Civil Appeal No. 10044 of 2010 & Ors.  Page 1 of 108  

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 10044 OF 2010   

CENTRAL PUBLIC INFORMATION OFFICER,  

SUPREME COURT OF INDIA  

…..              

APPELLANT(S)  

   VERSUS    

SUBHASH CHANDRA AGARWAL …..         RESPONDENT(S)  

W I T H  

CIVIL APPEAL NO. 10045 OF 2010  

A N D  

CIVIL APPEAL NO. 2683 OF 2010  

J U D G M E N T    

SANJIV KHANNA, J.  

This judgment would decide the afore-captioned appeals  

preferred by the Central Public Information Officer (‘CPIO’ for  

short), Supreme Court of India (appellant in Civil Appeal Nos.  

10044 and 10045 of 2010), and Secretary General, Supreme  

Court of India (appellant in Civil Appeal No. 2683 of 2010), against  

the common respondent – Subhash Chandra Agarwal, and seeks

Civil Appeal No. 10044 of 2010 & Ors.  Page 2 of 108  

to answer the question as to ‘how transparent is transparent  

enough’1 under the Right to Information Act, 2005 (‘RTI Act’ for  

short) in the context of collegium system for appointment and  

elevation of judges to the Supreme Court and the High Courts;  

declaration of assets by judges, etc.    

2. Civil Appeal No. 10045 of 2010 titled Central Public Information  

Officer, Supreme Court of India v. Subhash Chandra Agarwal  

arises from an application moved by Subhash Chandra Agarwal  

before the CPIO, Supreme Court of India on 6th July, 2009 to  

furnish a copy of the complete correspondence with the then Chief  

Justice of India as the Times of India had reported that a Union  

Minister had approached, through a lawyer, Mr. Justice R.  

Reghupathi of the High Court of Madras to influence his judicial  

decisions. The information was denied by the CPIO, Supreme  

Court of India on the ground that the information sought by the  

applicant-respondent was not handled and dealt with by the  

Registry of the Supreme Court of India and the information  

relating thereto was neither maintained nor available with the  

Registry.  First appeal filed by Subhash Chandra Aggarwal was  

1 Heading of an article written by Alberto Alemanno: “How Transparent is Transparent Enough?  

Balancing Access to Information Against Privacy in European Judicial Selection” reproduced in  

Michal Bobek (ed.) Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to  

the European Courts (Oxford University Press 2015).

Civil Appeal No. 10044 of 2010 & Ors.  Page 3 of 108  

dismissed by the appellate authority vide order dated 05th  

September, 2009. On further appeal, the Central Information  

Commission (‘CIC’ for short) vide order dated 24th November,  

2009 has directed disclosure of information observing that  

disclosure would not infringe upon the constitutional status of the  

judges. Aggrieved, the CPIO, Supreme Court of India has  

preferred this appeal.    

 3. Civil Appeal No. 10044 of 2010 arises from an application dated  

23rd January, 2009 moved by Subhash Chandra Agarwal before  

the CPIO, Supreme Court of India to furnish a copy of complete  

file/papers as available with the Supreme Court of India inclusive  

of copies of complete correspondence exchanged between the  

concerned constitutional authorities with file notings relating to the  

appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly  

and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.  

P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta,  

which was allegedly objected to by the Prime Minister. The CPIO  

vide order dated 25th February, 2009 had denied this information  

observing that the Registry did not deal with the matters pertaining  

to the appointment of the judges to the Supreme Court of India.   

Appointment of judges to the Supreme Court and the High Courts  

are made by the President of India as per the procedure

Civil Appeal No. 10044 of 2010 & Ors.  Page 4 of 108  

prescribed by law and the matters relating thereto were not dealt  

with and handled by the Registry of the Supreme Court. The  

information was neither maintained nor available with the Registry.  

First appeal preferred by Subhash Chandra Agarwal was rejected  

vide order dated 25th March, 2009 by the appellate authority. On  

further appeal, the CIC has accepted the appeal and directed  

furnishing of information by relying on the judgment dated 02nd  

September, 2009 of the Delhi High Court in Writ Petition (Civil)  

No. 288 of 2009 titled Central Public Information Officer,  

Supreme Court of India v. Subhash Chandra Agarwal &  

Another.  The CIC has also relied on the decision of this Court in  

S.P. Gupta v. Union of India & Others2 to reach its conclusion.   

Aggrieved, the CPIO, Supreme Court of India has preferred the  

present appeal stating, inter alia, that the judgment in Writ Petition  

(Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi  

High Court in LPA No. 501 of 2009 vide judgment dated 12th  

January, 2010, which judgment is the subject matter of appeal  

before this Court in Civil Appeal No.2683 of 2010.  

 4. Civil Appeal No. 2683 of 2010 arises from an application dated  

10th November, 2007 moved by Subhash Chandra Agarwal  

2 (1981) Supp SCC 87

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seeking information on declaration of assets made by the judges  

to the Chief Justices in the States, which application was  

dismissed by the CPIO, Supreme Court of India vide order/letter  

dated 30th November, 2007 stating that information relating to  

declaration of assets of the judges of the Supreme Court of India  

and the High Courts was not held by or was not under control of  

the Registry of the Supreme Court of India. On the first appeal, the  

appellate authority had passed an order of remit directing the  

CPIO, Supreme Court of India to follow the procedure under  

Section 6(3) of the RTI Act and to inform Subhash Chandra  

Agarwal about the authority holding such information as was  

sought. The CPIO had thereafter vide order dated 07th February,  

2008 held that the applicant should approach the CPIO of the  

High Courts and filing of the application before the CPIO of the  

Supreme Court was against the spirit of Section 6(3) of the RTI  

Act. Thereupon, Subhash Chandra Agarwal had directly preferred  

an appeal before the CIC, without filing the first appeal, which  

appeal was allowed vide order dated 06th January, 2009 directing:  

“… in view of what has been observed above, the  

CPIO of the Supreme Court is directed 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.”  

Civil Appeal No. 10044 of 2010 & Ors.  Page 6 of 108  

5. Aggrieved, the CPIO, Supreme Court of India had filed Writ  

Petition (Civil) No. 288 of 2009 before the Delhi High Court, which  

was decided by the learned Single Judge vide judgment dated 02nd  

September, 2009, and the findings were summarised as:  

“84. […]  

Re Point Nos. 1 & 2 Whether the CJI is a public  authority and whether the 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;  

Answer: The CJI is a public authority under the Right to  Information Act and the CJI holds the information  pertaining to asset declarations in his capacity as Chief  Justice; that office is a “public authority” under the Act  and is covered by its provisions.  

Re Point No. 3: Whether asset declaration by Supreme  Court Judges, pursuant to the 1997 Resolution are  “information”, under the Right to Information Act, 2005.  

Answer: It is held that the second part of the  respondent's application, relating to declaration of  assets by the Supreme Court Judges, is “information”  within the meaning of the expression, under Section 2  (f) of the Act. The point is answered accordingly; the  information pertaining to declarations given, to the CJI  and the contents of such declaration are “information”  and subject to the provisions of the Right to Information  Act.  

Re Point No. 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  

Answer: The petitioners' argument about the CJI  holding asset declarations in a fiduciary capacity,  (which would be breached if it is directed to be  disclosed, in the manner sought by the applicant) is  insubstantial. The CJI does not hold such declarations  in a fiduciary capacity or relationship.

Civil Appeal No. 10044 of 2010 & Ors.  Page 7 of 108  

Re Point No. 5: Whether such information is exempt  from disclosure by reason of Section 8(1)(j) of the Act.  

Answer: It is held that the contents of asset  declarations, pursuant to the 1997 resolution—and the  1999 Conference resolution—are entitled to be treated  as personal information, and may be accessed in  accordance with the procedure prescribed under  Section 8(1)(j); they are not otherwise subject to  disclosure. As far as the information sought by the  applicant in this case is concerned, (i.e. whether the  declarations were made pursuant to the 1997  resolution) the procedure under Section 8(1)(j) is  inapplicable.  

Re Point No. (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.  

 Answer: These are not insurmountable obstacles; the  

CJI, if he deems it appropriate, may in consultation with  

the Supreme Court Judges, evolve uniform standards,  

devising the nature of information, relevant formats,  

and if required, the periodicity of the declarations to be  

made. The forms evolved, as well as the procedures  

followed in the United States—including the redaction  

norms—under the Ethics in Government Act, 1978,  

reports of the US Judicial Conference, as well as the  

Judicial Disclosure Responsibility Act, 2007, which  

amends the Ethics in Government Act of 1978 to: (1)  

restrict disclosure of personal information about family  

members of Judges whose revelation might endanger  

them; and (2) extend the authority of the Judicial  

Conference to redact certain personal information of  

judges from financial disclosure reports may be  

considered.”  

6. On further appeal by the CPIO, Supreme Court of India, LPA No.  

501 of 2009 was referred to the Full Bench, which has vide its  

decision dated 12th January, 2010 dismissed the appeal. This

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judgment records that the parties were ad-idem with regard to  

point Nos. 1 and 2 as the CPIO, Supreme Court of India had fairly  

conceded and accepted the conclusions arrived at by the learned  

Single Judge and, thus, need not be disturbed. Nevertheless, the  

Full Bench had felt it appropriate to observe that they were in full  

agreement with the reasoning given by the learned Single Judge.  

The expression ‘public authority’ as used in the RTI Act is of wide  

amplitude and includes an authority created by or under the  

Constitution of India, which description holds good for the Chief  

Justice of India. While the Chief Justice of India is designated as  

one of the competent authorities under Section 2(e) of the RTI  

Act, the Chief Justice of India besides discharging his role as  

‘head of the judiciary’ also performs a multitude of tasks assigned  

to him under the Constitution and various other enactments. In the  

absence of any indication that the office of the Chief Justice of  

India is a separate establishment with its own CPIO, it cannot be  

canvassed that “the office of the CPIO of the Supreme Court is  

different from the office of the CJI” (that is, the Chief Justice of  

India). Further, neither side had made 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. The Full

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Bench had, thereafter, re-casted the remaining three questions 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?”  

  The above questions were answered in favour of the  

respondent-Subhash Chandra Aggarwal as the Full Bench has  

held that the respondent had the right to information under Section  

2(j) of the RTI Act with regard to the information in the form of  

declarations of assets made pursuant to the 1997 Resolution. The  

Chief Justice did not hold such declarations in a fiduciary capacity  

or relationship and, therefore, the information was not exempt  

under Section 8(1)(e) of the RTI Act. Addressing the third  

question, the Bench had observed:  

“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).

Civil Appeal No. 10044 of 2010 & Ors.  Page 10 of 108  

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.”  

 7. The afore-captioned three appeals were tagged to be heard and  

decided together vide order dated 26th November, 2010, the  

operative portion of which reads as under:  

“12. Having heard the learned Attorney General and  

the learned counsel for the respondent, we are of the  

considered opinion that a substantial question of law as  

to the interpretation of the Constitution is involved in  

the present case which is required to be heard by a  

Constitution Bench.  The case on hand raises  

important questions of constitutional importance  

relating to the position of Hon’ble the Chief Justice of  

India under the Constitution and the independence of  

the Judiciary in the scheme of the Constitution on the  

one hand and on the other, fundamental right to  

freedom of speech and expression.  Right to  

information is an integral part of the fundamental right  

to freedom of speech and expression guaranteed by  

the Constitution.  Right to Information Act merely  

recognizes the constitutional right of citizens to  

freedom of speech and expression.  Independence of  

Judiciary forms part of basic structure of the  

Constitution of India.  The independence of Judiciary  

and the fundamental right to free speech and  

expression are of a great value and both of them are  

required to be balanced.”  

Civil Appeal No. 10044 of 2010 & Ors.  Page 11 of 108  

8. This order while referring the matter to a larger bench had framed  

the following substantial questions of law as to the interpretation of  

the Constitution, which read as under:  

“1. Whether the concept of independence of judiciary  

requires and demands the prohibition of furnishing of  

the information sought? Whether the information  

sought for amounts to interference in the functioning of  

the Judiciary?  

2. Whether the information sought for cannot be  

furnished to avoid any erosion in the credibility of the  

decisions and to ensure a free and frank expression of  

honest opinion by all the constitutional functionaries,  

which is essential for effective consultation and for  

taking the right decision?  

3. Whether the information sought for is exempt under  

Section 8(1)(j) of the Right to Information Act?”  

 9. We have heard Mr. K.K. Venugopal, Attorney General of India, Mr.  

Tushar Mehta, Solicitor General of India on behalf of the Supreme  

Court of India and Mr. Prashant Bhushan, learned advocate for  

Subhash Chandra Agarwal. The appellants have contended that  

disclosure of the information sought would impede the  

independence of judges as it fails to recognise the unique position  

of the judiciary within the framework of the Constitution which  

necessitates that the judges ought not to be subjected to ‘litigative  

public debate’ and such insulation is constitutional, deliberate and  

essential to the effective functioning of the institution. Right to  

information is not an unfettered constitutional right, albeit a right

Civil Appeal No. 10044 of 2010 & Ors.  Page 12 of 108  

available within the framework of the RTI Act, which means that  

the right is subject, among other conditions, to the exclusions,  

restrictions and conditions listed in the Second Schedule and in  

Sections 8 to 11 of the RTI Act. In support, the appellants have  

relied upon Re Coe’s Estate Ebert et al v. State et. al3, Bhudan  

Singh and Another v. Nabi Bux and Another4, Kailash Rai v.  

Jai Ram5 and Dollfus Mieg et Compagnie S.A. v. Bank of  

England6. Information sought when exempt under Section 8 of the  

RTI Act cannot be disclosed. Information on assets relates to  

personal information, the disclosure of which has no bearing on  

any public activity or interest and is, therefore, exempt under  

Section 8(1)(j) of the RTI Act. Similarly, information of prospective  

candidates who are considered for judicial appointments and/or  

elevation relates to their personal information, the disclosure of  

which would cause unwarranted invasion of an individual’s privacy  

and serves no larger public interest. Further, the information on  

assets is voluntarily declared by the judges to the Chief Justice of  

India in his fiduciary capacity as the pater familias of the judiciary.  

Consultations and correspondence between the office of the Chief  

Justice of India and other constitutional functionaries are made on  

3 33 Cal.2d 502  4 1969 (2) SCC 481  5 1973 (1) SCC 527  6 (1950) 2 All E.R. 611

Civil Appeal No. 10044 of 2010 & Ors.  Page 13 of 108  

the basis of trust and confidence which ascribes the attributes of a  

fiduciary to the office of the Chief Justice. Information relating to  

the appointment of judges is shared among other constitutional  

functionaries in their fiduciary capacities, which makes the  

information exempt under Section 8(1)(e) of the RTI Act. The  

respondent, on the other hand, has by relying on the dicta in State  

of U.P. v. Raj Narain and Others7 and S. P. Gupta (supra)  

argued that disclosure of the information sought does not  

undermine the independence of the judiciary. Openness and  

transparency in functioning would better secure the independence  

of the judiciary by placing any attempt made to influence or  

compromise the independence of the judiciary in the public  

domain. Further, the citizens have a legitimate and constitutional  

right to seek information about the details of any such attempt.  

Thus, disclosure, and not secrecy, enhances the independence of  

the judiciary. No legitimate concerns exist which may inhibit  

consultees from freely expressing themselves or which might  

expose candidates to spurious allegations by disclosing the  

consultative process for appointing judges. Given the nature of the  

information sought, disclosure of the information will serve the  

larger public interest and, therefore, such interest outweighs the  

7 (1975) 4 SCC 428

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privilege of exemption granted to personal information under  

Section 8(1)(j) of the RTI Act. If any personal information is  

involved, the same could be dealt with on a case-by-case basis by  

disclosing the information that serves public interest after severing  

the records as per Section 10 of the RTI Act. There is no fiduciary  

relationship between the Chief Justice and the judges or among  

the constitutional functionaries as envisaged under Section 8(1)(e)  

of the RTI Act which could be a ground for holding back the  

information. Reliance was placed on the decisions of this Court in  

Central Board of Secondary Education and Another v. Aditya  

Bandopadhyay and Others8 and Reserve Bank of India v.  

Jayantilal N. Mistry9, to contend that the duty of a public servant  

is not to act for the benefit of another public servant, that is, the  

Chief Justice and other functionaries are meant to discharge their  

constitutional duties and not act as a fiduciary of anyone, except  

the people. In arguendo, even if there exists a fiduciary  

relationship among the functionaries, disclosure can be made if it  

serves the larger public interest. Additionally, candour and  

confidentiality are not heads of exemption under the RTI Act and,  

therefore, cannot be invoked as exemptions in this case.  

8 (2011) 8 SCC 497  9 (2016) 3 SCC 525

Civil Appeal No. 10044 of 2010 & Ors.  Page 15 of 108  

10. For clarity and convenience, we would deal with the issues point-

wise, albeit would observe that Point no. 1 (referred to as point  

Nos.1 and 2 in the judgment in LPA No. 501 of 2009 dated 12th  

January, 2010) was not contested before the Full Bench but as  

some clarification is required, it has been dealt below.  

 POINT NO. 1: WHETHER THE SUPREME COURT OF INDIA AND  

THE CHIEF JUSTICE OF INDIA ARE TWO  SEPARATE PUBLIC AUTHORITIES?  

11. Terms ‘competent authority’ and ‘public authority’ have been  

specifically defined in clauses (e) and (h) to Section 2 of the RTI  

Act, which read:  

“(e) "competent authority" means—   

(i) the Speaker in the case of the House of the  

People or the Legislative Assembly of a State or a  

Union territory having such Assembly and the  

Chairman in the case of the Council of States or  

Legislative Council of a State;  

(ii) the Chief Justice of India in the case of the  

Supreme Court;   

(iii) the Chief Justice of the High Court in the  

case of a High Court;   

(iv) the President or the Governor, as the case  

may be, in the case of other authorities  

established or constituted by or under the  

Constitution;   

(v) the administrator appointed under article 239  

of the Constitution;  

xx           xx           xx

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(h) "public authority" means 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;”  

12. Term ‘public authority’ under Section 2(h) of the RTI Act includes  

any authority or body or an institution of self-government  

established by the Constitution or under the Constitution.  

Interpreting the expression ‘public authority’ in Thalappalam  

Service Cooperative Bank Limited and Others v. State of  

Kerala and Others10, this Court had observed:  

“30. The legislature, in its wisdom, while defining the  

expression “public authority” under Section 2(h),  

intended to embrace only those categories, which are  

specifically included, unless the context of the Act  

otherwise requires. Section 2(h) has used the  

expressions “means” and “includes”. When a word is  

defined to “mean” something, the definition is prima  

facie restrictive and where the word is defined to  

“include” some other thing, the definition is prima facie  

extensive. But when both the expressions “means” and  

“includes” are used, the categories mentioned there  

10 (2013) 16 SCC 82

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would exhaust themselves. The meanings of the  

expressions “means” and “includes” have been  

explained by this Court in DDA v. Bhola Nath Sharma  

(in paras 25 to 28). When such expressions are used,  

they may afford an exhaustive explanation of the  

meaning which for the purpose of the Act, must  

invariably be attached to those words and expressions.    

31. Section 2(h) exhausts the categories mentioned  therein. The former part of Section 2(h) deals with:    (1)  an authority or body or institution of self-

government established by or under the  Constitution,  

(2)  an authority or body or institution of self- government established or constituted by any other  law made by Parliament,  

(3)  an authority or body or institution of self- government established or constituted by any other  law made by the State Legislature, and  

(4)  an authority or body or institution of self- government established or constituted by  notification issued or order made by the appropriate  Government.”  

 13. Article 124 of the Constitution, which relates to the establishment  

and constitution of the Supreme Court of India, states that there  

shall be a Supreme Court of India consisting of a Chief Justice  

and other judges.  It is undebatable that the Supreme Court of  

India is a ‘public authority’, as defined vide clause (h) to Section 2  

of the RTI Act as it has been established and constituted by or  

under the Constitution of India. The Chief Justice of India as per  

sub-clause (ii) in clause (e) to Section 2 is the competent authority  

in the case of the Supreme Court. Consequently, in terms of  

Section 28 of the RTI Act, the Chief Justice of India is empowered

Civil Appeal No. 10044 of 2010 & Ors.  Page 18 of 108  

to frame rules, which have to be notified in the Official Gazette, to  

carry out the provisions of the RTI Act.  

 14. The Supreme Court of India, which is a ‘public authority’, would  

necessarily include the office of the Chief Justice of India and the  

judges in view of Article 124 of the Constitution. The office of the  

Chief Justice or for that matter the judges is not separate from the  

Supreme Court, and is part and parcel of the Supreme Court as a  

body, authority and institution. The Chief Justice and the Supreme  

Court are not two distinct and separate ‘public authorities’, albeit  

the latter is a ‘public authority’ and the Chief Justice and the  

judges together form and constitute the ‘public authority’, that is,  

the Supreme Court of India. The interpretation to Section 2(h)  

cannot be made in derogation of the Constitution. To hold to the  

contrary would imply that the Chief Justice of India and the  

Supreme Court of India are two distinct and separate public  

authorities, and each would have their CPIOs and in terms of sub-

section (3) to Section 6 of the RTI Act an application made to the  

CPIO of the Supreme Court or the Chief Justice would have to be  

transferred to the other when ‘information’ is held or the subject  

matter is more closely connected with the ‘functions’ of the other.  

This would lead to anomalies and difficulties as the institution,  

authority or body is one. The Chief Justice of India is the head of

Civil Appeal No. 10044 of 2010 & Ors.  Page 19 of 108  

the institution and neither he nor his office is a separate public  

authority.  

