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

A expression did serve to justify the publication of some of this information. But the starting point must be that it was all private and its publication required specific justification. (Emphasis supplied)

95Copy pinpoint95. Courts in India have interpreted the scope of information which constitutes “personal information” under the RTI Act. In Girish Ramchandra Deshpande v Central Information Commissioner94, the petitioner sought copies of memos, show-cause notices and punishments awarded to the third respondent by his employer along with details of movable and immovable properties, investments, lending and borrowing from banks and other financial institutions. The petitioner also sought the details of gifts stated to have been accepted by the third respondent. A large portion of the information sought was located in the income tax returns of the third respondent. A two judge bench of the Court classified the information sought as “personal information” and held: D “12. … The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

13. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves G a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information.”

94 H (2013) 1 SCC 212

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 617 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

Thus, even in cases where information may be classified as A “personal information”, the CPIO is required to undertake an enquiry on a case to case basis to determine if the disclosure of information is justified.

96Copy pinpoint96. In R K Jain v Union of India95, the appellant’s application to the Chief Information Commissioner seeking copies of note-sheets B and files relating to a member of CESTAT, was rejected. The two-judge bench of this Court placed reliance on the holding in Girish Deshpande and rejected the appellant’s claim for inspection of documents relating to the Annual Confidential Reports of the member of CESTAT, including documents relating to adverse entries in the Annual Confidential Reports and the “follow-up action” taken. In Canara Bank v C S Shyam96, C the respondent was employed by the appellant bank as clerical staff and had asked for information relating to the transfer and posting of other clerical staff employed by the bank. This information sought included personal details such as the date of joining, designation of employee, details of promotion earned, date of joining to the branch. D Speaking for a two-judge Bench of this Court, Justice A M Sapre considered the holding in Girish Deshpande and held “14. In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by Respondent 1 of E individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(1)(j) of the Act and lastly, neither Respondent 1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee nor was any finding recorded by the Central Information Commission [C.S. Shyam F v. Canara Bank, 2007 SCC OnLine CIC 626] and the High Court [Canara Bank v. CIC, 2007 SCC OnLine Ker 659] as to the involvement of any larger public interest in supplying such information to Respondent 1.”

97Copy pinpoint97. In Subhash Chandra Agarwal v Registrar, Supreme G Court of India97, the appellant had filed an application under the RTI Act seeking information relating to the details of the medical facilities 95 (2013) 14 SCC 794 96 (2018) 11 SCC 426 97 (2018) 11 SCC 634 H

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A availed by the Judges of the Supreme Court and their family members in the preceding three years, including information relating to expenses on private treatment in India or abroad. The Court held that disclosure of information regarding medical facilities availed by judges amounts to an invasion of privacy: B “11. The information sought by the appellant includes the details of the medical facilities availed by the individual Judges. The same being personal information, we are of the view that providing such information would undoubtedly amount to invasion of the privacy. We have also taken note of the fact that it was conceded before the learned Single Judge by the learned counsel for the appellant herein that no larger public interest is involved in seeking the details of the medical facilities availed by the individual Judges. It may also be mentioned that the total expenditure incurred for the medical treatment of the Judges for the period in question was already furnished by the CPIO by his letter dated 30-8-2011 and it is not the case of the appellant that the said expenditure is excessive or exorbitant. That being so, we are unable to understand how the public interest requires disclosure of the details of the medical facilities availed by the individual Judges. In the absence of any such larger public interest, no direction whatsoever can be issued under Section E 19(8)(a)(iv) of the Act by the appellate authorities. Therefore on that ground also the order passed by the CIC dated 1-2-2012 is unsustainable and the same has rightly been set aside by the learned Single Judge.” Thus, it emerges from the discussion that certain category of F information such as medical information, details of personal relations, employee records and professional income can be classified as personal information. The question of whether such information must be disclosed has to be determined by the CPIO on a case to case basis, depending on the public interest demonstrated in favour of disclosure. G Public Interest

98Copy pinpoint98. The right to information and the need for transparency in the case of elected officials is grounded in the democratic need to facilitate better decision making by the public. Transparency and the right to information directly contribute to the ability of citizens to monitor and make more informed decisions with respect to the conduct of elected

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 619 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

officials. Where the misconduct of an elected representative is exposed to the public, citizens can choose not to vote for the person at the next poll. In this manner, the democratic process coupled with the right to information facilitates better administration and provides powerful incentives for good public decision making. In the case of judges, citizens do not possess a direct agency relationship. Therefore, the ‘public interest’ in disclosing information in regard to a judge cannot be sourced on the need for ensuring democratic accountability through better public decision making but must be located elsewhere.

99Copy pinpoint99. In common law countries, public interest has always been understood to operate as an interest independent to that of the State. Public interest operates equally against the State as it does against non- C State actors. This is of significance in the context of the RTI Act as the right to information seeks to bring about disclosure of information previously held exclusively by the State. Public interest therefore operates as a standalone viewpoint independent of whether the interest of the State favours disclosure or non-disclosure. At its core, the D objective test for ‘public interest’ is far broader than democratic decision making and takes into consideration both shared conceptions of the common good in society at any given point and yet recognises that such conceptions are always the product of contestation and disagreement, necessitating a robust set of viewpoints to facilitate the self-fulfilment of the individual and the search for truth. E

100Copy pinpoint100. In Secy., Ministry of Information & Broadcasting, Govt. of India v Cricket Assn. of Bengal 98 Justice P B Sawant speaking for a three judge bench of this Court observed: “43. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy.

