# CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA v. SUBHASH CHANDRA AGARWAL

- **Citation:** [2019] 16 S.C.R. 424
- **Court:** Supreme Court of India
- **Decided:** 2019-11-13
- **Case number:** Civil Appeal No. 10044 of 2010
- **Bench:** Ranjan Gogoi, N.V. Ramana, Dr. Dhananjaya Y. Chandrachud, Deepak Gupta, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/central-public-information-officer-supreme-court-of-india-v-subhash-chandra-33911
- **Pages:** 227

## Headnote

Right to Information Act, 2005 - Collegium system for
appointment and elevation of judges to the Supreme Court and the
High Courts; declaration of assets by judges, etc. - Information
in context of - The respondent filed three applications under the
RTI Act, 2005 seeking information regarding: 1) copies of the
correspondence exchanged between constitutional authorities
together with file notings, relating to the appointment of three
Judges of the Supreme Court, who had superseded seniority of
another three Judges by an application dated 23.01.2009; 2) a
copy of the resolution dated 07.05.1997 of the Judges of the
Supreme Court requiring every sitting Judge and all the future
judges upon assuming office to make a declaration of assets by
an application dated 10.11.2007 and 3) on the basis of a
newspaper report, the complete correspondence exchanged with
the Chief Justice of India in regards to a Union Minister having
allegedly approached a judge of the High court, through a lawyer
to influence a judicial decision by an application dated 06.07.2009
- In an application dated 06.07.2009, the information was denied
by the CPIO of the Supreme Court on the ground that the
information sought by the respondent was not handled and dealt
with by the Registry of the Supreme Court and neither maintained
nor available with Registry - However, the Central Information
Commission (CIC) directed disclosure of information and observed
that disclosure will not infringe upon the status of the Judges -
The information sought in application 23.01.2009 was again denied
by CPIO observing that the Supreme Court Registry did not deal
with the matters pertaining to appointment of the Judges of the
Supreme Court - However, the CIC directed the furnishing of
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information - Insofar as application dated 10.11.2007 is
concerned, it was also dismissed by the CPIO and the CIC again
directed the CPIO of the Supreme Court to provide the information
asked by the respondent in his RTI application unless, the disclosure
of information was exempted by law - The appellant instituted writ
petition before the Delhi High Court and the same was dismissed
holding, inter alia, that the declaration of assets furnished by the
Judges of the Supreme Court to Chief Justice of India and its
contents constituted 'information', subject to the provisions of the
RTI Act - The Full Bench of the High Court upheld the decision
of the Single Judge of the High Court - Aggrieved by the decision
of the Full Bench of the High Court and the CIC in the RTI
applications, the CPIO, Supreme Court has preferred the appeals
before the Supreme Court against the order of the CIC in
applications dated 06.07.2009, 23.01.2009 and the decision of the
Full Bench of the High Court - Held [Per Sanjiv Khanna, J. (for
himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
Chandrachud and Deepak Gupta, JJ.)]: The information sought
by the respondent in application dated 10.11.2007, regarding
declaration of the assets, the judgment of the Full Bench of the
High Court is upheld, which had upheld the order passed by the
CIC directing the CPIO, Supreme Court to furnish information on
the Judges of the Supreme Court who had declared their assets -
Such disclosure would not in any way, impinge upon the personal
information and right to privacy of the judges - The fiduciary
relationship rule in terms of cl(e) to s. 8(1) of the RTI Act is
inapplicable - It would not affect the right to confidentiality of
the Judges and their right to protect personal information and
privacy, which would be the case where the details and contents
of personal assets in the declaration are called for and sought in
which event the public interest test as applicable vide s. 8(1)(j) and
proviso to s.11(1) of the RTI Act would come into operation - As
far as other two RTI applications dated 06.07.2009 and 23.01.2009
are concerned, these application are remitted to the CPIO, Supreme
Court to re-e

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SUPREME COURT REPORTS
[2019] 16 S.C.R.
CENTRAL PUBLIC INFORMATION
OFFICER, SUPREME COURT OF INDIA
v.
