interest of the third party. The third requirement 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.
Section 8(1)(j) 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. The Court has treated the word ‘information’ which if disclosed would lead to invasion of privacy to mean personal information, as distinct from public information. Reference has been made to numerous international and national cases to distinguish between what constitutes as personal and public.
It is important to look at the confidentiality of information concerning the government and information relating to its inner-workings. The court ought to determine the government’s claim to confidentiality by reference to the public interest. Information regarding the government functioning ought to be disclosed unless the secrecy is justified and protected due to a larger public interest.
According 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 that can be caused to the third party on account of the disclosure.
Absolute transparency in all facets of government not possible because of the presence of limitations on complete disclosure of governmental information in matters relating to national security, diplomatic relations, internal security or sensitive diplomatic correspondence. It also emphasizes on accepting and trusting the decision making of the government.
The information to be disclosed would depend on the test of public interest i.e. whether 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.
To analyze the term ‘public interest’, light is thrown to Section 8 and 11. Section 8(1)(j) of the RTI Act prescribes an exemption from disclosure of information which is personal in nature having no relationship with any public activity or interest or the disclosure of which would amount to an unwarranted invasion of privacy of the individual unless the requirement of ‘larger public interest’ is satisfied. The proviso to Section 11(1) states that except in case of trade or commercial secrets protected by law, disclosure may be allowed if larger public interest outweighs any possible harm or injury to the third party’s interest.
The meaning ‘public interest’ in context to RTI is the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake. Public welfare is different from public interest. The object of Section 8(1)(j) is to protect oneself from unwarranted access to personal information and to protect facets 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. 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.
Striking a balance between the interests requires identification of public interest behind each exemption to deny the disclosure. 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.
The legislature had intended to vest a general discretion in the PIO to weigh the competing interests of right to access information and the ‘possible’ harm and injury to the third party and no conclusive determination can be made that one triumph over the other.
To examine the co-relation with transparency in the functioning of the judiciary in matters of judicial appointments/selection and the importance of judicial independence. 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.
The Supreme Court has previously emphasized the independence of the judiciary as an institution and thus when the public interest demands the disclosure of information, judicial independence has to be kept in mind. Reference to the principle of judicial independence is not to undermine and avoid accountability rather these two principles go hand in hand.
The 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. In the latter, public interest test would have to be applied keeping in mind the fiduciary relationship, invasion of the right to privacy and breach of the duty of confidentiality resulting from the disclosure of such details and particulars.
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 exempted. A universal affirmative or negative answer cannot be established.
Edited by Parul Soni
Approved & Published – Sakshi Raje
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