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TMI Blog2010 (1) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... formation 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). 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". Though the Act generally prohibits obtaining or using a report for commercial purposes, it contains an exemption for "news and communication media" involved in "dissemination to the general public". Thus APB could not be refused access to the reports. Before the forms were released to the APB [APBnews.com], however, the Committee removed some personal information submitted by judges but not required by the Act, such as home addresses and names of spouses and dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the declaration would be made (b) the form in which the declaration should be made, with definitional clarity of what are assets , and (c) proper safeguards, checks and balances to prevent misuse of information made available. After the learned single Judge had concluded the hearing and had reserved his judgment on the writ petition, certain events supervened. The Full Court of the Supreme Court resolved to place the information on the court website after modalities are duly worked out. Some High Courts, including Delhi High Court, also resolved similarly to make public the information about the declaration of assets by the Judges. The learned single Judge in the impugned judgment had given certain directions about disclosure. In the course of hearing on 7th October, 2009, on CM No.14043/2009, the learned Attorney General for India informed that the operative part in the judgment under appeal had been complied with. The appeal has been pursued on the ground that fundamental questions of law with regard to scope and applicability of the Act with specific reference to declarations of assets by the Judges of High Courts and Supreme Court persist and need to be addressed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation, he should have considered the question of Section 6(3). Regarding the respective States, if the CPIO was not holding information, he should have considered whether he should have invoked the provision under Section 6(3) of the Right to Information Act . The CPIO, after the said remand order, once again declined the relief, now stating that the request could not be appreciated since it was against the spirit of Section 6(3) inasmuch as the applicant had been very well aware that the information sought related to various High Courts and yet had taken a short circuit procedure by approaching the CPIO, Supreme Court of India, and getting it referred to all the public authorities at the expense of one Central Public Information Officer . 8. The applicant then filed an appeal before the CIC, the apex appellate authority under the Act. The contention raised was that the CPIO had not followed the directions of the appellate authority, which originally remanded the case for decision as to whether the application had to be sent to another authority. It was also submitted before the CIC that the order of CPIO maintained a studied silence about disclosure of information regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of fiduciary relationship or it being personal information . He further noted that the applicant was apparently not seeking a copy (or inspection) of the declaration or the contents thereof or even the names etc. of the Judges giving the same. He concluded that the exemptions under Sections 8(1)(e) or 8(1)(j) were not attracted to the case. 11. The CIC, vide order dated 6th January, 2009 thus directed the CPIO 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 . PROCEEDINGS BEFORE THE SINGLE JUDGE 12. The writ petition was preferred by the CPIO challenging the said directions of CIC in the impugned order. The applicant was impleaded as a respondent. 13. In the writ proceedings before the learned single Judge, the Registrar, Supreme Court was subsequently added as a co- petitioner. On the other hand, Delhi High Court Bar Association (hereinafter, DHCBA ) and Rashtriya Mukti Morcha were allowed to join as interveners. 14. In the writ petition, the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public domain or one which cannot be accessed. It was argued that the 1997 Resolution represented a conscious decision taken by the Judges of the Supreme Court and, therefore, its binding nature could not be undermined. Before the learned single Judge, the applicant questioned the plea that the information was held by the CJI in his private capacity or in a fiduciary relationship. It was submitted that the Judges are public functionaries and the declarations in question were made by them in their official capacity to the CJI, who, in turn, received the same and held it in his official capacity. Though pointing out that the contents of the declarations made by the respective Judges were not part of the information that had been requested from the CPIO and thus submitting that there was no invasion of privacy in the case at hand, it was insisted that only such further information (i.e. contents of the declarations) could be asked for and disclosed under the Act, notwithstanding the exemption under Section 8(1)(j), should the CPIO or the appellate authority find justification in its disclosure in larger public interest . 16. Both the interveners, in their submissions before the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot hold such declarations in a fiduciary capacity or relationship. 21. The learned single Judge further held, in the context of point No.5, that the contents of asset declarations, pursuant to the 1997 Resolution, as also 1999 Resolution, are entitled to be treated as personal information which are not otherwise subject to disclosure but may be accessed in accordance with the procedure prescribed under Section 8(1)(j). On the specific information sought by the applicant in the case at hand (i.e. whether the declarations were made pursuant to 1997 Resolution), it was held that the procedure under Section 8(1)(j) is inapplicable . 