SUBHASH CHANDRA AGARWAL
(Civil Appeal No. 10044 of 2010)
NOVEMBER 13, 2019
[RANJAN GOGOI, CJI, N.V. RAMANA,
DR. DHANANJAYA Y. CHANDRACHUD, DEEPAK GUPTA
AND SANJIV KHANNA, JJ.]
Right to Information Act, 2005 - Collegium system for
appointment and elevation of judges to the Supreme Court and the
High Courts; declaration of assets by judges, etc. - Information
in context of - The respondent filed three applications under the
RTI Act, 2005 seeking information regarding: 1) copies of the
correspondence exchanged between constitutional authorities
together with file notings, relating to the appointment of three
Judges of the Supreme Court, who had superseded seniority of
another three Judges by an application dated 23.01.2009; 2) a
copy of the resolution dated 07.05.1997 of the Judges of the
Supreme Court requiring every sitting Judge and all the future
judges upon assuming office to make a declaration of assets by
an application dated 10.11.2007 and 3) on the basis of a
newspaper report, the complete correspondence exchanged with
the Chief Justice of India in regards to a Union Minister having
allegedly approached a judge of the High court, through a lawyer
to influence a judicial decision by an application dated 06.07.2009
- In an application dated 06.07.2009, the information was denied
by the CPIO of the Supreme Court on the ground that the
information sought by the respondent was not handled and dealt
with by the Registry of the Supreme Court and neither maintained
nor available with Registry - However, the Central Information
Commission (CIC) directed disclosure of information and observed
that disclosure will not infringe upon the status of the Judges -
The information sought in application 23.01.2009 was again denied
by CPIO observing that the Supreme Court Registry did not deal
with the matters pertaining to appointment of the Judges of the
Supreme Court - However, the CIC directed the furnishing of
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information - Insofar as application dated 10.11.2007 is
concerned, it was also dismissed by the CPIO and the CIC again
directed the CPIO of the Supreme Court to provide the information
asked by the respondent in his RTI application unless, the disclosure
of information was exempted by law - The appellant instituted writ
petition before the Delhi High Court and the same was dismissed
holding, inter alia, that the declaration of assets furnished by the
Judges of the Supreme Court to Chief Justice of India and its
contents constituted 'information', subject to the provisions of the
RTI Act - The Full Bench of the High Court upheld the decision
of the Single Judge of the High Court - Aggrieved by the decision
of the Full Bench of the High Court and the CIC in the RTI
applications, the CPIO, Supreme Court has preferred the appeals
before the Supreme Court against the order of the CIC in
applications dated 06.07.2009, 23.01.2009 and the decision of the
Full Bench of the High Court - Held [Per Sanjiv Khanna, J. (for
himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
Chandrachud and Deepak Gupta, JJ.)]: The information sought
by the respondent in application dated 10.11.2007, regarding
declaration of the assets, the judgment of the Full Bench of the
High Court is upheld, which had upheld the order passed by the
CIC directing the CPIO, Supreme Court to furnish information on
the Judges of the Supreme Court who had declared their assets -
Such disclosure would not in any way, impinge upon the personal
information and right to privacy of the judges - The fiduciary
relationship rule in terms of cl(e) to s. 8(1) of the RTI Act is
inapplicable - It would not affect the right to confidentiality of
the Judges and their right to protect personal information and
privacy, which would be the case where the details and contents
of personal assets in the declaration are called for and sought in
which event the public interest test as applicable vide s. 8(1)(j) and
proviso to s.11(1) of the RTI Act would come into operation - As
far as other two RTI applications dated 06.07.2009 and 23.01.2009
are concerned, these application are remitted to the CPIO, Supreme
Court to re-examine the matter after following the procedure u/s.
11(1) of the RTI Act as information relates to third parties.
Right to Information Act, 2005 - s.2 cl(h) and sub-cl (ii) in
cl(e) to s.2 - Whether the Supreme Court of India and the Chief
Justice of India are two separate public Authorities - Held [Per
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AGARWAL
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Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI, and N.V.
Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)] : It is
undebatable that the Supreme Court is a 'public authority', as
defined vide cl(h) to s.2 of the RTI Act as it has been established
and constituted by or under the Constitution of India - The office
of the Chief Justice or for that matter the judges is not separate
from the Supreme Court and is part and parcel of the Supreme
Court as a body, authority and institution - The Chief Justice and
the Supreme Court are not two distinct and separate 'public
authorities', albeit, the latter is a 'public authority' and the Chief
Justice and the Judges together form and constitute the 'public
authority', that is, the Supreme Court of India.
Right to Information Act, 2005 - s.2 cl.(f)(i) and (j) -
Information and Right to Information - Held [Per Sanjiv Khanna,
J. (for himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
Chandrachud and Deepak Gupta, JJ.)] : What is explicit as well
as implicit from the definition of 'information' in cl.(f) to s. 2 follows
and gets affirmation from the definition of 'right to information'
that the information should be accessible by the public authority
and 'held by or under the control of any public authority' - The
words 'under the control of any public authority' as per their
natural meaning would mean the right and power of the public
authority to get access to the information - It refers to dominion
over the information or the right to any material, document etc. -
The words 'under the control of any public authority' would include
within their ambit and scope information relating to a private body
which can be accessed by a public authority under any other law
for the time being in force subject to the pre-imposed conditions
and restrictions as applicable to access the information.
Right to Information Act, 2005 - s. 8(1)(e) - Relationship
between the Chief Justice and Judges - Held [Per Sanjiv Khanna,
J. (for himself, Ranjan Gogoi, CJI, and N.V. Ramana, Dr. D.Y.
Chandrachud and Deepak Gupta, JJ.)] : Ordinarily the
relationship between the Chief Justice and Judges would not be
that of fiduciary and a beneficiary - However, it is not an absolute
rule/code for in certain situation and acts, fiduciary relationship
may arise - Whether or not such a relationship arises in a particular
situation would have to be dealt with on the tests and parameters.
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Right to Information Act, 2005 - Fiduciary relationship u/s.
8(1)(e) - The appellant argued that the information about the assets
of judges is exempt from disclosure, by virtue of s. 8(1)(e) - Held
[Per Dr. D.Y. Chandrachud, J.]: The Chief Justice of India merely
holds the information in accordance with the official functions and
not in any fiduciary capacity - The judges who disclose their assets
cannot be said to be vulnerable to and dependent on the Chief
Justice of India - In these circumstances, it cannot be held that
asset information shared with the Chief Justice of India, by the
Judges of the Supreme Court, are held by him in a fiduciary
capacity, which, if revealed, would result in breach of fiduciary
duty.
Right to Information Act, 2005 - s.8(1)(j) and s.11 - Held:
[Per Dr. D.Y. Chandrachud, J.]: ss.8 and 11 must be read together
- In every case where the information requested is "personal
information" within the operation of cl.(j) of sub-section 1 of s.8,
the procedure of notice and objections u/s.11 must be complied with
- The two provisions create a substantive systems of checks and
balances which seek to balance the right of the information
applicant to receive information with the third party to prevent the
disclosure of personal information by permitting the letter to
contest the proposed disclosure.
Right to Information Act, 2005 - Public Interest - Held [Per
Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI, and N.V.
Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)] : 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.
Right to Information Act, 2005 - Judicial Independence -
Held : [Per Sanjiv Khanna, J. (for himself, Ranjan Gogoi, CJI,
and N.V. Ramana, Dr. D.Y. Chandrachud and Deepak Gupta, JJ.)]:
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
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AGARWAL
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the disclosure of information, judicial independence has to be kept
in mind while deciding the question of exercise of discretion -
Reference to the principle of judicial independence is not to
undermine and avoid accountability which is an aspect to be taken
into account while examining the public interest in favour of
disclosure of information.
Right to Information Act, 2005 - Transparency, judicial
independence and RTI Act - Held [Per N.V. Ramana, J.]: There
needs to be balance between the three equally important concepts
- As a shield, the judicial independence is the basis with which
Judiciary has maintained its trust reposed by the citizens - The
judiciary needs to be protected from attempts to breach its
independence - Such interference requires calibration of
appropriate amount of transparency in consonance with judicial
independence - The right to information should not be allowed to
be used as a tool of surveillance to scuttle effective functioning
of judiciary.
