CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA v. SUBHASH CHANDRA AGARWAL

A PAIA proscriptions on access under Rule 53. The PAIA grants any person or busybody a right to access any information without explaining whatsoever as to why she or he requires the information. This had to be balanced, with the need to incentivise people to furnish private information, where such information is required for facilitating the government machinery, and therefore, considerations of confidentiality are applied as the person furnishing information must be made aware that the information would not be unhesitatingly divulged to others, including busybodies, for no particular reason. This facilitates the exercise of power and performance of functions of the state functionaries. In court matters under Rule 53, concerns of confidentiality could be addressed by imposing stringent and restrictive conditions on the right to access information, including furnishing of confidentiality undertakings for restraining the divulgence of details to third parties.

83Copy pinpoint83. The United Kingdom’s Data Protection Act, 2018 grants class exemption to all personal data processed for the purpose of assessing D a person’s suitability for judicial office, from certain rights including the right of the data subject to be informed, guaranteed under the European Union General Data Protection Regulation being given effect to by the Data Protection Act.57 Similarly, in the context of the European Union, opinions of ‘the Article 255 Panel’ 58 and ‘the Advisory Panel’ 59, E entrusted with the task of advising on the suitability of candidates as judges to the Court of Justice of the European Union and the European Court of Human Rights are inaccessible to the public and their opinions have limited circulation, as they are exclusively forwarded to the representatives of governments of the member states in the case of European Union60 and the individual governments in the case of Council F

57 Schedule 2, Part-2, Paragraph 14. 58 Article 255, Treaty on the Functioning of the European Union states: “A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court G before the governments of the Member States make the appointments referred to in Articles 253 and 254…” 59 Set up under Resolution ‘Establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights’, CM/Res (2010) 26 adopted by the Committee of Ministers on 10 November 2010. 60 CJEU is the judicial branch of the European Union, administering justice in the 28 H member states of the international organisation.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 533 AGARWAL [SANJIV KHANNA, J.]

of Europe61, respectively. The Council of the European Union,62 for instance, in consultation with ‘Article 255’ Panel, has denied requests for public access to opinions issued by the Panel,63 in light of the applicable exceptions provided for in Regulation No 1049/200164. Such opinions, the Council has observed, largely include personal data of the candidates, viz. factual elements concerning the candidates’ professional experience and qualifications and the Panel’s assessment of the candidate’s competences and, therefore, access to relevant documents is denied in order to protect the privacy and integrity of the individual.65 However, a part of these opinions which do not contain personal data and provide a description of the procedure adopted and criteria applied by the Panel have been released as “Activity Reports” in the framework of partial access to such information. Opinions that are unfavourable to the appointment of the candidates will be exempt from disclosure as they can hamper commercial interests of the candidates in their capacity as legal practitioners,66 whereas positive opinions are exempted from disclosure as such opinions can lead to comparison and public scrutiny of the most and least favoured qualities of the successful candidates, potentially interfering with the proceedings of the Court of Justice.67 Lastly, disclosure of opinions, the Council has observed, will be exempted if such disclosure could “seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.”68

61 Comprising of 47 member European states, Council of Europe adopted the European Convention on Human Rights, which established ECtHR. F 62 One of the seven constituent bodies of the European Union comprising of the ministers from the member states of the European Union. 63 Reply Adopted by the Council on 12 July 2016 to Confirmatory Application 13/ c/01/16 pursuant to Article 7(2) of Regulation (EC) No 1049/2001 for public access to all the opinions issued by the Panel provided for by Article 255 of the Treaty on the Functioning of the European Union. 64 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of G 30 May 2001 regarding public access to European Parliament, Council and Commission documents 65 Article 4(1)(b), Regulation No 1049/2001 66 First indent of Article 4(2), Regulation No 1049/2001 67 Second indent of Article 4(2), Regulation No 1049/2001 68 Article 4(3), Regulation No 1049/2001 H

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84Copy pinpoint84. More direct and relevant in the Indian context would be the decision of this Court in Supreme Court Advocates-on-Record Association v. Union of India69, where a Constitutional Bench of five judges had dealt with the constitutional validity of the National Judicial Appointments Commission. A concurring judgment had dealt with the aspect of transparency in appointment and transfer of judges and the B privacy concerns of the judges who divulge their personal information in confidence, to opine as under: “949. In the context of confidentiality requirements, the submission of the learned Attorney General was that the functioning of NJAC would be completely transparent. Justifying C the need for transparency it was submitted that so far the process of appointment of Judges in the Collegium System has been extremely secret in the sense that no one outside the Collegium or the Department of Justice is aware of the recommendations made by the Chief Justice of India for appointment of a Judge D of the Supreme Court or the High Courts. Reference was made to Renu v. District & Sessions Judge, (2014) 14 SCC 50 to contend that in the matter of appointment in all judicial institutions “complete darkness in the lighthouse has to be removed”.

950. In addition to the issue of transparency a submission was E made that in the matter of appointment of Judges, civil society has the right to know who is being considered for appointment. In this regard, it was held in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641 that the people have a right to know. Reliance was placed on Attorney General v. Times Newspapers Ltd. 1974 AC 273: F (1973) 3 WLR 298: (1973) 3 All ER 54 (HL) where the right to know was recognised as a fundamental principle of the freedom of expression and the freedom of discussion.

951. In State of U.P. v. Raj Narain (1975) 4 SCC 428 the right to know was recognised as having been derived from the G concept of freedom of speech.

952. Finally, in Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd., (1988) 4 SCC 592 it was held that the right to know is a basic right which citizens of a free 69 H (2016) 5 SCC 1

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country aspire in the broader horizon of the right to live in this A age in our land under Article 21 of our Constitution.

953. The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/ her reputation and dignity. The 99th Constitution Amendment Act B and the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the learned Attorney General that the proceedings of NJAC will be completely transparent and any one can have access to information that is available with NJAC. This is a rather sweeping generalisation which obviously does not take into account the privacy of a person who has been recommended for appointment, particularly as a Judge of the High Court or in the first instance as a Judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy. The balance between the two implied fundamental rights is difficult to maintain, but the 99th Constitution Amendment Act and the NJAC Act do not even attempt to consider, let alone achieve that balance.

954. It is possible to argue that information voluntarily supplied by a person who is recommended for appointment as a Judge might not have a right to privacy, but at the same time, since the information is supplied in confidence, it is possible to argue that it ought not to be disclosed to third party unconcerned persons. Also, if the recommendation is not accepted by the President, does the recommended person have a right to non-disclosure of the adverse information supplied by the President? These are difficult questions to which adequate thought has not been given and merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a dhobi-ghat.” 85.Earlier, the Constitution Bench of nine judges had in Second G Judges’ Case, that is Supreme Court Advocates on Record Association and Others v. Union of India70 overruled the majority opinion in S.P. Gupta (supra) (the first Judge’s case) and had provided for primacy

70 (1993) 4 SCC 441 H

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A to the role of the Chief Justice of India and the collegium in the matters of appointment and transfer of judges. Speaking on behalf of the majority, J.S. Verma, J., had with regard to the justiciability of transfers, summarised the legal position as under: “480. The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness.

481. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary.

482. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a G free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy-bodies in the functioning of the judiciary under the garb of public interest H litigation, in spite of the caution in S.P. Gupta which expanding

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the concept of locus standi, was adverted to recently by a A Constitution Bench in Krishna Swami v. Union of India (1992) 4 SCC 605. It is therefore, necessary to spell out clearly the limited scope of judicial review in such matters, t avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the cases of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making.”

86Copy pinpoint86. That the independence of the judiciary forms part of our basic structure is now well established. S. P. Gupta (supra) (the first Judge’s case) had observed that this independence is one amongst the many other principles that run through the entire fabric of the Constitution and is a part of the rule of law under the Constitution. The judiciary is entrusted with the task of keeping the other two organs within the limits of law and to make the rule of law meaningful and effective. Further, the independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like. This wider concept of independence of judiciary finds mention in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others 71, High Court of Judicature at Bombay v. Shashikant S. Patil72 and Jasbir Singh v. State of Punjab73. F 87.In Supreme Court Advocates’ on Record Association (2016) (supra) on the aspect of the independence of the judiciary, it has been observed: “713. What are the attributes of an independent judiciary? It is impossible to define them, except illustratively. At this stage, it is G worth recalling the words of Sir Ninian Stephen, a former Judge of the High Court of Australia who memorably said: 71 (1995) 5 SCC 457 72 (1997) 6 SCC 339 73 (2006) 8 SCC 294 H

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A “[An] independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed.” It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary.

714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips said: “In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.” D xx xx xx

726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”. It is also manifested in the ability of the institution to have “functional independence”. A comprehensive and composite definition of “independence of the judiciary” is elusive but it is easy to perceive.” It is clear from the aforesaid quoted passages that the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’74 which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference.

74 Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll. H <http://www.interights.org/document/142/index.html>

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 539 AGARWAL [SANJIV KHANNA, J.]

88Copy pinpoint88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter-arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In F the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of G withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, H

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A there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly B answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest. C CONCLUSIONS

89Copy pinpoint89. In view of the aforesaid discussion, we dismiss Civil Appeal No.2683 of 2010 and uphold the judgment dated 12 th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India D to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, E which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation.

90Copy pinpoint90. As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 F are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure G on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. H The reference and the appeals are accordingly disposed of.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 541 AGARWAL

DR. DHANANJAYA Y. CHANDRACHUD, J. A INDEX A Introduction B Reference to the Constitution Bench C Submissions of Counsel B D Relevant statutory provisions E S P Gupta, candour and class immunity F Judicial independence C F.1 Judicial accountability G Fiduciary relationship H The right to privacy and the right to know I Conclusion D J Directions A Introduction The backdrop

1. This batch of three civil appeals 1 raises questions of constitutional importance bearing on the right to know, the right to privacy and the transparency, accountability and independence of the judiciary.

2. In the first of the appeals² (“the appointments case”), the Central Public Information Officer3 of the Supreme Court of India challenges an order dated 24 November 2009 of the Central Information Commission4. The order directs the CPIO to provide information sought by the respondent in application under the Right to Information Act 20055. The respondent, in an application dated 23 January 2009 sought copies of the correspondence exchanged between constitutional authorities together with file notings, relating to the appointment of Justice H L Dattu, Justice A K Ganguly and Justice R M Lodha G 1 Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/ 2010 2 Civil Appeal no 10044 of 2010 3 “CPIO” 4 “CIC” 5 “RTI Act” H

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3. In the second of the three appeals⁸ (“the assets case”), the appellant challenges a judgment dated 12 January, 2010 of a Full Bench of the Delhi High Court upholding the orders of the Single Judge⁹ dated D 2 September 2009 and the CIC dated 6 January 200910 directing the disclosure of information. On 10 November 2007, the respondent filed an application seeking a copy of the resolution dated 7 May 1997 of the judges of the Supreme Court requiring every sitting judge, and all future judges upon assuming office, to make a declaration of assets in the form of real estate or investments held in their names or the names of their spouses or any person dependant on them to the Chief Justice of the Court within a reasonable time. The respondent also requested

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 543 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

“information on any such declaration of assets etc to respective Chief A Justices in State”. While the appellant provided a copy of the resolution dated 7 May 1997, the CPIO declined (by an order dated 30 November 2007) to provide information concerning the declaration of assets by judges of the Supreme Court and the High Court on the ground that the Registry of the Supreme Court did not hold it. The information pertaining to the declaration of assets by High Court judges, the appellant stated, were in the possession of the Chief Justices of the High Courts. The first appellate authority remanded the matter back to the appellant for transfer of the RTI application to the High Courts under Section 6(3) 11 . The appellant declined to transfer the RTI application to the CPIOs of the High Courts on the ground that when the respondent filed the RTI application, he was aware that the information with respect to the declaration of assets by the judges of the High Court was available with the High Courts which formed distinct public authorities. On 6 January 2009, the CIC held in the second appeal that the information concerning the judges of the Supreme Court was available with its Registry and that the appellant represented the D Supreme Court as a public authority. Therefore, the appellant was held to be obliged to provide the information under the RTI Act unless, the disclosure of information was exempted by law. The CIC held that the information sought by the respondent was not covered under the exemptions in clauses (e) or (j) of Section 8(1)12 and directed the 11 Section 6 (3) - 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 or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. 12 Section 8 - Exemption from disclosure of information. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (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; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. H

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4. In the third civil appeal (“the undue influence case”), the appellant has challenged the order of the CIC dated 24 November 200914, by which the appellant was directed to provide information sought by the respondent in his RTI application. On 6 July, 2009, the respondent filed an RTI application on the basis of a newspaper report seeking the complete correspondence exchanged with the Chief Justice of India in regards to a Union Minister having allegedly approached Justice R Raghupati of the Madras High Court, through a lawyer to influence a judicial decision. The application sought a disclosure of the name of the Union Minister and the lawyer, and of the steps taken against them for approaching the judge of the Madras High Court for influencing the judicial decision. On 4 August 2009, the appellant rejected the request on the ground that no such information was available with the Registry of the Supreme Court. The first appellateauthority rejected the appeal. The second appeal before the F CIC led to a direction on 24 November 2009, to provide the information sought, except information sought in questions 7 and 8 on recourse taken to the in-house procedure. The appellant approached this Court challenging the decision of the CIC. B Reference to the Constitution Bench G

5. On 26 November 2010, a two judge Bench of this Court directed the Registry to place the present batch of appeals before the

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Chief Justice of India for constituting a Bench of appropriate strength and framed the following substantial questions of law: “1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?

