Secretary General, Supreme Court of India v. Subhash Chandra Agarwal166 (2010) DLT 305 (FB)

Case Summary

Full Case Details

AJIT PRAKASH SHAH, C.J. – 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 (“the CPIO”) nominated
under the Right to Information Act, 2005 (“the Act”) questioning correctness and legality of
the order dated 6th January, 2009 of the Central Information Commission (“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 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.
   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
   288
   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.
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 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.
   289
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 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 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.
13. 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;
    290
    (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.
14. 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.
15. On point No.3, it was held by the learned single Judge that the second part of the
    respondents 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.
16. 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.
17. 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”.
18. 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
    291
    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.
19. 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 2
20. 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.
21. 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
    therefore are correct and thus, do not deserve to be disturbed.
22. 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.
23. 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
    292
    declarations by the Judges, which form part of the discourse on point No.6 (para 27 of the
    impugned judgment).
24. 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 the Section 2(j) argument. The argument based on Sections 8(1)(e)
    and 8(1)(j) are reiterated.
    THE ISSUES
25. The controversy thus subsists on point Nos. 3,4 & 5, formulated for consideration by
    the learned single Judge. Having regard to the submissions at the stage of appeal, the points
    for consideration need to be recast as under:-
    (1) Whether the respondent had any “right to information” under Section 2(j) of the Act in
    respect of the information regarding making of declarations by the Judges of the Supreme
    Court pursuant to 1997 Resolution?
    (2) If the answer to question (1) above is in affirmative, whether CJI held the
    “information” in his “fiduciary” capacity, within the meaning of the expression used in
    Section 8(1)(e) of the Act?
    (3) Whether the information about the declaration of assets by the Judges of the Supreme
    Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act?
    RIGHT TO INFORMATION
26. Information is currency that every citizen requires to participate in the life and
    governance of the society. In any democratic polity, greater the access, greater will be the
    responsiveness, and greater the restrictions, greater the feeling of powerlessness and
    alienation. Information is basis for knowledge, which provokes thought, and without thinking
    process, there is no expression. “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 farce 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. And that is why the demand for openness in the government is increasingly
    growing in different parts of the world.
    293
    RELEVANT INTERNATIONAL LAW
27. The Charter of the United Nations, which was set up in 1945, in its preamble clearly
    proclaims that it was established in order to save succeeding generations (of humanity) from
    the scourge of war and to reaffirm faith in fundamental human rights, in the dignity and worth
    of the human person. The right to information was recognised at its inception in 1946, when
    the General Assembly resolved that: “freedom of information is a fundamental human right
    and the touchstone for all freedoms to which the United Nations is consecrated”. [UN General
    Assembly, Resolution 59(1), 65th Plenary Meeting, 14th December, 1946].
28. The Universal Declaration of Human Rights of 1948 adopted on 10th December in
    Article 19 said: “Everyone has the right to freedom of opinion and expression; this right
    includes freedom to hold opinions without interference and to seek, receive and impart
    information and ideas through any media and regardless of frontiers.”
29. The International Covenant on Civil and Political Rights (ICCPR) was adopted in
30. Article 19 of the Convention reads as follows: (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.” India has ratified the ICCPR. Section 2(d) read with 2(f) of the
    Protection of Human Rights Act, 1993 clarifies „human rights to include the rights guaranteed
    by the ICCPR.
31. The Convention of the Organisation of American States and European Convention on
    Human Rights also incorporate specific provisions on the right to information.
    RIGHT TO INFORMATION AS A CONSTITUTIONAL RIGHT
32. The development of the right to information as a part of the constitutional law of the
    country started with petitions by the print media in the Supreme Court seeking enforcement of
    certain logistical implications of the right to freedom of speech and expression such as
    challenging government orders for control of newsprint, bans on distribution of paper etc. It
    was through the following cases that the concept of the people right to know developed.
33. In Benett Coleman v. Union of India [AIR 1973 SC 106], the Court held that the
    impugned Newsprint Control Order violated the freedom of the press and therefore was ultra
    vires Article 19(1)(a) of the Constitution. The Order did not merely violate the right of the
    newspapers to publish, which was inherent in the freedom of the press, but also violated the
    right of the readers to get information which was included within their right to freedom of
    speech and expression. Chief Justice Ray, in the majority judgment, said: “It is indisputable
    that by freedom of the press is meant the right of all citizens to speak, publish and express
    their views. The freedom of the press embodies the right of the people to read.” (para 45)
34. In a subsequent judgment in Indian Express Newspaper (Bombay) Private Ltd. v.
    Union of India [AIR 1986 SC 515], the Court held that the independence of the mass media
    was essential for the right of the citizen to information. In Tata Press Ltd. v. Maharashtra
    Telephone Nigam Ltd. [(1995) 5 SCC 139], the Court recognized the right of the public at
    large to receive commercial speech.
    294
35. The concept of the right to information was eloquently formulated by Mathew, J. in
    The State of UP v. Raj Narain [AIR 1975 SC 865], in the following words: (para 74)
    “In a government of responsibility like ours, where all the agents of the public must be
    responsible for their conduct, there can be but few secrets. The people of this country have a
    right to know every public act, everything that is done in a public way, by their public
    functionaries. They are entitled to know the particulars of every public transaction in all its
    bearing. The right to know, which is derived from the concept of freedom of speech, though
    not absolute, is a factor which should make one wary, when secrecy is claimed for
    transactions which can, at any rate, have no repercussion on public security, see New York
    Times Co. v. United States [(1971) 29 Law Ed. 822 : 403 U.S. 713]. To cover with veil of
    secrecy, the common routine business, is not in the interest of the public. Such secrecy can
    seldom be legitimately desired. It is generally desired for the purpose of parties and politics
    or personal self-interest or bureaucratic routine. The responsibility of officials to explain and
    to justify their acts is the chief safeguard against oppression and corruption.”
36. In the case of S.P. Gupta v. Union of India [1981 (Supp) SCC 87 (para 65)],
    Bhagwati, J (as he then was) emphasising the need for openness in the government, observed:
37. The demand for openness in the government is based principally on two
    reasons. It is now widely accepted that democracy does not consist merely in people
    exercising their franchise once in five years to choose their rules and, once the vote is
    cast, then retiring in passivity and not taking any interest in the government. Today it
    is common ground that democracy has a more positive content and its orchestration
    has to be continuous and pervasive. This means inter alia that people should not only
    cast intelligent and rational votes but should also exercise sound judgment on the
    conduct of the government and the merits of public policies, so that democracy does
    not remain merely a sporadic exercise in voting but becomes a continuous process of
    government – an attitude and habit of mind. But this important role people can fulfil
    in a democracy only if it is an open government where there is full access to
    information in regard to the functioning of the government.”
38. In Association for Democratic Reforms v. Union of India [AIR 2001 Delhi 126], the
    Delhi High Court held that voters have a right to receive information about the antecedents of
    the candidates who stood for election. The Court held that the Election Commission had the
    duty to inform the voters about the candidates and therefore, it can direct the candidates filing
    nominations for election to give details about their assets and liabilities, past criminal cases
    ending in acquittals or convictions and pending criminal prosecution if any. The Union
    Government appealed against that decision to the Supreme Court which upheld the Delhi
    High Court decision in Union of India v. Association for Democratic Reforms [(2002) 5 SCC
    294] and directed the Election Commission to seek such information from the candidates
    filing nominations. The Government after consulting various political parties arrived at the
    conclusion that the Election Commission should not have such power and it brought forth an
    Ordinance under Article 123 of the Constitution to amend the Representation of People Act,
    1951 and withdrew from the Election Commission such powers requiring information to the
    extent mandated by the above decision of the Supreme Court. Constitutional validity of that
    amendment was challenged in the Supreme Court. The Supreme Court held the amendment to
    295
    be unconstitutional and void in PUCL v. Union of India [(2003) 4 SCC 399]. Justice M.B.
    Shah delivering the majority opinion of the Supreme Court said:
    “Firstly, it should be understood that the fundamental rights enshrined in the
    Constitution such as, right to equality and freedom have no fixed contents. From time
    to time, this Court has filled in the skeleton with soul and blood and made it vibrant.
    Since the last more than 50 years, this court has interpreted art. 14, 19 and 21 and
    given meaning and colour so that nation can have a truly republic democratic
    society.”
