W.P.(C) 288/2009 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 04.05.2009 Judgment Pronounced on: 02.09.2009 + W.P. (C) 288/2009 THE CPIO, SUPREME COURT OF INDIA, TILAK MARG, NEW DELHI ..... Petitioner Through: Mr. Goolam. E. Vahanvati, Attorney General of India with Mr. Gaurav Duggal, Advocate. versus SUBHASH CHANDRA AGARWAL & ANR. ..... Respondents Through: Mr. Prashant Bhushan, Mr. Mayank Misra and Mr. Harendra Singh, Advocates for Resp. No.1. Mr. K.K. Nigam, Advocate, for CIC Mr. K.C. Mittal, Mr. D.K. Sharma, Mr. Arvind Jain and Mr. Sujeet Kumar, Advocates for Delhi High Court Bar Association. Mr. P.N. Lekhi, Sr. Advocate with Mr. Vijay Chaudhary and Mr. Ravinder Kumar, Advocates, for Rashtriya Mukti Morcha/ Invervener. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers may be allowed to see the judgment? YES. 2. To be referred to Reporter or not? YES. 3. Whether the judgment should be reported in the Digest? YES. HON’BLE MR. JUSTICE S.RAVINDRA BHAT 1. This proceeding, under Article 226 of the Constitution of India, requires the examination of questions and issues involving declaration as to personal assets of judges of the Supreme Court, made to the Chief Justice of India, pursuant to a Full Court W.P.(C) 288/2009 Page 2 resolution of the Supreme Court of India, made in 1997. The petitioners challenge an order of the Central Information Commission, dated 6th January, 2009, upholding the request of the respondent who had applied for disclosure of certain information concerning such declaration of personal assets, by the judges (of the Supreme Court). 2. The facts of the case are that the Respondent (hereafter “applicant”) had, on 10.11.2007 required the Central Public Information Officer, Supreme Court of India (“the CPIO”), nominated under the Right to Information Act (hereafter “the Act”) to furnish a copy of the resolution dated 7.5.1997 of the Full Court of the Supreme Court, (“the 1997 resolution”) which requires every judge to make a declaration of all assets. He further sought for information relating to declaration of assets etc, furnished by the respective Chief Justices of States. By order dated 30th November, 2007, the CPIO informed the applicant that a copy of the resolution dated 7.5.1997 would be furnished on remitting the requisite charges. He was also told that information relating to declaration of assets by the judges was not held by or under the control of the Registry of the Supreme Court and, therefore, it could not be furnished. 3. The applicant appealed to the nominated Appellate authority, who, after hearing him, recorded satisfaction (of the applicant) about receipt of a copy of the resolution; he nevertheless, challenged the second part of the impugned order which held that the CPIO did not hold any information regarding the declaration of assets. It was also contended that if the CPIO was not holding the information, he should have disclosed the authority holding such information and should have referred the application to such an authority, invoking Section 6 (3) of the Right to Information Act. It was also contended out that assuming that the CPIO did not hold the information, since the applicant had sought information regarding the declaration of assets made by the various Chief Justice of the States, the CPIO, Supreme Court should have transferred the W.P.(C) 288/2009 Page 3 matter to the respective CPIOs. The appellate authority remanded the matter for reconsideration, to the CPIO, observing as follows: “A perusal of the application dated 10.11.2007 discloses that the appellant had sought for information relating, to the declaration of assets by the Hon’ble Judges of the Supreme Court as well as the Chief Justice of the States. The order of the CPIO is silent regarding Section 6 (3) of the Right to Information Act. to the above extent, I feel that the appellant is justified in contending that if the CPIO was not holding the information, he should have considered the question of Section 6 (3). Regarding the respective States, if the CPIO was not holding information, he should have considered whether he should have invoked the provision under Section 6 (3) of the Right to Information Act. In the above circumstances, the impugned order to the above extent is liable to be remanded back. The matter is remanded to the CPIO to consider the question whether Section 6(3) of the Act, is liable to be invoked by the CPIO. The matter is remanded to the CPIO for afresh consideration on the above limited point after giving a reasonable opportunity of being heard to the appellant. The Appellant, if aggrieved by this order, is entitled to file a second appeal before the Central Information Commission, New Delhi under Section 19(3) of the Right to Information Act within 90 days from the date of communication of this order.” After remission, the CPIO rejected the application, stating as follows: “In the case at hand, you yourself knew that the information sought by you is related to various High Court in the country and instead of applying to those Public Authorities you have taken a short circuit procedure by approaching the CPIO, Supreme Court of India remitting the fee of Rs.10/- payable to one authority and getting it referred to all the public authorities at the expense of one Central Public Information Officer. In view of this, the relief sought by you cannot be appreciated and is against the spirit of Section 6 (3) of the Right to Information Act, 2005. You may, if so advised approach the concerned public authorities for desired information”. 4. The Applicant approached the Central Information Commission (CIC). It was contended that the CPIO had not followed the directions of the appellate authority, which originally remanded the case, and decided whether the application had to be sent W.P.