TMI Blog2019 (11) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... - This is equally true and would apply to the High Courts in the country as Article 214 states that there shall be a High Court for each State and Article 216 states that every High Court shall consist of a Chief Justice and such other judges as the President of India may from time to time deem it appropriate to appoint. INFORMATION AND RIGHT TO INFORMATION UNDER THE RTI ACT - HELD THAT:- When information is accessible by a public authority, that is, held or under its control, then the information must be furnished to the information seeker under the RTI Act even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act, 1923, that restricts or prohibits access to information by the public - Section 22 of the RTI Act is a key that unlocks prohibitions/limitations in any prior enactment on the right of a citizen to access information which is accessible by a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of the public authority to access information. In other words, a private body will be entitled to the same protection as is available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th and honesty required on the part of the fiduciary with reference to a particular transaction(s) due to moral, personal or statutory responsibility of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary. This may arise due to superior knowledge and training of the fiduciary or the position he occupies. Ordinarily the relationship between the Chief Justice and judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise. Right to Privacy under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act - HELD THAT:- The personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabiliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and purpose of the protection and the right to access information and in Section 11(1), the possible harm and injury to the third party. It imports a discretionary value judgment on the part of the PIO and the appellate forums as it mandates that any conclusion arrived at must be fair and just by protecting each right which is required to be upheld in public interest. There is no requirement to take a fortiori view that one trumps the other. JUDICIAL INDEPENDENCE - HELD THAT:- It is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pratibha Jain, AOR, Mr. Sunil Kumar Verma, AOR, Mr. Sibo Sankar Mishra, AOR, Ms. Rachana Srivastava, AOR, Mr. Sunil Fernandes, AOR, Ms. Aruna Mathur, Adv., Mr. Avneesh Arputham, Adv., Ms. Anuradha Arputham, Adv., Ms. Geetanjali, Adv., for M/s. Arputham Aruna And Co., Mr. Ravi Prakash Mehrotra, AOR, Mr. Raja Chatterjee, Adv., Runamoni Bhuyan, Adv., Mr. Piyush Sachdev, Adv., Mr. Adeel Ahmed, Adv., Mr. Satish Kumar, AOR, Mr. M. P. Vinod, AOR, Mr. P.H. Parekh, Sr. Adv., Ms. Tanya Choudhary, Adv., Ms. Pratyusha Priyadarshini, Adv., Ms. Nitika Pandey, Adv., Mr. Paritosh Arora, Adv., Mr. Nikhil Ramdev, Adv., for M/s. Parekh Co., Mr. Krishnanand Pandeya, AOR, Mr. Anupam Raina, AOR, Mr. Sunando Raha, Adv., Ms. C. K. Sucharita, AOR, Mr. R.N. Venjrani, Sr. Adv., Mr. Hitesh Kumar Sharma, Adv., Mr. S.K. Rajora, Adv., Mr. Naresh K. Sharma, AOR JUDGMENT SANJIV KHANNA, J. This judgment would decide the afore-captioned appeals preferred by the Central Public Information Officer ( CPIO for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010), and Secretary General, Supreme Court of India (appellant in Civil Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A. P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal Another. The CIC has also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [ ] Re Point Nos. 1 2 Whether the CJI is a public authority and whether the CPIO, of the Supreme Court of India, is different from the office of the CJI; and if so, whether the Act covers the office of the CJI; Answer: The CJI is a public authority under the Right to Information Act and the CJI holds the information pertaining to asset declarations in his capacity as Chief Justice; that office is a public authority under the Act and is covered by its provisions. Re Point No. 3: Whether asset declaration by Supreme Court Judges, pursuant to the 1997 Resolution are information , under the Right to Information Act, 2005. Answer: It is held that the second part of the respondent's application, relating to declaration of assets by the Supreme Court Judges, is information within the meaning of the expression, under Section 2 (f) of the Act. The point is answered accordingly; the information pertaining to declarations given, to the CJI and the contents of such declaration are information and subject to the provisions of the Right to Information Act. Re Point No. 4: If such asset declarations are informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties were ad-idem with regard to point Nos. 1 and 2 as the CPIO, Supreme Court of India had fairly conceded and accepted the conclusions arrived at by the learned Single Judge and, thus, need not be disturbed. Nevertheless, the Full Bench had felt it appropriate to observe that they were in full agreement with the reasoning given by the learned Single Judge. The expression public authority as used in the RTI Act is of wide amplitude and includes an authority created by or under the Constitution of India, which description holds good for the Chief Justice of India. While the Chief Justice of India is designated as one of the competent authorities under Section 2(e) of the RTI Act, the Chief Justice of India besides discharging his role as head of the judiciary also performs a multitude of tasks assigned to him under the Constitution and various other enactments. In the absence of any indication that the office of the Chief Justice of India is a separate establishment with its own CPIO, it cannot be canvassed that the office of the CPIO of the Supreme Court is different from the office of the CJI (that is, the Chief Justice of India). Further, neither side had made any submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r vide order dated 26th November, 2010, the operative portion of which reads as under: 12. Having heard the learned Attorney General and the learned counsel for the respondent, we are of the considered opinion that a substantial question of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of Hon ble the Chief Justice of India under the Constitution and the independence of the Judiciary in the scheme of the Constitution on the one hand and on the other, fundamental right to freedom of speech and expression. Right to information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , information of prospective candidates who are considered for judicial appointments and/or 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. Further, the information on assets is voluntarily declared by the judges to the Chief Justice of India in his fiduciary capacity as the pater familias of the judiciary. Consultations and correspondence between the office of the Chief Justice of India and other constitutional functionaries are made on the basis of trust and confidence which ascribes the attributes of a fiduciary to the office of the Chief Justice. Information relating to the appointment of judges is shared among other constitutional functionaries in their fiduciary capacities, which makes the information exempt under Section 8(1)(e) of the RTI Act. The respondent, on the other hand, has by relying on the dicta in State of U.P. v. Raj Narain and Others (1975) 4 SCC 428 and S. P. Gupta (supra) argued that disclosure of the information sought does not undermine the independence of the judiciary. Openness and transparency in functioning would better secure the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT OF INDIA AND THE CHIEF JUSTICE OF INDIA ARE TWO SEPARATE PUBLIC AUTHORITIES? 11. Terms competent authority and public authority have been specifically defined in clauses (e) and (h) to Section 2 of the RTI Act, which read: (e) competent authority means- (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v) the administrator appointed under article 239 of the Constitution; xx xx xx (h) public authority means any authority or body or institution of self-government established or cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selfgovernment established or constituted by notification issued or order made by the appropriate Government. 