39. Justice P. Venkatarama Reddi in his concurring opinion reiterated the same view as
    follows:
    “We must take legitimate pride that this cherished freedom (freedom of speech)
    has grown from strength to strength in the post independent era. It has been
    constantly nourished and shaped to new dimensions in tune with the contemporary
    needs by the constitutional courts.”
40. Professor S.P. Sathe, in his brilliant work on right to information (“Right to
    Information”: Lexis Nexis Butterworths, 2006) stated that there are certain disadvantages of
    treating the right to information as situated exclusively in Article 19(1)(a) of the Constitution.
    According to the learned author, the right to information is not confined to Article 19(1)(a)
    but is also situated in Article 14 (equality before the law and equal protection of law) and
    Article 21 (right to life and personal liberty). The right to information may not always have a
    linkage with the freedom of speech. If a citizen gets information, certainly his capacity to
    speak will be enhanced. But many a time, he needs information, which may have nothing to
    do with his desire to speak. He may wish to know how an administrative authority has used
    its discretionary powers. He may need information as to whom the petrol pumps have been
    allotted. The right to information is required to make the exercise of discretionary powers by
    the Executive transparent and, therefore, accountable because such transparency will act as a
    deterrent against unequal treatment. In S.P. Gupta case, the petitioners had raised the question
    of alleged misuse of power of appointing and transferring the Judges of the High Court by the
    Government. In order to make sure that the power of appointment of Judges was not used
    with political motives thereby undermining the independence of the judiciary, the petitioners
    sought information as to whether the procedures laid down under Articles 124(2) and 217(1)
    had been scrupulously followed. Here the right to information was a condition precedent to
    the rule of law. Most of the issues, which the Mazdoor Kisan Shakti Sangathan of Rajasthan
    had raised in their mass struggle for the right to information, were mundane matters regarding
    wages and employment of workers, such information was necessary for ensuring that no
    discrimination had been made between workers and that everything had been done according
    to law. The right to information is thus embedded in Articles 14, 19(1)(a) and 21 of the
    Constitution.
    THE RIGHT TO INFORMATION ACT, 2005
41. After almost 55 years since the coming into force of the Constitution of India, a
    national law providing for the right to information was passed by both Houses of Parliament
    on 12/13th May, 2005. It is undoubtedly the most significant event in the life of Indian
    296
    Democracy. Prime Minister Manmohan Singh, while speaking on the Right to Information
    Bill in the Lok Sabha, said:
    “The Legislation would ensure that the benefits of growth would flow to all
    sections of people, eliminate corruption and bring the concerns of the common man
    to the heart of the all processes of governance.” [The Hindu, 12.5.2005, pg.1]
42. The preamble to the Act says that the Act is passed because „democracy requires an
    informed citizenry and transparency of information which are vital to its functioning and also
    to contain corruption and hold Governments and their instrumentalities accountable to the
    governed. The Act restricts the right to information to citizens (Section 3). An applicant
    seeking information does not have to give any reasons why he/she needs such information
    except such details as may be necessary for contacting him/her. Thus, there is no requirement
    of locus standi for seeking information [Section 6(2)].
    INFORMATION EXPLAINED
43. Section 2(f) of the Act defines “information” as any material in any form, including
    records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders,
    logbooks, contracts, reports, papers, samples, models, data material held in any electronic
    form and information relating to any private body which can be accessed by a public authority
    under any other law for the time being in force. As per Section 2(i), “record” includes (i) any
    document, manuscript and file; (ii) any microfilm, microfiche and facsimile copy of a
    document; (iii) any reproduction of image or images embodied in such microfilm (whether
    enlarged or not); and (iv) any other material produced by a computer or any other device.
    “Right to information” is defined by Section 2(j) to mean the right to information accessible
    under the 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.
    LIABILITY TO PROVIDE INFORMATION
44. Every public authority is liable to provide information. “Public authority” has been
    defined by Section 2(h) as any authority or body or institution of self-government established
    or constituted – (a) by or under the Constitution; (b) by any other law made by Parliament; (c)
    by any other law made by State Legislature; (d) by notification issued or order made by the
    appropriate Government, and includes any — (i) body owned, controlled or substantially
    financed; (ii) non-Government Organisation substantially financed, directly or indirectly by
    funds provided by the appropriate Government. By virtue of Section 24, the Act does not
    apply to the Intelligence and Security Organisations specified in the Second Schedule.
    However, the information pertaining to the allegations of corruption and human rights
    violations shall be required to be given by such authorities subject to the approval of the
    Central Information Commissioner.
45. The Act does not merely oblige the public authority to give information on being
    asked for it by a citizen but requires it to suo moto make the information accessible. Section
    297
    4(1)(a) of the Act requires every public authority to maintain all its records duly catalogued
    and indexed in a manner and the form which facilitates the right to information under the Act
    and ensure that all records that are appropriate to be computerised are, within a reasonable
    time and subject to availability of resources, computerised and connected through a network
    all over the country on different systems so that access to such records is facilitated. Section 4
    spells out various obligations of public authorities and Sections 6 and 7 lay down the
    procedure to deal with request for obtaining information.
    EXEMPTIONS
46. Exemptions from disclosure of information are contained in Section 8 of the Act and
    that provision starts with a non-obstante clause. Section 8(1) states that notwithstanding
    anything contained in the Act, there shall be no obligation to give any citizen information
    relating to following matters:
    (a) Information, the disclosure of which would prejudicially affect the sovereignty and
    integrity of India, the security, strategic, scientific or economic interests of the State, relation
    with foreign State or lead to incitement of an offence;
    (b) Information which has been expressly forbidden to be published 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 records of deliberations of the Council of Ministers,
    Secretaries and other officers. However, the decision of the Council of Ministers, the reasons
    thereof and the material on the basis of which the decisions were taken shall be made public
    after the decision has been taken and the matter is complete, or over and exception to this is
    further provided in the second proviso which says that “those matters which come under
    exemptions specified above shall not be disclosed;
    (j) Information which relates to personal information the disclosure of which has no
    relation to any public activity or interest, or which would cause unwarranted invasion of the
    298
    privacy of the individual unless the CPIO or the SPIO, as the case may be, is satisfied that the
    larger public interest justifies the disclosure of such information. (emphasis supplied)
    OVER-RIDING EFFECT OF THE ACT
47. Section 22 of the Act provides that the provisions of the Act shall have effect
    notwithstanding anything inconsistent contained in the Official Secrets Act, 1923 and any
    other law for the time being in force or in any instrument having effect by virtue of any law
    other than the RTI Act.
    POINT 1: WHETHER THE RESPONDENT HAD ANY “RIGHT TO INFORMATION”
    UNDER SECTION 2(J) OF THE ACT? APPELLANT’S CONTENTIONS:
48. The gravamen of the submissions of the learned Attorney General is that the
    respondent had no „right to information under Section 2(j) of the Act. He submitted that
    Section 2(j) contemplates two essential ingredients to constitute a right to information under
    the Act i.e. (i) the information should be accessible under the Act and (ii) such information
    should be held by or under the control of any public authority. It is his submission that the
    second mandatory requirement is not fulfilled in the instant case. According to him, the
    phrases held by or under the control of. necessarily imply a legal sanction behind the holding
    of or controlling such information. If there is no legal sanction behind holding of or
    controlling such information, there cannot be any right in respect of such information under
    Section 2(j). In other words unless public authority has dominion or control over the
    information, there is no right to information under the Act. The second limb of his argument
    is that the Resolutions have no force of law and that there is no legal or constitutional
    requirement for filing the assets declaration. As such declarations filed pursuant to 1997
    Resolution cannot be the subject matter of disclosure under the Act. Therefore, the finding of
    the learned single Judge that the 1997 Resolution is binding merely because it was passed at
    the Chief Justices Conference is entirely unjustified. According to him, the observations of
    the learned single Judge failed to answer the further question as to how the Resolution is to be
    implemented, by whom, to what extent and in what manner.
49. In support of the above submissions, learned Attorney General relied upon the
    decision in (i) In re. Coe”s Estate, 2002 Pacific Reporter 2nd Series, 1022 in which the term
    „held. was construed as “being invested with legal title or right to hold such claim or
    possession”. In this context, he also referred to the decisions of the Supreme Court in Bhudan
    Singh v. Nabi Bux [(1969) 2 SCC 481 (para 12)], Kailash Rai v. Jai Jai Ram [(1973) 1 SCC
    527 (para 11)]. The observations of Evershed M.R. in Dollfus Mieg et Compagnie S.A. v.