98 (1995) 2 SCC 161 H

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A Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The B freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.” C The right to information is not solely premised on improving the quality of democratic decision making but also finds its roots in other bases of freedom of expression, including the self-fulfilment of the individual, the introduction of competing views into the ‘marketplace of ideas’ and the autonomy and dignity of the individual. Limiting the D term ‘public interest’ to information that allows individuals to make better public choices with respect to public officials fails to take into consideration the powerful benefits that the dissemination of information held by public authorities may have on the development of discourse, private decision making and the nourishment of the individual. E

101Copy pinpoint101. We have already observed that the accountability of the judiciary to the citizenry is inherent in the office of the judge. The administration of justice in our country is a vast, crucial and expensive endeavour that impacts millions of citizens on a daily basis. The contention that merely because a judge cannot be elected out of office, the conduct of judges and their general administration is not a matter of great public interest cannot be countenanced. The disclosure of information about the conduct of judges and their administration is necessary to ensure that the broader societal goals in the administration of justice are achieved. The disclosure of information can highlight areas where robust mechanisms of oversight and accountability are required. Lastly, the disclosure of information with respect to the judiciary also facilitates the self-fulfilment of the freedom of expression of individuals engaged in reporting, critiquing and discussing the activities of the court. The freedom of the press in exercising its role as a ‘public watchdog’ H is also facilitated by the disclosure of information.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 621 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

102Copy pinpoint102. The factors that weigh in favour of disclosure in the ‘public interest’ are specific to each unique case. However, over the years several authorities have given shape to the concept of public interest and provided indicative factors that weigh in favour of the disclosure of information. In an article titled “Freedom of information and the public interest: the Commonwealth experience”99 the authors lay down several factors that, when found to exist in any given case, would weigh in favour of disclosure. The authors state: “It is generally accepted that the public interest is not synonymous with what is of interest to the public, in the sense of satisfying public curiosity about some matter. For example, the UK Information Tribunal has drawn a distinction between ‘matters which were in the interest of the public to know and matters which were merely interesting to the public (ie which the public would like to know about, and which sell newspapers, but … are not relevant)’ Factors identified as favouring disclosure include the public interest in: contributing to a debate on a matter of public importance; accountability of officials; openness in the expenditure of public funds, the performance by a public authority of its regulatory functions, the handling of complaints by public authorities; exposure of wrongdoing, inefficiency or unfairness; individuals being able to refute allegations made against them; enhancements of scrutiny of decision-making; and protecting against danger to public health or safety.” The factors identified fulfil a significantly broader gamut of goals than merely holding democratically elected officials accountable. The contribution made by the disclosure of information to debate on matters of public importance is in itself a factor in favour of disclosure. Where the disclosure of documents casts a light on the adequate performance of public authorities and any mala fide actions or wrongdoings by public figures, facilitating the broader goal of accountability, there exists a public interest in favour of disclosure. G

103Copy pinpoint103. In Campbell v MGN Limited100 the House of Lords was called upon to balance the freedom of expression with the right to 99 Moira Paterson and Maeve McDonagh, Freedom of information and the public interest: the Commonwealth experience, Oxford University Commonwealth Law Journal, 17:2, 189-210 pp. 201. 100 [2004] UKHL 22 H

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A privacy. The claimant was a model who had been photographed leaving a drug rehabilitation meeting. The photographs were published, and the claimant claimed compensation for a breach of confidentiality. While the claimant admitted that there existed a public interest in the photographs of her attending the drug rehabilitation therapy, in evaluating the right of the defendant to publish the information Baroness Hale B made the following observations: “148. What was the nature of the freedom of expression which was being asserted on the other side? There are undoubtedly different types of speech, just as there are different types of C private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a D democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.” (Emphasis supplied) As a facet of the freedom of expression, the ‘public interest’ element of the right to information has several jurisprudential bases. G The public interest in disclosure extends to information which informs political debate and the organisation of “economic, social and political life”. There also exists public interest in information which is “intellectual or educational” and furthers the development of the individual. Lastly, public interest would also cover information which is of artistic relevance or fosters and nourishes the individual.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 623 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

104Copy pinpoint104. The opinion of Baroness Hale indicates a priority of interests in the determination of whether speech is in the ‘public interest’ and is deserving of protection. However, this Court should caution against such an approach. The freedom of expression protects a broad range of ideas, including those that ‘offend, shock and disturb’. In deciding whether information should be disclosed in the public interest, it is not for the Court to sit in judgement of society and make a determination on whether society would be ‘better off ’ or ‘worse off’ if the information is disclosed. In the prescient words of Justice Tugendhat: “It is not for the judge to express personal views on such matters, still less to impose whatever personal views he might have.”101 It is well established that ‘public interest’ does not amount to what the public may find interesting. However, where the information sought to be disclosed falls within the various fields discussed above, including the promotion of public debate, intellectual or educational information or artistic information, the information possesses a ‘public interest’ connotation in favour of disclosure. D

105Copy pinpoint105. Section 11B of the Australian Freedom of Information Act 1982 provides a list of indicative factors that may be used by courts to determine whether a document should be disclosed in the “public interest”. Section 11B is as under: “11B Public interest exemptions – factors E (1) This section applies for the purpose of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). (2) This section does not limit subsection 11A(5). Factors favouring access F

(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: (a) promote the objects of this Act (including all the matters G set out in sections 3 and 3A); (b) inform public debate on a matter of public importance; (c) promote effective oversight of public expenditure; 101 Terry (previously ‘LNS’) v Persons Unknown [2010] EWHC 119 H

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A (d) allow a person to access his or her own personal information.” The Australian statute notes that “public interest” must be interpreted as the factors and circumstances that promote the objectives of the legislation. In addition to these objectives, crucial factors weighing B in favour of public interest are the promotion of public debate and matters relating to public expenditure.