13. Article 124 of the Constitution, which relates to the establishment and constitution of the Supreme Court of India, states that there shall be a Supreme Court of India consisting of a Chief Justice and other judges. It is undebatable that the Supreme Court of India is a public authority , as defined vide clause (h) to Section 2 of the RTI Act as it has been established and constituted by or under the Constitution of India. The Chief Justice of India as per sub-clause (ii) in clause (e) to Section 2 is the competent authority in the case of the Supreme Court. Consequently, in terms of Section 28 of the RTI Act, the Chief Justice of India is empowered to frame rules, which have to be notified in the Official Gazette, to carry out the provisions of the RTI Act. 14. The Supreme Court of India, which is a public authority , would necessarily include the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The office of the Chief Justice or for that matter the judges is not separate from the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device; (j) right to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; 17. Information as per the definition clause is broad and wide, as it is defined to mean material in any form with amplifying words including records (a term again defined in widest terms vide clause (i) to Section 2 of the RTI Act), documents, emails, memos, advices, logbooks, contracts, reports, papers, samples, models, data material held in elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force or under the Official Secrets Act, 1923, that restricts or prohibits access to information by the public. In view of the non-obstante clause in Section 22 Section 22 of the RTI Act reads: 22. Act to have overriding effect. -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act, any prohibition or condition which prevents a citizen from having access to information would not apply. Restriction on the right of citizens is erased. However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private bodies. Rather, clause (f) to Section 2 upholds and accepts the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - that just passes through a public authority; or - 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, will, it is suggested, lack the requisite assumption by the public authority of responsibility for or dominion over the information that is necessary before it can be said that the public authority can be said to hold the information. Thereafter, the Full Bench had observed: 59. Therefore, according to Coppel the word held suggests a relationship between a public authority and the information akin to that of an ownership or bailment of goods. In the law of bailment, a slight assumption of control of the chattel so deposited will render the recipient a depository (see Newman v. Bourne and Hollingsworth (1915) 31 T.L.R. 209). Where, therefore, information has been created, sought, used or consciously retained by a public authority will be information held within the meaning of the Act. However, if the information is sent to or deposited with the public authority which does not hold itself out as willing to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic authority, disclosure of which may also help in containing or discouraging corruption [enumerated in clauses (b) and (c) of Section 4(1) of the RTI Act]. (ii) Other information held by public authority [that is, all information other than those falling under clauses (b) and (c) of Section 4(1) of the RTI Act]. (iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force. Information under the third category does not fall within the scope of the RTI Act. Section 3 of the RTI Act gives every citizen, the right to information held by or under the control of a public authority, which falls either under the first or second category. In regard to the information falling under the first category, there is also a special responsibility upon the public authorities to suo motu publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the RTI Act. There is no such obligation to publish and disseminate the other informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xx 67. The Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the meaning of Section 2(h) of the Act. As a public authority, the Registrar of Cooperative Societies has been conferred with lot of statutory powers under the respective Act under which he is functioning. He is also duty-bound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the society, to the extent permitted by law. The Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xx 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; 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; AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; xx xx xx 25. An attempt to resolve conflict and disharmony between these aspects is evident in the exceptions and conditions on access to information set out in Sections 8 to 11 of the RTI Act. At the outset, we would reproduce Section 8 of the RTI Act, which reads as under: 8. (1) Notwithstanding anything conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 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. (3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. Sub-section (1) of Section 8 begins with a non-obstante clause givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(2) by the public authority is not a mandate or compulsion but is in the form of discretionary disclosure. Section 8(2) acknowledges and empowers the public authority to lawfully disclose information held by them despite the exemptions under sub-section (1) to Section 8 if the public authority is of the opinion that the larger public interest warrants disclosure. Such disclosure can be made notwithstanding the provisions of the Official Secrets Act. Section 8(2) does not create a vested or justiciable right that the citizens can enforce by an application before the PIO seeking information under the RTI Act. PIO is under no duty to disclose information covered by exemptions under Section 8(1) of the RTI Act. Once the PIO comes to the conclusion that any of the exemption clauses is applicable, the PIO cannot pass an order directing disclosure under Section 8(2) of the RTI Act as this discretionary power is exclusively vested with the public authority. 28. Section 9 provides that without prejudice to the provisions of Section 8, a request for information may be rejected if such a request for providing access would involve an infringement of copyright subsisting in a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 sub-section (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. (4) A notice given under sub-section (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. We shall subsequently interpret and expound on Section 11 of the RTI Act. 31. At the present stage, we would like to quote from Aditya Bandopadhyay (supra) wherein this Court, on the aspect of general principles of interpretation while deciding the conflict between the right to information and exclusions under Section 8 to 11 of the RTI Act, had observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of information and right to information under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide advice or opinion to an applicant, nor required to obtain and furnish any opinion or advice to an applicant. The reference to opinion or advice in the definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner vis- -vis another partner and an employer vis - vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee s conduct or acts are found to be prejudicial to the employer. 41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to the students who participate in an examination, as a Government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words information available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right, that is the right to protect privacy and confidentiality by barring the furnishing of information to third parties except when the public interest as prescribed so requires. In this way, the RTI Act complements both the right to information and the right to privacy and confidentiality. Further, it moderates and regulates the conflict between the two rights by applying the test of larger public interest or comparative examination of public interest in disclosure of information with possible harm and injury to the protected interests. 33. In Reserve Bank of India (supra) this Court had expounded upon the expression fiduciary relationship used in clause (e) to subsection (1) of Section 8 of the RTI Act by referring to the definition of fiduciary relationship in the Advanced Law Lexicon, 3rd Edition, 2005, which reads as under: 57. [...] Fiduciary relationship. - A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the fiduciary relationship. Fiduciary relationship usually arises in one of the four situations: (1) when one person places trust in the faithful integrity of another, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other and not cause harm or damage, but the fiduciary relationship casts a positive obligation and demands that the fiduciary should protect the beneficiary and not promote personal self-interest. A Civil Appeal No. 10044 of 2010 Ors. Page 45 of 108 fiduciary s loyalty, duties and obligations are stricter than the morals of the market place and it is not honesty alone, but the punctilio of an honour which is the most sensitive standard of behaviour which is applied {See Opinion of Cardozo, J. in Meinhard v. Salmon (1928) 164 N.E. 545, 546}. Thus, the level of judicial scrutiny in cases of fiduciary relationship is intense as the level of commitment and loyalty expected is higher than non-fiduciary relationships. Fiduciary relationship may arise because of the statute which requires a fiduciary to act selflessly with integrity and fidelity and the other party, that is the beneficiary, depends upon the wisdom and confidence reposed in the fiduciary. A contractual, statutory and possibly all relationships cover a broad field, but a fiduciary relationship could exist, confined to a limited area or an act, as relationships can have several facets. Thus, relationships can be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, as will be noticed below. 37. Breach of confidentiality has an older conception and was primarily an equitable remedy based on the principle that one party is entitled to enforce equitable duty on the persons bound by an obligation of confidentiality on account of the relationship they share, with actual or constructive knowledge of the confidential relationship. Conventionally a conception of equity, confidentiality also arises in a contract, or by a statute. See Prince Albert v. Strange, (1849) 1 Mac. G 25, and Lord Oliver of Aylmerton, Spycatcher: Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip Coppel, Information Rights, Law and Practice (4th Edition Hart Publishing 2014)]. Contractually, an obligation to keep certain information confidential can be effectuated expressly or implicitly by an oral or written agreement, whereas in statutes certain extant and defined relationships are imposed with the duty to maintain details, communication exchanged and records confidential. Confidentiality referred to in the phrase 'breach of confidentiality' was initially popularly perceived and interpreted as confid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential has to be determined as a matter of fact. The test to be applied is that of a reasonable person, that is, information must be such that a reasonable person would regard it as confidential. Confidentiality of information also has reference to the quality of information though it may apply even if the information is false or partly incorrect. However, the information must not be trivial or useless. 