Court : Delhi High Court
Brief : 1. Whether the reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
Citation : Secretary General, Supreme Court of India …..
Appellant
Through: Mr.G.E. Vahanvati, Attorney
General for India with
Mr.Atul Nanda and
Mr.Sanjay Bhardwaj, Advocates
Versus
Subhash Chandra Agarwal …..
Respondent
Through: Mr.Prashant Bhushan with
Mr.Mayank Mishra, Mr.Rohit
Kumar Singh and Mr.Vivek
Bishnoi, Advocates
AJIT PRAKASH SHAH, CHIEF JUSTICE
1. This appeal is directed against the judgment dated
2nd September, 2009 of the learned single Judge (S. Ravindra Bhat, J) in the
writ petition filed by the Central Public Information Officer, Supreme Court of
India (hereinafter, “the CPIO”) nominated under the Right to Information
Act, 2005 (hereinafter, “the Act”) questioning correctness and legality of
the order dated 6th January, 2009 of the Central Information Commission
(hereinafter, “the CIC”) whereby the request of the respondent No.1 (a
public person) for supply of information concerning declaration of personal
assets by the Judges of the Supreme Court was upheld.
PREFACE
2. The subject matter at hand involves questions of
great importance concerning balance of rights of individuals and equities
against the backdrop of paradigm changes brought about by the legislature
through the Act ushering in an era of transparency, probity and accountability
as also the increasing expectation of the civil society that the judicial
organ, like all other public institutions, will also offer itself for public
scrutiny. A citizen demanded information about asset declarations by the
Judges. In this context, questions have been raised and need to be answered as
to whether a “right to information” can be asserted and maintained within
the meaning of the expression defined in Section 2(j) of the Act. Equally
important are the questions requiring interpretation of the expressions
“fiduciary”, as in Section 8(1)(e) and “privacy” as in Section 8(1)(j),
both used but not defined specifically by the statute.
3. When the learned single Judge set about the task of
hearing submissions on the writ petition, the Attorney General for India
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 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.
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. In the writ proceedings before the learned single
Judge, the Registrar, Supreme Court was subsequently added as a co-petitioner.
On the other hand, Delhi High Court Bar Association (hereinafter, “DHCBA”)
and Rashtriya Mukti Morcha were allowed to join as interveners.
14. In the writ petition, the order of CIC was
challenged mainly on the following lines:-
a. The “information”, to the disclosure of which a
“right to information” can be claimed under the Act has to be an
information “accessible” under the law and one “held by or under the
control of any public authority”, as defined in Section 2(j).
b. The information sought for by the applicant is not
in the “public domain” inasmuch as it is not held under the mandate of any
law. The 1997 resolution is not binding nor can it be described as “rules”
for the reasons that compliance therewith is a matter of choice or own volition
for the individual Judges and there is no sanction attached for
“non-performance”;
c. The disclosure made by the Judges, pursuant to the
1997 resolution, is not a public act done in the discharge of duties of their
office whereas the regime under the Act is aimed at ensuring access to all
actions of public officials done or performed during the course of their
official duties;
d. If it were to be held that the information sought by
the applicant is “information” within the meaning of the expression used in
the statute, the question of its access would arise with reference to
exemptions under Section 8;
e. The information sought is exempt from disclosure by
virtue of Section 8(1)(e) of the Act. The 1997 resolution emphasized on the
understanding that “declaration made by the Judges or the Chief Justice, as
the case may be, shall be confidential”, and, therefore, there is a fiduciary
duty cast on the CJI to hold these declarations “in confidence”. Founded on
the last mentioned premise, it was further argued that any attempt to compel
the CJI to make the information public would amount to compelling him “to
breach the fiduciary nature of his duty”; and
f. The information sought is exempt by virtue of
Section 8(1)(j) of the Act for the reason it relates to “personal
information” which has no nexus with “any public activity or interest”
and the disclosure of which was likely to cause “unwarranted invasion of the
privacy” of the Judges.