Right to Information Act, 2005 - s.8 - non-exhaustive
considerations while assessing the 'public interest'- Held [Per N.V.
Ramana, J.]: The following non- exhaustive considerations needs
to be considered while assessing the 'public interest' under Section
8 of the RTI Act- a) Nature and content of the information; b)
Consequences of non-disclosure; dangers and benefits to public;
c) Type of confidential obligation; d) Beliefs of the confidant;
reasonable suspicion; e) Party to whom information is disclosed;
f) Manner in which information acquired; g)Public and private
interests; h) Freedom of expression and proportionality.
Disposing of the reference and appeals, the Court
HELD: PER SANJIV KHANNA, J. (FOR HIMSELF,
RANJAN
GOGOI,
CJI,
AND
N.V.
RAMANA,
DR. D.Y. CHANDRACHUD AND DEEPAK GUPTA, JJ.)
WHETHER THE SUPREME COURT OF INDIA AND
THECHIEF JUSTICE OF INDIA ARE TWO SEPARATE
PUBLIC AUTHORITIES?
1. Article 124 of the Constitution, which relates to the
establishment and constitution of the Supreme Court of India,
states that there shall be a Supreme Court of India consisting
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of a Chief Justice and other judges. It is undebatable that the
Supreme Court of India is a 'public authority', as defined vide
clause (h) to Section 2 of the Right to Information Act, 2005 as
it has been established and constituted by or under the
Constitution of India. The Chief Justice of India as per subclause (ii) in clause (e) to Section 2 is the competent authority
in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is
empowered to frame rules, which have to be notified in the
Official Gazette, to carry out the provisions of the RTI Act. [Para
13] [479-F-H]
2. The Supreme Court of India, which is a 'public
authority', would necessarily include the office of the Chief
Justice of India and the judges in view of Article 124 of the
Constitution. The office of the Chief Justice or for that matter
the judges is not separate from the Supreme Court, and is part
and parcel of the Supreme Court as a body, authority and
institution. The Chief Justice and the Supreme Court are not
two distinct and separate 'public authorities', albeit the latter is
a 'public authority' and the Chief Justice and the judges together
form and constitute the 'public authority', that is, the Supreme
Court of India. The interpretation to Section 2(h) cannot be made
in derogation of the Constitution. To hold to the contrary would
imply that the Chief Justice of India and the Supreme Court of
India are two distinct and separate public authorities, and each
would have their CPIOs and in terms of sub-section (3) to
Section 6 of the RTI Act an application made to the CPIO of the
Supreme Court or the Chief Justice would have to be
transferred to the other when 'information' is held or the subject
matter is more closely connected with the 'functions' of the
other. This would lead to anomalies and difficulties as the
institution, authority or body is one. The Chief Justice of India
is the head of the institution and neither he nor his office is a
separate public authority. [Para 14] [480-A-D]
3. This is equally true and would apply to the High Courts
in the country as Article 214 states that there shall be a High
Court for each State and Article 216 states that every High Court
shall consist of a Chief Justice and such other judges as the
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AGARWAL
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President of India may from time to time deem it appropriate to
appoint. [Para 15] [480-E]
INFORMATION AND RIGHT TO INFORMATION
UNDER THE RTI ACT
4. 'Information' as per the definition clause is broad and
wide, as it is defined to mean "material in any form" with
amplifying words including records (a term again defined in
widest terms vide clause (i) to Section 2 of the RTI Act),
documents, emails, memos, advices, logbooks, contracts,
reports, papers, samples, models, data material held in
electronic form, etc. The last portion of the definition clause
which states that the term 'information' would include
'information relating to any private body which can be accessed
by a public authority under any other law for the time being in
force' has to be read as reference to 'information' not presently
available or held by the public authority but which can be
accessed by the public authority from a private body under any
other law for the time being in force. The term - 'private body'
in the clause has been used to distinguish and is in
contradistinction to the term - 'public authority' as defined in
Section 2(h) of the RTI Act. It follows that any requirement in
the nature of precondition and restrictions prescribed by any
other law would continue to apply and are to be satisfied before
information can be accessed and asked to be furnished by a
private body. [Para 17] [481-F-H; 482-A]
5. What is explicit as well as implicit from the definition
of 'information' in clause (f) to Section 2 follows and gets
affirmation from the definition of 'right to information' that the
information should be accessible by the public authority and 'held
by or under the control of any public authority'. The word 'hold'
