in custody with the Chief Justice of India
CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS SUBHASH CHANDRA AGARWAL , CIVIL APPEAL NO. 10044 OF 2010 IN THE SUPREME COURT OF INDIA
Concurring J U D G M E N T by N.V. RAMANA, J
9. The case involves three appeals which arose from separate orders denying access to information under the RTI Act. Through the first of the appeals, respondent sought the complete correspondence of the Chief Justice of India regarding an alleged attempt to influence a judicial decision. The second appeal involved an RTI application request to furnish a copy of documents available with the Supreme Court. This included a correspondence between the relevant constitutional authorities relating to the appointment of various Supreme Court judges. The third appeal involved an RTI application seeking information on a declaration made by judges to the Chief Justice of the Supreme Court and the Chief Justices in the States regarding the assets held by them, their spouses or any person dependent on them.
2. DECISION OVERVIEW
FIDUCIARY RELATIONSHIP
10. To understand the meaning of fiduciary relationship under section 8(1)(e), the Court referred to Aditya Bandopadhyay case. The court in the case had observed that the expression is used in its normal and well-recognised sense, that is, to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary. [p. 41] The Court concluded that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information.
11. Thereafter, the Court referred to the RBI case, in which the court highlighted four principles required to classify a relationship as a fiduciary relationship. These are: (1) no conflict rule; (2) no profit rule; (3) undivided loyalty rule, and; (4) duty of confidentiality. The court observed that the fiduciary relationship casts positive obligations on the fiduciary and requires it to protect the interests of the beneficiary. Accordingly, obligations of the fiduciary are stricter than non-fiduciary relationships and the judicial scrutiny is higher.
12. The Court held that the relationship between the Chief Justice and judges is not generally that of a fiduciary and a beneficiary. However, it is not an absolute rule as in certain situations and acts, a fiduciary relationship may arise. Whether or not such a relationship arises in a particular situation would have to be dealt with based on the tests and parameters expressed above.
MEANING OF PUBLIC INTEREST
13. The Court observed that the public interest test often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access. Section 8(1)(j) and Section 11 also require balancing of competing public interests. The Court noted that the test prescribed in Section 8(1)(j) is broader than the one in Section 11, as the latter requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of possible harm and injury to the third party on disclosure.
14. For the purpose of understanding public interest in the context of the RTI Act, the Court relied on a Supreme Court judgment (Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61) for it to mean the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake. Differentiating between information in public interest and information which is of interest to the public, the Court held that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to particular information and the person.
15. The Court also observed that the Act does not specify factors which should be taken into consideration for determining public interest. To determine these factors, the Court referred to an article published in the Oxford University Commonwealth Law Journal (Freedom of Information and the Public Interest: the Commonwealth experience). The article determined that there are certain factors which weigh in favor of disclosure (accountability of officials, openness in the expenditure of public funds, the performance by a public authority of its regulatory functions, public health and safety, etc.), some against (the likelihood of damage to security or international relations, the likelihood of damage to the integrity or viability of decision-making processes, etc.), and lastly those which are irrelevant (the information might be misunderstood, embarrassing, that the requested information is overly technical in nature, etc.).
16. The last aspect in the public interest test which the Court suggested may factor in is the motive and purpose for making the request for information. In the words of the Court:
Clearly, motive and purpose for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that motive and purpose may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test Similarly, in other cases, public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the motive and purpose is vexatious or it is a case of clear abuse of law. [p. 79]
NEED FOR REASONED ORDER
17. When rendering a decision, the Public Information Officers must clearly state their reasoning. Accordingly, the Court held:
The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the possible harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties. [p. 78]
20. Firstly, the appellants have contended that the information are
not held with the Registry of the Supreme Court, rather the Chief
Justice of India is holding the aforesaid information concerning
the exchanges between Mr. Justice R. Reghupati and the then
Chief Justice of India. In this context, the term held acquires
important position. The term held usually connotes the power,
custody, or possession with the person. However, the mandate of
the Act requires this term to be interpreted wherein the
association between held and the authority needs to be taken into
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consideration while providing a meaning for the aforesaid term.
At this juncture, we need to observe the case of University of New
Castle upon Tyne v. Information Commissioner and British
Union for Abolition of Vivisection, [2011] UKUT 185 AAC,
wherein the upper tribunal has held as under
Hold is an ordinary English word. In
our judgment it is not used in some
technical sense in the Act. We do not
consider that it is appropriate to define
its meaning by reference to concepts
such as legal possession or bailment, or
by using phrases taken from court rules
concerning the obligation to give
disclosure of documents in litigation.
Sophisticated legal analysis of its
meaning is not required or appropriate.
However, it is necessary to observe that
holding is not a purely physical
concept, and it has to be understood
with the purpose of the Act in mind.
Section 3(2)(b) illustrates this: an
authority cannot evade the
requirements of the Act by having its
information held on its behalf by some
other person who is not a public
authority. Conversely, we consider that
s.1 would not apply merely because
information is contained in a document
that happens to be physically on the
authoritys premises: there must be an
appropriate connection between the
information and the authority, so that it
can be properly said that the
information is held by the authority. For
example, an employee of the authority
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may have his own personal information
on a document in his pocket while at
work, or in the drawer of his office desk;
that does not mean that the information
is held by the authority.
21. From the aforesaid it can be concluded that a similar
interpretation can be provided for term held as occurring under
Section 2(j) of the Act. Therefore, in view of the same the term
held does not include following information
1. 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;
2. That is accidentally left with a public authority;
3. That just passes through a public authority;
4. That belongs to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authoritys premises.
1
Having clarified the aforesaid aspect we are of the opinion that the
nature of information in relation to the authority concerned
requires to be seen. The fact that the information sought in the
instant matter is in custody with the Chief Justice of India as he
is the administrative head of the Supreme Court, squarely require
1 Phillip Coppel, Information Rights Law and Practice (4th Edn. (2014)), Pg. 362.
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us to hold that the concerned authority is holding the information
and accordingly the contention of the appellants does not have
any merit.