Facts of the Case:
Social Activist Subhash Chandra Agrawal has filed an application 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, the First appeal filed by Subhash Chandra Agrawal was dismissed and on the second 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.

Bench: Hon'Ble The Justice, N.V. Ramana, Hon'Ble Dr Chandrachud, Deepak Gupta, Sanjiv Khanna
Laws: Article 12, Article 19, Article 20, Article 21, Article 25, Article 124 of Constitution
Citation: 2019 SCC OnLine SC 1459, 2019 (16) SCALE 40

The argument of Parties:
The appellants have contended that disclosure of the information sought would impede the independence of judges as it fails to recognize 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 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. al 3, Budhan Singh and another v. Nabi Bux and Another 4, Kailash Rai v. Jai Ram 5 and Dollfus Mieg et Compagnie S.A. v. Bank of England 6. 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.

What does the lower Court held:
The judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court, and Delhi High Court answered the following questions -

Re Point No. 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 declarations by Supreme Court Judges, pursuant to the 1997 Resolution is "information", under the Right to Information Act, 2005.

Answer:
It is held that the second part of the respondent's application, relating to the 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 is "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.

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 declarations 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

What is a question of law?

• Whether the office of the Chief Justice of India comes under the purview of the Right to Information..?

Supreme Court Observation:
Justice Sanjiv Khanna wrote the majority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinions.

In Majority Verdict penned by J. Sanjiv Khanna, Justice opinioned, "Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence."

In relation to Section 8(1)(j) vis-�-vis Section 11 of the RTI Act:
Section 8(1)(j) specifically refers to the invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of the 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.

On the relative scope of both the provisions, the Court said:
"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."

Public Interest Test got applied
The Court said that 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, breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to particular information and the person.

Some of the important aspects highlighted by the Court are as follows:

• 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.
   
• Public interest is not immutable and even time-gap 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 the 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.
   
• '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 a relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test.

Judicial Independence
The independence of the 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.

The Court said that 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 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. It, however, said,

"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."

The Court concluded by saying 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 exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of the judiciary is a matter of public interest

Separate but concurring opinion has been penned down by honourable Justice DY Chandrachud, and he opinioned that, "To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability."

Though Chandrachud, J noticed that to be independent a judge must have the ability to decide 'without fear or favour, affection or ill will and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said:
"But the 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 independence is not a shield to protect wrongdoing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve."

Justice DY further said that 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 constitutional power.

NV Ramana, J's separate but concurring opinion "Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary." stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is an equally important principle to be taken into the fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps.

Honourable Apex Court Finally Held:
Five Judges Constitutional Bench of the honourable Supreme Court unanimously held that the office of the Chief Justice of India comes under the purview of the Right to Information.

Written By:

1. Pranjal Chaturvedi - B.A.LL.B from Sharda University School of Law.
   Email: [email protected]
2. Aishwarya - B.A.LL.B from Sharda University School of Law.
   Email: [email protected]