as defined in Wharton's Law Lexicon, 15th Edition, means to
have the ownership or use of; keep as one's own, but in the
context of the present legislation, we would prefer to adopt a
broader definition of the word 'hold' in Black's Law Dictionary,
6th Edition, as meaning; to keep, to retain, to maintain possession
of or authority over. The words 'under the control of any public
authority' as per their natural meaning would mean the right and
power of the public authority to get access to the information. It
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refers to dominion over the information or the right to any
material, document etc. The words 'under the control of any
public authority' would include within their ambit and scope
information relating to a private body which can be accessed by
a public authority under any other law for the time being in force
subject to the pre-imposed conditions and restrictions as
applicable to access the information. [Para 18] [482-B-D]
6. When information is accessible by a public authority, that
is, held or under its control, then the information must be
furnished to the information seeker under the RTI Act even if
there are conditions or prohibitions under another statute
already in force or under the Official Secrets Act, 1923, that
restricts or prohibits access to information by the public. In view
of the non-obstante clause in Section 22 of the RTI Act, any
prohibition or condition which prevents a citizen from having
access to information would not apply. Restriction on the right
of citizens is erased. However, when access to information by a
public authority itself is prohibited or is accessible subject to
conditions, then the prohibition is not obliterated and the preconditions are not erased. Section 2(f) read with Section 22 of
the RTI Act does not bring any modification or amendment in
any other enactment, which bars or prohibits or imposes precondition for accessing information of the private bodies. Rather,
clause (f) to Section 2 upholds and accepts the said position when
it uses the expression - "which can be accessed", that is the
public authority should be in a position and be entitled to ask
for the said information. Section 22 of the RTI Act, an overriding
provision, does not militate against the interpretation as there
is no contradiction or conflict between the provisions of Section
2(f) of the RTI Act and other statutory enactments/law. Section
22 of the RTI Act is a key that unlocks prohibitions/limitations
in any prior enactment on the right of a citizen to access
information which is accessible by a public authority. It is not a
key with the public authority that can be used to undo and erase
prohibitions/limitations on the right of the public authority to
access information. In other words, a private body will be
entitled to the same protection as is available to them under the
laws of this country. [Para 19] [482-E-G; 483-A-C]
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AGARWAL
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SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT
7. Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
amending the term 'information', carves out exceptions when
access to 'information', as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that
is, when the exceptions listed in Section 8(1) of the RTI Act are
not attracted. In terms of Section 3 of the RTI Act, all citizens
have right to information, subject to the provisions of the RTI
Act, that is, information 'held by or under the control of any
public authority', except when such information is exempt or
excluded. [Para 25] [491-C-E]
8. Clauses in sub-section (1) to Section 8 can be divided
into two categories: clauses (a), (b), (c), (f), (g), (h) and (i), and
clauses (d), (e) and (j). The latter clauses state that the prohibition
specified would not apply or operate when the competent
authority in clauses (d) and (e) and the PIO in clause (j) is
satisfied that larger public interest warrants disclosure of such
information. Therefore, clauses (d), (e) and (j) of Section 8(1) of
the RTI Act incorporate qualified prohibitions and are conditional
and not absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and
(i) do not have any such stipulation. Prohibitory stipulations in
these clauses do not permit disclosure of information on
satisfaction of the larger public interest rule. These clauses,
therefore, incorporate absolute exclusions. [Para 26] [401-E-G]
9. Sub-section (2) to Section 8 states that notwithstanding
anything contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
interest in disclosure outweighs the harm to the protected
interests. The disclosure under Section 8(2) by the public
authority is not a mandate or compulsion but is in the form of
discretionary disclosure. Section 8(2) acknowledges and
empowers the public authority to lawfully disclose information
held by them despite the exemptions under sub-section (1) to
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Section 8 if the public authority is of the opinion that the larger
public interest warrants disclosure. Such disclosure can be made
notwithstanding the provisions of the Official Secrets Act.
