A 12-YEAR LONG JOURNEY IN BRINGING TRANSPARENCY TO THE COURTS
CASE REFERENCE: CPIO, SUPREME COURT OF INDIA v. SUBHAS CHANDRA AGARWAL
(decided on November 13, 2019)
Central Public Information Officer, Supreme Court of India v. Subhas Chandra Agarwal is one of the landmark cases that determines the balance between the right to information guaranteed to all individuals with the principle of confidentiality. It mainly focuses on transparency in all government organizations. More importantly, it strikes an equilibrium between the right to privacy, a recognized fundamental right, along with the larger interest of the public which would necessitate the disclosure of information. The case is a result of a past story of the respondent about how his family became a victim of the high-handedness of some in the higher judiciary. It addresses questions related to disclosure of information related to the appointment of judges, their assets revelation and correspondence of judges and other authorities in light of judicial independence.
Subhash Chandra Agarwal (Respondent) moved three appeals before the Central Public Information Officer (CPIO), Supreme Court of India. He sought information relating to the declaration of assets by the Hon’ble Judges of Supreme court as well as the chief justice of the state High Courts. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought was not available with the Registry of the Supreme Court of India. The authority told CPIO to follow section 6(3) of the RTI Act, 2005 and to disclose the information. But he didn’t follow the order. The respondent then directly appealed to the Central Information Commission (CIC); it has directed disclosure of information. Aggrieved by the direction of the CIC, the CPIO, Supreme Court of India filed a Writ Petition before the Delhi High Court. But the matter went against him. The appeal was then transferred before the full judges’ bench of the Supreme Court of India.
Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed under the statute. The information what the respondent was seeking for was neither maintained nor available with the Registry. So, first appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed disclosure of information by relying on the judgment dated 2nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal & Another. Then the case was dealt in the Supreme Court of India as the CPIO (the present petitioner) moved to the Supreme Court stating that disclosure of such information would hamper the judicial independence of the office. The most important issue of the present case was ‘Is the information in the context of a collegium system for appointment and elevation of judges to the Supreme Court and the High Court’s; declaration of assets by judges, etc. protected under Right to Information Act, 2005?’
The 5-judge bench of the supreme court upheld 2010 Delhi high court judgement declaring the Chief Justice of India (CJI) office as a public authority. The order gave the citizens of India the right to question institutions and offices. The order went against the petitioner. According to me, the judgement was correct under the law. No person, be it Judge or the CJI, is above the law. Everyone falls under the common public of India. This judgement answers many important questions which prevails in every citizen’s mind. It’s clear the CJI comes under Public Authority under the Right to Information Act,2005 and the CJI holds the information pertaining to asset declarations in his capacity as Chief Justice. His office also comes under Public Authority under the Act.
The petitioner’s argument about the CJI holding asset declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the manner sought by the applicant) is insubstantial. The CJI does not hold such declarations in a fiduciary capacity or relationship.
When someone is seeking information about himself, he can’t be stopped under section 8 (1) (j) of the Act. When a person seeks information about third party that would amount to the personal information and only then it can be called “Intrusion of privacy”. But as a citizen of India, the respondent, Subhas Chandra Agarwal has complete Right to Information under section 2(j) of the RTI Act, 2005. And also, the Section 8(1)(j) of the Act does not clearly categorize what falls under “personal information” and what does not. Whenever this type of problem comes in a court, judges should give weightage to the statue rather than their own interpretation of term “Personal Information”. It is expected from concerned CPIO that the term should be made more confirmative and definite, so that problems arising under this section can be solved easily. Justice Chandrachud also pointed out in the judgement that the information about assets of judges does not constitute personal information and cannot be exempted from RTI.
The case raises important questions of constitutional importance relating to the position of Hon’ble Chief Justice of India under the Constitution. It also talks about the independence of the Judiciary in the scheme of the Constitution on one hand and on the other, fundamental right to freedom of speech and expression. Right to information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great importance and both of them must be kept in balance.
The key findings in the judgment authored by Justice Khanna are-
The Supreme Court of India and the Office of the CJI are not two different Public Authorities. The SC would necessarily include the Office of CJI and other Judges in view of Article 124 of the Constitution of India; 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 as in certain situations and acts, fiduciary relationship may arise; Details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judge. The main outcome of this case is transparency doesn’t undermine judicial independence. Independence of judiciary means it has to be independent from the executive and not from the common public. People are entitled to know what the public authorities are doing.
The present case analysis takes us back to the reference of the famous ‘three judges’ case’ namely S. P. Gupta v. Union of India – 1982 (also known as the Judges’ Transfer case), Supreme Court Advocates-on Record Association vs Union of India – 1993 and In re Special Reference 1 of 1998. In these three cases, the court evolved the concept of the judicial independence. On the judgement of the case Supreme Court Advocates on-record-association v. Union of India delivered on 16 October 2015, the Supreme Court declared the prevailing National Judicial Appointments Commission (NJAC) and the 99th Constitutional Amendment Act as unconstitutional. According to the court, NJAC was interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution. The collegium system was again restored. However, Supreme Court has acknowledged that the collegium system of appointing judges is lacking transparency and credibility which would be improved by the Judiciary. There are several cases in the history which mainly focuses on the transparency of the system. Independence of the judiciary needs to be maintained and at the same time it is to be ensured that the non-judicial members should bring in accountability in judicial appointment.
The judgement of the present case was true according to law. This judgement entails that there needs to be a balance between transparency, judicial independence and the Right to Information (RTI) Act.
This judgement dated November 13,2019 is truly exceptional because the Supreme Court has passed an order against its own office. This is a very significant judgement just because it showcases that even the office of the CJI comes under the ambit of RTI and no one is above the law. Transparency is extremely critical to uphold the fundamental rights. It sends a strong signal to all democratic institutions to strictly adhere to the principles of transparency and accountability emphasizing the RTI Act. Subhas Chandra Agarwal, the Right to Information activist fought nearly a 12 years long battle to ensure that the highest office in the judiciary is answerable to the common public. The judgement was no doubt a bold and reformist one and it was also peculiar in the sense that the court itself was a stakeholder. The judgement could have been different, but the court acted wisely. In last 50 years, India has done a fair job by having Freedom of Information act 2002, Right to information act 2005 but still there is need to strike a fine balance between one’s right to have information and other’s Right of privacy.
Author: SHINJINEE NAMHATA,
Intern at Lawportal,
Author: SHINJINEE NAMHATA,
IFIM LAW SCHOOL, BENGALURU, KARNATAKA , FIRST YEAR BBA-LLB STUDENT