Secretary General, Supreme Court of India v Subhash Chandra Agarwal (2010)

It decides the three questions a Module IV problem is most likely to raise: what information a public authority holds or controls, what a fiduciary relationship under section 8(1)(e) means, and how the right to information is reconciled with privacy under section 8(1)(j). It also states the constitutional source of the right in terms an answer should open with.

The applicant applied to the Central Public Information Officer of the Supreme Court on 10 November 2007 for (i) a copy of the Full Court resolution of 7 May 1997, by which "every Judge should make a declaration of all his/her assets in the form of real estate or investment" held in his own name or that of a spouse or dependant, with disclosure "whenever any acquisition of a substantial nature is made"; and (ii) information whether any such declaration of assets had ever been filed by the Judges of the Supreme Court, and whether High Court Judges were filing them with their Chief Justices.

The first request was granted. The second was refused on the ground that the information was not held or under the control of the registry. The appellate authority remanded; the CPIO again declined. The Central Information Commission held that the Supreme Court is a "public authority" within section 2(h) since it has been established by the Constitution, that the Chief Justice of India is a "competent authority" under section 2(e)(i) empowered to frame rules under section 28, that the Registrar and CPIO are part of the same institution, and directed disclosure of whether declarations had been filed. A single Judge upheld that order; the CPIO appealed.

Whether the Chief Justice of India is a public authority; whether the asset declarations are "information"; whether they are held or under the control of a public authority within section 2(j); whether they are held in a fiduciary capacity and so exempt under section 8(1)(e); and whether they are exempt as personal information under section 8(1)(j).

"The source of right to information does not emanate from the Right to Information Act. It is a right that emerges from the constitutional" "guarantees under Article 19(1)(a) as held by the Supreme Court in a catena of decisions". "The Right to Information Act is not repository of the right to information. Its repository is the constitutional rights guaranteed under Article 19((1)(a). The Act is merely an instrument that lays down statutory procedure in the exercise of this right." Its purpose "is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to help the governors accountable to the governed." Hence the rule of construction: "In construing such a statute the Court ought to give to it the widest operation which its language will permit. The Court will also not readily read words which are not there and introduction of which will restrict the rights of citizens for whose benefit the statute is intended."

The Attorney General argued that the words imply "a legal sanction behind the holding of or controlling such information", and that the resolutions have no force of law. The Court rejected it. The authorities he cited on the meaning of held and control "are relating to property and cannot be relied upon in interpretation of the provisions of the Right to Information Act."

The test adopted: "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." It is otherwise where information is deposited with an authority "which does not hold itself out as willing to receive it and which does not subsequently use it", or is "accidentally left with a public authority or just passes through a public authority", for want of "the requisite assumption by the public authority of responsibility for or dominion over the information".

The holding: "The words held by or under the control of under Section 2(j) will include not only information under the legal control of the public authority but also all such information which is otherwise received or used or consciously retained by the public authority in the course of its functions and its official capacity." The contrary interpretation "would render the right to information totally ineffective."

The apprehension that a wide reading would expose Judges' notes and drafts "is misplaced". Notes taken while hearing a case "cannot be treated as final views expressed by them on the case. They are meant only for the use of the Judges and cannot be held to be a part of a record "held" by the public authority" — though if a Judge turns in his notes with the file "the same may be disclosed." As to drafts, Vivian Bose J. in Surendra Singh v State of UP is quoted: "Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts." The operative act is the judgment declared in open court, so "A draft judgment therefore, obviously cannot be said to be information held by a public authority."

The definition adopted from the single Judge: "a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally" ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles."

Applied: "The CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of the Supreme Court hold independent office, and there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. The declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in the larger public interest."

On the confidentiality clause in the 1997 Resolution: with the advent of the Act, and section 22 "which overrides all other laws, etc. (even overriding the Official Secrets Act) the argument about such a confidentiality condition is on a weak foundation. The mere marking of a document, as "confidential", in this case, does not undermine the overbearing nature of Section 22." The exemption for fiduciaries "may include certain kinds of relationships of public officials, such as doctor-patient relations; teacher-pupil relationships, in government schools and colleges; agents of governments; even attorneys and lawyers who appear and advise public authorities covered by the Act. However, it does not cover asset declarations made by Judges of the Supreme Court, and held by the CJI."

Conclusion: "we hold that Section 8(e) does not cover asset declarations made by Judges of the Supreme Court and held by the CJI. The CJI does not hold such declarations in a fiduciary capacity or relationship."

The Court sets out the collision. The right to privacy "is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21", the line running from Kharak Singh through Gobind, R. Rajagopal and District Registrar and Collector v Canara Bank.

The two principles are then stated against each other. The freedom of information principle rests on three rationales: "that the right of access will heighten the accountability of government and its agencies to the electorate; second, that it will enable interested citizens to contribute more effectively to debate on important questions of public policy; and third, that it will conduce to fairness in administrative decision-making processes affecting individuals." The privacy principle holds "that individuals should, generally speaking, have some control over the use made by others, especially government agencies, of information concerning themselves", one of its cardinal rules being "that personal information acquired for one purpose should not be used for another purpose without the consent of the individual to whom the information pertains."

Hence: "The right to information often collides with the right to privacy", and, as one American writer put it, one man's freedom of information is another man's invasion of privacy. The Court locates the reconciliation in the Act's own scheme: the right to information, "being integral part of the right to freedom of speech, is subject to restrictions that can be imposed upon that right under Article 19(2)", and section 8 was enacted "with a view to harmonize these conflicting interests while preserving the paramountacy of the democratic ideal".

The Court's answer to the argument that the resolutions are not binding is worth carrying: they "emphasise that any code of conduct or like expression of principles for the judiciary should be formulated by the judiciary itself. That would be consistent with the principle of judicial independence and with the separation of powers." Subordinate judges have long declared assets under their service rules, and "If declaration of assets by a subordinate judicial officer is seen as essential to enforce accountability at that level, then the need for such declaration by Judges of the constitutional courts is even greater." Therefore "Questioning of the binding nature of the Resolutions is, therefore, contrary to the assertions of judicial independence."

Indira Jaising was distinguished: there the in-house inquiry procedure was in issue, its report being "purely preliminary in nature, ad hoc and not final", and it was in that context that the Chief Justice's authority was described as moral or ethical; "The obligation of the Judges to declare assets in terms of the Resolutions was not in issue before the Court."

Information is held by a public authority within section 2(j) where it has been created, sought, used or consciously retained by that authority in the course of its functions and official capacity, whether or not there is a legal obligation to supply it. The Chief Justice of India does not hold Judges' asset declarations in a fiduciary capacity, and section 22 overrides a confidentiality condition attached to them.

• On the RTI Act generally: open with the constitutional source of the right and the rule of construction, then take section 3, the section 4 obligations, the section 8(1) exemptions, the section 8(2) public interest override and section 10 severability from Chapter 4.
• On exemptions: this is the case that gives content to the words fiduciary and privacy, which the Act uses but does not define.
• On transparency and accountability: the judicial accountability passages answer any question on whether the judiciary is within the Act.