LPA 501/2009 page 1 of 88 HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 13th November, 2009 Judgment pronounced on: 12th January, 2010 + LPA No.501/2009 Secretary General, Supreme Court of India ….. Appellant Through: Mr.G.E. Vahanvati, Attorney General for India with Mr.Atul Nanda and Mr.Sanjay Bhardwaj, Advocates Versus Subhash Chandra Agarwal ….. Respondent Through: Mr.Prashant Bhushan with Mr.Mayank Mishra, Mr.Rohit Kumar Singh and Mr.Vivek Bishnoi, Advocates CORAM: HON'BLE THE CHIEF JUSTICE HON’BLE MR.JUSTICE VIKRAMAJIT SEN HON’BLE DR.JUSTICE S. MURALIDHAR 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 AJIT PRAKASH SHAH, CHIEF JUSTICE 1. This appeal is directed against the judgment dated 2nd September, 2009 of the learned single Judge (S. Ravindra Bhat, J) in the writ petition filed by the Central Public Information Officer, Supreme Court of India (hereinafter, “the CPIO”) nominated under the Right to Information Act, 2005 (hereinafter, “the Act”) questioning correctness and legality of the order dated 6th LPA 501/2009 page 2 of 88 January, 2009 of the Central Information Commission (hereinafter, “the CIC”) whereby the request of the respondent No.1 (a public person) for supply of information concerning declaration of personal assets by the Judges of the Supreme Court was upheld. PREFACE 2. The subject matter at hand involves questions of great importance concerning balance of rights of individuals and equities against the backdrop of paradigm changes brought about by the legislature through the Act ushering in an era of transparency, probity and accountability as also the increasing expectation of the civil society that the judicial organ, like all other public institutions, will also offer itself for public scrutiny. A citizen demanded information about asset declarations by the Judges. In this context, questions have been raised and need to be answered as to whether a “right to information” can be asserted and maintained within the meaning of the expression defined in Section 2(j) of the Act. Equally important are the questions requiring interpretation of the expressions “fiduciary”, as in Section 8(1)(e) and “privacy” as in Section 8(1)(j), both used but not defined specifically by the statute. 3. When the learned single Judge set about the task of hearing submissions on the writ petition, the Attorney General for India LPA 501/2009 page 3 of 88 appearing for the appellant clarified at the outset 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.” After the learned single Judge had concluded the hearing and had reserved his judgment on the writ petition, certain events supervened. The Full Court of the Supreme Court resolved to place the information on the court website after modalities are duly worked out. Some High Courts, including Delhi High Court, also resolved similarly to make public the information about the declaration of assets by the Judges. The learned single Judge in the impugned judgment had given certain directions about disclosure. In the course of hearing on 7th October, 2009, on CM No.14043/2009, the learned Attorney General for India informed that the operative part in the judgment under appeal had been complied with. The appeal has been pursued on the ground that fundamental questions of law with regard to scope and applicability of the Act with specific reference to declarations of assets by the Judges of High Courts and Supreme Court persist and need to be addressed. LPA 501/2009 page 4 of 88 FACTS 4. The genesis of the dispute at hand relates to two resolutions; first, resolution dated 7th May, 1997 of the Full Court of the Supreme Court (hereinafter, “the 1997 Resolution”) and second, the “Re-statement of Values of Judicial Life (Code of Conduct)” adopted unanimously in the Conference of the Chief Justices of all High Courts convened in the Supreme Court on 3rd and 4th December, 1999 (hereinafter, “the 1999 Resolution”). Through the 1997 Resolution, Hon‟ble Judges of the Supreme Court, inter alia, resolved that “every Judge should make a declaration of all his/her assets in the form of real estate or investment” held in own name or in the name of spouse or any person dependent within a reasonable time and thereafter make a disclosure “whenever any acquisition of a substantial nature is made”. The 1999 Resolution, inter alia, referred to the 1997 Resolution and the draft re-statement of values of judicial life prepared on the basis, amongst others, inputs received from various High Courts and an earlier committee as also resolutions passed in the Chief Justices‟ Conference held in 1992. The Code of Conduct, thus finalized, came to be adopted and may also be called 1999 Judicial Conference Resolution. LPA 501/2009 page 5 of 88 5. The facts of the case, briefly stated, are that the respondent (hereinafter, “the applicant”) made an application to the CPIO on 10th November, 2007 under the Act making two-fold request; viz., (i) to furnish a copy of the 1997 resolution of the Full Court of the Supreme Court, and (ii) information on any such declaration of assets etc. ever filed by Hon‟ble Judges of the Supreme Court and further information if High Court Judges are submitting declaration about their assets etc. to respective Chief Justices in States. 6. The first request was granted by the CPIO and a copy of the 1997 resolution was made available to the applicant. The CPIO vide order dated 30th November, 2007, however, informed the applicant that the information sought under the second head was not held or under the control of the registry (of the Supreme Court) and, therefore, could not be furnished. The applicant preferred an appeal before the nominated appellate authority. 