22. The appellant had also raised the issue of lack of clarity about the asset declaration and details thereof as well as lack of security, claiming further that these aspects (lack of clarity and security) rendered asset declaration and the disclosure unworkable . This was the subject-matter of point No.6 (mentioned in para 27 of the impugned judgment). Learned single Judge observed that these are not insurmountable obstacles. In his view, the CJI, if he deems it appropriate, may in consultation with the Supreme Court Judges, evolve uniform sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of these proceedings. We find ourselves in full agreement with the reasoning set out in the impugned judgment. The expression public authority as used in the Act is of wide amplitude and includes an authority created by or under the Constitution of India, which description holds good for Chief Justice of India. While providing for Competent Authorities under Section 2(e), the Act specifies Chief Justice of India as one such authority in relation to Supreme Court, also conferring upon him the powers to frame rules to carry out the purposes of the said law. Chief Justice of India besides discharging the prominent role of head of judiciary also performs a multitude of tasks specifically assigned to him under the Constitution or various enactments. As said in the impugned judgment, these varied roles of the CJI are directly relatable to the fact that he holds the office of Chief Justice of India and heads the Supreme Court. In absence of any indication that the office of the CJI is a separate establishment with its own Public Information Office under the Act, it cannot be canvassed that the office of the CPIO of the Supreme Court is different from the office of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ? RIGHT TO INFORMATION 30. Information is currency that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation. Information is basis for knowledge, which provokes thought, and without thinking process, there is no expression. Knowledge said James Madison, will forever 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 farce 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. And that is why the demand for openness in the government is increasingly growing in different parts of the world. RELEVANT INTERN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court held that the impugned Newsprint Control Order violated the freedom of the press and therefore was ultra vires Article 19(1)(a) of the Constitution. The Order did not merely violate the right of the newspapers to publish, which was inherent in the freedom of the press, but also violated the right of the readers to get information which was included within their right to freedom of speech and expression. Chief Justice Ray, in the majority judgment, said: It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. (para 45) 37. In a subsequent judgment in Indian Express Newspaper (Bombay) Private Ltd. V. Union of India, AIR 1986 SC 515, the Court held that the independence of the mass media was essential for the right of the citizen to information. In Tata Press Ltd. V. Maharashtra Telephone Nigam Ltd., (1995) 5 SCC 139, the Court recognized the right of the public at large to receive commercial speech . 38. The concept of the right to information was eloquently formulated by Mathew, J. in The State of UP v. Raj Narain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court held that voters have a right to receive information about the antecedents of the candidates who stood for election. The Court held that the Election Commission had the duty to inform the voters about the candidates and therefore, it can direct the candidates filing nominations for election to give details about their assets and liabilities, past criminal cases ending in acquittals or convictions and pending criminal prosecution if any. The Union Government appealed against that decision to the Supreme Court which upheld the Delhi High Court decision in Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 and directed the Election Commission to seek such information from the candidates filing nominations. The Government after consulting various political parties arrived at the conclusion that the Election Commission should not have such power and it brought forth an Ordinance under Article 123 of the Constitution to amend the Representation of People Act, 1951 and withdrew from the Election Commission such powers requiring information to the extent mandated by the above decision of the Supreme Court. Constitutional validity of that amendment was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appointment of Judges was not used with political motives thereby undermining the independence of the judiciary, the petitioners sought information as to whether the procedures laid down under Articles 124(2) and 217(1) had been scrupulously followed. Here the right to information was a condition precedent to the rule of law. Most of the issues, which the Mazdoor Kisan Shakti Sangathan of Rajasthan had raised in their mass struggle for the right to information, were mundane matters regarding wages and employment of workers, such information was necessary for ensuring that no discrimination had been made between workers and that everything had been done according to law. The right to information is thus embedded in Articles 14, 19(1)(a) and 21 of the Constitution. THE RIGHT TO INFORMATION ACT, 2005 43. After almost 55 years since the coming into force of the Constitution of India, a national law providing for the right to information was passed by both Houses of Parliament on 12/13 th May, 2005. It is undoubtedly the most significant event in the life of Indian Democracy. Prime Minister Manmohan Singh, while speaking on the Right to Information Bill in the Lok Sabha, said: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted - (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. By virtue of Section 24, the Act does not apply to the Intelligence and Security Organisations specified in the Second Schedule. However, the information pertaining to the allegations of corruption and human rights violations shall be required to be given by such authorities subject to the approval of the Central Information Commissioner. 