OFFICE OF CJI NOW COMES UNDER THE RTI ACT: IS IT JUSTIFIED?
After almost a 12-year protracted battle for accountability and transparency in the judiciary, the Supreme court on 13 November 2019, in a landmark judgment titled Central Public Information Officer (CPIO), Supreme Court Of India vs. Subhash Chandra Agarwal held that the office of Chief Justice of India (CJI) is a ‘public authority’, that falls within the ambit of Right to Information (RTI) Act. A five-judge constitution bench headed by CJI Ranjan Gogoi, in three separate but concurring judgments, upheld the 2010 Delhi High Court verdict, dismissing three appeals filed by the Secretary-General and CPIO, of the apex court.
Out of the three appeals, two were preferred against the decision of the Central Information Commission (‘CIC’) directing CPIO, Supreme Court to furnish: (i) copy of complete correspondence between the concerned constitutional authorities i.e. the collegium and the government on the appointment of Justice HL Dattu, RM Lodha and AK Ganguly as the Supreme Court judges superseding three other judges. (ii) Copies of a revelation made by Justice R Raghupati of the Madras High court to the Chief Justice of India about a Union Minister approaching him through his lawyer to influence his decision. The third appeal was filed against the ruling of the Delhi High Court mandating CPIO, Supreme Court to provide information about the declaration of assets made by the Judges of the Supreme Court to the CJI in pursuance to a resolution adopted by them in a 1997 conference.
The term ‘public authority’ under Section 2 (h) of the RTI Act includes any authority or body or an institution of self-government established by or under the constitution. Article 124 of the Constitution of India establishes the Supreme Court and Article 124 (1) states that the Supreme Court of India should consist of CJI. Therefore as per the provisions of Section 2 (h) of the RTI Act Supreme Court of India comes under the ambit of ‘public authority’. The Office of CJI is part and parcel of the Supreme Court as an institution, authority, and body. The interpretation of Section 2 (h) cannot be made in derogation with the Constitution and thus the CJI along with the judges of the Supreme Court together form the public authority in view of Article 124 of the constitution. It is also to be noted that judges have been refereed as ‘public servants’ as per the provisions of Indian Penal Code, 1860. The objectivity of the RTI Act lies on the fact as to how the information is available and not on the way it is received or protected by the authority. Therefore it is justifiable to disclose information regarding the judges who have declared their assets to the office of CJI. Further CJI does not hold this information under any fiduciary relationship and as a consequence of which disclosure of such information cannot be exempted under Section 8 (1) (e) of the RTI Act.
STRIKING A BALANCE BETWEEN RIGHT TO INFORMATION AND RIGHT TO PRIVACY
The right to information emanates from the freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. However, this right to information is not unfettered as it would cause unwarranted invasion of the right to privacy which is now a recognized fundamental right under Article 21. The right to information is to be harmonized with the right to privacy, and the RTI Act strikes a balance between these two competing rights under Section 8 (1) (j) and Section 11. In this regard, Justice N.V. Ramanna in his concurring opinion has said that “in the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck.”
Clause (j) of Section (8) (1) provides that information sought can be denied if it is a ‘personal information’ having no bearing with the public interest or the disclosure would amount to ‘unwarranted invasion of the right to privacy’. Moreover, Section 11 (1) states that if the information required is under the confidentiality of the ‘third party’, due regard must be given to the opinion of the third party to respect his or her privacy or to protect the third party from possible harm or injury. But disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
The contention that the disclosure of the information relating to declaration of assets, correspondence between concerned constitutional authorities would infringe the right to privacy of the judges was rejected by the court given the aforementioned provisions. Adequate safeguards to uphold the right to privacy has been already provided under the RTI Act. The apex court held that though the information relating to correspondence between the concerned constitutional authorities on the matter of appointment of the Supreme Court Judges is ‘third party information’, but it can be disclosed if a larger public interest warrants.
JUDICIAL ACCOUNTABILITY VIS-A-VIS INDEPENDENCE OF JUDICIARY
It is a misconceived postulate that judicial accountability and independence of the judiciary are antagonistic notions. Transparency in the functioning of the judiciary, in fact, preserves and upholds judicial independence by bringing any attempt to undermine the independence of the judiciary in the public domain. The independence of the judiciary encompasses independence from the other two organs of the government i.e., legislature and executive but the Supreme Court as a public authority is accountable to the public. Judicial accountability, therefore, is a facet of judicial independence.
However, it must be noted that the independence of the judiciary is a non-negotiable principle in a democratic setup. It is indispensable for the judiciary to function efficiently and impartially. The public information officer is therefore expected to take into consideration the independence of the judiciary when exercising his discretion in matters pertaining to disclosure of information in the larger public interest. This, however, does not mean that access to information will always be forbidden to protect the independence of the judiciary. In certain matters, the independence of the judiciary may require furnishing the information sought. Justice DY Chandrachud in his verdict has pointed out that “judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing transparency would threaten judicial independence.”
After having kept in cold storage for a long period, the Supreme Court has finally decided this matter of urgent public importance. The credibility of any institution is based on the faith of the people in it. Opacity in the functioning dents the credibility of that institution as a whole. This decision to bring the office of Chief Justice of India under the RTI Act will strengthen the faith of people in the Judiciary. Further, this step is even more necessary because enhanced standards of transparency must apply to the judiciary as it is a non- elected institution not amenable to changes after every five years like the legislature.
The functioning of the judiciary has always been shrouded in mystery but this landmark verdict will bring the much-needed change in the Indian Judicial System. This decision marks an advancement of the key right of the people to seek information about the public functionaries. The apex court, through its judgment, has once again reiterated a famous adage that “Sunlight is the best disinfectant” and therefore transparency in the functioning of all the institutions be it a legislature, executive or even judiciary is indispensable in a modern democracy.
Footnote:  Central Public Information Officer, Supreme Court Of India v. Subhash Chandra Agarwal, (2019) 8 MLJ 222.  Section 2 (h), Right To Information Act, 2005.  K. Veeraswami v. Union of India, (1991) 3 SCC 655.  State of U.P. v. Raj Narain, (1975) 4 SCC 428.  K.S Puttaswamy and Another v. Union of India and Others, (2017) 10 SCC 1.  supra note 1.  Section 8 (1) (j), Right To Information Act, 2005.  Section 11 (1), Right To Information Act, 2005.  supra note 1.
Sanskar Modi & Dhwanit Rathore,
National Law Institute University, Bhopal.