    Bank of England [1 Ch. 333] that “Control would….. cover the right to tell the possessor what
    is to be done with the property” were relied upon. A reference was made to Blacks Law
    Dictionary 8th ed. where the word control is defined as to exercise power or influence over
    and also to P. Ramanatha Aiyars Advanced Law Lexicon that the expression control connotes
    power to issue directions regarding how a thing may be done by a superior authority to an
    inferior authority. Certain passages in Philip Coppels book “Information Rights” were also
    relied upon.
50. Learned Attorney General further submitted that the Resolution of 1997 was in two
    parts. The first part related to the creation of an in-house mechanism for taking remedial
    299
    action against Judges who do not follow the universally accepted values of judicial life, the
    second part related to the declaration of assets, and no sanction/in-house procedure was
    contemplated in the event of non-filing of declaration. He placed heavy reliance on the
    decision in the case of Indira Jaising v. Registrar General [(2003) 5 SCC 294], in which the
    Supreme Court has held that even the in-house procedure in the judiciary has its basis only on
    moral authority and not in exercise of power under any law. Learned Attorney General argued
    that a plethora of information is available within the judiciary, for example, notes of Judges or
    draft judgments. If the only requirement is possession then all such information would also
    have to be brought under Section 2(j) of the Act. Therefore, according to him, a restricted
    meaning will have to be given to the term held as information held by a public authority in its
    functioning as a public authority and not merely in its possession.
    RESPONDENT’S CONTENTIONS
51. In reply, Mr. Prashant Bhushan submitted at the outset that the respondent is not
    seeking the enforcement of the Resolutions. The non-enforcement of the Resolutions is an
    entirely different issue altogether, and it may be argued that a citizen cannot compel either the
    Judges or the Chief Justice to comply with the same. He submitted that when information is
    provided to the CJI under the Resolutions, the same constitutes information held and under
    the control of the CJI as a public authority and would thus be amenable to the provisions of
    the Act. The Code of Conduct, according to him, establishes a mechanism and an in-house
    procedure for inquiring into complaints by a committee constituted by the CJI for taking
    action against Judges found to have violated the Code of Conduct. The Code also prescribes
    certain consequences that arise out of non-adherence to the Code. The information provided
    to the CJI is consciously retained by the office of the CJI in his capacity as the CJI and as a
    repository of such information, prescribed by the Resolutions. It is not as if such information
    is held unlawfully or casually or even by accident. It is in fact maintained in the office as
    record for successive Chief Justices. According to Mr. Bhushan if the interpretation suggested
    by the learned Attorney General is accepted, it would lead to subversion of the Act and would
    render it totally ineffective.
52. Mr. Bhushan submitted that the CJI has implemented this mechanism in several past
    instances, which reveals that Judges have considered that these are binding standards. The
    1997 Resolution cannot be disclaimed, as it was a conscious decision taken by Judges, who
    hold high public office, under the Constitution of India. Therefore, it was submitted that the
    Resolution has the force of law, and alludes to the 1999 Conference Resolution, which states
    that it is a “restatement of pre-existing and universally accepted norms, guidelines and
    conventions….” It was argued that the binding nature of either resolution cannot be
    undermined, and that it is for the CJI or the individual High Court Chief Justice, to take such
    appropriate measures as are warranted to ensure that declaration of assets takes place.
53. Mr. Bhushan submitted that the passages relied upon by the learned Attorney General
    from the commentary of Philip Coppel would rather support a liberal interpretation of the
    terms held or under the control of under Section 2(j) of the Act. The rest of the authorities
    relied upon by the learned Attorney General are related to property, which imply an entirely
    different nature of title and holding. With regard to the draft notes and judgments, learned
    300
    counsel submitted that whether they constitute information within the meaning of the Act will
    have to be determined on case to case basis, in the manner all RTI applications are decided.
    SECTION 2(j) “RIGHT TO INFORMATION”
54. Two definitions are crucial for answering the first issue i.e. “Information” [Section
    2(f)] and “Right to Information” [Section 2(j)]. Information is defined to mean any material in
    any form, including records, documents, memos, e-mails, opinions, advices, press releases,
    circulars, orders, logbooks, contracts, reports, papers, samples, models. Also, data held in any
    electronic form such as FAX, micro film, microfiche etc. It also includes information relating
    to any private body which can be accessed by a public authority under any other law for the
    time being in force. The definition thus comprehends all matters which fall within the
    expression “material in any form”. In absence of any specific exclusion, asset declarations by
    the Judges held by the CJI or the CJs of the High Courts as the case may be, are information.
    under Section 2(f). This position is not disputed by the learned Attorney General. But
    according to him, the term held under the Act necessarily requires a Public Authority to have
    the right to call for the information, or impose on a person an obligation to provide such
    information to the public authority.
55. As defined in Section 2(j), the term 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 right to inspect, take notes, certified copies etc. „Accessible. shall
    mean the information being readily available or reachable or which can be obtained from the
    document, file, record etc. It is mandatory for each public authority to give this information to
    the citizen except where the information is exempt under the provisions of Section 8(1) of the
    Act. However, a public authority may allow access to every information in public interest if
    disclosure outweighs the harm to the protected interest irrespective of the provisions under
    Section 8(1). Further, where the information is exempt from disclosure, Section 10 lays down
    that access may be provided to that part of the record which does not contain any information
    which is exempt from disclosure and which can reasonably be secured from any part that
    contain exempt information.
56. Philip Coppel in his monumental work “Information Rights” (2nd Edition, Thomson,
    Sweet & Maxwell 2007) explains the holding requirement in the context of Freedom of
    Information Act, 2000 (UK), thus:
    “When information is “held” by a public authority For the purposes of the
    Freedom of Information Act 2000, information is “held by a public authority if it is
    held by the authority otherwise than on behalf of another person, or if it is held by
    another person on behalf of the authority. The Act has avoided the technicalities
    associated with the law of disclosure, which has conventionally drawn a distinction
    between a document in the power, custody or possession of a person. Putting to one
    side the effects of s. 3(2) (see para.9-009 below), the word “held” suggests a
    relationship between a public authority and the information akin to that of ownership
    or bailment of goods. Information: – that is, without request or arrangement, sent to
    or deposited with a public authority which does not hold itself out as willing to
    receive it and which does not subsequently use it; – that is accidentally left with a
    301
    public authority; – 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 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. The position under the Environmental Information
    Regulations 2004 is clearer, those regulations expressly providing that environmental
    information must have been produced or received by the public authority if it is to be
    information “held” by that public authority. Under both regimes, information sent to
    a public authority without invitation and knowingly kept for any material length of
    time can probably be said to be held by the public authority. In short, information
    will not be “held” by a public authority, it is suggested, where that information
    neither is nor has been created, sought, used or consciously retained by it. Thus, in
    the example given by the explanatory notes to the legislation, a Ministers
    constituency papers would not be held by the department just because the Minister
    happens to keep them there. It is quite possible for the same information to be held
    by more than one public authority. For example, if a document is sent by one public
    authority to another, but the first keeps a copy for itself, both public authorities will
    be holding the information comprised in the document. There is nothing to stop an
    applicant making a request to either or both public authorities for the same
    information.”
57. 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 receive it and which does not subsequently use it or where it is accidentally left
    with a public authority or just passes through a public authority or where it belongs to an
    employee or officer of a public authority but which is brought by that employee or officer
    unto the public authority premises it will not be information held by the public authority for
    the lack of the requisite assumption by the public authority of responsibility for or dominion
    over the information that is necessary before the public authority can be said to hold the
    information. Coppel refers to the decision in Canada Post Corpn. v. Canada (Minister of
    Public Works) [(1995) 2 F.C. 110] where the Federal Court has held that the notion of control
    was not limited to the power to dispose of a record, that there was nothing in the Act that
    indicated that the word “control” should not be given a broad interpretation, and that a narrow
    interpretation would deprive citizens of a meaningful right of access under the Act.
