Office of CJI is Public Authority: Kumar Vikram Aditya

Office of CJI is Public Authority.

Author: Kumar Vikram Aditya

Lecturer, Bihar Institute of Law

ISSN: 2582-3655

ABSTRACT

The paper analyses the views of the Supreme Court on whether the CJI is a public authority under the provisions of the RTI Act. RTI Act is a weapon in the hands of the public to gain information with respect to the working of the government and also ensures transparency in governance. Supreme Court has already held that Right to Information is a Fundamental Right under Article 19(1) (a). The Act provides that all the offices covered within the definition of the public authority under the RTI shall have a PIO and shall be liable to produce the information pursued by the citizens subject to the exceptions given under Section 8. The constitutional bench, in this case, analyzed the scope of the RTI that whether it covers the office of CJI or not. The majority held that the office of CJI is a public authority and thus the office must offer the information so pursed. But with this, the Court also tried to strike balance between the Right to Know and the Right to privacy. The court though upheld the Right of the information seeker to claim the information subject to the exception given under Section 8. This paper analyses the judgment in brief and places the importance of the judgment in the subject of RTI and the Judiciary.

INTRODUCTION

On 13th November 2019, Constitutional Bench of Supreme Court expanded the scope of application of RTI by concluding that CJI is a public authority under provisions of RTI. The decade-old dispute between the CPIO and Subhash Agarwal finally ended in the year 2019. Supreme Court upheld the decision of the Single judge bench of the Delhi High Court. The main issue before the Apex Court was the boundaries of RTI Act, 2005 in ‘the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.’[1]

BEGINNING OF THE CONFLICT FOR RIGHT TO INFORMATION

It all started with an application filed by the respondent on 10th November 2007 under the Right to Information Act, 2005 requesting the CPIO of the Hon’ble Supreme Court to provide him the copy of the resolution passed by all the judges of Supreme Court on 07th May 1997 which required every judge to make deceleration of assets in the form of real estate or investment held in their name of in name of any of their family member. He also requested the CPIO to publish the information concerning any declaration of assets etc filed by the High Court judges about their assets to their respective Hon’ble Chief Justices. The information was denied by CPIO, Supreme Court of India on the ground that the information was not maintained by the authority. On dismissal of the first appeal, Subhash Agarwal made a second appeal to CIC which directed the CPIO to disclose the information. The CPIO heard him again and dismissed his petition again stating that the applicant has resorted to a short-circuit procedure by approaching the CPIO, Supreme Court, when he knew the information sought, was related to various High Court and thus asked him to refer to the High Court, CPIO for such information. Later the CIC ruled that the Supreme Court of India is a Public Authority within the meaning of 2(h) of the RTI Act and it’s an institution/authority of which the Hon’ble Chief Justice of India is the Head. The matter went to the Delhi High Court that decided in the favour of the respondent. An appeal was filed by the appellant in the Supreme Court. 

When the matter went to Supreme Court, the full judge bench, which rejected the plea raised by CPIO, dismissed the appeal. Later the matter went to a constitutional bench where the appellant pleaded that similar to any other constitutional right RTI is also not an absolute right but is available within the framework of the RTI Act i.e. it is also subject to certain conditions and limitations. They claimed that the information sought by the respondent comes within the exception of the RTI Act i.e. Section 8(1)(j)[2] and has no public interest to serve. The respondents relied on the judgment given in State of U.P. v. Raj Narain[3] and S.P. Gupta v. Union of India[4] claiming that the information sought by the respondent doesn’t undermine the independence of the judiciary.

SUPREME COURT JUDGMENT

The court held that the “term ‘public authority’ under Section 2(h) of the RTI Act includes any authority or body or an institution of self-government established by the Constitution or under the Constitution and thus it will be wrong to presume that the Supreme Court of India is not a public authority[5]” as it’s been established under the Constitution of India[6]. It further concluded that the Apex Court do comprise of the CJI and other judges who are not a separate entity but part and parcel of it where the CJI is the head of the institution and thus the CJI along with the judges form the Apex Court which is a public authority under the RTI Act obliged to give information under section 4 of the Act. The same would hold true in the case of the High Court and the judges of the High Court.