106Copy pinpoint106. The understanding that, in interpreting the phrase ‘public interest’ courts should pay heed to the objects of the legislation has been adopted in our country as well. In Bihar Public Service Commission C v Saiyed Hussain Abbas Rizwi102, Justice Swatanter Kumar speaking for a two judge bench of this Court made the following observations: “22. The expression “public interest” has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression “public interest” must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression “public interest”, like “public purpose”, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh [AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black’s Law Dictionary (8th Edn.)].” F (Emphasis supplied)

The Court noted that the phrase ‘public interest’ must be understood within the context of the enactment the phrase is used in. In the present case, the use of the phrase ‘public interest’ must be G understood in light of the object and purpose of the RTI Act. The Court in Bihar Public Service Commission observed that the existence of certain exemptions from disclosure under clause (1) of Section 8 would lead to a narrow reading of the phrase “public interest”. This is not the 102 H (2012) 13 SCC 61

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 625 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

correct approach. As noted previously in this judgement, the overarching A principle of the RTI Act is to operationalise the disclosure of information held by public authorities in furtherance of the right to information under Article 19(1)(a) of the Constitution. Merely because the provisions of the RTI Act contain certain restrictions on the disclosure of information cannot lead to a conclusion that the phrase “public interest” under the B RTI Act must be construed narrowly. Rather, under the scheme of clause (j) of clause (1) of Section 8, “public interest” is the measure of factors favouring the disclosure of information, which is subsequently weighed against the factors of privacy which weight in favour of non- disclosure. The existence of the balancing test creates a restriction on disclosure under the RTI Act but does not affect the wide meaning independently accorded to “public interest” understood as emanating from the freedom of speech and expression.

107Copy pinpoint107. Clause (j) of clause (1) of Section 8 requires the Information Officer to weigh the “public interest” in disclosure against the privacy harm. The disclosure of different documents in different circumstances will give rise to unique “public interest” factors in favour of disclosure. However, a few broad principles may be laid out as to how the phrase “public interest” is to be understood. Where factors fall within this interpretation “public interest” so interpreted, they are factors that weigh in favour of disclosure. The principles are as follows: E (i) Public interest is not limited to information which directly promotes the democratic accountability of elected officials; (ii) There exists public interest in the disclosure of F information where the information sought informs political debate, is educational or intellectual or serves artistic purposes; (iii) Where the information sought will promote public debate on political, economic or social issues, there exists a G public interest in disclosure; (iv) Judges and Information Officers should not pass a value judgement on whether the speech in question furthers their own conception of societal good or interest for it to satisfy the test of public interest; H

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A (v) As an indicative list, information concerning the accountability of officials, public expenditure, the performance of public duties, the handling of complaints, the existence of any wrongdoing by a public official, inefficiency in public administration and unfairness in public administration all possess public interest value, their relative strength to be determined on a case by case basis; (vi) Where the disclosure of information would promote the aims and objectives of the RTI Act, there exists a “public interest” in disclosing such information; and (vii) The object and purpose of the RTI Act is the fulfilment of the positive obligation on the State to provide access to information under Article 19(1)(a) of the Constitution and the existence of the restrictions on the disclosure of information does not restrict the meaning of “public interest” under the Act. Balancing interests in disclosure with privacy interests

108Copy pinpoint108. We have adverted to the substantive content of “personal information” and “public interest” as distinct factors to be considered by the Information Officer when arriving at a determination under clause (j) of clause (1) of Section 8. In the present case, the information sought by the respondent raises both considerations of “public interest” and “personal information”. The text of clause (j) requires the Information Officer to make a determination whether the “larger public interest justifies the disclosure” of personal information sought. The Information Officer must conduct balancing or weighing of interests in making a determination in favour of disclosure or non-disclosure. The Information Officer must be cognisant that any determination under clause (j) of clause (1) of Section 8 implicates the right to information and the right to privacy as constitutional rights. Reason forms the heart of the law and the decision of the Information Officer must provide cogent and articulate reasons for the factors considered and conclusions arrived at in balancing the two interests. In answering the third referral question in its entirety, this Court would be remiss in not setting out the analytical approach to be applied by the Information Officer in balancing the interests in disclosure with the countervailing privacy interests. Justice

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 627 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

S C Agrawal speaking for a Constitution Bench of this Court in S N A Mukherjee v Union of India103 observed: “9. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action”. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi- B judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. (Emphasis supplied) The requirement to record reasons is a principle of natural justice and a check against the arbitrary exercise of power by judicial and quasi- judicial bodies. In making a determination under clause (j) of clause (1) of Section 8 in a given case, it would not be satisfactory if an Information Officer were merely to record that the privacy interest outweighed the public interest. Something more is required. By providing an analytical framework to address the two interests to be weighed and requiring the Information Officer record detailed reasons within this framework, the arbitrary exercise or discretion of the Information Officer is guarded against.

109Copy pinpoint109. In the prescient words of Lord Denning: F “…each man should be free to develop his own personality to the full: and the only duties which should restrict this freedom are those which are necessary to enable everyone else to do the same.” 104 Neither the right to information nor the right to privacy are G absolute rights under the framework of the RTI Act. Where the right to information of an information applicant in requesting information

103 (1990) 4 SCC 495 104 Lord Denning, Freedom Under the Law (Hamlyn Lectures) 1968 (Sweet & Maxwell). H

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A touches upon the right to privacy of the person whose information is sought, the RTI Act calls upon the Information Officer to weigh the two interests and determine which is stronger. In Thalappalam Service Coop. Bank Ltd. v State of Kerala105 Justice K S P Radhakrishnan, speaking for a two judge bench of this Court, noted: B “61. The right to information and right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern C State. Citizens’ right to get information is statutorily recognised by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act…. The citizens, in that event, can always claim a right D to privacy, the right of a citizen to access information should be respected, so also a citizen’s right to privacy.” (Emphasis supplied)

110Copy pinpoint110. In setting out the precise approach to be adopted by the Information Officer in making a determination under clause (j) of clause E (1) of Section 8 it is worth adverting to the decision of Campbell v MGM Limited106 the facts of which have already been discussed above. In that case, the House of Lords was called upon to balance the privacy rights of the claimant, being photographed leaving a ‘Narcotics Anonymous’ meeting, under Article 8 of the European F Convention of Human Rights107 and the right of the defendant to publish the information under Article 10 of the ECHR which provides for the freedom of expression. Although not a case with respect to the disclosure of documents, the House of Lords makes several notable observations about balancing privacy and free speech interests. Lord Nicholls observed: G “20. I should take this a little further on one point. Article 8(1) recognises the need to respect private and family life.