58. The decisions cited by the learned Attorney General on the meaning of the words held
    or control. are relating to property and cannot be relied upon in interpretation of the
    provisions of the Right to Information Act. The source of right to information does not
    emanate from the Right to Information Act. It is a right that emerges from the constitutional
    302
    guarantees under Article 19(1)(a) as held by the Supreme Court in a catena of decisions. The
    Right to Information Act is not repository of the right to information. Its repository is the
    constitutional rights guaranteed under Article 19((1)(a). The Act is merely an instrument that
    lays down statutory procedure in the exercise of this right. Its overreaching purpose is to
    facilitate democracy by helping to ensure that citizens have the information required to
    participate meaningfully in the democratic process and to help the governors accountable to
    the governed. In construing such a statute the Court ought to give to it the widest operation
    which its language will permit. The Court will also not readily read words which are not there
    and introduction of which will restrict the rights of citizens for whose benefit the statute is
    intended.
59. The words held by or under the control of under Section 2(j) 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 in the course of
    its functions and its official capacity. There are any numbers of examples where there is no
    legal obligation to provide information to public authorities, but where such information is
    provided, the same would be accessible under the Act. For example, registration of births,
    deaths, marriages, applications for election photo identity cards, ration cards, pan cards etc.
    The interpretation of the word held. suggested by the learned Attorney General, if accepted,
    would render the right to information totally ineffective.
    NOTES, JOTTINGS AND DRAFT JUDGMENTS
60. The apprehension of the learned Attorney General that unless a restrictive meaning is
    given to Section 2(j), the notes or jottings by the Judges or their draft judgments would fall
    within the purview of the Information Act is misplaced. Notes taken by the Judges while
    hearing a case cannot be treated as final views expressed by them on the case. They are meant
    only for the use of the Judges and cannot be held to be a part of a record “held” by the public
    authority. However, if the Judge turns in notes along with the rest of his files to be maintained
    as a part of the record, the same may be disclosed. It would be thus retained by the registry.
    Insofar as draft judgments are concerned it has been explained by Justice Vivian Bose in
    Surendra Singh v. State of UP [AIR 1954 SC 194]:
    Judges may, and often do, discuss the matter among themselves and reach a
    tentative conclusion. That is not their judgment. They may write and exchange drafts.
    Those are not the judgments either, however heavily and often they may have been
    signed. The final operative act is that which is formally declared in open court with
    the intention of making it the operative decision of the Court. That is what constitutes
    the „judgment….
    The above observations though made in a different context, highlight the status of the
    proceedings that take place before the actual delivery of the judgment. Even the draft
    judgment signed and exchanged is not to be considered as final judgment but only tentative
    view liable to be changed. A draft judgment therefore, obviously cannot be said to be
    information held by a public authority.
    BINDING NATURE OF THE 1997 RESOLUTION AND THE 1999 JUDICIAL
    CONFERENCE RESOLUTION.
    303
61. The narration of the background as stated in “Restatement of Values of Judicial Life”
    adopted in the Chief Justices. Conference in December, 1999 would show that as far back as
    on September 18-19, 1992, the Chief Justices. Conference resolved to restate the pre-existing
    and universally accepted norms, guidelines and conventions reflecting the high values of
    judicial life to be observed by Judges during their tenure in office. A draft restatement of
    values was circulated on 21st November, 1993 to the Chief Justices of the High Courts for
    discussion with their colleagues. This draft prepared by a duly constituted committee was
    considered and adopted after approval in the Full Court meeting of the Supreme Court held on
    7th May, 1997. This provided for an in-house procedure for remedial action against erring
    Judges and also declaration by individual Judges 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. The Resolution adopted in the Full Court meeting of the
    Supreme Court on 7th May, 1997 reads as follows:
    “RESOLVED that an in-house procedure should be devised by the Honble Chief
    Justice of India to take suitable remedial action against Judges who by their acts of
    omission or commission do not follow the universally accepted values of judicial life
    including those indicated in the “Restatement of Values of Judicial Life.”
    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 reasonable
    time. The declaration so made should be to the Chief Justice of the Court. The Chief
    Justice should make a similar declaration for the purpose of the record. The
    declaration made by the Judges or the Chief Justice, as the case may be, shall be
    confidential.”
62. On 3rd and 4th December, 1999, the Conference of Chief Justices of all High Courts
    was held in the Supreme Court premises in which the Chief Justices unanimously resolved to
    adopt the “Restatement of Values of Judicial Life” (Code of Conduct). It is a complete code
    of canons of judicial ethics and is extracted below:
    “(1) Justice must not merely be done but it must also be seen to be done. The
    behaviour and conduct of members of the higher judiciary must reaffirm the people
    faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the
    Supreme Court or a High Court, whether in official or personal capacity, which
    erodes the credibility of this perception has to be avoided.
    (2) A Judge should not contest the election to any office of a Club, society or
    other association; further he shall not hold such elective office except in a society or
    association connected with the law.
    (3) Close association with individual members of the Bar, particularly those who
    practice in the same court, shall be eschewed.
    (4) A Judge should not permit any member of his immediate family, such as
    spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a
    304
    member of the Bar, to appear before him or even be associated in any manner with a
    cause to be dealt with by him.
    (5) No member of his family, who is a member of the Bar, shall be permitted to
    use the residence in which the Judge actually resides or other facilities for
    professional work.
    (6) A Judge should practice a degree of aloofness consistent with the dignity of
    his office.
    (7) A Judge shall not hear and decide a matter in which a member of his family, a
    close relation or a friend is concerned.
    (8) A Judge shall not enter into public debate or express his views in public on
    political matters or on matters that are pending or are likely to arise for judicial
    determination.
    (9) A Judge is expected to let his judgments speak for themselves; he shall not
    give interview to the media.
    (10) A Judge shall not accept gifts or hospitality except from his family, close
    relations and friends.
    (11) A Judge shall not hear and decide a matter in which a company in which he
    holds shares is concerned unless he has disclosed his interest and no objection to his
    hearing and deciding the matter is raised.
    (12) A Judge shall not speculate in shares, stocks or the like.
    (13) A Judge should not engage directly or indirectly in trade or business, either
    by himself or in association with any other person. (Publication of a legal treatise or
    any activity in the nature of a hobby shall not be construed as trade or business).
    (14) A Judge should not ask for, accept contributions or otherwise actively
    associate himself with the raising of any fund for any purpose.
    (15) A Judge should not seek any financial benefit in the form of a perquisite or
    privilege attached to his office unless it is clearly available. Any doubt in this behalf
    must be got resolved and clarified through the Chief Justice.
    (16) Every Judge must at all times be conscious that he is under the public gaze
    and there should be no act or omission by him which is unbecoming of the high
    office he occupies and the public esteem in which that office is held. These are only
    the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive
    but only illustrative of what is expected of a Judge.”
    JUDICIAL ACCOUNTABILITY
63. The 1997 Resolution and the 1999 Judicial Conference Resolution emphasise that any
    code of conduct or like expression of principles for the judiciary should be formulated by the
    judiciary itself. That would be consistent with the principle of judicial independence and with
    the separation of powers. High integrity and independence is fundamental and inherent,
    notwithstanding any specific code having been provided in the constitution or by a statute. If
    the judiciary fails or neglects to assume responsibility for ensuring that its members maintain
    high standards of judicial conduct expected of them, public opinion and political expediency
    may lead the other two branches of government to intervene. When that happens, the
    305
    principle of judicial independence upon which the judiciary is founded and by which it is
    sustained, is likely to be undermined to some degree, perhaps seriously.
64. The second Judges case witnessed an assertion by the Supreme Court of the
    independence of the Judiciary forming part of the basic structure of the Constitution. The
    need to insulate judiciary from interference by the Executive in the matter of appointments of
    Judges was seen as a necessary concomitant of its very functioning within the scheme of the
    Constitution. The Judiciary was also asserting as a part of that independence, that as an
    institution it believed in self-regulation. In other words, it was believed that the Judiciary as
    an institution could itself regulate conduct of Judges without requiring any enacted law for
    that purpose. The 1997 and 1999 Resolutions have to be viewed in the background of the
    above assertion of the independence of judiciary.
65. The text of the two Resolutions focuses on two different aspects of accountability.
    One touching on the conduct of Judges for which the Resolutions speak of an in-house
    mechanism. The other concerns declaration of assets which is also seen as a facet of
    accountability.
