Central Public Information Officer, vs Subhash Chandra Agarwal

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 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. 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 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 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 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, 15 th 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 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] 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 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 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 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]

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 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 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 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 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. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. [Para 88] [539-A-H; 540-A]

CONCLUSIONS

25. In view of the aforesaid discussion, this Court dismisses Civil Appeal No.2683 of 2010 and uphold the judgment dated

12 th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India 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 clause (e) to Section 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 details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation. [Para 89] [540-D-P]

26. As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. [Para 90] [540-G]

Central Board of Secondary Education and Another v. Aditya Bandopadhyay and Others (2011) 8 SCC

497 : [2011] 11 SCR 1028 ; Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Others (2013) 16 SCC 82 : [2013] 14 SCR 475 ; Khanapuram Gandaiah v. Administrative Officer and Others (2010) 2 SCC 1 : [2010] 1 SCR 1 ; K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1 : [2017] 10 SCR 569 ; Girish

Ramchandra Deshpande v. Central Information

Commissioner and Others (2013) 1 SCC 212 : [2012]

8 SCR 1097 ; Arvind Kejriwal v. Central Public Information Officer and Another AIR 2012 Delhi

29 – relied on ; R.K. Jain v. Union of India (1993) 4 SCC 119 : [1993] 3 SCR802 ; Union of India v. Association for Democratic Reforms and Another (2002) 5 SCC 294 : [2002] 3 SCR 696 ; Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another (2012) 13 SCC 61 : [2012] 11 SCR 1032 ; Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1 ; Supreme Court Advocates on Record Association and Others v. Union of India (1993) 4 SCC 441 : [1993]

2 Suppl. SCR 659 – relied on.

S.P. Gupta v. Union of India & Others (1981) Supp SCC 87 : [1980] SCR 365 ; Bhudan Singh and

Another v. Nabi Bux and Another (1969) 2 SCC 481 : [1970] 2 SCR 10 ; Kailash Rai v. Jai Ram (1973) 1 SCC 527 : [1973] 3 SCR 411 ; State of U.P. v. Raj Narain and Others (1975) 4 SCC 428 : [1975] 3 SCR 333 ; Reserve Bank of India v. Jayantilal N. Mistry (2016) 3 SCC 525 : [2015] 14 SCR 505 ; District Registrar and Collector v. Canara Bank (2005)

1 SCC 496 : [2004] 5 Suppl. SCR 833 ; Spencer v. R. (2014) 2 SCR 212 ; Canara Bank v. C.S. Shyam and Another (2018) 11 SCC 426 : [2017] 7 SCR

741 ; Subhash Chandra Agarwal v. Registrar, Supreme Court of India and Others (2018) 11 SCC 634 ; R.K. Jain v. Union of India and Another (2013) 14 SCC

794 : [2013] 5 SCR 411 ; Helen Suzman Foundation v. Judicial Service Commission Case 289/16 decided on 24 th April 2018 ; C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others (1995) 5 SCC 457 : [1995] 3 Suppl. SCR 319 ; High Court of Judicature at Bombay v. Shashikant S. Patil (1997) 6 SCC 339 : [1997] 3 SCR 1131 ; Jasbir Singh v. State of Punjab (2006) 8 SCC 294 : [2006] 7 Suppl. SCR 174 –

referred to.

Re Coe’s Estate Ebert et al v. State et. al 33 Cal.2d

502 ; Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All E.R. 611 ; New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection (2011) UKUT 185 AAC ; Meinhard v. Salmon (1928) 164 N.E. 545, 546 ; Coco v. AN Clark (Engineers) Ltd. [1969] RPC 41 ; Douglas v. Hello! Ltd. (2001) QB 967 ; PJS v. News Group Newspapers Ltd. (2016) UKSC 26 ; United States v. Miller 425 US 435 (1976) ; Peck v. United Kingdom (2003) EMLR 15 ; Australian Broadcasting

Corporation v. Lenah Game Meats Pty Ltd (2001) 185 ALR 1 ; Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22 ; Attorney General (UK) v.

Heinemann Publishers Pty Ltd. (1987) 10 NSWLR 86 at 191 ; Commonwealth v. John Fairfax and Sons Ltd. (1980) 147 CLR 39 at 51 ; Attorney General v. Jonathan Cape Ltd. [1976] QB 752 ; Burmah Oil Ltd v. Governor And Company Of The Bank Of England And Another [1980] AC 1090 ; Butters Gas and Oil Co. v. Hammer 1982 AC 888 (H.L.) ; Air Canada v. Secretary of State for Trade 1983 2 AC 394 (H.L.) ; Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 (H.L.) - referred to.