47. The Act does not merely oblige the public authority to give information on being asked for it by a citizen but requires it to suo moto make the information accessible. Section 4(1)(a) of the Act requires every public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under the Act and ensure that all records that are appropriate to be computerised are, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s complete, or over and exception to this is further provided in the second proviso which says that those matters which come under exemptions specified above shall not be disclosed; (j) Information which relates to personal information the disclosure of which has no relation to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the CPIO or the SPIO, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. (emphasis supplied) OVER-RIDING EFFECT OF THE ACT 49. Section 22 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent contained in the Official Secrets Act, 1923 and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. POINT 1: WHETHER THE RESPONDENT HAD ANY RIGHT TO INFORMATION UNDER SECTION 2(J) OF THE ACT? APPELLANT S CONTENTIONS: 50. The gravamen of the submissions of the learned Attorney General is that the respondent had no right to information under Section 2(j) of the Act. He submitted that Section 2(j) contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a superior authority to an inferior authority. Certain passages in Philip Coppel s book Information Rights were also relied upon. 52. Learned Attorney General further submitted that the Resolution of 1997 was in two parts. The first part related to the creation of an in-house mechanism for taking remedial action against Judges who do not follow the universally accepted values of judicial life, the second part related to the declaration of assets, and no sanction/in-house procedure was contemplated in the event of non-filing of declaration. He placed heavy reliance on the decision in the case of Indira Jaising v. Registrar General (2003) 5 SCC 294, in which the Supreme Court has held that even the in-house procedure in the judiciary has its basis only on moral authority and not in exercise of power under any law. Learned Attorney General argued that a plethora of information is available within the judiciary, for example, notes of Judges or draft judgments. If the only requirement is possession then all such information would also have to be brought under Section 2(j) of the Act. Therefore, according to him, a restricted meaning will have to be given to the term held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the passages relied upon by the learned Attorney General from the commentary of Philip Coppel would rather support a liberal interpretation of the terms held or under the control of under Section 2(j) of the Act. The rest of the authorities relied upon by the learned Attorney General are related to property, which imply an entirely different nature of title and holding. With regard to the draft notes and judgments, learned counsel submitted that whether they constitute information within the meaning of the Act will have to be determined on case to case basis, in the manner all RTI applications are decided. SECTION 2(j) RIGHT TO INFORMATION 56. Two definitions are crucial for answering the first issue i.e. Information [Section 2(f)] and Right to Information [Section 2(j)]. Information is defined to mean any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models. Also, data held in any electronic form such as FAX, micro film, microfiche etc. It also includes information relating to any private body which can be accessed by a public au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects 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. The position under the Environmental Information Regulations 2004 is clearer, those regulations expressly providing that environmental information must have been produced or received by the public authority if it is to be information held by that public authority. Under both regimes, information sent to a public authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control should not be given a broad interpretation, and that a narrow interpretation would deprive citizens of a meaningful right of access under the Act. 60. The decisions cited by the learned Attorney General on the meaning of the words held or control are relating to property and cannot be relied upon in interpretation of the provisions of the Right to Information Act. The source of right to information does not emanate from the Right to Information Act. It is a right that emerges from the constitutional guarantees under Article 19(1)(a) as held by the Supreme Court in a catena of decisions. The Right to Information Act is not repository of the right to information. Its repository is the constitutional rights guaranteed under Article 19((1)(a). The Act is merely an instrument that lays down statutory procedure in the exercise of this right. Its overreaching purpose is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to help the governors accountable to the governed. In construing such a statute the Court ought to give to it the widest operation which its language will permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the judgment. Even the draft judgment signed and exchanged is not to be considered as final judgment but only tentative view liable to be changed. A draft judgment therefore, obviously cannot be said to be information held by a public authority. BINDING NATURE OF THE 1997 RESOLUTION AND THE 1999 JUDICIAL CONFERENCE RESOLUTION. 63. The narration of the background as stated in Restatement of Values of Judicial Life adopted in the Chief Justices Conference in December, 1999 would show that as far back as on September 18-19, 1992, the Chief Justices Conference resolved to restate the pre-existing and universally accepted norms, guidelines and conventions reflecting the high values of judicial life to be observed by Judges during their tenure in office. A draft restatement of values was circulated on 21st November, 1993 to the Chief Justices of the High Courts for discussion with their colleagues. This draft prepared by a duly constituted committee was considered and adopted after approval in the Full Court meeting of the Supreme Court held on 7th May, 1997. This provided for an in-house procedure for remedial action against erring Judges and also declaration by individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same court, shall be eschewed. (4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him. (5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. (6) A Judge should practice a degree of aloofness consistent with the dignity of his office. (7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned. (8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. (9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media. (10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends. (11) A Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. This cardinal procedure is derived from earlier statements of universal principles. (For example, Universal Declaration of Human Rights, Article 10 ). 