2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision?

3. Whether the information sought for is exempt under Section 8(1)(j) of the Right to Information Act?”

6. On 17 August 2016, a three judge Bench referred these civil appeals to a Constitution Bench for adjudication. C Submissions of Counsel

7. Mr K K Venugopal, Attorney General for India appearing on behalf of the appellant made the following submissions: E (i) The present case is not covered by the decision of this Court in S P Gupta v President of India15, which is based on distinguishable facts. The decision in S P Gupta does not consider the relationship between the restrictions on the right to know and the restrictions existing under Article 19 (2) of the Constitution. Once Article 19(1)(a) is F attracted, the restrictions under Article 19 (2) become applicable. The RTI Act came into force in 2005 and lists out the rights and restrictions on the right to information. The provisions of the RTI Act must be construed in a manner which makes it consistent with constitutional values including the independence of the judiciary; (ii) Information of which disclosure is sought under Section 2 (f) G of the RTI Act, includes only that information which is in a physical form and which is already in existence and accessible to a public authority under law. The judge can decide to disclose assets voluntarily

15 1981 Supp SCC 87 H

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A and place relevant information in the public domain. A third party cannot seek information on the disclosure of assets of a judge which does not exist in the public domain; (iii) The decision of this court in S P Gupta is based on a factually distinct situation where disclosure of correspondence regarding the non- B appointment of an additional judge was ordered on the ground that the judge was a party to the proceeding before the Court. Further, the decision established a restriction on the disclosure of information to third parties; (iv) The correspondence and file notings with respect to C recommendations for appointments of judges to the higher judiciary falls under a “class of information” that is highly confidential. Disclosure will result in damage to the institution and adversely affect the independence of the judiciary; (v) The process of concurrence by the members of the Collegium D requires free and frank discussion on the character, integrity and competence of prospective appointee judges in order to ensure that the most suitable judges are appointed. It is in the public interest to uphold candour in matters of appointment and transfer of judges and to avoid unnecessary litigative debate by third parties. Disclosure of such information would undermine the independence of the judiciary and adversely impact the candour or uninhibited expression of views by the Collegium. Independence of judiciary is not limited to independence from executive influence. It is multi-dimensional and also independence from other pressure and prejudices including fearlessness from power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which judges belong (C Ravichandran Iyer v Justice A M Bhattacharjee¹⁶); (vi) Information sought regarding the assets and liabilities of judges and correspondence and file notings relating to character, conduct, integrity and competence of a judge includes certain “personal information” and is hence, exempt under Section 8 (1)(j) of the RTI Act; (vii) The correspondence and file notings that form the basis of the decision under Article 124 (2) of the Constitution includes information

16 H (1995) 5 SCC 457

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received from third parties in a fiduciary capacity. The information is held by the Chief Justice of India as a result of disclosure by third parties who give the information in confidence, complete good faith, integrity and fidelity. Therefore, disclosure of such information is exempt under Section 8 (1)(e); (viii) The disclosure of correspondence relating to conduct, character, integrity and competence of a judge may cause irreparable loss to their reputation, violate their right to privacy and adversely affect their functioning. There is also no remedy available to a judge for the comments made in the appointment process as the Chief Justice of India along with other judges are protected from civil/criminal proceedings under Section 3(1) of the Judges (Protection) Act 1985. While regulating the disclosure of information, the Supreme Court is required to balance the right of an individual to reputation and privacy under Article 21 and the right to information of third-party parties under Article 19(1)(a). The doctrine of proportionality has to be applied to resolve the conflict between the two rights and the right to reputation and privacy of a judge should prevail over the right to information of third parties; and (ix) Legislation and rules with respect to disclosure of assets and liabilities of public servants do not provide for placing such information in the public domain or granting third party access to such information. The judiciary is seeking self-regulation by providing a voluntary disclosure of assets and liabilities and it is up to the Supreme Court to disclose such information. No third party can seek information which is not in the public domain.

8. On the contrary, Mr Prashant Bhushan, learned Counsel appearing on behalf of the respondent made the following submissions: F (i) The observations made by the seven judge Bench of this Court in S P Gupta are binding on the present Bench. Even though certain aspects of the judgment have been overruled in Supreme Court Advocates-on-Record Assn v Union of India17, the decision of this Court vis-à-vis the disclosure of correspondence in respect of the G appointment process remains unaffected. If S P Gupta has to be overruled, this could be only done by a Bench comprising of more than seven judges;

17 (1993) 4 SCC 441 H

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A (ii) This Court has interpreted Article 19(1)(a) to include the right to information under the ambit of free speech and expression even before the RTI Act was enacted by the Parliament. Disclosure of the information sought in the present batch of cases is an essential part of the freedom of speech and expression guaranteed in Article 19(1)(a) and involves a significant public interest; B (iii) Free flow of information to citizens is necessary, particularly in matters which form part of public administration for ensuring good governance and transparency. The fundamental right of free speech and expression includes every citizen’s right to know about assets, criminal antecedents and educational backgrounds of candidates contesting for public office. To cover public acts with a veil of secrecy is not in the interest of the public and may lead to oppression and abuse by, and distrust of, public functionaries. The lack of transparency, accountability and objectivity in the collegium system does not enhance the credibility of the institution. Disclosure of the information sought, on the other hand, would promote transparency and prevent undue influence over the judiciary; (iv) The claim of class privilege or class immunity to the correspondence between the Chief Justice of India and the Law Minister was rejected in S P Gupta. After the enactment of the RTI Act, information otherwise held by a public authority cannot be excluded from disclosure unless it falls under the exemptions laid down in Section 8 or relates to an institution excluded under Section 2418 of the RTI 18 Section 24 - Act not to apply to certain organisations (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request. (2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule. H (3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 549 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

Act. When information regarding a judge is provided to the Chief Justice A of India, it constitutes information held by a public authority and thus, would be amenable to the provisions of the RTI Act; (v) In S P Gupta, the argument that disclosure of correspondence between constitutional functionaries in relation to the appointment process of judges would preclude the free and frank expression of B opinions was rejected. During the drafting of the Right to Information Bill, the argument that disclosure will deter consultees from expressing themselves freely and fairly and that the dignity and reputation of people would be tarnished was rejected. The argument of candour does not fall under any of the exemptions under the RTI Act and therefore, this disclosure of information cannot be excluded from the purview of the C RTI Act; (vi) The disclosure of assets of judges is warranted in the larger public interest. It cannot be argued that information regarding the assets of judges, who are public functionaries, is personal information having no relationship with any public activity or interest. Hence, the information sought is not exempt under Section 8 (1)(j); (vii) There exists no fiduciary relationship between those who are vested with the responsibility of determining whether an appointee is suitable for elevation as a judge and the appointee herself. The duty of a public servant is to act in the interest of the public and not in the interest of another public servant. The entire process of consultation and making information available to the members of the collegium regarding credentials and the suitability of the appointee is a matter of public interest.Further, when judges act in their official capacity in compliance with the 1997 resolution and disclose their assets, it cannot be said that the Chief Justice of India acts in a fiduciary capacity for

(4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the State Information Commission and, notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request. (5) Every notification issued under sub-section (4) shall be laid before the State Legislature. H

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A the judges. The Chief Justice of India and other members of the collegium discharge official duties vested in them by the law and the information sought is not exempt under Section 8(1)(e). Even if some part of the information is personal, that part can be severed after due examination on a case to case basis under Section 10; and B (viii) The argument that the independence of the judiciary will be affected prejudicially due to the disclosure of information is misconceived. The independence of the judiciary means independence from the legislature and the executive and not from the public. It is a constitutional and legal right of the respondent to access information and identify the persons who have attempted to compromise the C functioning of the judiciary. Disclosure of such information is essential for the citizenry to maintain their faith in the independence of the judiciary.