105 (2013) 16 SCC 82 106 [2004] UKHL 22 107 H “ECHR”

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 629 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

Article 8(2) recognises there are occasions when intrusion into private and family life may be justified. One of these is where the intrusion is necessary for the protection of the rights and freedoms of others. Article 10(1) recognises the importance of freedom of expression. But article 10(2), like article 8(2), recognises there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant’s private or family life.” C (Emphasis supplied) The first question of significance is whether the right to privacy of the person whose information is sought is engaged. This approach was subsequently applied by the Court of Appeal in HRH Prince of Wales v Associated Newspapers Ltd108. The text of clause (j) of D clause (1) of Section 8 also articulates this threshold. For clause (j) to be engaged at the first instance, the information sought must constitute “personal information”. This is an inquiry independent to the question of how the privacy interest should be balanced with the free speech interest. E

111Copy pinpoint111. Where the information sought is “personal information” the court must next balance the interest in disclosure or dissemination with the privacy interest at stake. Baroness Hale in her opinion in Campbell stated: “137. It should be emphasised that the ‘reasonable expectation of privacy’ is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as ‘private’ in this way, the court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail. …

140. The application of the proportionality test is more straightforward when only one Convention right is in play: the H

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A question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a “pressing social need” to protect it.

141. Both parties accepted the basic approach of the Court of Appeal in In re S [2003] 3 WLR 1425, 1451-1452, at paras 54 to 60. This involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each. The parties in this case differed about whether the trial judge or the Court of Appeal had done this, the appellant arguing that the Court of Appeal had assumed primacy for the Article 10 right while the respondent argued that the trial judge had assumed primacy for the Article 8 right. (Emphasis supplied)

112Copy pinpoint112. Once the information sought has been identified as “personal information” the Information Officer must identify the actual rights being claimed in the individual case. In setting out the substantive content of ‘public interest’ and ‘privacy’ various facets of these concepts have been set out. In any given case, the Information Officer must identify the precise interests weighing in favour of ‘public interest’ disclosure, and those interests weighing in favour of ‘privacy’ and non-disclosure. The Information Officer must then examine the justifications for restricting each right and whether they are countenanced under the scheme of RTI Act and in law generally. The ground of confidentiality simpliciter is not a ground to restrict the right to information under the RTI Act or Article 19(1)(a) of the Constitution. Lastly, the Information G Officer must employ the principle of proportionality. As observed by Baroness Hale, both the right to privacy and the right to information are legitimate aims. In applying the principle of proportionality, the Information Officer must ensure that the abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by enforcing the countervailing right.

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113Copy pinpoint113. Take the example of where an information applicant sought the disclosure of how many leaves were taken by a public employee and the reasons for such leave. The need to ensure accountability of public employees is of clear public interest in favour of disclosure. The reasons for the leave may also include medical information with respect to the public employee, creating a clear privacy interest in favour of non-disclosure. It is insufficient to state that the privacy interest in medical records is extremely high and therefore the outcome should be blanket non-disclosure. The principle of proportionality may necessitate that the number of and reasons for the leaves be disclosed and the medical reasons for the leave be omitted. This would ensure that the interest in accountability is only abridged to the extent necessary to protect the legitimate aim of the privacy of the public employee.

114Copy pinpoint114. Having adverted to the analytical test to be applied by the Information Officers in balancing the two interests, it is also worth setting out certain factors that should not be considered in such a balancing. Section 11B of the Australian Freedom of Information Act 1982 D lays down certain ‘Irrelevant factors’ that should not be considered in determining whether to disclose information. Section 11B is as under: “…Irrelevant factors (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be E contrary to the public interest: (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; F (b) access to the document could result in any person misinterpreting or misunderstanding the document; (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; G (d) access to the document could result in confusion or unnecessary debate.” The factors set out above are not relevant or permissible restrictions on the right to information and should not be considered in determining whether or not todisclose information under the RTI Act. H

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A Clause (2) of Section 6 of the RTI Act provides that an information applicant need not provide any reason as to why the information is sought. It would not be open for an Information Officer to deny the disclosure of information on the ground that the information would lead to confusion, embarrassment or unnecessary debate in the public sphere. By enumerating the grounds on which information may be B exempted from the general obligation to disclose, clause (1) of Section 8 negates the notion that information may be withheld on the sole ground of confidentiality. I Conclusion

115Copy pinpoint115. The information sought by the respondent pertains to (1) the correspondence and file notings relating to the elevation of three judges to the Supreme Court, (2) information relating to the declaration of assets made by judges pursuant to the 1997 resolution, and (3) the identity and nature of disciplinary proceedings instituted against the lawyer and judge named in the newspaper report. The third referral question requires this Court to determine whether the disclosure of the information sought is exempt under clause (j) of clause (1) of Section

