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

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A He then goes on to address how the transparency of criteria and the process is a logical extension of the judicial appointment being ‘meritorious’, and that doing so would remove the ‘arbitrariness’ of the process, leading to upholding of rule of law: “We often frame our concern with the rule of law as one designed to prevent “arbitrary” decisions. Arbitrary decisions are not, however, decisions taken for no reason. They are, rather, decisions taken for undisclosed reason. In a democracy, some reasons for judicial selection will and should be seen as more legitimate than others. Increasingly, however, it is the demand for justification itself that is coming to define our democratic aspirations. This demand, in my view, not only arises as a logical extension to the requirement of merit, but is also justified as a necessary condition of judicial independence.” (Emphasis supplied)

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fundamental right but at best it is an implicit fundamental right A 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.” B None of these failings of the specific framework envisaged by the 99th Constitutional Amendment Act however can be interpreted as a denial of the importance of disclosure, transparency and accountability in the context of judicial appointments or of its constitutionality. They only point to the need for a balance between the right to know and the right to privacy, the specific contours of which will be explored shortly.

45. Judicial independence cannot be used as a byword for avoiding the accountability and criticism that accompanies transparency: “[T]hrough judicial activism, the Supreme Court of India has completely insulated the judiciary from any democratic deliberation, thereby sacrificing accountability and transparency in the functioning of the judges…Accountability and transparency are not only necessary for upholding the democratic underpinnings of the Constitution, but are also necessary for the independence of the judiciary itself, because if public trust and confidence in the judiciary cannot be maintained, the judiciary is destined to lose its independence.”39 The judiciary is an important organ of the Indian state, and it has a vital role in the proper functioning of the state as a democracy based on the rule of law. The integrity, independence, and impartiality of the judiciary are preconditions for fair and effective access to justice and for the protection of rights. The judiciary has a vital role to play as a bulwark of the integrity infrastructure in the country. Failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions. Further, it also harms the broader accountability function that the judiciary is entrusted with in democratic systems including upholding citizens’ rights and 39 Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian Judiciary, 13 Washington University Global Studies Law Review 321 (2014) H

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A sanctioning representatives of other branches when they act in contravention of the law. Transparency and the right to information are crucially linked to the rule of law itself. F.1 Judicial accountability

46. Questions of judicial accountability raise three interconnected B questions: (i) What is the source of accountability?; (ii) To whom is the accountability owed?; and

C (iii) What does accountability entail? Judicial independence and judicial accountability are often seen as conflicting values. It is believed that judicial independence, which mandates that adjudication take place free from interference by the legislature and the executive, is compromised by the questions of responsibility which judicial accountability entails. In this view, accountability compromises the ability of judges to decide free from external pressure and is undesirable. There is a fallacy about the postulate that independence and accountability are conflicting values.

47. Judicial independence is defined by the existence of conditions which enable a judge to decide objectively, without succumbing to pressures and influences which detract from the course of justice. To be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’. The Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service. These are provisions through which the conditions necessary to secure judicial independence are engrafted as mandatory institutional requirements. These are intrinsic elements of our constitutional design. But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve. Judicial independence is hence not a carte blanche to arbitrary behaviour. Where the provisions of the Constitution secure a standard

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of judicial independence for free and impartial adjudication, the independence guaranteed by the Constitution must be employed in a manner that furthers the objective for which it was secured. In the quest for a balance between the freedom guaranteed and the responsibility that attaches to the freedom, judicial independence and judicial accountability converge. B

48. Accountability, defined narrowly, is “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences” 40. The narrow conception of accountability however suffers from a straight-jacket view C devoid of general guiding principles. Professor Stephen Burbank stipulates: “…the concept of accountability, defined inclusively …includes a broader complex of values which public organisations must adopt based in the fundamental values of democratic regimes. D Accountability is conceived in such a way as to enable the democratic process of establishing respect for those values, whether of efficiency or independence, efficacy in achieving objectives, or impartiality in the treatment of citizens.”41 In this view, accountability is the search for normative values informed by democratic values that guide the exercise of power and freedom granted by the Constitution. The judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power. The independence of the judiciary, is a constitutional guarantee of freedom. Notions of accountability however, concern the manner and ends for which the freedom guaranteed is employed. Where judicial independence focuses on freedom, judicial accountability is concerned with the manner in which that freedom is exercised by the adjudicator. G

40 M Bovens, Analysing and Assessing Accountability: A Conceptual Framework, European Law Journal (2007), p. 450. 41 Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review (2007), p. 31 H

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A 49. Article 124(6) and Article 219 of the Constitution of India prescribe that every person who is appointed to be a judge of the Supreme Court or the High Court respectively, shall, prior to entering office, make and subscribe to an Oath or affirmation set out in the Third Schedule of the Constitution. The Oath for the office reads: B “I, (name), having been appointed Chief Justice (or a Judge) of the Supreme Court of India, do swear in the name of God (or affirm) that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.” (Emphasis supplied) Prior to the advent of the Constitution, the oath or affirmation for a person appointed to the Federal Court was prescribed in Schedule IV to the Government of India Act, 1935. Significantly, the words “without fear or favour, affection or ill-will”, contained in the present Constitution in Form VIII did not find place in the oath prescribed42 in Schedule IV to the Government of India Act, 1935. Added to the present Constitution, these are words with significance. The framers of the E Constitution were alive to the need for the exercise of judicial power in accordance with the ethics of judicial office. The express inclusion of these words indicates that persons entering judicial office bind themselves to the principles inherent in the effective discharge of the judicial function, in conformity with the rule of law and the values of the Constitution.

50. The oath of office postulates that the judge shall discharge the duties of the office without fear or favour, affection or ill-will. Any action that abridges the discharge of judicial duty in conformity with the principles enunciated in the oath negates the fundamental precept underlying the conferment of judicial power. Commenting on the 42 “I, A.B., having been appointed Chief Justice [or a judge] of the Court do solemnly swear [or affirm] that saving the faith and allegiance which I owe to C.D., his heirs and successors, I will be faithful and bear true allegiance in my judicial capacity to His Majesty the King, Emperor of India, His heirs and successors, and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment.” H

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significance of the inclusion of the term in its application to judges of the High Courts in Union of India v Sankalchand Himatlal43, Justice PN Bhagwati (as he then was) held: “These words, of course, do not add anything to the nature of the judicial function to be discharged by the High Court Judge because, even without them, the High Court Judge would, by the very nature of the judicial function, have to perform the duties of his office without fear or favour, but they serve to highlight two basic characteristics of the judicial function, namely, independence and impartiality…” (Emphasis supplied) C As constitutional functionaries tasked with adjudication, judges of the High Courts and Supreme Court are bound to discharge their duties in a fair and impartial manner in accordance with law and the principles enshrined in the Constitution. But this indeed is only a restatement of a principle which attaches to all judicial office. The D principles embodied in the oath furnish a non-derogable obligation upon the person affirming it to abide by its mandate.