Section 8(2) does not create a vested or justiciable right that the
citizens can enforce by an application before the PIO seeking
information under the RTI Act. PIO is under no duty to disclose
information covered by exemptions under Section 8(1) of the RTI
Act. Once the PIO comes to the conclusion that any of the
exemption clauses is applicable, the PIO cannot pass an order
directing disclosure under Section 8(2) of the RTI Act as this
discretionary power is exclusively vested with the public
authority. [Para 27] [492-A-D]
10. Section 9 provides that without prejudice to the
provisions of Section 8, a request for information may be rejected
if such a request for providing access would involve an
infringement of copyright subsisting in a person other than the
State. [Para 28] [492-E]
10.1 Section 10 deals with severability of exempted
information and section 11 deals with third party information and
incoporates conditional exclusion based on breach of
confidentiality. [Paras 29 and 30] [492-E-F; G]
10.2 In Aditya Bandopadhyay, wherein this Court, on the
aspect of general principles of interpretation while deciding the
conflict between the right to information and exclusions under
section 8 to 11 of the RTI Act had made some observations in
paragraphs 61, 62 and 63. This Court respectfully concurs with
the paragraph 63 of the Judgment and the same has to be read
with the observations made on last portion of clause (f) to section
2 defining the word 'information'. [Para 31] [494-A-B; 495-G]
FIDUCIARY RELATIONSHIP UNDER SECTION 8(1)(e)
OF THE RTI ACT
11. Fiduciary relationships, regardless of whether they are
formal, informal, voluntary or involuntary, must satisfy the four
conditions for a relationship to classify as a fiduciary relationship.
In each of the four principles, the emphasis is on trust, reliance,
the fiduciary's superior power or dominant position and
corresponding dependence of the beneficiary on the fiduciary
which imposes responsibility on the fiduciary to act in good faith
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and for the benefit of and to protect the beneficiary and not
oneself. Section 8(1)(e) is a legal acceptance that there are
ethical or moral relationships or duties in relationships that
create rights and obligations, beyond contractual, routine or even
special relationships with standard and typical rights and
obligations. Contractual or non-fiduciary relationships could
require that the party should protect and promote the interest
of the other and not cause harm or damage, but the fiduciary
relationship casts a positive obligation and demands that the
fiduciary should protect the beneficiary and not promote personal
self-interest. A fiduciary's loyalty, duties and obligations are
stricter than the morals of the market place and it is not honesty
alone, but the punctilio of an honour which is the most sensitive
standard of behaviour which is applied {Opinion of Cardozo, J.
in Meinhard v. Salmon}. Thus, the level of judicial scrutiny in
cases of fiduciary relationship is intense as the level of
commitment and loyalty expected is higher than non-fiduciary
relationships. Fiduciary relationship may arise because of the
statute which requires a fiduciary to act selflessly with integrity
and fidelity and the other party, that is the beneficiary, depends
upon the wisdom and confidence reposed in the fiduciary. A
contractual, statutory and possibly all relationships cover a broad
field, but a fiduciary relationship could exist, confined to a limited
area or an act, as relationships can have several facets. Thus,
relationships can be partly fiduciary and partly non- fiduciary with
the former being confined to a particular act or action which need
not manifest itself in entirety in the interaction and relationship
between two parties. What would distinguish non-fiduciary
relationship from fiduciary relationship or an act is the
requirement of trust reposed, higher standard of good faith and
honesty required on the part of the fiduciary with reference to a
particular transaction(s) due to moral, personal or statutory
responsibility of the fiduciary as compared to the beneficiary,
resulting in dependence of the beneficiary. This may arise due
to superior knowledge and training of the fiduciary or the
position he occupies. [Para 34] [499-A-H; 500-A-B]
12. Ordinarily the relationship between the Chief Justice
and judges would not be that of a fiduciary and a beneficiary.
However, it is not an absolute rule/code for in certain situations
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and acts, fiduciary relationship may arise. Whether or not such
a relationship arises in a particular situation would have to be
dealt with on the tests and parameters enunciated above. [Para
35] [500-C]
RIGHT TO PRIVACY UNDER SECTION 8(1)(j) AND
CONFIDENTIALITY UNDER SECTION 11 OF THE RTI
ACT.
13. If one's right to know is absolute, then the same may
invade another's right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need
for personal privacy, confidentiality of information and effective
governance. The RTI Act captures this interplay of the
competing rights under clause (j) to Section 8(1) and Section 11.
While clause (j) to Section 8(1) refers to personal information
as distinct from information relating to public activity or interest
and seeks to exempt disclosure of such information, as well as
such information which, if disclosed, would cause unwarranted
invasion of privacy of an individual, unless public interest
warrants its disclosure, Section 11 exempts the disclosure of
'information or record...which relates to or has been supplied
by a third party and has been treated as confidential by that third
party'. By differently wording and inditing the challenge that
privacy and confidentiality throw to information rights, the RTI
Act also recognises the interconnectedness, yet distinctiveness
between the breach of confidentiality and invasion of privacy, as
the former is broader than the latter. [Para 36] [500-D-G]
14. While clause (j) exempts disclosure of two kinds of
information, as noted in paragraph 47 above, that is "personal
information" with no relation to public activity or interest and
"information" that is exempt from disclosure to prevent
unwarranted invasion of privacy, this Court has not underscored,
as will be seen below, such distinctiveness and treated personal
information to be exempt from disclosure if such disclosure
invades on balance the privacy rights, thereby linking the former
kind of information with the latter kind. This means that
information, which if disclosed could lead to an unwarranted
invasion of privacy rights, would mean personal information, that
is, which is not having co-relation with public information. [Para
53] [510-F-G]
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15. Reading of the aforesaid judicial precedents, in our
opinion, would indicate that personal records, including name,
address, physical, mental and psychological status, marks
obtained, grades and answer sheets, are all treated as personal
information. Similarly, professional records, including
qualification, performance, evaluation reports, ACRs, disciplinary
proceedings, etc. are all personal information. Medical records,
treatment, choice of medicine, list of hospitals and doctors
visited, findings recorded, including that of the family members,
information relating to assets, liabilities, income tax returns,
details of investments, lending and borrowing, etc. are personal
information. Such personal information is entitled to protection
from unwarranted invasion of privacy and conditional access is
available when stipulation of larger public interest is satisfied.
This list is indicative and not exhaustive. [Para 59] [512-G; 513A-B]
16. This Court clarifies that Section 11 is not merely
procedural but also a substantive provision which applies when
the PIO intends to disclose information that relates to or has
been supplied by a third party and has been treated as
confidential by that third party. It requires the PIO to issue
notice to the third party who may make submission in writing
or orally, which submission has to be kept in view while taking
a decision. Proviso to Section 11(1) applies in all cases except
trade or commercial secrets protected by law. Pertinently,
information including trade secrets, intellectual property rights,
etc. are governed by clause (d) to sub- section (1) of Section 8
and Section 9 of the RTI Act. In all other cases where the
information relates to or has been supplied by the third party and
treated as confidential by that third party, disclosure in terms of
the proviso may be allowed where the public interest in
disclosure outweighs in importance any possible harm or injury
to the interest of the third party. Confidentiality is protected and
preserved in law because the public interest requires such
protection. It helps and promotes free communication without
fear of retaliation. However, public interest in protecting
confidentiality is subject to three well-known exceptions. The
first exception being a public interest in the disclosure of iniquity
for there cannot be any loss of confidentiality involving a
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wrongdoing. Secondly, there cannot be any public interest when
the public has been misled. Thirdly, the principle of confidentiality
does not apply when the disclosure relates to matters of public
concern, which expression is vastly different from news value
or news to satiate public curiosity. Public concern relates to
matters which are an integral part of free speech and expression
and entitlement of everyone to truth and fair comment about it.
There are certain circumstances where the public interest in
maintaining confidentiality may be outweighed by the public
interest in disclosure and, thus, in common law, it may not be
treated by the courts as confidential information. These aspects
would be relevant under the proviso to Section 11(1) of the RTI
Act. [Para 61] [515-C-H]
17. Proviso to Section 11(1) of the RTI Act is a statutory
recognition of three exceptions and more when it incorporates
public interest test. It states that information, otherwise treated
confidential, can be disclosed if the public interest in disclosure
outweighs the possible harm and injury to the interest of such a
third party. The expression 'third party' has been defined in
clause (n) to Section 2 to mean a person other than the citizen
making a request for information and includes a public authority.