8. In arriving at a determination on whether the information sought is exempt under clause (j), it is necessary to (i) determine whether the information sought is “personal information” and engages the right to privacy, (ii) identify, in the facts of the present case, the specific heads of public interest in favour of disclosure and the specific privacy interests claimed, (iii) determine the justifications for restricting such interests and (iv) apply the principle of proportionality to ensure that no right is abridged more than required to fulfil the legitimate aim of the countervailing right. The process under Section 11 of the RTI must be complied with where the information sought is ‘third party information’. The substantive content of the terms ‘personal information’ and ‘public interest’ have also been set out in the present judgement. J Directions

116Copy pinpoint116. The information sought in Civil Appeal No 2683 with respect to which judges of the Supreme Court have declared their assets does not constitute the “personal information” of the judges and does not engage the right to privacy. The contents of the declaration of assets would fall within the meaning of “personal information” and the test set out under clause (j) of clause (1) of Section 8 would be applicable along with the procedure under Section 11 of the RTI Act. In view of

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 633 AGARWAL [DR. DHANANJAYA Y. CHANDRACHUD, J.]

the above observations, Civil Appeal No. 2683 of 2010 is dismissed and the judgement of the Delhi High Court dated 12 January 2010 in LPA No 501 of 2009 is upheld.

117Copy pinpoint117. Civil Appeals Nos 10044 and 1045 of 2010 are remanded to the CPIO, Supreme Court of India to be examined and a determination arrived at, after applying the principles set out in the present judgement. The information sought in these appeals falls within the meaning of ‘third party information’ and the procedure under Section 11 must be complied with in arriving at a determination. Brother Justice Sanjiv Khanna has observed that: “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, 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” I wish to add a few thoughts of my own on the subject. The E collegium owes its birth to judicial interpretation. In significant respects, the collegium is a victim of its own birth – pangs. Bereft of information pertaining to both the criteria governing the selection and appointment of judges to the higher judiciary and the application of those criteria in individual cases, citizens have engaged the constitutional right to information, facilitated by the RTI Act. F

If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the G procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and H

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A making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegium system postulates that proposals for appointment of judges are initiated by the judges themselves. Essential substantial norms in regard to judicial appointments include: B (i) The basis on which performance of a member of the Bar is evaluated for the purpose of higher judicial office; (ii) The criteria which are applied in determining whether a member of the Bar fulfils requirements in terms of: C a) Experience as reflected in the quantum and nature of the practice; b) Domain specialization in areas which are geared to the evolving nature of litigation and the requirements of each court; c) Income requirements, if any, having regard to the nature D of the practice and the circumstances prevailing in the court or region concerned; d) The commitment demonstrated by a candidate under consideration to the development of the law in terms of written work, research and academic qualifications; and E e) The social orientation of the candidate, defined in terms of the extent of pro bono or legal aid work; (iii) The need for promoting the role of the judiciary as an inclusive institution and its diversity in terms of gender, representation to minorities and the marginalised, orientation and other relevant factors. The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 635 AGARWAL

disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.

N. V. RAMANA, J. “In the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck”

1. I have had the opportunity to peruse the erudite judgments of my learned brothers, who have reflected extensively on the importance of this case, concerning the aspect of privacy and right to information in detail. However, while concurring with the view of the majority, I feel the need to provide independent reasons with respect to certain aspects for coming to the aforesaid conclusion, as this case has large ramification on the rights of an individual in comparison to the rights of the society. The aspect of transparency and accountability which are required to be balanced with right to privacy, has not been expounded by this Court anytime before, thereby mandating a separate opinion.

2. This case concerns the balance which is required between two important fundamental rights i.e. right to information and right to privacy. Often these two rights are seen as conflicting, however, we need to reiterate that both rights are two faces of the same coin. There is no requirement to see the two facets of the right in a manner to further the conflict, what is herein required is to provide balancing formula which can be easily made applicable to individual cases. Moreover, due to the fact of infancy in privacy jurisprudence has also contributed to the meticulous task we are burdened herein.

3. In this view, this case is before us to adjudicate whether the application dated 06.07.2009 (hereinafter referred to as “first application”) seeking information by the respondent, separate applications dated 23.01.2009 (hereinafter referred to as “second H

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A application”) and 10.11.2007 (hereinafter referred to as “third application”) are maintainable or not. The first application concerns the information relating to complete correspondence between the Chief Justice of India and Mr. Justice R. Reghupati. The second application concerns the collegium file notings relating to the appointment of Justice H. L. Dattu, Justice A. K. Ganguly and Justice R. M. Lodha. The third application relates to information concerning declaration of assets made by the puisne judges of the Supreme Court to the Chief Justice of India and the judges of the High Courts to the Chief Justices of the respective High Courts.

4. The respondent/applicant submitted that the aforesaid three applications before the Central Public Information Officer of the Supreme Court of India (hereinafter “CPIO, Supreme Court of India”) came to be dismissed vide orders dated 04.08.2009, 25.02.2009 and 30.11.2007 respectively.

5. Aggrieved by rejection of the first application the respondent approached the first appellate authority in appeal which was also dismissed vide order dated 05.09.2009. Being aggrieved, the respondent further preferred a second appeal to the Central Information Commission [for short “CIC”]. The CIC allowed this appeal vide order dated 25.11.2009 and directed the disclosure of information sought. E Aggrieved by the same, the CPIO, Supreme Court of India has preferred Civil Appeal No. 10045 of 2010.

6. Concerning the second application, the CPIO, Supreme Court of India, by order dated 25.02.2009 had denied the information sought therein. Being aggrieved, the respondent preferred the first appeal which F came to be dismissed vide order dated 25.03.2009 by the first appellate authority. The second appeal filed before the CIC was allowed vide order dated 24.11.2009. Aggrieved the CPIO, Supreme Court of India has preferred Civil Appeal No. 10044 of 2010.

