Topic: Secretary General, Supreme Court of India v. Subash Chandra Agarwal - Right to Information Act
Secretary General, Supreme Court of India v. Subash Chandra Agarwal - Right to Information Act
LPA No.501/2009 - Coram: Hon'ble The Chief Justice, Hon'ble Mr.Justice Vikramajit Sen, Hon'ble Dr.Justice S. Muralidhar - Judgment Reserved On: 13th November, 2009
1. Whether the reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes AJIT PRAKASH SHAH, CHIEF JUSTICE
1. This appeal is directed against the judgment dated 2 nd September, 2009 of the learned single Judge (S. Ravindra Bhat, J) in the writ petition filed by the Central Public Information Officer, Supreme Court of India (hereinafter, "the CPIO") nominated under the Right to Information Act, 2005 (hereinafter, "the Act") questioning correctness and legality of the order dated 6 th LPA 501/2009 page 1 of 88 January, 2009 of the Central Information Commission (hereinafter, "the CIC") whereby the request of the respondent No.1 (a public person) for supply of information concerning declaration of personal assets by the Judges of the Supreme Court was upheld.
2. The subject matter at hand involves questions of great importance concerning balance of rights of individuals and equities against the backdrop of paradigm changes brought about by the legislature through the Act ushering in an era of transparency, probity and accountability as also the increasing expectation of the civil society that the judicial organ, like all other public institutions, will also offer itself for public scrutiny. A citizen demanded information about asset declarations by the Judges. In this context, questions have been raised and need to be answered as to whether a "right to information" can be asserted and maintained within the meaning of the expression defined in Section 2(j) of the Act. Equally important are the questions requiring interpretation of the expressions "fiduciary", as in Section 8(1)(e) and "privacy" as in Section 8(1)(j), both used but not defined specifically by the statute.
3. When the learned single Judge set about the task of hearing submissions on the writ petition, the Attorney General for India LPA 501/2009 page 2 of 88 appearing for the appellant clarified at the outset that the learned Judges of the Supreme Court are "not opposed to declaring their assets, provided that such declarations are made in accordance with due procedure laid down by a law which would prescribe (a) the authority to which the declaration would be made (b) the form in which the declaration should be made, with definitional clarity of what are „assets‟, and (c) proper safeguards, checks and balances to prevent misuse of information made available." After the learned single Judge had concluded the hearing and had reserved his judgment on the writ petition, certain events supervened. The Full Court of the Supreme Court resolved to place the information on the court website after modalities are duly worked out. Some High Courts, including Delhi High Court, also resolved similarly to make public the information about the declaration of assets by the Judges. The learned single Judge in the impugned judgment had given certain directions about disclosure. In the course of hearing on 7th October, 2009, on CM No.14043/2009, the learned Attorney General for India informed that the operative part in the judgment under appeal had been complied with. The appeal has been pursued on the ground that fundamental questions of law with regard to scope and applicability of the Act with specific reference to declarations of assets by the Judges of High Courts and Supreme Court persist and need to be addressed.
LPA 501/2009 page 3 of 88 FACTS
4. The genesis of the dispute at hand relates to two resolutions; first, resolution dated 7th May, 1997 of the Full Court of the Supreme Court (hereinafter, "the 1997 Resolution") and second, the "Re-statement of Values of Judicial Life (Code of Conduct)" adopted unanimously in the Conference of the Chief Justices of all High Courts convened in the Supreme Court on 3rd and 4th December, 1999 (hereinafter, "the 1999 Resolution"). Through the 1997 Resolution, Hon‟ble Judges of the Supreme Court, inter alia, resolved that "every Judge should make a declaration of all his/her assets in the form of real estate or investment" held in own name or in the name of spouse or any person dependent within a reasonable time and thereafter make a disclosure "whenever any acquisition of a substantial nature is made". The 1999 Resolution, inter alia, referred to the 1997 Resolution and the draft re-statement of values of judicial life prepared on the basis, amongst others, inputs received from various High Courts and an earlier committee as also resolutions passed in the Chief Justices‟ Conference held in 1992. The Code of Conduct, thus finalized, came to be adopted and may also be called 1999 Judicial Conference Resolution.
LPA 501/2009 page 4 of 88
5. The facts of the case, briefly stated, are that the respondent (hereinafter, "the applicant") made an application to the CPIO on 10th November, 2007 under the Act making two-fold request; viz., (i) to furnish a copy of the 1997 resolution of the Full Court of the Supreme Court, and
(ii) information on any such declaration of assets etc. ever filed by Hon‟ble Judges of the Supreme Court and further information if High Court Judges are submitting declaration about their assets etc. to respective Chief Justices in States.
6. The first request was granted by the CPIO and a copy of the 1997 resolution was made available to the applicant. The CPIO vide order dated 30th November, 2007, however, informed the applicant that the information sought under the second head was not held or under the control of the registry (of the Supreme Court) and, therefore, could not be furnished. The applicant preferred an appeal before the nominated appellate authority.