66. That Judges have to declare their assets is a requirement that is not being introduced
    for the first time as far as subordinate Judges are concerned. They have for long been required
    to do that year after year in terms of the Rules governing their conditions of service. As
    regards accountability and independence, it cannot possibly be contended that a Judicial
    Magistrate at the entry level in the judicial hierarchy is any less accountable or independent
    than the Judge of the High Court or the Supreme Court. If declaration of assets by a
    subordinate judicial officer is seen as essential to enforce accountability at that level, then the
    need for such declaration by Judges of the constitutional courts is even greater. While it is
    obvious that the degree of accountability and answerability of a High Court Judge or a
    Supreme Court Judge can be no different from that of a Magistrate, it can well be argued that
    the higher the Judge is placed in the judicial hierarchy, the greater the standard of
    accountability and the stricter the scrutiny of accountability of such mechanism. All the
    Judges functioning at various levels in the judicial hierarchy form part of the same institution
    and are independent of undue interference by the Executive or the Legislature. The
    introduction of the stipulation of declaring personal assets, is to be seen as an essential
    ingredient of contemporary accepted behaviour and established convention.
67. Questioning of the binding nature of the Resolutions is, therefore, contrary to the
    assertions of judicial independence. To contend that there has to be a law enacted by the
    Parliament to compel Judges to disclose their assets is to undermine the independence that has
    been asserted in the second Judges case.
68. It can hardly be imagined that Resolutions which have been unanimously adopted at a
    conference of Judges would not be binding on the Judges and its efficacy can be questioned.
    In fact, the understanding of successive CJIs and the institution as a whole since the passing
    of these Resolutions has been otherwise. Letters have been written by the CJI to each of the
    Chief Justices of the High Courts enclosing copies of the Resolutions and requiring the Chief
    Justice of every High Court to draw the attention of individual Judges to the text of the
    resolutions and to ask for information pertaining to assets possessed by each of them, his/her
    306
    spouse and dependent persons. At no point in time has there been any questioning of the need
    to comply with the requirements of the Resolutions.
    EXTENT AND MANNER OF DECLARATION
69. It is indeed strange that it is sought to be contended that unless and until the
    Resolutions themselves provide for a sanction or penalty for non-compliance of disclosure of
    assets by an individual Judge to the CJI or the CJ, as the case may be, the Resolutions would
    not have any binding effect and that would not be in the nature of „law.. The question posed
    by the learned Attorney General and reiterated in the written submissions is that unless the
    question “as to how the Resolution is to be implemented, by whom, to what extent and in
    what manner” is answered, it cannot be said that the Resolutions have a binding effect.
70. Since the impugned judgment of the learned single Judge, a resolution has been
    passed on the administrative side by the Full Court of the Supreme Court, deciding to place
    information relating to assets on the website. Four High Courts have decided to disclose the
    assets of their Judges publicly. Two of the High Courts have placed the information on their
    respective websites. Although it was sought to be contended by the learned Attorney General
    that even such resolutions would not have a binding effect of law, such a contention cannot be
    accepted if the proper functioning of the judiciary as an institution has to be ensured. The
    consequence of accepting such an argument would mean that individual Judges will simply
    declare that they are not bound by any of the resolutions of the Court and they are free to act
    according to their whim. Such a position is wholly untenable and unacceptable for the proper
    functioning of the judiciary as a self regulatory independent mechanism of State, accountable
    to the people and to the Constitution of India.
71. The disclosure on the website of information pertaining to assets of Judges is a
    complete answer to the question posed by the learned Attorney General. The disclosure of
    assets by Judges, their spouses and dependent persons on the website of the Supreme Court,
    Kerala High Court and Madras High Courts provides the answer as to how the Resolutions
    can be implemented, in what manner, by whom and to what extent. This, therefore, cannot be
    the reason for denying the binding nature of the Resolutions. Much has been said of where
    one should draw a line on how much should be disclosed. This is entirely for the Judges to
    decide consistent with their perception of their accountability to the judiciary as an institution.
    It can be seen from the assets disclosure of the Judges which are available on website that the
    uniform standards have been evolved regarding the nature of the information and the
    periodicity of the declarations to be made. The above development shows that the Judges
    have perfectly understood how much information should be disclosed and in what manner
    they have to put the information on the website.
    INDIRA JAISING’S CASE DISTINGUISHED
72. The reliance placed by the learned Attorney General on Indira Jaising”s case is rather
    misconceived. In that case, a petition was filed under Article 32 of the Constitution in public
    interest primarily for the publication of the inquiry report made by a Committee consisting of
    two Chief Justices and a Judge of different High Courts in respect of certain allegations of
    alleged involvement of sitting Judges of the High Court of Karnataka in certain incidents and
    also for a direction to any professional and independent investigating agency having expertise
    307
    to conduct a thorough inquiry into the said incident and to submit a report on the same to the
    Supreme Court. Rajendra Babu, J (as he then was) writing the judgment pointed out that a
    Judge cannot be removed from his office except by impeachment by a majority of the House
    and a majority of not less than two-third present and voting as provided by Articles 124 and
    217 of the Constitution of India. The Judges (Inquiry) Act, 1968 has been enacted providing
    for the manner for conducting inquiry into the allegation of judicial conduct upon a motion of
    impeachment sponsored by at least hundred Lok Sabha Members or fifty Rajya Sabha
    Members. No other disciplinary inquiry is envisaged or contemplated either in the
    Constitution or under the Act. On account of this lacuna, in-house procedure has been
    adopted for inquiry to be made by the peers of Judges for report to the Chief Justice of India
    in case of a complaint against the Chief Justices or Judges of the High Court in order to find
    out the truth of the imputation made in the complaint and that in-house inquiry is for the
    purpose of his own information and satisfaction. The report of the Inquiry Committee is
    purely preliminary in nature, ad hoc and not final. If the Chief Justice of India is satisfied that
    no further action is called for in the matter, the proceeding is closed. If any further action is to
    be taken as indicated in the in-house procedure itself, the Chief Justice of India may take such
    further steps as he deems fit. In case of breach of any rule of the Code of Conduct, the Chief
    Justice can choose not to post cases before a particular Judge against whom there are
    acceptable allegations. It is possible to criticise that decision on the ground that no inquiry
    was held and the Judge concerned had no opportunity to offer his explanation particularly
    when the Chief Justice is not vested with any power to decide about the conduct of a Judge.
    The Court was of the opinion that a report made on such inquiry if given publicity will only
    lead to more harm than good to the institution as Judges would prefer to face inquiry leading
    to impeachment. In such a case, the only course open to the parties concerned if they have
    material is to invoke provisions of Article 124 or Article 121(7) of the Constitution, as the
    case may be. It is in this context it was observed that 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 under any law. The obligation of the Judges to declare assets in terms of
    the Resolutions was not in issue before the Court. It is not even remotely suggested that the
    Code of Conduct is not binding on the Judges or they are free to ignore the Code of Conduct.
    Indeed the Court distinguished the decisions in S.P. Gupta, Raj Narain etc., relating to the
    right to information. We must bear in mind that this decision was rendered prior to the
    enactment of the Right to Information Act and may not serve as a useful guide in interpreting
    the provisions of the said Act.
73. The learned single Judge thus rightly concluded that the Resolutions are meant to be
    adhered to and that the fact that there is no objective mechanism to ensure its implementation
    is of little consequence because the consequence of not complying with the Resolutions is
    linked to the faith in the system; that thought alone is sufficient to incentivise compliance.
    Justice J.B. Thomas sums up this position aptly in the following manner:
    “Some standards can be prescribed by law, but the spirit of, and the quality of the service
    rendered by a profession depends far more on its observance of ethical standards. These are
    far more rigorous than legal standards…. They are learnt not by precept but by the example
    308
    and influence of respected peers. Judicial standards are acquired, so to speak, by professional
    osmosis. They are enforced immediately by conscience.”
74. In view of the above discussion, it is held that the respondent had right to information
    under Section 2(j) of the Act in respect of the information regarding making of declarations
    by the Judges of the Supreme Court pursuant to the 1997 Resolution.
    POINT 2: WHETHER THE CJI HELD THE “INFORMATION” IN HIS “FIDUCIARY”
    CAPACITY
75. The submission of the learned Attorney General is that the declarations are made to
    the CJI in his fiduciary capacity as pater familias of the Judiciary. Therefore, assuming that
    the declarations, in terms of the 1997 Resolution constitute “information” under the Act, yet
    they cannot be disclosed – or even particulars about whether, and who made such declaration,
    cannot be disclosed – as it would entail breach of a fiduciary duty by the CJI. He relies on
    Section 8(1)(e) to submit that a public authority is under no obligation to furnish “information
    available to a person in his fiduciary relationship”. He argues that the voluntary information
    given by the Judges is not information in the public domain. He emphasizes that the
    Resolution crucially states:
    “The declaration made by the Judges or the Chief Justice, as the case may be,
    shall be confidential”.
    denied merely on the classification of a document or on a plea of confidentiality, if the
    document is otherwise covered by the Act.