15. The applicant contested the writ petition before
the learned single Judge joining issue on each of the grounds taken. It was
submitted that Section 22 of the Act conferred upon this special statute an
“overriding effect” and the classification of any information as
“confidential”, by itself, would not render it an information “not in the
public domain” or one which cannot be accessed. It was argued that the 1997
Resolution represented a conscious decision taken by the Judges of the Supreme
Court and, therefore, its binding nature could not be undermined. Before the
learned single Judge, the applicant questioned the plea that the information
was held by the CJI in his private capacity or in a fiduciary relationship. It
was submitted that the Judges are public functionaries and the declarations in
question were made by them in their official capacity to the CJI, who, in turn,
received the same and held it in his official capacity. Though pointing out
that the contents of the declarations made by the respective Judges were not
part of the information that had been requested from the CPIO and thus
submitting that there was no invasion of privacy in the case at hand, it was
insisted that only such further information (i.e. contents of the declarations)
could be asked for and disclosed under the Act, notwithstanding the exemption
under Section 8(1)(j), should the CPIO or the appellate authority find
justification in its disclosure “in larger public interest”.
16. Both the interveners, in their submissions before
the learned single Judge adopted the case made out by the applicant and
insisted that there exists a right to information vis-à-vis the declarations
made by the judges under the Act.
17. The learned single Judge proceeded to consider the
rival submissions. He culled out the points for consideration (in para 27 of
the impugned judgment) as under:
(1) Whether the CJI is a public authority;
(2) Whether the office of CPIO of the Supreme Court of
India, is different from the office of the CJI; and if so, whether the Act
covers the office of the CJI;
(3) Whether the asset declarations by Supreme Court
judges, pursuant to the 1997 Resolution is “information”, under the Right
to Information Act, 2005;
(4) If such asset declarations are “information”
does the CJI hold them in a “fiduciary” capacity, and are they therefore,
exempt from disclosure under the Act;
(5) Whether such information is exempt from disclosure
by reason of Section 8(1)(j) of the Act;
(6) Whether the lack of clarity about the details of
asset declaration and about their details, as well as lack of security renders
asset declarations and their disclosure, unworkable.
18. Upon consideration of the submissions made before
him, the learned single Judge concluded against point Nos.1 and 2 that the CJI
is a public authority under the Right to Information Act and holds the
information pertaining to asset declarations in his capacity as the Chief
Justice. It was also held that the office of the Chief Justice of India is
“public authority” under the Act and is covered by its provisions.
19. On point No.3, it was held by the learned single
Judge that the second part of the respondent‟s application (which relates to
declaration of assets by the Supreme Court Judges) is ”information” within
the meaning of the expression defined in Section 2(f) of the Act and further
that the information pertaining to declarations given to the CJI and the
contents of such declarations are “information” which is subject to the
provisions of the Right to Information Act.
20. The plea of the appellant, founded on Section
8(1)(e), that the information contained in said asset declarations are held by
the CJI in “fiduciary capacity” and, therefore, exempt from disclosure was
held to be “insubstantial”. Answering point No.4, it was held that the CJI
does not hold such declarations in a fiduciary capacity or relationship.
21. The learned single Judge further held, in the
context of point No.5, that the contents of asset declarations, pursuant to the
1997 Resolution, as also 1999 Resolution, are entitled to be treated as
personal information which are “not otherwise subject to disclosure” but
“may be accessed in accordance with the procedure prescribed under Section
8(1)(j).” On the specific information sought by the applicant in the case at
hand (i.e. whether the declarations were made pursuant to 1997 Resolution), it
was held that the procedure under Section 8(1)(j) is “inapplicable”.
22. The appellant had also raised the issue of lack of
clarity about the asset declaration and details thereof as well as lack of
security, claiming further that these aspects (lack of clarity and security)
rendered asset declaration and the disclosure “unworkable”. This was the
subject-matter of point No.6 (mentioned in para 27 of the impugned judgment).
