Judgment in Plain EnglishRTI and Judicial Independence
On November 13th, the Supreme Court delivered its verdict in a set of appeals pertaining to the scope of Right to Information (RTI) Act, 2005 with respect to the Supreme Court itself. In particular, it was hearing appeals to three Central Information Commission (CIC) orders under the RTI Act. The orders directed the Central Public Information Officer (CPIO) of the Supreme Court to divulge information regarding:
- Collegium decision-making: all files, including correspondences between the Collegium and Union relating to the appointment of Justices H.L. Dattu, A.K. Ganguly and R.M. Lodha.
- Personal assets of judges: (i) a copy of the resolution passed by the Judges of the Supreme Court on 7 May 2007 ‘which required every judge to make a declaration of assets in the form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice’ [already provided to respondent in 2008]; (ii) confirmation of whether Supreme Court and/or High Court judges have declared such information to the Chief Justice of India (CJI) (see paragraph 28-30 of CIC order).
- CJI correspondences [unable to access Appeal CIC/WB/A/2009/000859 on CIC website]: complete correspondence exchanged with the CJI in regards to a Union Minister having allegedly approached Justice R. Raghupati of the Madras High Court, through a lawyer to influence a judicial decision, including the name of the Minister and lawyer.
The Supreme Court’s CPIO (hereafter ‘SC CPIO’) appealed the first and third CIC orders directly to the Supreme Court. However, he appealed the second order to the Delhi High Court first. In 2009, a single-judge, Justice Ravindra Bhat upheld the CIC order. This was again appealed, leading a three-judge Bench of the High Court to refer the matter to the Supreme Court.
On August 17th 2016, the appeals were referred to a Constitution Bench and the following issues were framed:
- “Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
- “Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?”
- “Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act?”
Section 8(1)(j) exempts personal information from RTI requests. However, the exemption is subject to the ‘larger public interest’.
No absolute finding
After two days of oral arguments in April 2019, the Supreme Court delivered its judgment on 13 November 2019. The Bench comprising Chief Justice Ranjan Gogoi, N.V. Ramana, D.Y. Chandrachud, Deepak Gupta and Justice Sanjiv Khanna produced three separate opinions:
- Majority opinion authored by Justice Khanna and signed by all Justices.
- Concurring opinion by Justice Ramana
- Concurring opinion by Justice Chandrachud
The majority opinion offered no general finding on whether Collegium decision-making, personal asset disclosures and the correspondences of the CJI are universally subject to RTI disclosures. However, it held that transparency can be in the interest of judicial independence. It also held that concerns about the ‘free and frank expression’ of Collegium members are alone not sufficient to bar information disclosure. In effect, the judgment allows RTI requests to be decided on a case-by-case basis, under the discretion of the CPIO or the ‘competent authority’ (Chief Justice of Supreme Court) depending on the request.
Selection criteria for judicial appointments should be made public
As with regards to the CIC orders, the judgment held the following:
CIC Order 1: Return to the SC CPIO for re-examination by an order of remit. SC CPIO to reach decision after issuing notice to ‘third parties’ and considering their objections, if any, under Section 11(1) of the RTI Act.
CIC Order 2: CIC order and Delhi High Court judgment upheld. SC CPIO to furnish information to respondent. Sections 8(1)(e), (j) and 11(1) held not to apply, as ‘details and contents of personal assets’ not sought.
CIC Order 3: Same as ‘CIC Order 1’.
Below we detail the observations in each of the three opinions.
Justice Khanna’s Observations
Justice Khanna authored the majority opinion on behalf of all five judges on the Bench. He observed that the aim of the RTI Act is to balance the competing needs for transparency and accountability with those for the efficient operation of the State and the preservation of confidentiality. In the context of the current appeals, he says that the Court must harmonize the right to information, with judicial independence and the rights to privacy and confidentiality. He asserts that both disclosure and non-disclosure can be found to be in the public interest. Hence, he says that in adjudicating RTI requests, one must weigh competing claims of public interest.
Restrictions on right to information
Justice Khanna looks closely at restrictions placed on the right to information by the RTI Act. In particular, he looks at the exemptions on fiduciary and personal information, under Sections 8(1)(e) and (j), and the requirements regarding third party information under Section 11(1). He lays out how they may restrict the disclosure of information relating to the Supreme Court. He finds that whether information should be disclosed ultimately depends on what is held to be in the public interest in a given scenario.
He begins with the restrictions placed on disclosing fiduciary information under Section 8(1)(e). A ‘fiduciary relationship’ is between ‘a person having a duty to act for the benefit of another…where such other reposes trust and special confidence in the person owing or discharging the duty’ (para. 32). For example, someone who holds something in trust for another (beneficiary), is a fiduciary. Relying on Reserve Bank of India v. Jayantilal Mistry (2016 3 SCC 525), he says there are four parameters for generally assessing whether a relationship is fiduciary in nature: (1) faithful integrity (2) control and responsibility, (3) duty to act or advise, or (4) traditionally recognised as involving fiduciary duties, as with a lawyer and a client’ (para. 33).