(C) 288/2009 Page 4 to another authority, as it was expected to. It was also contended that the CPIO’s order maintained a studied silence about disclosure of information about asset declaration by judges of the Supreme Court to the Chief Justice of India (“CJI”) in accordance with the 1997 Resolution. The CPIO contended, before the CIC, that the RTI application had two parts, the first part related to copy of Resolution, which was provided to the applicant, and the second part related to declaration of assets by the Supreme Court judges. The CPIO submitted that the Registrar of the Supreme Court did not hold the information. It was submitted that the 1997 Resolution was an in-house exercise; and the declaration regarding assets of the judges is only voluntary. The resolution itself describes submission of such declarations as “Confidential”. It was also contended that disclosure of the declarations would be breach of a fiduciary relationship. The CPIO further submitted that the declarations were submitted to the Chief Justice of India not in his official capacity but in his personal capacity and that any disclosure would be violate of the 1997 resolution, deemed such declarations ‘confidential’. It was also contended that the disclosure would be contrary to the provisions of section 8(1) of the Act. 5. The CIC, in its impugned order, reasoned that since the Supreme Court was established by the Constitution of India and is a public authority within the meaning of Section 2(h) of the Act. Section 2(e) (i) was referred, to say that the Chief Justice of India was a competent authority, under the Act, empowered to frame Rules under Section 28 of the Act to carry out provisions of the Act. It was held that rule making power is conferred by provisions of the Act, upon the Chief Justice and the Supreme Court, who cannot disclaim being public authorities. The applicant’s appeal was allowed, on the following reasoning: “16. The rule making power has been explicitly given for the purpose of carrying out the provisions of the RTI Act. The Act, therefore, empowers the Supreme Court and the other competent authorities under the act and entrusts upon them an additional responsibility of ensuring that the RTI Act is implemented in letter and spirit. In view of this, the contention of the respondent public authority that the W.P.(C) 288/2009 Page 5 provisions of Right to Information act are not applicable in case of Supreme Court cannot be accepted. 17. The learned counsel appearing on behalf of the Supreme Court during the course of hearing argued that the information concerning the declaration of assets by the judges is provided to the Chief Justice of India in his personal capacity and it is “voluntary’ and “confidential”. From what was presented before us. It can be inferred that the declaration of assets are filed with the Chief Justice of India and the office of the Chief Justice of India is the custodian of this information. The information is maintained in a confidential manner and like any other official information it is available for perusal and inspection to every succeeding Chief Justice of India. The information, therefore, cannot be categorized as “personal information” available with the Chief Justices in their personal capacity. 18. The only issue that needs to be determined is as to whether the Chief Justice of India and the Supreme Court of India are two distinct Public Authorities or one Public Authority. In this context, it would be pertinent to refer again to the provisions of section 2 (h) of the Right to Information Act, the relevant part of which reads as under: “2(h) “Public authority” means any authority or body or institution of self – government established or constituted…” 19. The Public Authority, therefore, can only be an “authority” ‘body’ or an “institution” of self, government, established or constituted, by or under the Constitution or by any other law, or by an order made by the appropriate government. 20. The words “Authority, “body” or “institution” has not been distinctly defined in the Act, the expression “authority” in its etymological sense means a Body invested with power to command or give an ultimate decision, or enforce obedience or having a legal right to command and be obeyed. Webster’s Dictionary of the English language defined “authorities as “official bodies that control a particular department or activity, especially of the Government. The expression other authorities has been explained as authorities entrusted with a power of issuing directions, disobedience of which is punishable as an offence, or bodies exercising legislative or executive functions of the state or bodies which exercise part of the sovereign power or authority of the State and which have power to make rules and regulations and to administer or enforce them to the detriment of the citizens. In the absence of any statutory definition or judicial W.P.(C) 288/2009 Page 6 interpretation to the contrary, the normal etymological meaning of the expression, has to be accepted as the true and correct meaning. 21. According to the dictionary meaning, the term “institution” means a body or organization or an association brought into being for the purpose of achieving some object. Oxford Dictionary defines an “institution as a establishment, organization or an association instituted for the promotion of some objects especially one of public or general utility, religious, charitable, educational etc., The definition of the ‘institution’, therefore, includes an authority as well as a body. By very implication, the three terms exclude an “individual”. Even the Hon’ble Apex Court in Kamaraju Venkata Krishna Rao Vs. Sub – collector, Ongole – AIR 1969 SC 563 has observed that it is by no means easy to give definition of the word “institution” that would cover every use of it. Its meaning must always depend upon the context in which it is found. 