Learned single Judge observed that these are not insurmountable obstacles. In
his view, the CJI, if he deems it appropriate, may in consultation with the
Supreme Court Judges, evolve uniform standards, devising the nature of
information, relevant formalities, and if required, the periodicity of the
declarations to be made. In this context, learned single Judge referred to the
forms evolved as well as the procedures followed in the United States
(including the “redaction” of the norms) under the Ethics in Government
Act, 1978, reports of the US Judicial Conference, as well as the Judicial
Disclosure Responsibility Act, 2007 (which amended the Ethics in Government
Act, 1978). Learned single Judge suggested that cue can be taken from the above
norms or procedures in vogue in USA to: (i) restrict disclosure of personal
information about family members of judges whose revelation might endanger
them; (ii) extend the authority of the Judicial Conference to redact certain
personal information of Judges from financial disclosure.
23. In view of the above findings, the learned single
Judge, vide the impugned judgment, directed the appellant CPIO to reveal the
information sought by the respondent applicant, about the declaration of assets
(and not the contents of the declarations, as that was not sought for) made by
Judges of the Supreme Court, within four weeks.
CHALLENGE IN APPEAL
24. This appeal was preferred by the CPIO and the
Registrar of the Supreme Court impleading the applicant and the CIC as
respondents. Vide order dated 7th October, 2009 of the Division Bench, upon a
request by the learned Attorney General for India, CPIO and CIC were deleted
from the array of parties with the further direction that Secretary General,
Supreme Court of India will be the appellant. Considering the importance of the
question involved, the appeal was directed to be heard by a larger Bench of
three Judges.
25. It may be mentioned here that the findings to above
effect returned by the learned single Judge in the context of point Nos. 1 & 2
referred to above are no longer an issue of controversy or debate. It has been
fairly conceded on behalf of the appellant that the conclusions arrived at by
the learned single Judge in the impugned judgment and the reasons therefor are
correct and thus, do not deserve to be disturbed.
26. Notwithstanding the fact that the correctness of
the findings respecting point Nos. 1 & 2 have been fairly conceded by the
learned Attorney General for India, we have given our careful consideration to
the matter in the overall facts and circumstances of these proceedings. We find
ourselves in full agreement with the reasoning set out in the impugned
judgment. The expression “public authority” as used in the Act is of wide
amplitude and includes an authority created by or under the Constitution of
India, which description holds good for Chief Justice of India. While providing
for Competent Authorities under Section 2(e), the Act specifies Chief Justice
of India as one such authority in relation to Supreme Court, also conferring
upon him the powers to frame rules to carry out the purposes of the said law.
Chief Justice of India besides discharging the prominent role of “head of
judiciary” also performs a multitude of tasks specifically assigned to him
under the Constitution or various enactments. As said in the impugned judgment,
these varied roles of the CJI are directly relatable to the fact that he holds
the office of Chief Justice of India and heads the Supreme Court. In absence of
any indication that the office of the CJI is a separate establishment with its
own Public Information Office under the Act, it cannot be canvassed that the
office of the CPIO of the Supreme Court is different from the office of the
CJI. Thus, the answer to point Nos. 1 & 2 referred to above has been correctly
given in the impugned judgment which findings are hereby confirmed.
27. In this quest, both the sides did not seek to make
any submissions on the issue of “unworkability” on account of “lack of
clarity” or “lack of security” vis-à-vis asset declarations by the
Judges, which form part of the discourse on point No.6 (para 27 of the impugned
judgment).
28. The prime submission of the learned Attorney
General for India appearing for the appellant is that the learned single Judge
has failed to properly formulate or answer the question, which was fundamental
and central to the adjudication of the issues arising, viz. that the applicant
had no “right to information” under Section 2(j). It is contended that the
“right to information” under Section 2(j) applies only when the information
sought is in public domain. The learned Attorney General submits that the
learned single Judge failed to consider or appreciate the submission about
absence of “right to information” and instead had proceeded to examine
whether the asset declaration pursuant to the 1997 resolution was
“information”, which issue was not even raised. It is argued that the
Resolution dated 7th May, 1997 has no force of law and even the “in-house
procedure in the judiciary has its basis only of moral authority and not any
exercise of power under any law”. It is urged that the words “held by” or
“under the law” necessarily implied the legal sanction behind the holding
of or controlling of such sanction. It is argued that the plea about
information sought not being in public domain was a sequitor to the Section
2(j) argument. The argument based on Sections 8(1)(e) and 8(1)(j) are
reiterated.