51. On 21 November 1993, the then Chief Justice of India constituted a Committee to draft and circulate a statement on the values that must be reflected in judicial life. In December 1999, the Conference E of Chief Justices of all High Courts resolved and adopted the Restatement of Values of Judicial Life. The statement serves as a guiding light of the values that must be followed in conformity with the dignity and ethic required of judicial life. The statement, apart from mentioning 16 values of judicial life concludes that the values F enumerated are not exhaustive but illustrative of what is expected of a judge. The Bangalore Principles of Judicial Conduct 2002 which were adopted at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague in 2002 defined six main values as an inherent element of the judicial system: independence, impartiality, integrity, propriety, equality and competence, and diligence. G

52. Judicial accountability also stems from the principle that the entrustment and exercise of power in a constitutional democracy is not unfettered. The Constitution confers upon judges with the power to 43 (1977) 4 SCC 193 H

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A dispense justice, which is a foundational value in the Preamble to the Constitution. Judicial power, conferred in public interest as a necessary element in the administration of justice cannot be used to achieve extraneous ends. The private interests of an individual have no nexus to the discharge of the official duties of a judge. Professor TRS Allen stipulates: B “Powers may be conferred on public officials and agencies for the attainment of appropriate ends, consistent with a plausible account of the public good; but such powers must not be abused for extraneous ends, serving only private interests, nor wielded in a manner that undermines the ideal of freedom as independence. No one should be at the mercy of unfettered official discretion; and the enforcement of legal constraints on such discretion is a necessary part of the idea of government according to law.”44 The rule of law commands compliance with the law, without exception. It requires the protection of individuals against the unfettered discretion by officials on one hand and the protection of individuals from depredations by other private individuals.

53. Adjudicators in robes are human and may be pre-disposed to the failings that are inherently human. But the law demands that they must aspire to a standard of behaviour that does not condone those failings of a human persona in the discharge of judicial duties. Recognition of the fallibility of individuals who work constitutional institutions and of the need for safeguards to prevent the abuse of power found articulation in the Constitutional Assembly Debates. Dr B R F Ambedkar, K T Shah, H V Kamath, S Nagappa, Hussain Imam, Pandit Lakshmi Kanta Maitra, Alladi Krishnaswami Ayyar, B Pocker Sahib Bahadur, Z H Lari, A K Ghosh, and R K Sidhva all emphasized the possibility of human error in the inherently human institutions that the Constitution envisaged. This idea was given its clearest articulation in by Dr B R Ambedkar when he reminded us that: “however good a G Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.’

44 TRS Allen, Accountability to Law, in Accountability in the Contemporary Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship H Online, p. 84

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54. To equate the actions of an individual which have no nexus A with the discharge of official duties as a judge with the institution may have dangerous portents. The shield of the institution cannot be entitled to protect those actions from scrutiny. The institution cannot be called upon to insulate and protect a judge from actions which have no bearing on the discharge of official duty. It is for this reason that judicial accountability is an inherent component of the justice delivery system. B Accountability is expected to animate the day to day functioning of the courts. Judges are required to issue reasoned orders after affording an opportunity to both sides of a dispute to present their case. Judicial ethic requires that a judge ought to recuse herself from hearing a case where there is a potential conflict of interest. These illustration norms serve to further the democratic ideal that no constitutional functionary is above the rule of law.

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A a break from its colonial past. An independent judiciary is the guardian and final arbiter of the text and spirit of the Constitution. To ensure this, the Constitution envisages a system of checks and balances. Article 124(4)46 of the Constitution stipulates that a judge of the Supreme Court may be removed by an order of the President on the ground of proven misbehavior or incapacity. Article 21847 of the Constitution makes the B substantive provisions in Article 124(4) and Article 124(5) applicable to judges of the High Courts. The Judges (Enquiry) Act 1986 was enacted in furtherance of Article 124(5) which empowered the Parliament to regulate the presentation of an address and investigation of judges. A notice of motion to present an address to the President of C India for the removal of judge is given in the Lok Sabha on receiving the signatures of not less than one hundred members or in the Rajya Sabha on receiving the signature of not less than fifty members. The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha constitutes a Committee as stipulated in the Act to enquire into the alleged misbehavior of incapacity. If the report of the Committee finds D that a judge is guilty of misbehavior or suffers from any incapacity, each house of the Parliament votes on the motion in accordance with Article 124(4) of the Constitution. The Lok Sabha and the Rajya Sabha must both pass a motion to impeach the judge with a majority of not less than two-thirds of the members of the house present and voting. The E stringent procedure adopted by the Parliament for the impeachment of a judge draws a balance between ensuring the independence of judges from political will and ensuring the accountability of judges for their actions.

56. Judicial independence does not mean the insulation of judges F from the rule of law. In a constitutional democracy committed to the rule of law and to the equality of its citizens, it cannot be countenanced that judges are above the law. The notion of a responsible judiciary furthers the ideal for which an independent judiciary was envisaged. It 46 124(4) - A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after as address by each House of Parliament G supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. 47 218 – The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court.

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is the exercise of the decision making authority guaranteed by judicial independence in a just and responsible manner, true to the ethos of judicial office that sub-serves the founding vision of the judiciary. Professor Stephen Burbank has characterized judicial independence and accountability as “different sides of the same coin”.48Professor Charles Gardner has stated that: B “Judicial accountability is yin to the judicial independence yang. Although some trumpet judicial accountability as if it were an end in itself, accountability-like independence-is better characterized as an instrumental value that promotes three discrete ends: the rule of law, public confidence in the courts, and institutional responsibility.”49 C

Hence, independence and accountability are mutually reinforcing concepts. The specific form of accountability which this Court has been called to address is in regard to the appointment process and disclosure of assets owned by judges. This form of accountability involves competing interests between the need for transparency and accountability and the privacy interests of judges. The nature and balancing of the competing interests involved in such a determination shall be explored in the course of the judgment.