38. While previously information that could be considered personal would have been protected only if it were exchanged in a confidential relationship or considered confidential by nature, significant developments in jurisprudence since the 1990 s have posited the acceptance of privacy as a separate right and something worthy of protection on its own as opposed to being protected under an actionable claim for breach of confidentiality. A claim to protect privacy is, in a sense, a claim for the preservation of confidentiality of personal information. With progression of the right to privacy, the underlying values of the law that protects personal information came to be seen differently as the courts recognised that unlike law of confidentiality that is based upon duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conveyed his affairs to another had thereby lost his privacy rights. Prof. Tribe states in his treatise (see p. 1391) that this theory reveals alarming tendencies because the Court has gone back to the old theory that privacy is in relation to property while it has laid down that the right is one attached to the person rather than to property. If the right is to be held to be not attached to the person, then we would not shield our account balances, income figures and personal telephone and address books from the public eye, but might instead go about with the information written on our foreheads or our bumper stickers . He observes that the majority in Miller confused privacy with secrecy and that even their notion of secrecy is a strange one, for a secret remains a secret even when shared with those whom one selects for one's confidence . Our cheques are not merely negotiable instruments but yet the world can learn a vast amount about us by knowing how and with whom we have spent our money. Same is the position when we use the telephone or post a letter. To say that one assumes great risks by opening a bank account appeared to be a wrong conclusion. Prof. Tribe as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) the main judgment (authored by D.Y. Chandrachud, J.) has referred to provisions of Section 8(1)(j) of the RTI Act to highlight that the right to privacy is entrenched with constitutional status in Part III of the Constitution, thus providing a touchstone on which validity of executive decisions can be assessed and validity of laws can be determined vide judicial review exercised by the courts. This observation highlights the status and importance of the right to privacy as a constitutional right. The ratio as recorded in the two concurring judgments of the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.) are similar. It is observed that privacy involves a person s right to his physical body; right to informational privacy which deals with a person s mind; and the right to privacy of choice which protects an individual s autonomy over personal choices. While physical privacy enjoys constitutional recognition in Article 19(1)(d) and (e) read with Article 21, personal informational privacy is relatable to Article 21 and right to privacy of choice is enshrined in Articles 19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the concurring opinion, there is a refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation which can be confidential or private (or held in a fiduciary relationship) when larger public interest or public interest in disclosure outweighs the protection or any possible harm or injury to the interest of the third party. 43. Privacy and confidentiality encompass a bundle of rights including the right to protect identity and anonymity. Anonymity is where an individual seeks freedom from identification, even when and despite being in a public space. In K.S. Puttaswamy (supra) reference is made to Spencer v. R. 2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43 which had set out three key elements of informational privacy: privacy as secrecy, privacy as control, and privacy as anonymity, to observe: 214. [ ] anonymity may, depending on the totality of the circumstances, be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure. xx xx xx [ ] The disclosure of this information will often amount to the identification of a user with intim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protect identity and anonymity would be identically subjected to the public interest test. 47. Clause (j) to sub-section (1) of Section 8 of the RTI Act specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest. We would like to, however, clarify that in their treatment of this exemption, this Court has treated the word information which if disclosed would lead to invasion of privacy to mean personal information, as distinct from public information. This aspect has been dealt with in the succeeding paragraphs. 48. As per Black s Law Dictionary, 8th Edition, the word personal means of or affecting a person or of or constituting personal property . In Collins Dictionary of the English Language, the word personal has been defined as under: 1. Of or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. 51. This test had been adopted in several English decisions including decision of the House of Lords in Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22 wherein Lord Hope of Craighead had further elucidated that the definition is taken from the definition of privacy in the United States, where the right to privacy is invaded if the matter which is publicised is of a kind that (a) would be highly offensive to a reasonable person and (b) not of legitimate concern to the public. Law of privacy in Campbell (supra), it was observed, was not intended for the protection of the unduly sensitive and would cover matters which are offensive and objectionable to a reasonable man of ordinary sensibilities who must expect some reporting of his daily activities. The mind that has to be examined is not that of a reader in general, but that of the person who is affected by the publicising/dissemination of his information. The question is what a reasonable person of ordinary sensibilities would feel if he/she is subjected to such publicity. Only w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 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. (emphasis supplied) 55. In Canara Bank v. C.S. Shyam and Another (2018) 11 SCC 426, the applicant had sought information on parameters with regard to transfer of clerical staff with details of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive. 60. In Arvind Kejriwal v. Central Public Information Officer and Another AIR 2012 Delhi 29 , the Delhi High Court had examined and interpreted Section 11 of the RTI Act in the following manner: 12. Section 11(1), (2), (3) and (4) are the procedural provisions which have to be complied with by the PIO/appellant authority, when they are required to apply the said test and give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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. Such examples can be multiplied. Furthermore, the difficulties and anomalies pointed out can even arise when the word or is read as and in cases where the information is furnished by the third party. For example, for being enrolled as a BPL family, information may have been furnished by the third party who is in the list of BPL families. Therefore, the reasonable and proper manner of interpreting Section 11(1) is to keep in mind the test stipulated by the proviso. It has to be examined whether information can be treated and regarded as being of confidential nature, if it relates to a third party or has been furnished by a third party. Read in this manner, 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to matters of public concern, which expression is vastly different from news value or news to satiate public curiosity. Public concern relates to matters which are an integral part of free speech and expression and entitlement of everyone to truth and fair comment about it. There are certain circumstances where the public interest in maintaining confidentiality may be outweighed by the public interest in disclosure and, thus, in common law, it may not be treated by the courts as confidential information. These aspects would be relevant under the proviso to Section 11(1) of the RTI Act. 62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of three exceptions and more when it incorporates public interest test. It states that information, otherwise treated confidential, can be disclosed if the public interest in disclosure outweighs the possible harm and injury to the interest of such a third party. The expression third party has been defined in clause (n) to Section 2 to mean a person other than the citizen making a request for information and includes a public authority. Thus, the scope of information under Section 11 is much broader than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles. It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The court will not prevent the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court, while examining Section 123 of the Evidence Act, 1872, had paraphrased the earlier judgment of the Constitution Bench of this Court penned down by Fazal Ali, J. in S.P. Gupta (supra) (the first Judge s case) in which the question of privilege against