Supreme Court: In yet another historic verdict, the 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the mjority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion.
Majority Verdict penned by Sanjiv Khanna, J
“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”
Section 8(1)(j) vis-à-vis Section 11 of the RTI Act
Section 8(1)(j) specifically refers to invasion of the right to privacy of an individual 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. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest.
On the relative scope of both the provisions, the Court said,
“the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority.”
Public Interest Test
The Court said that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.
Some of the important aspects highlighted by the Court are as follows:
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- 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.
- 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.
- ‘Motive’ and ‘purpose’ for making the request for information is irrelevant and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test.
Judicial Independence
The independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like.
The Court said that 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. It, however, said,
“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.”
The Court concluded by saying that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.
Delhi High Court’s Judgment
The Court upheld the 2010 Delhi High Court verdict where it had directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. The Court said that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.
NV Ramana, J’s separate but concurring opinion
“Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”
Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps
First Step: Whether information is private or not
- The nature of information.
- Impact on private life.
- Improper conduct.
- Criminality
- Place where the activity occurred or the information was found.
- Attributes of claimants such as being a public figure, a minor etc and their reputation.
- Absence of consent.
- Circumstances and purposes for which the information came into the hands of the publishers.
- Effect on the claimant.
- Intrusion’s nature and purpose
Second step: Whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act
- Nature and content of the information
- Consequences of non-disclosure; dangers and benefits to public
- Type of confidential obligation.
- Beliefs of the confidant; reasonable suspicion
- Party to whom information is disclosed
- Manner in which information acquired
- Public and private interests
- Freedom of expression and proportionality.
Chandrachud, J’s separate but concurring opinion
“To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”
Though Chandrachud, J noticed that to be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’ and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said
“But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve.”
He further said that the judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power.
[Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459, decided on 13.11.2019]