He concludes that the Chief Justice is ordinarily not in a fiduciary relationship with other judges. However, he asserts that this must be tested on a case-by-case basis using the above parameters. He clarifies that relationship may be partly fiduciary and partly non-fiduciary and that whether information disclosure is appropriate must depend on the context (paras. 34-35).
Ultimately, whether information held in a fiduciary capacity can be publicly disclosed is subject to the ‘larger public interest’. Justice Khanna emphasises that under Section 8(1)(e) of the RTI Act, the ‘competent authority’ may decide that it is in the larger public interest to release information held in a fiduciary capacity. In the context of the Supreme Court, the Act specifies that the competent authority is the Chief Justice of India.
Turning to Section 8(1)(j), Justice Khanna establishes what types of information are generally considered personal information, referring to case law. While the list he provides is not exhaustive, it is very lengthy, and includes such information as medical records and disciplinary proceedings (para. 59). He elaborates that information must be tested to establish whether it is public or private (paras. 50-51).
He then goes on to observe that Section 8(1)(j) does not only protect the right to confidentiality, but also the fundamental right to privacy, which is more expansive. He explains that while confidentiality stems from the duty of good faith, personal informational privacy flows from the right to life and liberty under Article 21 of the Constitution. Referring to Puttaswamy (2017 10 SCC 1), he describes a three-fold test for assessing whether a restriction on personal liberty is justified: (i) existence of a law; (ii) legitimate State aim; (iii) proportionality – rational nexus between aim and means used to achieve it (para. 42). He holds that the RTI Act and the aim it postulates fulfill the first two requirements. Further, he says that the third requirement is fulfilled by Sections 8(1)(j) and 11 of the Act (para. 42).
As is such for the fiduciary exemption, the personal information exemption is also subject to public interest. Justice Khanna emphasises that Section 8(1)(j) directs the CPIO to disclose personal information if it is held to be in the larger public interest. How the CPIO should go about this will be elaborated in the next section on ‘public interest’.
Finally, Section 11 of the RTI Act places restrictions on information disclosures that relate to or have been supplied ‘by a third party’. Justice Khanna explains that this provision provides for the protection of confidentiality (para. 61). He says that this provision is broader in scope than Section 8(1)(j), as it doesn’t necessarily pertain to personal information. For example, a third party may hold information on the ‘inner workings’ of government (paras. 65-67). In instances where third parties are involved, the CPIO must inform all such parties and allow them to submit objections. The CPIO has the discretion to decide whether it is in the public interest to disclose the information, placing due weight on any ‘potential injury or harm to the interests of the third party’ (para. 70).
It should also be noted that Justice Khanna made brief observations about the relation between the RTI Act and Official Secrets Act, 1923. Referring of Sections 8(2) and 22, he said that all information accessible by a public authority (in this instance the Supreme Court) are subject to RTI requests, even if there are prohibitions under another law, such as the Official Secrets Act. However, the public authority must decide whether public interest in disclosure outweighs any potential harm to protected interests.
What is Public Interest?
Ultimately, whether information should be disclosed or not, hinges on whether it is in the public interest to do so. Justice Khanna explains that public interest has many facets, including the restrictions discussed above. For example, when a CPIO is deciding whether or not to disclose personal information, he/she must weigh the public interest in the right to privacy against that of the right to information.
Justice Khanna emphasises that public interest must be understood as public welfare (para. 75). He explains that the RTI Act does not imagine public interest simply to mean ‘something which is of interest to the public’, such as for example gossip about a celebrity. Rather, public interest must be understood in terms of in the interest of constitutional democracy. Therefore, concepts such as the right to information, privacy, confidentiality or the independence of the judiciary are said to be in public interest.
The question becomes how ought a CPIO or ‘competent authority’ weigh competing public interest claims in a given factual scenario. Justice Khanna does not lay out a detailed test. However, he provides some general guidelines. He refers to Paterson and McDonagh’s “Freedom of information and the public interest: the Commonwealth experience”(Oxford University Commonwealth Law Journal), which identifies (a) factors for disclosure, (b) factors against disclosure and (c) irrelevant factors (para. 78). Further, he stresses that a CPIO or ‘competent authority’ cannot use a utilitarian calculus to weigh competing claims. For example, it is irrelevant if the number of people seeking disclosure is more than those opposed to it (para. 78). Importantly, he notes that whether or not the disclosure of particular information is in the public interest may change over time (para. 78). Lastly, he observes that the interests of the person seeking disclosure may be relevant (note that Section 6(2) of the Act stipulates an RTI request may be filed without providing reasons for disclosure) (para. 79).