 15. This is equally true and would apply to the High Courts in the  

country as Article 214 states that there shall be a High Court for  

each State and Article 216 states that every High Court shall  

consist of a Chief Justice and such other judges as the President  

of India may from time to time deem it appropriate to appoint.  

 POINT NO. 2: INFORMATION AND RIGHT TO INFORMATION  

UNDER THE RTI ACT    16. Terms ‘information’, ‘record’ and ‘right to information’ have been  

defined under clauses (f), (i) and (j) to Section 2 of the RTI Act  

which are reproduced below:  

“(f) “information” means 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;  

xx  xx  xx    

(i) "record" includes—     

(a) any document, manuscript and file;     (b) any microfilm, microfiche and facsimile copy of a  document;     (c) any reproduction of image or images embodied in  such microfilm (whether enlarged or not); and  

Civil Appeal No. 10044 of 2010 & Ors.  Page 20 of 108  

 (d) any other material produced by a computer or any  other device;    

(j) “right to information” means the right to information  accessible under this 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;”  

 17. ‘Information’ as per the definition clause is broad and wide, as it is  

defined to mean “material in any form” with amplifying words  

including records (a term again defined in widest terms vide  

clause (i) to Section 2 of the RTI Act), documents, emails, memos,  

advices, logbooks, contracts, reports, papers, samples, models,  

data material held in electronic form, etc. The last portion of the  

definition clause which states that the term ‘information’ would  

include ‘information relating to any private body which can be  

accessed by a public authority under any other law for the time  

being in force’ has to be read as reference to ‘information’ not  

presently available or held by the public authority but which can be  

accessed by the public authority from a private body under any

Civil Appeal No. 10044 of 2010 & Ors.  Page 21 of 108  

other law for the time being in force. The term – ‘private body’ in  

the clause has been used to distinguish and is in contradistinction  

to the term – ‘public authority’ as defined in Section 2(h) of the RTI  

Act. It follows that any requirement in the nature of precondition  

and restrictions prescribed by any other law would continue to  

apply and are to be satisfied before information can be accessed  

and asked to be furnished by a private body.  

 18. What is explicit as well as implicit from the definition of  

‘information’ in clause (f) to Section 2 follows and gets affirmation  

from the definition of ‘right to information’ that the information  

should be accessible by the public authority and ‘held by or under  

the control of any public authority’. The word ‘hold’ as defined in  

Wharton’s Law Lexicon, 15th Edition, means to have the  

ownership or use of; keep as one’s own, but in the context of the  

present legislation, we would prefer to adopt a broader definition  

of the word ‘hold’ in Black’s Law Dictionary, 6th Edition, as  

meaning; to keep, to retain, to maintain possession of or authority  

over. The words ‘under the control of any public authority’ as per  

their natural meaning would mean the right and power of the  

public authority to get access to the information. It refers to  

dominion over the information or the right to any material,  

document etc. The words ‘under the control of any public

Civil Appeal No. 10044 of 2010 & Ors.  Page 22 of 108  

authority’ would include within their ambit and scope information  

relating to a private body which can be accessed by a public  

authority under any other law for the time being in force subject to  

the pre-imposed conditions and restrictions as applicable to  

access the information.  

 19. When information is accessible by a public authority, that is, held  

or under its control, then the information must be furnished to the  

information seeker under the RTI Act even if there are conditions  

or prohibitions under another statute already in force or under the  

Official Secrets Act, 1923, that restricts or prohibits access to  

information by the public. In view of the non-obstante clause in  

Section 2211 of the RTI Act, any prohibition or condition which  

prevents a citizen from having access to information would not  

apply. Restriction on the right of citizens is erased. However,  

when access to information by a public authority itself is prohibited  

or is accessible subject to conditions, then the prohibition is not  

obliterated and the pre-conditions are not erased. Section  

2(f) read with Section 22 of the RTI Act does not bring any  

modification or amendment in any other enactment, which bars or  

11 Section 22 of the RTI Act reads:   

"22. Act to have overriding effect. -The provisions of this Act shall have effect notwithstanding  

anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any  

other law for the time being in force or in any instrument having effect by virtue of any law other  

than this Act.”

Civil Appeal No. 10044 of 2010 & Ors.  Page 23 of 108  

prohibits or imposes pre-condition for accessing information of the  

private bodies. Rather, clause (f) to Section 2 upholds and  

accepts the said position when it uses the expression – “which  

can be accessed”, that is the public authority should be in a  

position and be entitled to ask for the said information. Section  

22 of the RTI Act, an overriding provision, does not militate  

against the interpretation as there is no contradiction or conflict  

between the provisions of Section 2(f) of the RTI Act and other  

statutory enactments/law. Section 22 of the RTI Act is a key that  

unlocks prohibitions/limitations in any prior enactment on the right  

of a citizen to access information which is accessible by a public  

authority. It is not a key with the public authority that can be used  

to undo and erase prohibitions/limitations on the right of the public  

authority to access information. In other words, a private body will  

be entitled to the same protection as is available to them under  

the laws of this country.  

 20. Full Bench of the Delhi High Court in its judgment dated 12th  

January 2010 in LPA No. 501 of 2009 had rightly on the  

interpretation of word ‘held’, referred to Philip Coppel’s work  

‘Information Rights’ (2nd Edition, Thomson, Sweet & Maxwell

Civil Appeal No. 10044 of 2010 & Ors.  Page 24 of 108  

2007)12 interpreting the provisions of the Freedom of Information  

Act, 2000 (United Kingdom) in which it has been observed:  

“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. …”  

Thereafter, the Full Bench had observed:    

“59. Therefore, according to Coppel the word “held”  

suggests a relationship between a public authority and  

12 Also, see Philip Coppel, ‘Information Rights’ (4th Edition, Hart Publishing 2014) P. 361-62

Civil Appeal No. 10044 of 2010 & Ors.  Page 25 of 108  

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… .”  

Therefore, the word “hold” is not purely a physical concept  

but refers to the appropriate connection between the information  

and the authority so that it can properly be said that the  

information is held by the public authority.13  

21. In Khanapuram Gandaiah v. Administrative Officer and  

Others14, this Court on examining the definition clause 2(f) of the  

RTI Act had held as under:  

“10. […] This definition shows that an applicant under  

Section 6 of the RTI Act can get any information which  

13 New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection,  

[2011] UKUT 185 AAC  14 (2010) 2 SCC 1

Civil Appeal No. 10044 of 2010 & Ors.  Page 26 of 108  

is already in existence and accessible to the public  

authority under law. ...  

xx  xx  xx  

12. […] the Public Information Officer is not supposed  

to have any material which is not before him; or any  

information he could (sic not) have obtained under law.  

Under Section 6 of the RTI Act, an applicant is entitled  

to get only such information which can be accessed by  

the “public authority” under any other law for the time  

being in force. …”  

  The aforesaid observation emphasises on the mandatory  

requirement of accessibility of information by the public authority  

under any other law for the time being in force. This aspect was  

again highlighted by another Division Bench in Aditya  

Bandopadhyay (supra), wherein information was divided into  

three categories in the following words:  

“59. The effect of the provisions and scheme of the RTI  

Act is to divide “information” into three categories. They  

are:  

(i) Information which promotes transparency and  

accountability in the working of every public authority,  

disclosure of which may also help in containing or  

discouraging corruption [enumerated in clauses (b) and  

(c) of Section 4(1) of the RTI Act].  

(ii) Other information held by public authority [that is, all  

information other than those falling under clauses (b)  

and (c) of Section 4(1) of the RTI Act].  

(iii) Information which is not held by or under the  

control of any public authority and which cannot be  

accessed by a public authority under any law for the  

time being in force.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 27 of 108  

Information under the third category does not fall within  

the scope of the RTI Act. Section 3 of the RTI Act gives  

every citizen, the right to “information” held by or under  

the control of a public authority, which falls either under  

the first or second category. In regard to the  

information falling under the first category, there is also  

a special responsibility upon the public authorities to  

suo motu publish and disseminate such information so  

that they will be easily and readily accessible to the  

public without any need to access them by having  

recourse to Section 6 of the RTI Act. There is no such  

obligation to publish and disseminate the other  

information which falls under the second category.”  

  The first category refers to the information specified in  

clause (b) to sub-section (1) to Section 4 which consists of as  

many as seventeen sub-clauses on diverse subjects stated  

therein. It also refers to clause (c) to sub-section (1) to Section 4  

by which public authority is required to publish all relevant facts  

while formulating important public policies or pronouncing its  

decision which affects the public. The rationale behind these  

clauses is to disseminate most of the information which is in the  

public interest and promote openness and transparency in  

government.  

 22. The expressions ‘held by or under the control of any public  

authority’ and ‘information accessible under this Act’ are  

restrictive15 and reflect the limits to the ‘right to information’  

15 See ‘Central Board of Secondary Education v. Aditya Bandopadhyay’ (2011) 8 SCC 497

Civil Appeal No. 10044 of 2010 & Ors.  Page 28 of 108  

conferred vide Section 3 of the RTI Act, which states that subject  

to the provisions of the RTI Act, all citizens shall have the right to  

information. The right to information is not absolute and is subject  

to the conditions and exemptions under the RTI Act.   

 23. This aspect was again highlighted when the terms ‘information’  

and ‘right to information’ were interpreted in Thalappalam  

Service Cooperative Bank Limited (supra) with the following  

elucidation:  

“63. Section 8 begins with a non obstante clause,  

which gives that section an overriding effect, in case of  

conflict, over the other provisions of the Act. Even if,  

there is any indication to the contrary, still there is no  

obligation on the public authority to give information to  

any citizen of what has been mentioned in clauses (a)  

to (j). The public authority, as already indicated, cannot  

access all the information from a private individual, but  

only those information which he is legally obliged to  

pass on to a public authority by law, and also only  

those information to which the public authority can  

have access in accordance with law. Even those  

information, if personal in nature, can be made  

available only subject to the limitations provided in  

Section 8(j) of the RTI Act. Right to be left alone, as  

propounded in Olmstead v. United States is the most  

comprehensive of the rights and most valued by  

civilised man.  

xx   xx  xx  

67. The Registrar of Cooperative Societies functioning  

under the Cooperative Societies Act is a “public  

authority” within the meaning of Section 2(h) of the Act.  

As a public authority, the Registrar of Cooperative  

Societies has been conferred with lot of statutory  

powers under the respective Act under which he is

Civil Appeal No. 10044 of 2010 & Ors.  Page 29 of 108  

functioning. He is also duty-bound to comply with the  

obligations under the RTI Act and furnish information to  

a citizen under the RTI Act. Information which he is  

expected to provide is the information enumerated  

in Section 2(f) of the RTI Act subject to the limitations  

provided under Section 8 of the Act. The Registrar can  

also, to the extent law permits, gather information from  

a Society, on which he has supervisory or  

administrative control under the Cooperative Societies  

Act. Consequently, apart from the information as is  

available to him, under Section 2(f), he can also gather  

those information from the society, to the extent  

permitted by law. The Registrar is also not obliged to  

disclose those information if those information fall  

under Section 8(1)(j) of the Act. No provision has been  

brought to our knowledge indicating that, under  

the Cooperative Societies Act, a Registrar can call for  

the details of the bank accounts maintained by the  

citizens or members in a cooperative bank. Only those  

information which a Registrar of Cooperative Societies  

can have access under the Cooperative Societies  

Act from a society could be said to be the information  

which is “held” or “under the control of public authority”.  

Even those information, the Registrar, as already  

indicated, is not legally obliged to provide if those  

information falls under the exempted category  

mentioned in Section 8(j) of the Act. Apart from the  

Registrar of Co-operative Societies, there may be other  

public authorities who can access information from a  

co-operative bank of a private account maintained by a  

member of society under law, in the event of which, in  

a given situation, the society will have to part with that  

information. But the demand should have statutory  

backing.   

68.  Consequently, if an information which has been  

sought for relates 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, the Registrar of  

Cooperative Societies, even if he has got that  

information, is not bound to furnish the same to an  

applicant, unless he is satisfied that the larger public

Civil Appeal No. 10044 of 2010 & Ors.  Page 30 of 108  

interest justifies the disclosure of such information, that  

too, for reasons to be recorded in writing.”  

  Thus, the scope of the expressions ‘information’ and ‘right to  

information’ which can be accessed by a citizen under the RTI Act  

have to be understood in light of the above discussion.  

POINT NO. 3:  SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT    

24. To ensure transparency and accountability and to make Indian  

democracy more participatory, the RTI Act sets out a practical and  

pragmatic regime to enable citizens to secure greater access to  

information available with public authorities by balancing diverse  

interests including efficient governance, optimum use of limited  

fiscal operations and preservation of confidentiality of sensitive  

information. The preamble to the RTI Act appropriately  

summarises the object of harmonising various conflicts in the  

following words:  

“   xx  xx  xx    

AND WHEREAS democracy requires an informed  

citizenry and transparency of information which are  

vital to its functioning and also to contain corruption  

and to hold Governments and their instrumentalities  

accountable to the governed;    

AND WHEREAS revelation of information in actual  

practice is likely to conflict with other public interests  

including efficient operations of the Governments,  

optimum use of limited fiscal resources and the  

preservation of confidentiality of sensitive information;   

Civil Appeal No. 10044 of 2010 & Ors.  Page 31 of 108  

AND WHEREAS it is necessary to harmonise these  

conflicting interests while preserving the paramountcy  

of the democratic ideal;    

xx  xx  xx”  

 25. An attempt to resolve conflict and disharmony between these  

aspects is evident in the exceptions and conditions on access to  

information set out in Sections 8 to 11 of the RTI Act. At the  

outset, we would reproduce Section 8 of the RTI Act, which reads  

as under:  

“8. (1) Notwithstanding anything contained in this Act,  

there shall be no obligation to give any citizen,—  

(a) information, 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;  

Civil Appeal No. 10044 of 2010 & Ors.  Page 32 of 108  

(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:   

Provided that the decisions of 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:   

Provided further that those matters which come under  

the exemptions specified in this section shall not be  

disclosed;   

(j) information which relates 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 unless the  

Central Public Information Officer or the State Public  

Information Officer or the appellate authority, as the  

case may be, is satisfied that the larger public interest  

justifies the disclosure of such information:   

Provided that the information which cannot be denied  

to the Parliament or a State Legislature shall not be  

denied to any person.   

(2) Notwithstanding anything in the Official Secrets Act,  

1923 nor any of the exemptions permissible in  

accordance with sub-section (1), a public authority may  

allow access to information, if public interest in

Civil Appeal No. 10044 of 2010 & Ors.  Page 33 of 108  

disclosure outweighs the harm to the protected  

interests.   

(3) Subject to the provisions of clauses (a), (c) and (i)  

of sub-section (1), any information relating to any  

occurrence, event or matter which has taken place,  

occurred or happened twenty years before the date on  

which any request is made under section 6 shall be  

provided to any person making a request under that  

section:   

Provided that where any question arises as to the date  

from which the said period of twenty years has to be  

computed, the decision of the Central Government  

shall be final, subject to the usual appeals provided for  

in this Act.”  

Sub-section (1) of Section 8 begins with a non-obstante  

clause giving primacy and overriding legal effect to different  

clauses under the sub-section in case of any conflict with other  

provisions of the RTI Act. Section 8(1) without modifying or  

amending the term ‘information’, carves out exceptions when  

access to ‘information’, as defined in Section 2(f) of the RTI Act  

would be denied. Consequently, the right to information is  

available when information is accessible under the RTI Act, that is,  

when the exceptions listed in Section 8(1) of the RTI Act are not  

attracted. In terms of Section 3 of the RTI Act, all citizens have  

right to information, subject to the provisions of the RTI Act, that  

is, information ‘held by or under the control of any public authority’,  

except when such information is exempt or excluded.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 34 of 108  

26. Clauses in sub-section (1) to Section 8 can be divided into two  

categories: clauses (a), (b), (c), (f), (g), (h) and (i), and clauses (d),  

(e) and (j). The latter clauses state that the prohibition specified  

would not apply or operate when the competent authority in  

clauses (d) and (e) and the PIO in clause (j) is satisfied that larger  

public interest warrants disclosure of such information.16  

Therefore, clauses (d), (e) and (j) of Section 8(1) of the RTI Act  

incorporate qualified prohibitions and are conditional and not  

absolute exemptions.  Clauses (a), (b), (c), (f), (g), (h) and (i) do  

not have any such stipulation. Prohibitory stipulations in these  

clauses do not permit disclosure of information on satisfaction of  

the larger public interest rule. These clauses, therefore,  

incorporate absolute exclusions.  

 27. Sub-section (2) to Section 8 states that notwithstanding anything  

contained in the Official Secrets Act, 1923 or any of the  

exemptions permissible in accordance with sub-section (1), a  

public authority may allow access to information if the public  

interest in disclosure outweighs the harm to the protected  

interests. The disclosure under Section 8(2) by the public authority  

16 For the purpose of the present decision, we do not consider it appropriate to decide who would be  

the ‘competent authority’ in the case of other public authorities, if sub-clauses (i) to (v) to clause (e)  

of Section 2 are inapplicable. This ‘anomaly’ or question is not required to be decided in the present  

case as the Chief Justice of India is a competent authority in the case of the Supreme Court of  

India.

Civil Appeal No. 10044 of 2010 & Ors.  Page 35 of 108  

is not a mandate or compulsion but is in the form of discretionary  

disclosure. Section 8(2) acknowledges and empowers the public  

authority to lawfully disclose information held by them despite the  

exemptions under sub-section (1) to Section 8 if the public  

authority is of the opinion that the larger public interest warrants  

disclosure. Such disclosure can be made notwithstanding the  

provisions of the Official Secrets Act. Section 8(2) does not create  

a vested or justiciable right that the citizens can enforce by an  

application before the PIO seeking information under the RTI Act.  

PIO is under no duty to disclose information covered by  

exemptions under Section 8(1) of the RTI Act. Once the PIO  

comes to the conclusion that any of the exemption clauses is  

applicable, the PIO cannot pass an order directing disclosure  

under Section 8(2) of the RTI Act as this discretionary power is  

exclusively vested with the public authority.   

 28. Section 9 provides that without prejudice to the provisions of  

Section 8, a request for information may be rejected if such a  

request for providing access would involve an infringement of  

copyright subsisting in a person other than the State.  

 29. Section 10 deals with severability of exempted information and  

sub-section (1) thereof reads as under:

Civil Appeal No. 10044 of 2010 & Ors.  Page 36 of 108  

“10. Severability.– (1) Where a request for access to  

information is rejected on the ground that it is in  

relation to information which is exempt from disclosure,  

then, notwithstanding anything contained in this Act,  

access may be provided to that part of the record  

which does not contain any information which is  

exempt from disclosure under this Act and which can  

reasonably be severed from any part that contains  

exempt information.”  

 30. Section 11, which deals with third party information, and  

incorporates conditional exclusion based on breach of  

confidentiality by applying public interest test, reads as under:  

“11. (1) Where a Central Public Information Officer or a  

State Public Information Officer, as the case may be,  

intends to disclose any information or record, or part  

thereof on a request made under this Act, which relates  

to or has been supplied by a third party and has been  

treated as confidential by that third party, the Central  

Public Information Officer or State Public Information  

Officer, as the case may be, shall, within five days from  

the receipt of the request, give a written notice to such  

third party of the request and of the fact that the  

Central Public Information Officer or State Public  

Information Officer, as the case may be, intends to  

disclose the information or record, or part thereof, and  

invite the third party to make a submission in writing or  

orally, regarding whether the information should be  

disclosed, and such submission of the third party shall  

be kept in view while taking a decision about disclosure  

of information:     

Provided that except in the case of trade or commercial  

secrets protected by law, disclosure may be allowed if  

the public interest in disclosure outweighs in  

importance any possible harm or injury to the interests  

of such third party.     

(2) Where a notice is served by the Central Public  

Information Officer or State Public Information Officer,  

as the case may be, under sub-section (1) to a third  

party in respect of any information or record or part

Civil Appeal No. 10044 of 2010 & Ors.  Page 37 of 108  

thereof, the third party shall, within ten days from the  

date of receipt of such notice, be given the opportunity  

to make representation against the proposed  

disclosure.     (3) Notwithstanding anything contained in section 7,  

the Central Public Information Officer or State Public  

Information Officer, as the case may be, shall, within  

forty days after receipt of the request under section 6, if  

the third party has been given an opportunity to make  

representation under sub-section (2), make a decision  

as to whether or not to disclose the information or  

record or part thereof and give in writing the notice of  

his decision to the third party.    

(4) A notice given under sub-section (3) shall include a  

statement that the third party to whom the notice is  

given is entitled to prefer an appeal under section 19  

against the decision.”  

  We shall subsequently interpret and expound on Section 11  

of the RTI Act.  

 31. At the present stage, we would like to quote from Aditya  

Bandopadhyay (supra) wherein this Court, on the aspect of  

general principles of interpretation while deciding the conflict  

between the right to information and exclusions under Section 8 to  

11 of the RTI Act, had observed:  

“61. Some High Courts have held that Section 8 of the  

RTI Act is in the nature of an exception to Section 3  

which empowers the citizens with the right to  

information, which is a derivative from the freedom of  

speech; and that, therefore, Section 8 should be  

construed strictly, literally and narrowly. This may not  

be the correct approach. The Act seeks to bring about  

a balance between two conflicting interests, as  

harmony between them is essential for preserving  

democracy. One is to bring about transparency and

Civil Appeal No. 10044 of 2010 & Ors.  Page 38 of 108  

accountability by providing access to information under  

the control of public authorities. The other is to ensure  

that the revelation of information, in actual practice,  

does not conflict with other public interests which  

include efficient operation of the governments,  

optimum use of limited fiscal resources and  

preservation of confidentiality of sensitive information.  