9. The rival submissions fall for our consideration. D D Relevant statutory provisions

10. For the purpose of the present dispute it is necessary to analyse the relevant provisions contained in the statutory framework of the RTI Act. Sections 2 and 3 read: “2. Definitions. – In this Act, unless the context otherwise E requires, - … (e) “competent authority” means – (i) the Speaker in the case of the House of People or the F Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States of a Legislative Council of States; (ii) the Chief Justice of India in the case of the Supreme Court; G (iii) the Chief Justices of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted H by or under the Constitution;

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 551 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

(v) the administrator appointed under article 239 of the A Constitution; (f) “information” means 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 B information relating to any private body which can be accessed by a public authority under any law for the time being in force. … (h) “public authority” means any authority or body or institution of self-government established or constituted,- C

(a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; D (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, E Directly or indirectly by finds provided by the appropriate Government; … (j) “right to information” means the right to information accessible under the Act which is held by or under the control of any public F authority and includes the rights to – (i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records; G (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; H

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3. Right to information. – Subject to the provisions of this Act, all citizens shall have the right to information.

11. Both the terms “public authority” and “information” have been broadly defined. Section 2(j) which defines the “right to information” B stipulates that the information accessible under the RTI Act is held by or under the control of any “public authority”, which is defined in Section 2(h) of the RTI Act. Section 3 of the Act confers on all citizens the substantive right to seek information covered within the ambit of the Act, subject to its provisions. The remaining scheme of the RTI Act C operationalises the substantive right conferred by Section 3. Section 4 imposes a statutory duty on public authorities to create and maintain a record of the activities stipulated therein to ensure that these records are available to applicants. Section 6 empowers an individual to file a request with the relevant Central Public Information Officer (“CPIO”) or State Public Information Officer (“SPIO”) or their corresponding D Assistant Officers (collectively hereafter “Information Officer”). Section 7 empowers the Information Officer to either provide the information sought or reject the application for reasons set out in Section 8 and 9.

12. For an authority to be covered under the RTI Act, it must E be a “public authority” as defined under Section 2(h) of the Act. “Public authority” is defined as any authority or body or institution or self- government which falls within the ambit of any of the enumerated provisions in that sub-section. The Supreme Court of India is established by virtue of Article 124(1) of the Constitution of India. Similarly, Article F 214 of the Constitution stipulates that there shall be a High Court for each state. In terms of Section 2(h)(a), a body or an institution which is established or constituted by or under the Constitution would be a public authority. But virtue of being established by the Constitution, the Supreme Court and the High Courts would fall within the ambit of “public authority” in Section 2(h) of the Act. G

13. Section 2(e)(ii) expressly stipulates that the competent authority means the Chief Justice of India in the case of the Supreme Court and Section 2(e)(iii) stipulates that the competent authority in the case of a high Court is the Chief Justice of that Court. Significantly, Article 124 of the Constitution of India stipulates that there shall be a H Supreme Court of India consisting of a Chief Justice of India and other

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 553 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

judges. The office of the Chief Justice of India is not distinct from the A Supreme Court of India. The Supreme Court is constituted by virtue of the Constitution and consists of judges, of which the Chief Justice is the head. This however, does not mean that the Supreme Court and the Chief Justice are two separate ‘public authorities’ within the RTI Act. B

14. The term information under Section 2(f) has been defined broadly to include “any material in any form”. The word ‘including’ denotes the intention of the Parliament to provide a non-exhaustive list of materials that fall within the ambit of the sub-clause. The sub-clause includes information relating to any private body “which can be accessed by a public authority under any law for the time being in force”. The C import of this phrase is that information relating to a third party is included only where the requisite pre-conditions of any law in force to access such information is satisfied. The right sought to be exercised and information asked for should fall within the scope of ‘information’ and ‘right to information’ as defined under the Act. The information sought must be in existence and must be held or under the control of the public authority.

15. Section 8(1) begins with a non-obstante phrase “Notwithstanding anything contained in this Act”. The import of this phrase is that clause (1) of Section 8 carves out an exception to the general obligation to disclose under the RTI Act. Where the conditions set out in any of the sub-clauses to clause (1) of Section 8 are satisfied, the Information Officer is under no obligation to provide information to the applicant. The scope of the exception and its applicability to the present dispute shall be discussed in the course of the judgment. F

16. Section 2219 contains a non-obstance clause and stipulates that the RTI Act has an overriding effect over laws. The import of this provision is to impart priority to the salient objectives of the Act and ensure that where information is held by or is under the control of a public authority, such information must be furnished to the applicant notwithstanding any prohibition in any other law in force at that time. G It is pertinent to state that Section 22 does not obviate legal restrictions 19

22. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. H

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A that apply to a public authority to the access to any information which is clarified by the use of the phrase “which can be accessed by a public authority under any law for the time being in force” in Section 2(f). E S P Gupta, candour and class immunity

17. Relevant to the present controversy, is the question whether the decision of this Court in S P Gupta v Union of India20 is a binding precedent on the issues raised. Mr Prashant Bhushan, learned counsel appearing on behalf of the respondent contended that the points for determination that arise in the present case have been answered by the seven judge Bench in S P Gupta where this Court ordered the disclosure of the correspondence between the Chief Justice of India, the Chief Justice of Delhi and the Law Minister which concerned the non-appointment of an additional judge for a full term of two years. Counsel contended that this Court held that the public interest in disclosure outweighed the potential harm resulting from disclosure and that a free and open democratic society mandated the disclosure of correspondences concerning the appointment process of judges.

18. Opposing the submission, Mr K K Venugopal, learned Attorney General for India appearing on behalf of the appellant, urged that the decision of this Court in S P Gupta was based on a factually distinguishable situation. The Court in that case was concerned with the disclosure of the correspondence concerning the appointment process for the purpose of adjudicating the case before it. Moreover the judge whose appointment was in issue was a party to the case. The court did not address the potential harm to public interest by the disclosure of correspondence in all circumstances. The Attorney General F contended that the decision assessed the right to know in a passing observation and contrary to the submission of the respondent, it established a restriction on the disclosure of personal information.