7. The third application was dismissed by the CPIO, Supreme G Court of India vide order dated 30.11.2007 on the ground that the information was not held by the Registry of the Supreme Court of India. The first appeal was disposed of with an order directing the CPIO, Supreme Court of India to consider the question of applicability of Section 6(3) of the Right to Information Act, 2005 (hereinafter “the RTI Act”). The CPIO vide order 07.02.2009 required the respondent/ H applicant to approach the concerned public authority of the High Courts.

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 637 AGARWAL [N. V. RAMANA, J.]

Aggrieved the respondent/applicant directly approached the CIC in A appeal which was allowed by order dated 06.01.2009. Aggrieved by the same the appellant filed Writ Petition (C) No. 288 of 2009 before the Delhi High Court. The Ld. Single Judge by order dated 02.09.2009 directed the CPIO, Supreme Court of India to release the information sought by the respondent. Being aggrieved, the CPIO, Supreme Court B of India filed Letter Patent Appeal No. 501 of 2009 which was subsequently referred to a full Bench of the High Court. The full Bench by order dated 12.01.2010 dismissed the letter patent appeal. Aggrieved, CPIO, Supreme Court of India has filed Civil Appeal No. 2683 of 2010 before this Court.

8. In this context, all the three appeals were tagged by an order C dated 26.11.2010, a reference was made for constituting a larger Bench and accordingly it is before us.

9. Before we dwell into any other aspect a preliminary objections were taken by the appellants that this Bench could not have dealt with this matter considering the fact that this Court’s functionality had a D direct impact on the same. We do not subscribe to the aforesaid opinion for the reason that this Court while hearing this matter is sitting as a Court of necessity. In the case of Election Commission of India v. Dr Subramaniam Swamy, (1996) 4 SCC 104, it was held as under:

16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit there from. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If G all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to H

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A promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.

10. In this light, appellants have to accept the decision of this B Court which is the final arbiter of any disputes in India and also the highest court of constitutional matters. In this light, such objections cannot be sustained.

11. Before we proceed any further we need to have a brief reference to the scheme of RTI Act. The statement of objects and reasons envisage a noble goal of creating a democracy which is consisting of informed citizens and a transparent government. It also provides for a balance between effective government, efficient operations, expenditure of such transparent systems and requirements of confidentiality for certain sensitive information. It recognises that these principles are inevitable to create friction inter se and there needs to be harmonisation of such conflicting interests and there is further requirement to preserve the supremacy of democratic ideal. The recognition of this normative democratic ideal requires us to further expound upon the optimum levels of accountability and transparency of efficient operations of the government. Under Section E 2(f), information is defined as ‘any material in any form including records, documents, memos, e-mails, opinions, advises, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in F force.’

12. The purport of this section was to cover all types of information contained in any format to be available under the ambit of the RTI Act. The aforesaid definition is further broadened by the definition of ‘record’ provided under Section 2(i) of the RTI Act. Right G to Information as defined under Section 2(j) of the RTI Act means the right to information accessible under this Act which is held by or under the control of any public authority.

13. Chapter II of the RTI Act begins with a statement under Section 3 by proclaiming that all citizens shall have right to information subject to the provisions of the RTI Act. Section 4 creates an obligation

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 639 AGARWAL [N. V. RAMANA, J.]

on public authorities to maintain a minimum standard of data which would be freely available for the citizens. Further this section also mandates proactive dissemination of data for informing the citizens by utilizing various modes and means of communications. Section 5 requires every public authority to designate concerned CPIO or SPIO, as the case may be for providing information to those who seeks the same.

14. Section 6 of the RTI Act provides for procedure required to be followed by a person who desires to obtain information under the RTI Act. Section 7 further provides the time frame within such designated officers are to decide the applications filed by the information seeker. For our purposes Section 8 deems relevant and is accordingly extracted hereunder – “8. Exemption from disclosure of information.— (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, D

… (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 E is satisfied that larger public interest warrants the disclosure of such information; (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 (j) information which relates to personal information the disclosure of which has not 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 G 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 Parliament or a State Legislature shall not be denied to any person.” H

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A 15. It may be relevant to note Section 10 of the RTI Act which deals with severability of the exempted information. The mandate of the section is that where a request for access to information contains both exempted as well as non-exempted parts, if the non-exempted parts could be revealed, such parts which could be reasonably severed and can be provided as information under the Act. B

16. Section 11 which is material for the discussion involved herein states as under - “11. Third party information.— (1) Where a Central Public Information Officer or the C 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 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, 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: 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 Officer or State Public Information Officer, as the case may be, under subsection (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 641 AGARWAL [N. V. RAMANA, J.]

from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under subsection (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. C (4) A notice given under subsection (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.” D

17. The mandate under Section 11 of the RTI Act enshrines the principles of natural justice, wherein, the third party is provided with an opportunity to be heard and the authority needs to consider whether the disclosure in public interest outweighs the possible harm in disclosure to the third party. It must be noted that the use of term ‘confidential’ as occurring under Section 11, subsumes commercial confidential E information, other types of confidential information and private information.