The Preamble to the Act specifically states that the  

object of the Act is to harmonise these two conflicting  

interests. While Sections 3 and 4 seek to achieve the  

first objective, Sections 8, 9, 10 and 11 seek to achieve  

the second objective. Therefore, when Section 8  

exempts certain information from being disclosed, it  

should not be considered to be a fetter on the right to  

information, but as an equally important provision  

protecting other public interests essential for the  

fulfilment and preservation of democratic ideals.  

62. When trying to ensure that the right to information  

does not conflict with several other public interests  

(which includes efficient operations of the  

Governments, preservation of confidentiality of  

sensitive information, optimum use of limited fiscal  

resources, etc.), it is difficult to visualise and  

enumerate all types of information which require to be  

exempted from disclosure in public interest. The  

legislature has however made an attempt to do so. The  

enumeration of exemptions is more exhaustive than  

the enumeration of exemptions attempted in the earlier  

Act, that is, Section 8 of the Freedom to Information  

Act, 2002. The courts and Information Commissions  

enforcing the provisions of the RTI Act have to adopt a  

purposive construction, involving a reasonable and  

balanced approach which harmonises the two objects  

of the Act, while interpreting Section 8 and the other  

provisions of the Act.  

63. At this juncture, it is necessary to clear some  

misconceptions about the RTI Act. The RTI Act  

provides access to all information that is available and  

existing. This is clear from a combined reading of  

Section 3 and the definitions of “information” and “right  

to information” under clauses (f) and (j) of Section 2 of  

the Act. If a public authority has any information in the

Civil Appeal No. 10044 of 2010 & Ors.  Page 39 of 108  

form of data or analysed data, or abstracts, or  

statistics, an applicant may access such information,  

subject to the exemptions in Section 8 of the Act. But  

where the information sought is not a part of the record  

of a public authority, and where such information is not  

required to be maintained under any law or the rules or  

regulations of the public authority, the Act does not  

cast an obligation upon the public authority, to collect  

or collate such non-available information and then  

furnish it to an applicant. A public authority is also not  

required to furnish information which require drawing of  

inferences and/or making of assumptions. It is also not  

required to provide “advice” or “opinion” to an  

applicant, nor required to obtain and furnish any  

“opinion” or “advice” to an applicant. The reference to  

“opinion” or “advice” in the definition of “information” in  

Section 2(f) of the Act, only refers to such material  

available in the records of the public authority. Many  

public authorities have, as a public relation exercise,  

provide advice, guidance and opinion to the citizens.  

But that is purely voluntary and should not be confused  

with any obligation under the RTI Act.”  

  Paragraph 63 quoted above has to be read with our  

observations on the last portion of clause (f) to Section 2 defining  

the word ‘information’, albeit, on the observations and findings  

recorded, we respectfully concur. For the present decision, we are  

required to primarily examine clauses (e) and (j) of sub-section (1)  

to Section 8 and Section 11 of the RTI Act.  

 Point No. 3 (A): Fiduciary Relationship under Section 8(1)(e) of the   

  RTI Act  

 32. Clause (e) to Section 8(1) of the RTI Act states that information  

made available to a person in his fiduciary relationship shall not be  

disclosed unless the competent authority is satisfied that the

Civil Appeal No. 10044 of 2010 & Ors.  Page 40 of 108  

larger public interest warrants the disclosure of such information.  

The expression ‘fiduciary relationship’ was examined and  

explained in Aditya Bandopadhyay (supra), in the following  

words:  

“39.  The term “fiduciary” refers to a person having a  

duty to act for the benefit of another, showing good  

faith and candour, where such other person reposes  

trust and special confidence in the person owing or  

discharging the duty. The term “fiduciary relationship”  

is used to describe a situation or transaction where one  

person (beneficiary) places complete confidence in  

another person (fiduciary) in regard to his affairs,  

business or transaction(s). The term also refers to a  

person who holds a thing in trust for another  

(beneficiary). The fiduciary is expected to act in  

confidence and for the benefit and advantage of the  

beneficiary, and use good faith and fairness in dealing  

with the beneficiary or the things belonging to the  

beneficiary. If the beneficiary has entrusted anything to  

the fiduciary, to hold the thing in trust or to execute  

certain acts in regard to or with reference to the  

entrusted thing, the fiduciary has to act in confidence  

and is expected not to disclose the thing or information  

to any third party.  

40. There are also certain relationships where both the  

parties have to act in a fiduciary capacity treating the  

other as the beneficiary. Examples of these are: a  

partner vis-à-vis another partner and an employer vis-

à-vis employee. An employee who comes into  

possession of business or trade secrets or confidential  

information relating to the employer in the course of his  

employment, is expected to act as a fiduciary and  

cannot disclose it to others. Similarly, if on the request  

of the employer or official superior or the head of a  

department, an employee furnishes his personal details  

and information, to be retained in confidence, the  

employer, the official superior or departmental head is  

expected to hold such personal information in  

confidence as a fiduciary, to be made use of or

Civil Appeal No. 10044 of 2010 & Ors.  Page 41 of 108  

disclosed only if the employee’s conduct or acts are  

found to be prejudicial to the employer.  

41. In a philosophical and very wide sense, examining  

bodies can be said to act in a fiduciary capacity, with  

reference to the students who participate in an  

examination, as a Government does while governing  

its citizens or as the present generation does with  

reference to the future generation while preserving the  

environment. But the words “information available to a  

person in his fiduciary relationship” are used in Section  

8(1)(e) of the RTI Act 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—a trustee with  

reference to the beneficiary of the trust, a guardian with  

reference to a minor/physically infirm/mentally  

challenged, a parent with reference to a child, a lawyer  

or a chartered accountant with reference to a client, a  

doctor or nurse with reference to a patient, an agent  

with reference to a principal, a partner with reference to  

another partner, a director of a company with reference  

to a shareholder, an executor with reference to a  

legatee, a receiver with reference to the parties to a lis,  

an employer with reference to the confidential  

information relating to the employee, and an employee  

with reference to business dealings/transaction of the  

employer. We do not find that kind of fiduciary  

relationship between the examining body and the  

examinee, with reference to the evaluated answer  

books, that come into the custody of the examining  

body.”  

  This Court held that the exemption under section 8(1)(e) of  

the RTI Act does not apply to beneficiaries regarding whom the  

fiduciary holds information. In other words, information available  

with the public authority relating to beneficiaries cannot be  

withheld from or denied to the beneficiaries themselves. A

Civil Appeal No. 10044 of 2010 & Ors.  Page 42 of 108  

fiduciary would, ergo, be duty-bound to make thorough disclosure  

of all relevant facts of all transactions between them in a fiduciary  

relationship to the beneficiary. In the facts of the said case, this  

Court had to consider whether an examining body, the Central  

Board of Secondary Education, held information in the form of  

evaluated answer-books of the examinees in fiduciary capacity.  

Answering in the negative, it was nevertheless observed that even  

if the examining body is in a fiduciary relationship with an  

examinee, it will be duty-bound to disclose the evaluated answer-

books to the examinee and at the same time, they owe a duty to  

the examinee not to disclose the answer-books to anyone else,  

that is, any third party. This observation is of significant  

importance as it recognises that Section 8(1)(j), and as noticed  

below - Section 11, encapsulates another right, that is the right to  

protect privacy and confidentiality by barring the furnishing of  

information to third parties except when the public interest as  

prescribed so requires. In this way, the RTI Act complements both  

the right to information and the right to privacy and confidentiality.  

Further, it moderates and regulates the conflict between the two  

rights by applying the test of larger public interest or comparative  

examination of public interest in disclosure of information with  

possible harm and injury to the protected interests.

Civil Appeal No. 10044 of 2010 & Ors.  Page 43 of 108  

33. In Reserve Bank of India (supra) this Court had expounded upon  

the expression ‘fiduciary relationship’ used in clause (e) to sub-

section (1) of Section 8 of the RTI Act by referring to the definition  

of ‘fiduciary relationship’ in the Advanced Law Lexicon, 3rd Edition,  

2005, which reads as under:  

“57. [...] Fiduciary relationship. — A relationship in  

which one person is under a duty to act for the benefit  

of the other on matters within the scope of the fiduciary  

relationship. Fiduciary relationship usually arises in one  

of the four situations: (1) when one person places trust  

in the faithful integrity of another, who as a result gains  

superiority or influence over the first, (2) when one  

person assumes control and responsibility over  

another, (3) when one person has a duty to act for or  

give advice to another on matters falling within the  

scope of the relationship, or (4) when there is a specific  

relationship that has traditionally been recognised as  

involving fiduciary duties, as with a lawyer and a client,  

or a stockbroker and a customer.”  

  Thereafter, the Court had outlined the contours of the  

fiduciary relationship by listing out the governing principles which  

read:  

“58. [...] (i) No conflict rule — A fiduciary must not place  

himself in a position where his own interest conflicts  

with that of his customer or the beneficiary. There must  

be ‘real sensible possibility of conflict’.  

(ii) No profit rule — A fiduciary must not profit from his  

position at the expense of his customer, the  

beneficiary.  

(iii) Undivided loyalty rule — A fiduciary owes undivided  

loyalty to the beneficiary, not to place himself in a  

position where his duty towards one person conflicts

Civil Appeal No. 10044 of 2010 & Ors.  Page 44 of 108  

with a duty that he owes to another customer. A  

consequence of this duty is that a fiduciary must make  

available to a customer all the information that is  

relevant to the customer’s affairs.  

(iv) Duty of confidentiality — A fiduciary must only use  

information obtained in confidence and must not use it  

for his own advantage, or for the benefit of another  

person.”  

 34. Fiduciary relationships, regardless of whether they are formal,  

informal, voluntary or involuntary, must satisfy the four conditions  

for a relationship to classify as a fiduciary relationship. In each of  

the four principles, the emphasis is on trust, reliance, the  

fiduciary’s superior power or dominant position and corresponding  

dependence of the beneficiary on the fiduciary which imposes  

responsibility on the fiduciary to act in good faith and for the  

benefit of and to protect the beneficiary and not oneself. Section  

8(1)(e) is a legal acceptance that there are ethical or moral  

relationships or duties in relationships that create rights and  

obligations, beyond contractual, routine or even special  

relationships with standard and typical rights and obligations.   

Contractual or non-fiduciary relationships could require that the  

party should protect and promote the interest of the other and not  

cause harm or damage, but the fiduciary relationship casts a  

positive obligation and demands that the fiduciary should protect  

the beneficiary and not promote personal self-interest. A

Civil Appeal No. 10044 of 2010 & Ors.  Page 45 of 108  

fiduciary’s loyalty, duties and obligations are stricter than the  

morals of the market place and it is not honesty alone, but the  

punctilio of an honour which is the most sensitive standard of  

behaviour which is applied {See – Opinion of Cardozo, J. in  

Meinhard v. Salmon17}. Thus, the level of judicial scrutiny in cases  

of fiduciary relationship is intense as the level of commitment and  

loyalty expected is higher than non-fiduciary relationships.  

Fiduciary relationship may arise because of the statute which  

requires a fiduciary to act selflessly with integrity and fidelity and  

the other party, that is the beneficiary, depends upon the wisdom  

and confidence reposed in the fiduciary. A contractual, statutory  

and possibly all relationships cover a broad field, but a fiduciary  

relationship could exist, confined to a limited area or an act, as  

relationships can have several facets. Thus, relationships can be  

partly fiduciary and partly non-fiduciary with the former being  

confined to a particular act or action which need not manifest itself  

in entirety in the interaction and relationship between two parties.  

What would distinguish non-fiduciary relationship from fiduciary  

relationship or an act is the requirement of trust reposed, higher  

standard of good faith and honesty required on the part of the  

fiduciary with reference to a particular transaction(s) due to moral,  

17 (1928) 164 N.E. 545, 546

Civil Appeal No. 10044 of 2010 & Ors.  Page 46 of 108  

personal or statutory responsibility of the fiduciary as compared to  

the beneficiary, resulting in dependence of the beneficiary. This  

may arise due to superior knowledge and training of the fiduciary  

or the position he occupies.  

35. Ordinarily the relationship between the Chief Justice and judges  

would not be that of a fiduciary and a beneficiary. However, it is  

not an absolute rule/code for in certain situations and acts,  

fiduciary relationship may arise. Whether or not such a  

relationship arises in a particular situation would have to be dealt  

with on the tests and parameters enunciated above.   

 Point No. 3 (B): Right to Privacy under Section 8(1)(j) and     

Confidentiality under Section 11 of the RTI Act    36. If one’s right to know is absolute, then the same may invade  

another’s right to privacy and breach confidentiality, and,  

therefore, the former right has to be harmonised with the need for  

personal privacy, confidentiality of information and effective  

governance. The RTI Act captures this interplay of the competing  

rights under clause (j) to Section 8(1) and Section 11. While  

clause (j) to Section 8(1) refers to personal information as distinct  

from information relating to public activity or interest and seeks to  

exempt disclosure of such information, as well as such information  

which, if disclosed, would cause unwarranted invasion of privacy

Civil Appeal No. 10044 of 2010 & Ors.  Page 47 of 108  

of an individual, unless public interest warrants its disclosure,  

Section 11 exempts the disclosure of ‘information or  

record…which relates to or has been supplied by a third party and  

has been treated as confidential by that third party’.  By differently  

wording and inditing the challenge that privacy and confidentiality  

throw to information rights, the RTI Act also recognises the  

interconnectedness, yet distinctiveness between the breach of  

confidentiality and invasion of privacy, as the former is broader  

than the latter, as will be noticed below.   

 37. Breach of confidentiality has an older conception and was  

primarily an equitable remedy based on the principle that one  

party is entitled to enforce equitable duty on the persons bound by  

an obligation of confidentiality on account of the relationship they  

share, with actual or constructive knowledge of the confidential  

relationship. Conventionally a conception of equity, confidentiality  

also arises in a contract, or by a statute.18 Contractually, an  

obligation to keep certain information confidential can be  

effectuated expressly or implicitly by an oral or written agreement,  

whereas in statutes certain extant and defined relationships are  

imposed with the duty to maintain details, communication  

18 See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton, Spycatcher:  

Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip  

Coppel, Information Rights, Law and Practice (4th Edition Hart Publishing 2014)].

Civil Appeal No. 10044 of 2010 & Ors.  Page 48 of 108  

exchanged and records confidential. Confidentiality referred to in  

the phrase 'breach of confidentiality' was initially popularly  

perceived and interpreted as confidentiality arising out of a pre-

existing confidential relationship, as the obligation to keep certain  

information confidential was on account of the nature of the  

relationship. The insistence of a pre-existing confidential  

relationship did not conceive a possibility that a duty to keep  

information confidential could arise even if a relationship, in which  

such information is exchanged and held, is not pre-existing. This  

created a distinction between confidential information obtained  

through the violation of a confidential relationship and similar  

confidential information obtained in some other way. With time,  

courts and jurists, who recognised this anomaly, have diluted the  

requirement of the existence of a confidential relationship and held  

that three elements were essential for a case of breach of  

confidentiality to succeed, namely – (a) information should be of  

confidential nature; (b) information must be imparted in  

circumstances importing an obligation of confidentiality; and (c)  

that there must be unauthorised use of information (See Coco v.  

AN Clark (Engineers) Ltd.19). The “artificial”20 distinction was  

emphatically abrogated by the test adopted by Lord Goff of    

 19 [1969] RPC 41  20 Campbell v. Mirror Group Newspapers Limited  (2004) UKHL 22

Civil Appeal No. 10044 of 2010 & Ors.  Page 49 of 108  

Chieveley in Attorney-General v. Guardian Newspaper Limited  

(No. 2)21, who had observed:  

“a duty of confidence arises when confidential  

information comes to the knowledge of a person... in  

circumstances where he has notice, or is held to have  

agreed, that the information is confidential, with the  

effect that it would be just in all the circumstances that  

he should be precluded from disclosing the information  

to others.”  

  Lord Goff, thus, lifted the limiting constraint of a need for  

initial confidential relationship stating that a 'duty of confidence'  

would apply whenever a person receives information he knows or  

ought to know is fairly and reasonably to be regarded as  

confidential. Therefore, confidential information must not be  

something which is a public property and in public knowledge/  

public domain as confidentiality necessarily attributes  

inaccessibility, that is, the information must not be generally  

accessible, otherwise it cannot be regarded as confidential.  

However, self-clarification or certification will not be relevant  

because whether or not the information is confidential has to be  

determined as a matter of fact. The test to be applied is that of a  

reasonable person, that is, information must be such that a  

reasonable person would regard it as confidential. Confidentiality  

of information also has reference to the quality of information  

21 (1990) 1 AC 109

Civil Appeal No. 10044 of 2010 & Ors.  Page 50 of 108  

though it may apply even if the information is false or partly  

incorrect. However, the information must not be trivial or useless.   

 38. While previously information that could be considered personal  

would have been protected only if it were exchanged in a  

confidential relationship or considered confidential by nature,  

significant developments in jurisprudence since the 1990’s have  

posited the acceptance of privacy as a separate right and  

something worthy of protection on its own as opposed to being  

protected under an actionable claim for breach of confidentiality. A  

claim to protect privacy is, in a sense, a claim for the preservation  

of confidentiality of personal information. With progression of the  

right to privacy, the underlying values of the law that protects  

personal information came to be seen differently as the courts  

recognised that unlike law of confidentiality that is based upon  

duty of good faith, right to privacy focuses on the protection of  

human autonomy and dignity by granting the right to control the  

dissemination of information about one’s private life and the right  

to the esteem and respect of other people (See - Sedley LJ  

in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers  

Ltd.23, the Supreme Court of the United Kingdom had drawn a  

22 (2001) QB 967  23 (2016) UKSC 26

Civil Appeal No. 10044 of 2010 & Ors.  Page 51 of 108  

distinction between the right to respect private and family life or  

privacy and claims based upon confidentiality by observing that  

the law extends greater protection to privacy rights than rights in  

relation to confidential matters. In the former case, the claim for  

misuse of private information can survive even when information  

is in the public domain as its repetitive use itself leads to violation  

of the said right.  The right to privacy gets the benefit of both the  

quantitative and the qualitative protection. The former refers to the  

disclosure already made and what is yet undisclosed, whereas the  

latter refers to the privateness of the material, invasion of which is  

an illegal intrusion into the right to privacy. Claim for confidentiality  

would generally fail when the information is in public domain. The  

law of privacy is, therefore, not solely concerned with the  

information, but more concerned with the intrusion and violation of  

private rights. Citing an instance of how publishing of defamatory  

material can be remedied by a trial establishing the falsity of such  

material and award of damages, whereas invasion of privacy  

cannot be similarly redressed, the Court had highlighted the  

reason why truth or falsity of an allegation or information may be  

irrelevant when it comes to invasion of privacy. Therefore, claims  

for protection against invasion of private and family life do not  

depend upon confidentiality alone. This distinction is important to

Civil Appeal No. 10044 of 2010 & Ors.  Page 52 of 108  

understand the protection given to two different rights vide Section  

8(1)(j) and 11 of the RTI Act.  

39. In District Registrar and Collector v. Canara Bank24 this Court  

had referred to the judgment of the U.S. Supreme Court in United  

States v. Miller25 on the question of “voluntary” parting with  

information and under the heading ‘Criticism of Miller’ had  

observed:  

“48. ...(A) Criticism of Miller  

(i) The majority in Miller laid down that a customer  who has conveyed his affairs to another had thereby  lost his privacy rights. Prof. Tribe states in his treatise  (see p. 1391) that this theory reveals “alarming  tendencies” because the Court has gone back to the  old theory that privacy is in relation to property while it  has laid down that the right is one attached to the  person rather than to property. If the right is to be held  to be not attached to the person, then “we would not  shield our account balances, income figures and  personal telephone and address books from the public  eye, but might instead go about with the information  written on our ‘foreheads or our bumper stickers’.” He  observes that the majority in Miller confused “privacy”  with “secrecy” and that “even their notion of secrecy is  a strange one, for a secret remains a secret even when  shared with those whom one selects for one's  confidence”. Our cheques are not merely negotiable  instruments but yet the world can learn a vast amount  about us by knowing how and with whom we have  spent our money. Same is the position when we use  the telephone or post a letter. To say that one assumes  great risks by opening a bank account appeared to be  a wrong conclusion. Prof. Tribe asks a very pertinent  question (p. 1392):  

24 (2005) 1 SCC 496  25 425 US 435 (1976)

Civil Appeal No. 10044 of 2010 & Ors.  Page 53 of 108  

 ‘Yet one can hardly be said to have assumed a risk  

of surveillance in a context where, as a practical  

matter, one had no choice. Only the most committed —  

and perhaps civilly committable — hermit can live  

without a telephone, without a bank account, without  

mail. To say that one must take a bitter pill with the  

sweet when one licks a stamp is to exact a high  

constitutional price indeed for living in contemporary  

society.’  

He concludes (p. 1400):  

‘In our information-dense technological era, when  

living inevitably entails leaving not just informational  

footprints but parts of one's self in myriad directories,  

files, records and computers, to hold that the  

Fourteenth Amendment did not reserve to individuals  

some power to say when and how and by whom that  

information and those confidences were to be used,  

would be to denigrate the central role that informational  

autonomy must play in any developed concept of the  

self.’  

(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.  

1392) says:  

‘It is beginning to look as if the only way someone  

living in our society can avoid ‘assuming the risk’ that  

various intermediate institutions will reveal information  

to the police is by engaging in drastic discipline, the  

kind of discipline of life under totalitarian regimes.’… ”  

Thereafter, it was noticed that with the enactment of the  

Right to Financial Privacy Act, 1978 the legal effect of ‘Miller’ was  

statutorily done away.    

 40. The right to privacy though not expressly guaranteed in the  

Constitution of India is now recognized as a basic fundamental

Civil Appeal No. 10044 of 2010 & Ors.  Page 54 of 108  

right vide decision of the Constitutional Bench in K.S.  

