CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL

    Case in the Supreme Court of India.
    Civil Appeal No. 10044 of 2010 W.P. (C) 288/2009
    Date of Final Judgement: 13th November, 2019
    Petitioner – Central Public Information Officer, SC
    Respondent – Subhash Chandra Agarwal

    Overview
    The Constitution Bench of Supreme Court held that The Supreme Court along with its Chief Justice and other Judges is a ‘Public Authority’ and is subject to the Right to Information Act 2005.


    Facts
    The present case is a culmination of 3 separate appeals filed by Subhash Chandra Agrawal, a Right to Information Activist seeking information under the RTI Act. The first appeal was regarding the production of a copy of complete correspondence by the then Chief Justice of India on the basis of a newspaper report. The report allegedly claimed about a Union Minister having approached Justice R Raghupathi, through a lawyer to influence his decision making. The second appeal involved the disclosure regarding the Collegium’s decision making in November of 2009. It was related to the appointment of 3 judges namely Justice H.L. Dattu, A.K. Ganguly and R.M. Lodha over their seniors Justice A.P. Shah, A.K. Patnaik and V.K. Gupta.

    The third appeal was also filled under The RTI Act in the Delhi High Court and was in relation to the declaration of assets made by the judges to the Chief Justice of Supreme Court and the Chief Justices in the states.
    The Central Information Commissioner (a legislative body constituted by the RTI Act 2005 designed to ensure the execution of the same) ordered Supreme Court to provide the respondent with the information he requires relating to the Collegium’s decision-making process along with that regarding the personal assets of judges. In within a month, Supreme Court, Central Public Information Officer (to be referred as SC, CPIO from hereinafter) stayed the CIC order on 4th December itself.

    The SC, CPIO challenged the above-mentioned order by going into appeal 4 times before finally being referred to a five-judge constitution bench of The Supreme Court on 17th August 2018. Three central issues were established that became the substantial question of law in this case, namely:

    • Will the disclosure of information lead to an interference in the Independence of Judiciary? Therefore, will it even prove to be beneficial in the public interest?
    • Will disclosing the information erode the credibility of the decisions along with curtailing “the free and frank expression” of the honest opinion of Collegium members which is necessary for ensuring an honest, fair and ethical decision?
    • Is the information sought for exempted under Section 8(1)(j) of the RTI Act which prevents the disclosure of “personal information” that has “no relationship to any public activity or interest?”

    Judgement
    The constitution bench reserved its judgement on 4th April 2019 which was further pronounced on 13th November by The Supreme Court of India. Three opinions were put forward by the bench in which the majority judgement was pronounced by Justice Khanna. He put forward four observations:

    • The Supreme Court of India is a public authority (as defined under Section 2(h) of the RTI Act) as it was established by or under the Constitution via Article 124 and the Chief Justice of India is not a separate public authority but a part of the former.
    • Justice Khanna examines the exceptions on fiduciary and personal information under Sections 8(1)(e) and (j), and the requirements regarding third party information under Section 11(1). He re-iterates that the disclosure of information under both the sections depends on what is held to be in the public interest in a given scenario considering any ‘potential injury to the interests of the third party’. He finds in accordance with para 33 of the original judgement that a Chief Justice is not in any fiduciary relation with other judges but can be asserted differently on a case-to-case basis. He emphasizes that under Section 8(1)(j), the ‘competent authority’ (The Chief Justice of India) can direct the CPIO to disclose the information if held to be in the larger public interest. He also states that the same section protects both ‘The right to confidentiality’ as well as ‘The right to privacy’ under Article 21.
    • He went on to explain the meaning of ‘Public Interest’ as it often applies to RTI legislations to balance right to access and protection of conflicting right to deny access. For this purpose, the Court relied on a Supreme Court judgement in BPSC v. Saiyed Hussain Abbas Rizwi and Another which differentiated between information ‘in public interest’ and ‘which is of the interest to public’. He asserted that public interest has to be understood in the terms of in the interest of constitutional democracy.
    • He stressed that ‘Judicial Independence’ is in the public interest as it is a part of the basic structure of the Constitution (S.P. Gupta Case). Although, he further stated that it sometimes requires ‘openness and transparency’ as it is not always opposed to the right to information.


    Concurring Judgements
    Both Justice Ramana and Justice D.Y. Chandrachud agreed with the majority judgement given by Justice Khanna but also gave their separate judgements. Both of them agreed with the proportionality test provided in Puttaswamy Case within which the information seeker needs to prove that public interest warrants an abridgement of the right to privacy. Justice Ramana stated that, “We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary.” Justice Chandrachud directs that the judicial appointments need to be put in the public realm because “making them accountable in the discharge of that trust does not dilute their independence.” He further asserts that there exists no fiduciary relation between the Chief Justice and judges and the information pertaining to personal assets is held in ‘official’ capacity. He noted that the duties of frankness, disclosure and accounting are based on the premise of judicial transparency and judicial honesty.

    Supreme Court on the basis of the judgement directed CPIO to re-examine the request pertaining to correspondences between the Collegium and the government regarding the decision making by taking into account the objections, if any, by third parties. In regards to the third appeal, the Court upheld Delhi High Court’s judgement and directed CPIO to disclose information regarding assets to the respondent.