Asmita Kuvalekar | Government Law College, Mumbai | 26th March 2020.
CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V SUBHASH CHANDRA AGARWAL (CIVIL APPEAL NO 10044 OF 2010)
FACTS OF THE CASE:
This case dives deep into the question of transparency of Constitutional institutions such as the Judiciary. How transparent is transparent enough and how to equate right to information with right to privacy/confidentiality? Through this judgement, the Apex Court analyses whether the Supreme Court is a public authority under the Right to Information Act (RTI Act), 2005. It also peruses the nature of the power given to citizens under the Act.
The respondent was denied information about a Chief Justice of India (hereinafter referred to as ‘the CJI’) inquiry on the grounds that, data regarding appointment of judges, declaration of assets by judges etc. was not kept and was confidential; therefore it could not be provided. In an appeal of this decision however, the respondent’s request was accepted by the Central Information Commission (hereinafter, ‘CIC’) based on Delhi High Court’s judgement in S.P Gupta v Union of India and Os1
The present appeal against such acceptance by the CIC calls upon the Supreme Court to give its final word on the judiciary’s independent functioning vis a vis disclosure of sensitive information to the public under the RTI Act. The appellants hold that RTI is not limitless and Section 8 of the Act affords certain important exceptions to disclosure. On the other hand, the Respondent argues that exemptions under Section 8 can be outweighed by larger questions of public interest and that the only fiduciary relationship any Constitutional institution can claim is the one it has with the people as the latter entrust such institutions with their faith.
- Whether disclosure undermines the independence of the Judiciary?
- Whether the CJI’s office comes under the purview of the RTI Act?
With reference to its judgement in Thalappalam Service Cooperative Bank Limited and Others v State of Kerala and Others2, the Court clarified that the Supreme Court is a public authority and the office of CJI or other judges cannot be said to be different and exclusive from the Supreme Court. The judges and the CJI constitute the Supreme Court and therefore any information sought with respect to the CJI or the SC Judges, is information regarding the Court itself. In its own words, “The Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority.” The same principle would apply to all High Courts and the judges and the Chief Justices therein.
Further, the Court set out the exceptions under Section 8 of the RTI Act with due consideration of the object of the statute. It was held that the exceptions help to achieve a balance between citizens’ fundamental right of speech and expression which includes the right to gain information about the functioning of the Government and the smooth administration of the government by taking recourse to exemption from disclosure. This harmony is essential in the preservation of democratic ideals that the Indian Constitution and the Act strive to uphold.
In that regard, the Court ruled that Supreme Court judges in the given facts and circumstances were not in a fiduciary relationship with each other, including the Chief Justice of India. The term ‘fiduciary relationship’ means a relationship where one person is under a duty to act for the benefit of the other or where both persons are under a duty to act for the benefit and welfare of each other. Thus the appellants’ argument regarding the confidential nature of the Supreme Court’s inner functioning regarding declaration of assets etc. is without substance and protection of Section 8 cannot be afforded. Going a step further, the Court explained the public interest test which provides 3 important exceptions to the cover of confidentiality and privacy. The first is wrongdoing, the second is misleading of the public and the third is matters of public concern as distinguished from mere public curiosity. If any or all 3 can be proved, a public authority would no longer be able to take recourse to the exemption of privacy/confidentiality. As such, public interest is superior to possible injury to a public authority’s interests. Reiterating the stand taken in S.P Gupta v Union of India and Os, it was declared that upholding public interest presumes a system of transparency and accountability and to that end, Courts must avoid secrecy to meet the higher goal of true democracy.
Acceding that no jurist ought to encourage absolute transparency at the risk of hindering sensitive government functions, the judgement nevertheless draws attention to the dangers of secrecy in a democracy. It underlines thereby the judicial duty of delimiting disclosure with respect to specific facts and circumstances of every case. The key question in such deliberations must always be the advancement of public interest rather than protection of private rights.
On the question of judicial independence therefore, the Constitutional Bench held that it can be divided into decisional and functional independence. Both have to be protected but that cannot be interpreted to mean that an institution’s independence can be maintained only by denying access to data. Sometimes, the goal can be achieved by allowing the public to peruse records. The type and nature of requested information must be the key factors in making a decision thereon. Thus, no definitive answer is possible and judicial independence must always be weighed in terms of disclosure promoting public interest.
To that end, declarations made to the CJI by other judges are not held by the CJI’s office in confidence as argued by the appellants. This is so because no fiduciary capacity can be said to exist between the two. Therefore, the Chief Justice of India also holds a public office and is subject to the provisions of the RTI Act with all requisite exceptions as may be afforded in meritorious circumstances.
- (1981) Supp SCC 87
- (2013) 16 SCC 82