2019 (11) TMI 895 - SC - Indian Laws

Right to information - disclosure of information - infringement of constitutional status of the judges - how transparent is transparent enough. WHETHER THE SUPREME COURT OF INDIA AND THE CHIEF JUSTICE OF INDIA ARE TWO SEPARATE PUBLIC AUTHORITIES? - HELD THAT - 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 to frame rules, which have to be notified in the Official Gazette, to carry out the provisions of the RTI Act - 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. INFORMATION AND RIGHT TO INFORMATION UNDER THE RTI ACT - HELD THAT - 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 - 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. SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT - HELD THAT - 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 - 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. 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. Fiduciary Relationship under Section 8(1)(e) of the RTI Act - HELD THAT - 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. The, 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, 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. 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. Right to Privacy under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act - HELD THAT - The 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. 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. MEANING OF THE TERM PUBLIC INTEREST - HELD THAT - 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 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. 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. JUDICIAL INDEPENDENCE - HELD THAT - 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 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. 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. Revision disposed off.

Summary

Issues Involved:
1. Transparency in the appointment and elevation of judges.
2. Declaration of assets by judges.
3. Disclosure of correspondence related to judicial decisions.
4. Right to Information (RTI) vs. Right to Privacy.
5. Fiduciary relationship and confidentiality.
6. Public interest in disclosure.
7. Judicial independence and accountability.

Issue-wise Detailed Analysis:

1. Transparency in the Appointment and Elevation of Judges:
The judgment addresses the appeals concerning the disclosure of correspondence and file notings related to the appointment of judges to the Supreme Court. The court held that such information does not inherently fall under a protected class of documents and must be disclosed unless it is shown that disclosure would harm public interest more than non-disclosure. The court emphasized that transparency in judicial appointments is crucial for maintaining public confidence in the judiciary.

2. Declaration of Assets by Judges:
The court upheld the CIC's directive for the disclosure of information on whether judges of the Supreme Court have declared their assets. It was clarified that while the contents of the asset declarations are "personal information" and may be exempt from disclosure under Section 8(1)(j) of the RTI Act, the fact of whether such declarations have been made is not personal information and must be disclosed.

3. Disclosure of Correspondence Related to Judicial Decisions:
The court examined the appeal concerning the disclosure of correspondence related to a Union Minister allegedly influencing a judge of the Madras High Court. The court directed the CPIO to re-examine the matter, following the procedure under Section 11 of the RTI Act, which involves notifying third parties and considering their objections before deciding on disclosure.

4. Right to Information (RTI) vs. Right to Privacy:
The judgment extensively discusses the balance between the right to information and the right to privacy. It was held that while the RTI Act promotes transparency and accountability, it also recognizes the need to protect personal information and privacy. The court emphasized that the right to information is not absolute and must be balanced against privacy rights, with the larger public interest being a determining factor.

5. Fiduciary Relationship and Confidentiality:
The court rejected the argument that the Chief Justice of India holds asset declarations of judges in a fiduciary capacity. It was held that the Chief Justice does not act for the benefit of individual judges but in an official capacity, and therefore, the information is not exempt under Section 8(1)(e) of the RTI Act.

6. Public Interest in Disclosure:
The court elaborated on the concept of public interest, stating that it is not limited to democratic accountability but includes promoting public debate, intellectual and educational purposes, and artistic expression. The court provided guidelines for Information Officers to balance public interest against privacy interests, emphasizing that the principle of proportionality must be applied to ensure that no right is abridged more than necessary.

7. Judicial Independence and Accountability:
The judgment underscores that judicial independence is not compromised by transparency and accountability. The court highlighted that transparency in judicial appointments and the disclosure of information related to the judiciary are essential for maintaining public trust and ensuring that the judiciary remains free from undue influence and bias.

Conclusion:
The court dismissed Civil Appeal No. 2683 of 2010, upholding the Delhi High Court's judgment directing the disclosure of whether judges have declared their assets. Civil Appeals Nos. 10044 and 10045 of 2010 were remanded to the CPIO, Supreme Court of India, for re-examination following the principles set out in the judgment. The court emphasized the need for transparency and accountability in the judiciary while balancing these with the right to privacy and confidentiality where applicable.