Puttaswamy and Another v. Union of India and Others26  

holding that it is an intrinsic part of the right to life and liberty  

guaranteed under Article 21 of the Constitution and recognised  

under several international treaties, chief among them being  

Article 12 of the Universal Declaration of Human Rights, 1948  

which states that no one shall be subjected to arbitrary  

interference with his privacy, family, home or correspondence, nor  

to attacks upon his honour and reputation. The judgment  

recognises that everyone has a right to the protection of laws  

against such interference or attack.  

 41. In K.S. Puttaswamy (supra) the main judgment (authored by D.Y.  

Chandrachud, J.) has referred to provisions of Section 8(1)(j) of  

the RTI Act to highlight that the right to privacy is entrenched with  

constitutional status in Part III of the Constitution, thus providing a  

touchstone on which validity of executive decisions can be  

assessed and validity of laws can be determined vide judicial  

review exercised by the courts. This observation highlights the  

status and importance of the right to privacy as a constitutional  

right.  The ratio as recorded in the two concurring judgments of  

26 (2017) 10 SCC 1

Civil Appeal No. 10044 of 2010 & Ors.  Page 55 of 108  

the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.)  

are similar.  It is observed that privacy involves a person’s right to  

his physical body; right to informational privacy which deals with a  

person’s mind; and the right to privacy of choice which protects an  

individual’s autonomy over personal choices. While physical  

privacy enjoys constitutional recognition in Article 19(1)(d) and (e)  

read with Article 21, personal informational privacy is relatable to  

Article 21 and right to privacy of choice is enshrined in Articles  

19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the  

concurring opinion, there is a reference to ‘The Right to Privacy’  

by Samuel Warren and Louis D. Brandeis on an individual’s right  

to control the dissemination of personal information and that an  

individual has a right to limit access to such information/shield  

such information from unwarranted access. Knowledge about a  

person gives another power over that person, as personal data  

collected is capable of effecting representations in his decision  

making process and shaping behaviour which can have a  

stultifying effect on the expression of dissent which is the  

cornerstone of democracy.  In the said concurring judgment, it has  

been further held that the right to protection of reputation from  

being unfairly harmed needs to be zealously guarded not only  

against falsehood but also against certain truths by observing:

Civil Appeal No. 10044 of 2010 & Ors.  Page 56 of 108  

“623. An individual has a right to protect his reputation  

from being unfairly harmed and such protection of  

reputation needs to exist not only against falsehood but  

also certain truths. It cannot be said that a more  

accurate judgment about people can be facilitated by  

knowing private details about their lives – people judge  

us badly, they judge us in haste, they judge out of  

context, they judge without hearing the whole story and  

they judge with hypocrisy. Privacy lets people protect  

themselves from these troublesome judgments.”27  

 42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is  

essential for liberty and dignity. Therefore, individuals have the  

need to preserve an intrusion-free zone for their personality and  

family. This facilitates individual freedom. On the question of  

invasion of personal liberty, the main judgment has referred to a  

three-fold requirement in the form of – (i) legality, which postulates  

the existence of law (RTI Act in the present case); (ii) need,  

defined in terms of a legitimate State aim; and (iii) proportionality,  

which ensures a rational nexus between the objects and the  

means to be adopted to achieve them.  The third requirement, we  

would observe, is achieved in the present case by Sections 8(1)(j)  

and 11 of the RTI Act and the RTI Act cannot be faulted on this  

ground. The RTI Act also defines the legitimate aim, that is a  

public interest in the dissemination of information which can be  

confidential or private (or held in a fiduciary relationship) when  

27 Daniel Solove: “10 Reasons Why Privacy Matters” published on 20th January 2014 and available at  

https://www.teachprivacy.com/10-reasons-privacy-matters/

Civil Appeal No. 10044 of 2010 & Ors.  Page 57 of 108  

larger public interest or public interest in disclosure outweighs the  

protection or any possible harm or injury to the interest of the third  

party.  

 43. Privacy and confidentiality encompass a bundle of rights including  

the right to protect identity and anonymity. Anonymity is where an  

individual seeks freedom from identification, even when and  

despite being in a public space. In K.S. Puttaswamy (supra)  

reference is made to Spencer v. R.28 which had set out three key  

elements of informational privacy: privacy as secrecy, privacy as  

control, and privacy as anonymity, to observe:  

“214. […] anonymity may, depending on the totality of  

the circumstances, be the foundation of a privacy  

interest that engages constitutional protection against  

unreasonable search and seizure.  

xx  xx  xx  

[…] The disclosure of this information will often amount  

to the identification of a user with intimate or sensitive  

activities being carried out online, usually on the  

understanding that these activities would be  

anonymous. A request by a police officer that an ISP  

voluntarily disclose such information amounts to a  

search.”  

Privacy and confidentiality, therefore, include information about  

one’s identity.   

28 2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43

Civil Appeal No. 10044 of 2010 & Ors.  Page 58 of 108  

44. In K.S. Puttaswamy (supra), it is observed that the Canadian  

Supreme Court in Spencer (supra) had stopped short of  

recognising an absolute right of anonymity, but had used the  

provisions of Canadian Charter of Rights and Freedoms of 1982  

to expand the scope of the right to privacy, used traditionally to  

protect individuals from an invasion of their property rights, to an  

individual’s “reasonable expectation of privacy”. Yet the Court has  

observed that there has to be a careful balancing of the  

requirements of privacy with legitimate concerns of the State after  

referring to an article29 wherein it was observed that:  

“Privacy is the terrorist’s best friend, and the terrorist’s  

privacy has been enhanced by the same technological  

developments that have both made data mining  

feasible and elicited vast quantities of personal  

information from innocents …”  

45. Referring to an article titled ‘Reasonable Expectations of  

Anonymity’30 authored by Jeffrey M. Skopek, it is observed that  

distinction has been drawn between anonymity on one hand and  

privacy on the other as privacy involves hiding information  

whereas anonymity involves hiding what makes it personal by  

giving an example that furnishing of medical records of a patient  

would amount to an invasion of privacy, whereas a State may  

29 Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago Law Review  

(2008), Vol. 75, 251.   30 Virginia Law Review (2015), Vol. 101, at pp. 691-762.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 59 of 108  

have legitimate interest in analysing data borne from hospital  

records to understand and deal with a public health epidemic and  

to obviate serious impact on the population. If the anonymity of the  

individual/patient is preserved, it would legitimately assert a valid  

State interest in the preservation of public health.    

46. For the purpose of the present case, we are not concerned with  

the specific connotations of the right to anonymity and the  

restrictions/limitations appended to it. In the context of the RTI Act,  

suffice would be to say that the right to protect identity and  

anonymity would be identically subjected to the public interest  

test.  

47. Clause (j) to sub-section (1) of Section 8 of the RTI Act specifically  

refers to invasion of the right to privacy of an individual and  

excludes from disclosure information that would cause  

unwarranted invasion of privacy of such individual, unless the  

disclosure would satisfy the larger public interest test.  This clause  

also draws a distinction in its treatment of personal information,  

whereby disclosure of such information is exempted if such  

information has no relation to public activity or interest. We would  

like to, however, clarify that in their treatment of this exemption,  

this Court has treated the word ‘information’ which if disclosed

Civil Appeal No. 10044 of 2010 & Ors.  Page 60 of 108  

would lead to invasion of privacy to mean personal information, as  

distinct from public information. This aspect has been dealt with in  

the succeeding paragraphs.   

 48. As per Black’s Law Dictionary, 8th Edition, the word ‘personal’  

means ‘of or affecting a person or of or constituting personal  

property’.  In Collins Dictionary of the English Language, the word  

‘personal’ has been defined as under:  

“1.  Of or relating to the private aspects of a person’s  

life.  

2.  Of or relating to a person’s body, its care or its  

appearance.  

3.  Belonging to or intended for a particular person and  

no one else.  

4.  Undertaken by an individual himself.  

5.  Referring to, concerning, or involving a person’s  

individual personality, intimate affairs, etc., esp. in an  

offensive way.  

6.  Having the attributes of an individual conscious  

being.  

7.  Of or arising from the personality.  

8.  Of or relating to, or denoting grammatical person.  

9.  Of or relating to movable property (Law).  

10.  An item of movable property (Law).”  

Civil Appeal No. 10044 of 2010 & Ors.  Page 61 of 108  

49. In Peck v. United Kingdom31, the European Court of Human  

Rights had held that private life is a broad term not susceptible to  

exhaustive definition but includes the right to establish and  

develop relationships with other human beings such that there is a  

zone of interaction of a person with others, even in a public  

context, which may fall within the scope of private life.   

Recognised facets of an individual’s private life include a person’s  

health, ethnicity, personal relationships, sexual conduct; religious  

or philosophical convictions and personal image. These facets  

resemble what has been categorised as sensitive personal data  

within the meaning of the Data Protection Act, 2018 as applicable  

in the United Kingdom.  

 50. Gleeson CJ in Australian Broadcasting Corporation v. Lenah  

Game Meats Pty Ltd32  had distinguished between what is public  

and private information in the following manner:  

“An activity is not private simply because it is not done  

in public.  It does not suffice to make an act private  

that, because it occurs on private proper property, it  

has such measure of protection from the public gaze  

as the characteristics of the property, the property  

owner combine to afford. Certain kinds of information  

about a person, such as information relating to health,  

personal relationships, or finances, may be easy to  

identify as private, as may certain kinds of activity  

which a reasonable person, applying contemporary    

 31 (2003) EMLR 15  32 (2001) 185 ALR 1

Civil Appeal No. 10044 of 2010 & Ors.  Page 62 of 108  

standards of morals and behaviour, would understand  

to be meant to be unobserved.  The requirement that  

disclosure or observation of information or conduct  

would be highly offensive to a reasonable person of  

ordinary sensibilities is in many circumstances a useful  

practical test of what is private.”  

   51. This test had been adopted in several English decisions including  

decision of the House of Lords in Campbell v. Mirror Group  

Newspapers Limited33 wherein Lord Hope of Craighead had  

further elucidated that the definition is taken from the definition of  

‘privacy’ in the United States, where the right to privacy is invaded  

if the matter which is publicised is of a kind that – (a) would be  

highly offensive to a reasonable person and (b) not of legitimate  

concern to the public.  Law of privacy in Campbell (supra), it was  

observed, was not intended for the protection of the unduly  

sensitive and would cover matters which are offensive and  

objectionable to a reasonable man of ordinary sensibilities who  

must expect some reporting of his daily activities. The mind that  

has to be examined is not that of a reader in general, but that of  

the person who is affected by the publicising/dissemination of his  

information. The question is what a reasonable person of ordinary  

sensibilities would feel if he/she is subjected to such publicity.  

Only when publicity is such that a reasonable person would feel  

33 (2004) UKHL 22

Civil Appeal No. 10044 of 2010 & Ors.  Page 63 of 108  

justified in feeling seriously aggrieved that there would be an  

invasion in the right to privacy which gives rise to a cause of  

action.  

 52. In Douglas (supra), it was also held that there are different  

degrees of privacy which would be equally true for information  

given in confidentiality, and the potential for disclosure of the  

information to cause harm is an important factor to be taken into  

account in the assessment of the extent of the restriction to  

protect the right to privacy.  

 53. While clause (j) exempts disclosure of two kinds of information, as  

noted in paragraph 47 above, that is “personal information” with  

no relation to public activity or interest and “information” that is  

exempt from disclosure to prevent unwarranted invasion of  

privacy, this Court has not underscored, as will be seen below,  

such distinctiveness and treated personal information to be  

exempt from disclosure if such disclosure invades on balance the  

privacy rights, thereby linking the former kind of information with  

the latter kind. This means that information, which if disclosed  

could lead to an unwarranted invasion of privacy rights, would  

mean personal information, that is, which is not having co-relation  

with public information.

Civil Appeal No. 10044 of 2010 & Ors.  Page 64 of 108  

 54. In Girish Ramchandra Deshpande v. Central Information  

Commissioner and Others34, the applicant had sought copies of  

all memos, show-cause notices and censure/punishment awarded  

to a Government employee from his employer and also details of  

his movable/immovable properties, details of investment, loan and  

borrowings from financial institutions, details of gifts accepted by  

the employee from his family members and relatives at the time of  

the marriage of his son.  In this context, it was observed:  

“12. We are in agreement with the CIC and the courts  

below that the details called for by the petitioner i.e.  

copies of all memos issued to the third respondent,  

show-cause notices and orders of censure/punishment,  

etc. are qualified to be personal information as defined  

in clause (j) of Section 8(1) of the RTI Act. The  

performance of an employee/officer in an organisation  

is primarily a matter between the employee and the  

employer and normally those aspects are governed by  

the service rules which fall under the expression  

“personal information”, the disclosure of which has no  

relationship to any public activity or public interest. On  

the other hand, the disclosure of which would cause  

unwarranted invasion of privacy of that individual. Of  

course, in a given case, if the Central Public  

Information Officer or the State Public Information  

Officer or the appellate authority is satisfied that the  

larger public interest justifies the disclosure of such  

information, appropriate orders could be passed but  

the petitioner cannot claim those details as a matter of  

right.  

13. The details disclosed by a person in his income tax  

returns are “personal information” which stand  

34 (2013) 1 SCC 212

Civil Appeal No. 10044 of 2010 & Ors.  Page 65 of 108  

exempted from disclosure under clause (j) of Section  

8(1) of the RTI Act, unless involves a larger public  

interest and the Central Public Information Officer or  

the State Public Information Officer or the appellate  

authority is satisfied that the larger public interest  

justifies the disclosure of such information.”  

(emphasis supplied)    

55. In Canara Bank v. C.S. Shyam and Another35, the applicant had  

sought information on parameters with regard to transfer of  

clerical staff with details of individual employees, such as date of  

their joining, promotion earned, date of their joining the branch,  

the authorities who had posted the transfer letters, etc. The  

information sought was declared to be personal in nature, which  

was conditionally exempted from disclosure under Section 8(1)(j)  

of the RTI Act.  

56. In Subhash Chandra Agarwal v. Registrar, Supreme Court of  

India and Others36, the applicant (who is also the respondent in  

the present appeals) had sought information relating to details of  

medical facilities availed by individual judges of the Supreme  

Court and their family members, including information relating to  

private treatment in India and abroad in last three years. This  

Court had held that the information sought by the applicant was  

35 (2018) 11 SCC 426  36 (2018) 11 SCC 634

Civil Appeal No. 10044 of 2010 & Ors.  Page 66 of 108  

‘personal’ information and was protected under Section 8(1)(j) of  

the RTI Act, for disclosure would cause unwarranted invasion of  

privacy which prohibition would not apply where larger public  

interest justifies disclosure of such information.  

57. In R.K. Jain v. Union of India and Another37, the applicant had  

sought inspection of documents relating to Annual Confidential  

Reports (ACRs) of a Member of Customs Excise and Service Tax  

Appellate Tribunal (CESTAT) and follow up action taken by the  

authorities based on the ACRs. The information sought was  

treated as personal information, which, except in cases involving  

overriding public interest, could not be disclosed. It was observed  

that the procedure under Section 11 of the RTI Act in such cases  

has to be followed. The matter was remitted to examine the  

aspect of larger public interest and to follow the procedure  

prescribed under Section 11 of the RTI Act which, it was held, was  

mandatory.  

58. Reference can also be made to Aditya Bandopadhyay (supra),  

as discussed earlier in paragraph 32, where this Court has held  

that while a fiduciary could not withhold information from the  

beneficiary in whose benefit he holds such information, he/she  

37 (2013) 14 SCC 794

Civil Appeal No. 10044 of 2010 & Ors.  Page 67 of 108  

owed a duty to the beneficiary to not disclose the same to anyone  

else. This exposition of the Court equally reconciles the right to  

know with the rights to privacy under clause (j) to Section 8(1) of  

the RTI Act.    

59. Reading of the aforesaid judicial precedents, in our opinion, would  

indicate that personal records, including name, address, physical,  

mental and psychological status, marks obtained, grades and  

answer sheets, are all treated as personal information.  Similarly,  

professional records, including qualification, performance,  

evaluation reports, ACRs, disciplinary proceedings, etc. are all  

personal information. Medical records, treatment, choice of  

medicine, list of hospitals and doctors visited, findings recorded,  

including that of the family members, information relating to  

assets, liabilities, income tax returns, details of investments,  

lending and borrowing, etc. are personal information. Such  

personal information is entitled to protection from unwarranted  

invasion of privacy and conditional access is available when  

stipulation of larger public interest is satisfied. This list is indicative  

and not exhaustive.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 68 of 108  

60. In Arvind Kejriwal v. Central Public Information Officer and  

Another38, the Delhi High Court had examined and interpreted  

Section 11 of the RTI Act in the following manner:  

“12. Section 11(1), (2), (3) and (4) are the procedural  

provisions which have to be complied with by the  

PIO/appellant authority, when they are required to  

apply the said test and give a finding whether  

information should be disclosed or not disclosed. If the  

said aspect is kept in mind, we feel there would be no  

difficulty in interpreting Section 11(1) and the so called  

difficulties or impartibility as pointed out by the  

appellant will evaporate and lose significance. This will  

be also in consonance with the primary rule of  

interpretation that the legislative intent is to be  

gathered from language employed in a statute which is  

normally the determining factor. The presumption is  

that the legislature has stated what it intended to state  

and has made no mistake. (See Prakash Nath Khanna  

vs. CIT, (2004) 9 SCC 686; and several judgments of  

Supreme Court cited in B. Premanand and Ors. vs.  

Mohan Koikal and Ors..   

 13. Read in this manner, what is stipulated by Section  

11(1) is that when an information seeker files an  

application which relates to or has been supplied by  

third party, the PIO has to examine whether the said  

information is treated as confidential or can be treated  

as confidential by the third party. If the answer is in the  

possible sphere of affirmative or "maybe yes", then the  

procedure prescribed in Section 11 has to be followed  

for determining whether the larger public interest  

requires such disclosure. When information per se or  

ex facie cannot be regarded as confidential, then the  

procedure under section 11 is not to be followed. All  

information relating to or furnished by a third party  

need not be confidential for various reasons including  

the factum that it is already in public domain or in  

circulation, right of third party is not affected or by law  

38 AIR 2012 Delhi 29

Civil Appeal No. 10044 of 2010 & Ors.  Page 69 of 108  

is required to be disclosed etc. The aforesaid  

interpretation takes care of the difficulties visualised by  

the appellant like marks obtained in an examination, list  

of BPL families, etc. In such cases, normally plea of  

privacy or confidentiality does not arise as the said list  

has either been made public, available in the public  

domain or has been already circulated to various third  

parties. On the other hand, in case the word “or” is  

read as “and”, it may lead to difficulties and problems,  

including invasion of right of privacy/confidentiality of a  

third party. For example, a public authority may have in  

its records, medical reports or prescriptions relating to  

third person but which have not been supplied by the  

third person. If the interpretation given by the appellant  

is accepted then such information can be disclosed to  

the information seeker without following the procedure  

prescribed in Section 11(1) as the information was not  

furnished or supplied by the third person. Such  

examples can be multiplied. Furthermore, the  

difficulties and anomalies pointed out can even arise  

when the word “or” is read as “and” in cases where the  

information is furnished by the third party. For example,  

for being enrolled as a BPL family, information may  

have been furnished by the third party who is in the list  

of BPL families. Therefore, the reasonable and proper  

manner of interpreting Section 11(1) is to keep in mind  

the test stipulated by the proviso. It has to be examined  

whether information can be treated and regarded as  

being of confidential nature, if it relates to a third party  

or has been furnished by a third party. Read in this  

manner, when information relates to a third party and  

can be prima facie regarded and treated as  

confidential, the procedure under Section 11(1) must  

be followed. Similarly, in case information has been  

provided by the third party and has been prima facie  

treated by the said third party as confidential, again the  

procedure prescribed under Section 11(1) has to be  

followed.  

xx  xx  xx  

16. Thus, Section 11(1) postulates two circumstances  

when the procedure has to be followed. Firstly when  

the information relates to a third party and can be

Civil Appeal No. 10044 of 2010 & Ors.  Page 70 of 108  

prima facie regarded as confidential as it affects the  

right of privacy of the third party. The second situation  

is when information is provided and given by a third  

party to a public authority and prima facie the third  

party who has provided information has treated and  

regarded the said information as confidential. The  

procedure given in Section 11(1) applies to both  

cases.”  

61. We would clarify that Section 11 is not merely procedural but also  

a substantive provision which applies when the PIO intends to  

disclose information that relates to or has been supplied by a third  

party and has been treated as confidential by that third party. It  

requires the PIO to issue notice to the third party who may make  

submission in writing or orally, which submission has to be kept in  

view while taking a decision. Proviso to Section 11(1) applies in all  

cases except trade or commercial secrets protected by law.  

Pertinently, information including trade secrets, intellectual  

property rights, etc. are governed by clause (d) to sub-section (1)  

of Section 8 and Section 9 of the RTI Act. In all other cases where  

the information relates to or has been supplied by the third party  

and treated as confidential by that third party, disclosure in terms  

of the proviso may be allowed where the public interest in  

disclosure outweighs in importance any possible harm or injury to  

the interest of the third party. Confidentiality is protected and  

preserved in law because the public interest requires such

Civil Appeal No. 10044 of 2010 & Ors.  Page 71 of 108  

protection. It helps and promotes free communication without fear  

of retaliation. However, public interest in protecting confidentiality  

is subject to three well-known exceptions. The first exception  

being a public interest in the disclosure of iniquity for there cannot  

be any loss of confidentiality involving a wrongdoing. Secondly,  

there cannot be any public interest when the public has been  

misled. Thirdly, the principle of confidentiality does not apply when  

the disclosure relates to matters of public concern, which  

expression is vastly different from news value or news to satiate  

public curiosity. Public concern relates to matters which are an  

integral part of free speech and expression and entitlement of  

everyone to truth and fair comment about it. There are certain  

circumstances where the public interest in maintaining  

confidentiality may be outweighed by the public interest in  

disclosure and, thus, in common law, it may not be treated by the  

courts as confidential information. These aspects would be  

relevant under the proviso to Section 11(1) of the RTI Act.   