19. In S P Gupta, this Court was concerned with two issues: (i) the initial appointment of additional judges and their reappointment on G the expiry of their terms; and (ii) the transfer of High Court judges and the Chief Justices of the High Courts. Among the issues involved in the proceedings, one concerned the disclosure of the correspondence exchanged between the Chief Justice of India, the Chief Justice of Delhi and the Law Minister concerning the decision to grant an extension in 20 H (1982) 2 SCR 365

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 555 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

the tenure to Justice O N Vohra and Justice S N Kumar as additional judges of the Delhi High Court by a period of three months. It was contended that Justice O N Vohra should have been appointed as a permanent judge and that Justice S N Kumar should have been reappointed as an additional judge for the complete tenure of two years upon the expiry of their initial tenure. During the course of the proceedings, their terms expired and a decision was communicated by the Central Government to not renew their terms. An application was filed to contend that the withholding of the re-appointment was mala fide and unconstitutional. Both former judges were impleaded as respondents. While Justice O N Vohra did not appear in the proceedings, Justice S N Kumar appeared through counsel and contended that the decision of the Central Government to not reappoint him for a complete term of two years was vitiated since it was reached without full and effective consultation with the Chief Justice of India.

20. The government resisted the disclosure of the correspondence and urged that as it formed a part of the advice tendered by the Council D of Ministers to the President of India, the court was precluded from ordering disclosure by virtue of Article 74(2)21 of the Constitution. It was also contended that the correspondence related to the ‘affairs of the state’ and its disclosure was precluded by virtue of Section 12322 of the Indian Evidence Act 1872. E

22. Mr K K Venugopal, learned Attorney General for the Union of India sought to distinguish the decision in S P Gupta by contending G 21 “The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.” 22 “123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.” H

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A that the order of disclosure was made in the specific context of Sections 123 and 16223 of the Indian Evidence Act and in respect of judicial proceedings to which Justice S N Kumar was a party. Hence he urged that the decision does not establish the duty to disclose the correspondence in all circumstances. Justice S N Kumar had actively participated in the proceedings before the Court and information regarding his non-appointment was sought during the course of the proceedings to adjudicate upon the contention that there was no effective consultation between the Central Government and the Chief Justice of India. The balancing of interests in that case was between the public harm resulting from disclosure and the public interest in the administration of justice (by securing complete justice for the litigant before the court) which, it is urged, is materially different from the present case.

23. In S P Gupta, this Court, by an interim order directed the disclosure of the file notings only in respect of the non-renewal of the term of Justice S N Kumar. Justice O N Vohra had chosen to not appear in or participate in the proceedings before the court. As no relief was sought by the latter before the Court, the Court held that the correspondence pertaining to him was not relevant to the controversy. Consequently, the Union of India was not required to disclose it. Justice PN Bhagwati (as he then was) noted the comparably distinct role of E Justice S N Kumar in the proceedings in the following terms: “58. That takes us to the case of S.N. Kumar which stands on a totally different footing, because S.N. Kumar has appeared in the writ petition, filed an affidavit supporting the writ petition and contested, bitterly and vehemently, the decision of the Central F Government not to continue him as an Additional Judge for a further term. Since S.N. Kumar has claimed relief from the Court in regard to his continuance as an Additional Judge, an issue is squarely joined between the petitioners and S.N. Kumar on the one hand and the Union of India on the other which requires to G 23 “162. Production of documents.—A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. The court, if it sees fit, may inspect the document, unless it refers to matters of H State, or take other evidence to enable it to determine on its admissibility.”

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 557 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

be determined for the purpose of deciding whether relief as claimed in the writ petition can be granted to S.N. Kumar.”

24. In its final judgment, the Court first rejected the contention that the correspondence formed part of the advice tendered to the President by the Council of Ministers. The Court noted that while the advice tendered by the Council of Ministers to the President is information protected under Article 74(2), the principal question was whether the correspondence between the Chief Justice of India, Chief Justice of the Delhi High Court and the Law Minister formed part of the advice tendered by the Council of Ministers to the President so as to preclude its disclosure by virtue of Article 74(2). The Court rejected this contention and held that any advice tendered by the Council of C Ministers would be based on the views expressed by the two Chief Justices and their views would not form part of the advice tendered. In this view, the material on the basis of which the Council of Ministers formed a view and subsequently tendered the same to the President would not constitute advice protected under Article 74(2). Justice D Bhagwati held: “61…The advice is given by the Council of Ministers after consultation with the Chief Justice of the High Court and the Chief Justice of India. The two Chief Justices are consulted on “full and identical facts” and their views are obtained and it is after considering those views that the Council of Ministers arrives at its decision and tenders its advice to the President. The views expressed by the two Chief Justices precede the formation of the advice and merely because they are referred to in the advice which is ultimately tendered by the Council of Ministers, they do not necessarily become part of the advice. What is protected against disclosure under clause (2) or Article 74 is only the advice tendered by the Council of Ministers…But the material on which the reasoning of the Council of Ministers is based and the advice is given cannot be said to form part of the advice.”

25. The Court then proceeded to the claim against disclosure under Section 123 of the Indian Evidence Act. It held that where protection from disclosure is sought under Section 123 on the ground that the correspondence relates to the affairs of the state, the court, by virtue of Section 162, is called upon to carry out a balancing task between “the detriment to the public interest on the administrative or H

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A executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding”. It held that the court balances the competing aspects of public interest and decides which should prevail in the particular case before it. A claim for non-disclosure, in this view, would be sustainable where the disclosure of the document would be injurious to the public interest to a greater degree than the harm caused to the administration of justice by non-disclosure. Analysing the claim in the context of Section 123, Justice Bhagwati noted: “73. We have already pointed out that whenever an objection to the disclosure of a document under Section 123 is raised, two questions fall for the determination of the court, namely, whether the document relates to affairs of State and whether its disclosure would, in the particular case before the court, be injurious to public interest. The court in reaching its decision on these two questions has to balance two competing aspects of public interest, because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the nondisclosure would thwart the administration of justice by keeping back f rom the court a material document…The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence.” (Emphasis supplied)

26. The Court held that the nature of the proceeding in which the disclosure is sought, the relevance of the document and the degree of importance that the document holds in the litigation are relevant factors in the balancing process. If the correspondence alone would furnish evidence relevant to adjudicating the dispute before the court, it would be inappropriate to ‘exclude these documents which constitute the only evidence, if at all, for establishing this charge, by saying that the disclosure of these documents would impair the efficient functioning of the judicial institution.’ The Court held thus:

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 559 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

“82. …Apart from these documents, there would be no other documentary evidence available to the petitioner to establish that there was no full and effective consultation or that the decision of the Central Government was based on irrelevant considerations … It is only through these documents that the petitioner can, if at all, hope to show that there was no full and effective consultation by the Central Government with the Chief Justice of the High Court, the State Government and the Chief Justice of India or that the decision of the Central Government was mala fide or based on irrelevant grounds and therefore, to accord immunity against disclosure to these documents would be tantamount to summarily throwing out the challenge against the discontinuance of the Additional Judge…The harm that would be caused to the public interest in justice by the non-disclosure of these documents would in the circumstances far outweigh the injury which may possibly be caused by their disclosure, because the non-disclosure would almost inevitably result in the dismissal of the writ petition and consequent denial of justice even though the claim of the petitioner may be true and just.” (Emphasis supplied) E The Court held that the potential injury caused by disclosure is outweighed by the public interest in justice as the non-disclosure of documents relevant to decide the controversy would inevitably lead to the dismissal of the writ petition. On a balancing of the above two competing public interests, the Court upheld the interim order requiring the disclosure of the correspondence concerning the reappointment in respect of Justice S N Kumar.