7. The Appellate Authority remanded the matter to CPIO, inter alia, observing that "the appellant is justified in contending that if the CPIO was not holding the information, he should have considered the question of Section 6(3). Regarding the respective States, if the CPIO was not holding information, he should have considered whether he should have invoked the LPA 501/2009 page 5 of 88 provision under Section 6(3) of the Right to Information Act". The CPIO, after the said remand order, once again declined the relief, now stating that the request could not be appreciated since it was against the spirit of Section 6(3) inasmuch as the applicant had been very well aware that the information sought related to various High Courts and yet had taken a "short circuit procedure" by approaching the CPIO, Supreme Court of India, "and getting it referred to all the public authorities at the expense of one Central Public Information Officer".
8. The applicant then filed an appeal before the CIC, the apex appellate authority under the Act. The contention raised was that the CPIO had not followed the directions of the appellate authority, which originally remanded the case for decision as to whether the application had to be sent to another authority. It was also submitted before the CIC that the order of CPIO maintained a studied silence about disclosure of information regarding asset declaration by Judges of the Supreme Court to the Chief Justice of India (hereinafter, "the CJI"), in accordance with the 1997 Resolution.
9. In the appeal before the CIC, the CPIO took several defences including the submission that the Registrar of the Supreme Court did not hold the information; the information sought related to a subject matter which was "an in-house exercise" and pertained to material held by the CJI in his personal capacity. It was also LPA 501/2009 page 6 of 88 submitted that the declarations made by the Judges of the Supreme Court had been made over by them to the CJI on voluntary basis in terms of the 1997 Resolution in a "fiduciary relationship". On the basis of the last said submission, it was also contended before the CIC that the disclosure of such information would be in breach of the fiduciary character attached to the material and, therefore, contrary to the provisions of Section 8(1) of the Act.
10. Before the CIC the issue concerning transfer of the request under Section 6(3) of the Act was not pressed. The CIC vide its order dated 6th January, 2009 rejected the contentions of the CPIO. He reasoned that Supreme Court is a "public authority" within the meaning of Section 2(h) of the Act since it has been established by the Constitution of India. He referred to Section 2(e)(i) to hold that the CJI is a "competent authority" empowered to frame rules under Section 28 to carry out the provisions of the Act and thus concluded that the CJI and the Supreme Court cannot disclaim being public authorities. The CIC pointed out that the information in question is maintained like any other official information available for perusal and inspection to every succeeding CJI and, therefore, cannot be categorized as "personal information" held by the CJI in his "personal capacity". It was argued before the CIC that CJI and Supreme Court of India are two distinct public authorities. This contention was repelled with further observation that the Registrar and CPIO of the Supreme LPA 501/2009 page 7 of 88 Court are part of the said institution and thus not independent or distinct authorities. On this finding, it was held by CIC that the CPIO is obliged to provide the information to a citizen making an application under the Act unless the disclosure was exempt. The CIC noted that neither the CPIO nor the first appellate authority had claimed that the information asked for is exempt on account of "fiduciary relationship" or it being "personal information". He further noted that the applicant was apparently not seeking a copy (or inspection) of the declaration or the contents thereof or even the names etc. of the Judges giving the same. He concluded that the exemptions under Sections 8(1)(e) or 8(1)(j) were not attracted to the case.
11. The CIC, vide order dated 6th January, 2009 thus directed the CPIO "to provide the information asked for by the appellant in his RTI application as to whether such declaration of assets etc. has been filed by the Hon‟ble Judges of the Supreme Court or not within ten working days from the date of receipt of this decision notice".
PROCEEDINGS BEFORE THE SINGLE JUDGE
12. The writ petition was preferred by the CPIO challenging the said directions of CIC in the impugned order. The applicant was impleaded as a respondent.
LPA 501/2009 page 8 of 88
13. In the writ proceedings before the learned single Judge, the Registrar, Supreme Court was subsequently added as a co- petitioner. On the other hand, Delhi High Court Bar Association (hereinafter, "DHCBA") and Rashtriya Mukti Morcha were allowed to join as interveners.
14. In the writ petition, the order of CIC was challenged mainly on the following lines:-
a. The "information", to the disclosure of which a "right to information" can be claimed under the Act has to be an information "accessible" under the law and one "held by or under the control of any public authority", as defined in Section 2(j).
