Is Supreme Court against RTI? Judges' property information 'personal'

Hyderabad: The Constitution Bench of Supreme Court on November 13 2019, held that "….information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information".

This is in the context of Subhash Chandra Agrawal's RTI application seeking whether judges submitted their assets report as resolved by them in 1997 Judicial Restatement'. He also wanted to know how many HC judges presented to Chief Justices of High Courts. The CPIO & First Appellate Authorities of Supreme Court refused it. Supreme Court strongly contested it before the Central Information Commission (CIC) which asked the apex court to disclose information on the ground that Chief Justice of India's office comes within the ambit of Act. In January 2009, the apex court had moved the Delhi High Court against CIC order contending that declaration of assets by its judges to the Chief Justice of India is "personal information" which cannot be revealed under the RTI act and "too much transparency can affect the independence of the judiciary". Single Bench of High Court on September 2, 2009, Justice Ravindra Bhat had upheld CIC's order and said Chief Justice of India's office comes within the ambit of RTI act and judges' assets be made public under the RTI Act.

The top court after that also challenged the single judge order before a division bench, and the High Court decided to constitute a unique three-judge bench to resolve the issue. The three-judge Bench in November 2009 had observed that the resolution passed by the Supreme Court judges in 1997 for declaring their assets to Chief Justice of India was binding on them and in January 2010 it held that the office of CJI comes within the ambit of the RTI Act.

Ultimately SC approached SC which stayed the order of HC and reserved it for adjudication. And after nine years, the Constitution Bench decided it, leaving the decision to CPIO again.

Four High Court Judges and Five Supreme Court Judges studied and analysed the scheme RTI Act, theme of Constitution, nuances of caselaw, jurisprudence of different Countries and listed out advise to the CPIO to reconsider the demand and give information only after adopting the process prescribed under Section 11(1), if he thinks that it is third party information.

Probably the answer could be 'yes' or 'no' and the 'number' of Judges if at all they submitted the assets reports. Hypothetically a 'no' & 'zero' could have closed the RTI application, and CIC would have nothing to do. But the SC spent more than a decade of its time and energy to fight and resist the disclosure of information about assets declaration of judges. What kind of message might this have conveyed to the entire administration and the people of the nation? It is loud and clear.

There is another parallel to this kind 12-year litigation with a common man, i.e., the RBI, where the applicant was made to suffer the litigant journey from CPIO to Supreme Court twice over the years. Whereas in this SC Judges assets case, citizen just completed only one round. The history records that not only the Government, the Supreme Court also fighting its citizen or justice seeker till the end of Constitutional Bench hearing. And for what: to deny the information about assets declaration. It is not for the protection of property but to completely hide the information. Does it mean that the citizen must understand high Constitutional Authorities like Supreme Court and RBI are not interested in giving even simple information also? Out of three appeals taken up by the five-member bench of the Supreme Court, the assets related information case should have been resolved within one month, or another month after first appellate authority remanded it. At least it should have ended after CIC ordered it.

The Supreme Court, which found the significance of transparency in SP Gupta case, directed disclosure in first Judges Case, created landmark precedents upholding right to information as an integral part of freedom of speech and expression, and essential for good governance, ultimately gave the law of disclosure of financial, criminal and educational background of every contesting candidate to the voters, should have respected the RTI Act and the institution of CIC formed under that law.

The SC raised several objections against the disclosure. The number of judges who submitted their assets report was considered 'confidential', not held by CJI in his official capacity, 'personal' information of judges, or it was the information contained by CJI in fiduciary capacity, no larger public interest in disclosure, it interferes with fearless functioning of judiciary, will be an affront to judicial independence that is basic structure of the Constitution, information was either 'held' by office of Registrar or office of CJI, who the CPIO cannot approach, etc. And these are the Constitutional issues! It was argued on behalf of Supreme Court that Information on assets relates to personal information, the disclosure of which has no bearing on any public activity or interest and is, therefore, exempt under Section 8(1)(j) of the RTI Act.

Similarly, information of prospective candidates who are considered for judicial appointments and elevation relates to their personal information, the disclosure of which would cause unwarranted invasion of an individual's privacy and serves no larger public interest.

The Bench directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. We can now hope that Subhash might get whether judges submitted assets declaration or not. It is doubtful whether he would get how many High Court judges declared assets to their respective Chief Justice.

These two aspects "… would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought, in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the RTI Act would come into operation. (Para 89 of judgment written by Justice Sanjiv Khanna, J, for three judges including the CJI)" The remanding the RTI request to CPIO of Supreme Court is with many caveats. Now it is the duty of the CPIO to examine, whether details and contents of personal assets in the declaration are called for, if so examine public interest, if found public interest demands disclosure, ask the individual judges, who are third parties, adopt procedure under Section 11(1) give notices to them, get their opinion, if they do not agree to share, provide them with another notice to justify the same, if found not justified, give third notice that such information was decided to be disclosed, and give the individual judges to approach First Appellate Authority contesting not to offer, or exhaust remedies with CIC and Constitutional remedies before HC and SC.

Fantastic. He must study the entire judgements and catena of precedents quoted, and apply his wisdom as to whether to give or not? The best thing for a subordinate like CPIO is to please his bosses and leave Agrawals to their fate. If they have money and lawyers, they can pursue another round of litigation.