62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of  

three exceptions and more when it incorporates public interest  

test. It states that information, otherwise treated confidential, can  

be disclosed if the public interest in disclosure outweighs the  

possible harm and injury to the interest of such a third party. The

Civil Appeal No. 10044 of 2010 & Ors.  Page 72 of 108  

expression ‘third party’ has been defined in clause (n) to Section 2  

to mean a person other than the citizen making a request for  

information and includes a public authority. Thus, the scope of  

‘information’ under Section 11 is much broader than that of clause  

(j) to Section 8 (1), as it could include information that is personal  

as well as information that concerns the government and its  

working, among others, which relates to or is supplied by a third  

party and treated as confidential. Third-party could include any  

individual, natural or juristic entity including the public authority.   

63. Confidentiality in case of personal information and its co-relation  

with the right to privacy and disclosure of the same on the anvil of  

the public interest test has been discussed above. We now  

proceed to look at confidentiality of information concerning the  

government and information relating to its inner-workings and the  

difference in approach in applying the public interest test in  

disclosing such information, as opposed to the approach adopted  

for other confidential/personal information. The reason for such  

jurisprudential distinction with regard to government information is  

best expressed in Attorney General (UK) v. Heinemann

Civil Appeal No. 10044 of 2010 & Ors.  Page 73 of 108  

Publishers Pty Ltd.39 wherein the High Court of Australia had  

observed:  

“[…] the relationship between the modern State and its  

citizens is so different in kind from that which exists  

between private citizens that rules worked out to  

govern contractual, property, commercial and private  

confidences are not fully applicable where the plaintiff  

is a government or one of its agencies. Private citizens  

are entitled to protect or further own interests…  

[whereas] governments act, or at all events are  

constitutionally required to act, in the public interest.  

Information is held, received and imparted by  

governments, their departments and agencies to  

further the public interest. Public and not private  

interest, therefore, must be the criterion by which  

equity determines whether it will protect information  

which a government or governmental body claims is  

confidential.”  

  The High Court of Australia had earlier in Commonwealth  

v. John Fairfax and Sons Ltd.40 observed:  

“The question, then when the executive government  

seeks the protection given by equity, is: What detriment  

does it need to show?   

The equitable principle has been fashioned to protect  

the personal, private and proprietary interests of the  

citizen, not to protect the very different interests of the  

executive government. It acts, or is supposed to act,  

not according to standards of private interest, but in the  

public interest. This is not to say that equity will not  

protect information in the hands of the government, but  

it is to say that when equity protects government  

information it will look at the matter through different  

spectacles.   

39 (1987) 10 NSWLR 86 at 191.   40 (1980) 147 CLR 39 at 51.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 74 of 108  

It may be a sufficient detriment to the citizen that  

disclosure of information relating to his affairs will  

expose his actions to public discussion and criticism.  

But it can scarcely be a relevant detriment to the  

government that publication of material concerning its  

actions will merely expose it to public discussion and  

criticism. It is unacceptable in our democratic society  

that there should be a restraint on the publication of  

information relating to government when the only vice  

of that information is that it enables the public to  

discuss, review and criticize government action.   

Accordingly, the court will determine the government's  

claim to confidentiality by reference to the public  

interest. Unless disclosure is likely to injure the public  

interest, it will not be protected.   

The court will not prevent the publication of information  

which merely throws light on the past workings of  

government, even if it be not public property, so long  

as it does not prejudice the community in other  

respects. Then disclosure will itself serve the public  

interest in keeping the community informed and in  

promoting discussion of public affairs. If, however, it  

appears that disclosure will be inimical to the public  

interest because national security, relations with  

foreign countries or the ordinary business of  

government will be prejudiced, disclosure will be  

restrained. There will be cases in which the conflicting  

considerations will be finely balanced, where it is  

difficult to decide whether the public's interest in  

knowing and in expressing its opinion, outweighs the  

need to protect confidentiality.”  

  The above principles have also been reiterated and relied  

upon by the courts in the United Kingdom [See Coco (supra),

Civil Appeal No. 10044 of 2010 & Ors.  Page 75 of 108  

Attorney General v. Jonathan Cape Ltd.41]. In Guardian  

Newspapers (supra), Lord Keith of Kinkel had observed:  

“The position of the Crown, as representing the  

continuing government of the country may, however,  

be regarded as being special. In some instances  

disclosure of confidential information entrusted to a  

servant of the Crown may result in a financial loss to  

the public. In other instances such disclosure may tend  

to harm the public interest by impeding the efficient  

attainment of proper governmental ends, and the  

revelation of defence or intelligence secrets certainly  

falls into that category. The Crown, however, as  

representing the nation as a whole, has no private life  

or personal feelings capable of being hurt by the  

disclosure of confidential information. In so far as the  

Crown acts to prevent such disclosure or to seek  

redress for it on confidentiality grounds, it must  

necessarily, in my opinion, be in a position to show that  

the disclosure is likely to damage or has damaged the  

public interest. How far the Crown has to go in order to  

show this must depend on the circumstances of each  

case. In a question with a Crown servant himself, or  

others acting as his agents, the general public interest  

in the preservation of confidentiality, and in  

encouraging other Crown servants to preserve it, may  

suffice.”  

64. In R.K. Jain v. Union of India42, this Court, while examining  

Section 123 of the Evidence Act, 1872, had paraphrased the  

earlier judgment of the Constitution Bench of this Court penned  

down by Fazal Ali, J. in S.P. Gupta (supra) (the first Judge’s case)  

in which the question of privilege against disclosure of  

correspondence between the Chief Justice of Delhi High Court,    

 41 [1976] QB 752  42 (1993) 4 SCC 119

Civil Appeal No. 10044 of 2010 & Ors.  Page 76 of 108  

Chief Justice of India and the Law Minister of the Union had  

arisen, in the following words:  

“41. [...] in a democracy, citizens are to know what their  

Govt. is doing. No democratic Govt. can survive  

without accountability and the basic postulate of  

accountability is that the people should have  

information about the functioning of the Govt. It is only  

if the people know how the Govt. is functioning and that  

they can fulfill their own democratic rights given to  

them and make the democracy a really effective  

participatory democracy. There can be little doubt that  

exposure to public scrutiny is one of the surest means  

of running a clean and healthy administration. By  

disclosure of information in regard to the functioning of  

the Govt. must be the rule and secrecy can be  

exceptionally justified only where strict requirement of  

public information was assumed. The approach of the  

court must be to alleviate the area of secrecy as much  

as possible constantly with the requirement of public  

interest bearing in mind all the time that the disclosure  

also serves an important aspect of public interest.”  

 65. In R.K. Jain (1993) (supra), reference was also made to Articles  

74(2) and 75(3) of the Constitution, to observe:  

“21...Article 74(2) precludes this Court from enquiring  

into the nature of the advice tendered to the President  

and the documents are, therefore, immuned from  

disclosure. The disclosure would cause public injury  

preventing candid and frank discussion and expression  

of views by the bureaucrats at higher level and by the  

Minister/Cabinet Sub-committee causing serious injury  

to public service. Therefore, Cabinet papers, minutes  

of discussion by heads of departments; high level  

documents relating to the inner working of the  

government machine and all papers concerned with  

the government policies belong to a class documents  

which in the public interest they or contents thereof  

must be protected against disclosure.  

xx   xx  xx

Civil Appeal No. 10044 of 2010 & Ors.  Page 77 of 108  

30. Collective responsibility under Article 75(3) of the  

Constitution inheres maintenance of confidentiality as  

enjoined in oaths of office and of secrecy set forth in  

Schedule III of the Constitution that the Minister will not  

directly or indirectly communicate or reveal to any  

person or persons any matter which shall be brought  

under his/her consideration or shall become known to  

him/her as Minister except as may be required for the  

"due discharge of his/her duty as Minister". The base  

and basic postulate of its significance is  

unexceptionable. But the need for and effect of  

confidentiality has to be nurtured not merely from  

political imperatives of collective responsibility  

envisaged by Article 75(3) but also from its  

pragmatism.  

xx  xx  xx  

34.  Equally every member is entitled to insist that  

whatever his own contribution was to the making of the  

decision, whether favourable or unfavourable, every  

other member will keep it secret. Maintenance of  

secrecy by an individual's contribution to discussion, or  

vote in the Cabinet guarantees most favourable and  

conducive atmosphere to express view formally…”  

  It was held that the Ministers and the government servants  

were required to maintain secrecy and confidentiality in the  

performance of the duties of the office entrusted by the  

Constitution and the laws.  Elucidating on the importance of  

confidentiality, it was observed:  

“34. [...] Confidentiality and collective responsibility in that  

scenario are twins to effectuate the object of frank and open  

debate to augment efficiency of public service or effectivity  

of collective decision to elongate public interest. To hamper  

and impair them without any compelling or at least strong  

reasons, would be detrimental to the efficacy of public  

administration. It would tantamount to wanton rejection of

Civil Appeal No. 10044 of 2010 & Ors.  Page 78 of 108  

the fruits of democratic governance, and abdication of an  

office of responsibility and dependability. Maintaining of top  

secrecy of new taxation policies is a must but leaking  

budget proposals a day before presentation of the budget  

may be an exceptional occurrence as an instance.”  

66. Thereafter, reference was made to the decision of the House of  

Lords in Burmah Oil Ltd v. Governor And Company Of The  

Bank Of England And Another43 wherein the Lords had rejected  

the notion that “any competent and conscientious public servant  

would be inhibited at all in the candour of his writings by  

consideration of the off chance that they might have to be  

produced in a litigation as grotesque” to hold that this contention  

would be utterly insubstantial ground to deny access to the  

relevant document.  In Burma Oil Ltd. (supra), it was held that the  

candour doctrine stands in a different category from that aspect of  

public interest, which, in appropriate circumstances, may require  

that the ‘sources and nature of information confidentially tendered’  

should be withheld from disclosure.  Several other cases were  

also referred expressing the same ratio [See – Butters Gas and  

Oil Co. v. Hammer44; Air Canada v. Secretary of State for  

43 [1980] AC 1090  44 1982 AC 888 (H.L.)

Civil Appeal No. 10044 of 2010 & Ors.  Page 79 of 108  

Trade45; and Council of Civil Service Unions v. Minister for the  

Civil Service46].  

 67. Having held so, the Bench in R.K. Jain (1993) (supra) had  

proceeded to observe:  

“48. In a democracy it is inherently difficult to function  

at high governmental level without some degree of  

secrecy. No Minister, nor a Senior Officer would  

effectively discharge his official responsibilities if every  

document prepared to formulate sensitive policy  

decisions or to make assessment of character rolls of  

co-ordinate officers at that level if they were to be  

made public. Generally assessment of honesty and  

integrity is a high responsibility. At high co-ordinate  

level it would be a delicate one which would further get  

compounded when it is not backed up with material.  

Seldom material will be available in sensitive areas.  

Reputation gathered by an officer around him would  

form the base. If the reports are made known, or if the  

disclosure is routine, public interest grievously would  

suffer. On the other hand, confidentiality would  

augment honest assessment to improve efficiency and  

integrity in the officers.  

49.  The business of the Govt., when transacted by  

bureaucrats, even in personal, it would be difficult to  

have equanimity if the inner working of the Govt.  

machinery is needlessly exposed to the public. On  

such sensitive issues it would hamper to express frank  

and forthright views or opinions. therefore, it may be  

that at that level the deliberations and in exceptional  

cases that class or category or documents get  

protection, in particular, on policy matters. Therefore,  

the court would be willing to respond to the executive  

public interest immunity to disclose certain documents  

where national security or high policy, high sensitivity is  

involved.    

 45 1983 2 AC 394 (H.L.)  46 1985 AC 374 (H.L.)

Civil Appeal No. 10044 of 2010 & Ors.  Page 80 of 108  

 xx    xx  xx  

 54. […] In President Nixon's case, the Supreme Court  

of the United States held that it is the court's duty to  

construe and delineate claims arising under express  

powers, to interpret claims with respect to powers  

alleged to derive from enumerated powers of the  

Constitution, In deciding whether the matter has in any  

measure been committed by the Constitution to  

another branch of government, or whether the action of  

that branch exceeds whatever authority has been  

committed, is itself a delicate exercise in constitutional  

interpretation, and is the responsibility of the court as  

ultimate interpreter of the Constitution…”  

  68. At the same time, it was held:  

“55. [...] Article 74(2) is not a total bar for production of  

the records. Only the actual advice tendered by the  

Minister or Council of Ministers to the President and  

the question whether any and if so, what advice was  

tendered by the Minister or Council of Ministers to the  

President, shall not be enquired into by the court. In  

other words the bar of Judicial review is confined to the  

factum of advice, its extent, ambit and scope but not  

the record i.e. the material on which the advice is  

founded. In S.P. Gupta's case this Court held that only  

the actual advice tendered to the President is immuned  

from enquiry and the immunity does not extend to other  

documents or records which form part of the advice  

tendered to the President.  

56. There is discernible modern trends towards more  

open government than was prevalent in the past. In its  

judicial review the court would adopt in camera  

procedure to inspect the record and evaluate the  

balancing act between the competing public interest  

and administration of justice. It is equally the  

paramount consideration that justice should not only be  

done but also would be publicly recognised as having  

been done. Under modern conditions of responsible  

government, Parliament should not always be relied on  

as a check on excess of power by the Council of

Civil Appeal No. 10044 of 2010 & Ors.  Page 81 of 108  

Ministers or Minister. Though the court would not  

substitute its views to that of the executive on matters  

of policy, it is its undoubted power and duty to see that  

the executive exercises its power only for the purpose  

for which it is granted. Secrecy of the advice or opinion  

is by no means conclusive. Candour, frankness and  

confidentiality though are integral facets of the common  

genus i.e., efficient governmental functioning, per se by  

means conclusive but be kept in view in weighing the  

balancing act. Decided cases show that power often  

was exercised in excess thereof or for an ulterior  

purpose etc. Sometimes the public service reasons will  

be decisive of the issue, but they should never prevent  

the court from weighing them against the injury which  

would be suffered in the administration of justice if the  

document was not to be disclosed, and the likely injury  

to the cause of justice must also be assessed and  

weighed. Its weight will vary according to the nature of  

the proceedings in which disclosure is sought, level at  

which the matter was considered; the subject matter of  

consideration; the relevance of the documents and that  

degree of likelihood that the document will be of  

importance in the litigation. In striking the balance, the  

court may always, if it thinks it necessary, itself inspect  

the documents. It is, therefore the constitutional,  

legitimate and lawful power and duty of this Court to  

ensure that powers, constitutional, statutory or  

executive are exercised in accordance with the  

Constitution and the law. This may demand, though no  

doubt only in limited number of cases, yet the inner  

workings of government may be exposed to public  

gaze. The contentions of Attorney General and  

Solicitor General that the inner workings of the  

government would be exposed to public gaze, and that  

some one who would regard this as an occasion  

without sufficient material to ill-informed criticism is no  

longer relevant. Criticism calculated to improve the  

nature of that working as affecting the individual citizen  

is welcome.”  

   69. The aforesaid passages highlight the relevance of confidentiality  

in the government and its functioning. However, this is not to state

Civil Appeal No. 10044 of 2010 & Ors.  Page 82 of 108  

that plea of confidentiality is an absolute bar, for in terms of  

proviso to Section 11(1) of the RTI Act, the PIO has to undertake  

the balancing exercise and weigh the advantages and benefits of  

disclosing the information with the possible harm or injury to the  

third party on the information being disclosed.  We have already  

referred to the general approach on the right of access to  

government records under the heading “Section 8(1)(j) and  

Section 11 of the RTI Act” with reference to the decisions of the  

High Court of Australia in Heinemann Publishers Pty Ltd.  

(supra) and John Fairfax and Sons Ltd. (supra).   

 70. Most jurists would accept that absolute transparency in all facets  

of government is neither feasible nor desirable,47 for there are  

several limitations on complete disclosure of governmental  

information, especially in matters relating to national security,  

diplomatic relations, internal security or sensitive diplomatic  

correspondence. There is also a need to accept and trust the  

government’s decision-makers, which they have to also earn,  

when they plead that confidentiality in their meetings and  

47 Michael Schudson, ‘The Right to Know vs the Need for Secrecy: The US Experience’ The  

Conversation (May 2015) <https://theconversation.com/the-right-to-know-vs-the-need-for-secrecy-

the-us-experience-40948>; Eric R. Boot, ‘The Feasibility of a Public Interest Defense for  

Whistleblowing’, Law and Philosophy (2019). See generally Michael Schudson, The Rise of the  

Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge (MA): Harvard  

University Press 2015).   

Civil Appeal No. 10044 of 2010 & Ors.  Page 83 of 108  

exchange of views is needed to have a free flow of views on  

sensitive, vexatious and pestilent issues in which there can be  

divergent views. This is, however, not to state that there are no  

dangers in maintaining secrecy even on aspects that relate to  

national security, diplomatic relations, internal security or sensitive  

diplomatic correspondence. Confidentiality may have some  

bearing and importance in ensuring honest and fair appraisals,  

though it could work the other way around also and, therefore,  

what should be disclosed would depend on authentic enquiry  

relating to the public interest, that is, whether the right to access  

and the right to know outweighs the possible public interest in  

protecting privacy or outweighs the harm and injury to third parties  

when the information relates to such third parties or the  

information is confidential in nature.  

POINT NO. 4: MEANING OF THE TERM ‘PUBLIC INTEREST’  

 71. In Union of India v. Association for Democratic Reforms and  

Another48 recognising the voters’ right to know the antecedents of  

the candidates and the right to information which stems from  

Article 19(1)(a) of the Constitution, it was held that directions could  

48 (2002) 5 SCC 294

Civil Appeal No. 10044 of 2010 & Ors.  Page 84 of 108  

be issued by the Court to subserve public interest in creating an  

informed citizenry, observing:  

“46. […] The right to get information in democracy is  

recognised all throughout and it is natural right flowing  

from the concept of democracy. At this stage, we would  

refer to Article 19(1) and (2) of the International  

Covenant of Civil and Political Rights which is as  

under:  

(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.  

6. Cumulative reading of plethora of decisions of this  

Court as referred to, it is clear that if the field meant for  

legislature and executive is left unoccupied detrimental  

to the public interest, this Court would have ample  

jurisdiction under Article 32 read with Article 141 and  

142 of the Constitution to issue necessary directions to  

the Executive to subserve public interest.”  

  Clearly, the larger public interest in having an informed  

electorate, fair elections and creating a dialectical democracy had  

outweighed and compelled this Court to issue the directions  

notwithstanding disclosure of information relating to the personal  

assets, educational qualifications and antecedents including  

previous involvement in a criminal case of the contesting  

candidate.  

Civil Appeal No. 10044 of 2010 & Ors.  Page 85 of 108  

72. Public interest, sometimes criticised as inherently amorphous and  

incapable of a precise definition, is a time tested and historical  

conflict of rights test which is often applied in the right to  

information legislation to balance right to access and protection of  

the conflicting right to deny access. In Mosley v. News Group  

Papers Ltd.49 it has been observed:  

“130… It is not simply a matter of personal privacy  

versus the public interest. The modern perception is  

that there is a public interest in respecting personal  

privacy. It is thus a question of taking account of  

conflicting public interest considerations and evaluating  

them according to increasingly well recognized  

criteria.”  

The RTI Act is no exception. Section 8(1)(j) of the RTI Act  

prescribes the requirement of satisfaction of ‘larger public interest’  

for access to information when the information relates to personal  

information having no relationship with any public activity or  

interest, or would cause unwarranted invasion of privacy of the  

individual. Proviso to Section 11(1) states that except in case of  

trade or commercial secrets protected by law, disclosure may be  

allowed if the public interest in disclosure outweighs in importance  

any possible harm or injury to the interest of the third party. The  

words ‘possible harm or injury’ to the interest of the third party is  

preceded by the word ‘importance’ for the purpose of comparison.  

49 2008 EWHC 1777 (QB)

Civil Appeal No. 10044 of 2010 & Ors.  Page 86 of 108  

‘Possible’ in the context of the proviso does not mean something  

remote, far-fetched or hypothetical, but a calculable, foreseeable  

and substantial possibility of harm and injury to the third party.   

73. Comparison or balancing exercise of competing public interests  

has to be undertaken in both sections, albeit under Section 8(1)(j)  

the comparison is between public interest behind the exemption,   

that is personal information or invasion of privacy of the individual  

and public interest behind access to information, whereas the test  

prescribed by the proviso to Section 11(1) is somewhat broader  

and wider as it 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.   

 74. This Court in Bihar Public Service Commission v. Saiyed  

Hussain Abbas Rizwi and Another50 has held that the phrase  

‘public interest’ in Section 8(1)(j) has to be understood in its true  

connotation to give complete meaning to the relevant provisions of  

the RTI Act. However, the RTI Act does not specifically identify  

factors to be taken into account in determining where the public  

50 (2012) 13 SCC 61

Civil Appeal No. 10044 of 2010 & Ors.  Page 87 of 108  

interest lies. Therefore, it is important to understand the meaning  

of the expression ‘public interest’ in the context of the RTI Act.  