b. The information sought for by the applicant is not in the "public domain" inasmuch as it is not held under the mandate of any law. The 1997 resolution is not binding nor can it be described as "rules" for the reasons that compliance therewith is a matter of choice or own volition for the individual Judges and there is no sanction attached for "non-performance";
c. The disclosure made by the Judges, pursuant to the 1997 resolution, is not a public act done in the discharge of duties of their office whereas the regime under the Act is aimed at ensuring access to all actions of public officials done or performed during the course of their official duties; LPA 501/2009 page 9 of 88 d. If it were to be held that the information sought by the applicant is "information" within the meaning of the expression used in the statute, the question of its access would arise with reference to exemptions under Section 8; e. The information sought is exempt from disclosure by virtue of Section 8(1)(e) of the Act. The 1997 resolution emphasized on the understanding that "declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential", and, therefore, there is a fiduciary duty cast on the CJI to hold these declarations "in confidence". Founded on the last mentioned premise, it was further argued that any attempt to compel the CJI to make the information public would amount to compelling him "to breach the fiduciary nature of his duty"; and
f. The information sought is exempt by virtue of Section 8(1)(j) of the Act for the reason it relates to "personal information" which has no nexus with "any public activity or interest" and the disclosure of which was likely to cause "unwarranted invasion of the privacy" of the Judges.
15. The applicant contested the writ petition before the learned single Judge joining issue on each of the grounds taken. It was submitted that Section 22 of the Act conferred upon this special statute an "overriding effect" and the classification of any information as "confidential", by itself, would not render it an LPA 501/2009 page 10 of 88 information "not in the public domain" or one which cannot be accessed. It was argued that the 1997 Resolution represented a conscious decision taken by the Judges of the Supreme Court and, therefore, its binding nature could not be undermined. Before the learned single Judge, the applicant questioned the plea that the information was held by the CJI in his private capacity or in a fiduciary relationship. It was submitted that the Judges are public functionaries and the declarations in question were made by them in their official capacity to the CJI, who, in turn, received the same and held it in his official capacity. Though pointing out that the contents of the declarations made by the respective Judges were not part of the information that had been requested from the CPIO and thus submitting that there was no invasion of privacy in the case at hand, it was insisted that only such further information (i.e. contents of the declarations) could be asked for and disclosed under the Act, notwithstanding the exemption under Section 8(1)(j), should the CPIO or the appellate authority find justification in its disclosure "in larger public interest".
16. Both the interveners, in their submissions before the learned single Judge adopted the case made out by the applicant and insisted that there exists a right to information vis-à-vis the declarations made by the judges under the Act. LPA 501/2009 page 11 of 88
17. The learned single Judge proceeded to consider the rival submissions. He culled out the points for consideration (in para 27 of the impugned judgment) as under:
(1) Whether the CJI is a public authority; (2) Whether the office of CPIO of the Supreme Court of India, is different from the office of the CJI; and if so, whether the Act covers the office of the CJI;
(3) Whether the asset declarations by Supreme Court judges, pursuant to the 1997 Resolution is
"information", under the Right to Information Act, 2005;
(4) If such asset declarations are "information" does the CJI hold them in a "fiduciary" capacity, and are they therefore, exempt from disclosure under the Act; (5) Whether such information is exempt from disclosure by reason of Section 8(1)(j) of the Act;
(6) Whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their
18. Upon consideration of the submissions made before him, the learned single Judge concluded against point Nos.1 and 2 that the CJI is a public authority under the Right to Information Act and holds the information pertaining to asset declarations in his capacity as the Chief Justice. It was also held that the office of the Chief Justice of India is "public authority" under the Act and is covered by its provisions.
LPA 501/2009 page 12 of 88
19. On point No.3, it was held by the learned single Judge that the second part of the respondent‟s application (which relates to declaration of assets by the Supreme Court Judges) is "information" within the meaning of the expression defined in Section 2(f) of the Act and further that the information pertaining to declarations given to the CJI and the contents of such declarations are "information" which is subject to the provisions of the Right to Information Act.
20. The plea of the appellant, founded on Section 8(1)(e), that the information contained in said asset declarations are held by the CJI in "fiduciary capacity" and, therefore, exempt from disclosure was held to be "insubstantial". Answering point No.4, it was held that the CJI does not hold such declarations in a fiduciary capacity or relationship.
21. The learned single Judge further held, in the context of point No.5, that the contents of asset declarations, pursuant to the 1997 Resolution, as also 1999 Resolution, are entitled to be treated as personal information which are "not otherwise subject to disclosure" but "may be accessed in accordance with the procedure prescribed under Section 8(1)(j)." On the specific information sought by the applicant in the case at hand (i.e. whether the declarations were made pursuant to 1997 Resolution), it was held that the procedure under Section 8(1)(j) is "inapplicable".
LPA 501/2009 page 13 of 88
22. The appellant had also raised the issue of lack of clarity about the asset declaration and details thereof as well as lack of security, claiming further that these aspects (lack of clarity and security) rendered asset declaration and the disclosure "unworkable". This was the subject-matter of point No.6 (mentioned in para 27 of the impugned judgment). Learned single Judge observed that these are not insurmountable obstacles. In his view, the CJI, if he deems it appropriate, may in consultation with the Supreme Court Judges, evolve uniform standards, devising the nature of information, relevant formalities, and if required, the periodicity of the declarations to be made. In this context, learned single Judge referred to the forms evolved as well as the procedures followed in the United States (including the "redaction" of the norms) under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007 (which amended the Ethics in Government Act, 1978). Learned single Judge suggested that cue can be taken from the above norms or procedures in vogue in USA to: (i) restrict disclosure of personal information about family members of judges whose revelation might endanger them; (ii) extend the authority of the Judicial Conference to redact certain personal information of Judges from financial disclosure.