18. We may not concentrate on other procedural section provided under the RTI Act as they do not have any bearing on the case concerned. F

19. Having observed the scheme of the RTI Act we need to understand that right to information stems from Article 19(1)(a) of the Constitution which guarantees freedom of expression. Accordingly, this Court in State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428 and S.P. Gupta v. Union of India, (1981) Supp. (1) SCC 87, held that G a citizen cannot effectively exercise his freedom of speech and expression unless he/she is informed of the governmental activities. Our country being democratic, the right to criticise the government can only be effectively undertaken if accountability and transparency are maintained at appropriate levels. In view of the same, right to information can squarely said to be a corollary to the right to speech and expression. H

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A 20. Firstly, the appellants have contended that the information are not held with the Registry of the Supreme Court, rather the Chief Justice of India is holding the aforesaid information concerning the exchanges between Mr. Justice R. Reghupati and the then Chief Justice of India. In this context, the term ‘held’ acquires important position. The B term ‘held’ usually connotes the power, custody, or possession with the person. However, the mandate of the Act requires this term to be interpreted wherein the association between held and the authority needs to be taken into consideration while providing a meaning for the aforesaid term. At this juncture, we need to observe the case of University of New Castle upon Tyne v. Information C Commissioner and British Union for Abolition of Vivisection, [2011] UKUT 185 AAC, wherein the upper tribunal has held as under – “‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by D reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that E ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk; that does not mean that the information is held by the authority.”

21. From the aforesaid it can be concluded that a similar interpretation can be provided for term ‘held’ as occurring under Section

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 643 AGARWAL [N. V. RAMANA, J.]

2(j) of the Act. Therefore, in view of the same the term ‘held’ does not include following information –

1. That is, without request or arrangement, sent to or deposited with a public authority which does not hold itself out as willing to receive it and which does not subsequently use it; B

2. That is accidentally left with a public authority;

3. That just passes through a public authority;

4. That ‘belongs’ to an employee or officer of a public authority but which is brought by that employee or officer onto the public authority’s premises.1 Having clarified the aforesaid aspect we are of the opinion that the nature of information in relation to the authority concerned requires to be seen. The fact that the information sought in the instant matter is in custody with the Chief Justice of India as he is the administrative head of the Supreme Court, squarely require us to hold that the concerned authority is holding the information and accordingly the contention of the appellants does not have any merit.

22. The appellants have argued that the information with respect to the assets declared with the Chief Justice of India or Chief Justices of respective High Courts are held in confidence, fiduciary capacity; moreover, the aforesaid information is private information of the judges which cannot be revealed under the RTI Act.

23. The exemptions to right to information as noted above are contained under Section 8 of the RTI Act. Before we analyse the aforesaid provision, we need to observe basic principles, concerning interpretation of exemption clauses. There is no doubt it is now well settled that exemption clauses need to be construed strictly. They need to be given appropriate meaning in terms of the intention of the legislature [see Commissioner of Customs (Import) v. Dilip Kumar & Ors., (2018) 9 SCC 40; Rechnungshof v. Österreichischer Rundfunk and Ors., C-465/00].

1 Phillip Coppel, Information Rights Law and Practice (4th Edn. (2014)), Pg. 362. H

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A 24. At the cost of repetition we note that the exemption of right to information for confidential information is covered under Section 8(1)(d), exemption from right to information under a fiduciary relationship is covered under Section 8(1)(e) and the exemption from private information is contained under Section 8(1)(j) of the RTI Act.

B 25. The first contention raised by the appellants is that the aforesaid information is confidential, therefore the same is covered under the exemption as provided under Section 8(1)(d) of the RTI Act. The aforesaid exemption originates from a long time of judge made law concerning breach of confidence (which are recently termed as misuse of private information).

26. Under the classic breach of confidence action, three requirements were necessary for bringing an action under this head. These conditions are clearly mentioned in the opinion of Megarry, J., in Coco vs. Clark, [1968] FSR 415; wherein, the conditions are first, the information itself, i.e. ‘information is required to have necessary quality about confidence of the same’; second, ‘the information must have been imparted in circumstances importing an obligation of confidence’; third, ‘there must be unauthorized use of information which will be detriment to the party communicating’. E

27. Breach of confidence was not an absolute right and public interest, incorporated from long time under the common law jurisprudence. This defence of public interest can be traced to initial case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113, wherein it was held that there is no confidence as to disclosure in iniquity. This F iniquity was later expanded by Lord Denning in Fraser v. Evans, [1969] 1 QB 349, wherein the iniquity was referred as merely as an example of ‘justice cause or excuse’ for a breach of confidence. This iniquity was widened further in Initial Service v. Putterill, [1968] 1 QB 396, wherein it was held that iniquity covers any misconduct of nature that it ought to be disclosed to others in the public interest. In this line of precedents Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All ER 24, noted that iniquity would cover ‘any matter, carried out or contemplated, in breach of country’s security or in breach of law including statutory duty, fraud or otherwise destructive of the country or its people and doubtless other misdeeds of similar gravity.’

CPIO, SUPREME COURT OF INDIA v. SUBHASH CHANDRA 645 AGARWAL [N. V. RAMANA, J.]

28. Eventually the language of iniquity was shaken and discourse on public interest took over as a defence for breach of confidence [See Lion Laboratories v. Evans, [1985] QB 526]. It would be necessary to quote Lord Goff in Her Majesty’s Attorney General v. The Observer Ltd. & Ors., [1991] AC 109, wherein he noted that “it is now clear that the principle [of iniquity] extends to matters of which disclosure is required in public interest”.

30. Even in England there has been a shift of reasoning from an absolute public interest defence to balancing of public interest. At this point we may observe the case of Woodward v. Hutchins,[1977] 1 WLR 760, wherein it was observed “It is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth”.

31. Section 8(1)(d) of the RTI Act has limited the action of defence of confidentiality to only commercial information, intellectual property rights and those which are concerned with maintaining the competitive superiority. Therefore, aforesaid section is only relatable to breach of confidence of commercial information as classically developed. Although there are examples wherein commercial confidentiality are also expanded to other types of breach of confidential information, however, under Section 8(1)(d) does not take into its fold such breach of confidential information actions.