27. The Court in S P Gupta was required to adjudicate claims resisting disclosure of documents in a judicial proceeding based on Sections 123 and 162 of the Indian Evidence Act. The balancing exercise was between the public harm resulting from a disclosure of documents relating to the affairs of the state and the public interest in the administration of justice. The public interest in the administration of justice pertained to the disposal of the case instituted before the court in which the judge was a party. The decision in S P Gupta did not lay down a general proposition that the correspondence between H

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A constitutional functionaries in regard to the appointment process must be disclosed to a member of the public in all circumstances. The view that the disclosure was ordered in the specific context of a judicial proceeding was also affirmed in the separate opinion of Justice E S Venkataramiah (as he then was): B “1194. It may be necessary to deal with the question of official secrecy in greater detail in a case where the constitutionality of the claim for official secrecy, independently of the power of the Court to order discovery of official documents in judicial proceedings, arises for consideration. We are concerned in this case with the power of the Court to direct the disclosure of official documents in judicial proceedings. 1203… we felt that a decision not to direct disclosure of the documents would result in graver public prejudice than the decision to direct such disclosure and that the public interest involved in the administration of justice should prevail over the public interest of the public service in the peculiar circumstances of the case.” (Emphasis supplied)

E 28. Though, the decision in S P Gupta is not a precedent in support of a proposition for general disclosure in all circumstances, it is, however, relevant to the present dispute for it rejected the contention that: (i) disclosure and candour are incompatible; and (ii) such correspondence is entitled to class immunity.

F Candour

29. The Court addressed the contention that the reason for protecting a certain class of documents is that they concern decision making at the highest level of government and only complete freedom from public gaze will enable freedom of expression and candour amongst government functionaries. In this view, public scrutiny was contended to adversely affect the ability of the participants in the decision-making process to express their opinion in a free and frank manner. The Court, however, rejected the contention that candour and frankness justify the grant of complete immunity against disclosures. Justice PN Bhagwati (as he then was) addressed the argument founded on candour in the following terms:

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 561 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

“71…The candour argument has also not prevailed with judges. A The candour argument has also not prevailed with Judges and jurists in the United States and it is interesting to note what Raoul Berger while speaking about the immunity claimed by President Nixon against the demand for disclosure of the Watergate Tapes, says in his book Executive Privilege”: A Constitutional Myth B at page 264: “Candid interchange” is yet another pretext for doubtful secrecy. It will not explain Mr. Nixon’s claim of blanket immunity for members of his White House staff on the basis of mere membership without more; it will not justify Kleindienst’s assertion C of immunity from congressional inquiry for two and one-half million federal employees. It is merely another testimonial to the greedy expansiveness of power, the costs of which patently outweigh its benefits. As the latest branch in a line of illegitimate succession, it illustrates the excess bred by the claim of executive privilege. D

We agree with these learned Judges that the need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class, but as pointed out by Gibbs, ACJ in Sankey v. Whitlam, it would not be altogether unreal to suppose “that in some matters at least communications between ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure” because not all Crown servants can be expected to be made of “sterner stuff”. The need for candour and frankness must therefore certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide: the observations of Lord Denning in Neilson v, Lougharre (1981) 1 All ER at P.

81. It is undoubtedly true that appointment or non-appointment of a High Court Judge or a Supreme Court Judge and transfer of a High Court Judge are extremely important matters affecting H

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A the quality and efficiency of the judicial institution and it is therefore absolutely essential that the various constitutional functionaries concerned with these matters should be able to freely and frankly express their views in regard to these matters…We have no doubt that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would not be deterred from performing their constitutional duty of expressing their views boldly and fearlessly even if they were told that the correspondence containing their views might subsequently be disclosed…We have already dealt with the argument based on the need for candour and frankness and we must reject it in its application to the case of holders of high constitutional offices like the Chief Justice of a High Court and the Chief Justice of India. Be it noted — and of this we have no doubt — that our Chief Justices and Judges are made of sterner stuff; they have inherited a long and ancient tradition of independence and impartiality…” (Emphasis supplied) The Court held that though candour may be a factor in determining what set of communications require protection, the measure of protection depends whether, on a balance of all competing interests, public interest favours disclosure or secrecy. While the Court noted that candour may be a relevant factor to prevent disclosure in some circumstances, it expressly rejects its weight as a relevant factor when it comes to constitutional functionaries such as the Chief Justice of India and the Chief Justices of the High Courts. Constitutional F functionaries are bound to the oath of their office to discharge their duties in a fair manner in accordance with the principles enshrined in the Constitution. It cannot be countenanced that public gaze or subsequent disclosure will detract an individual from discharging their duty in an effective manner true to the dignity and ethic associated with their office. Candour and frankness cannot be the reason to preclude disclosures of correspondence between constitutional functionaries which concern the appointment process of judges. Class immunity

30. The second argument rejected in S P Gupta and relevant to the present case is the contention that the correspondence between “the

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 563 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

Law Minister or other high level functionary of the Central Government, A the Chief Justice of the High Court, the Chief Minister or the Law Minister of the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court Judge or a Supreme Court Judge or transfer of a High Court Judge and the notings made by these constitutional functionaries in that behalf”, belong to a B protected class of documents. It was contended that the disclosure of these documents would be prejudicial to national interest and the dignity of the judiciary. In this view, the court is not required to assess the effects of the disclosure of correspondence in a particular case, as all correspondence of such nature belongs to a special class which is exempt from disclosure. In this view, disclosure is not precluded because of the specific contents of the documents, but because of its membership of a certain class of documents that require non-disclosure.