disclosure of correspondence between the Chief Justice of Delhi High Court, Chief Justice of India and the Law Minister of the Union had arisen, in the following words: 41. [...] in a democracy, citizens are to know what their Govt. is doing. No democratic Govt. can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Govt. It is only if the people know how the Govt. is functioning and that they can fulfill their own democratic rights given to them and make the democracy a really effective participatory democracy. There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration. By disclosure of information in regard to the functioning of the Govt. must be the rule and secrecy can be exceptionally justified only where strict requirement of public info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual's contribution to discussion, or vote in the Cabinet guarantees most favourable and conducive atmosphere to express view formally It was held that the Ministers and the government servants were required to maintain secrecy and confidentiality in the performance of the duties of the office entrusted by the Constitution and the laws. Elucidating on the importance of confidentiality, it was observed: 34. [...] Confidentiality and collective responsibility in that scenario are twins to effectuate the object of frank and open debate to augment efficiency of public service or effectivity of collective decision to elongate public interest. To hamper and impair them without any compelling or at least strong reasons, would be detrimental to the efficacy of public administration. It would tantamount to wanton rejection of the fruits of democratic governance, and abdication of an office of responsibility and dependability. Maintaining of top secrecy of new taxation policies is a must but leaking budget proposals a day before presentation of the budget may be an exceptional occurrence as an instance. 66. Thereafter, reference was made to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinions. therefore, it may be that at that level the deliberations and in exceptional cases that class or category or documents get protection, in particular, on policy matters. Therefore, the court would be willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy, high sensitivity is involved. xx xx xx 54. [ ] In President Nixon's case, the Supreme Court of the United States held that it is the court's duty to construe and delineate claims arising under express powers, to interpret claims with respect to powers alleged to derive from enumerated powers of the Constitution, In deciding whether the matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is the responsibility of the court as ultimate interpreter of the Constitution 68. At the same time, it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as considered; the subject matter of consideration; the relevance of the documents and that degree of likelihood that the document will be of importance in the litigation. In striking the balance, the court may always, if it thinks it necessary, itself inspect the documents. It is, therefore the constitutional, legitimate and lawful power and duty of this Court to ensure that powers, constitutional, statutory or executive are exercised in accordance with the Constitution and the law. This may demand, though no doubt only in limited number of cases, yet the inner workings of government may be exposed to public gaze. The contentions of Attorney General and Solicitor General that the inner workings of the government would be exposed to public gaze, and that some one who would regard this as an occasion without sufficient material to ill-informed criticism is no longer relevant. Criticism calculated to improve the nature of that working as affecting the individual citizen is welcome. 69. The aforesaid passages highlight the relevance of confidentiality in the government and its functioning. However, this is not to state that plea of confidentiality is an absolute bar, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71. In Union of India v. Association for Democratic Reforms and Another (2002) 5 SCC 294 recognising the voters right to know the antecedents of the candidates and the right to information which stems from Article 19(1)(a) of the Constitution, it was held that directions could be issued by the Court to subserve public interest in creating an informed citizenry, observing: 46. [ ] The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of Civil and Political Rights which is as under: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng public interests has to be undertaken in both sections, albeit under Section 8(1)(j) the comparison is between public interest behind the exemption, that is personal information or invasion of privacy of the individual and public interest behind access to information, whereas the test prescribed by the proviso to Section 11(1) is somewhat broader and wider as it requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of possible harm and injury to the third party on disclosure. 74. This Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another (2012) 13 SCC 61 has held that the phrase public interest in Section 8(1)(j) has to be understood in its true connotation to give complete meaning to the relevant provisions of the RTI Act. However, the RTI Act does not specifically identify factors to be taken into account in determining where the public interest lies. Therefore, it is important to understand the meaning of the expression public interest in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e protection of privacy. The object and purpose behind the specific exemption vide clause (j) to Section 8(1) is to protect and shield oneself from unwarranted access to personal information and to protect facets like reputation, honour, etc. associated with the right to privacy. Similarly, there is a public interest in the maintenance of confidentiality in the case of private individuals and even government, an aspect we have already discussed. 76. The public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person. In an article Freedom of Information and the Public Interest: the Commonwealth experience published in the Oxford University Commonwealth Law Journal, Published online on 28th August, 2017 the factors identified as favouring disclosure, those against disclosure and lastly those irrelevant for consideration of public interest have been elucidated as under: it is g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure. It will vary according to the information sought and all circumstances of the case that bear upon the public interest in maintaining the exemptions and those in disclosing the information must be accounted for to judge the right balance. Public interest is not immutable and even time-gap may make a significant difference. The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the possible harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties. 79. The last aspect in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess, especially those whose candidature/eligibility stands negated; and (iv) potential chilling effect on future candidates given the degree of exposure and public scrutiny involved. See: How Transparent is Transparent Enough?: Balancing Access to Information Against Privacy in European Judicial Selections by Alberto Alemanno in Michal Bobek (ed.), Selecting Europe s Judges, 2015 Edition. These arguments have become subject matter of considerable debate, if not outright criticism at the hands of jurists and authors. Kate Malleson, Parliamentary Scrutiny of Supreme Court Nominees: A View from the United Kingdom Osgoode Hall Law Journal (2007) 44, 557. Yet there are those who have expressed cynicism about the interview process undertaken by the Judicial Service Commission (JSC) in recommending judges for appointment in South Africa, by pointing out the precariousness and the chilling effect it has on prospective candidates and consequently the best candidates often do not apply. WH Gravett, Towards an algorithmic model of judicial appointment: The necessity for radical revision of the Judicial Service Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody a right to access any information without explaining whatsoever as to why she or he requires the information. This had to be balanced, with the need to incentivise people to furnish private information, where such information is required for facilitating the government machinery, and therefore, considerations of confidentiality are applied as the person furnishing information must be made aware that the information would not be unhesitatingly divulged to others, including busybodies, for no particular reason. This facilitates the exercise of power and performance of functions of the state functionaries. In court matters under Rule 53, concerns of confidentiality could be addressed by imposing stringent and restrictive conditions on the right to access information, including furnishing of confidentiality undertakings for restraining the divulgence of details to third parties. 