He concludes that the discretionary power to decide whether fulfilling specific RTI requests are in the public interest rests with the Public Information Officer and the appellate forums, under the RTI Act. In the case of the Supreme Court, the Public Information Officer is the SC CPIO.
Judicial Independence and Transparency
Justice Khanna stresses that judicial independence is in the public interest. Referring to S.P. Gupta (1981 Supp SCC 87), he explains that the independence of the judiciary is a part of the basic structure of the Constitution. Further, he suggests that judicial independence cannot merely be understood in terms of the judiciary’s relationship with the other constitutional branches of the State, namely the legislature and executive. He says judges must be able to operate with a ‘fearlessness from other power centers, social, economic and political’ (para. 86). As such, Justice Khanna holds that judicial independence is a key consideration when adjudicating on RTI requests directed at the Supreme Court.
However, it does not follow that the demand for judicial independence is always in opposition with the right to information, according to Justice Khanna. He says that judicial independence sometimes requires ‘openness and transparency’ (para. 88). In effect, public disclosure can fortify the judiciary’s independence.
Supreme Court as Public Authority
Justice Khanna makes an important clarification with regards the question of the role of the Chief Justice in the RTI scheme. Under the RTI Act, citizens may request information that is held by a ‘public authority’. Under Section 2(h)(a) a public authority is any institution established ‘by or under the Constitution’. Since Article 124 of the Constitution establishes the Supreme Court of India, it follows that the Supreme Court is a public authority.
The question arose as to whether the Chief Justice of India is a public authority and, if so, a separate one from the Supreme Court. Justice Khanna holds that the Supreme Court necessarily includes the office of the Chief Justice under Article 124. Therefore, he says that the Chief Justice constitutes the ‘public authority’ that is the Supreme Court. He clarifies that the Chief Justice is not a separate public authority (para. 14).
It is significant that Justice Khanna establishes that the Chief Justice forms a part of the Supreme Court under the RTI scheme. The SC CPIO appealed the second CIC order partially on the ground that the information rested with the office of the Chief Justice and therefore was beyond his purview. Justice Khanna dismisses this ground.
Justice Ramana’s Observations
Justice N.V. Ramana presents a short concurring opinion with the aim of expanding upon how Public Information Officers and other relevant authorities can assess RTI exemptions. In particular, he says he wishes to elaborate on how the right to privacy can be balanced against the need for transparency and accountability.
Focusing on Section 8(1)(j), Justice Ramana expands upon how a CPIO may assess whether disclosing personal information is in the ‘larger public interest’. He says there is a two-step test that applies: (i) is there a reasonable expectation of privacy; (ii) on a balancing analysis, does ‘privacy give way to freedom of expression’ (para. 35)? The CPIO must first determine whether the information sought, can reasonably be expected to be private. Second, the CPIO must assess whether to place more weight on the right to information (facet of freedom of expression) than the right to privacy, in the given factual context.
Elaborating on the first part of the test, he provides a non-exhaustive list of factors that CPIOs must consider when determining reasonable expectation. These include the nature of information sought, consent and the purpose of intrusion. Further, he says that certain information is inherently private, such as age and sexual preference (para. 37). Only if there is a reasonable expectation of privacy, must the CPIO then engage in a balancing analysis.
Turning to the second part, he explains that the CPIO must apply the proportionality test provided in Puttaswamy (2017 10 SCC 1). The CPIO must assess whether disclosure would curtail the right to privacy in a proportional manner to the aim of the RTI Act (i.e. increasing ‘transparency and accountability’). He explains that this entails testing if the information seeker has showed a ‘pressing social need’ in favour of disclosure (para. 41). In this manner, he places the burden on the information seeker to demonstrate that public interest warrants an abridgement of the right to privacy.
Justice D.Y. Chandrachud
Justice Chandrachud’s opinion is longer than the unanimous opinion authored by Justice Khanna. For the most part, Justice Chandrachud makes the same observations as Justice Khanna. However, there are some important differences between the two opinions. For the sake of this summary, we have only gone into sections of Justice Chandrachud’s opinion which diverge from Justice Khanna’s.
It is worth recalling that Justice Chandrachud also signed Justice Khanna’s opinion.
Selection criteria for judicial appointments made public
Justice Chandrachud directed that the selection criteria for judicial appointments must be clearly defined and placed in the public realm. He says there is a ‘vital public interest’ in knowing the norms which are taken into consideration for judicial appointments. He elaborates that transparent selection criteria will ensure ‘consistency in application’ and further trust in the appointment process (para. 117).
He details what he calls the ‘essential substantial norms’ for judicial appointments. These include not only norms relating to merit, but also those of ‘inclusion’ and ‘diversity’. The full list is available on paragraph 117 of his judgment.