22. If the provisions of Article 124 of the Constitution are read in view of the above perspective, it would be clear that the Supreme Court of India, consisting of the Chief Justice of India and such number of judges as the Parliament may by law prescribe, is an institution or authority of which the Hon’ble Chief Justice of India is the Head. The institution and its Head cannot be two distinct public authorities. They are one and the same. Information, therefore, available with the Chief Justice of India must be deemed to be available with the Supreme Court of India. The Registrar of the Supreme Court of India, which is only a part of the Supreme Court cannot be categorized as a Public Authority independent and distinct from the Supreme Court itself. 23. In view of this, the question of transferring an application under Section 6(3) of the Right to Information Act by the CPIO of the Supreme Court cannot arise. It is the duty of the CPIO to obtain the information that is held by or available with the public authority. Each of the sections or department of a public Authority cannot be treated as a separate or distinct public authority. If any information is available with one section or the department, it shall be deemed to be available with the Public Authority as one single entity CPIO cannot take a view contrary to this. 24. In the instant case, admittedly, the information concerning the judges of the Supreme Court is available with the Supreme Court and the CPIO represents the Supreme Court as a public authority. Under the RTI Act, he is, therefore, obliged to provide this information to a citizen making an application under the RTI Act unless the disclosure of such information is exempted under the law. W.P.(C) 288/2009 Page 7 25. During course of hearing, it has been argued that the declaration of assets submitted by the judges of the Supreme Court are confidential and the information has been provided to the chief justice of India in a fiduciary relationship and as such, its disclosure is exempted under Section 8(1) (e) of the RTI Act. 26. In this context it will be pertinent to reiterate what the appellant has asked for in his RTI Application and which is as follows: I will be obliged if your honour very kindly arranges to send me a copy of the said resolution passed by the judges of the Supreme Court on 7.5.2007. I will be obliged if your honour kindly provides me information on any such declaration of assets etc ever filed by Honourable judges of the Supreme Court. Kindly also arrange information if High Court judges are submitting declaration about their assets etc to respective Chief Justices in States. 27. The information in regard to point (i) as above has already been provided. As regards the information covered by point No. (ii) & (iii) above, the same has been denied on the ground that it is not held by or under the control of the Registrar of the Supreme Court of India and, therefore, cannot be furnished by the CPIO. 28. The First Appellant Authority while deciding the matter assumed that the CPIO of the Supreme Court was not holding the information concerning the declaration of the assets made by the High Court judges and that this information is held by the chief justices of the State High Courts and accordingly, he observed that the appellant is justified in contending that if the CPIO was not holding the information, he should have considered the question of invoking Section 6(3) of the RTI Act. accordingly, the matter was remanded back by him to the CPIO of the Supreme Court for fresh consideration on limited point i.e. transfer of application to various High Courts u/s 6(3) of the RTI Act. It will not be out of context to reproduce what the Appellate Authority has decided in his order: “In the above circumstances, the impugned order to the above extent is liable to be remanded back. The matter is remanded to the CPIO to consider the question whether section 6(3) of the Act, is liable to be invoked by the CPIO. The matter is remanded to the CPIO for afresh consideration on the above limited point after giving a reasonable opportunity of being heard to the appellant.” W.P.(C) 288/2009 Page 8 29. CPIO on receiving the matter back on remand rejected the application of the appellant. It appears that both the CPIO and the first Appellant Authority have remained silent as regards the information concerning declaration of assets by the judges of the Supreme Court. At the time of hearing, it was admitted that the information concerning declaration of the assets by the judges of the Supreme Court is not available with the Registry, but the office of the Chief Justice of India holds the same. The information requested under the RTI Act was denied only on the ground that the Registry does not hold the information. But the first appellate authority did not find as to where the information is available. The CPIO maintained silence as regards this matter even after he received the matter on remand. At the time of hearing before this Commission, however, it was submitted that the information might be available with the office of the Chief Justice of India. It is clear that neither the CPIO nor the First Appellate Authority has claimed that the information asked for by the appellant is exempt either under Section 8 (1) (e) of the Act being received in fiduciary relationship or that this information is ‘personal information’ attracting exemption under section 8 (1) (j). 30. The appellant Shri S.C. Agrawal is apparently not seeking a copy of the declarations or the contents therein or even the names etc. of the judges filing the declaration, or is he requesting inspection of any such declaration already filed. He is seeking simple information as to whether any such declaration of assets etc., has ever been filled by the judges of the Supreme Court or High Courts. What he is seeking cannot be held to attract exemption under Sections 8(1)(e) or 8(1) (j). 