83. The United Kingdom s Data Protection Act, 2018 grants class exemption to all personal data processed for the purpose of assessing a person s suitability for judicial office, from certain rights including the right of the data subject to be informed, guaranteed under the European Union Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely include personal data of the candidates, viz. factual elements concerning the candidates professional experience and qualifications and the Panel s assessment of the candidate s competences and, therefore, access to relevant documents is denied in order to protect the privacy and integrity of the individual. Article 4(1)(b), Regulation No 1049/2001 However, a part of these opinions which do not contain personal data and provide a description of the procedure adopted and criteria applied by the Panel have been released as Activity Reports in the framework of partial access to such information. Opinions that are unfavourable to the appointment of the candidates will be exempt from disclosure as they can hamper commercial interests of the candidates in their capacity as legal practitioners, First indent of Article 4(2), Regulation No 1049/2001 whereas positive opinions are exempted from disclosure as such opinions can lead to comparison and public scrutiny of the most and least favoured qualities of the successful candidates, potentially interfering with the proceedings of the Court of Justice. Second indent of Article 4(2), Regulation No 1049/2001 Lastly, disclosure of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 592 it was held that the right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. 953. The balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual. This is important because it was submitted by the learned Attorney General that the proceedings of NJAC will be completely transparent and any one can have access to information that is available with NJAC. This is a rather sweeping generalisation which obviously does not take into account the privacy of a person who has been recommended for appointment, particularly as a Judge of the High Court or in the first instance as a Judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness. 481. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary. 482. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy-bodies in the function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Judge of the High Court of Australia who memorably said: [An] independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed. It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary. 714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips said: In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State. xx xx xx 726. Generally speaking, therefore, the independence of the judiciary is manife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withhold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of. ......................................CJI (RANJAN GOGOI) ........................................J. (N.V. RAMANA) ........................................J. (DR. D.Y. CHANDRACHUD) ........................................J. (DEEPAK GUPTA) ........................................J. (SANJIV KHANNA) xxx xxx xxx xxx xxx JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 came to be dismissed vide order dated 25.03.2009 by the first app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessity 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 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 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 invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) 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; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (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 sub-section (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. (4) A notice given under sub-section (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. 17. The mandate under Section 11 of the RTI Act enshrines the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to define its meaning by 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationship is covered under Section 8(1)(e) and the exemption from private information is contained under Section 8(1)(j) of the RTI Act. 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 . 27. Breach of confidence was not an absolute right and public inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 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, inclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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. 2. Impact on private life. 3. Improper conduct. 4. Criminality 5. Place where the activity occurred or the information was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 II-4523]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DEX A Introduction B Reference to the Constitution Bench C Submissions of Counsel D Relevant statutory provisions E S P Gupta, candour and class immunity F Judicial independence F.1 Judicial accountability G Fiduciary relationship H The right to privacy and the right to know I Conclusion J Directions A Introduction The backdrop 1. This batch of three civil appeals Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/2010 raises questions of constitutional importance bearing on the right to know, the right to privacy and the transparency, accountability and independence of the judiciary. 2. In the first of the appeals Civil Appeal no 10044 of 2010 ( the appointments cas ), the Central Public Information Officer CPIO of the Supreme Court of India challenges an order dated 24 November 2009 of the Central Information Commission CIC . The order directs the CPIO to provide information sought by the respondent in application under the Right to Inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India v Subhash Chandra Agarwal Anr, Writ Petition (C) 288/2009 dated 2 September 2009 and the CIC dated 6 January 2009 Appeal no CIC/WB/A/2008/00426 directing the disclosure of information. On 10 November 2007, the respondent filed an application seeking a copy of the resolution dated 7 May 1997 of the judges of the Supreme Court requiring every sitting judge, and all future judges upon assuming office, to make a declaration of assets in the form of real estate or investments held in their names or the names of their spouses or any person dependant on them to the Chief Justice of the Court within a reasonable time. The respondent also requested information on any such declaration of assets etc to respective Chief Justices in State . While the appellant provided a copy of the resolution dated 7 May 1997, the CPIO declined (by an order dated 30 November 2007) to provide information concerning the declaration of assets by judges of the Supreme Court and the High Court on the ground that the Registry of the Supreme Court did not hold it. The information pertaining to the declaration of assets by High Court judges, the appellant stated, were in the possession of the Chief Justices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. and directed the appellant to provide the information sought by the respondent. The appellant instituted a writ petition Writ Petition (C) 288/2009 before the Delhi High Court. On 2 September 2009, a Single Judge of the High Court dismissed the petition holding, inter alia, that the declaration of assets furnished by the judges of the Supreme Court to the Chief Justice of India and its contents constituted information , subject to the provisions of the RTI Act. The Single Judge held that: (i) judges of the Supreme Court hold an independent office; (ii) there exist no hierarchies in judicial functions; (iii) the Chief Justice of India does not hold such information in a fiduciary capacity; and (iv) the information sought by the respondent was not exempt under Section 8 (1)(e). In a Letters Patent Appeal, the Full Bench of the Delhi High Court upheld the decision of the Single Judge. The appellant has challenged the decision of the Full Bench. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions of Counsel 7. Mr K K Venugopal, Attorney General for India appearing on behalf of the appellant made the following submissions: (i) The present case is not covered by the decision of this Court in S P Gupta v Union of India 1981 Supp SCC 87 , which is based on distinguishable facts. The decision in S P Gupta does not consider the relationship between the restrictions on the right to know and the restrictions existing under Article 19 (2) of the Constitution. Once Article 19(1)(a) is attracted, the restrictions under Article 19 (2) become applicable. The RTI Act came into force in 2005 and lists out the rights and restrictions on the right to information. The provisions of the RTI Act must be construed in a manner which makes it consistent with constitutional values including the independence of the judiciary; (ii) Information of which disclosure is sought under Section 2 (f) of the RTI Act, includes only that information which is in a physical form and which is already in existence and accessible to a public authority under law. The judge can decide to disclose assets voluntarily and place relevant information in the public domai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfidence, complete good faith, integrity and fidelity. Therefore, disclosure of such information is exempt under Section 8 (1)(e); (viii) The disclosure of correspondence relating to conduct, character, integrity and competence of a judge may cause irreparable loss to their reputation, violate their right to privacy and adversely affect their functioning. There is also no remedy available to a judge for the comments made in the appointment process as the Chief Justice of India along with other judges are protected from civil/criminal proceedings under Section 3(1) of the Judges (Protection) Act 1985. While regulating the disclosure of information, the Supreme Court is required to balance the right of an individual to reputation and privacy under Article 21 and the right to information of third-party parties under Article 19(1)(a). The doctrine of proportionality has to be applied to resolve the conflict between the two rights and the right to reputation and privacy of a judge should prevail over the right to information of third parties; and (ix) Legislation and rules with respect to disclosure of assets and liabilities of public servants do not provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, information otherwise held by a public authority cannot be excluded from disclosure