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A properly understood are not placed in an antithesis to independence. They create conditions where judges are protected against unwholesome influences. Scrutiny and transparency are allies of the conscientious because they are powerful instruments to guard against influences which threaten to suborn the judicial conscience. To use judicial independence as a plea to refuse accountability is fallacious. B Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability. G Fiduciary relationship

58. The appellant argued that the information about the assets of judges is exempt from disclosure, by virtue of Section 8(1)(e) of the RTI Act which casts a fiduciary duty on the Chief Justice of India to hold the asset declarations in confidence. It is argued by the respondent that judges, while declaring their assets, do so in their official capacity in accordance with the 1997 resolution and not as private individuals. It is urged that the process of information gathering about the assets of the judges by the Chief Justice of India, is in his official capacity and therefore, no fiduciary relationship exists between them.

59. In order to determine whether the Chief Justice of India holds information with respect to asset declarations of judges of the Supreme Court in a fiduciary capacity, it is necessary to assess the nature of the relationship and the power dynamics between the parties. Justice Frankfurter of the United States Supreme Court in SEC v Chenery Corp50, while determining the question whether officers and directors who manage a holding company in the process of reorganisation occupy positions of trust, stated: F “But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty?”51

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relationship. Fiduciary relationships – such as trustee-beneficiary, guardian-ward, principal-agent, and attorney-client – require an unusually high degree of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.” C (Emphasis supplied) In Words and Phrases53 the term “fiduciary” is defined: “Generally, the term ‘fiduciary’ applies to any person who occupies a position of peculiar confidence towards another... It D refers to integrity and fidelity... It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction… The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations.” E (Emphasis supplied) In Corpus Juris Secundum54 “fiduciary” is defined thus: “A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil, or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.

53 Words and Phrases, Volume 16-A, St. Paul: West Pub. Co, 1940 54 Corpus Juris Secundum: A Complete Restatement of the Entire American Law As Developed by All Reported Cases, Volume 36-A, p. 38 H

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A The word ‘fiduciary’, as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate. Some examples of what, in particular connections, the term has been held to include and not to include are set out in the note.”

61. In CBSE v Aditya Bandopadhyay55, a two judge Bench of this Court while discussing the nature of fiduciary relationships relied upon several decisions and explained the terms “fiduciary” and “fiduciary relationship” thus: D “39. The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.” G (Emphasis supplied)

62. In RBI v Jayantilal N Mistry56, a two judge Bench of this Court reiterated the observations made in CBSE v Aditya 55 (2011) 8 SCC 497 H 56 (2016) 3 SCC 525

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Bandopadhyay and held that RBI did not place itself in a fiduciary relationship with other financial institutions by virtue of collecting their reports of inspections, statements of the banks and information related to the business. It was held that the information collected by the RBI was required under law and not under the pretext of confidence or trust: “64. The exemption contained in Section 8(1)(e) applies to exceptional cases and only with regard to certain pieces of information, for which disclosure is unwarranted or undesirable. If information is available with a regulatory agency not in fiduciary relationship, there is no reason to withhold the disclosure of the same. However, where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship. As in the instant case, the financial institutions have an obligation to provide all the information to RBI and such information shared under an obligation/duty cannot be considered to come under the purview of being shared in fiduciary relationship.” (Emphasis supplied) 63.The Canadian Supreme Court in the case of Hodgkinson v Simms57, discussed the term ‘fiduciary’ thus: E “A party becomes a fiduciary where it, acting pursuant to statute, agreement or unilateral undertaking, has an obligation to act for the benefit of another and that obligation carries with it a discretionary power. Several indicia are of assistance in recognizing the existence of fiduciary relationships: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as to effect the beneficiary’s legal or practical interests; and, (3) a peculiar vulnerability to the exercise of that discretion or power. The term fiduciary is properly used in two ways. The first describes certain relationships having as their essence discretion, influence over interests, and an inherent vulnerability. A rebuttable presumption arises out of the inherent purpose of the relationship that one party has a duty to act in the best interests

57 [1994] 3 SCR. 377 H

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A of the other party. The second, slightly different use of fiduciary exists where fiduciary obligations, though not innate to a given relationship, arise as a matter of fact out of the specific circumstances of that particular relationship. In such a case the question to ask is whether, given all the surrounding circumstances, one party could reasonably have expected that the other party would act in the former’s best interests with respect to the subject matter at issue. Discretion, influence, vulnerability and trust are nonexhaustive examples of evidentiary factors to be considered in making this determination. Outside the established categories of fiduciary relationships, what is required is evidence of a mutual understanding that one party has relinquished its own selfinterest and agreed to act solely on behalf of the other party. In relation to the advisory context, then, there must be something more than a simple undertaking by one party to provide information and execute orders for the other for a relationship to be enforced as fiduciary.” D

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in his or her own interests but all of the facts and circumstances must be carefully examined to see whether the relationship is, in substance, fiduciary… The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other’s affairs or so align him with the protection or advancement of that other’s interests that foundation exists for the fiduciary expectation.” (Emphasis supplied)

65. A fiduciary must be entrusted with a degree of discretion (power) and must have freedom to act without resorting to prior approval of the beneficiary.62 The greater the independent authority to be exercised by the fiduciary, the greater the scope of fiduciary duty. 63 The person so entrusted with power is required to determine how to exercise that power.64 Fiduciaries are identified by ascendancy, power and control on the part of the stronger party and therefore, a fiduciary relationship implies a condition of superiority of one of the parties over the other.65 It is not necessary that the relationship has to be defined as per law, it may exist under various circumstances, and exists in cases where there has been a special confidence placed in someone who is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Such is normally the case with, inter alia, attorney-client, agent-principal, doctor-patient, parent-child, trustees- beneficiaries66, legal guardian-ward67, personal representatives, court appointed receivers and between the directors of company and its shareholders. In Needle Industries (India) Ltd v Needle Industries Newey (India) Holding Ltd68 and Dale & Carrington Invt (P) Lt F v P K Prathaphan69, this Court held that the directors of the company owe a fiduciary duty to its shareholders. In P V Sankara Kurup v

62 Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011 63 Scott, Austin W. “The Fiduciary Principle.” California Law Review 37, no. 4 (1949): 539-55. G 64 Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011 65 Ken Coghill, Charles Sampford and Tim Smith “Fiduciary Duty and the Atmospheric Trust”, Ashgate (2012) 66 Section 88, Indian Trusts Act 1882 67 Section 20, Guardians and Wards Act 1890 68 (1981) 3 SCC 333 69 (2005) 1 SCC 212 H

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A Leelavathy Nambier70, this Court held that an agent and power of attorney can be said to owe a fiduciary relationship to the principal.