67. It is impossible to ensure the rule of law upon which other human rights depend, without providing independent courts and tribunals to resolve, in the language of the ICCPR, competently, independently and impartially, disputes both of a criminal and civil character. In his address on Independence of Judiciary - Basic Principles, New Challenges Justice Michael Kirby, a former Judge of the Australian High Court, said: Total separation of the judicial power is not possible in the real world. In many countries, the Executive Government appoints judges. The legislature provides for their salaries and pensions. It funds the activities of the courts. To give content to the provisions of Art 14.1 ICCPR, it is therefore necessary to go beyond the letter of a written constitution. It is essential to breathe life into the sparse language of the ICCPR. This requires a reflection upon the constitutional struggles, past and present, by which people everywhere have been seeking to attain the kind of human right to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts, considering their fitness for being retained in service and recommending their discharge from service, exercise of complete discipline, jurisdiction over them including initiation of disciplinary inquiries and their premature retirement, the members of the subordinate judiciary are under the direct control of the High Court. In Shamsher Singh's case, learned Chief Justice observed: (para 78) The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. 71. After reviewing all these provisions and decisions, Chandrachud, J, (as he then was) in Union of India v. Sankalchand Himmatlal Sheth, [(1977) 4 SCC 193] observed: (para 12) It is beyond question that independence of the judiciary is one of the foremost concerns of our Constitution. The Constituent Assembly showed great solicitude for the attainment of that ideal, devoting more hours of debate to that subject than to any other aspect of the judicial provisions: If the beacon of the judiciary was to remain bright, the Courts must be above reproach, free from coercion and from political influence. 72. In S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but they are not the be all and end all. Judicial independence is not the personal privilege or prerogative of the individual Judge. It is the responsibility imposed on each Judge to enable him or her to adjudicate a dispute honestly and impartially on the basis of the law and the evidence. The very existence of the justice delivery system depends on the Judges, who, for the time being, constitute the system. The greatest strength of the judiciary is the faith people repose in it. The constitutional rights, statutory rights, human rights and natural rights need to be protected and implemented. Such protection and implementation depends on the proper administration of justice, which in its turn depends on the existence and accessibility of an independent judiciary. Public confidence in the administration of justice is imperative for its effectiveness, because ultimately ready acceptance of a judicial verdict alone gives relevance to the judicial system. To quote the words of Pathak, J (as he then was) in S.P. Gupta's case: While administration of justice draw its legal sanction from the constitution, its credibility rests in the faith of the people. Indispensable to that faith, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behavior of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. 76. The 1997 Resolution and the 1999 Judicial Conference Resolution are intended to establish a standard for ethical conduct of Judges. The Resolutions give expression to the highest traditions relating to the judicial functions as visualised in all the world s cultures and legal systems. They are designed to provide guidance to Judges and to afford the judiciary a framework for regulating judicial conduct. They recognise the need for universally acceptable statements on judicial standards, which, consistent with the principle of judicial independence, would be capable of being respected and ultimately enforced by the judiciary. 77. Explaining the need for a self-regulatory mechanism for Judges, Justice J. S. Verma, former Chief Justice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges from Commonwealth countries. This was discussed at several conferences attended by Judges of both common law and civil law systems and has also been considered by the Consultative Council of European Judges. Revised principles were prepared in November 2002 following a round-table meeting of Chief Justices held at the Peace Palace, the Hague and were endorsed at the 59th session of the United Nations Human Rights Commission at Geneva in April, 2003. 81. The Bangalore Principles are succinctly stated as six values and their stated intention is : To establish standards for ethical conduct of Judges. They are designed to provide a framework for regulating judicial conduct. They are also intended to assist members of the Executive and Legislature, and lawyers and the public in general, to better understand and support the judiciary . The principles are: (i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A Judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. (ii) Impartiality is essential to the proper discharge of the judicial office. It applies not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the judiciary and any difference in grade or rank shall in no way interfere with the duty of the judge exercising jurisdiction individually or judges acting collectively to pronounce judgement in accordance with Article 3 (a). The judiciary, on its part, individually and collectively, shall exercise its functions in accordance with the Constitution and the law. 7. Judges shall uphold the integrity and independence of the judiciary by avoiding impropriety and the appearance of impropriety in all their activities. 8. To the extent consistent with their duties as members of the judiciary, judges, like other citizens, are entitled to freedom of expression, belief, association and assembly. 