unless it falls under the exemptions laid down in Section 8 or relates to an institution excluded under Section 24 Section 24 - Act not to apply to certain organisations (1)Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request. (2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th any public activity or interest. Hence, the information sought is not exempt under Section 8 (1)(j); (vii) There exists no fiduciary relationship between those who are vested with the responsibility of determining whether an appointee is suitable for elevation as a judge and the appointee herself. The duty of a public servant is to act in the interest of the public and not in the interest of another public servant. The entire process of consultation and making information available to the members of the collegium regarding credentials and the suitability of the appointee is a matter of public interest. Further, when judges act in their official capacity in compliance with the 1997 resolution and disclose their assets, it cannot be said that the Chief Justice of India acts in a fiduciary capacity for the judges. The Chief Justice of India and other members of the collegium discharge official duties vested in them by the law and the information sought is not exempt under Section 8(1)(e). Even if some part of the information is personal, that part can be severed after due examination on a case to case basis under Section 10; and (viii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, Directly or indirectly by finds provided by the appropriate Government; (j) right to information means the right to information accessible under the Act which is held by or under the control of any public authority and includes the rights to (i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; 3. Right to information. Subject to the provisions of this Act, all citizens shall have the right to information. 11. Both the terms public authority and information have been broadly defined. Section 2(j) which defines the right to information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted by virtue of the Constitution and consists of judges, of which the Chief Justice is the head. This however, does not mean that the Supreme Court and the Chief Justice are two separate public authorities within the RTI Act. 14. The term information under Section 2(f) has been defined broadly to include any material in any form . The word including denotes the intention of the Parliament to provide a non-exhaustive list of materials that fall within the ambit of the sub-clause. The sub-clause includes information relating to any private body which can be accessed by a public authority under any law for the time being in force . The import of this phrase is that information relating to a third party is included only where the requisite pre-conditions of any law in force to access such information is satisfied. The right sought to be exercised and information asked for should fall within the scope of information and right to information as defined under the Act. The information sought must be in existence and must be held or under the control of the public authority. 15. Section 8(1) begins with a non-obstante phrase Notwithstanding anythi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of correspondences concerning the appointment process of judges. 18. Opposing the submission, Mr K K Venugopal, learned Attorney General for India appearing on behalf of the appellant, urged that the decision of this Court in S P Gupta was based on a factually distinguishable situation. The Court in that case was concerned with the disclosure of the correspondence concerning the appointment process for the purpose of adjudicating the case before it. Moreover the judge whose appointment was in issue was a party to the case. The court did not address the potential harm to public interest by the disclosure of correspondence in all circumstances. The Attorney General contended that the decision assessed the right to know in a passing observation and contrary to the submission of the respondent, it established a restriction on the disclosure of personal information. 19. In S P Gupta, this Court was concerned with two issues: (i) the initial appointment of additional judges and their reappointment on the expiry of their terms; and (ii) the transfer of High Court judges and the Chief Justices of the High Courts. Among the issues involved in the proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the Chief Justice of India, the Chief Justice of Delhi and the Law Minister concerning the decision to not continue Justice S N Kumar as an additional Judge of the Delhi High Court for another full term. 22. Mr K K Venugopal, learned Attorney General for the Union of India sought to distinguish the decision in S P Gupta by contending that the order of disclosure was made in the specific context of Sections 123 and 162 162. Production of documents.-A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility . of the Indian Evidence Act and in respect of judicial proceedings to which Justice S N Kumar was a party. Hence he urged that the decision does not establish the duty to disclose the correspondence in all circumstances. Justice S N Kumar had actively participated in the proceedings before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President so as to preclude its disclosure by virtue of Article 74(2). The Court rejected this contention and held that any advice tendered by the Council of Ministers would be based on the views expressed by the two Chief Justices and their views would not form part of the advice tendered. In this view, the material on the basis of which the Council of Ministers formed a view and subsequently tendered the same to the President would not constitute advice protected under Article 74(2). Justice Bhagwati held: 61 The advice is given by the Council of Ministers after consultation with the Chief Justice of the High Court and the Chief Justice of India. The two Chief Justices are consulted on full and identical facts and their views are obtained and it is after considering those views that the Council of Ministers arrives at its decision and tenders its advice to the President. The views expressed by the two Chief Justices precede the formation of the advice and merely because they are referred to in the advice which is ultimately tendered by the Council of Ministers, they do not necessarily become part of the advice. What is protected against disclosure under clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d access to relevant evidence. (Emphasis supplied) 26. The Court held that the nature of the proceeding in which the disclosure is sought, the relevance of the document and the degree of importance that the document holds in the litigation are relevant factors in the balancing process. If the correspondence alone would furnish evidence relevant to adjudicating the dispute before the court, it would be inappropriate to exclude these documents which constitute the only evidence, if at all, for establishing this charge, by saying that the disclosure of these documents would impair the efficient functioning of the judicial institution. The Court held thus: 82. Apart from these documents, there would be no other documentary evidence available to the petitioner to establish that there was no full and effective consultation or that the decision of the Central Government was based on irrelevant considerations It is only through these documents that the petitioner can, if at all, hope to show that there was no full and effective consultation by the Central Government with the Chief Justice of the High Court, the State Government and the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs, arises for consideration. We are concerned in this case with the power of the Court to direct the disclosure of official documents in judicial proceedings. 1203 we felt that a decision not to direct disclosure of the documents would result in graver public prejudice than the decision to direct such disclosure and that the public interest involved in the administration of justice should prevail over the public interest of the public service in the peculiar circumstances of the case. (Emphasis supplied) 28. Though, the decision in S P Gupta is not a precedent in support of a proposition for general disclosure in all circumstances, it is, however, relevant to the present dispute for it rejected the contention that: (i) disclosure and candour are incompatible; and (ii) such correspondence is entitled to class immunity. Candour 29. The Court addressed the contention that the reason for protecting a certain class of documents is that they concern decision making at the highest level of government and only complete freedom from public gaze will enable freedom of expression and candour amongst government funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt Judge or a Supreme Court Judge and transfer of a High Court Judge are extremely important matters affecting the quality and efficiency of the judicial institution and it is therefore absolutely essential that the various constitutional functionaries concerned with these matters should be able to freely and frankly express their views in regard to these matters We have no doubt that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would not be deterred from performing their constitutional duty of expressing their views boldly and fearlessly even if they were told that the correspondence containing their views might subsequently be disclosed We have already dealt with the argument based on the need for candour and frankness and we must reject it in its application to the case of holders of high constitutional offices like the Chief Justice of a High Court and the Chief Justice of India. Be it noted - and of this we have no