    FIDUCIARY RELATIONSHIP
76. As Waker defines it: “A „fiduciary. is a person in a position of trust, or occupying a
    position of power and confidence with respect to another such that he is obliged by various
    rules of law to act solely in the interest of the other, whose rights he has to protect. He may
    not make any profit or advantage from the relationship without full disclosure. The category
    includes trustees, Company promoters and directors, guardians, solicitors and clients and
    other similarly placed.” [Oxford Companion to Law, 1980 p.469]
77. “A fiduciary relationship”, as observed by Anantnarayanan, J., “may arise in the
    context of a jural relationship. Where confidence is reposed by one in another and that leads
    to a transaction in which there is a conflict of interest and duty in the person in whom such
    confidence is reposed, fiduciary relationship immediately springs into existence.” [see Mrs.
    Nellie Wapshare v. Pierce Lasha & Co. Ltd., AIR 1960 Mad 410]
78. In Lyell v. Kennedy [(1889) 14 AC 437], the Court explained that whenever two
    persons stand in such a situation that confidence is necessarily reposed by one in the other,
    there arises a presumption as to fiduciary relationship which grows naturally out of that
    confidence. Such a confidential situation may arise from a contract or by some gratuitous
    undertaking, or it may be upon previous request or undertaken without any authority.
79. In Dale & Carrington Invt. (P) Ltd. v. P.K. Prathaphan [(2005) 1 SCC 212] and
    Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd. [(1981) 3 SCC
    333], the Court held that the directors of the company owe fiduciary duty to its shareholders.
    309
    In P.V. Sankara Kurup v. Leelavathy Nambier [(1994) 6 SCC 68], the Court held that an
    agent and power of attorney can be said to owe a fiduciary relationship to the principal.
80. Section 88 of the Indian Trusts Act requires a fiduciary not to gain an advantage of
    his position. Section 88 applies to a trustee, executor, partner, agent, director of a company,
    legal advisor or other persons bound in fiduciary capacity. Kinds of persons bound by
    fiduciary character are enumerated in Mr.M. Gandhi.s book on “Equity, Trusts and Specific
    Relief” (2nd ed., Eastern Book Company) “
    (1) Trustee,
    (2) Director of a company,
    (3) Partner,
    (4) Agent,
    (5) Executor,
    (6) Legal Adviser,
    (7) Manager of a joint family,
    (8) Parent and child,
    (9) Religious, medical and other advisers,
    (10) Guardian and Ward,
    (11) Licensees appointed on remuneration to purchase stocks on behalf of government,
    (12) Confidential Transactions wherein confidence is reposed, and which are indicated by
    (a) Undue influence, (b) Control over property, (c) Cases of unjust enrichment, (d)
    Confidential information, (e) Commitment of job,
    (13) Tenant for life,
    (14) Co-owner,
    (15) Mortgagee,
    (16) Other qualified owners of property,
    (17) De facto guardian,
    (18) Receiver,
    (19) Insurance Company,
    (20) Trustee de son tort,
    (21) Co-heir,
    (22) Benamidar.”
81. The CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of
    the Supreme Court hold independent office, and there is no hierarchy, in their judicial
    functions, which places them at a different plane than the CJI. The declarations are not
    furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional
    obligation to maintain higher standards and probity of judicial life and are in the larger public
    interest. In these 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.
    CONFIDENTIALITY
82. The Act defines which information will be in the public domain and includes within
    the definition “any material in any form, including records, documents, memos, e-mails,
    310
    opinions, advices, etc.” Irrespective of whether such notes, e-mails, advices, memos etc. were
    marked confidential and kept outside the public domain, the Act expressly places them in the
    public domain and accessible to the people subject to exclusionary clauses contained in
    Section 8 of the Act. Section 11(1) of the Act provides that where the authority intends to
    disclose any information which relates to and was supplied by a third party and has been
    treated confidential by third party, it shall give a clear notice of five days to such third party
    inviting him to make a submission in writing or orally whether such information should be
    disclosed and such submission shall be kept in view while taking a decision regarding the
    disclosure of such information. Except in the case of trade and commerce secrets, protected
    by law, disclosure may be allowed in public interest if disclosure outweighs in importance
    any possible harm or injury to the interest of the third party. The disclosure of such
    information regarding a third party is, however, further subject to the provisions providing for
    non-disclosure of information relating to privacy of a person under Section 8(j) of the Act.
83. In U.K., the Freedom of Information Act 2000 exempts the information from
    disclosure where it was obtained by a public authority from any other person and the
    disclosure of the information to the public by the public authority would constitute an
    actionable breach of confidence. Similar provisions are made in the information laws of USA,
    New Zealand, Australia, Canada etc. However, as pointed out by Phillip Coppel, a public
    interest defence is available to a claim of breach of confidence. Therefore, a consideration of
    the public interest is required to determine whether disclosure would constitute an actionable
    breach of confidence. In addition, so far as government secrets are concerned, the Crown is
    not entitled to restrain disclosure or to obtain redress on confidentiality grounds unless it can
    establish that disclosure has damaged or would be likely to damage the public interest.
84. In Attorney General v. Guardian Newspapers Limited [(No.2) (1990) 1 AC 109],
    Lord Goff identified three limiting concepts to the principles of breach of confidence. The
    first that the principle of confidentiality does not apply to information that is so generally
    accessible that, in all the circumstances, it cannot be regarded as confidential. The second is
    that the duty of confidence does not apply to information that is useless or trivial. The third
    limiting concept identified by Lord Goff is that in certain circumstances the public interest in
    maintaining confidence may be outweighed by the public interest in disclosure. Lord Goff
    summed up the matter as follows: (pg.282)
    “The third limiting principle is of far greater importance. It is that, although the
    basis of the laws protection of confidence is that there is a law, nevertheless that
    public interest may be outweighed by some other countervailing public interest
    which favours disclosure. This limitation may apply, as the learned judge pointed
    out, to all types of confidential information. It is this limiting principle which may
    require a court to carry out a balancing operation, weighing the public interest in
    maintaining confidence against a countervailing public interest favouring disclosure.
    Embraced within this limiting principle is, of course, the so called defence of
    iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot
    be made „the confidant of a crime or a fraud.: see Gartside v. Outram per Sir
    William Page Wood V.C. But it is now clear that the principle extends to matters of
    which disclosure is required in the public interest: see Beloff v. Pressdram Ltd, per
    311
    Ungoed Thomas, J and Lion Laboratories Ltd v. Evans per Griffiths L.J. It does not
    however follow that the public interest will in such cases require disclosure to the
    media, or to the public by the media. There are cases in which a more limited
    disclosure is all that is required: see Francome v. Mirror Group Newspapers Ltd. A
    classic example of a case where limited disclosure is required is a case of alleged
    iniquity in the Security Services.”
    DUTY TO DENY OR CONFIRM
85. In the present case, the only information that was sought by the respondent was
    whether such declaration of assets were filed by Judges of the Supreme Court and also whether
    High Court Judges have submitted such declarations about their assets to respective Chief
    Justices in States. The respondent had not sought a copy of the declaration or the contents
    thereof or even the names etc., of the Judges providing the same. Release of this information
    would not amount to actionable breach of any confidentiality. The duty to confirm or deny
    would not amount to breach of confidentiality unless the request is so specific that the mere
    confirmation that information is held (without a disclosure of that information) would be to
    disclose the gist of the information. Philip Coppel explains the legal position as follows:
    “The duty to confirm or deny” “The duty to confirm or deny does not arise if, or
    to the extent that, a confirmation or denial that the public authority holds the
    information specified in the request would (apart from the Act) constitute an
    actionable breach of confidence. This is an absolute exclusion of duty. As a matter of
    practice, other than where the request is so specific that the mere confirmation that
    the information is held (without a disclosure of that information) would be to disclose
    the gist of the information, it is difficult to contemplate circumstances in which a
    public authority could properly refuse to confirm or deny that it held information
    under S.41(2)”.