32. Coming to other types of confidentiality, we need to note that the confidentiality cannot be only restricted to commercial confidentiality, rather needs to extend to other types of confidentialities as well. [Duchess of Argyll v. Duke of Argyll, 1967 Ch 302] Under the RTI H

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A Scheme such other confidential information are taken care under Section 11 of the RTI Act. The language and purport under Section 11 extends to all types of confidentialities, inclusive of both commercial and other types of confidentialities. The purport of this Section is that an opportunity should be provided to third party, who treats the B information as confidential. The ‘test of balancing public interest’ needs to be applied in cases of confidential information other than commercial information as well, under Section 11 of the RTI Act, as discussed. In this light, the concerned third parties need to be heard and thereafter the authorities are required to pass order as indicated herein.

C 33. Further, the appellants have contended that the information sought herein relating to the third party are covered under exemptions as provided in Section 8(1)(j) of the RTI Act i.e. private information.

34. The development from breach of confidence to misuse of private information/privacy claim was gradual. There was shift from D the focus on relationship to whether the information itself had a requisite confidential quality [refer to Her Majesty’s Attorney General case (supra)]. This shift in focus resulted in the evolution of misuse of private information or privacy claim, from its predecessor of confidentiality. In the case of Campbell v. M.G.N., [2004] UKHL 22, E wherein the breach of misuse of private information evolved as cause of action. The modification which happened in the new cause of action is that the initial confidential relationship was not material, which was earlier required under the breach of confidence action. The use of term confidential information was replaced with more natural descriptive term information in private. The change from breach of confidence which was an action of equity, to misuse of private information, which was a tort provided more structural definitiveness and reduced the discretionary aspect.

35. The purport of the Section 8(1)(j) of the RTI Act is to balance privacy with public interest. Under the provision a two steps test could be identified wherein the first step was: (i) whether there is a reasonable expectation of privacy, and (ii) whether on an ultimate balancing analysis, does privacy give way to freedom of expression? We should acknowledge that these two tests are very difficult to be kept separate analytically.

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FIRST STEP A 36.The first step for the adjudicating authority is to ascertain whether the information is private and whether the information relating the concerned party has a reasonable expectation of privacy. In Murray v. Express Newspaper plc, [2009] Ch 481, it was held as under B “As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”

37. From the aforesaid discussion we can note that there are certain factors which needs to be considered before concluding whether there was a reasonable expectation of privacy of the person concerned. These non-exhaustive factors are;

1. The nature of information. E

2. Impact on private life.

3. Improper conduct.

4. Criminality

5. Place where the activity occurred or the information was F found.

6. Attributes of claimants such as being a public figure, a minor etc and their reputation.

7. Absence of consent. G

8. Circumstances and purposes for which the information came into the hands of the publishers.

9. Effect on the claimant.

10. Intrusion’s nature and purpose. H

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A These non-exhaustive factors are to be considered in order to come to a conclusion whether the information sought is private or does the persons has a reasonable expectations of privacy. In certain cases we may conclude that there could be certain information which are inherently private and are presumptively protected under the privacy rights. These informations include gender, age and sexual preferences etc. These instances need to be kept in mind while assessing the first requirement under the aforesaid test.

38. If the information is strictly covered under the aforesaid formulation, then the person is exempted from the right to information unless ‘the public interest test’ requires to trump the same. Second Step

39. Having ascertained whether the information is private or not, a judge is required to adopt a balancing test to note whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act. The term ‘larger public interest’ needs to be understood in light of the above discussion which points that a ‘balancing test’ needs to be incorporated to see the appropriateness of discloser. There are certain basic principles which we need to keep in mind while balancing the rights which are relevant herein. E

40. That the right to information and right to privacy are at an equal footing. There is no requirement to take an a priori view that one right trumps other. Although there are American cases, which have taken the view that the freedom of speech and expression trumps all other rights in every case. However, in India we cannot accord any F such priority to the rights.

41. The contextual balancing involves ‘proportionality test’. [See K S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is to see whether the release of information would be necessary, depends on the information seeker showing the ‘pressing social need’ or G ‘compelling requirement for upholding the democratic values’. We can easily conclude that the exemption of public interest as occurring under Section 8(1)(j) requires a balancing test to be adopted. We need to distinguish two separate concepts i.e. “interest of the public” and “something in the public interest.” Therefore, the material distinction between the aforesaid concepts concern those matters which affect

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political, moral and material welfare of the public need to be distinguished from those for public entertainment, curiosity or amusement. Under Section 8(1)(j) of the RTI Act requires us to hold that only the former is an exception to the exemption. Although we must note that the majority opinion in K S Puttaswamy (supra) has held that the data privacy is part of the right to privacy, however, we need to note that the concept of data protection is still developing [refer Google Spain v. AEPD, C/131/12; Bavarian Lager v Commission, [2007] ECR II4523]. As we are not concerned with the aforesaid aspects, we need not indulge any more than to state that there is an urgent requirement for integrating the principles of data protection into the right to information jurisprudence.

42. Coming to the aspect of transparency, judicial independence and the RTI Act, we need to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.

43. It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. While applying the second step the concerned authority needs to balance these considerations as well.

44. In line with the aforesaid discussion, we need to note that following non-exhaustive considerations needs to be considered while assessing the ‘public interest’ under Section 8 of the RTI Act- a. Nature and content of the information b. Consequences of non-disclosure; dangers and benefits to public H

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A c. Type of confidential obligation. d. Beliefs of the confidant; reasonable suspicion e. Party to whom information is disclosed f. Manner in which information acquired B g. Public and private interests h. Freedom of expression and proportionality.

45. Having ascertained the test which is required to be applied while considering the exemption under Section 8(1)(j) of the RTI Act, C I may note that there is no requirement to elaborate on the factual nuances of the cases presented before us. Accordingly, I concur with the conclusions reached by the majority.

Ankit Gyan Reference and appeals disposed of. D