doubt - that our Chief Justices and Judges are made of sterner stuff; they have inherited a long and ancient tradition of independence and impartiality (Emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghly exceptional measure as such broad claims are contradictory to and destructive of the concept of an open government. He cautioned against blanket immunity and lay emphasis on the commitment to an open and transparent government in the following terms: 80 It is only under the severest compulsion of the requirement of public interest that the court may extend the immunity to any other class or classes of documents and in the context of our commitment to an open Government with the concomitant right of the citizen to know what is happening in the Government, the court should be reluctant to expand the classes of documents to which immunity may be granted. The court must on the contrary move in the direction of attenuating the protected class or classes of documents, because by and large secrecy is the badge of an authoritarian Government (Emphasis supplied) The Court adopted a high standard for the conferral of class immunity which would be accorded only under the severest compulsion of the requirement of public interest . With these observations, the Court rejected the contention that correspondence between constitutional functionari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, bearing in mind all the time that disclosure also serves an important aspect of public interest. (Emphasis supplied) Justice Bhagwati expanded on the socio-political background that must inform any approach in a democratic society wedded to the basic values enshrined in the Constitution . He drew an interconnection between democracy, transparency and accountability to hold that a basic postulate of accountability, which is fundamental to a democratic government, is that information about the government is accessible to the people. He held that participatory democracy is premised on the availability of information about the functioning of the government. The right to know as a pillar of a democratic state imputes positive content to democracy and ensures that democracy does not remain static but becomes a continuous process . Thus, a limitation on transparency must be supported by more than a claim to confidentiality it must demonstrate the public harm arising from disclosure is greater than the public interest in transparency. Justice Bhagwati emphasized transparency in the judicial apparatus in the following terms: 85 We belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Now, if secrecy were to be observed in the functioning of Government and the processes of Government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open Government with means of information available to the public, there would be greater exposure of the functioning of Government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open Government is clean Government and a powerful safeguard against political and administrative aberration and inefficiency. 33. The approach adopted by Justice Bhagwati in S P Gupta, with which we are in agreement provides a bright line standard for the Court on the approach that must be adopted when answering questions of disclosure in regards to the appointment process. The principal consideration will always be that of public interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional equilibrium. The starting point of the independence of the judiciary is constitutional design through the provisions of the Constitution. 36. Article 124(2) guarantees a security of tenure for judges. Article 124(4) stipulates that a Judge of the Supreme Court shall not be removed from their office except on the ground of proved misbehaviour or incapacity. The proviso to clause (2) of Article 125 guarantees that a judges privileges, allowances and rights in respect of leave of absence or pension shall not be varied to their disadvantage after their appointment. Article 129 empowers the Supreme Court to punish for the contempt of itself. Article 145 empowers the Supreme Court to make rules for regulating generally the practice and procedure of the Court. Clauses (1) and (2) of Article 146 stipulate that the Chief Justice of India or such other Judge or officer of the Court, as may direct, shall be responsible for the appointments and prescription of rules governing the conditions of service of the officers and servants of the Supreme Court. Clauses (1) and (2) of Article 229 assign responsibility to the Chief Justice of a High Court or such other judge or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate provisions appears to have been occasioned by the belief that, armed with such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. Justice Ruma Pal discussed the position in the following words: To ensure freedom from Executive and Legislative control, the pay and pension due to judges in the superior courts are charged on the Consolidated Funds of the States in the case of High Court judges and the Consolidated Fund of India in the case of Supreme Court judges and are not subject to the vote of the Legislative Assembly in the case of the former or Parliament in the latter case. Salaries are specified in the Second Schedule to the Constitution and cannot be varied without an amendment of the Constitution. An Independent Judiciary speech delivered by Ms. Justice Ruma Pal at the 5th V.M. Tarkunde Memorial Lecture, November 10, 2011 . 39. The above provisions are indicative of the intention of the founders of the Constitution to create a strong foundation to secure the independence of the judiciary. This also marked a strong departure fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by a four-to-one majority. Significantly, Justice Kurian Joseph, in his separate concurring opinion and Justice Chelameswar, in his dissenting opinion, pointed to the lack of transparency and accountability in the manner of making appointments to the judiciary. Justice Kurian Joseph observed: 990. All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and proper application of mind on the part of the judges. S.P. Gupta v. Union of India, 1981 Supp SCC 87, 85 (per Bhagwati J.) Even in NJAC, the need for transparency and accountability has not been denied in any of the separate opinions. The 99th Constitutional Amendment was struck down on the ground that it would adversely affect the independence of the judiciary by giving the executive a definitive say in the appointment of judges. The dilution of the judiciary s autonomy in the context of making judicial appointments was deemed to be unconstitutional. However, the need to reduce the opacity and usher in a regime of transparency in judicial appointments has not been denied and has in fact been specifically acknowledged by some of the learned Judges. 42. Scholars caution that while judicial independence is important, one should not lose sight of the larger goals and purposes which judicial independence is intended to serve. Charles Gardner Geyh considers such ends to include upholding of the rule of law, preserving the separation of governmental powers, and promotion of due process, amongst many others. Therefore, he believes that if judges are free to disregard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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) 44. The fault that was identified with the purported framework under Article 124A of the Constitution of India for ensuring transparency was the lack of adequate safeguards for protecting the right to privacy of the appointees. NJAC., 953 This was in the context of the deliberations of the NJAC falling within the purview of the RTI Act. Justice Madan B Lokur in his separate concurring opinion noted that the right to know was circumscribed by the right to privacy of individuals: Id 555. The balance between transparency and confidentiality is very delicate and if some sensitive information about a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportant 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 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 questions: (i) What is the source of accountability?; (ii) To whom is the accountability owed?; and (iii) What does accountability entail? Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences M Bovens, Analysing and Assessing Accountability: A Conceptual Framework, European Law Journal (2007), p. 450. . The narrow conception of accountability however suffers from a straight-jacket view 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. 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. Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review (2007), p. 31 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 significance of the inclusion of the term in its application to judges of the High Courts in Union of India v Sankalchand Himatlal (1977) 4 SCC 193 , 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. TRS Allen, Accountability to Law, in Accountability in the Contemporary Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship Online, p. 84 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 Deba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives of today s people, whereas accountability to law refers to accountability to the people and their representatives in the more distant past. Accountability to law is a form of indirect accountability to the people in the past, taking its route through their enactments of law. Mark Tushnet, Judicial Accountability in Comparative Perspective, in Accountability in the Contemporary Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship Online at Tushnet, p. 69 (Emphasis supplied) In this view, accountability is not confined to elected posts. The creation of the legal system founded on constitutional precept marked 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) - 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . Stephen Burbank, The Past and Present of Judicial Independence, California Law Review (1999). Professor Charles Gardner has stated that: 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. Charles Gardner, Rescuing Judicial Accountability from the Realm of Political Rhetoric (2006), p .916 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Corp SEC v. Chenery Corp., 318 U.S. 80, 85 86 (1942) , while determining the question whether officers and directors who manage a holding company in the process of reorganisation occupy positions of trust, stated: 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? 