Proportionality – weighing privacy against the right to know
Justice Chandrachud attempts to develop a more substantial method for weighing privacy against right to information claims, than is offered in the unanimous opinion.The right to informational privacy flows primarily from Article 21 of the Constitution, as established in Puttaswamy (2017 10 SCC 1). On the other hand, the right to information stems from the right to free expression under Article 19(1)(a). Justice Chandrachud provides a method that relevant authorities can apply when balancing privacy and the larger public interest.
Justice Chandrachud evolves the method out of the three-fold test laid out in Puttaswamy. As you may recall, any restriction on privacy must meet this test, whose components are: (i) existence of a law; (ii) legitimate State aim; (iii) proportionality. In the context of public information disclosure under the RTI Act, the first two conditions are automatically met. The Act is a law that actualises the legitimate State aim of increasing ‘transparency and accountability’. The third part must be met in order to justify disclosing ‘personal information’. The right to privacy can only be abridged, if doing so is proportionate to the legitimate aim sought by enforcing a countervailing right. Determining whether disclosing personal information is in the larger public interest, necessitates applying the proportionality test.
Justice Chandrachud observes that the test must be applied on a case-by-case basis: ‘factors that weigh in favour of disclosure in the “public interest” are specific to each case’. Nevertheless, he provides some guidance. First, he provides a list of relevant factors to consider (para. 107). More significantly, he provides an ‘analytical framework’ for CPIOs to follow in assessing Section 8(1)(j) exemptions (para. 110-113). Notably, he emphasises that CPIOs must provide ‘detailed reasons’ within his framework, when deciding whether or not to disclose ‘personal information’ under Section 8(1)(j).
Justice Chandrachud’s ‘analytical framework’ contains three-parts (para. 110-113). The first question the CPIO must ask is whether the information sought is personal. Justice Chandrachud details how to identify personal information in paragraphs 90 to 97 of his opinion. Second, the CPIO must clearly identify the rights being claimed by each party. The CPIO must factor in what the justifications may be for restricting each right and whether this is countenanced under the RTI scheme. Finally, the CPIO must apply the principle of proportionality to determine whether disclosing the information sought is proportional to the aim of ‘transparency and accountability’.
In many ways, Justice Chandrachud’s ‘analytical framework’ shares similarities with Justice Ramana’s two-fold test. However, it is perhaps more detailed in nature. Further, unlike Justice Ramana, Justice Chandrachud requires that the CPIO ‘records detailed reasons’ when using the framework. In this manner, he puts in place safeguards to prevent the arbitrary exercise of power by Public Information Officers.
Unlike Justice Khanna, Justice Chandrachud offers a general finding on whether the Chief Justice holds information pertaining to judges’ personal assets in a fiduciary capacity. Justice Khanna simply observes that the Chief Justice generally is not in a fiduciary relationship with other judges. He upholds the second CIC order without going into the fiduciary exemption question. The respondent did not seek the details of personal assets, but only whether judges had declared them to the Chief Justices. Hence, Justice Khanna says Section 8(1)(e) of the RTI Act does not apply. Thereby, he leaves open the question of whether the details of judges’ personal assets are subject to RTI disclosure.
On the other hand, Justice Chandrachud asserts that the information the Chief Justice holds pertaining to judges personal assets is not held in a fiduciary capacity, but rather an ‘official’ capacity (para. 69). More precisely, he says that the information the Chief Justice holds due to the 7 May 2007 Resolution, under which judges disclose their personal assets to the Chief Justice, is not held in a fiduciary capacity. In doing so, Justice Chandrachud upholds the 2010 Delhi High Court judgment, which observed ‘the CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of the Supreme Court hold independent office, and there is no hierarchy, in their judicial functions…The declarations [under the 1997 Resolution] 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’ (para. 68).
Thereby, Justice Chandrachud leaves the door open for future RTI request, seeking the details of personal assets of judges shared with the Chief Justice of India.
Justice Chandrachud makes a more detailed analysis of the application of S.P. Gupta (1981 Supp SCC 87) to the appeals, than Justice Khanna. Like Justice Khanna, he finds that the ‘candour argument’ does not prevent the disclosure of information pertaining to Collegium decision-making. The ‘candour argument’ posits that disclosure may prevent Collegium members from speaking freely and frankly during deliberations.
Unlike Justice Khanna, Justice Chandrachud also goes into the ‘class immunity’ argument. According to the class immunity argument, certain documents fall under a ‘protected class of documents’. S.P. Gupta rejects that ‘notings’ made by ‘constitutional functionaries’ regarding the appointment of Supreme Court or High Court judges belong to a protected class of documents (para. 33). Justice Chandrachud agrees and holds that the confidentiality of documents must always be weighed against public interest, in particular the need for transparency and accountability.