In a landmark ruling, the Supreme Court today said the office of the Chief Justice of India is covered by the definition of “public authority” and thus falls within the ambit of the Right to Information Act, 2005.

“Transparency does not undermine judicial independence. Judicial independence and accountability go hand in hand. Disclosure is a facet of public interest,” said the verdict by a bench of Chief Justice Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna. While Khanna authored the majority opinion, Ramana and Chandrachud offered separate but concurring opinions. Ramana, Chandrachud and Khanna are set to take over as the CJI in April 2021, November 2022, and November 2024, respectively.

It is clear, the court observed, “that the independence of the judiciary refers to both decisional and functional independence”. 

However, it added, the “public interest test would be applied to weigh the scales and on balance determine whether information” sought under the RTI Act “should be furnished or would be exempt”. “Therefore, a universal affirmative or negative answer is not possible. However, independence of the judiciary is a matter of public interest.”

The ruling comes nine years after the Supreme Court’s secretary general and its Central Public Information Officer challenged a 2010 Delhi High Court ruling that the top court and the CJI’s office were “public authorities” and thus within the purview of the RTI Act.

“The Supreme Court’s judgement today on transparency is a milestone and I welcome it,” said RTI activist Subhash Chandra Agrawal, speaking on the lawns of the Supreme Court. The High Court’s ruling had come on a plea filed by Agrawal seeking details of the assets held by the apex court’s judges. “The Supreme Court dismissed a plea filed by its own information officer. What could be a bigger achievement than this,” he said.

Another RTI activist Lokesh Batra described today’s as “a landmark order”. The big takeaway from this ruling is that nobody is above the law, especially those performing public duties, Batra told Newslaundry. “Furthermore, this judgment opens many doors. Even lawmakers, the attorney general’s office and so on ought to be under the RTI Act.”

Balancing transparency and privacy

In his concurring opinion, Ramana said there was a need to balance “transparency, judicial independence and the RTI Act”.

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

Hence, while assessing “public interest” under the RTI Act, these aspects should be considered: nature and content of the information; consequences of non-disclosure; dangers and benefits to public; type of confidential obligation; beliefs of the confidant; reasonable suspicion; party to whom information is disclosed; the manner in which information is acquired; public and private interests; and freedom of expression and proportionality.

Ramana argued that certain details are inherently private and presumptively protected under the right to privacy. Such details include age, gender, sex, and sexual preferences. “These instances need to be kept in mind while assessing the first requirement under the aforesaid test,” he said.

Though Chandrachud concurred that the CJI’s office is within the ambit of RTI, his opinion comes with riders. “Judicial independence does not mean that the judges are precluded from the rule of law,” he said while reading out his opinion.

Chandrachud agreed that information about which judges of the Supreme Court have declared their assets does not constitute their “personal information” and does not engage the right to privacy. The contents of their declarations, however, fall “within the meaning of personal information”.

He also said there was a need to formulate and define substantial standards for judicial appointments which should then be placed in the public realm. “The norms may also spell out the criteria followed for assessing 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,” he argued. This would fulfill the mandate of the RTI Act, he added, and “engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process”.

Is transparency in the judiciary cosmetic?

In May 1997, the top court mandated all its judges to declare their assets to the CJI’s office, adding that the declaration would remain confidential. 

In 2007, the advocate Subhash Chandra Agrawal filed an RTI request seeking details of judges in the higher judiciary who had declared their assets. His request was rejected, with the Supreme Court registry saying it did not have such information and that details of the assets of high court judges remained with the respective chief justices. In response to Agrawal’s appeal, the Central Information Commission held that the registry not only had information about the assets of judges but it also represented the Supreme Court as a public authority. It, therefore, was within the ambit of the RTI Act and obliged to provide information unless such disclosure was exempted by law. The registry challenged this order in the Delhi High Court, where Justice Ravindra Bhat – who is now in the Supreme Court – ruled in his favour. The order was subsequently upheld by a three-judge bench of the high court. In 2010, the registry challenged this order in the Supreme Court.

In January 2009, Agrawal sought copies of all correspondence exchanged between constitutional authorities, along with file notings, pertaining to the appointments of Justices HL Dattu, AK Ganguly and RM Lodha, who were appointed to the top court superseding senior judges such as AP Shah, AK Patnaik and VK Gupta.

The Supreme Court registry declined to disclose this information saying it did not deal with the appointment of judges. 

In July 2009, Agrawal filed another RTI request seeking all correspondence exchanged with the Chief Justice of India regarding a Union minister having allegedly approached Madras High Court judge R Raghupati to influence a judicial decision. Agrawal asked for the name of the minister and the steps taken by the authorities to address the breach. The registry rejected his request saying it had no such information. In November 2009, the CIC directed the registry to provide the information sought by Agrawal. The registry responded by challenging the order in the Supreme Court. 

It was the appeals resulting from Agrawal’s applications that the Supreme Court adjudicated on today.

In 2009, responding to criticism for rejecting Agrawal’s request, the Supreme Court reaffirmed the need to declare their assets publicly. Soon after KG Balakrishnan, then the CJI, became the first Supreme Court judge to declare his assets.

Since then, 55 other top court judges have made their assets public, including seven sitting judges – Gogoi, SA Bobde, Ramana, Arun Mishra, R Banumathi, AM Khanwilkar and Ashok Bhushan. Chandrachud, Gupta and Khanna, who were on the bench that delivered today’s ruling, have not made their assets public. BR Gavai and Surya Kant, who will become the CJI in 2025, have not yet declared their assets either. All the Supreme Court judges who have declared their assets so far have done so voluntarily.

Judges of the high courts of Kerala, Delhi, Bombay, Madras, and Punjab and Haryana have also declared their assets. The rules for declaring assets differ from court to court.