31. Justice Bhagwati, with whom five other judges agreed, held that a claim for class immunity is an ‘extraordinary claim’ which is granted as a ‘highly exceptional measure’ as such broad claims are contradictory to and destructive of the concept of an open government. He cautioned against blanket immunity and lay emphasis on the commitment to an open and transparent government in the following terms: “80…It is only under the severest compulsion of the requirement of public interest that the court may extend the immunity to any other class or classes of documents and in the context of our commitment to an open Government with the concomitant right of the citizen to know what is happening in the Government, the court should be reluctant to expand the classes of documents to which immunity may be granted. The court must on the contrary move in the direction of attenuating the protected class or classes of documents, because by and large secrecy is the badge of an authoritarian Government…” (Emphasis supplied) G The Court adopted a high standard for the conferral of class immunity which would be accorded “only under the severest compulsion of the requirement of public interest”. With these observations, the Court rejected the contention that correspondence between constitutional functionaries constitutes a class of documents exempt from public disclosure: H

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A “81. …it will be clear that the class of documents consisting of the correspondence exchanged between the Law Minister or other high level functionary of the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court Judge or Supreme Court Judge or the transfer of B a High Court Judge and the notes made by these constitutional functionaries in that behalf cannot be regarded as a protected class entitled to immunity against disclosure…Confidentiality is not a head of privilege and the need for confidentiality of high level communications without more cannot sustain a claim for immunity against disclosure…” Thus, the disclosure of correspondence between constitutional functionaries was held not to fall within a protected category exempt from disclosure. Disclosure is precluded only where it is injurious to public interest. Justice Bhagwati clarified that the principal consideration before the Court when assessing a claim for the non-disclosure of any document is that of public interest: “80…Every claim for immunity in respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the court with reference to one and only one test, namely, what does public interest require — disclosure or non-disclosure…this exercise has to be performed in the context of the democratic ideal of an open Government.” (Emphasis supplied)

F 32. A claim of immunity from disclosure for any document is subject to the controlling factor of public interest – a determination informed by the commitment to an open and transparent government: “67…The concept of an open Government is the direct emanation from the right to know which seems to be G implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The H approach of the court must be to attenuate the area of secrecy

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as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.” (Emphasis supplied) Justice Bhagwati expanded on the socio-political background that must inform any approach in a “democratic society wedded to the basic values enshrined in the Constitution”. He drew an interconnection between democracy, transparency and accountability to hold that a basic postulate of accountability, which is fundamental to a democratic government, is that information about the government is accessible to the people. He held that participatory democracy is premised on the availability of information about the functioning of the government. The right to know as a “pillar of a democratic state” imputes positive content to democracy and ensures that democracy does not remain static but becomes a “continuous process”. Thus, a limitation on transparency must be supported by more than a claim to confidentiality – it must demonstrate the public harm arising from disclosure is greater than the public interest in transparency. Justice Bhagwati emphasized transparency in the judicial apparatus in the following terms: “85…We believe in an open Government and openness in Government does not mean openness merely in the functioning of the executive arm of the State. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers. Today the process of judicial appointments and transfers is shrouded in mystery. The public does not know how Judges are selected and appointed or transferred and whether any and if so what, principles and norms govern this process. The exercise of the power of appointment and transfer remains a sacred ritual whose mystery is confined only to a handful of high priests, namely, the Chief Justice of the High Court, the Chief Minister of the State, the Law Minister of the Central Government and the Chief Justice of India in case of appointment or non- G appointment of a High Court Judge and the Law Minister of the Central Government and the Chief Justice of India in case of appointment of a Supreme Court Judge or transfer of a High Court Judge. The mystique of this process is kept secret and confidential between just a few individuals, not more than two H

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A or four as the case may be, and the possibility cannot therefore be ruled out that howsoever highly placed may be these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off. We do not see any reason why B this process of appointment and transfer of Judges should be regarded as so sacrosanct that no one should be able to pry into it and it should not be protected against disclosure at all events and in all circumstances.” (Emphasis supplied) C The Court extended its observations on the indispensable nature of openness and transparency to the judiciary and held that there is no basis to conclude that information concerning appointments must be protected against disclosure “at all events and in all circumstances.” The circumstances which justify disclosure on one hand and non- D disclosure on the other calls into consideration a variety of factors which shall be adverted to in the course of the judgment. At this juncture, it is sufficient to note the observations of this Court that transparency in the functioning of the government serves a cleansing purpose: “66….Now, if secrecy were to be observed in the functioning E of Government and the processes of Government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open F Government with means of information available to the public, there would be greater exposure of the functioning of Government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open G Government is clean Government and a powerful safeguard against political and administrative aberration and inefficiency.”

33. The approach adopted by Justice Bhagwati in S P Gupta, with which we are in agreement provides a bright line standard for the Court on the approach that must be adopted when answering questions of disclosure in regards to the appointment process. The principal

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consideration will always be that of public interest. Any balancing must be carried out in the context of our commitment to the transparency and accountability of our institutions. The specific content of public interest and its role in the balancing process will be explored in the course of the judgment. It was contended by the respondents that the decision of this B Court in S P Gupta did not deal with the trade-off between disclosure and judicial independence. It is necessary to turn to this issue. F Judicial independence

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A of the Constituent Assembly.26 This, they believed was necessary for the preservation of inter-institutional equilibrium. The starting point of the independence of the judiciary is constitutional design through the provisions of the Constitution.

36. Article 124(2) guarantees a security of tenure for judges. B Article 124(4) stipulates that a Judge of the Supreme Court shall not be removed from their office except on the ground of proved misbehaviour or incapacity. The proviso to clause (2) of Article 125 guarantees that a judges’ privileges, allowances and rights in respect of leave of absence or pension shall not be varied to their disadvantage after their appointment. Article 129 empowers the Supreme Court to punish for the contempt of itself. Article 145 empowers the Supreme Court to make rules for regulating generally the practice and procedure of the Court. Clauses (1) and (2) of Article 146 stipulate that the Chief Justice of India or such other Judge or officer of the Court, as may direct, shall be responsible for the appointments and prescription of rules governing the conditions of service of the officers and servants of the Supreme Court. Clauses (1) and (2) of Article 229 assign responsibility to the Chief Justice of a High Court or such other judge or officer of the court, as they may direct, in respect of matters of appointment and prescription of rules governing the conditions of service of the officers and servants of a High Court.