86. In our opinion, the learned single Judge has summed up the position correctly in para
    58:
    “From the above discussion, it may be seen that a fiduciary relationship is one
    whereby a person places complete confidence in another in regard to a particular
    transaction or his general affairs or business. The relationship need not be “formally”
    or “legally” ordained, or established, like in the case of a written trust; but can be one
    of moral or personal responsibility, due to the better or superior knowledge or
    training, or superior status of the fiduciary as compared to the one whose affairs he
    handles. If viewed from this perspective, it is immediately apparent that the CJI
    cannot be a fiduciary vis-à-vis Judges of the Supreme Court; he cannot be said to
    have superior knowledge, or be better trained, to aid or control their affairs or
    conduct. Judges of the Supreme Court hold independent office, and there is no
    hierarchy, in their judicial functions, which places them at a different plane than the
    CJI. In these circumstances, it cannot be held that asset information shared with the
    CJI, by the judges of the Supreme Court, are held by him in the capacity of a
    fiduciary, which if directed to be revealed, would result in breach of such duty. So far
    as the argument that the 1997 Resolution had imposed a confidentiality obligation on
    312
    the CJI to ensure non-disclosure of the asset declarations, is concerned, the court is of
    opinion that with the advent of the Act, and the provision in Section 22 — which
    overrides all other laws, etc. (even overriding the Official Secrets Act) the argument
    about such a confidentiality condition is on a weak foundation. The mere marking of
    a document, as “confidential”, in this case, does not undermine the overbearing
    nature of Section 22. Concededly, the confidentiality clause (in the 1997 Resolution)
    operated, and many might have bona fide believed that it would ensure immunity
    from access. Yet the advent of the Act changed all that; all classes of information
    became its subject matter. Section 8(1)(f) affords protection to one such class, i.e.
    fiduciaries. The content of such provision may include certain kinds of relationships
    of public officials, such as doctor-patient relations; teacher-pupil relationships, in
    government schools and colleges; agents of governments; even attorneys and lawyers
    who appear and advise public authorities covered by the Act. However, it does not
    cover asset declarations made by Judges of the Supreme Court, and held by the CJI.”
87. For the above reasons, we hold that Section 8(e) does not cover asset declarations
    made by Judges of the Supreme Court and held by the CJI. The CJI does not hold such
    declarations in a fiduciary capacity or relationship.
    POINT 3: WHEHTER INFORMATION ABOUT DECLARATION OF ASSETS BY
    JUDGES IS EXEMPT UNDER SECTION 8(1)(j)
88. The learned Attorney General argued that the information which is sought for by the
    respondent is purely and simply personal information, the disclosure of which has no
    relationship to any public activity. He emphasized that access to such information would
    result in unwarranted intrusion of privacy. The submission is that such information is exempt
    under Section 8(1)(j) of the Act. On the other hand, Mr.Prashant Bhushan argues that
    information as to whether declarations have been made, to the CJI can hardly be said to be
    called “private” and that declarations are made by individual judges to the CJI in their
    capacity as Judges. He submitted that the present proceeding is not concerned with the
    content of asset declarations.
    RIGHT TO INFORMATION VIS-À-VIS RIGHT TO PRIVACY
89. The right to privacy as an independent and distinctive concept originated in the field
    of Tort law, under which the new cause of action for damages resulting from unlawful
    invasion of privacy was recognized. This right has two aspects: (i) The ordinary law of
    privacy which affords a tort action for damages resulting from an unlawful invasion of
    privacy and (ii) the constitutional recognition given to the right to privacy which protects
    personal privacy against unlawful government invasion. Right to privacy is not enumerated as
    a fundamental right in our Constitution but has been inferred from Article 21. The first
    decision of the Supreme Court dealing with this aspect is Kharak Singh v. State of UP [AIR
    1963 SC 1295]. A more elaborate appraisal of this right took place in later decisions in
    Gobind v. State of MP [(1975) 2 SCC 148], R.Rajagopal v. State of T.N. [(1994) 6 SCC 632]
    and District Registrar and Collector v. Canara Bank [(2005) 1 SCC 496].
90. The freedom of information principle holds that, generally speaking, every citizen
    should have the right to obtain access to government records. The underlying rationale most
    313
    frequently offered in support of the principle are, first, that the right of access will heighten
    the accountability of government and its agencies to the electorate; second, that it will enable
    interested citizens to contribute more effectively to debate on important questions of public
    policy; and third, that it will conduce to fairness in administrative decision-making processes
    affecting individuals. The protection of privacy principle, on the other hand, holds in part at
    least that individuals should, generally speaking, have some control over the use made by
    others, especially government agencies, of information concerning themselves. Thus, one of
    the cardinal principles of privacy protection is that personal information acquired for one
    purpose should not be used for another purpose without the consent of the individual to whom
    the information pertains. The philosophy underlying the privacy protection concern links
    personal autonomy to the control of data concerning oneself and suggests that the modern
    acceleration of personal data collection, especially by government agencies, carries with it a
    potential threat to a valued and fundamental aspect of our traditional freedoms.
91. The right to information often collides with the right to privacy. The government
    stores a lot of information about individuals in its dossiers supplied by individuals in
    applications made for obtaining various licences, permissions including passports, or through
    disclosures such as income tax returns or for census data. When an applicant seeks access to
    government records containing personal information concerning identifiable individuals, it is
    obvious that these two rights are capable of generating conflict. In some cases this will
    involve disclosure of information pertaining to public officials. In others, it will involve
    disclosure of information concerning ordinary citizens. In each instance, the subject of the
    information can plausibly raise a privacy protection concern. As one American writer said
    one mans freedom of information is another man.s invasion of privacy.
    PROTECTION OF PERSONAL INFORMATION UNDER SECTION 8(1)(j)
92. The right to information, being integral part of the right to freedom of speech, is
    subject to restrictions that can be imposed upon that right under Article 19(2). The revelation
    of information in actual practice is likely to conflict with other public interests including
    efficient operations of the Government, optimum use of limited fiscal resources and the
    preservation of confidentiality of sensitive information and, therefore, with a view to
    harmonize these conflicting interests while preserving the paramountacy of the democratic
    ideal, Section 8 has been enacted for providing certain exemptions from disclosure of
    information. Section 8 contains a well defined list of ten kinds of matters that cannot be made
    public. A perusal of the aforesaid provisions of Section 8 reveals that there are certain
    information contained in sub-clause (a), (b), (c), (f),(g) and (h), for which there is no
    obligation for giving such an information to any citizen; whereas information protected under
    sub-clause (d), (e) and (j) are protected information, but on the discretion and satisfaction of
    the competent authority that it would be in larger public interest to disclose such information,
    such information can be disclosed. These information, thus, have limited protection, the
    disclosure of which is dependent upon the satisfaction of the competent authority that it
    would be in larger public interest as against the protected interest to disclose such
    information.
93. There is an inherent tension between the objective of freedom of information and the
    objective of protecting personal privacy. These objectives will often conflict when an
    314
    applicant seeks access for personal information about a third party. The conflict poses two
    related challenges for law makers; first, to determine where the balance should be struck
    between these aims; and, secondly, to determine the mechanisms for dealing with requests for
    such information. The conflict between the right to personal privacy and the public interest in
    the disclosure of personal information was recognized by the legislature by exempting purely
    personal information under Section 8(1)(j) of the Act. Section 8(1)(j) says that disclosure may
    be refused if the request pertains to “personal information the disclosure of which has no
    relationship to any public activity or interest, or which would cause unwarranted invasion of
    the privacy of the individual.” Thus, personal information including tax returns, medical
    records etc. cannot be disclosed in view of Section 8(1)(j) of the Act. If, however, the
    applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is
    lifted and after duly notifying the third party ( i.e. the individual concerned with the
    information or whose records are sought) and after considering his views, the authority can
    disclose it. The nature of restriction on the right of privacy, however, as pointed out by the
    learned single Judge, is of a different order; in the case of private individuals, the degree of
    protection afforded to be greater; in the case of public servants, the degree of protection can
    be lower, depending on what is at stake. This is so because a public servant is expected to act
    for the public good in the discharge of his duties and is accountable for them.