LPA 501/2009 page 14 of 88
23. In view of the above findings, the learned single Judge, vide the impugned judgment, directed the appellant CPIO to reveal the information sought by the respondent applicant, about the declaration of assets (and not the contents of the declarations, as that was not sought for) made by Judges of the Supreme Court, within four weeks.
CHALLENGE IN APPEAL
24. This appeal was preferred by the CPIO and the Registrar of the Supreme Court impleading the applicant and the CIC as respondents. Vide order dated 7th October, 2009 of the Division Bench, upon a request by the learned Attorney General for India, CPIO and CIC were deleted from the array of parties with the further direction that Secretary General, Supreme Court of India will be the appellant. Considering the importance of the question involved, the appeal was directed to be heard by a larger Bench of three Judges.
25. It may be mentioned here that the findings to above effect returned by the learned single Judge in the context of point Nos. 1 & 2 referred to above are no longer an issue of controversy or debate. It has been fairly conceded on behalf of the appellant that the conclusions arrived at by the learned single Judge in the impugned judgment and the reasons therefor are correct and thus, do not deserve to be disturbed.
LPA 501/2009 page 15 of 88
26. Notwithstanding the fact that the correctness of the findings respecting point Nos. 1 & 2 have been fairly conceded by the learned Attorney General for India, we have given our careful consideration to the matter in the overall facts and circumstances of these proceedings. We find ourselves in full agreement with the reasoning set out in the impugned judgment. The expression "public authority" as used in the Act is of wide amplitude and includes an authority created by or under the Constitution of India, which description holds good for Chief Justice of India. While providing for Competent Authorities under Section 2(e), the Act specifies Chief Justice of India as one such authority in relation to Supreme Court, also conferring upon him the powers to frame rules to carry out the purposes of the said law. Chief Justice of India besides discharging the prominent role of "head of judiciary" also performs a multitude of tasks specifically assigned to him under the Constitution or various enactments. As said in the impugned judgment, these varied roles of the CJI are directly relatable to the fact that he holds the office of Chief Justice of India and heads the Supreme Court. In absence of any indication that the office of the CJI is a separate establishment with its own Public Information Office under the Act, it cannot be canvassed that the office of the CPIO of the Supreme Court is different from the office of the CJI. Thus, the answer to point Nos. 1 & 2 referred to above has been correctly given in the impugned judgment which findings are hereby confirmed.
LPA 501/2009 page 16 of 88
27. In this quest, both the sides did not seek to make any submissions on the issue of "unworkability" on account of "lack of clarity" or "lack of security" vis-à-vis asset declarations by the Judges, which form part of the discourse on point No.6 (para 27 of the impugned judgment).
28. The prime submission of the learned Attorney General for India appearing for the appellant is that the learned single Judge has failed to properly formulate or answer the question, which was fundamental and central to the adjudication of the issues arising, viz. that the applicant had no "right to information" under Section 2(j). It is contended that the "right to information" under Section 2(j) applies only when the information sought is in public domain. The learned Attorney General submits that the learned single Judge failed to consider or appreciate the submission about absence of "right to information" and instead had proceeded to examine whether the asset declaration pursuant to the 1997 resolution was "information", which issue was not even raised. It is argued that the Resolution dated 7th May, 1997 has no force of law and even the "in-house procedure in the judiciary has its basis only of moral authority and not any exercise of power under any law". It is urged that the words "held by" or "under the law" necessarily implied the legal sanction behind the holding of or controlling of such sanction. It is argued that the plea about information sought not being in public domain was a sequitor to LPA 501/2009 page 17 of 88 the Section 2(j) argument. The argument based on Sections 8(1)(e) and 8(1)(j) are reiterated.
29. The controversy thus subsists on point Nos. 3,4 & 5, formulated for consideration by the learned single Judge. Having regard to the submissions at the stage of appeal, the points for consideration need to be recast as under:-
(1) Whether the respondent had any "right to information" under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?
(2) If the answer to question (1) above is in affirmative, whether CJI held the "information" in his "fiduciary" capacity, within the meaning of the expression used in Section 8(1)(e) of the Act ?
(3) Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act ?
RIGHT TO INFORMATION
30. Information is currency that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the LPA 501/2009 page 18 of 88 responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation. Information is basis for knowledge, which provokes thought, and without thinking process, there is no expression. "Knowledge" said James Madison, "will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it is but a prologue to farce or tragedy or perhaps both". The citizens‟ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.