66. Other structural properties of the fiduciary relationship are dependence and vulnerability, where the beneficiary is dependent upon the fiduciary to exercise power and impact the practical interests. 71 B Once a fiduciary relationship is established, fiduciary duties include the duty of loyalty and duty of care towards the interests of the beneficiaries.72

67. From the discussion above, it can be seen that a fiduciary is someone who acts for and on behalf of another in a particular matter C giving rise to a relationship of trust and confidence. A fiduciary relationship implies a condition of superiority of one of the parties over the other, where special confidence has been reposed in an individual to act in the best interests of another.

68. The dispute before us is whether the Chief Justice of India D while exercising its official function and holding asset declaration information of the judges acts in a fiduciary capacity. The Full Bench of the Delhi High Court agreed with the learned single judge and held: “The CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of the Supreme Court hold independent office, and there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. The declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in the larger public interest. In these circumstances, it cannot be held that the asset information shared with the CJI, by the Judges of the Supreme Court, are held by him in the capacity of fiduciary, which if directed to be revealed, would result in breach of such duty.” We are in agreement with the above observation. The words “held by” or “under the control of” under Section 2(j) of the RTI Act G will include not only information under the legal control of the public authority but also all such information which is otherwise received or 70 (1994) 6 SCC 68 71 Gold, Andrew S.; Miller, Paul B. “Philosophical foundations of fiduciary law” Oxford University Press, 2016. 72 H Tamar Frankel, “Fiduciary Law” Oxford University Press, 2011

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used or consciously retained by the public authority while exercising functions in its official capacity. The 1997 resolution on declaration of judge’s assets as adopted on 7 May 1997 states: “RESOLVED FURTHER THAT every Judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office and in the case of sitting Judges within a reasonable time of adoption of this Resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The C declaration so made should be to the Chief Justice of the Court. The Chief Justice should make a similar declaration for the purpose of the record. The declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential.”

69. The Chief Justice of India in exercising his official functions D in accordance with the 1997 resolution while holding asset information of other judges does not act for and on behalf of other judges of the Supreme Court. There exists no fiduciary relationship between them. The Chief Justice of India is not entrusted with the power to protect and further the interests of individual judges who disclose their assets. E The information is required by the mandate of the resolution dated 7 May 1997 passed by all the then sitting judges of the Supreme Court and it cannot be said that such information is being provided in any personal capacity. The Chief Justice of India merely holds the information in accordance with the official functions and not in any fiduciary capacity. The judges of the Supreme Court, including the Chief F Justice of India occupy a constitutional office. There exists no set hierarchies between the judges and they enjoy the same judicial powers and immunities. The judges who disclose their assets cannot be said to be vulnerable to and dependent on the Chief Justice of India. In these circumstances, it cannot be held that asset information shared with the G Chief Justice of India, by the judges of the Supreme Court, are held by him in a fiduciary capacity, which if revealed, would result in breach of fiduciary duty. Therefore, the argument that the information sought is held in a fiduciary capacity is inapplicable and cannot be used to prevent the information from being made public. H

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A 70. While we have not accepted the argument of the appellant regarding the existence of the fiduciary relationship between the Chief Justice of India and the judges, it is relevant to point out the application of the fiduciary principle to public institutions where judges hold citizens’ interests in public trust, guided byfiduciary standards.73 A Judge’s public fiduciary obligation towards the citizen includes a duty of loyalty, duty of care and the cluster comprising the duties of candour, disclosure and accounting.74 The duty of loyalty for a judge entails them being loyal to the citizenry by remaining impartial towards the litigants before them.75 The duty of care for judges includes the expectation from judges to fulfil their responsibilities with reasonable diligence and to engage in reason based decision making.76 The duties of candour, disclosure and accounting are based on the premise of judicial transparency and judicial honesty. H The right to privacy and the right to know

71. The third referral question to be answered by this Court is: D “Whether the information sought for is exempt under Section 8(1)(j) of the RTI Act 77.” The question requires this Court to determine whether and under what circumstances the information sought by the applicant should be disclosed under the provisions of the RTI Act. This Court is cognisant that in interpreting the statutory scheme of the RTI E Act, the constitutional right to know and the constitutional right to privacy of citizens are also implicated. In answering the question, it is necessary to analyse the scheme of the RTI Act, the role of the exemptions under Section 8, the interface between the statutory rights and duties under Section 8(1)(j) and the constitutional rights under Part III of the F Constitution.

73 Robert G. Natelson, “Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders”, 11 Tex. Rev. L. & PoL 239, 245 74 Leib, Ethan J., David L. Ponet, and Michael Serota. “A Fiduciary Theory of Judging.” California Law Review 101, no. 3 (2013): 699-753. G 75 Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias, 2008 PUB. L. 58 (2008) 76 Leib, Ethan J., David L. Ponet, and Michael Serota. “A Fiduciary Theory of Judging.” California Law Review 101, no. 3 (2013): 699-753. See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. LEGAL analysis 227, 249 n.23 (2010). 77 H “RTI Act”

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72. In order to facilitate effective governance, the government A or ‘public authority’ must be empowered to efficiently coordinate diverse activities and at the same time be constrained to ensure that it does not override the freedoms of those it serves. In explaining the system of checks and balances in the American Constitution, James Madison noted: B “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the C government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”78 (Emphasis supplied) D Our Constitution institutes and operationalises the functions of government. It is necessary to empower the government to operationalise the public functions of the state and ensure the governance of the public lives of citizens. However, the framers of our Constitution recognised that this act of empowerment also carried certain associated E risks, that no government of people is infallible and that in addition to democratic controls, certain additional checks and balances on governmental power are necessary. Part III of the Constitution represents a crucial aspect of the constitutional scheme by which governmental power is restricted, and the government is obligated to respect the rights and freedoms of citizens. F

Scheme of Sections 8 and 11

73. The RTI Act was enacted in furtherance of the principles found in Part III of the Constitution. The RTI Act operationalises the disclosure of information held by ‘public authorities’ in order to reduce G the asymmetry of information between individual citizens and the state apparatus. The RTI Act facilities transparency in the decisions of public authorities, the accountability of public officials for any misconduct or illegality and empowers individuals to bring to light matters of public 78 James Madison, Federalist No 51 (1788) H