7. The Appellate Authority remanded the matter to CPIO, inter alia, observing 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 LPA 501/2009 page 6 of 88 provision under Section 6(3) of the Right to Information Act”. The CPIO, after the said remand order, once again declined the relief, now stating that the request could not be appreciated since it was against the spirit of Section 6(3) inasmuch as the applicant had been very well aware that the information sought related to various High Courts and yet had taken a “short circuit procedure” by approaching the CPIO, Supreme Court of India, “and getting it referred to all the public authorities at the expense of one Central Public Information Officer”. 8. The applicant then filed an appeal before the CIC, the apex appellate authority under the Act. The contention raised was that the CPIO had not followed the directions of the appellate authority, which originally remanded the case for decision as to whether the application had to be sent to another authority. It was also submitted before the CIC that the order of CPIO maintained a studied silence about disclosure of information regarding asset declaration by Judges of the Supreme Court to the Chief Justice of India (hereinafter, “the CJI”), in accordance with the 1997 Resolution. 9. In the appeal before the CIC, the CPIO took several defences including the submission that the Registrar of the Supreme Court did not hold the information; the information sought related to a subject matter which was “an in-house exercise” and pertained to material held by the CJI in his personal capacity. It was also LPA 501/2009 page 7 of 88 submitted that the declarations made by the Judges of the Supreme Court had been made over by them to the CJI on voluntary basis in terms of the 1997 Resolution in a “fiduciary relationship”. On the basis of the last said submission, it was also contended before the CIC that the disclosure of such information would be in breach of the fiduciary character attached to the material and, therefore, contrary to the provisions of Section 8(1) of the Act. 10. Before the CIC the issue concerning transfer of the request under Section 6(3) of the Act was not pressed. The CIC vide its order dated 6th January, 2009 rejected the contentions of the CPIO. He reasoned that Supreme Court is a “public authority” within the meaning of Section 2(h) of the Act since it has been established by the Constitution of India. He referred to Section 2(e)(i) to hold that the CJI is a “competent authority” empowered to frame rules under Section 28 to carry out the provisions of the Act and thus concluded that the CJI and the Supreme Court cannot disclaim being public authorities. The CIC pointed out that the information in question is maintained like any other official information available for perusal and inspection to every succeeding CJI and, therefore, cannot be categorized as “personal information” held by the CJI in his “personal capacity”. It was argued before the CIC that CJI and Supreme Court of India are two distinct public authorities. This contention was repelled with further observation that the Registrar and CPIO of the Supreme LPA 501/2009 page 8 of 88 Court are part of the said institution and thus not independent or distinct authorities. On this finding, it was held by CIC that the CPIO is obliged to provide the information to a citizen making an application under the Act unless the disclosure was exempt. The CIC noted that neither the CPIO nor the first appellate authority had claimed that the information asked for is exempt on account of “fiduciary relationship” or it being “personal information”. He further noted that the applicant was apparently not seeking a copy (or inspection) of the declaration or the contents thereof or even the names etc. of the Judges giving the same. He concluded that the exemptions under Sections 8(1)(e) or 8(1)(j) were not attracted to the case. 11. The CIC, vide order dated 6th January, 2009 thus directed the CPIO “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 days from the date of receipt of this decision notice”. PROCEEDINGS BEFORE THE SINGLE JUDGE 12. The writ petition was preferred by the CPIO challenging the said directions of CIC in the impugned order. The applicant was impleaded as a respondent. LPA 501/2009 page 9 of 88 13. In the writ proceedings before the learned single Judge, the Registrar, Supreme Court was subsequently added as a co- petitioner. On the other hand, Delhi High Court Bar Association (hereinafter, “DHCBA”) and Rashtriya Mukti Morcha were allowed to join as interveners. 14. In the writ petition, the order of CIC was challenged mainly on the following lines:- a. The “information”, to the disclosure of which a “right to information” can be claimed under the Act has to be an information “accessible” under the law and one “held by or under the control of any public authority”, as defined in Section 2(j). b. The information sought for by the applicant is not in the “public domain” inasmuch as it is not held under the mandate of any law. The 1997 resolution is not binding nor can it be described as “rules” for the reasons that compliance therewith is a matter of choice or own volition for the individual Judges and there is no sanction attached for “non-performance”; c. The disclosure made by the Judges, pursuant to the 1997 resolution, is not a public act done in the discharge of duties of their office whereas the regime under the Act is aimed at ensuring access to all actions of public officials done or performed during the course of their official duties; LPA 501/2009 page 10 of 88 d. If it were to be held that the information