9. Judges shall be free, subject to any applicable law, to form and join an association of judges to represent their interests and promote their professional training and to take such other action to protect their independence as may be appropriate. JUDICIAL ACCOUNTABILITY 83. The 1997 Resolution and the 1999 Judicial Conference Resolution emphasise that any code of conduct or like expression of principles for the judiciary should be formulated by the judiciary itself. That w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such declaration by Judges of the constitutional courts is even greater. While it is obvious that the degree of accountability and answerability of a High Court Judge or a Supreme Court Judge can be no different from that of a Magistrate, it can well be argued that the higher the Judge is placed in the judicial hierarchy, the greater the standard of accountability and the stricter the scrutiny of accountability of such mechanism. All the Judges functioning at various levels in the judicial hierarchy form part of the same institution and are independent of undue interference by the Executive or the Legislature. The introduction of the stipulation of declaring personal assets, is to be seen as an essential ingredient of contemporary accepted behaviour and established convention. 87. Questioning of the binding nature of the Resolutions is, therefore, contrary to the assertions of judicial independence. To contend that there has to be a law enacted by the Parliament to compel Judges to disclose their assets is to undermine the independence that has been asserted in the second Judges case. 88. It can hardly be imagined that Resolutions which have been unanimously adopted at a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people and to the Constitution of India. 91. The disclosure on the website of information pertaining to assets of Judges is a complete answer to the question posed by the learned Attorney General. The disclosure of assets by Judges, their spouses and dependent persons on the website of the Supreme Court, Kerala High Court and Madras High Courts provides the answer as to how the Resolutions can be implemented, in what manner, by whom and to what extent. This, therefore, cannot be the reason for denying the binding nature of the Resolutions. Much has been said of where one should draw a line on how much should be disclosed. This is entirely for the Judges to decide consistent with their perception of their accountability to the judiciary as an institution. It can be seen from the assets disclosure of the Judges which are available on website that the uniform standards have been evolved regarding the nature of the information and the periodicity of the declarations to be made. The above development shows that the Judges have perfectly understood how much information should be disclosed and in what manner they have to put the information on the website. INDIRA JAISING S CASE DIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation particularly when the Chief Justice is not vested with any power to decide about the conduct of a Judge. The Court was of the opinion that a report made on such inquiry if given publicity will only lead to more harm than good to the institution as Judges would prefer to face inquiry leading to impeachment. In such a case, the only course open to the parties concerned if they have material is to invoke provisions of Article 124 or Article 121(7) of the Constitution, as the case may be. It is in this context it was observed that the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law. The obligation of the Judges to declare assets in terms of the Resolutions was not in issue before the Court. It is not even remotely suggested that the Code of Conduct is not binding on the Judges or they are free to ignore the Code of Conduct. Indeed the Court distinguished the decisions in S.P. Gupta, Raj Narain etc., relating to the right to information. We must bear in mind that this decision was rendered prior to the enactment of the Right to Information Act and may not serve as a usef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than on any legal obligation. The purpose for disclosing a statement of assets to the CJI is to foster transparency within the judiciary and is essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice. Where the Judges of the Supreme Court act in their official capacity in compliance with a formal Resolution, it cannot be said that the CJI acts as a fiduciary of the Judges and that he must, therefore, act in the interests of the Judges and not make such information public. According to him, unless the information sought can be excluded on the basis of one of the exemptions under Section 8 of the Act, the same cannot be denied merely on the classification of a document or on a plea of confidentiality, if the document is otherwise covered by the Act. FIDUCIARY RELATIONSHIP 97. As Waker defines it: A fiduciary is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect. He may not make any profit or advantage from the relationship without full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment, (d) Confidential information, (e) Commitment of job, (13) Tenant for life, (14) Co-owner, (15) Mortgagee, (16) Other qualified owners of property, (17) De facto guardian, (18) Receiver, (19) Insurance Company, (20) Trustee de son tort, (21) Co-heir, (22) Benamidar. 102. The CJI cannot be a fiduciary vis- -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. CONFIDENTIALITY 103. The Act defines which information will be in the public domain and includes within the definition any material in any form, including records, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity does not apply to information that is so generally accessible that, in all the circumstances, it cannot be regarded as confidential. The second is that the duty of confidence does not apply to information that is useless or trivial. The third limiting concept identified by Lord Goff is that in certain circumstances the public interest in maintaining confidence may be outweighed by the public interest in disclosure. Lord Goff summed up the matter as follows: (pg.282) The third limiting principle is of far greater importance. It is that, although the basis of the law s protection of confidence is that there is a law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be formally or legally ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles. If viewed from this perspective, it is immediately apparent that the CJI cannot be a fiduciary vis- -vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or be better trained, to aid or control their affairs or conduct. 