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A interest. The RTI Act has provided a powerful instrument to citizens: to individuals engaged in advocacy and journalism. It facilitates a culture of assertion to the citizen – activist, to the whistle-blower, but above all to each citizen who has a general interest in the affairs of the state. The preamble of the RTI Act notes: B “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. … AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;” (Emphasis supplied) As observed earlier in the judgement, the provisions of the RTI Act are dedicated to operationalising access to information held by public authorities. The scheme of the RTI Act and its applicability to the judiciary has already been examined in detail. In answering the third referral question, this Court can confine itself to the statutory exemptions carved out from the general obligation of disclosure. When enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of information could be fiscally inefficient, result in real world harms and infringe on the rights of others. In addition to the extracts above, the preamble to the RTI Act also states: “AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;” (Emphasis supplied)

74. To address the harms that may result from an unrestricted disclosure of information, the legislature included certain qualified and

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unqualified exemptions to the general obligation to disclose under A Sections 3, 4 and 7 of the RTI Act. Section 8(1) sets out certain classes of information, the disclosure of which, the legislature foresaw may result in harm to the nation or the rights and interests of other citizens. Section 8 reads as under: “8. Exemption from disclosure of information – B (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, - (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; F (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign G Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; H

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A (h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: B Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the C exemptions specified in this section shall not be disclosed; (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 D 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: Provided that the information which cannot be denied to the E Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests….” 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. By expressly enumerating the circumstances in which the disclosure of information may be restricted on the grounds of certain identified harms, the RTI Act negates the notion that information may be withheld on the grounds of confidentiality simpliciter. A harm under clause (1)

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of Section 8 must be identified and invoked to justify the non-disclosure of a document requested for under the RTI Act.

75. It is also pertinent to note that clauses (a), (b), (c), (f), (g) and (h) to clause (1) of Section 8 provide an absolute exemption from the obligation of disclosure under the RTI Act. However, clauses (d), (e), (i) and (j) to clause (1) of Section 8 provide a qualified exemption from disclosure. For example, clause (a) to sub section (1) of Section 8 provides an unconditional exemption where it is determined that disclosure of the information sought “would prejudicially affect the sovereignty and integrity of India”. On the other hand, while clause (d) to Section 8(1) similarly provides that information is exempt from disclosure where such disclosure “would harm the competitive position of a third party” the exemption is further qualified by the phrase, “unless the competent authority is satisfied that larger public interest warrants the disclosure”. Thus, the exemption under clause (d) is not absolute but is qualified and cannot be invoked where there exists a “larger public interest”. Where the Information Officer determines that the “larger public interest” warrants a disclosure, the exemption in clause (d) cannot be invoked and the information must be disclosed.

76. Clause (j) of Section 8(1) provides a qualified exemption from disclosure where the information sought relates to “personal information the disclosure of which has no relationship to any public activity or interest” or the disclosure of the information would cause an E “unwarranted invasion of the privacy”. However, the exemption may be overridden where the Information Officer is “satisfied that the larger public interest justifies the disclosure”. Clause (j) is not an absolute exemption from the disclosure of information on the ground of privacy but states that disclosure is exempted in cases where “personal information” is sought and there exists no “larger public interest”. Where the Information Officer is satisfied that the existence of the “larger public interest” justifies the disclosure of the “personal information”, the information must be disclosed. The exact contours of the phrases “personal information” and “larger public interest” with respect to members of the judiciary, and the exact manner in which they relate to each other form the subject matter of the third referral question and shall be analysed during the course of this judgement.

77. Sections 2(n) and 11 of the RTI Act read as under: “2(n) “third party” means a person other than the citizen making a request for information and includes a public authority” H

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A “11. Third party information.—(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central B Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, C intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: D Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information E Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

F (Emphasis supplied) The definition of a “third party” includes a public authority. ‘Third party information’ is information which “relates to or has been supplied by any other person (including a public authority) other than the information applicant and has been treated as confidential by such third party. Where disclosure of ‘third party information’ is sought, and such information has been prima facie treated as confidential by the third party in question, the procedure under Section 11 of the RTI Act is mandatory. The Information Officer shall, within five days of receiving the request for ‘third party information’ notify the relevant third party to whom the information relates or which had supplied it. The notice shall invite the third party to submit reasons (in writing or orally) as to

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whether or not the information sought should be disclosed. Section 11(2) A provides the third party with a right to make a representation against the proposed disclosure within ten days of receiving the notice. The provision expressly mandates the Information Officer to take into consideration the objections of the third party when making a decision with respect to disclosure or non-disclosure of the information. It B encapsulates the fundamental idea that a party whose personal information is sought to be disclosed is afforded the opportunity to contest disclosure. The proviso to sub section (1) of Section 11 permits disclosure where the “public interest” in disclosure “outweighs” any possible harms in disclosure highlighted by the third party. C

78. Sections 8 and 11 must be read together. Other than in a case where the information applicant seeks the disclosure of information which relates to the information applicant herself, information sought that falls under the category of “personal information” within the meaning of clause (j) of Section 8(1) is also “third party information” within the ambit of Section 11. Therefore, in every case where the information requested is “personal information” within the operation of clause (j) of sub section 1 of Section 8, the procedure of notice and objections under Section 11 must be complied with. The two provisions create a substantive system of checks and balances which seek to balance the right of the information applicant to receive information with the right of the third party to prevent the disclosure of personal information by permitting the latter to contest the proposed disclosure.

79. In Arvind Kejriwal v Central Public Information Officer79 it was contended that the procedure for notifying the third party and inviting objections under Section 11 only applied to situations where the information sought was directly supplied by the third party, and not to situations where the information ‘related to’ the third party but was not supplied by it. Rejecting this contention, Justice Sanjeev Khanna, (as our learned Brother then was) speaking for a Division Bench of the Delhi High Court held: G “13… On the other hand, in case the word ‘or’ is read as ‘and’, it may lead to difficulties and problems, including the invasion of right of privacy/confidentiality of a third party. For example, a public authority may have in its records, medical reports 79 AIR 2012 Del 29 H

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A or prescriptions relating to third person but which have not been supplied by the third person. If the interpretation given by the appellant is accepted then such information can be disclosed to the information seeker without following the procedure prescribed in Section 11(1) as the information was not furnished or supplied by the third person. … when information relates to a third party and can be prima facie regarded and treated as confidential, the procedure under Section 11(1) must be followed. Similarly, in case information has been provided by the third party and has been prima facie treated by the said third party as confidential, again the procedure under Section 11(1) has to be followed. …