RELEVANT INTERNATIONAL LAW
31. The Charter of the United Nations, which was set up in 1945, in its preamble clearly proclaims that it was established in order to save succeeding generations (of humanity) from the scourge of war and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. The right to information was recognised at its inception in 1946, when the General Assembly resolved that: "freedom of information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated". [UN General Assembly, Resolution 59(1), 65th Plenary Meeting, 14th December, 1946]. LPA 501/2009 page 19 of 88
32. The Universal Declaration of Human Rights of 1948 adopted on 10th December in Article 19 said :
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers."
33. The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1968. Article 19 of the Convention reads as follows:
(1) Everyone shall have the right to hold opinions without interference;
(2) Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice." India has ratified the ICCPR. Section 2(d) read with 2(f) of the Protection of Human Rights Act, 1993 clarifies „human rights‟ to include the rights guaranteed by the ICCPR.
34. The Convention of the Organisation of American States and European Convention on Human Rights also incorporate specific provisions on the right to information.
RIGHT TO INFORMATION AS A CONSTITUTIONAL RIGHT
35. The development of the right to information as a part of the constitutional law of the country started with petitions by the LPA 501/2009 page 20 of 88 print media in the Supreme Court seeking enforcement of certain logistical implications of the right to freedom of speech and expression such as challenging government orders for control of newsprint, bans on distribution of paper etc. It was through the following cases that the concept of the people‟s right to know developed.
36. In Benett Coleman v. Union of India, AIR 1973 SC 106, the Court held that the impugned Newsprint Control Order violated the freedom of the press and therefore was ultra vires Article 19(1)(a) of the Constitution. The Order did not merely violate the right of the newspapers to publish, which was inherent in the freedom of the press, but also violated the right of the readers to get information which was included within their right to freedom of speech and expression. Chief Justice Ray, in the majority judgment, said:
"It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press
embodies the right of the people to read." (para 45)
37. In a subsequent judgment in Indian Express Newspaper (Bombay) Private Ltd. V. Union of India, AIR 1986 SC 515, the Court held that the independence of the mass media was essential for the right of the citizen to information. In Tata Press Ltd. V. Maharashtra Telephone Nigam Ltd., (1995) 5 LPA 501/2009 page 21 of 88 SCC 139, the Court recognized the right of the public at large to receive „commercial speech‟.
38. The concept of the right to information was eloquently formulated by Mathew, J. in The State of UP v. Raj Narain, AIR 1975 SC 865, in the following words: (para 74) "In a government of responsibility like ours,
where all the agents of the public must be
responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not
absolute, is a factor which should make one
wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security, see New York Times Co. v. United States (1971) 29 Law Ed. 822 = 403 U.S. 713. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."
39. In the case of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 (para 65), Bhagwati, J (as he then was) emphasising the need for openness in the government, observed:
65. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is LPA 501/2009 page 22 of 88 cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the
conduct of the government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a
continuous process of government - an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open
government where there is full access to
information in regard to the functioning of the government."
40. In Association for Democratic Reforms v. Union of India, AIR 2001 Delhi 126, the Delhi High Court held that voters have a right to receive information about the antecedents of the candidates who stood for election. The Court held that the Election Commission had the duty to inform the voters about the candidates and therefore, it can direct the candidates filing nominations for election to give details about their assets and liabilities, past criminal cases ending in acquittals or convictions and pending criminal prosecution if any. The Union Government appealed against that decision to the Supreme Court which upheld the Delhi High Court decision in Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 and directed the Election Commission to seek such information from the candidates filing nominations. The Government after consulting various political parties arrived at the conclusion that the Election Commission should not have such power and it LPA 501/2009 page 23 of 88 brought forth an Ordinance under Article 123 of the Constitution to amend the Representation of People Act, 1951 and withdrew from the Election Commission such powers requiring information to the extent mandated by the above decision of the Supreme Court. Constitutional validity of that amendment was challenged in the Supreme Court. The Supreme Court held the amendment to be unconstitutional and void in PUCL v. Union of India, (2003) 4 SCC 399. Justice M.B. Shah delivering the majority opinion of the Supreme Court said: (para 42)
"Firstly, it should be understood that the
fundamental rights enshrined in the Constitution such as, right to equality and freedom have no fixed contents. From time to time, this Court has filled in the skeleton with soul and blood and made it
vibrant. Since the last more than 50 years, this court has interpreted art. 14, 19 and 21 and given meaning and colour so that nation can have a truly republic democratic society."
41. Justice P. Venkatarama Reddi in his concurring opinion reiterated the same view as follows: (para 81) "We must take legitimate pride that this cherished freedom (freedom of speech) has grown from
strength to strength in the post independent era. It has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional courts."