Court next defined what comprises information under the act and held that the term has been given by the act broad and wide meaning and would mean any record or data contained in any form digital or traditional which includes information from the private institute too. Court further held that when the information is within the reach of the public authority from whom the information is ought, then the information must be furnished to the information seeker. The court also said that for the public authority to disclose the information, the information need not be in the physical vicinity of the authority rather ‘there must be an appropriate connection between the information and the authority’. The court further reiterated that information is of 3 types: – first are those that promote transparency and accountability, second are those which are held in the public authority, and third are those which are neither held nor controlled by the authority. The authority is bound to give the first and second information that promotes transparency and accountability and those held by the authority. The reason behind the disclosure of this information as given the bench was to promote transparency and openness in government.

With respect to the exception clause, the court held that the information sought shall be available to the applicant if accessible under the provisions of the act and doesn’t fall within the exception listed under section 8(1) and further divided given exception into two classes of which one contained under clause (d), (e) and (j), the court held them to be qualified prohibitions of conditional nature and not absolute exemptions. Where under 8(2) the authority can disclose the information ‘if the public interest in disclosure outweighs the harm to the protected interests’[7]. Further, the court also dealt with the exemption given under Section 9, 10, and 11 and held that the information so sought by the information seeker doesn’t fall in any of the exemptions.

The court also struck a balance between the Right to Know and the Right to privacy and said that ‘the former right has to be harmonized with the need for personal privacy, the confidentiality of the information and effective governance’.[8] The court observed that though the Right to information is not specifically given in the constitution but has been held to be part of Article 21 in K.S. Puttaswamy and Another v. Union of India and Others[9] and held it to be essential for liberty and dignity. The bench observed that privacy and confidentiality include information about one’s identity. The bench said that section 8 of the act does provide exception clause ‘and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual unless the disclosure would satisfy the larger public interest test’[10]. The court went in to examine several international judgments and gave an inclusive definition of what comprises of personal information. Court after examining the judgment of R.K. Jain v. Union of India[11] said that it won’t be feasible for the government to have absolute transparency and neither it would be desirable as some limitation is necessary to achieve the objective of internal and national security and diplomatic relations. The court then went to examine what comprises of public interest as mentioned under section 8(1)(j) and held that it would mean general welfare of the public warranting the disclosure and where the general welfare of the public outweighs the unwarranted invasion of privacy. Court further defined public interest and said that it means the interest of the public and is widely different from the term public welfare. The court observed that the objective of section 8 is to protect and shield oneself from unwarranted access to personal information.

The court also tried to strike a balance between judicial independence and judicial accountability and while examining the 4 judge cases held that ‘independence of the judiciary refers to both decisional and functional independence[12]’. The court said that the accountability and independence of an institution go in hand in hand and openness and transparency in the judicial appointment mechanism do elevate the confidence of the citizens in the working of a non-democratic institution.

The bench finally concluded that the order passed by CIC directing CPIO, Supreme Court for disclosure of the information on the judges of the Supreme Court who had declared their assets doesn’t impede upon the personal information and right to privacy of the judges. The court further directs the CPIO, Supreme Court to re-examine the matter and dismissed the appeal so filed by the CPIO, Supreme Court.

The independence of the judiciary has been independent from the fancies of the working government or the powerful executive but not independence from its own objective and aspiration of an accountable institution and answerable to the larger. 

SEPARATE OPINION OF JUSTICE N.V. RAMANA & JUSTICE D.Y. CHANDRACHUD

Justice N.V. Ramana is his separate judgment while concurring with the opinion of the majority opined that the case refers to the balance between two significant and conflicting fundamental rights i.e. Right to information and Right to privacy and said though they look conflicting in nature but are two sides of the same coin. He also opined that the literature with respect to the Right to privacy is at the infant stage. He claimed the final arbiter status of the apex court in any disputes in India and also the highest court of constitutional matter. The statement and object of the act i.e. informed citizen and transparent government do help us achieve the objective of the constitution. India is a democratic nation. He opined that there is a need to harmonise these conflicting interests and also to safeguard the goals of the constitution to achieve a democratic nation. He said that the definition of information given under the RTI Act covers all sorts of information either held or controlled by the public authority. Next section 3 gives the right to the citizen, subject to restrictions given, all kinds of information, and section 4 imposes an obligation on the public authority to give such information. The restriction mentioned in section 3 is elaborately dealt under section 8 which has the marginal note as ‘Exemption from the disclosure of information’. Dealing with all these provisions he further added that RTI stems from Article 19(1)(a) of the constitution which guarantees freedom of expression and to effectively exercise it, citizen news to be informed about government functioning and activities. To see whether an authority is obliged to give information that is required to be seen is the nature of information in relation to the authority concerned and in the present case as CJI is the administrative head of the Supreme Court the contention of the appellant to not disclose the information is not true. The claim of the appellant that the said information is private information and falls under the exception clause of section 8 of RTI, Hon’ble J. Ramana opined that to know whether the information is private or not two steps test could be performed, first is to know whether there was a reasonable expectation of privacy and secondly whether balancing between privacy and disclosure, does privacy give way to freedom of expression? He gave a list of certain non-exhaustive factors to determine whether there was a reasonable expectation of privacy and after the expectation, the court then has to look upon the ‘larger public interest’. He further stated that for balancing one need to pass the proportionality test i.e. whether there lies a compelling reason for the information and does it serve the objective of our constitution. If the above requirements are fulfilled i.e. there is no reasonable expectation of privacy and the disclosure will serve the larger public interest then such information has to be disclosed. The disclosure of the information so sought by the information seeker is important also to maintain one of the basic structures of our constitution i.e. Judicial Independence. Though, he warned that transparency must not be absolute and must not become a tool of surveillance.