sought by the applicant is “information” within the meaning of the expression used in the statute, the question of its access would arise with reference to exemptions under Section 8; e. The information sought is exempt from disclosure by virtue of Section 8(1)(e) of the Act. The 1997 resolution emphasized on the understanding that “declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential”, and, therefore, there is a fiduciary duty cast on the CJI to hold these declarations “in confidence”. Founded on the last mentioned premise, it was further argued that any attempt to compel the CJI to make the information public would amount to compelling him “to breach the fiduciary nature of his duty”; and f. The information sought is exempt by virtue of Section 8(1)(j) of the Act for the reason it relates to “personal information” which has no nexus with “any public activity or interest” and the disclosure of which was likely to cause “unwarranted invasion of the privacy” of the Judges. 15. The applicant contested the writ petition before the learned single Judge joining issue on each of the grounds taken. It was submitted that Section 22 of the Act conferred upon this special statute an “overriding effect” and the classification of any information as “confidential”, by itself, would not render it an LPA 501/2009 page 11 of 88 information “not in the public domain” or one which cannot be accessed. It was argued that the 1997 Resolution represented a conscious decision taken by the Judges of the Supreme Court and, therefore, its binding nature could not be undermined. Before the learned single Judge, the applicant questioned the plea that the information was held by the CJI in his private capacity or in a fiduciary relationship. It was submitted that the Judges are public functionaries and the declarations in question were made by them in their official capacity to the CJI, who, in turn, received the same and held it in his official capacity. Though pointing out that the contents of the declarations made by the respective Judges were not part of the information that had been requested from the CPIO and thus submitting that there was no invasion of privacy in the case at hand, it was insisted that only such further information (i.e. contents of the declarations) could be asked for and disclosed under the Act, notwithstanding the exemption under Section 8(1)(j), should the CPIO or the appellate authority find justification in its disclosure “in larger public interest”. 16. Both the interveners, in their submissions before the learned single Judge adopted the case made out by the applicant and insisted that there exists a right to information vis-à-vis the declarations made by the judges under the Act. LPA 501/2009 page 12 of 88 17. The learned single Judge proceeded to consider the rival submissions. He culled out the points for consideration (in para 27 of the impugned judgment) as under: (1) Whether the CJI is a public authority; (2) Whether the office of 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; (3) Whether the asset declarations by Supreme Court judges, pursuant to the 1997 Resolution is “information”, under the Right to Information Act, 2005; (4) If such asset declarations are “information” does the CJI hold them in a “fiduciary” capacity, and are they therefore, exempt from disclosure under the Act; (5) Whether such information is exempt from disclosure by reason of Section 8(1)(j) of the Act; (6) Whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their disclosure, unworkable. 18. Upon consideration of the submissions made before him, the learned single Judge concluded against point Nos.1 and 2 that the CJI is a public authority under the Right to Information Act and holds the information pertaining to asset declarations in his capacity as the Chief Justice. It was also held that the office of the Chief Justice of India is “public authority” under the Act and is covered by its provisions. LPA 501/2009 page 13 of 88 19. On point No.3, it was held by the learned single Judge that the second part of the respondent‟s application (which relates to declaration of assets by the Supreme Court Judges) is ”information” within the meaning of the expression defined in Section 2(f) of the Act and further that the information pertaining to declarations given to the CJI and the contents of such declarations are “information” which is subject to the provisions of the Right to Information Act. 20. The plea of the appellant, founded on Section 8(1)(e), that the information contained in said asset declarations are held by the CJI in “fiduciary capacity” and, therefore, exempt from disclosure was held to be “insubstantial”. Answering point No.4, it was held that the CJI does not hold such declarations in a fiduciary capacity or relationship. 21. The learned single Judge further held, in the context of point No.5, that the contents of asset declarations, pursuant to the 1997 Resolution, as also 1999 Resolution, are entitled to be treated as personal information which are “not otherwise subject to disclosure” but “may be accessed in accordance with the procedure prescribed under Section 8(1)(j).” On the specific information sought by the applicant in the case at hand (i.e. whether the declarations were made pursuant to 1997 Resolution), it was held that the procedure under Section 8(1)(j) is “inapplicable”. LPA 501/2009 page 14 of 88 22. The appellant had also raised the issue of lack of clarity about the asset declaration and details thereof as well as lack of security, claiming further that these aspects (lack of clarity and security) rendered asset declaration and the disclosure “unworkable”. This was the