Thus, 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. [Para 62] [516-A-C]
18. Most jurists would accept that absolute transparency
in all facets of government is neither feasible nor desirable, for
there are several limitations on complete disclosure of
governmental information, especially in matters relating to
national security, diplomatic relations, internal security or
sensitive diplomatic correspondence. There is also a need to
accept and trust the government's decision- makers, which they
have to also earn, when they plead that confidentiality in their
meetings and exchange of views is needed to have a free flow
of views on sensitive, vexatious and pestilent issues in which
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there can be divergent views. This is, however, not to state that
there are no dangers in maintaining secrecy even on aspects that
relate to national security, diplomatic relations, internal security
or sensitive diplomatic correspondence. Confidentiality may
have some bearing and importance in ensuring honest and fair
appraisals, though it could work the other way around also and,
therefore, what should be disclosed would depend on authentic
enquiry relating to the public interest, that is, whether the right
to access and the right to know outweighs the possible public
interest in protecting privacy or outweighs the harm and injury
to third parties when the information relates to such third parties
or the information is confidential in nature. [Para 70] [524-A-D]
MEANING OF THE TERM 'PUBLIC INTEREST'
Public interest in access to information refers to something
that is in the interest of the public welfare to know. Public welfare
is widely different from what is of interest to the public.
"Something which is of interest to the public" and "something
which is in the public interest" are two separate and different
parameters. For example, the public may be interested in private
matters with which the public may have no concern and pressing
need to know. However, such interest of the public in private
matters would repudiate and directly traverse the protection of
privacy. The object and purpose behind the specific exemption
vide clause (j) to Section 8(1) is to protect and shield oneself
from unwarranted access to personal information and to protect
facets like reputation, honour, etc. associated with the right to
privacy. Similarly, there is a public interest in the maintenance
of confidentiality in the case of private individuals and even
government. [Para 75] [527-E-H]
20.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. [Para 76] [528-A-B]
21.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
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to the substantial number of individuals wanting disclosure. It
will vary according to the information sought and all
circumstances of the case that bear upon the public interest in
maintaining the exemptions and those in disclosing the
information must be accounted for to judge the right balance.
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. Further, under Section 11(1), reference is made to the
'possible' harm and injury to the third party which will also have
to be factored in when determining disclosure of confidential
information relating to the third parties. [Para 78] [529-D-F]
22. The last aspect in the context of public interest test
would be in the form of clarification as to the effect of sub-section
(2) to Section 6 of the RTI Act which does not require the
information seeker to give any reason for making a request for
the information. Clearly, '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. It is in this
context that this Court in Aditya Bandopadhyay has held that
beneficiary cannot be denied personal information relating to him.
Similarly, in other cases, public interest may weigh in favour of
the disclosure when the information sought may be of special
interest or special significance to the applicant. It could equally
be a negative factor when the 'motive' and 'purpose' is vexatious
or it is a case of clear abuse of law. [Para 79] [529-G-H; 530-AB]
23. In the RTI Act, in the absence of any positive indication
as to the considerations which the PIO has to bear in mind while
making a decision, the legislature had intended to vest a general
discretion in the PIO to weigh the competing interests, which
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is to be limited only by the object, scope and purpose of the
protection and the right to access information and in Section
11(1), the 'possible' harm and injury to the third party. It imports
a discretionary value judgment on the part of the PIO and the
appellate forums as it mandates that any conclusion arrived at
must be fair and just by protecting each right which is required
to be upheld in public interest. There is no requirement to take
a fortiori view that one trumps the other. [Para 80] [530-C-D]
JUDICIAL INDEPENDENCE
24. This Court has referred to the decisions and viewpoints
to highlight the contentious nature of the issue of transparency,
accountability and judicial independence with various arguments
and counter-arguments on both sides, each of which commands
merit and cannot be ignored. Therefore, it is necessary that the
question of judicial independence is accounted for in the
balancing exercise. 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. However, 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.