42. Professor S.P. Sathe, in his brilliant work on right to information ("Right to Information": Lexis Nexis Butterworths, 2006) stated that there are certain disadvantages of treating the right to information as situated exclusively in Article 19(1)(a) of LPA 501/2009 page 24 of 88 the Constitution. According to the learned author, the right to information is not confined to Article 19(1)(a) but is also situated in Article 14 (equality before the law and equal protection of law) and Article 21 (right to life and personal liberty). The right to information may not always have a linkage with the freedom of speech. If a citizen gets information, certainly his capacity to speak will be enhanced. But many a time, he needs information, which may have nothing to do with his desire to speak. He may wish to know how an administrative authority has used its discretionary powers. He may need information as to whom the petrol pumps have been allotted. The right to information is required to make the exercise of discretionary powers by the Executive transparent and, therefore, accountable because such transparency will act as a deterrent against unequal treatment. In S.P. Gupta's case, the petitioners had raised the question of alleged misuse of power of appointing and transferring the Judges of the High Court by the Government. In order to make sure that the power of appointment of Judges was not used with political motives thereby undermining the independence of the judiciary, the petitioners sought information as to whether the procedures laid down under Articles 124(2) and 217(1) had been scrupulously followed. Here the right to information was a condition precedent to the rule of law. Most of the issues, which the Mazdoor Kisan Shakti Sangathan of Rajasthan had raised in their mass struggle for the right to information, were mundane matters regarding LPA 501/2009 page 25 of 88 wages and employment of workers, such information was necessary for ensuring that no discrimination had been made between workers and that everything had been done according to law. The right to information is thus embedded in Articles 14, 19(1)(a) and 21 of the Constitution.
THE RIGHT TO INFORMATION ACT, 2005
43. After almost 55 years since the coming into force of the Constitution of India, a national law providing for the right to information was passed by both Houses of Parliament on 12/13 th May, 2005. It is undoubtedly the most significant event in the life of Indian Democracy. Prime Minister Manmohan Singh, while speaking on the Right to Information Bill in the Lok Sabha, said: "The Legislation would ensure that the benefits of growth would flow to all sections of people,
eliminate corruption and bring the concerns of the common man to the heart of the all processes of governance."
[The Hindu, 12.5.2005, pg.1]
44. The preamble to the Act says that the Act is passed because „democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and hold Governments and their instrumentalities accountable to the governed‟. The Act restricts the right to information to citizens (Section 3). An applicant seeking information does not have to give any reasons why he/she needs such information except such details as may be necessary for LPA 501/2009 page 26 of 88 contacting him/her. Thus, there is no requirement of locus standi for seeking information [Section 6(2)].
45. Section 2(f) of the Act defines "information" as any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. As per Section 2(i), "record" includes (i) any document, manuscript and file; (ii) any microfilm, microfiche and facsimile copy of a document; (iii) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (iv) any other material produced by a computer or any other device. "Right to information" is defined by Section 2(j) to mean the right to information accessible under the Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
LPA 501/2009 page 27 of 88 LIABILITY TO PROVIDE INFORMATION
46. Every public authority is liable to provide information. "Public authority" has been defined by Section 2(h) as any authority or body or institution of self-government established or constituted - (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any - (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. By virtue of Section 24, the Act does not apply to the Intelligence and Security Organisations specified in the Second Schedule. However, the information pertaining to the allegations of corruption and human rights violations shall be required to be given by such authorities subject to the approval of the Central Information Commissioner.
47. The Act does not merely oblige the public authority to give information on being asked for it by a citizen but requires it to suo moto make the information accessible. Section 4(1)(a) of the Act requires every public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under the Act and ensure that all records that are appropriate to be computerised are, within a LPA 501/2009 page 28 of 88 reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. Section 4 spells out various obligations of public authorities and Sections 6 and 7 lay down the procedure to deal with request for obtaining information.
48. Exemptions from disclosure of information are contained in Section 8 of the Act and that provision starts with a non-obstante clause. Section 8(1) states that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information relating to following matters: (a) Information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) Information including commercial confidence, trade secrets or intellectual property, the disclosure of which LPA 501/2009 page 29 of 88 would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) Information received in confidence from foreign government;
(g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. However, the decision of the Council of Ministers, the reasons thereof and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete, or over and exception to this is further provided in the second proviso which says that "those matters which LPA 501/2009 page 30 of 88 come under exemptions specified above shall not be disclosed;
(j) Information which relates to personal information the disclosure of which has no relation to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the CPIO or the SPIO, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.
OVER-RIDING EFFECT OF THE ACT
49. Section 22 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent contained in the Official Secrets Act, 1923 and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act.
POINT 1: WHETHER THE RESPONDENT HAD ANY "RIGHT TO INFORMATION" UNDER SECTION 2(J) OF THE ACT?
