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

Brief History
Right to Information, as an essentiality especially in a democratic country like ours was first considered in the case of Raj Narain v. Union of India where the apex court rejected the government claims on privilege on the security instructions of the Prime Minister and stated that it is the responsibility of the officials to explain and justify their acts, as it is of utmost public importance and is essential to prevent corruption in the county.

The concept of Right to Information was expanded in the case of People’s Union for Civil Liabilities where it held that the right to information of citizens included the right to about the assets of the candidates fighting for elections.

Judiciary being the custodian of the Constitution has been conferred with the most important aspect of the democracy i.e., the insuring justice. But do to widespread corruption and lack of accountability has raised questions on the integrity of Judiciary and a demand of greater accountability is seen in recent years. In an attempt to seek transparency in this field, an RTI activist filed an application, which ultimately led to the question as to whether the office of Chief Justice is a public office or not and this was extensively discussed in this case with the question being answered in affirmative by the Delhi high Court.

Facts
In 1997 at the Conference of Chief Justices, all the judges adopted a “Code of Conduct” which required them to disclose their assets in confidence to their Chief Justices. To see whether the judges are complying with the Code of Conduct or not, an RTI activist Subash Agarwal filed an RTI application seeking information from the Public Information Officer (PIO) of the Supreme Court in this regard and also for a copy of the adopted “Code of Conducts”.

The PIO responded by saying that the information does not exist in the court registry. On appeal, the appellate authority directed the PIO to give name of the officer having the relevant information and to refer the application to the authority having the information by way of Section 6(3) of the Act. On remission the PIO rejected the application asking to file the application to respective High Courts.

The applicant then approached the CIC. The CIC rejected the contentions of the Information Officer and directed him to provide the information. This led to a writ petition in the Delhi High Court challenging the order of the CIC. A single bench judge decided that the order given by the CIC was correct.

An appeal was filed against the decision given by the single judge bench.
Issues
Of the 6 issues discussed in the case of CPIO, Supreme Court of India v. Subash Chandra Agarwal issue 3, 4 and 5 were recasted and heard by the division bench as:
· 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?

· 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?

· 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?

Contention of the Appellant Side
The appellant in the plaint raised following points:
· That the appellant has no right to information under Section 2(j) of the Act, as of the two essential ingredients second one is not being fulfilled.

· He stated that the resolution of 1997 has no force of law, as there is no legal or constitutional requirement as such in this regard.

· The resolution of 1997 had two parts, first one talked about punishing a judge if he failed to fulfill values of judicial life while second part was about the declaration of assets. However, no in-house procedure has been established in this regard.

· The learned Attorney General relied heavily on Indira Jaising v. Registrar General, Kailash Rai v. Jai Jai Ram, Bhudan Singh v. Nabi Bux.

Contentions of the Respondent Side
In reply the learned council stated that:
· The respondent is not seeking for enforcement of the resolution.

· When the information is provided to the CJI, it comes under the control of CJI as a public authority as hence comes under the ambit of the Act.

· The code of conduct creates an in house mechanism for the punishment of judges. The CJI has previously implemented this mechanism, which shows the binding character of the Code of Conduct.

· The information is being held by the CJI in full conscience and is being maintained in the office as a record.

· The learned council rebutted all the cases cited by the Attorney General by stating that the authorities used were of the matter of property and hence are of a different nature.

Judgment
The appeal was dismissed and the impugned order of the single judge was upheld. The judgment passed by the court was:
· Judges have to declare there assets are not being introduced for the first time. Subordinate judges are required to do so. Since, it is essential for the subordinate judge to declare his assets the requirement of the higher court judge is even more. For a higher hierarchy judge the degree of accountability and scrutiny should be stricter.

· Office of Chief Justice of India comes under the concept of “Public Authority” with respect to Section 2(e) of the Right to Information Act, 2005.

· Assets declaration held by CJI or CJ’s of the respective High Courts comes under the ambit of information of the Section 2(f) of the Right to Information Act, 2005.

· Notes taken by the judge cannot be held as a part of record held by a public authority.

· Asset information held by the CJI is not a fiduciary and if such information is revealed it will not result in breach of such duty.

Conclusion
“With great powers comes great responsibilities” and it is up to us whether we use this power to create good in the society or misuse it for one’s welfare. This judgment has talked in this aspect a lot and it also showed the higher judicial hierarchy that they are responsible to the people and that they cannot escape them.

The judgment was successful in making a hole in the concrete wall created by the judiciary around itself. The Apex court received lot of negativity when they decided to appeal against the decision given by the single judge of the Delhi High Court. Amidst severe criticism the judges voluntarily declared their assets to save their honor and dignity and the faith that the general public repose in them.

The judgment can be seen as a ray of light in darkness because for the first time the judiciary acknowledged its accountability towards the people. In a democratic country like ours transparency is most important for a free society and this case has its relevance as it has helped in making accessible those chambers of secrets, which were closed from pubic view in the name of Independence of Judiciary.
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# Secretary General, Supreme Court of India v. Subash Chandra Agarwal
# AIR 2010 Delhi 159
# SEM III, NUSRL Ranchi
# AIR 1975 SC 865
# AIR 2002 SC 2112
# Where an application is made to a public authority requesting for an information (i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority; the public authority, to which such application is made, shall transfer the application...to that other public authority…
# Right to Information Act, 2005
# CPIO, Supreme Court of India v. Subash Chandra Agarwal,
(i) Whether the CJI is a public authority; (ii) Whether the office of the CPIO is different from that of the CJI, and if yes whether the Act covers the office of the CJI; (iii) Whether declaration of assets by judges is „information‟ under the Act; (iv) Whether the CJI hold them in „fiduciary‟ capacity, and therefore they are exempt from disclosure under section 8(1)(e)12 of the Act; (v) Whether such „information‟ is exempt under section 8(1)(j)13 of the Act; and (vi) Whether the lack of clarity about details of asset declaration, as well as lack of security renders asset declaration and its disclosure, unworkable.
(i) Information should be accessible under the act, (ii) Information should be under a public authority
# (2003) 5 SCC 294
# (1973) 1 SCC 527
# (1969) 2 SCC 481

The  author can be reached at: kushagra9785@legalserviceindia.com