“Judicial independence was not a judge’s privilege, but a responsibility cast upon him”

Delhi HC, 2010

There has been a lot of news in recent times on the topic that the office of Chief Justice of India will come under Right to Information Act, 2005. The constitutional bench of the Supreme Court gave its verdict after nine years of filing petition that the office of CJI will come under the purview of RTI Act but is subject to certain conditions. The constitutional bench consisted of Chief Justice Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Sanjeev Khanna and Deepak Gupta. On 13^th November 2019, the judgment was pronounced.

The Background of the case

Right to Information Act was passed in 2005 in order to bring transparency in public authorities and to curb corruption. In 2009, a Delhi based RTI activist Subash Agrawal filed  RTI to get information whether the judges of the Supreme Court according to the resolution passed in 1997 stating “that every judge should make a declaration and disclose of all his/her assets in the form of real estate or investments (held by the judge in own name, spouse’s name or dependent family member) in a reasonable time” has declared their assets and liabilities to CJI or not. He did not ask for the data but just the information.

The Central Public Information Officer (CPIO) of the Supreme Court refused to give any such information stating the office of the CJI was not a public authority under RTI act. The matter then came before the  Chief Information Commission which ordered in favour of Subhash Agarwal and directed the Supreme Court to disclose the information. The Supreme Court then approached the Delhi High Court against the order of Cheif Information Commission in September 2009, here it was held that the office of the Chief Justice of India is a public authority and comes under RTI Act and is covered by its provisions. Now the office of Supreme Court approached a larger bench of the Delhi High Court against this order. The bench consists of then Chief Justice Of Delhi and two other judges, it was held here that the judgment of the previous bench was proper and valid and it needs no inference. This judgment came in January 2010 and made an important comment that “Judicial independence was not a judge’s privilege, but a responsibility cast upon him”.

After this, the Secretary-General of the Supreme Court challenged the judgment of the High Court in the Supreme court. This matter was placed before a Division Bench, the bench said it’s a very important case and as it is related to the constitution of India this should be heard by a constitution bench. 

The Constitution bench consists of at least 5 judges or more. and is laid down by the Chief Justice himself. For around nine years this bench was not formed. India saw ten chief justices in office in these nine years. It was only in 2018 when former Chief Justice Ranjan Gogoi formed the bench for this hearing. In April 2019 the judgment was reserved and in November 2019 it was finally pronounced.

What does Public Authority mean Under RTI Act?

Section 2(j) of the RTI Act says there is right to information under this act, held by or under the control of any public authority. the controversy arose in this case when it was stated by the Chief Public Information Officer that CJI office does not come under public authority.

The Act defines public authority as any authority or body or institution of self-government established or constituted

1. By or under the constitution
2. By any laws made by parliament or state legislature
3. By any notification issued or ordered by appropriate government and therefore includes any
   •  Body owned, controlled or substantially financed
   • NGO substantially financed, directly or indirectly by funds provided by the government.

Recent Verdict Of Supreme Court in this matter

In November 2019, in a historic verdict Supreme Court held that the office of CJI comes under RTI Act. The majority opinion was written by Justice Sanjiv Khanna and he pointed out on the need for transparency in the judiciary and said that “disclosure is a facet of public interest”. It was also mentioned that judiciary cannot function in total isolation as judges hold a constitutional post and discharge duty for the public.

In concurring opinions, Justice D.Y. Chandrachud asserted that judicial independence was not secured by secrecy while Justice N.V. Ramana argued for the need of proper calibration of transparency in light of the importance of judicial independence. The Bench unanimously agreed that the right of privacy of the judges should be respected, the Right to information is not absolute and therefore subject to certain restrictions. Judge’s privacy and transparency for the public need to be balanced. The right to Information cannot be used as a tool for surveillance and the independence of the judiciary needs to be taken care of while exercising it. 

On reading the judgement closely we see that there is no specification provided whether collegium resolutions can be disclosed or not. Though there are some key findings in the judgement they are as follows

1. The Supreme Court of India and office of CJI are not held to be separate, therefore the office will be included in the Supreme Court in view of Article 124 of the Constitution.
2. Disclosure of personal assets of judges will not lead to infringement of their right to privacy

We can draw these two points which are clearly given in the verdict. Justice Ramana provided a few points before that needs to be considered before assessing the term ‘public authorities’ given under article 8 of the Right to Information Act.

• Party to whom the information is disclosed
• Manner in which information is acquired
• Public and Private interests
• Nature and the content of information

A number of things had to be kept in mind before concluding if there was infringement of the right to privacy of a person. Some of them listed by Justice Ramana was-

• Impact on private life
• Nature of information
• Consent of the person
• Intrusion’s nature and person
• Attributes of claimants such as being a public figure, a minor, etc and their reputation.

To make sure the RTI act doesn’t become absolute and like a tool of surveillance on the Supreme Court and its functions, the court in its verdict provided for certain checks. 

1. The personal information of the judges will only be disclosed if it is for the larger public interest.
2.  The public information officer here will have discretionary powers under section 8(1)(j) of the RTI Act.
3.  Another check was the information regarding the assets of judges and all the official communication happening will be considered as confidential as a third party is involved in this case. If a case is filed for such information the view of the third party will be considered before the PIO takes the charge.

The Discretionary Powers Of The PIO Under RTI Act

Justice Khanna in his judgment observes that the Public Information Officer has discretionary powers under section 8 of the RTI act. It was only stated that the conclusion officer arrives on must be ‘fair and just’ except this there were no specific guidelines given to exercise power.

Justice Chandrachud explained it by giving broad parameters he made it clear that at first, the officer needs to determine if the information sought is personal or violates the right to privacy. Second, was the officer needs to determine if the disclosure of information is for public interests; third, was to determine justifications for such interests. The fourth parameter was to make sure no right is abridged more than required to fulfill the legitimate aim of the countervailing right. 

From This Judgment

Right to information act will be applicable to the office of CJI and the motive of the applicant will not matter when they file the application.

Justice Khanna and Ramana had protective approach in allowing RTI to collegium decisions as this is treated as confidential information, therefore they held that a third party is involved here and it will be taken into confidence before the PIO takes charge and reveals information. There is also a particular emphasis on the statutory ground of “possible harm and injury to third party information”.

Justice Khanna concluded the judgment by saying that it is not possible to answer questions in absolute terms and universal affirmative or negative answers cannot be expected.

Justice Chandrachud did show a welcoming approach towards RTI stating that the basis of selection and appointment of judges in the higher judiciary should be transparent. He said that RTI will only help the judiciary to achieve its broader societal goal and not affect the functioning of the judiciary.

Though this judgment is filled with vagueness, in the near future it will help us to see if brings transparency in the Indian judiciary and especially in Judicial Appointments made in higher judiciary.

Read the full judgement here.

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