THE ISSUES
29. The controversy thus subsists on point Nos. 3,4 &
5, formulated for 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
30. 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.
RELEVANT INTERNATIONAL LAW
31. 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].
32. 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.”
33. The International Covenant on Civil and Political
Rights (ICCPR) was adopted in 1968. 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.
34. 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
35. 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‟s right to know developed.
36. 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)
37. 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‟.
38. 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.”
39. 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:
65. 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.”
40. 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 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: (para 42)
“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.”
41. Justice P. Venkatarama Reddi in his concurring
opinion reiterated the same view as follows: (para 81)
“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.”
42. 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’s 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
43. 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 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]
44. 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
45. 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
46. 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.
47. 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 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
48. 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 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
49. 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:
50. 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.
51. 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 Black‟s Law
Dictionary 8th ed. where the word „control‟ is defined as „to exercise
power or influence over‟ and also to P. Ramanatha Aiyar‟s 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 Coppel‟s book “Information Rights”
were also relied upon.
52. 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 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
53. 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.
54. 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.
55. 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 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”
56. 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.
57. 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.
58. 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 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‟s
premises, will, it is suggested, lack the requisite assumption by the public
authority of responsibility for or dominion over the information that is
necessary before it can be said that the public authority can be said to
“hold” the information. 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 Minister’s 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.”
59. Therefore, according to Coppel the word “held”
suggests a relationship between a public authority and the information akin to
that of an ownership or bailment of goods. In the law of bailment, a slight
assumption of control of the chattel so deposited will render the recipient a
depository (see Newman v. Bourne and Hollingsworth (1915) 31 T.L.R. 209).
Where, therefore, information has been created, sought, used or consciously
retained by a public authority will be information held within the meaning of
the Act. However, if the information is sent to or deposited with the public
authority which does not hold itself out as willing to 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‟s 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.
60. 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 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.
61. 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
62. 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.
63. 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 Hon‟ble 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.”
64. 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‟s 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 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.”
INDEPENDENCE OF JUDICIARY
65. The merits of the argument about the binding nature
of the Resolutions involve, to a great extent, the examination of the role of
the Judiciary in a democracy. A judiciary of undisputed integrity is the
bedrock institution essential for ensuring compliance with democracy and the
rule of law. Even when all other protections fail, it provides a bulwark to the
public against any encroachments of its rights and freedoms under the law.
66. The recognition that independence of judiciary is a
pre-requisite for rule of law is to be found in nearly all major human right
conventions. The International Covenant on Civil and Political Rights (ICCPR)
contains “Procedural Guarantees in Civil and Criminal Trials.” Article 14
says that all persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him or of his rights and
obligations in suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
This cardinal procedure is derived from earlier statements of universal
principles. (For example, “Universal Declaration of Human Rights, Article
10”).
67. It is impossible to ensure the rule of law upon
which other human rights depend, without providing independent courts and
tribunals to resolve, in the language of the ICCPR, competently, independently
and impartially, disputes both of a criminal and civil character. In his
address on Independence of Judiciary – Basic Principles, New Challenges”
Justice Michael Kirby, a former Judge of the Australian High Court, said:
“Total separation of the judicial power is not possible in the real world. In
many countries, the Executive Government appoints judges. The legislature
provides for their salaries and pensions. It funds the activities of the
courts. To give content to the provisions of Art 14.1 ICCPR, it is therefore
necessary to go beyond the letter of a written constitution. It is essential to
breathe life into the sparse language of the ICCPR. This requires a reflection
upon the constitutional struggles, past and present, by which people everywhere
have been seeking to attain the kind of human right to which Art 14.1 gives
expression. ……… A judge without independence is a charade wrapped in a
farce inside an oppression.”