31. The only question that remains to be decided is as to whether CPIO was justified in turning down the request of the Appellant to transfer the RTI application to the concerned CPIO of the High Courts even after the Fist Appellate Authority remanded the case to him. In this connection, it may be mentioned that the request for transfer under section 6(3) of the Right to information Act has been turned down on the ground that the appellant was well award that the information is available with the respective High Courts which are separate and distinct public authorities. This point has not been pressed at the time of hearing as Such, it is not necessary to decide this issue at this stage. 32. In view of what has been observed above, the CPIO of this Supreme Court is directed to provide the information asked for by the appellant in his RTI application as to whether such declaration of assets etc. has been filed by the Hon’ble Judges of the Supreme Court or not within ten working day form the date of receipt of this decision notice.” W.P.(C) 288/2009 Page 9 6. When presented, the CPIO was the sole writ petitioner; later, however, the Registrar, Supreme Court was added as a party. The petitioners were represented by the (then) Solicitor General, Mr. Goolam E. Vahanvati (hereafter referred to as “the petitioners’ counsel”); Mr. Prashant Bhushan argued on behalf of the respondent applicant. 7. It is argued at the outset that the petition, is not filed with a view to raise technical objections to avoid declaring assets of the judges, but on a fundamental question of law with regard to scope and applicability of RTI; it is also clarified that the learned judges of the Supreme Court are not opposed to declaring their assets, provided that such declarations are made in accordance with due procedure laid down by a law which would prescribe (a) the authority to which the declaration would be made (b) the form in which the declaration should be made, with definitional clarity of what are ‘assets’; and (c) proper safeguards, checks and balances to prevent misuse of information made available. 8. The petitioners argue that the information sought for, by the applicant, is not in the public domain. In support, it is submitted that the expression “right to information” defined by Section 2(j) envisions information “accessible, in this Act, which is held by or under the control of any public authority…” The petitioners contend that the source of the right to seek information, is not any law, but a non-binding obligation, on account of the 1997 resolution. It is argued that there is no Constitutional or legal obligation to furnish such declaration. Though it was urged that the CJI is not a public authority, the counsel submitted that the terms of the Act would show that in fact, he is one. In the petition it has been submitted that the office of the CJI is distinct from the Registry, and the CIC’s findings in that regard are erroneous; the petitioners emphasize that the CJI is required, by provisions of the Constitution, and different laws, and also the decision in Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441 to W.P.(C) 288/2009 Page 10 perform various functions that are distinct from his role as Chief Justice of the Supreme Court. Therefore, the impugned order, according to them, is unsustainable. 9. The petitioners urge that for anything, to constitute information, it should be in the public domain, and should be held by a public authority under the mandate of law; the law should prescribe that something should be done, or not be done, and must be accompanied by sanction for its non-performance. In support, reliance is placed on the judgment reported as Kruze v. Johnson 1895 All ER 105; Dwarkanath Tewari v. State of Bihar AIR 1959 SC 259 and Indian Airlines Corporation v. Sukhdev Rai 1971 (2) SCC 192. It is urged that individual judges have the choice of declaring, or not declaring assets; an autonomy that cannot be commented upon, or interfered with by the CJI. It is likewise argued that non-disclosure does not result in any breach of law, or attract any sanction, which clearly demonstrate that the 1997 resolution is not binding. The petitioners’ counsel submits that the resolution cannot also be described as containing “Rules”. In this context, counsel urges that rules are made unilaterally by the concerned authority, and are not dependent upon their binding nature on the choice or exercise of volition of anyone, subjected to them. Reliance is placed on Sirsi Municipality v. Cecilia Con. Francis Tellis 1973 (1) SCC 409. 10. Learned counsel for the petitioner urges that the ruling in Indira Jaising v. Registrar General 2003 (5) SCC 494 held that deliberations during the “in house procedure” evolved as a result of the resolution of the Chief Justices’ Conference (in 1999) cannot be the subject matter of disclosure. Reliance is placed on the following observations: “Therefore, in the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges. That position in law is very clear. Thus, the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in exercise of powers W.P.(C) 288/2009 Page 11 under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made the subject-matter of a writ petition to disclose a report made to him.” It is submitted that there is nothing in the 1997 Resolution involving processes of government; reliance is also placed on the following passage from Indira Jaising: “Heavy reliance has been placed upon the decisions of this Court in S. P. Gupta v. Union of India (1981 Supp SCC 87), State of U.P. v. Raj Narain ((1975) 4 SCC 428), Union of India v. Assn. for Democratic Rights ((2002) 5 SCC 294) and Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket