Secretary General, Supreme Court of India v. Subhash Chandra Agarwal

FACTS:

The respondent (hereinafter, "the applicant") made an application to the CPIO on 10th November, 2007 under the Act making two-fold request; viz., (i) to furnish a copy of the 1997 resolution of the Full Court of the Supreme Court, and (ii) information on any such declaration of assets etc. ever filed by Hon.ble Judges of the Supreme Court and further information if High Court Judges are submitting declaration about their assets etc. to respective Chief Justices in States.

The first request was granted by the CPIO and a copy of the 1997 resolution was made available to the applicant. The CPIO vide order dated 30th November, 2007, however, informed the applicant that the information sought under the second head was not held or under the control of the registry (of the Supreme Court) and, therefore, could not be furnished.

This appeal is directed against the judgment dated 2nd September, 2009 of the learned single Judge (S. Ravindra Bhat, J) in the writ petition filed by the Central Public Information Officer, Supreme Court of India (“the CPIO") nominated under the Right to Information Act, 2005 ("the Act") questioning correctness and legality of the order dated 6th January, 2009 of the Central Information Commission ("the CIC") whereby the request of the respondent No.1 (a public person) for supply of information concerning declaration of personal assets by the Judges of the Supreme Court was upheld.

The genesis of the dispute at hand relates to two resolutions; first, resolution dated 7th May, 1997 of the Full Court of the Supreme Court (hereinafter, "the 1997 Resolution") and second, the "Re-statement of Values of Judicial Life (Code of Conduct)" adopted unanimously in the Conference of the Chief Justices of all High Courts convened in the Supreme Court on 3rd and 4th December, 1999 (hereinafter, "the 1999 Resolution"). Through the 1997 Resolution, Hon’ble Judges of the Supreme Court, inter alia, resolved that "every Judge should make a declaration of all his/her assets in the form of real estate or investment" held in own name or in the name of spouse or any person dependent within a reasonable time and thereafter make a disclosure "whenever any acquisition of a substantial nature is made". The Code of Conduct, thus finalized, came to be adopted and may also be called the 1999 Judicial Conference Resolution.

RESOLUTION AT THE CONFERENCE OF JUSTICES

On 3rd and 4th December, 1999, the Conference of Chief Justices of all High Courts was held in the Supreme Court premises in which the Chief Justices unanimously resolved to adopt the "Restatement of Values of Judicial Life" (Code of Conduct). It is a complete code of canons of judicial ethics and is extracted below:

• (1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

• (2) A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

• (3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.

• (4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

• (5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

• (6) A Judge should practice a degree of aloofness consistent with the dignity of his office.

• (7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

• (8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

• (9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media.

• (10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

• (11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

• (12) A Judge shall not speculate in shares, stocks or the like.

• (13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).

• (14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.

• (15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available.

• (16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held. These are only the "Restatement of the Values of Judicial Life" and are not meant to be exhaustive but only illustrative of what is expected of a Judge."

PROCEEDINGS BEFORE THE SINGLE JUDGE

The learned single Judge proceeded to consider the rival submissions. He culled out the points for consideration as under:

1. Whether the CJI is a public authority;

2. Whether the office of CPIO of the Supreme Court of India, is different from the office of the CJI; and if so, whether the Act covers the office of the CJI;

3. Whether the asset declarations by Supreme Court judges, pursuant to the 1997 Resolution is "information", under the Right to Information Act, 2005;

4. If such asset declarations are "information" does the CJI hold them in a "fiduciary" capacity, and are they therefore, exempt from disclosure under the Act;

5. Whether such information is exempt from disclosure by reason of Section 8(1)(j) of the Act;

6. Whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their disclosure unworkable.

Upon consideration of the submissions made before him, the learned single Judge concluded against point Nos.1 and 2 that the CJI is a public authority under the Right to Information Act and holds the information pertaining to asset declarations in his capacity as the Chief Justice. It was also held that the office of the Chief Justice of India is "public authority" under the Act and is covered by its provisions.

In view of the above findings, the learned single Judge, vide the impugned judgment, directed the appellant CPIO to reveal the information sought by the respondent applicant, about the declaration of assets (and not the contents of the declarations, as that was not sought for) made by Judges of the Supreme Court, within four weeks.

ISSUE:

1. Whether a "right to information" can be asserted and maintained within the meaning of the expression defined in Section 2(j) of the Act.

2. Equally important are the questions requiring interpretation of the expressions "fiduciary", as in Section 8(1)(e) and "privacy" as in Section 8(1)(j), both used but not defined specifically by the statute.

CHALLENGE IN APPEAL 2

This appeal was preferred by the CPIO and the Registrar of the Supreme Court impleading the applicant and the CIC as respondents. Considering the importance of the question involved, the appeal was directed to be heard by a larger Bench of three Judges.

POINTS FOR CONSIDERATION

The controversy thus subsists on point Nos. 3,4 & 5, formulated for consideration by the learned single Judge. Having regard to the submissions at the stage of appeal, the points for consideration need to be recast as under:-

• (1) Whether the respondent had any "right to information" under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?

• (2) If the answer to question (1) above is in affirmative, whether CJI held the "information" in his "fiduciary" capacity, within the meaning of the expression used in Section 8(1)(e) of the Act?

• (3) Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act?

POINT 1: WHETHER THE RESPONDENT HAD ANY “RIGHT TO INFORMATION” UNDER SECTION 2(J) OF THE ACT?

RIGHT TO INFORMATION AS A CONSTITUTIONAL RIGHT The development of the right to information as a part of the constitutional law of the country started with petitions by the print media in the Supreme Court seeking enforcement of certain logistical implications of the right to freedom of speech and expression such as challenging government orders for control of newsprint, bans on distribution of paper etc. It was through the following cases that the concept of the people's right to know developed.

In Benett Coleman v. Union of India [AIR 1973 SC 106], the Court held that the impugned Newsprint Control Order violated the freedom of the press and therefore was ultra vires Article 19(1)(a) of the Constitution. The Order did not merely violate the right of the newspapers to publish, which was inherent in the freedom of the press, but also violated the right of the readers to get information which was included within their right to freedom of speech and expression. Chief Justice Ray, in the majority judgment, said: "It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read."

The concept of the right to information was eloquently formulated by Mathew, J. in The State of UP v. Raj Narain [AIR 1975 SC 865], in the following words: (para 74)

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security, see New York Times Co. v. United States [(1971) 29 Law Ed. 822 : 403 U.S. 713]. To cover with a veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."

In Association for Democratic Reforms v. Union of India [AIR 2001 Delhi 126], the Delhi High Court held that voters have a right to receive information about the antecedents of the candidates who stood for election. The Court held that the Election Commission had the duty to inform the voters about the candidates and therefore, it can direct the candidates filing nominations for election to give details about their assets and liabilities, past criminal cases ending in acquittals or convictions and pending criminal prosecution if any.

In view of the above discussion, it is held that the respondent had right to information under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to the 1997 Resolution.

POINT 2: WHETHER THE CJI HELD THE "INFORMATION" IN HIS "FIDUCIARY" CAPACITY

FIDUCIARY RELATIONSHIP As Waker defines it: "A fiduciary... is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect. He may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, Company promoters and directors, guardians, solicitors and clients and other similarly placed." [Oxford Companion to Law, 1980 p.469]

"A fiduciary relationship", as observed by Anantnarayanan, J., "may arise in the context of a jural relationship. Where confidence is reposed by one in another and that leads to a transaction in which there is a conflict of interest and duty in the person in whom such confidence is reposed, fiduciary relationship immediately springs into existence."

CONFIDENTIALITY The Act defines which information will be in the public domain and includes within the definition "any material in any form, including records, documents, memos, e-mails, 310 opinions, advices, etc." Irrespective of whether such notes, e-mails, advices, memos etc. were marked confidential and kept outside the public domain, the Act expressly places them in the public domain and accessible to the people subject to exclusionary clauses contained in Section 8 of the Act. Section 11(1) of the Act provides that where the authority intends to disclose any information which relates to and was supplied by a third party and has been treated confidential by third party, it shall give a clear notice of five days to such third party inviting him to make a submission in writing or orally whether such information should be disclosed and such submission shall be kept in view while taking a decision regarding the disclosure of such information.