50. The gravamen of the submissions of the learned Attorney General is that the respondent had no „right to information‟ under Section 2(j) of the Act. He submitted that Section 2(j) contemplates two essential ingredients to constitute a „right to information‟ under the Act i.e. (i) the information should be LPA 501/2009 page 31 of 88 accessible under the Act and (ii) such information should be „held by‟ or „under the control of‟ any public authority. It is his submission that the second mandatory requirement is not fulfilled in the instant case. According to him, the phrases „held by‟ or „under the control of‟ necessarily imply a legal sanction behind the holding of or controlling such information. If there is no legal sanction behind holding of or controlling such information, there cannot be any right in respect of such information under Section 2(j). In other words unless public authority has dominion or control over the information, there is no right to information under the Act. The second limb of his argument is that the Resolutions have no force of law and that there is no legal or constitutional requirement for filing the assets declaration. As such declarations filed pursuant to 1997 Resolution cannot be the subject matter of disclosure under the Act. Therefore, the finding of the learned single Judge that the 1997 Resolution is binding merely because it was passed at the Chief Justices Conference is entirely unjustified. According to him, the observations of the learned single Judge failed to answer the further question as to how the Resolution is to be implemented, by whom, to what extent and in what manner.
51. In support of the above submissions, learned Attorney General relied upon the decision in (i) In re. Coe's Estate, 2002 Pacific Reporter 2nd Series, 1022 in which the term „held‟ was LPA 501/2009 page 32 of 88 construed as "being invested with legal title or right to hold such claim or possession". In this context, he also referred to the decisions of the Supreme Court in Bhudan Singh v. Nabi Bux, (1969) 2 SCC 481 (para 12), Kailash Rai v. Jai Jai Ram, (1973) 1 SCC 527 (para 11). The observations of Evershed M.R. in Dollfus Mieg et Compagnie S.A. v. Bank of England, 1 Ch. 333 that "Control would ..... cover the right to tell the possessor what is to be done with the property" were relied upon. A reference was made to Black‟s Law Dictionary 8th ed. where the word „control‟ is defined as „to exercise power or influence over‟ and also to P. Ramanatha Aiyar‟s Advanced Law Lexicon that the expression „control‟ connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority. Certain passages in Philip Coppel‟s book "Information Rights" were also relied upon.
52. Learned Attorney General further submitted that the Resolution of 1997 was in two parts. The first part related to the creation of an in-house mechanism for taking remedial action against Judges who do not follow the universally accepted values of judicial life, the second part related to the declaration of assets, and no sanction/in-house procedure was contemplated in the event of non-filing of declaration. He placed heavy reliance on the decision in the case of Indira Jaising v. Registrar General (2003) 5 SCC 294, in which the Supreme Court has held LPA 501/2009 page 33 of 88 that even the in-house procedure „in the judiciary‟ has its basis only on moral authority and not in exercise of power under any law. Learned Attorney General argued that a plethora of information is available within the judiciary, for example, notes of Judges or draft judgments. If the only requirement is „possession‟ then all such information would also have to be brought under Section 2(j) of the Act. Therefore, according to him, a restricted meaning will have to be given to the term „held‟ as information held by a public authority in its functioning as a public authority and not merely in its possession.
53. In reply, Mr. Prashant Bhushan submitted at the outset that the respondent is not seeking the enforcement of the Resolutions. The non-enforcement of the Resolutions is an entirely different issue altogether, and it may be argued that a citizen cannot compel either the Judges or the Chief Justice to comply with the same. He submitted that when information is provided to the CJI under the Resolutions, the same constitutes information held and under the control of the CJI as a public authority and would thus be amenable to the provisions of the Act. The Code of Conduct, according to him, establishes a mechanism and an in-house procedure for inquiring into complaints by a committee constituted by the CJI for taking action against Judges found to have violated the Code of Conduct. The Code also prescribes LPA 501/2009 page 34 of 88 certain consequences that arise out of non-adherence to the Code. The information provided to the CJI is consciously retained by the office of the CJI in his capacity as the CJI and as a repository of such information, prescribed by the Resolutions. It is not as if such information is held unlawfully or casually or even by accident. It is in fact maintained in the office as record for successive Chief Justices. According to Mr. Bhushan if the interpretation suggested by the learned Attorney General is accepted, it would lead to subversion of the Act and would render it totally ineffective.
54. Mr. Bhushan submitted that the CJI has implemented this mechanism in several past instances, which reveals that Judges have considered that these are binding standards. The 1997 Resolution cannot be disclaimed, as it was a conscious decision taken by Judges, who hold high public office, under the Constitution of India. Therefore, it was submitted that the Resolution has the force of law, and alludes to the 1999 Conference Resolution, which states that it is a "restatement of pre-existing and universally accepted norms, guidelines and conventions ...." It was argued that the binding nature of either resolution cannot be undermined, and that it is for the CJI or the individual High Court Chief Justice, to take such appropriate measures as are warranted to ensure that declaration of assets takes place.
LPA 501/2009 page 35 of 88
55. Mr. Bhushan submitted that the passages relied upon by the learned Attorney General from the commentary of Philip Coppel would rather support a liberal interpretation of the terms „held‟ or „under the control of‟ under Section 2(j) of the Act. The rest of the authorities relied upon by the learned Attorney General are related to property, which imply an entirely different nature of title and holding. With regard to the draft notes and judgments, learned counsel submitted that whether they constitute information within the meaning of the Act will have to be determined on case to case basis, in the manner all RTI applications are decided.