[http://www/hcourt.gov.au/speeches/kirbyj/kirbyj_abahk.htm]
68. The independence of judiciary is the basic
postulate of our Constitution which has its genesis in the power of judicial
review which enables the court to declare executive and legislative actions
ultra vires the Constitution. A reference may be made to some of the important
provisions of the Constitution concerning the judiciary and its independence.
Articles 124 (2) and 217(1) require, in the matter of appointments of Judges,
consultation with the Chief Justices [After the decision of the Supreme Court
in Supreme Court-Advocates On Record Association v. Union of India [1993] 4 SCC
441], popularly known as the Second Judges case, the opinion of the Chief
Justice of India (Collegium) has been given primacy in the matter of
appointments]. These provisions also ensure fixity of tenure of office of the
Judge. The Constitution protects the salaries of the Judges. Article 121
provides that no discussion shall take place in Parliament with respect to
conduct of any Judge of the Supreme Court or of a High Court in the discharge
of his duties except upon a motion for presenting an address to the President
of India praying for the removal of the Judge as provided. Articles 124 and
124(5) afford protection against premature determination of the tenure. Article
124(4) says that a Judge of the Supreme Court shall not be removed from his
office except on the grounds stated therein. The grounds for removal are again
limited to proved misbehaviour and incapacity. A similar provision is found in
Article 217 for the Judges of the High Courts.
69. By Articles 233 and 235, members of the subordinate
judiciary are brought under the control of the High Court and except for
initial entry and final exit, they are under the direct control of the High
Court.
70. In cases dealing with subordinate judiciary, by a
catena of decisions commencing from State of West Bengal v. Nripendra Nath
Bagchi, AIR 1966 SC 447 and ending with Shamsher Singh v. State of Punjab,
(1974) 2 SCC 831, it has been authoritatively laid down that in matters
concerning the conduct and discipline of District Judges, their further
promotion and confirmations, disputes regarding their seniority, their
transfers, placing of their services at the disposal of the government for
ex-cadre posts, considering their fitness for being retained in service and
recommending their discharge from service, exercise of complete discipline,
jurisdiction over them including initiation of disciplinary inquiries and their
premature retirement, the members of the subordinate judiciary are under the
direct control of the High Court. In Shamsher Singh’s case, learned Chief
Justice observed: (para 78)
“The members of the subordinate judiciary are not only under the control of
the High Court but are also under the care and custody of the High Court.”
71. After reviewing all these provisions and decisions,
Chandrachud, J, (as he then was) in Union of India v. Sankalchand Himmatlal
Sheth, [(1977) 4 SCC 193] observed: (para 12)
“It is beyond question that independence of the judiciary is one of the
foremost concerns of our Constitution. The Constituent Assembly showed great
solicitude for the attainment of that ideal, devoting more hours of debate to
that subject than to any other aspect of the judicial provisions: “If the
beacon of the judiciary was to remain bright, the Courts must be above
reproach, free from coercion and from political influence.”
72. In S.P. Gupta v. Union of India, Bhagwati, J, (as
he then was) observed: (para 27)
“....If there is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law and under the
Constitution, it is the judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the law and thereby making the
rule of law meaningful and effective. It is to aid the judiciary in this task
that the power of judicial review has been conferred upon the judiciary and it
is by exercising this power which constitutes one of the most potent weapons in
armoury of the law, that the judiciary seeks to protect the citizen against
violation of his constitutional or legal rights or misuse or abuse of power by
the State or its officers. The judiciary stands between the citizen and the
State as a bulwark against executive excesses and misuse or abuse of power by
the executive and therefore it is absolutely essential that the judiciary must
be free from executive pressure or influence and this has been secured by the
Constitution-makers by making elaborate provisions in the Constitution to which
detailed reference has been made in the judgments in Sankalchand Sheth case
[(1977)4 SCC 193]. But it is necessary to remind ourselves that the concept of
independence of the judiciary is not limited only to independence from
executive pressure or influence but it is a much wider concept which takes
within its sweep independence from many other pressures and prejudices. It has
many dimensions, namely, fearlessness of other power centres, economic or
political, and freedom from prejudices acquired and nourished by the class to
which the Judges belong.