37. Article 215 empowers the High Court to punish for contempt of itself. Article 217 provides security of tenure. The proviso to clause (2) of Article 221 stipulates that the allowances of a Judge of a High Court as well as the rights in respect of leave of absence or pension shall not be varied to their disadvantage after their appointment. Article 227(2) stipulates that each High Court may, by virtue of its power of superintendence under Article 227(1): (i) call for returns from certain courts and tribunals, (ii) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and G (iii) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

38. These provisions reflect constitutional safeguards to ensure the independence of the judiciary and guarantee to it the freedom to 26 Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary H (2019), p. 17

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function independent of the will of the legislature and executive. Supriya A Routh discusses these provisions in the following words: “[T]he Constitution provides for adequate safeguards in furtherance of the independence of the judiciary in a democratic republic. It separates the judiciary from the executive and prohibits the Parliament and the state legislatures from questioning B the conduct of judges of the higher judiciary in furtherance of their judicial duties...It also provides for an arduous and elaborate process for the impeachment of judges...”27 The constitutional safeguards for judicial independence were noticed by this Court in L Chandra Kumar v Union of India28. Chief C Justice AM Ahmadi, speaking for a seven judge Bench of this Court held: “78…While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, D retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed with such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions.” E

Justice Ruma Pal discussed the position in the following words: “To ensure freedom from Executive and Legislative control, the pay and pension due to judges in the superior courts are charged on the Consolidated Funds of the States in the case of High Court F judges and the Consolidated Fund of India in the case of Supreme Court judges and are not subject to the vote of the Legislative Assembly in the case of the former or Parliament in the latter case. Salaries are specified in the Second Schedule to the Constitution and cannot be varied without an amendment of the Constitution.”29 G 27 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian Judiciary, 13 Washington University Global Studies Law Review 321 (2014) 28 (1997) 3 SCC 261 29 “An Independent Judiciary” – speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture, November 10, 2011. H

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A 39. The above provisions are indicative of the intention of the founders of the Constitution to create a strong foundation to secure the independence of the judiciary. This also marked a strong departure from the ‘pleasure doctrine’ under the pre-constitutional colonial framework. Under the Government of India Act, 1935 the judges of the High Court B held office during the pleasure of the Crown. Through Article 217(1) of the Constitution of India, tenure at the pleasure of the Crown was substituted with a fixed tenure subject to limited exceptions. Justice Srikrishna (speaking in non-judicial capacity) elucidates upon the importance of this tradition in the following words:

C “A judge of the High Court or Supreme Court is thus not removable from office except for proved misbehaviour or incapacity during his tenure of office. The very obviation of the pleasure doctrine as controlling the tenure of office of a judge of the High Court or the Supreme Court is explicit of the intention of the founding fathers to insulate the judges of the superior courts D from the pleasure of the executive. The several Articles embedded in the Constitution ensure that a judge is fully independent and capable of rendering justice not only between citizens and citizens but also between citizens and the State, without let, hindrance, or interference by anyone in the State E polity. This kind of insulation or immunity from the pleasure of the executive is essential in view of the fact that the Constitution has guaranteed several fundamental rights to the citizens and persons and also empowered the High Courts and Supreme Court under Article 226 and 32 to render justice against acts of the State.”30 F It becomes evident that judicial independence is secured through security over judicial tenure. The edifice of judicial independence is built on the constitutional safeguards to guard against interference by the legislature and the executive. Judicial independence is not secured by the secrecy of cloistered halls. It cannot be said that increasing G transparency would threaten judicial independence.

40. The need for transparency and accountability has been emphasised in decisions of this Court. In Supreme Court Advocates- 30 Justice BN Srikrishna, Judicial Independence, The Oxford Handbook of the Indian H Constitution (2016) at p. 350.

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on-Record Association v Union of India31 (‘NJAC’), a Constitution A Bench of this Court struck down the 99th Constitutional Amendment Act setting up the National Judicial Appointments Commission as ultra vires the Constitution by a four-to-one majority. Significantly, Justice Kurian Joseph, in his separate concurring opinion and Justice Chelameswar, in his dissenting opinion, pointed to the lack of transparency and accountability in the manner of making appointments to the judiciary. Justice Kurian Joseph observed: “990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self- E respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the F institutional trusteeship has kept up the expectations of the framers of the Constitution… To me, it is a curable situation yet.” The need for greater transparency and accountability in the appointment procedure or the lack of the same, has also been highlighted by other eminent retired judges such as Justice JS Verma and Justice G Ruma Pal. In an article quoted in Justice Lokur’s separate concurring opinion in the NJAC decision, Justice Verma while speaking about the collegium system observed:

31 (2016) 5 SCC 1 H

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A “546…Have any system you like, its worth and efficacy will depend on the worth of the people who work it! It is, therefore, the working of the system that must be monitored to ensure transparency and accountability.” Furthermore, Justice Chelameswar, in his dissenting opinion, references a speech made by Justice Ruma Pal,32 where she stated thus: “… [T]he process by which a judge is appointed to a superior court is one of the best kept secrets in this country. The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

41. The collegium system has come under immense criticism for its lack of transparency. As early as in S P Gupta, this Court acknowledged that disclosure would lead to bona fide consideration and deliberation and proper application of mind on the part of the judges.³³ Even in NJAC, the need for transparency and accountability has not been denied in any of the separate opinions. The 99th F Constitutional Amendment was struck down on the ground that it would adversely affect the independence of the judiciary by giving the executive a definitive say in the appointment of judges. The dilution of the judiciary’s autonomy in the context of making judicial appointments was deemed to be unconstitutional. However, the need to reduce the G opacity and usher in a regime of transparency in judicial appointments has not been denied and has in fact been specifically acknowledged by some of the learned Judges.

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42. Scholars caution that while judicial independence is important, one should not lose sight of the larger goals and purposes which judicial independence is intended to serve. Charles Gardner Geyh considers such ends to include upholding of the rule of law, preserving the separation of governmental powers, and promotion of due process, amongst many others. Therefore, he believes that if judges are free to disregard such ends in their decision making, judicial independence serves no purpose. He notes thus: “Most thoughtful scholars recognize that judicial independence is an instrumental value-a means to achieve other ends. As an instrumental value, judicial independence has limits, defined by the purposes it serves…[Hence,] judges who are so independent that they can disregard the law altogether without fear of reprisal likewise undermine the rule of law values that judicial independence is supposed to further. Judicial accountability is yin to the judicial independence yang.”34 Burt Neuborne in his incisive article on the Supreme Court of D India observes: “We care about constitutional courts not for the aesthetic value of their structures, but because where certain prerequisites are assembled, constitutional courts are capable of preserving the values of open, democratic governance.”35

43. Lorne Sossin argues that transparency is necessary to ensure E the public perception of the judiciary as independent. In the context of judicial appointments, he believes that appointments may happen on a proper, well-justified, substantive understanding of judicial ‘merit’. However, in order for the same to be truly independent, they must include within themselves the transparency of the criteria and openness of the process. He notes that: F “What matters most in a democracy, I would suggest, is not the precise criteria for merit but the transparency of the criteria, and the authenticity of the reasons for choosing one individual over another. Merit, in other words, is as much about process as substance.” 36 G 34 Charles Gardner Geyh, ‘Rescuing Judicial Accountability from the Realm of Political Rhetoric’, 56 Case Western Reserve Law Review 911 (2006) 35 International Journal of Constitutional Law, Volume 1, Issue 3, July 2003, Pages 476–510 36 Lorne Sossin, ‘Judicial Appointment, Democratic Aspirations, and the Culture of Accountability’, 58 University of New Brunswick Law Journal 11 (2008) H