15. Section 11 also ensures that the principles of natural justice are complied with. Information which is confidential relating to a third party or furnished by a third party, is not furnished to the information seeker without notice or without hearing the third party’s point of view. A third party may have reasons, grounds and explanations as to why the information should not be furnished, which may not be in the knowledge of the PIO/appellate authorities or available in the records. E The information seeker is not required to give any reason why he has made an application for information. There may be facts, causes or reasons unknown to the PIO or the appellant authority which may justify and require denial of information. Fair and just decision is the essence of natural justice. Issuance of notice and giving an opportunity to the third party serves a salutary purpose and ensures that there is a fair and just decision. In fact issue of notice to a third party may in cases curtail litigation and complications that may arise if information is furnished without hearing the third party concerned. Section 11 prescribes a fairly strict time schedule to ensure that the proceedings are not delayed. (Emphasis supplied) The procedure under Section 11 must be complied with not only in cases where information has been supplied to the public authority by a third party, but equally when the information which is held by the public authority “relates to” a third party. Section 11 is not merely a

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 601 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

procedural provision, but a substantive protection to third parties against the disclosure of their personal information held by public authorities, without their knowledge or consent. The mere fact that the public authority holds information relating to a third party does not render it freely disclosable under the RTI Act. A third party may have good reason to object to the disclosure of the information, including on the ground that the disclosure would constitute a breach of the right to privacy. By including the requirement of inviting objections and providing a hearing on the proposed disclosure of third party information to the very party who may be adversely impacted by the disclosure, Section 11 embodies the principles of natural justice.

80. In the present case, the information sought pertains to the declaration of assets of members of the judiciary and official file notings and correspondence with respect to the elevation of judges to the Supreme Court. The information sought with respect to the assets of judges is not generated by the Supreme Court itself, but is provided by individual judges to the Supreme Court. The file notings with respect to the elevation of judges do not merely contain information regarding the operation of the Supreme Court, but also relate to the individual judges being considered for elevation. Thus, the information sought both “relates to” and “has been supplied by” a third party and has been treated as confidential by that third party”. The procedure under Section 11 is applicable in regard to the information sought by the respondent and must be complied with. Constitutional rights implicated

81. The RTI Act, although a statutory enactment, engages the rights contained in Part III of the Constitution of India. Article 19(1)(a) F of the Constitution contains the right to freedom of expression which grants all citizens not merely the right to free speech, but also the right to freely disseminate speech. The freedom of the press to disseminate speech has long been recognised under our Constitution. 80 An inherent component of the right to disseminate speech freely is the corresponding right of the audience to receive speech freely. The right to receive G information disseminated has also been recognised as a facet of the freedom of expression protected by Article 19(1)(a) of the Constitution.81 In addition to the right to receive information already being disseminated in the public domain, Article 19(1)(a) includes a positive right to information. Contrasted with the negative content of H

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A the right to receive information, which prohibits the State from restricting a citizen’s access to information already in the public domain, the right to information, as a facet of Article 19(1)(a), casts a positive duty on the State to make available certain information not already in the public domain.

B 82. In State of Uttar Pradesh v Raj Narain82, Chief Justice A N Ray, speaking for a Constitution Bench of this Court observed: “74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a C right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is D claimed for transactions which can, at any rate, have no repercussion on public security. [ See New York Times Co. v. United States, 29 L Ed 822: 403 US 713] To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It E is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine…” (Emphasis supplied) These observations were reiterated by the seven judge Bench of this Court in case of S P Gupta v Union of India83. Justice P N F Bhagwati (as he then was) noted: “64. Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their Government is doing. G The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call 80 Express Newspaper v Union of India 1959 SCR 12 81 Bennet Coleman v Union of India (1972) 2 SCC 788 82 (1975) 4 SCC 428 83 (1981) Supp SCC 87 H

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on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy. “Knowledge” said James Madison, “will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular Government without popular information or the means of obtaining it, is but a prologue to a force or tragedy or perhaps both”. The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State…” (Emphasis supplied) The above-mentioned extract accurately and succinctly summarises the position of law and has been consistently followed by this Court.84 The right to freedom of expression under Article 19(1)(a) casts both positive and negative obligations on the State. It restricts the State from interfering with the right of citizens to receive information and its freely disseminated. It also imposes an obligation on the State E to provide citizens with information about the public functioning of government to ensure accountability and create an informed electorate.

83. Parliament enacted the RTI Act in pursuance of the State’s positive obligation to provide citizens with information about the functioning of government. It is a statute to operationalise the right of citizens to access information, otherwise only held by the government, under the ‘right to know’ or ‘right to information’ as protected by Article 19(1)(a). In requesting for information under the provisions of the RTI Act, a citizen engages certain statutory rights and duties under its provisions, but simultaneously also engages the ‘right to know’ under the Article 19(1)(a) of the Constitution. The ‘right to know’ is not absolute. The RTI Act envisages certain restrictions on the ‘right to know’ in the form of exemptions enumerated in clause (1) to Section 84 People’s Union for Civil Liberties v Union of India (2003) 4 SCC 399; Thalappalam Service Cooperative Bank Limited v State of Kerala (2013) 16 SCC 82 and Reserve Bank of India v Jayantilal Mistry (2016) 3 SCC 525. H

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A 8. Crucially, restrictions on the disclosure of information under the RTI Act also constitute restrictions on the information applicant’s ‘right to know’ which is protected under Article 19(1)(a) of the Constitution. The constitutional permissibility of the statutory restrictions on disclosure contained within the RTI Act is not in challenge before this Court. But it is trite to state that any restrictions on the disclosure of information B would necessarily need to comport with the existing law on the protection of the ‘right to know’ as a facet of the freedom of expression. In the decision in Thalappalam Service Cooperative Bank Limited v State of Kerala85 Justice Radhakrishnan, speaking for a two judge Bench of this Court, noted: C “56. The Right to Information Act, 2005 is an Act which provides for setting up the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. The Preamble of the D Act also states that the democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. Citizens have, however, the right to secure access to information of only those matters which are “under the control of public authorities”, the purpose is to hold “the Government and its instrumentalities” accountable to the governed. Consequently, though right to get information is a fundamental right guaranteed under Article 19(1)(a) of the Constitution, limits are being prescribed under the Act itself, which are reasonable restrictions within the meaning of Article 19(2) of the Constitution of India.” (Emphasis supplied) The court expressly acknowledged that the RTI Act was enacted to fulfil the positive content of the right to know that existed under Article 19(1)(a). Further, restrictions on the disclosure of information under the RTI Act constitute restrictions on the ‘right to know’ as a facet of Article 19(1)(a).