…………………………..
Judges should be of stern stuff and tough fibre, unbending before power,
economic or political, and they must uphold the core principle of the rule of
law which says, “Be you ever so high, the law is above you.” This is the
principle of independence of the judiciary which is vital for the establishment
of real participatory democracy, maintenance of the rule of law as a dynamic
concept and delivery of social justice to the vulnerable sections of the
community.”
NEED FOR CODE OF CONDUCT
73. It is no doubt true that the constitutional
assurances relating to basic service conditions are absolutely necessary to
protect the independence of the judiciary, but they are not the be all and end
all. Judicial independence is not the personal privilege or prerogative of the
individual Judge. It is the responsibility imposed on each Judge to enable him
or her to adjudicate a dispute honestly and impartially on the basis of the law
and the evidence. The very existence of the justice delivery system depends on
the Judges, who, for the time being, constitute the system. The greatest
strength of the judiciary is the faith people repose in it. The constitutional
rights, statutory rights, human rights and natural rights need to be protected
and implemented. Such protection and implementation depends on the proper
administration of justice, which in its turn depends on the existence and
accessibility of an independent judiciary. Public confidence in the
administration of justice is imperative for its effectiveness, because
ultimately ready acceptance of a judicial verdict alone gives relevance to the
judicial system. To quote the words of Pathak, J (as he then was) in S.P.
Gupta’s case: “While administration of justice draw its legal sanction from
the constitution, its credibility rests in the faith of the people.
Indispensable to that faith, an independent and impartial judiciary supplies
reasons for the judicial institution; it also gives character and content to
the constitutional milieu”.
74. In K. Veeraswamy v. Union of India & Others, (1991)
3 SCC 655 (paras 79-80), the Supreme Court, emphasising the duty of the Judge
to maintain high standards of conduct observed that independence and
impartiality and objectivity would be tall claims, hollow from within, unless
the Judges are honest – honest to their Office, honest to the society and
honest to themselves ...the society‟s demand for honesty in a Judge is
exacting and absolute. The standards of judicial behaviour, both on and off the
Bench, are normally extremely high. For a Judge, to deviate from such standards
of honesty and impartiality is to betray the trust reposed to him. No excuse or
no legal relativity can condone such betrayal. From the standpoint of justice,
the size of the bribe or scope of corruption cannot be the scale for measuring
a Judge‟s dishonour. A single dishonest Judge not only dishonours himself and
disgraces his office but jeopardizes the integrity of the entire judicial
system. A judicial scandal has always been regarded as far more deplorable than
a scandal involving either the executive or a member of the legislature. The
slightest hint of irregularity or impropriety in the court is a cause for great
anxiety and alarm. A legislator or an administrator may be found guilty of
corruption without apparently endangering the foundation of the State. But a
Judge must keep himself absolutely above suspicion; to preserve the
impartiality and independence of the judiciary and to have the public
confidence thereof.
75. In a later judgment in C.Ravichandran Iyer v.
Justice A.M. Bhattacharjee and others, (1995) 5 SCC 457 (para 23), the Supreme
Court in the same vein observed: “To keep the stream of justice clean and
pure, the Judge must be endowed with sterling character, impeccable integrity
and upright behavior. Erosion thereof would undermine the efficacy of the rule
of law and the working of the Constitution itself. The Judges of higher
echelons, therefore, should not be mere men of clay with all the frailties and
foibles, human failings and weak character which may be found in those in other
walks of life. They should be men of fighting faith with tough fibre not
susceptible to any pressure, economic, political or any sort. The actual as
well as the apparent independence of judiciary would be transparent only when
the office holders endow those qualities which would operate as impregnable
fortress against surreptitious attempts to undermine the independence of the
judiciary. In short, the behavior of the Judge is the bastion for the people to
reap the fruits of the democracy, liberty and justice and the antithesis rocks
the bottom of the rule of law.”