subject-matter of point No.6 (mentioned in para 27 of the impugned judgment). Learned single Judge observed that these are not insurmountable obstacles. In his view, the CJI, if he deems it appropriate, may in consultation with the Supreme Court Judges, evolve uniform standards, devising the nature of information, relevant formalities, and if required, the periodicity of the declarations to be made. In this context, learned single Judge referred to the forms evolved as well as the procedures followed in the United States (including the “redaction” of the norms) under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007 (which amended the Ethics in Government Act, 1978). Learned single Judge suggested that cue can be taken from the above norms or procedures in vogue in USA to: (i) restrict disclosure of personal information about family members of judges whose revelation might endanger them; (ii) extend the authority of the Judicial Conference to redact certain personal information of Judges from financial disclosure. LPA 501/2009 page 15 of 88 23. In view of the above findings, the learned single Judge, vide the impugned judgment, directed the appellant CPIO to reveal the information sought by the respondent applicant, about the declaration of assets (and not the contents of the declarations, as that was not sought for) made by Judges of the Supreme Court, within four weeks. CHALLENGE IN APPEAL 24. This appeal was preferred by the CPIO and the Registrar of the Supreme Court impleading the applicant and the CIC as respondents. Vide order dated 7th October, 2009 of the Division Bench, upon a request by the learned Attorney General for India, CPIO and CIC were deleted from the array of parties with the further direction that Secretary General, Supreme Court of India will be the appellant. Considering the importance of the question involved, the appeal was directed to be heard by a larger Bench of three Judges. 25. It may be mentioned here that the findings to above effect returned by the learned single Judge in the context of point Nos. 1 & 2 referred to above are no longer an issue of controversy or debate. It has been fairly conceded on behalf of the appellant that the conclusions arrived at by the learned single Judge in the impugned judgment and the reasons therefor are correct and thus, do not deserve to be disturbed. LPA 501/2009 page 16 of 88 26. Notwithstanding the fact that the correctness of the findings respecting point Nos. 1 & 2 have been fairly conceded by the learned Attorney General for India, we have given our careful consideration to the matter in the overall facts and circumstances of these proceedings. We find ourselves in full agreement with the reasoning set out in the impugned judgment. The expression “public authority” as used in the Act is of wide amplitude and includes an authority created by or under the Constitution of India, which description holds good for Chief Justice of India. While providing for Competent Authorities under Section 2(e), the Act specifies Chief Justice of India as one such authority in relation to Supreme Court, also conferring upon him the powers to frame rules to carry out the purposes of the said law. Chief Justice of India besides discharging the prominent role of “head of judiciary” also performs a multitude of tasks specifically assigned to him under the Constitution or various enactments. As said in the impugned judgment, these varied roles of the CJI are directly relatable to the fact that he holds the office of Chief Justice of India and heads the Supreme Court. In absence of any indication that the office of the CJI is a separate establishment with its own Public Information Office under the Act, it cannot be canvassed that the office of the CPIO of the Supreme Court is different from the office of the CJI. Thus, the answer to point Nos. 1 & 2 referred to above has been correctly given in the impugned judgment which findings are hereby confirmed. LPA 501/2009 page 17 of 88 27. In this quest, both the sides did not seek to make any submissions on the issue of “unworkability” on account of “lack of clarity” or “lack of security” vis-à-vis asset declarations by the Judges, which form part of the discourse on point No.6 (para 27 of the impugned judgment). 28. The prime submission of the learned Attorney General for India appearing for the appellant is that the learned single Judge has failed to properly formulate or answer the question, which was fundamental and central to the adjudication of the issues arising, viz. that the applicant had no “right to information” under Section 2(j). It is contended that the “right to information” under Section 2(j) applies only when the information sought is in public domain. The learned Attorney General submits that the learned single Judge failed to consider or appreciate the submission about absence of “right to information” and instead had proceeded to examine whether the asset declaration pursuant to the 1997 resolution was “information”, which issue was not even raised. It is argued that the Resolution dated 7th May, 1997 has no force of law and even the “in-house procedure in the judiciary has its basis only of moral authority and not any exercise of power under any law”. It is urged that the words “held by” or “under the law” necessarily implied the legal sanction behind the holding of or controlling of such sanction. It is argued that the plea about information sought not being in public domain was a sequitor to LPA 501/2009 page 18 of 88 the Section 2(j) argument. The argument based on Sections 8(1)(e) and 8(1)(j) are reiterated. THE ISSUES 29. The controversy thus subsists on point Nos. 3,4 & 5, formulated for