This Court held ‘public interest’ 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, and observed:  

“23. The satisfaction has to be arrived at by the  

authorities objectively and the consequences of such  

disclosure have to be weighed with regard to the  

circumstances of a given case. The decision has to be  

based on objective satisfaction recorded for ensuring  

that larger public interest outweighs unwarranted  

invasion of privacy or other factors stated in the  

provision. Certain matters, particularly in relation to  

appointment, are required to be dealt with great  

confidentiality. The information may come to  

knowledge of the authority as a result of disclosure by  

others who give that information in confidence and with  

complete faith, integrity and fidelity. Secrecy of such  

information shall be maintained, thus, bringing it within  

the ambit of fiduciary capacity. Similarly, there may be  

cases where the disclosure has no relationship to any  

public activity or interest or it may even cause  

unwarranted invasion of privacy of the individual. All  

these protections have to be given their due  

implementation as they spring from statutory  

exemptions. It is not a decision simpliciter between  

private interest and public interest. It is a matter where  

a constitutional protection is available to a person with  

regard to the right to privacy. Thus, the public interest  

has to be construed while keeping in mind the balance  

factor between right to privacy and right to information  

with the purpose sought to be achieved and the  

purpose that would be served in the larger public  

interest, particularly when both these rights emerge  

from the constitutional values under the Constitution of  

India.”  

Civil Appeal No. 10044 of 2010 & Ors.  Page 88 of 108  

75. Public interest in access to information refers to something that is  

in the interest of the public welfare to know. Public welfare is  

widely different from what is of interest to the public. “Something  

which is of interest to the public” and “something which is in the  

public interest” are two separate and different parameters. For  

example, the public may be interested in private matters with  

which the public may have no concern and pressing need to  

know. However, such interest of the public in private matters  

would repudiate and directly traverse the protection of privacy.  

The object and purpose behind the specific exemption vide clause  

(j) to Section 8(1) is to protect and shield oneself from  

unwarranted access to personal information and to protect facets  

like reputation, honour, etc. associated with the right to privacy.  

Similarly, there is a public interest in the maintenance of  

confidentiality in the case of private individuals and even  

government, an aspect we have already discussed.   

 76. 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 a particular  

information and the person.  In an article ‘Freedom of Information

Civil Appeal No. 10044 of 2010 & Ors.  Page 89 of 108  

and the Public Interest: the Commonwealth experience’ published  

in the Oxford University Commonwealth Law Journal,51 the factors  

identified as favouring disclosure, those against disclosure and  

lastly those irrelevant for consideration of public interest have  

been elucidated as under:  

“it is generally accepted that the public interest is not  

synonymous with what is of interest to the public, in the  

sense of satisfying public curiosity about some matter.   

For example, the UK Information Tribunal has drawn a  

distinction between ‘matters which were in the interests  

of the public to know and matters which were merely  

interesting to the public (i.e. which the public would like  

to know about, and which sell newspapers, but... are  

not relevant).   

Factors identified as favouring disclosure include  

the public interest in: contributing to a debate on a  

matter of public importance; accountability of officials;  

openness in the expenditure of public funds, the  

performance by a public authority of its regulatory  

functions, the handling of complaints by public  

authorities; exposure of wrongdoing, inefficiency or  

unfairness; individuals being able to refute allegations  

made against them; enhancement of scrutiny of  

decision-making; and protecting against danger to  

public health or safety.  

Factors that have been found to weigh against  

disclosure include: the likelihood of damage to security  

or international relations; the likelihood of damage to  

the integrity or viability of decision-making processes:  

the public interest in public bodies being able to  

perform their functions effectively; the public interest in  

preserving the privacy of individuals and the public  

interest in the preservation of confidences.  

51 Published online on 28th August, 2017

Civil Appeal No. 10044 of 2010 & Ors.  Page 90 of 108  

Factors irrelevant to the consideration of the public  

interest have also been identified.  These include: that  

the information might be misunderstood; that the  

requested information in overly technical in nature; and  

that disclosure would result in embarrassment to the  

government or to officials.”  

77. In Campbell (supra), reference was made to the Press  

Complaints Commission Code of Practice to further elucidate on  

the test of public interest which stands at the intersection of  

freedom of expression and the privacy rights of an individual to  

hold that:  

“1. Public interest includes:  

(i) Detecting or exposing crime or a serious  

misdemeanour.  

(ii) Protecting public health and safety.  

(iii) Preventing the public from being misled by some  

statement or action of an individual or organisation....”  

78. Public interest has no relationship and is not connected with the  

number of individuals adversely affected by the disclosure which  

may be small and insignificant in comparison to the substantial  

number of individuals wanting disclosure. It will vary according to  

the information sought and all circumstances of the case that bear  

upon the public interest in maintaining the exemptions and those  

in disclosing the information must be accounted for to judge the  

right balance. Public interest is not immutable and even time-gap

Civil Appeal No. 10044 of 2010 & Ors.  Page 91 of 108  

may make a significant difference. The type and likelihood of harm  

to the public interest behind the exemption and public interest in  

disclosure would matter. 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.  

79. The last aspect in the context of public interest test would be in  

the form of clarification as to the effect of sub-section (2) to  

Section 6 of the RTI Act which does not require the information  

seeker to give any reason for making a request for the  

information.  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. It is in this context that this  

Court in Aditya Bandopadhyay (supra) has held that beneficiary

Civil Appeal No. 10044 of 2010 & Ors.  Page 92 of 108  

cannot be denied personal information relating to him. 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.   

80. In the RTI Act, in the absence of any positive indication as to the  

considerations which the PIO has to bear in mind while making a  

decision, the legislature had intended to vest a general discretion  

in the PIO to weigh the competing interests, which is to be limited  

only by the object, scope and purpose of the protection and the  

right to access information and in Section 11(1), the ‘possible’  

harm and injury to the third party. It imports a discretionary value  

judgment on the part of the PIO and the appellate forums as it  

mandates that any conclusion arrived at must be fair and just by  

protecting each right which is required to be upheld in public  

interest. There is no requirement to take a fortiori view that one  

trumps the other.   

 POINT NO. 5: JUDICIAL INDEPENDENCE  

81. Having dealt with the doctrine of the public interest under the RTI  

Act, we would now turn to examining its co-relation with

Civil Appeal No. 10044 of 2010 & Ors.  Page 93 of 108  

transparency in the functioning of the judiciary in matters of  

judicial appointments/selection and importance of judicial  

independence.  

82. Four major arguments are generally invoked to deny third-party or  

public access to information on appointments/selection of judges,  

namely, (i) confidentiality concerns; (ii) data protection; (ii)  

reputation of those being considered in the selection process,  

especially those whose candidature/eligibility stands negated; and  

(iv) potential chilling effect on future candidates given the degree  

of exposure and public scrutiny involved.52 These arguments have  

become subject matter of considerable debate, if not outright  

criticism at the hands of jurists and authors.53 Yet there are those  

who have expressed cynicism about the  ‘interview’ process  

undertaken by the Judicial Service Commission (JSC) in  

recommending judges for appointment in South Africa, by pointing  

out the precariousness and the chilling effect it has on prospective  

candidates and consequently the best candidates often do not  

apply.54 Recently, the majority judgment of the Constitutional Court  

52 See: How Transparent is Transparent Enough?: Balancing Access to Information Against Privacy  

in European Judicial Selections by Alberto Alemanno in Michal Bobek (ed.), Selecting Europe’s  

Judges, 2015 Edition.   53 Kate Malleson, ‘Parliamentary Scrutiny of Supreme Court Nominees: A View from the United  

Kingdom’ Osgoode Hall Law Journal (2007) 44, 557.   54 WH Gravett, ‘Towards an algorithmic model of judicial appointment: The necessity for radical  

revision of the Judicial Service Commission’s interview procedures’ 2017 (80) THRHR.

Civil Appeal No. 10044 of 2010 & Ors.  Page 94 of 108  

of South Africa in Helen Suzman Foundation v. Judicial Service  

Commission55 by relying upon Rule 53(1)(b) of the Uniform Rules  

of Court, South Africa,56 had directed the JSC to furnish the record  

of its deliberations, rejecting the contrary argument of candour and  

robustness as that of ‘timorous fainthearts’. Debating with  

candour, the Court observed, is not equivalent to expression of  

impropriety. The candidates, it was noticed, had undergone  

gruelling scrutiny in the public interviews, and therefore disclosure  

of deliberation would not act as a dampener for future candidates.   

More importantly, the Constitutional Court had distinguished the  

authority and power with the Courts under Rule 53 to access the  

deliberation record, with the different right to access information  

under the Promotion to Access to Information Act, 2000 (PAIA),  

which was the basis of the minority judgment for rejection of  

production of the JSC’s deliberation record. The majority held that  

PAIA and Rule 53 serve different purposes, there being a  

55 Case 289/16 decided on 24th April 2018  56 Rule 53(1)(b) of the Uniform Rules of Court, South Africa states:   

“(1) Save where any law otherwise provides, all proceedings to bring under review the decision or  

proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-

judicial or administrative functions shall be by way of notice of motion directed and delivered by  

the party seeking to review such decision or proceedings to the magistrate, presiding officer or  

chairman of the court, tribunal or board or to the officer, as the case may be, and to all other  

parties affected-   

(a) […]   

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to  

despatch, within fifteen days after receipt of the notice of motion, to the registrar the record  

of such proceedings sought to be corrected or set aside, together with such reasons as he  

is by law required or desires to give or make, and to notify the applicant that he has done  

so.”

Civil Appeal No. 10044 of 2010 & Ors.  Page 95 of 108  

difference in the nature of, and purposes, and therefore it would  

be inapt to transpose PAIA proscriptions on access under Rule  

53. The PAIA grants any person or busybody a right to access any  

information without explaining whatsoever as to why she or he  

requires the information. This had to be balanced, with the need to  

incentivise people to furnish private information, where such  

information is required for facilitating the government machinery,  

and therefore, considerations of confidentiality are applied as the  

person furnishing information must be made aware that the  

information would not be unhesitatingly divulged to others,  

including busybodies, for no particular reason. This facilitates the  

exercise of power and performance of functions of the state  

functionaries.  In court matters under Rule 53, concerns of  

confidentiality could be addressed by imposing stringent and  

restrictive conditions on the right to access information, including  

furnishing of confidentiality undertakings for restraining the  

divulgence of details to third parties.  

83. The United Kingdom’s Data Protection Act, 2018 grants class  

exemption to all personal data processed for the purpose of  

assessing a person’s suitability for judicial office, from certain  

rights including the right of the data subject to be informed,  

guaranteed under the European Union General Data Protection

Civil Appeal No. 10044 of 2010 & Ors.  Page 96 of 108  

Regulation being given effect to by the Data Protection Act.57  

Similarly, in the context of the European Union, opinions of ‘the  

Article 255 Panel’58 and ‘the Advisory Panel’59, entrusted with the  

task of advising on the suitability of candidates as judges to the  

Court of Justice of the European Union and the European Court of  

Human Rights are inaccessible to the public and their opinions  

have limited circulation, as they are exclusively forwarded to the  

representatives of governments of the member states in the case  

of European Union60 and the individual governments in the case of  

Council of Europe61, respectively. The Council of the European  

Union,62 for instance, in consultation with ‘Article 255’ Panel, has  

denied requests for public access to opinions issued by the  

Panel,63 in light of the applicable exceptions provided for in  

Regulation No 1049/200164. Such opinions, the Council has  

57 Schedule 2, Part-2, Paragraph 14.  58 Article 255, Treaty on the Functioning of the European Union states:   

“A panel shall be set up in order to give an opinion on candidates' suitability to perform the duties of  

Judge and Advocate-General of the Court of Justice and the General Court before the governments  

of the Member States make the appointments referred to in Articles 253 and 254…”  59 Set up under Resolution ‘Establishment of an Advisory Panel of Experts on Candidates for Election  

as Judge to the European Court of Human Rights’, CM/Res (2010) 26 adopted by the Committee of  

Ministers on 10 November 2010.  60 CJEU is the judicial branch of the European Union, administering justice in the 28 member states  

of the international organisation.   61 Comprising of 47 member European states, Council of Europe adopted the European Convention  

on Human Rights, which established ECtHR.   62 One of the seven constituent bodies of the European Union comprising of the ministers from the  

member states of the European Union.  63 Reply Adopted by the Council on 12 July 2016 to Confirmatory Application 13/c/01/16 pursuant to  

Article 7(2) of Regulation (EC) No 1049/2001 for public access to all the opinions issued by the  

Panel provided for by Article 255 of the Treaty on the Functioning of the European Union.  64 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001  

regarding public access to European Parliament, Council and Commission documents

Civil Appeal No. 10044 of 2010 & Ors.  Page 97 of 108  

observed, largely include personal data of the candidates, viz.  

factual elements concerning the candidates’ professional  

experience and qualifications and the Panel’s assessment of the  

candidate’s competences and, therefore, access to relevant  

documents is denied in order to protect the privacy and integrity of  

the individual.65 However, a part of these opinions which do not  

contain personal data and provide a description of the procedure  

adopted and criteria applied by the Panel have been released as  

“Activity Reports” in the framework of partial access to such  

information. Opinions that are unfavourable to the appointment of  

the candidates will be exempt from disclosure as they can hamper  

commercial interests of the candidates in their capacity as legal  

practitioners,66 whereas positive opinions are exempted from  

disclosure as such opinions can lead to comparison and public  

scrutiny of the most and least favoured qualities of the successful  

candidates, potentially interfering with the proceedings of the  

Court of Justice.67 Lastly, disclosure of opinions, the Council has  

observed, will be exempted if such disclosure could “seriously  

65 Article 4(1)(b), Regulation No 1049/2001  66 First indent of Article 4(2), Regulation No 1049/2001  67 Second indent of Article 4(2), Regulation No 1049/2001

Civil Appeal No. 10044 of 2010 & Ors.  Page 98 of 108  

undermine the institution's decision-making process, unless there  

is an overriding public interest in disclosure.”68   

84. More direct and relevant in the Indian context would be the  

decision of this Court in Supreme Court Advocates-on-Record  

Association v. Union of India69, where a Constitutional Bench of  

five judges had dealt with the constitutional validity of the National  

Judicial Appointments Commission. A concurring judgment had    

dealt with the aspect of transparency in appointment and transfer  

of judges and the privacy concerns of the judges who divulge their  

personal information in confidence, to opine as under:  

“949. In the context of confidentiality requirements, the  

submission of the learned Attorney General was that  

the functioning of NJAC would be completely  

transparent. Justifying the need for transparency it was  

submitted that so far the process of appointment of  

Judges in the Collegium System has been extremely  

secret in the sense that no one outside the Collegium  

or the Department of Justice is aware of the  

recommendations made by the Chief Justice of India  

for appointment of a Judge of the Supreme Court or  

the High Courts. Reference was made  

to Renu v. District & Sessions Judge, (2014) 14 SCC  

50 to contend that in the matter of appointment in all  

judicial institutions “complete darkness in the  

lighthouse has to be removed”.  

950. In addition to the issue of transparency a  submission was made that in the matter of appointment  of Judges, civil society has the right to know who is  being considered for appointment. In this regard, it was  

68 Article 4(3), Regulation No 1049/2001  69 (2016) 5 SCC 1

Civil Appeal No. 10044 of 2010 & Ors.  Page 99 of 108  

held in Indian Express Newspapers (Bombay) (P)  Ltd. v. Union of India (1985) 1 SCC 641 that the people  have a right to know. Reliance was placed on Attorney  General v. Times Newspapers Ltd. 1974 AC 273: (1973)  3 WLR 298: (1973) 3 All ER 54 (HL) where the right to  know was recognised as a fundamental principle of the  freedom of expression and the freedom of discussion.  

951. In State of U.P. v. Raj Narain (1975) 4 SCC 428 the  right to know was recognised as having been derived  from the concept of freedom of speech.  

952. Finally, in Reliance Petrochemicals Ltd. v. Indian  Express Newspapers Bombay (P) Ltd., (1988) 4 SCC  592 it was held that the right to know is a basic right  which citizens of a free country aspire in the broader  horizon of the right to live in this age in our land under  Article 21 of our Constitution.  

953. The balance between transparency and  confidentiality is very delicate and if some sensitive  information about a particular person is made public, it  can have a far-reaching impact on his/her reputation and  dignity. The 99th Constitution Amendment Act and the  NJAC Act have not taken note of the privacy concerns of  an individual. This is important because it was submitted  by the learned Attorney General that the proceedings of  NJAC will be completely transparent and any one can  have access to information that is available with NJAC.  This is a rather sweeping generalisation which obviously  does not take into account the privacy of a person who  has been recommended for appointment, particularly as  a Judge of the High Court or in the first instance as a  Judge of the Supreme Court. The right to know is not a  fundamental right but at best it is an implicit fundamental  right and it is hedged in with the implicit fundamental  right to privacy that all people enjoy. The balance  between the two implied fundamental rights is difficult to  maintain, but the 99th Constitution Amendment Act and  the NJAC Act do not even attempt to consider, let alone  achieve that balance.  

 954. It is possible to argue that information voluntarily  

supplied by a person who is recommended for  

appointment as a Judge might not have a right to  

privacy, but at the same time, since the information is  

supplied in confidence, it is possible to argue that it

Civil Appeal No. 10044 of 2010 & Ors.  Page 100 of 108  

ought not to be disclosed to third party unconcerned  

persons. Also, if the recommendation is not accepted  

by the President, does the recommended person have  

a right to non-disclosure of the adverse information  

supplied by the President? These are difficult questions  

to which adequate thought has not been given and  

merely on the basis of a right to know, the reputation of  

a person cannot be whitewashed in a dhobi-ghat.”  

85. Earlier, the Constitution Bench of nine judges had in Second  

Judges’ Case, that is Supreme Court Advocates on Record  

Association and Others v. Union of India70 overruled the  

majority opinion in S.P. Gupta (supra) (the first Judge’s case) and  

had provided for primacy to the role of the Chief Justice of India  

and the collegium in the matters of appointment and transfer of  

judges. Speaking on behalf of the majority, J.S. Verma, J., had  

with regard to the justiciability of transfers, summarised the legal  

position as under:  

“480. The primacy of the judiciary in the matter of  

appointments and its determinative nature in transfers  

introduces the judicial element in the process, and is  

itself a sufficient justification for the absence of the  

need for further judiciary review of those decisions,  

which is ordinarily needed as a check against possible  

executive excess or arbitrariness. Plurality of judges in  

the formation of the opinion of the Chief Justice of  

India, as indicated, is another inbuilt check against the  

likelihood of arbitrariness or bias, even subconsciously,  

of any individual. The judicial element being  

predominant in the case of appointments, and decisive  

in transfers, as indicated, the need for further judicial  

review, as in other executive actions, is eliminated.   

70 (1993) 4 SCC 441

Civil Appeal No. 10044 of 2010 & Ors.  Page 101 of 108  

The reduction of the area of discretion to the minimum,  

the element of plurality of judges in formation of the  

opinion of the Chief Justice of India, effective  

consultation in writing, and prevailing norms to regulate  

the area of discretion are sufficient checks against  

arbitrariness.  

481. These guidelines in the form of norms are not to  

be construed as conferring any justiciable right in the  

transferred Judge. Apart from the constitutional  

requirement of a transfer being made only on the  

recommendation of the Chief Justice of India, the issue  

of transfer is not justiciable on any other ground,  

including the reasons for the transfer or their  

sufficiency. The opinion of the Chief Justice of India  

formed in the manner indicated is sufficient safeguard  

and protection against any arbitrariness or bias, as well  

as any erosion of the independence of the judiciary.  

482. This is also in accord with the public interest of  

excluding these appointments and transfers from  

litigative debate, to avoid any erosion in the credibility  

of the decisions, and to ensure a free and frank  

expression of honest opinion by all the constitutional  

functionaries, which is essential for effective  

consultation and for taking the right decision.  The  

growing tendency of needless intrusion by strangers  

and busy-bodies in the functioning of the judiciary  

under the garb of public interest litigation, in spite of the  

caution in S.P. Gupta which expanding the concept of  

locus standi, was adverted to recently by a Constitution  

Bench in Krishna Swami v. Union of India (1992) 4  

SCC 605.  It is therefore, necessary to spell out clearly  

the limited scope of judicial review in such matters, t  

avoid similar situations in future.  Except on the ground  

of want of consultation with the named constitutional  

functionaries or lack of any condition of eligibility in the  

cases of an appointment, or of a transfer being made  

without the recommendation of the Chief Justice of  

India, these matters are not justiciable on any other  

ground, including that of bias, which in any case is  

excluded by the element of plurality in the process of  

decision-making.”  

Civil Appeal No. 10044 of 2010 & Ors.  Page 102 of 108  

86. That the independence of the judiciary forms part of our basic  

structure is now well established. S. P. Gupta (supra) (the first  

Judge’s case) had observed that this independence is one  

amongst the many other principles that run through the entire  

fabric of the Constitution and is a part of the rule of law under the  

Constitution. The judiciary is entrusted with the task of keeping the  

other two organs within the limits of law and to make the rule of  

law meaningful and effective. Further, the independence of  

judiciary is not limited to judicial appointments to the Supreme  

Court and the High Courts, as it is a much wider concept which  

takes within its sweep independence from many other pressures  

and prejudices. It consists of many dimensions including  

fearlessness from other power centres, social, economic and  

political, freedom from prejudices acquired and nurtured by the  

class to which the judges belong and the like. This wider concept  

of independence of judiciary finds mention in C. Ravichandran  

Iyer v. Justice A.M. Bhattacharjee and Others71, High Court of  

Judicature at Bombay v. Shashikant S. Patil72 and Jasbir  

Singh v. State of Punjab73.  

71 (1995) 5 SCC 457  72 (1997) 6 SCC 339  73 (2006) 8 SCC 294

Civil Appeal No. 10044 of 2010 & Ors.  Page 103 of 108  

87. In Supreme Court Advocates’ on Record Association (2016)  

(supra) on the aspect of the independence of the judiciary, it has  

been observed:  

“713. What are the attributes of an independent  

judiciary? It is impossible to define them, except  

illustratively. At this stage, it is worth recalling the  

words of Sir Ninian Stephen, a former Judge of the  

High Court of Australia who memorably said:   

“[An] independent judiciary, although a formidable  protector of individual liberty, is at the same time a very  vulnerable institution, a fragile bastion indeed.”   

It is this fragile bastion that needs protection to maintain  its independence and if this fragile bastion is subject to a  challenge, constitutional protection is necessary.  

714. The independence of the judiciary takes within its  fold two broad concepts: (1) Independence of an  individual Judge, that is, decisional independence; and  (2) Independence of the judiciary as an institution or an  organ of the State, that is, functional independence. In a  lecture on Judicial Independence, Lord Phillips said:  

“In order to be impartial a Judge must be  independent; personally independent, that is free  of personal pressures and institutionally  independent, that is free of pressure from the  State.”  

      xx  xx  xx   

 726. Generally speaking, therefore, the independence  

of the judiciary is manifested in the ability of a Judge to  

take a decision independent of any external (or  

internal) pressure or fear of any external (or internal)  

pressure and that is “decisional independence”. It is  

also manifested in the ability of the institution to have  

“functional independence”. A comprehensive and  

composite definition of “independence of the judiciary”  

is elusive but it is easy to perceive.”

Civil Appeal No. 10044 of 2010 & Ors.  Page 104 of 108  

It is clear from the aforesaid quoted passages that the  

independence of the judiciary refers to both decisional and  

functional independence. There is reference to a report titled  

‘Judicial Independence: Law and Practice of Appointments to the  

European Court of Human Rights’74 which had observed that  

judges are not elected by the people (relevant in the context of  

India and the United Kingdom) and, therefore, derive their  

authority and legitimacy from their independence from political or  

other interference.  

88. We have referred to the decisions and viewpoints to highlight the  

contentious nature of the issue of transparency, accountability and  

judicial independence with various arguments and counter-

arguments on both sides, each of which commands merit and  

cannot be ignored. Therefore, it is necessary that the question of  

judicial independence is accounted for in the balancing exercise. It  

cannot be doubted and debated that the independence of the  

judiciary is a matter of ennobled public concern and directly  

relates to public welfare and would be one of the factors to be  

74 Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon  

Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley,  

Professor Dr. Andrzej Zoll. <http://www.interights.org/document/142/index.html>

Civil Appeal No. 10044 of 2010 & Ors.  Page 105 of 108  

taken into account in weighing and applying the public interest  

test. Thus, when the public interest demands the disclosure of  

information, judicial independence has to be kept in mind while  

deciding the question of exercise of discretion. However, we  

should not be understood to mean that the independence of the  

judiciary can be achieved only by denial of access to information.  

Independence in a given case may well demand openness and  

transparency by furnishing the information. Reference to the  

principle of judicial independence is not to undermine and avoid  

accountability which is an aspect we perceive and believe has to  

be taken into account while examining the public interest in favour  

of disclosure of information.  Judicial independence and  

accountability go hand in hand as accountability ensures, and is a  

facet of judicial independence.   Further, while applying the  

proportionality test, the type and nature of the information is a  

relevant factor. Distinction must be drawn between the final  

opinion or resolutions passed by the collegium with regard to  

appointment/elevation and transfer of judges with observations  

and indicative reasons and the inputs/data or details which the  

collegium had examined. The rigour of public interest in divulging  

the input details, data and particulars of the candidate would be  

different from that of divulging and furnishing details of the output,

Civil Appeal No. 10044 of 2010 & Ors.  Page 106 of 108  

that is the decision. In the former, public interest test would have  

to be applied keeping in mind the fiduciary relationship (if it  

arises), and also the invasion of the right to privacy and breach of  

the duty of confidentiality owed to the candidate or the information  

provider, resulting from the furnishing of such details and  

particulars. The position represents a principled conflict between  

various factors in favour of disclosure and those in favour of  

withholding of information. Transparency and openness in judicial  

appointments juxtaposed with confidentiality of deliberations  

remain one of the most delicate and complex areas. Clearly, the  

position is progressive as well as evolving as steps have been  

taken to make the selection and appointment process more  

transparent and open. Notably, there has been a change after  

concerns were expressed on disclosure of the names and the  

reasons for those who had not been approved. The position will  

keep forging new paths by taking into consideration the  

experiences of the past and the aspirations of the future.   

Questions referred to the Constitution Bench are accordingly  

answered, observing that it is not possible to answer these  

questions in absolute terms, and that in each case, the public  

interest test would be applied to weigh the scales and on balance  

determine whether information should be furnished or would be

Civil Appeal No. 10044 of 2010 & Ors.  Page 107 of 108  

exempt. Therefore, a universal affirmative or negative answer is  

not possible. However, independence of judiciary is a matter of  

public interest.  

CONCLUSIONS  

89. In view of the aforesaid discussion, we dismiss Civil Appeal  

No.2683 of 2010 and uphold the judgment dated 12th January,  

2010 of the Delhi High Court in LPA No. 501 of 2009 which had  

upheld the order passed by the CIC directing the CPIO, Supreme  

Court of India to furnish information on the judges of the Supreme  

Court who had declared their assets. Such disclosure would not,  

in any way, impinge upon the personal information and right to  

privacy of the judges. The fiduciary relationship rule in terms of  

clause (e) to Section 8(1) of the RTI Act is inapplicable. It would  

not affect the right to confidentiality of the judges and their right to  

protect personal information and privacy, which would be the case  

where details and contents of personal assets in the declaration  

are called for and sought, in which event the public interest test as  

applicable vide Section 8(1)(j) and proviso to Section 11 (1) of the  

RTI Act would come into operation.  

90. As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are  

concerned, they are to be partly allowed with an order of remit to

Civil Appeal No. 10044 of 2010 & Ors.  Page 108 of 108  

the CPIO, Supreme Court of India to re-examine the matter after  

following the procedure under Section 11(1) of the RTI Act as the  

information relates to third parties. Before a final order is passed,  

the concerned third parties are required to be issued notice and  

heard as they are not a party before us. While deciding the  

question of disclosure on remit, the CPIO, Supreme Court of India  

would follow the observations made in the present judgment by  

keeping in view the objections raised, if any, by the third parties.   

We have refrained from making specific findings in the absence of  

third parties, who have rights under Section 11(1) and their views  

and opinions are unknown.  

The reference and the appeals are accordingly disposed of.   

 ......................................CJI  

(RANJAN GOGOI)  

 ........................................J.  

(N.V. RAMANA)  

 ........................................J.  

(DR. D.Y. CHANDRACHUD)  

 ........................................J.  

(DEEPAK GUPTA)  

 ........................................J.  

(SANJIV KHANNA)  

NEW DELHI;  

NOVEMBER 13, 2019.

1    

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 10044 OF 2010  

CENTRAL PUBLIC INFORMATION OFFICER,                                … APPELLANT  SUPREME COURT OF INDIA  

VERSUS  SUBHASH CHANDRA AGRAWAL                                          … RESPONDENT    

WITH    

CIVIL APPEAL NO. 10045 OF 2010  AND   

CIVIL APPEAL NO. 2683 OF 2010  

J U D G M E N T   

N.V. RAMANA, J.  

“In the domain of human rights, right to privacy  and right to information have to be treated as co-

equals and none can take precedence over the  other, rather a balance needs to be struck”  

1. I have had the opportunity to peruse the erudite judgments of my  

learned brothers, who have reflected extensively on the  

importance of this case, concerning the aspect of privacy and right  

to information in detail. However, while concurring with the view  

of the majority, I feel the need to provide independent reasons with  

respect to certain aspects for coming to the aforesaid conclusion,  

REPORTABLE

2    

as this case has large ramification on the rights of an individual  

in comparison to the rights of the society. The aspect of  

transparency and accountability which are required to be  

balanced with right to privacy, has not been expounded by this  

Court anytime before, thereby mandating a separate opinion.   

2. This case concerns the balance which is required between two  

important fundamental rights i.e. right to information and right  

to privacy. Often these two rights are seen as conflicting, however,  

we need to reiterate that both rights are two faces of the same  

coin. There is no requirement to see the two facets of the right in  

a manner to further the conflict, what is herein required is to  

provide balancing formula which can be easily made applicable to  

individual cases. Moreover, due to the fact of infancy in privacy  

jurisprudence has also contributed to the meticulous task we are  

burdened herein.   

3. In this view, this case is before us to adjudicate whether the  

application dated 06.07.2009 (hereinafter referred to as “first  

application”) seeking information by the respondent, separate

3    

applications dated 23.01.2009 (hereinafter referred to as “second  

application”) and 10.11.2007 (hereinafter referred to as “third  

application”) are maintainable or not. The first application  

concerns the information relating to complete correspondence  

between the Chief Justice of India and Mr. Justice R. Reghupati.  

The second application concerns the collegium file notings  

relating to the appointment of Justice H. L. Dattu, Justice A. K.  

Ganguly and Justice R. M. Lodha. The third application relates to  

information concerning declaration of assets made by the puisne  

judges of the Supreme Court to the Chief Justice of India and the  

judges of the High Courts to the Chief Justices of the respective  

High Courts.   

4. The respondent/applicant submitted that the aforesaid three  

applications before the Central Public Information Officer of the  

Supreme Court of India (hereinafter “CPIO, Supreme Court of  

India”) came to be dismissed vide orders dated 04.08.2009,  

25.02.2009 and 30.11.2007 respectively.   

5. Aggrieved by rejection of the first application the respondent  

approached the first appellate authority in appeal which was also

4    

dismissed vide order dated 05.09.2009. Being aggrieved, the  

respondent further preferred a second appeal to the Central  

Information Commission [for short “CIC”]. The CIC allowed this  

appeal vide order dated 25.11.2009 and directed the disclosure of  

information sought. Aggrieved by the same, the CPIO, Supreme  

Court of India has preferred Civil Appeal No. 10045 of 2010.   

6.   Concerning the second application, the CPIO, Supreme Court of  

India, by order dated 25.02.2009 had denied the information  

sought therein. Being aggrieved, the respondent preferred the first  

appeal which came to be dismissed vide order dated 25.03.2009  

by the first appellate authority. The second appeal filed before the  

CIC was allowed vide order dated 24.11.2009. Aggrieved the CPIO,  

Supreme Court of India has preferred Civil Appeal No. 10044 of  

2010.   

7. The third application was dismissed by the CPIO, Supreme Court  

of India vide order dated 30.11.2007 on the ground that the  

information was not held by the Registry of the Supreme Court of  

India. The first appeal was disposed of with an order directing the  

CPIO, Supreme Court of India to consider the question of

5    

applicability of Section 6(3) of the Right to Information Act, 2005  

(hereinafter “the RTI Act”). The CPIO vide order 07.02.2009  

required the respondent/applicant to approach the concerned  

public authority of the High Courts. Aggrieved the  

respondent/applicant directly approached the CIC in appeal  

which was allowed by order dated 06.01.2009. Aggrieved by the  

same the appellant filed Writ Petition (C) No. 288 of 2009 before  

the Delhi High Court. The Ld. Single Judge by order dated  

02.09.2009 directed the CPIO, Supreme Court of India to release  

the information sought by the respondent. Being aggrieved, the  

CPIO, Supreme Court of India filed Letter Patent Appeal No. 501  

of 2009 which was subsequently referred to a full Bench of the  

High Court. The full Bench by order dated 12.01.2010 dismissed  

the letter patent appeal. Aggrieved, CPIO, Supreme Court of India  

has filed Civil Appeal No. 2683 of 2010 before this Court.   

8. In this context, all the three appeals were tagged by an order dated  

26.11.2010, a reference was made for constituting a larger Bench  

and accordingly it is before us.  

6    

9. Before we dwell into any other aspect a preliminary objections  

were taken by the appellants that this Bench could not have dealt  

with this matter considering the fact that this Court’s  

functionality had a direct impact on the same. We do not  

subscribe to the aforesaid opinion for the reason that this Court  

while hearing this matter is sitting as a Court of necessity.  In the  

case of Election Commission of India v. Dr Subramaniam  

Swamy, (1996) 4 SCC 104, it was held as under:  

16. We must have a clear conception of the  doctrine. It is well settled that the law permits  certain things to be done as a matter of  necessity which it would otherwise not  countenance on the touchstone of judicial  propriety. Stated differently, the doctrine of  necessity makes it imperative for the authority  to decide and considerations of judicial  propriety must yield. It is often invoked in  cases of bias where there is no other authority  or Judge to decide the issue. If the doctrine of  necessity is not allowed full play in certain  unavoidable situations, it would impede the  course of justice itself and the defaulting party  would benefit there from. Take the case of a  certain taxing statute which taxes certain  perquisites allowed to Judges. If the validity of  such a provision is challenged who but the  members of the judiciary must decide it. If all  the Judges are disqualified on the plea that  striking down of such a legislation would  benefit them, a stalemate situation may  develop. In such cases the doctrine of necessity  comes into play. If the choice is between

7    

allowing a biased person to act or to stifle the  action altogether, the choice must fall in favour  of the former as it is the only way to promote  decision-making. In the present case also if the  two Election Commissioners are able to reach  a unanimous decision, there is no need for the  Chief Election Commissioner to participate, if  not the doctrine of necessity may have to be  invoked.  

10. In this light, appellants have to accept the decision of this Court  

which is the final arbiter of any disputes in India and also the  

highest court of constitutional matters. In this light, such  

objections cannot be sustained.   

11. Before we proceed any further we need to have a brief reference to  

the scheme of RTI Act. The statement of objects and reasons  

envisage a noble goal of creating a democracy which is consisting  

of informed citizens and a transparent government. It also  

provides for a balance between effective government, efficient  

operations, expenditure of such transparent systems and  

requirements of confidentiality for certain sensitive information.  

It recognises that these principles are inevitable to create  

friction inter se and there needs to be harmonisation of such  

conflicting interests and there is further requirement to preserve

8    

the supremacy of democratic ideal. The recognition of this  

normative democratic ideal requires us to further expound upon  

the optimum levels of accountability and transparency of efficient  

operations of the government. Under Section 2(f), information is  

defined as ‘any material in any form including records, documents,  

memos, e-mails, opinions, advises, 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.’  

12.  The purport of this section was to cover all types of information  

contained in any format to be available under the ambit of the RTI  

Act. The aforesaid definition is further broadened by the definition  

of ‘record’ provided under Section 2(i) of the RTI Act. Right to  

Information as defined under Section 2(j) of the RTI Act means the  

right to information accessible under this Act which is held by or  

under the control of any public authority.   

13. Chapter II of the RTI Act begins with a statement under Section 3  

by proclaiming that all citizens shall have right to information

9    

subject to the provisions of the RTI Act. Section 4 creates an  

obligation on public authorities to maintain a minimum standard  

of data which would be freely available for the citizens. Further  

this section also mandates proactive dissemination of data for  

informing the citizens by utilizing various modes and means of  

communications. Section 5 requires every public authority to  

designate concerned CPIO or SPIO, as the case may be for  

providing information to those who seeks the same.   

14.  Section 6 of the RTI Act provides for procedure required to be  

followed by a person who desires to obtain information under the  

RTI Act. Section 7 further provides the time frame within such  

designated officers are to decide the applications filed by the  

information seeker. For our purposes Section 8 deems relevant  

and is accordingly extracted hereunder –  

“8. Exemption from disclosure of  information.—  

(1) Notwithstanding anything contained in this  Act, there shall be no obligation to give any citizen,  

…  

(d) information including commercial confidence,  trade secrets or intellectual property, the  disclosure of which would harm the competitive

10    

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;  

(j) information which relates to personal  information the disclosure of which has not  relationship to any public activity or interest, or  which would cause unwarranted invasion of the  privacy of the individual unless the Central Public  Information Officer or the State Public Information  Officer or the appellate authority, as the case may  be, is satisfied that the larger public interest  justifies the disclosure of such information:  

 Provided that the information which cannot  be denied to the Parliament or a State Legislature  shall not be denied to any person.”  

15. It may be relevant to note Section 10 of the RTI Act which deals  

with severability of the exempted information. The mandate of the  

section is that where a request for access to information contains  

both exempted as well as non-exempted parts, if the non-

exempted parts could be revealed, such parts which could be  

reasonably severed and can be provided as information under the  

Act.   

16. Section 11 which is material for the discussion involved herein  

states as under -  

11    

“11. Third party information.—  

(1) Where a Central Public Information Officer or the  State Public Information Officer, as the case may  be, intends to disclose any information or record, or  part thereof on a request made under this Act,  which relates to or has been supplied by a third  party and has been treated as confidential by that  third party, the Central Public Information Officer or  State Public Information Officer, as the case may  be, shall, within five days from the receipt of the  request, give a written notice to such third party of  the request and of the fact that the Central Public  Information Officer or State Public Information  Officer, as the case may be, intends to disclose the  information or record, or part thereof, and invite the  third party to make a submission in writing or  orally, regarding whether the information should be  disclosed, and such submission of the third party  shall be kept in view while taking a decision about  disclosure of information:   

Provided that except in the case of trade or  commercial secrets protected by law, disclosure  may be allowed if the public interest in disclosure  outweighs in importance any possible harm or  injury to the interests of such third party.  

(2) Where a notice is served by the Central Public  Information Officer or State Public Information  Officer, as the case may be, under sub-section (1)  to a third party in respect of any information or  record or part thereof, the third party shall, within  ten days from the date of receipt of such notice, be  given the opportunity to make representation  against the proposed disclosure.  

(3) Notwithstanding anything contained in section  7, the Central Public Information Officer or State  Public Information Officer, as the case may be,  shall, within forty days after receipt of the request  under section 6, if the third party has been given an

12    

opportunity to make representation under  sub-section (2), make a decision as to whether or  not to disclose the information or record or part  thereof and give in writing the notice of his decision  to the third party.  

(4) A notice given under sub-section (3) shall include  a statement that the third party to whom the notice  is given is entitled to prefer an appeal under section  19 against the decision.”  

17. The mandate under Section 11 of the RTI Act enshrines the  

principles of natural justice, wherein, the third party is provided  

with an opportunity to be heard and the authority needs to  

consider whether the disclosure in public interest outweighs the  

possible harm in disclosure to the third party. It must be noted  

that the use of term ‘confidential’ as occurring under Section 11,  

subsumes commercial confidential information, other types of  

confidential information and private information.  

18. We may not concentrate on other procedural section provided  

under the RTI Act as they do not have any bearing on the case  

concerned.   

19. Having observed the scheme of the RTI Act we need to understand  

that right to information stems from Article 19(1)(a) of the

13    

Constitution which guarantees freedom of expression.  

Accordingly, this Court in State of Uttar Pradesh v. Raj Narain,  

(1975) 4 SCC 428 and S.P. Gupta v. Union of India, (1981)  

Supp. (1) SCC 87, held that a citizen cannot effectively exercise  

his freedom of speech and expression unless he/she is informed  

of the governmental activities. Our country being democratic, the  

right to criticise the government can only be effectively  

undertaken if accountability and transparency are maintained at  

appropriate levels. In view of the same, right to information can  

squarely said to be a corollary to the right to speech and  

expression.   

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

14    

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  authority’s 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

15    

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 authority’s 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.

16    

us to hold that the concerned authority is holding the information  

and accordingly the contention of the appellants does not have  

any merit.   

22. The appellants have argued that the information with respect to  

the assets declared with the Chief Justice of India or Chief  

Justices of respective High Courts are held in confidence,  

fiduciary capacity; moreover, the aforesaid information is private  

information of the judges which cannot be revealed under the RTI  

Act.   

23.  The exemptions to right to information as noted above are  

contained under Section 8 of the RTI Act. Before we analyse the  

aforesaid provision, we need to observe basic principles,  

concerning interpretation of exemption clauses. There is no doubt  

it is now well settled that exemption clauses need to be construed  

strictly. They need to be given appropriate meaning in terms of  

the intention of the legislature [see Commissioner of Customs  

(Import) v. Dilip Kumar & Ors., (2018) 9 SCC  

40; Rechnungshof v. Österreichischer Rundfunk and Ors., C-

465/00].

17    

24. At the cost of repetition we note that the exemption of right to  

information for confidential information is covered under Section  

8(1)(d), exemption from right to information under a fiduciary  

relationship is covered under Section 8(1)(e) and the exemption  

from private information is contained under Section 8(1)(j) of the  

RTI Act.   

25. The first contention raised by the appellants is that the aforesaid  

information is confidential, therefore the same is covered under  

the exemption as provided under Section 8(1)(d) of the RTI Act.  

The aforesaid exemption originates from a long time of judge made  

law concerning breach of confidence (which are recently termed  

as misuse of private information).   

 26. Under the classic breach of confidence action, three requirements  

were necessary for bringing an action under this head. These  

conditions are clearly mentioned in the opinion of Megarry, J.,  

in Coco vs. Clark, [1968] FSR 415; wherein, the conditions  

are first, the information itself, i.e. ‘information is required to have  

necessary quality about confidence of the same’; second, ‘the  

information must have been imparted in circumstances importing

18    

an obligation of confidence’; third, ‘there must be unauthorized  

use of information which will be detriment to the party  

communicating’.   