85 H (2013) 16 SCC 82

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84. Clause (j) of sub section (1) of Section 8 uses the phrases A “personal information” and “unwarranted invasion of the privacy of the individual”. In interpreting the harm to be caused in disclosing personal information, this Court must be cognisant that the privacy of the individual is the subject of constitutional protection. In K S Puttaswamy v Union of India86 a nine judge bench of this Court unanimously held B that there exists a constitutional right to privacy located within Part III of the Constitution. Justice D Y Chandrachud, speaking for a plurality of four judges, held: “250. … The nine primary types of privacy are, according to the above depiction: C (i) bodily privacy which reflects the privacy of the physical body. Implicit in this is the negative freedom of being able to prevent others from violating one’s body or from restraining the freedom of bodily movement; (ii) spatial privacy which is reflected in the privacy of a private space through which access of others can be restricted to the space; intimate relations and family life are an apt illustration of spatial privacy; … (ix) informational privacy which reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information. … F

320. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III. G …

323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, 86 (2017) 10 SCC 1 H

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A procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being. …

325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. E The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

326. Privacy has both positive and negative content. The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual.

327. Decisions rendered by this Court subsequent to Kharak Singh upholding the right to privacy would be read subject to the above principles.”

H (Emphasis supplied)

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Justice R F Nariman in his separate concurring opinion made the following observations: “521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: • Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely; • Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. C Unauthorised use of such information may, therefore lead to infringement of this right; and • The privacy of choice, which protects an individual’s autonomy over fundamental personal choices…. D …

536. This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P. Sharma [M.P. Sharma v. E Satish Chandra, AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954 SCR 1077] and the majority in Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] , to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognising privacy as a fundamental right do not need to be revisited. F (Emphasis supplied)

85. The right to privacy is a constitutional right emanating from the right to life and personal liberty in Article 21 of the Constitution and from the facets of freedom and dignity embodied in Part III of the Constitution. Any restriction on the right to privacy by the State must G be provided for by law, pursue a legitimate aim of the State and satisfy the test of proportionality. The requirement of proportionality is satisfied when the nature and extent of the abridgement of the right is proportionate to the legitimate aim being pursued by the State. The constitutional protection of privacy encompasses not merely personal H

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A intimacies but also extends to decisional and informational autonomy. An individual has a constitutionally protected right to control the dissemination of personal information. The unauthorised use of information abridges a citizen’s right to privacy.

86. The information disclosed under the RTI Act may include personal information relating to individuals. The RTI Act does not contain any restrictions on the end-use of the information disclosed under its provisions. The information disclosed by an Information Officer of the State pursuant to a right to information application may subsequently be widely disseminated. Clause (j) of sub section (1) of Section 8 provides that, in certain situations, even personal information of an individual may be disclosed under the RTI Act. Where the RTI Act contemplates the disclosure of “personal information”, the right to privacy of the individual is engaged. The Act recognise that the absolute or unwarranted disclosure of an individual’s personal information under the RTI Act would constitute an “unwarranted invasion of the right to privacy” under the statutory provisions of the RTI Act and also abridge the individual’s constitutional right to privacy. However, the RTI Act has various checks and balances to guard against the unadulterated disclosure of personal information under the RTI Act. 87.The constitutional validity of the RTI Act as a measure abridging the right to privacy is not in question before this Court. But it is trite to say that the RTI Act satisfies the test of legality (by virtue of being a legislation) and also pursues a legitimate state aim of ensuring, transparency and accountability of government and an informed electorate. By requiring the Information Officer to balance the public interest in disclosure against the privacy harm caused, clause (j) creates a legislatively mandated measure of proportionality to ensure that the harm to the individual’s right to privacy is not disproportionate to the aim of securing transparency and accountability. A balancing of interests G 88.The RTI Act is a legislative enactment which contains a finely tuned balancing of interests between the privacy right of individuals whose information may be disclosed and the broader public interest in ensuring transparency, accountability and an informed electorate. Both these interests have significant implications as they engage constitutional rights under Part III. The overarching scheme of the RTI Act, and in

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particular Sections 3, 4 and 7 constitutes a mandate to fulfil the positive content of the ‘right to information’ as a facet of Article 19(1)(a) of the Constitution. The privacy interest protected by clause (j) to sub section (1) of Section 8 engages the principle of informational privacy as a facet of the constitutional privacy as recognised by this Court in K S Puttaswamy. Neither the ‘right to information’ as a facet of Article B 19(1)(a) nor the right to informational privacy as a facet to the right to privacy are absolute. The rights under Article 19(1)(a) may be restricted on the grounds enumerated in clause (2) of Article 19. The right to privacy and its numerous facets may be permissibly restricted where the abridgement is provided by law, pursues a legitimate State objective and complies with the principle of proportionality. C

89. Clause (j) of sub section (1) of Section 8 requires the Information Officer to first determine whether the information sought falls within the meaning of “personal information”. Where the information sought falls within the scope of “personal information” and has “no relationship to any public activity or interest” the information is exempt from disclosure under the RTI Act. However, where there exists a ‘public interest’ in the disclosure of the information sought, the test to be applied by the Information Officer is different. The Information Officer must evaluate whether the “larger public interest” justifies the disclosure of the information notwithstanding the fact that the information is “personal information”. In doing so, the Information Officer must balance the privacy interest of the individual whose personal information will be disclosed with the right to information of the public to know the information sought. The substantive content of the terms “personal information” and “public interest” must be informed by the constitutional standards applicable to the ‘right to know’ and the ‘right to privacy’ as disclosure and non-disclosure under the RTI Act directly implicate these constitutional rights. In striking a balance within the framework of the RTI Act, the Information Officer must be cognisant of the substantive contents of these rights and the extent to which they can be restricted within our constitutional scheme. It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question. It is now necessary to examine the content of “personal information” and “public interest”. H

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A Defining Personal Information

90. To understand the scope of information which is protected from disclosure under the RTI Act, it is of relevance to identify the nature of information which may be regarded as “personal information”. The RTI Act does not put forth a definition of the term “personal B information”. However, “personal information” has been defined under other statutory frameworks. These definitions obviously do not bind the interpretation of the RTI Act but are useful sources of guidance in understanding the amplitude of the expression. We must of course read them with a caveat because the context of usage is not the same. C Section 2(i) of the Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011 defines the term “personal information” in the following terms: “Personal information means any information that relates to a D natural person, which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person.” Thus, any information which is capable of identifying a natural person is classified as personal information.