94. The Act makes no distinction between an ordinary individual and a public servant or
    public official. As pointed out by the learned single Judge “… an individuals or citizens
    fundamental rights, which include right to privacy – are not subsumed or extinguished if he
    accepts or holds public office.” Section 8(1)(j) ensures that all information furnished to public
    authorities — including personal information [such as asset disclosures] are not given blanket
    access. When a member of the public requests personal information about a public servant, –
    such as asset declarations made by him — a distinction must be made between personal data
    inherent to the person and those that are not, and, therefore, affect his/her private life. To
    quote the words of the learned single Judge “if public servants … are obliged to furnish asset
    declarations, the mere fact that they have to furnish such declaration would not mean that it is
    part of public activity, or “interest”…. That the public servant has to make disclosures is a
    part of the systems endeavour to appraise itself of potential asset acquisitions which may have
    to be explained properly. However, such acquisitions can be made legitimately; no law bars
    public servants from acquiring properties or investing their income. The obligation to disclose
    these investments and assets is to check the propensity to abuse a public office, for a private
    gain.” Such personal information regarding asset disclosures need not be made public, unless
    public interest considerations dictates it, under Section 8(1)(j). This safeguard is made in
    public interest in favour of all public officials and public servants.
95. In the present case the particulars sought for by the respondent do not justify or
    warrant protection under Section 8(1)(j) inasmuch as the only information the applicant
    sought was whether 1997 Resolution was complied with. That kind of innocuous information
    does not warrant the protection granted by Section 8(1)(j). We concur with the view of the
    learned single Judge that the contents of asset declarations, pursuant to the 1997 Resolution,
    are entitled to be treated as personal information, and may be accessed in accordance with the
    procedure prescribed under Section 8(1)(j); that they are not otherwise subject to disclosure.
    315
    Therefore, as regards contents of the declarations, information applicants would have to,
    whenever they approach the authorities, under the Act satisfy them under Section 8(1)(j) that
    such disclosure is warranted in “larger public interest”.
    DISCLOSURE OF ASSETS INFORMATION OF JUDGES – INTERNATIONAL TRENDS
96. “Although Judges often balk at the invasion of privacy that disclosure of their private
    finances entails, it is almost uniformly considered to be an effective means of discouraging
    corruption, conflicts of interest, and misuse of public funds…” [Guidance for Promoting
    Judicial Independence and Impartiality, 2001, USAID, Technical Publication]. Income and
    Asset Disclosure is generally perceived to be an essential aid towards monitoring whether
    judges perform outside work, monitoring conflicts of interests, discouraging corruption, and
    encouraging adherence to the standards prescribed by judicial code of conduct. In countries
    where disclosure is mandatory, “the Guidance Principle” suggests that list of judges. assets
    and liabilities must be declared at appointment and annually thereafter. “Guidance Principle”
    further stipulates that the information disclosure must be accurate, timely and comprehensive.
    Furthermore, security and privacy concerns of judges should be respected, oversight body
    monitoring the register must be credible and the public should have proper access to the
    public portion of the register.
97. Keith E. Henderson in his article “Asset and Income Disclosure for Judges: A
    Summary Overview and Checklist” states that even though the OAS Convention created the
    legal basis for income and asset disclosure of public officials, the legal question as to whether
    Judges are deemed to be public officials remains unclear or is being debated on in a number
    of countries. In some countries, Judges have raised issues of constitutional separation of
    powers and have taken the position that the judicial branch itself must pass and enforce its
    own disclosure laws and rules. This is exactly what is achieved by the 1997 and 1999
    Resolutions. Other unresolved issues relate to how to effectively and fairly implement and
    enforce disclosure laws and how much of this personal information should be publicly
    available and in what form. The author has pointed out that there are three basic sources of
    the assets declaration obligation:
    a) Constitutional Obligation: Some constitutions impose an obligation to disclose assets
    of public officials e.g. Colombia, Constitution Article 122.
    (b) Legislative Obligation: Some countries regulate asset disclosure by statute, although
    there are different types of Acts creating this obligation e.g. Poland, El Salvador, etc.
    c) Court rules: In some countries, such as United States, Argentina, the judiciary itself
    regulates the conduct of Judges. According to the author, while addressing the issue of assets
    disclosure, it is fundamental to find a balance between the kind of information that must be
    available to the public and the rights to privacy and security of the official or Judge. Corrupt
    “information keepers” or weak information systems and institutions can result in serious
    information leaks that could have serious human rights implications — particularly in
    transition countries. A cursory review of existing laws reveals that there is no one model law
    or policy regarding exactly the range of assets Judges should disclose. To some degree, it
    depends, inter alia, on the development context of the country in question. Regarding the kind
    of assets to be disclosed, different countries have likewise adopted different models
    316
    depending on the development context: Broad Disclosure – In the United States, there is an
    obligation to make a broad accounting of financial holdings, including a list of gifts, lecture
    fees or other outside incomes. However, there has been some criticism of some judges not
    fully disclosing their having received trip expenses from private sources and these rules are
    still under debate. Medium-size disclosure – In Argentina, judges are exempt from declaring
    some kinds of property if it might jeopardize their security. For example, judges are not
    obligated to submit details of the place where they live or their credit card numbers. Narrow
    disclosure – In many transition countries, judges must declare only incomes — assets are
    exempt.”
98. The Ethics in Government Act, 1978 of United States requires that federal judges
    disclose personal and financial information each year. Under the Act, federal judges must
    disclose the source and amount of income, other than that earned as employees of the United
    States government, received during the preceding calendar year. Judges must also disclose the
    source description and value of gifts, for which the correct value is more than certain minimal
    amount, received from any source other than a relative; the source and description of
    reimbursements; the identity and category of value of property and interests; the identity and
    category of values of liabilities owed to creditors other than certain immediate family
    members; and other financial information. The Act allows judges to redact information from
    their financial disclosure request under certain circumstances. A report may be redacted
    “(i) to the extent necessary to protect the individual who files the report; and
    (ii) for so long as the danger to such individual exists”.
    The Act further charges the US Judicial Conference Committee with the task of
    submitting to the House and Senate Committee on the Judiciary an annual report documenting
    redactions. When a member of the public requests for a copy of judges financial disclosure
    report, the Committee sends a notification of the request to the judge in question asking the
    judge to respond in writing whether he would like to request new or additional redactions of
    information. If the judge does not request redaction from his/her report, a copy of the report is
    released to the requester. However, if the judge requests redaction upon receiving the request
    for a copy of the report, the Committee then votes on the redaction request, with a majority
    needed to approve or deny the request, and finally a copy of the report is released, with
    approved redactions, if any.
99. It will be useful to note certain developments which led to the federal judges. asset
    information being placed on the internet. In September, 1999, APBnews.com (“APB”), a site
    focused on criminal justice news, requested for financial disclosure reports filed by federal
    judges in 1998. The Judicial Conference Committee denied this request in December, 1999
    ruling that the disclosure reports should not be turned over to APB because posting the reports
    on the internet would contravene the statutory requirement that all report registers identify
    themselves by name, occupation and address. After the Judicial Conference Committee
    denied APB.s request, APB filed suit in the US District Court for southern districts of New
    York to obtain the report. But on March 14, 2000, the Judicial Conference Committee voted
    to reverse its decision and allowed the reports to be available on the internet, recognizing that
    the statutory language did not permit withholding the reports in their entirety from news
    organizations. Though the Act generally prohibits obtaining or using a report for commercial
    317
    purposes, it contains an exemption for “news and communication media” involved in
    “dissemination to the general public”. Thus APB could not be refused access to the reports.
    Before the forms were released to the APB, however, the Committee removed some personal
    information submitted by judges but not required by the Act, such as home addresses and
    names of spouses and dependants.
    EPILOGUE
100. It was Edmund Burke who observed that “All persons possessing a portion of power
     ought to be strongly and awfully impressed with an idea that they act in trust and that they are
     to account for their conduct in that trust.” Accountability of the Judiciary cannot be seen in
     isolation. It must be viewed in the context of a general trend to render governors answerable
     to the people in ways that are transparent, accessible and effective. Behind this notion is a
     concept that the wielders of power – legislative, executive and judicial – are entrusted to
     perform their functions on condition that they account for their stewardship to the people who
     authorize them to exercise such power. Well defined and publicly known standards and
     procedures complement, rather than diminish, the notion of judicial independence.
     Democracy expects openness and openness is concomitant of free society. Sunlight is the best
     disinfectant.”
101. We are satisfied that the impugned order of the learned single Judge is both proper
     and valid and needs no interference. The appeal is accordingly dismissed.