60. Black s Law Dictionary Black s Law Dictionary, Tenth Edition, p. 744 , defines fiduciary relationship thus: A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships such as trusteebeneficiary, guardian-ward, principal-agent, and attorneyclient r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res; 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 Bandopadhyay (2011) 8 SCC 497 , 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: 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 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 non-exhaustive examples of evidentiary factors to be considered in making this determination. Outside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st have freedom to act without resorting to prior approval of the beneficiary. Tamar Frankel, Fiduciary Law Oxford University Press, 2011 The greater the independent authority to be exercised by the fiduciary, the greater the scope of fiduciary duty. Scott, Austin W. The Fiduciary Principle. California Law Review 37, no. 4 (1949): 539-55. The person so entrusted with power is required to determine how to exercise that power. Tamar Frankel, Fiduciary Law Oxford University Press, 2011 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. Ken Coghill, Charles Sampford and Tim Smith Fiduciary Duty and the Atmospheric Trust , Ashgate (2012) 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will include not only information under the legal control of the public authority but also all such information which is otherwise received or used or consciously retained by the public authority 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 reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyalty, duty of care and the cluster comprising the duties of candour, disclosure and accounting. Leib, Ethan J., David L. Ponet, and Michael Serota. A Fiduciary Theory of Judging. California Law Review 101, no. 3 (2013): 699-753. The duty of loyalty for a judge entails them being loyal to the citizenry by remaining impartial towards the litigants before them. Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias, 2008 PUB. L. 58 (2008) 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. 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). 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: Whether the information sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms of citizens. 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 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 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: 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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed 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; (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 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) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vasion of right of privacy/confidentiality of a third party. For example, a public authority may have in its records, medical reports 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evation 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) 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. Express Newspaper v Union of India 1959 SCR 12 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 information disseminated has also been recognised as a facet of the freedom of expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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. 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 Mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 84. Clause (j) of sub section (1) of Section 8 uses the phrases personal information and unwarranted invasion of the privacy of the individual . In interpreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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. 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncompasses not merely personal 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 abridg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e address, location data, data held by a hospital or doctor and identification card number of an individual as personal data. What is personal data?, Official Website of the European Union https://ec.europa.eu/info/law/law-topic/dataprotection/ reform/what-personal-data_en Courts from the jurisdiction have interpreted the term personal data broadly to even include information relating to the professional life of an individual. In Worten v Autoridade para as Condi es de Trabalho C-342/12 dated 30 May 2013 , the European Court of Justice held the work timings of an employee constitute personal data: 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 95/46, because they represent information relating to an identified or identifiable natural person (Emphasis supplied) In Rechnungshof v sterreichische ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 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 1996 (3) SA 262 (SCA) , 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: A right to privacy encompasses the competence to 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 (Emphasis supplied) In NM v Smith [2007] ZACC 6 , the names of three women wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within the overall framework of a broader community. (Emphasis supplied) 93. In Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) 95. Courts in India have interpreted the scope of information which constitutes personal information under the RTI Act. In Girish Ramchandra Deshpande v Central Information Commissioner (2013) 1 SCC 212 , 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: 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 caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted 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 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. 97. In Subhash Chandra Agarwal v Registrar, Supreme Court of India (2018) 11 SCC 634 , the appellant had filed an application under the RTI Act seeking information relating to the details of the medical facilities 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: 11. The information sought by the appellant includes the details of the medical facilities availed by the individual Judges. The same being pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest 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. 99. 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-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 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. 100. In Secy., Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 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 is also facilitated by the disclosure of information. 102. 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 facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identiality. 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B Public interest exemptions factors (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 (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 set out in sections 3 and 3A); (b) inform public debate on a matter of public importance; (c) promote effective oversight of public expenditure; (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 in favour of public interest are the promotion of public debate and matters relating to public expenditure. 106. The understanding that, in inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 107. 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: (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 information where the information sought informs political debate, is educational or intellectual or serves artistic purposes; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 S C Agrawal speaking for a Constitution Bench of this Court in S N Mukherjee v Union of India (1990) 4 SCC 495 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-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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) 110. In setting out the precise approach to be adopted by the Information Officer in making a determination under clause (j) of clause (1) of Section 8 it is worth adverting to the decision of Campbell v MGM Limited [2004] UKHL 22 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 Convention of Human Rights ECHR 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: 20. I should take this a little further on one point. Article 8(1) recognises the need to respect private and family life. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal 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) 112. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; (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; (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 to disclose information under the RTI Act. 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 exempted from the general obligation to disclose, clause (1) of Section 8 neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 extraneo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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