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. In these circumstances, it cannot be held that asset information shared with the CJI, by the judges of the Supreme Court, are held by him in the capacity of a fiduciary, which if directed to be revealed, would result in breach of such duty. So far as the argument that the 1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an independent and distinctive concept originated in the field of Tort law, under which the new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects: (i) The ordinary law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (ii) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful government invasion. Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21. The first decision of the Supreme Court dealing with this aspect is Kharak Singh v. State of UP, AIR 1963 SC 1295. A more elaborate appraisal of this right took place in later decisions in Gobind v. State of MP, (1975) 2 SCC 148, R.Rajagopal v. State of T.N., (1994) 6 SCC 632 and District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496. 111. The freedom of information principle holds that, generally speaking, every citizen should have the right to obtain access to government records. The underlying rationale most frequently offered in support of the principle are, first, that the right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and, therefore, with a view to harmonize these conflicting interests while preserving the paramountacy of the democratic ideal, Section 8 has been enacted for providing certain exemptions from disclosure of information. Section 8 contains a well defined list of ten kinds of matters that cannot be made public. A perusal of the aforesaid provisions of Section 8 reveals that there are certain information contained in sub-clause (a), (b), (c), (f),(g) and (h), for which there is no obligation for giving such an information to any citizen; whereas information protected under sub-clause (d), (e) and (j) are protected information, but on the discretion and satisfaction of the competent authority that it would be in larger public interest to disclose such information, such information can be disclosed. These information, thus, have limited protection, the disclosure of which is dependent upon the satisfaction of the competent authority that it would be in larger public interest as against the protected interest to disclose such information. 114. There is an inherent tension between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - a distinction must be made between personal data inherent to the person and those that are not, and, therefore, affect his/her private life. To quote the words of the learned single Judge if public servants ---- are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or interest . ----- That the public servant has to make disclosures is a part of the system s endeavour to appraise itself of potential asset acquisitions which may have to be explained properly. However, such acquisitions can be made legitimately; no law bars public servants from acquiring properties or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for a private gain. Such personal information regarding asset disclosures need not be made public, unless public interest considerations dictates it, under Section 8(1)(j). This safeguard is made in public interest in favour of all public officials and public servants. 116. In the present case the particulars sought for by the respondent do not justify or warrant protection under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional separation of powers and have taken the position that the judicial branch itself must pass and enforce its own disclosure laws and rules. This is exactly what is achieved by the 1997 and 1999 Resolutions. Other unresolved issues relate to how to effectively and fairly implement and enforce disclosure laws and how much of this personal information should be publicly available and in what form. The author has pointed out that there are three basic sources of the assets declaration obligation: a) Constitutional Obligation: Some constitutions impose an obligation to disclose assets of public officials e.g. Colombia, Constitution Article 122. (b) Legislative Obligation: Some countries regulate asset disclosure by statute, although there are different types of Acts creating this obligation e.g. Poland, El Salvador, etc. c) Court rules: In some countries, such as United States, Argentina, the judiciary itself regulates the conduct of Judges. According to the author, while addressing the issue of assets disclosure, it is fundamental to find a balance between the kind of information that must be available to the public and the rights to privacy and security of the officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conference Committee with the task of submitting to the House and Senate Committee on the Judiciary an annual report documenting redactions. When a member of the public requests for a copy of judges financial disclosure report, the Committee sends a notification of the request to the judge in question asking the judge to respond in writing whether he would like to request new or additional redactions of information. If the judge does not request redaction from his/her report, a copy of the report is released to the requester. However, if the judge requests redaction upon receiving the request for a copy of the report, the Committee then votes on the redaction request, with a majority needed to approve or deny the request, and finally a copy of the report is released, with approved redactions, if any. 120. It will be useful to note certain developments which led to the federal judges asset information being placed on the internet. In September, 1999, APBnews.com ( APB ), a site focused on criminal justice news, requested for financial disclosure reports filed by federal judges in 1998. The Judicial Conference Committee denied this request in December, 1999 ruling that the disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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