SECTION 2(j) "RIGHT TO INFORMATION"
56. Two definitions are crucial for answering the first issue i.e. "Information" [Section 2(f)] and "Right to Information" [Section 2(j)]. Information is defined to mean any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models. Also, data held in any electronic form such as FAX, micro film, microfiche etc. It also includes information relating to any private body which can be accessed by a public authority under any other law for the time being in force. The definition thus comprehends all matters which fall within the expression "material in any form". In absence of any LPA 501/2009 page 36 of 88 specific exclusion, asset declarations by the Judges held by the CJI or the CJs of the High Courts as the case may be, are „information‟ under Section 2(f). This position is not disputed by the learned Attorney General. But according to him, the term „held‟ under the Act necessarily requires a Public Authority to have the right to call for the information, or impose on a person an obligation to provide such information to the public authority.
57. As defined in Section 2(j), the term „right to information‟ means the right to information accessible under the Act which is held by or under the control of any public authority and includes the right to inspect, take notes, certified copies etc. „Accessible‟ shall mean the information being readily available or reachable or which can be obtained from the document, file, record etc. It is mandatory for each public authority to give this information to the citizen except where the information is exempt under the provisions of Section 8(1) of the Act. However, a public authority may allow access to every information in public interest if disclosure outweighs the harm to the protected interest irrespective of the provisions under Section 8(1). Further, where the information is exempt from disclosure, Section 10 lays down that access may be provided to that part of the record which does not contain any information which is exempt from disclosure and which can reasonably be secured from any part that contain exempt information.
LPA 501/2009 page 37 of 88
58. Philip Coppel in his monumental work "Information Rights" (2nd Edition, Thomson, Sweet & Maxwell 2007) explains the holding requirement in the context of Freedom of Information Act, 2000 (UK), thus :
"When information is "held" by a public authority For the purposes of the Freedom of Information Act 2000, information is "held‟ by a public authority if it is held by the authority otherwise than on behalf of another person, or if it is held by another person on behalf of the authority. The Act has avoided the technicalities associated with the law of disclosure, which has conventionally drawn a distinction between a document in the power, custody or possession of a person. Putting to one side the effects of s.3(2) (see para.9-009 below), the word "held" suggests a relationship between a public authority and the information akin to that of ownership or bailment of goods.
- that is, without request or arrangement, sent to or deposited with a public authority which does not hold itself out as willing to receive it and which does not subsequently use it;
- that is accidentally left with a public authority; - that just passes through a public authority; or - that "belongs" to an employee or officer of a public authority but which is brought by that employee or officer onto the public authority‟s premises,
will, it is suggested, lack the requisite assumption by the public authority of responsibility for or dominion over the information that is necessary before it can be said that the public authority can be said to "hold" the information. The position under the Environmental Information Regulations 2004 is clearer, those regulations expressly providing that environmental information must have been produced or received by the public authority if it is to be information "held" by that public authority. Under both regimes, information sent to a public authority without invitation and knowingly kept for any material length of time can probably be said to be held by the public authority. In short, information will not be "held" by a public authority, it is suggested, where that information neither is nor has been LPA 501/2009 page 38 of 88 created, sought, used or consciously retained by it. Thus, in the example given by the explanatory notes to the legislation, a Minister‟s constituency papers would not be held by the department just because the Minister happens to keep them there. It is quite possible for the same information to be held by more than one public authority. For example, if a document is sent by one public authority to another, but the first keeps a copy for itself, both public authorities will be holding the information comprised in the document. There is nothing to stop an applicant making a request to either or both public authorities for the same information."
59. Therefore, according to Coppel the word "held" suggests a relationship between a public authority and the information akin to that of an ownership or bailment of goods. In the law of bailment, a slight assumption of control of the chattel so deposited will render the recipient a depository (see Newman v. Bourne and Hollingsworth (1915) 31 T.L.R. 209). Where, therefore, information has been created, sought, used or consciously retained by a public authority will be information held within the meaning of the Act. However, if the information is sent to or deposited with the public authority which does not hold itself out as willing to receive it and which does not subsequently use it or where it is accidentally left with a public authority or just passes through a public authority or where it belongs to an employee or officer of a public authority but which is brought by that employee or officer unto the public authority‟s premises it will not be information held by the public authority for the lack of the requisite assumption by the public authority of responsibility for or dominion over the information that is necessary before the LPA 501/2009 page 39 of 88 public authority can be said to hold the information. Coppel refers to the decision in Canada Post Corpn. v. Canada (Minister of Public Works) (1995) 2 F.C. 110 where the Federal Court has held that the notion of control was not limited to the power to dispose of a record, that there was nothing in the Act that indicated that the word "control" should not be given a broad interpretation, and that a narrow interpretation would deprive citizens of a meaningful right of access under the Act.