76. The 1997 Resolution and the 1999 Judicial
Conference Resolution are intended to establish a standard for ethical conduct
of Judges. The Resolutions give expression to the highest traditions relating
to the judicial functions as visualised in all the world‟s cultures and legal
systems. They are designed to provide guidance to Judges and to afford the
judiciary a framework for regulating judicial conduct. They recognise the need
for universally acceptable statements on judicial standards, which, consistent
with the principle of judicial independence, would be capable of being
respected and ultimately enforced by the judiciary.
77. Explaining the need for a self-regulatory mechanism
for Judges, Justice J. S. Verma, former Chief Justice of India, said:
“We cannot say that we will control everyone else but there need not be any
control on us merely because we take the oath of office. It would be exhibiting
the ostrich syndrome to say that there can be any one who cannot be accountable
to known standards. That is not the scheme of our constitution. That is
antithesis to basic democratic principles and, therefore, for the purpose of
effective preservation of Independence of Judiciary. It is necessary that we
ought to ensure proper judicial accountability.”
[R.C. Ghia Memorial Lecture by Justice J.S. Verma, delivered on 28.6.1997]
INTERNATIONAL PERSPECTIVE
78. Guides to judicial conduct have become common place
in recent years. As far as Commonwealth countries are concerned, a seminal
study by Justice J.B. Thomas, a Judge of the Supreme Court of Queensland,
“Judicial Ethics in Australia” was published in 1988. There have followed
many documents including the Canadian Judicial Council‟s “Ethical
Principles for Judges” (1998), the “Guide to Judicial Conduct” published
for the Council of Chief Justices of Australia (2002) and the Guide to Judicial
Conduct for England and Wales (2006).
79. Having posed the question whether judicial ethics
exist as such, Justice J.B. Thomas stated:
“We form a particular group in the community. We comprise a select part of an
honourable profession. We are entrusted, day after day, with the exercise of
considerable power. Its exercise has dramatic effects upon the lives and
fortunes of those who come before us. Citizens cannot be sure that they or
their fortunes will not some day depend upon our judgment. They will not wish
such power to be reposed in anyone whose honesty, ability or personal standards
are questionable. It is necessary for the continuity of the system of law as we
know it, that there be standards of conduct, both in and out of court, which
are designed to maintain confidence in those expectations.”(Judicial Ethics
in Australia, Sydney, Law Book Company, 1988)
80. On a wider stage, what have become known as the
Bangalore Principles of Judicial Conduct were initiated in 2001. The Bangalore
principles arose from a United Nations initiative with the participation of
Dato‟ Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges
and Lawyers. A draft code of judicial conduct was prepared by a group
comprising senior Judges from Commonwealth countries. This was discussed at
several conferences attended by Judges of both common law and civil law systems
and has also been considered by the Consultative Council of European Judges.
Revised principles were prepared in November 2002 following a round-table
meeting of Chief Justices held at the Peace Palace, the Hague and were endorsed
at the 59th session of the United Nations Human Rights Commission at Geneva in
April, 2003.
81. The Bangalore Principles are succinctly stated as
six „values” and their stated intention is : “To establish standards for
ethical conduct of Judges. They are designed to provide a framework for
regulating judicial conduct. They are also intended to assist members of the
Executive and Legislature, and lawyers and the public in general, to better
understand and support the judiciary”. The principles are:
(i) Judicial independence is a prerequisite to the rule
of law and a fundamental guarantee of a fair trial. A Judge shall therefore
uphold and exemplify judicial independence in both its individual and
institutional aspects.
(ii) Impartiality is essential to the proper discharge
of the judicial office. It applies not only to the decision itself but also to
the process by which the decision is made.
(iii) Integrity is essential to the proper discharge of
the judicial office.
(iv) Propriety, and the appearance of propriety, are
essential to the performance of all of the activities of the Judge.
(v) Ensuring equality of treatment to all before the
courts is essential to the due performance of the judicial office.
(vi) Competence and diligence are prerequisites to the
due performance of judicial office.