91Copy pinpoint91. Article 4(1) of the EU General Data Protection Regulation (GDPR) defines personal data in similar terms: “Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, F in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.” G The data protection regime in the European Union regards information such as the name and surname, home address, location data, data held by a hospital or doctor and identification card number of an individual as personal data. 87 Courts from the jurisdiction have 87 What is personal data?, Official Website of the European Union https://ec.europa.eu/ info/law/law-topic/data-protection/reform/what-personal-data_en H

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interpreted the term “personal data” broadly to even include information A relating to the professional life of an individual. In Worten v Autoridade para as Condições de Trabalho88, the European Court of Justice held the work timings of an employee constitute personal data: B “19. In that respect, it suffices to note that, as maintained by all of the interested parties who submitted written observations, the data contained in a record of working time such as that at issue in the main proceedings, which concern, in relation to each worker, the daily work periods and rest periods, constitute personal data within the meaning of Article 2(a) of Directive 95/ C 46, because they represent ‘information relating to an identified or identifiable natural person” (Emphasis supplied) In Rechnungshof v Österreichischer Rundfunk, 89 the European Court of Justice held that details of professional income received by employees from an organisation subject to regulation by the Austrian Court of Audit amounts to “personal data”. It was held: “It should be noted, to begin with, that the data at issue in the main proceedings, which relate both to the monies paid by certain bodies and the recipients, constitute personal data within the meaning of Article 2(a) of Directive 95/46, being information relating to an identified or identifiable natural person. Their recording and use by the body concerned, and their transmission to the Rechnungshof and inclusion by the latter in a report intended to be communicated to various political institutions and widely diffused, constitute processing of personal data within the meaning of Article 2(b) of the directive.” (Emphasis supplied) 92.The Protection of Personal Information Act, 2013 of G South Africa contains an illustrative and comprehensive definition of personal information:

88 C342/12 dated 30 May 2013 89 Joined cases (C-465/00), (C-138/01) and (C-139/01) dated 20 May 2003 H

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A ‘‘personal information’’ means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to— (a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, B sexual orientation, age, physical or mental health, well- being, disability, religion, conscience, belief, culture, language and birth of the person; (b) information relating to the education or the medical, financial, criminal or employment history of the person; C (c) any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person; (d) the biometric information of the person;

D (e) the personal opinions, views or preferences of the person; (f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; E (g) the views or opinions of another individual about the person; and (h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.” Protection from disclosure of personal information has been recognised as a facet of the right to privacy in South Africa. In National Media Limited v Jooste 90, it was alleged by the respondent that intimate details of her personal life had been published by the appellant publishers without her consent. The information published included details of her child as well as her relationship with the father of the child. Justice Harms elucidated the right to privacy in the following terms: 90 H 1996 (3) SA 262 (SCA)

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“A right to privacy encompasses the competence to A determine the destiny of private facts. The individual concerned is entitled to dictate the ambit of disclosure e g to a circle of friends, a professional adviser or the public. He may prescribe the purpose and method the disclosure. Similarly, I am of the view that a person is entitled to decide when and under what conditions private facts may be made public…” B (Emphasis supplied) In NM v Smith91, the names of three women who were HIV positive were disclosed in a biography. It was alleged by the women that their names had been disclosed without any prior consent and their rights to privacy, dignity and psychological integrity had been violated by the disclosure. The opinion of four judges in Puttaswamy noted the two conceptions of privacy that emerged from the judgement of the Constitutional Court of South Africa which recognised the value of privacy in medical information: “According to the decision in Smith case , there are two interrelated reasons for the constitutional protection of privacy— one flows from the “constitutional conception of what it means to be a human being” and the second from the “constitutional conception of the State”: “An implicit part of [the first] aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state. … Secondly, we value privacy as a necessary part of a democratic society and as a constraint on the power of the State… In authoritarian societies, the state generally does not afford such protection. People and homes are often routinely searched and the possibility of a private space from which the state can be excluded is often denied. The consequence is a denial of liberty and human dignity. In democratic societies, this is impermissible.” 91 [2007] ZACC 6 H

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A …. On the interrelationship between the right to privacy, liberty and dignity, the Court observed that: “The right to privacy recognises the importance of protecting the sphere of our personal daily lives from the public. In so doing, it highlights the interrelationship between privacy, liberty and dignity as the key constitutional rights which construct our understanding of what it means to be a human being. All these rights are therefore interdependent and mutually reinforcing. We value privacy for this reason at least—that the constitutional conception of being a human being asserts and seeks to foster the possibility of human beings choosing how to live their lives within the overall framework of a broader community.” (Emphasis supplied) D

93Copy pinpoint93. In Australian Broadcasting Corporation v Lenah Game Meats92, the Australian High Court heard an appeal with regard to an application for an interlocutory injunction to restrain the broadcasting of a film depicting the activities of the Respondent. The Respondent was a processor and supplier of game meat and sold possum meat for export. Unknown persons had entered the respondent’s premises and installed hidden cameras. The possum-killing operations were filmed without the knowledge or consent of the respondent. It was claimed that the film was made surreptitiously and unlawfully and supplied to the appellant with the intention that the appellant would broadcast the film. In determining the Respondent Corporation’s claim to privacy, Chief Justice Gleeson made the following observations: “42. There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the 92 H [2001] HCA 63

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nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.” C (Emphasis supplied)

94Copy pinpoint94. In Campbell v MGN Limited 93, the claimant was a supermodel who had instituted proceedings against a publication called the ‘Mirror’ for publishing details of her efforts to overcome her drug addiction along with pictures of her attending meetings of the ‘Narcotics Anonymous’. The appeal was before the House of Lords. In her opinion, Baroness Hale noted: “145. It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship but from the nature of the information itself…” ….

147. I start, therefore, from the fact - indeed, it is common ground F - that all of the information about Miss Campbell’s addiction and attendance at NA which was revealed in the Daily Mirror article was both private and confidential, because it related to an important aspect of Miss Campbell’s physical and mental health and the treatment G she was receiving for it. It had also been received from an insider in breach of confidence. That simple fact has been obscured by the concession properly made on her behalf that the newspaper’s countervailing freedom of 93 [2003] 1 All ER 224 H

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