In Attorney General v. Guardian Newspapers Limited [(No.2) (1990) 1 AC 109], Lord Goff identified three limiting concepts to the principles of breach of confidence. The first that the principle of confidentiality does not apply to information that is so generally accessible that, in all the circumstances, it cannot be regarded as confidential. The second is that the duty of confidence does not apply to information that is useless or trivial. The third limiting concept identified by Lord Goff is that in certain circumstances the public interest in maintaining confidence may be outweighed by the public interest in disclosure.

DUTY TO DENY OR CONFIRM In the present case, the only information that was sought by the respondent was whether such declaration of assets were filed by Judges of the Supreme Court and also whether High Court Judges have submitted such declarations about their assets to respective Chief Justices in States.

For the above reasons, we hold that Section 8(e) does not cover asset declarations made by Judges of the Supreme Court and held by the CJI. The CJI does not hold such declarations in a fiduciary capacity or relationship.

POINT 3: WHETHER INFORMATION ABOUT DECLARATION OF ASSETS BY JUDGES IS EXEMPT UNDER SECTION 8(1)(j)

RIGHT TO INFORMATION VIS-À-VIS RIGHT TO PRIVACY The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which the new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects: (i) The ordinary law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (ii) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful government invasion. Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21.

PROTECTION OF PERSONAL INFORMATION UNDER SECTION 8(1)(j) A perusal of the aforesaid provisions of Section 8 reveals that there are certain information contained in sub-clause (a), (b), (c), (f),(g) and (h), for which there is no obligation for giving such an information to any citizen; whereas information protected under sub-clause (d), (e) and (j) are protected information, but on the discretion and satisfaction of the competent authority that it would be in larger public interest to disclose such information, such information can be disclosed.

In the present case the particulars sought for by the respondent do not justify or warrant protection under Section 8(1)(j) inasmuch as the only information the applicant sought was whether 1997 Resolution was complied with.

DISCLOSURE OF ASSETS INFORMATION OF JUDGES - INTERNATIONAL TRENDS "Although Judges often balk at the invasion of privacy that disclosure of their private finances entails, it is almost uniformly considered to be an effective means of discouraging corruption, conflicts of interest, and misuse of public funds..." [Guidance for Promoting Judicial Independence and Impartiality, 2001, USAID, Technical Publication].

Keith E. Henderson in his article “Asset and Income Disclosure for Judges: A Summary Overview and Checklist" has pointed out that there are three basic sources of the assets declaration obligation: (a) Constitutional Obligation: Some constitutions impose an obligation to disclose assets of public officials e.g. Colombia, Constitution Article 122. (b) Legislative Obligation: Some countries regulate asset disclosure by statute, although there are different types of Acts creating this obligation e.g. Poland, El Salvador, etc. (c) Court rules: In some countries, such as the United States, Argentina, the judiciary itself regulates the conduct of Judges.

Section 8(1)(j) says that disclosure may be refused if the request pertains to "personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual." Thus, personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the Act.

Section 8(1)(j) ensures that all information furnished to public authorities -- including personal information [such as asset disclosures] are not given blanket access. When a member of the public requests personal information about a public servant, - such as asset declarations made by him -- a distinction must be made between personal data inherent to the person and those that are not, and, therefore, affect his/her private life. To quote the words of the learned single Judge "if public servants … are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or "interest"….

In the present case the particulars sought for by the respondent do not justify or warrant protection under Section 8(1)(j) inasmuch as the only information the applicant sought was whether 1997 Resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8(1)(j). We concur with the view of the learned single Judge that the contents of asset declarations, pursuant to the 1997 Resolution, are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); that they are not otherwise subject to disclosure.

HELD:

In view of the above discussion, it is held that the respondent had right to information under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to the 1997 Resolution.

We are satisfied that the impugned order of the learned single Judge is both proper and valid and needs no interference. The appeal is accordingly dismissed.