Further Justice D.Y. Chandrachud also gave his separate opinion. He sought to examine the relevance of the judgment of S.P. Gupta[13] in the present scenario. He noted that the correspondence held between the then CJI, Chief Justice of Delhi High Court, and the law minister were held not protected under Section 123 and 162 of the Indian Evidence Act as the disclosure is not injurious to the public interest and neither detriment the judicial side public interest. This was a balancing exercise between then public harm of disclosure and the larger public interest of the information but this was not a general rule with respect to the disclosure of correspondence between the constitutional functionaries. The court said the correspondence between the functionaries to falls in ‘class immunity’ must be done only in case of severest compulsion of requirement i.e. in rarest of rare cases and further observed that the correspondence doesn’t fall or protected by ‘class immunity’. Thus J Chandrachud finally concluded that there must be a disclosure of the facts which are serving greater public interests. He then dealt with the question that whether this disclosure violates the concept of Judicial Independence. He observed various provisions in the constitution from the procedure of appointment to the security of tenure and salary and said that the strong foundation has been laid down with respect to independence of judiciary, but concluded that increasing transparency won’t threaten the independence of judiciary. He further examined the decision of the apex court with respect to the independence of the judiciary from L. Chandra Kumar v. Union of India[14] to Supreme Court Advocates-on-Record Association v Union of India[15] and highlighted the need for greater transparency and accountability in the matter of appointment of judges. He also highlighted the importance of transparency in the world’s largest democratic country by concluding that judicial independence can’t be used as a byword for avoiding the accountability required for the proper functioning of a democratic nation. He further said that true judicial independence is not to shield the wrongdoing but an instrument to fulfill the goals set in our preamble. He added that where judicial independence is constitutionally guaranteed freedom, judicial accountability is the manner in which the given freedom is exercised. Accountability is attached to the elected post i.e. the democratically elected government and a non-democratic institution both. He lastly distinguished between personal information and the information that can be disclosed under the RTI Act and directed CPIO to undertake an enquiry on case to case basis to determine that the disclosure is justified or not.


[1]Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal,2019 SCCOnLine SC 1459 (India).

[2]The Right to Information Act, 2005, No. 22, Acts of Parliament, 2005 (India).

[3]State of U.P. v. Raj Narain ,AIR 1975 SC 865 (India).

[4]S.P. Gupta v. Union of India,AIR 1982 SC 149 (India).

[5]Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 SCCOnLine SC 1459 (India).

[6]INDIA CONST. art. 124, cl. 1.

[7]Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 SCCOnLine SC 1459 (India).

[8]Central Public Information Officer, Supreme Court of India v.Subhash Chandra Agarwal, 2019 SCCOnLine SC 1459 (India).

[9]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1(India).

[10]Central Public Information Officer, Supreme Court of India v.Subhash Chandra Agarwal, 2019 SCCOnLine SC 1459 (India).

[11]R.K. Jain v. Union of India, (1993) 4 SCC 119 (India).

[12]Central Public Information Officer, Supreme Court of India v.Subhash Chandra Agarwal, 2019 SCCOnLine SC 1459 (India).

[13]S.P. Gupta v. Union of India, AIR 1982 SC 149 (India).

[14]L. Chandra Kumar v. Union of India, 1987 (1) SCC 124(India).

[15]Supreme Court Advocates-on-Record Association v Union of India,(2016) 5 SCC 1(India).

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