82. Prior to adoption of Bangalore Principles at the
6th Conference of Chief Justices held in Beijing in August 1995, 20 Chief
Justices adopted a Joint Statement of Principles of the Independence of
Judiciary. This Statement was further refined during the 7th Conference of
Chief Justices held in Manila in August, 1997. It has now been signed by 32
Chief Justices throughout the Asia-Pacific region and, inter alia, reads as
follows:
“1. The Judiciary is an institution of the highest value in every society.
2. The Universal Declaration of Human Rights (Art. 10) and the International
Covenant on Civil and Political Rights (Art. 14(1)) proclaim that everyone
should be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law. An independent judiciary is
indispensable to the implementation of this right.
3. Independence of the Judiciary requires that;
a) The judiciary shall decide matters before it in accordance with its
impartial assessment of the facts and its understanding of the law without
improper influences, direct or indirect, from any source; and
b) The judiciary has jurisdiction, directly or by way of review, over all
issues of a justiciable nature.
4. The maintenance of the independence of the judiciary is essential to the
attainment of its objectives and the proper performance of its functions in a
free society observing the rule of law. It is essential that such independence
be guaranteed by the State and enshrined in the Constitution or the law.
5. It is the duty of the judiciary to respect and observe the proper objectives
and functions of the other institutions of government. It is the duty of those
institutions to respect and observe the proper objectives and functions of the
judiciary.
6. In the decision-making process, any hierarchical organisation of the
judiciary and any difference in grade or rank shall in no way interfere with
the duty of the judge exercising jurisdiction individually or judges acting
collectively to pronounce judgement in accordance with Article 3 (a). The
judiciary, on its part, individually and collectively, shall exercise its
functions in accordance with the Constitution and the law.
7. Judges shall uphold the integrity and independence of the judiciary by
avoiding impropriety and the appearance of impropriety in all their activities.
8. To the extent consistent with their duties as members of the judiciary,
judges, like other citizens, are entitled to freedom of expression, belief,
association and assembly.
9. Judges shall be free, subject to any applicable law, to form and join an
association of judges to represent their interests and promote their
professional training and to take such other action to protect their
independence as may be appropriate.
JUDICIAL ACCOUNTABILITY
83. 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
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.
84. 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.
85. 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.
86. 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.
87. 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.
88. 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 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
89. 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.
90. 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.
91. 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
92. 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 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.
93. 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 and influence of respected peers.
Judicial standards are acquired, so to speak, by professional osmosis. They are
enforced immediately by conscience.”
[Ref. Justice J.B. Thomas; Judicial Ethics in Australia, 2d ed. Sydney: LBC
Information Services,1997]
94. 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
95. 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”.
96. On the other hand, Mr.Prashant Bhushan argues that
a fiduciary relationship is one that is based on trust and good faith, rather
than on any legal obligation. The purpose for disclosing a statement of assets
to the CJI is to foster transparency within the judiciary and is essential for
an independent, strong and respected judiciary, indispensable in the impartial
administration of justice. Where the Judges of the Supreme Court act in their
official capacity in compliance with a formal Resolution, it cannot be said
that the CJI acts as a fiduciary of the Judges and that he must, therefore, act
in the interests of the Judges and not make such information public. According
to him, unless the information sought can be excluded on the basis of one of
the exemptions under Section 8 of the Act, the same cannot be 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
97. As Walker 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]
98. “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)]
99. 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.
100. 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. 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.
101. 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, and 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.”
102. 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
103. 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, 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.
104. 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. [Phillip Coppel‟s “Information Rights”, pg.836-837].
105. 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 law‟s 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 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
106. 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)”. (page 843)
107. 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 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.”
108. 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).
109. 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
110. 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.
111. 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 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.
112. 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 man‟s freedom of information is another man‟s invasion of privacy.
PROTECTION OF PERSONAL INFORMATION UNDER SECTION 8(1)(j)
113. 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.
114. 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 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.
115. 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 individual‟s or citizen‟s 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 system‟s 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.
116. 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. 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
117. “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.
118. 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 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. “
119. 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.
120. 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 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
121. 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.
122. 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.
CHIEF JUSTICE
VIKRAMAJIT SEN, J.
JANUARY 12, 2010 S. MURALIDHAR, J.
“nm/v/pk”