 27. Breach of confidence was not an absolute right and public  

interest, incorporated from long time under the common law  

jurisprudence. This defence of public interest can be traced to  

initial case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113,  

wherein it was held that there is no confidence as to disclosure in  

iniquity. This iniquity was later expanded by Lord Denning  

in Fraser v. Evans, [1969] 1 QB 349, wherein the iniquity was  

referred as merely as an example of ‘justice cause or excuse’ for a  

breach of confidence. This iniquity was widened further in Initial  

Service v. Putterill, [1968] 1 QB 396, wherein it was held that  

iniquity covers any misconduct of nature that it ought to be  

disclosed to others in the public interest. In this line of precedents  

Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All ER 24,  

noted that iniquity would cover ‘any matter, carried out or  

contemplated, in breach of country’s security or in breach of law  

including statutory duty, fraud or otherwise destructive of the

19    

country or its people and doubtless other misdeeds of similar  

gravity.’     

 28. Eventually the language of iniquity was shaken and discourse on  

public interest took over as a defence for breach of confidence [See  

Lion Laboratories v. Evans, [1985] QB 526]. It would be  

necessary to quote Lord Goff in Her Majesty’s Attorney General  

v. The Observer Ltd. & Ors., [1991] AC 109, wherein he noted  

that “it is now clear that the principle [of iniquity] extends to  

matters of which disclosure is required in public interest”.   

 29. The aforesaid expansion from the rule of iniquity to public interest  

defence has not caught the attention of Australian courts wherein,  

Justice Gummow, in Corrs Pavey Whiting and Byrne v.  

Collector of Customs, (1987) 14 FCR 434 and Smith Kline and  

French Laboratories [Australia] Ltd. v. Department of  

Community Services and Health, (1990) 22 FCR 73, reasoned  

that public interest was “picturesque if somewhat imprecise” and  

“not so much a rule of law as an invitation to judicial idiosyncrasy  

by deciding each case on ad-hoc basis as to whether, on the facts

20    

overall, it is better to respect or to override the obligation of  

confidence”.   

 30. Even in England there has been a shift of reasoning from an  

absolute public interest defence to balancing of public interest. At  

this point we may observe the case of Woodward v.  

Hutchins,[1977] 1 WLR 760, wherein it was observed “It is a  

question of balancing the public interest in maintaining the  

confidence against the public interest in knowing the truth”.  

 31. Section 8(1)(d) of the RTI Act has limited the action of defence of  

confidentiality to only commercial information, intellectual  

property rights and those which are concerned with maintaining  

the competitive superiority. Therefore, aforesaid section is only  

relatable to breach of confidence of commercial information as  

classically developed. Although there are examples wherein  

commercial confidentiality are also expanded to other types of  

breach of confidential information, however, under Section 8(1)(d)  

does not take into its fold such breach of confidential information  

actions.  

21    

32. Coming to other types of confidentiality, we need to note that the  

confidentiality cannot be only restricted to commercial  

confidentiality, rather needs to extend to other types of  

confidentialities as well. [Duchess of Argyll v. Duke of Argyll,  

1967 Ch 302] Under the RTI Scheme such other confidential  

information are taken care under Section 11 of the RTI Act. The  

language and purport under Section 11 extends to all types of  

confidentialities, inclusive of both commercial and other types of  

confidentialities. The purport of this Section is that an  

opportunity should be provided to third party, who treats the  

information as confidential. The ‘test of balancing public interest’  

needs to be applied in cases of confidential information other than  

commercial information as well, under Section 11 of the RTI Act,  

as discussed. In this light, the concerned third parties need to be  

heard and thereafter the authorities are required to pass order as  

indicated herein.  

 33. Further, the appellants have contended that the information  

sought herein relating to the third party are covered under  

exemptions as provided in Section 8(1)(j) of the RTI Act i.e. private  

information.

22    

 34. The development from breach of confidence to misuse of private  

information/privacy claim was gradual. There was shift from the  

focus on relationship to whether the information itself had a  

requisite confidential quality [refer to Her Majesty’s Attorney  

General case (supra)]. This shift in focus resulted in the evolution  

of misuse of private information or privacy claim, from its  

predecessor of confidentiality. In the case of Campbell v. M.G.N.,  

[2004] UKHL 22, wherein the breach of misuse of private  

information evolved as cause of action.  The modification which  

happened in the new cause of action is that the initial confidential  

relationship was not material, which was earlier required under  

the breach of confidence action. The use of term confidential  

information was replaced with more natural descriptive term  

information in private. The change from breach of confidence  

which was an action of equity, to misuse of private information,  

which was a tort provided more structural definitiveness and  

reduced the discretionary aspect.   

 35. The purport of the Section 8(1)(j) of the RTI Act is to balance  

privacy with public interest. Under the provision a two steps test

23    

could be identified wherein the first step was: (i) whether there is  

a reasonable expectation of privacy, and (ii) whether on an  

ultimate balancing analysis, does privacy give way to freedom of  

expression? We should acknowledge that these two tests are very  

difficult to be kept separate analytically.   

 FIRST STEP  

36. The first step for the adjudicating authority is to ascertain  

whether the information is private and whether the information  

relating the concerned party has a reasonable expectation of  

privacy. In Murray v. Express Newspaper plc, [2009] Ch 481, it  

was held as under   

“As we see it, the question whether there is a  reasonable expectation of privacy is a broad one,  which takes account of all the circumstances of the  case. They include the attributes of the claimant,  the nature of the activity in which the claimant was  engaged, the place at which it was happening, the  nature and purpose of the intrusion, the absence  of consent and whether it was known or could be  inferred, the effect on the claimant and the  circumstances in which and the purposes for which  the information came into the hands of the  publisher.”  

24    

37. From the aforesaid discussion we can note that there are certain  

factors which needs to be considered before concluding whether  

there was a reasonable expectation of privacy of the person  

concerned. These non-exhaustive factors are;   

1.  The nature of information.  

2.  Impact on private life.  

3.  Improper conduct.  

4.  Criminality  

5.  Place where the activity occurred or the information  was found.  

6.  Attributes of claimants such as being a public figure, a  minor etc and their reputation.  

7.  Absence of consent.  

8.  Circumstances and purposes for which the information  came into the hands of the publishers.  

9.  Effect on the claimant.  

10.      Intrusion’s nature and purpose.  

  These non-exhaustive factors are to be considered in order to  

come to a conclusion whether the information sought is private or  

does the persons has a reasonable expectations of privacy. In  

certain cases we may conclude that there could be certain  

information which are inherently private and are presumptively

25    

protected under the privacy rights. These informations include  

gender, age and sexual preferences etc. These instances need to  

be kept in mind while assessing the first requirement under the  

aforesaid test.  

38.  If the information is strictly covered under the aforesaid  

formulation, then the person is exempted from the right to  

information unless ‘the public interest test’ requires to trump the  

same.  

SECOND STEP  

39.  Having ascertained whether the information is private or not, a  

judge is required to adopt a balancing test to note whether the  

public interest justifies discloser of such information under  

Section 8(1)(j) of the RTI Act. The term ‘larger public interest’  

needs to be understood in light of the above discussion which  

points that a ‘balancing test’ needs to be incorporated to see the  

appropriateness of discloser. There are certain basic principles  

which we need to keep in mind while balancing the rights which  

are relevant herein.  

26    

40.  That the right to information and right to privacy are at an equal  

footing. There is no requirement to take an a priori view that one  

right trumps other. Although there are American cases, which  

have taken the view that the freedom of speech and expression  

trumps all other rights in every case. However, in India we cannot  

accord any such priority to the rights.   

41. The contextual balancing involves ‘proportionality test’. [See K  

S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is  

to see whether the release of information would be necessary,  

depends on the information seeker showing the ‘pressing social  

need’ or ‘compelling requirement for upholding the democratic  

values’. We can easily conclude that the exemption of public  

interest as occurring under Section 8(1)(j) requires a balancing  

test to be adopted. We need to distinguish two separate concepts  

i.e. “interest of the public” and “something in the public interest.”  

Therefore, the material distinction between the aforesaid concepts  

concern those matters which affect political, moral and material  

welfare of the public need to be distinguished from those for  

public entertainment, curiosity or amusement. Under Section  

8(1)(j) of the RTI Act requires us to hold that only the former is an

27    

exception to the exemption. Although we must note that the  

majority opinion in K S Puttaswamy (supra) has held that the  

data privacy is part of the right to privacy, however, we need to  

note that the concept of data protection is still developing  

[refer Google Spain v. AEPD, C/131/12; Bavarian  

Lager v Commission, [2007] ECR II-4523]. As we are not  

concerned with the aforesaid aspects, we need not indulge any  

more than to state that there is an urgent requirement for  

integrating the principles of data protection into the right to  

information jurisprudence.  

42.  Coming to the aspect of transparency, judicial independence and  

the RTI Act, we need to note that there needs to be a balance  

between the three equally important concepts. The whole bulwark  

of preserving our Constitution, is trusted upon judiciary, when  

other branches have not been able to do so. As a shield, the  

judicial independence is the basis with which judiciary has  

maintained its trust reposed by the citizens. In light of the same,  

the judiciary needs to be protected from attempts to breach its  

independence. Such interference requires calibration of

28    

appropriate amount of transparency in consonance with judicial  

independence.  

43.  It must be kept in the mind that the transparency cannot be  

allowed to run to its absolute, considering the fact that efficiency  

is equally important principle to be taken into fold. We may note  

that right to information should not be allowed to be used as a  

tool of surveillance to scuttle effective functioning of judiciary.  

While applying the second step the concerned authority needs to  

balance these considerations as well.  

44. In line with the aforesaid discussion, we need to note that  

following non-exhaustive considerations needs to be considered  

while assessing the ‘public interest’ under Section 8 of the RTI  

Act-  

a.  Nature and content of the information  

b.  Consequences of non-disclosure; dangers and benefits  to public  

c.  Type of confidential obligation.  

d.  Beliefs of the confidant; reasonable suspicion  

e.  Party to whom information is disclosed

29    

f.    Manner in which information acquired  

g.  Public and private interests  

h. Freedom of expression and proportionality.  

45. Having ascertained the test which is required to be applied while  

considering the exemption under Section 8(1)(j) of the RTI Act, I  

may note that there is no requirement to elaborate on the factual  

nuances of the cases presented before us. Accordingly, I concur  

with the conclusions reached by the majority.   

..........................J.  

                                                           (N.V. Ramana)  

NEW DELHI;  November 13, 2019.  

1    

  REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

Civil Appeal No. 10044 of 2010     

Central Public Information Officer,      …Appellant  Supreme Court of India                                                          Versus    Subhash Chandra Agarwal                             …Respondent  

WITH     

Civil Appeal No. 10045 of 2010          

AND WITH        

Civil Appeal No. 2683 of 2010                     

2    

J U D G M E N T          

Dr Dhananjaya Y Chandrachud, J        

INDEX    

A Introduction  

B Reference to the Constitution Bench  

C Submissions of Counsel  

D Relevant statutory provisions  

E S P Gupta, candour and class immunity  

F Judicial independence  

F.1 Judicial accountability   

G Fiduciary relationship  

H The right to privacy and the right to know  

I Conclusion   

J Directions

PART A   

3    

A Introduction  

 The backdrop   

1. This batch of three civil appeals 1  raises questions of constitutional  

importance bearing on the right to know, the right to privacy and the  

transparency, accountability and independence of the judiciary.  

 2. In the first of the appeals

2  (―the appointments case‖), the Central Public  

Information Officer 3  of the Supreme Court of India challenges an order dated 24  

November 2009 of the Central Information Commission 4 . The order directs the  

CPIO to provide information sought by the respondent in application under the  

Right to Information Act 2005 5 . The respondent, in an application dated 23  

January 2009 sought copies of the correspondence exchanged between  

constitutional authorities together with file notings, relating to the appointment of  

Justice H L Dattu, Justice A K Ganguly and Justice R M Lodha (superseding the  

seniority of Justice A P Shah, Justice A K Patnaik and Justice V K Gupta). The  

appellant declined to provide the information sought in the application on the  

ground that the Registry of the Supreme Court does not deal with matters  

pertaining to the appointment of judges, and appointments of judges to the higher  

judiciary are made by the President of India, according to procedure prescribed  

by law. The first appellate authority rejected the appeal on the ground that the  

information sought by the respondent was not covered within the ambit of  

                                                 1  Civil Appeal no 10044/2010, Civil Appeal no 10045/2010 and Civil Appeal no 2683/2010  

2  Civil Appeal no 10044 of 2010  

3  ―CPIO‖  

4  ―CIC‖  

5  ―RTI Act‖

PART A   

4    

Section 2 (f) 6  and (j)

7  of the RTI Act. The respondent preferred a second appeal  

before the CIC. On 24 November 2009, the CIC directed the appellant to provide  

the information sought by the respondent. The appellant has moved this Court  

under Article 136 of the Constitution challenging the decision of the CIC ordering  

disclosure.  

 3. In the second of the three appeals

8  (―the assets case‖), the appellant  

challenges a judgment dated 12 January, 2010 of a Full Bench of the Delhi High  

Court upholding the orders of the Single Judge 9  dated 2 September 2009 and the  

CIC dated 6 January 2009 10

directing the disclosure of information. On 10  

November 2007, the respondent filed an application seeking a copy of the  

resolution dated 7 May 1997 of the judges of the Supreme Court requiring every  

sitting judge, and all future judges upon assuming office, to make a declaration of  

assets in the form of real estate or investments held in their names or the names  

of their spouses or any person dependant on them to the Chief Justice of the  

Court within a reasonable time. The respondent also requested ―information on  

any such declaration of assets etc to respective Chief Justices in State‖. While  

the appellant provided a copy of the resolution dated 7 May 1997, the CPIO  

declined (by an order dated 30 November 2007) to provide information  

concerning the declaration of assets by judges of the Supreme Court and the  

                                                 6  Section 2(f) – ―Information‖ means 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.  7  Section 2(j) – ―Right to Information‖ means the right to information accessible under this 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.  8  Civil Appeal no 2683 of 2010  

9  The CPIO, Supreme Court of India v Subhash Chandra Agarwal & Anr, Writ Petition (C) 288/2009  

10  Appeal no CIC/WB/A/2008/00426

PART A   

5    

High Court on the ground that the Registry of the Supreme Court did not hold it.  

The information pertaining to the declaration of assets by High Court judges, the  

appellant stated, were in the possession of the Chief Justices of the High Courts.  

The first appellate authority remanded the matter back to the appellant for  

transfer of the RTI application to the High Courts under Section 6(3) 11

. The  

appellant declined to transfer the RTI application to the CPIOs of the High Courts  

on the ground that when the respondent filed the RTI application, he was aware  

that the information with respect to the declaration of assets by the judges of the  

High Court was available with the High Courts which formed distinct public  

authorities. On 6 January 2009, the CIC held in the second appeal that the  

information concerning the judges of the Supreme Court was available with its  

Registry and that the appellant represented the Supreme Court as a public  

authority. Therefore, the appellant was held to be obliged to provide the  

information under the RTI Act unless, the disclosure of information was  

exempted by law. The CIC held that the information sought by the respondent  

was not covered under the exemptions in clauses (e) or (j) of Section 8(1) 12

and  

directed the appellant to provide the  information sought by the respondent.  The  

                                                 11

Section 6 (3) - Where an application is made to a public authority requesting for an  

information,—  (i) which is held by another public authority; or  (ii) the subject matter of which is more closely connected with the  functions of another public authority,  the public authority, to which such application is made, shall transfer the application  or such part of it as may be appropriate to that other public authority and inform the  applicant immediately about such transfer:  Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but  in no case later than five days from the date of receipt of the application.   12

Section 8 - Exemption from disclosure of information.   

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—   (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;   (j) information which relates 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 unless the Central  Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is  satisfied that the larger public interest justifies the disclosure of such information.

PART A   

6    

appellant instituted a writ petition 13

before the Delhi High Court. On 2 September  

2009, a Single Judge of the High Court dismissed the petition holding, inter alia,  

that the declaration of assets furnished by the judges of the Supreme Court to  

the Chief Justice of India and its contents constituted ―information‖, subject to the  

provisions of the RTI Act. The Single Judge held that: (i) judges of the Supreme  

Court hold an independent office; (ii) there exist no hierarchies in judicial  

functions; (iii) the Chief Justice of India does not hold such ―information‖ in a  

fiduciary capacity; and (iv) the information sought by the respondent was not  

exempt under Section 8 (1)(e). In a Letters Patent Appeal, the Full Bench of the  

Delhi High Court upheld the decision of the Single Judge. The appellant has  

challenged the decision of the Full Bench.    

 4. In the third civil appeal (―the undue influence case‖), the appellant has   

challenged the order of the CIC dated 24 November 2009 14

, by which the  

appellant was directed to provide information sought by the respondent in his RTI  

application. On 6 July, 2009, the respondent filed an RTI application on the basis  

of a newspaper report seeking the complete correspondence exchanged with the  

Chief Justice of India in regards to a Union Minister having allegedly approached  

Justice R Raghupati of the Madras High Court, through a lawyer to influence a  

judicial decision. The application sought a disclosure of the  name of the Union  

Minister and the lawyer, and of the steps taken against them for approaching the  

judge of the Madras High Court for influencing the judicial decision. On 4 August  

2009, the appellant rejected the request on the ground that no such information  

was available with the Registry of the Supreme Court. The first appellate

                                                 13

Writ Petition (C) 288/2009  14

Appeal no CICWB/A/2009/000859

PART B   

7    

authority rejected the appeal. The second appeal before the CIC led to a  

direction on 24 November 2009, to provide the information sought, except  

information sought in questions 7 and 8   on recourse taken to the in-house  

procedure. The appellant approached this Court challenging the decision of the  

CIC.  

B Reference to the Constitution Bench   

 5. On 26 November 2010, a two judge Bench of this Court directed the  

Registry to place the present batch of appeals before the Chief Justice of India  

for constituting a Bench of appropriate strength and framed the following  

substantial questions of law:  

―1. Whether the concept of independence of judiciary requires  

and demands the prohibition of furnishing of the information  

sought? Whether the information sought for amounts to  

interference in the functioning of the judiciary?   

2. Whether the information sought for cannot be furnished to  

avoid any erosion in the credibility of the decisions and to  

ensure a free and frank expression of honest opinion by all  

the constitutional functionaries, which is essential for effective  

consultation and for taking the right decision?   

3. Whether the information sought for is exempt under  

Section 8(1)(j) of the Right to Information Act?‖  

   6. On 17 August 2016, a three judge Bench referred these civil appeals to a  

Constitution Bench for adjudication.  

PART C  

8    

C Submissions of Counsel   

 7. Mr K K Venugopal, Attorney General for India appearing on behalf of the  

appellant made the following submissions:  

 (i) The present case is not covered by the decision of this Court in S P Gupta  

v Union of India 15

, which is based on distinguishable facts. The decision  

in S P Gupta does not consider the relationship between the restrictions  

on the right to know and the restrictions existing under Article 19 (2) of the  

Constitution. Once Article 19(1)(a) is attracted, the restrictions under  

Article 19 (2) become applicable. The RTI Act came into force in 2005 and  

lists out the rights and restrictions on the right to information. The  

provisions of the RTI Act must be construed in a manner which makes it  

consistent with constitutional values including the independence of the  

judiciary;    

(ii) Information of which disclosure is sought under Section 2 (f) of the RTI  

Act, includes only that information which is in a physical form and which is  

already in existence and accessible to a public authority under law. The  

judge can decide to disclose assets voluntarily and place relevant  

information in the public domain. A third party cannot seek information on  

the disclosure of assets of a judge which does not exist in the public  

domain;   

(iii) The decision of this court in S P Gupta is based on a factually distinct  

situation where disclosure of correspondence regarding the non-

                                                 15

1981 Supp SCC 87

PART C  

9    

appointment of an additional judge was ordered on the ground that the  

judge was a party to the proceeding before the Court. Further, the decision  

established a restriction on the disclosure of information to third parties;  

(iv) The correspondence and file notings with respect to recommendations for  

appointments of judges to the higher judiciary falls under a ―class of  

information‖ that is highly confidential. Disclosure will result in damage to  

the institution and adversely affect the independence of the judiciary;  

(v) The process of concurrence by the members of the Collegium requires  

free and frank discussion on the character, integrity and competence of  

prospective appointee judges in order to ensure that the most suitable  

judges are appointed. It is in the public interest to uphold candour in  

matters of appointment and transfer of judges and to avoid unnecessary  

litigative debate by third parties. Disclosure of such information would  

undermine the independence of the judiciary and adversely impact the  

candour or uninhibited expression of views by the Collegium.  

Independence of judiciary is not limited to independence from executive  

influence. It is multi-dimensional and also independence from other  

pressure and prejudices including fearlessness from power centres,  

economic or political, and freedom from prejudices acquired and nourished  

by the class to which judges belong (C Ravichandran Iyer v Justice A M  

Bhattacharjee 16

);  

                                                 16

(1995) 5 SCC 457

PART C  

10    

(vi) Information sought regarding the assets and liabilities of judges and  

correspondence and file notings relating to character, conduct, integrity  

and competence of a judge includes certain ―personal information‖ and is  

hence, exempt under Section 8 (1)(j) of the RTI Act;  

(vii) The correspondence and file notings that form the basis of the decision  

under Article 124 (2) of the Constitution includes information received from  

third parties in a fiduciary capacity. The information is held by the Chief  

Justice of India as a result of disclosure by third parties who give the  

information in confidence, complete good faith, integrity and fidelity.  

Therefore, disclosure of such information is exempt under Section 8 (1)(e);  

(viii) The disclosure of correspondence relating to conduct, character, integrity  

and competence of a judge may cause irreparable loss to their reputation,  

violate their right to privacy and adversely affect their functioning. There is  

also no remedy available to a judge for the comments made in the  

appointment process as the Chief Justice of India along with other judges  

are protected from civil/criminal proceedings under Section 3(1) of the  

Judges (Protection) Act 1985. While regulating the disclosure of  

information, the Supreme Court is required to balance the right of an  

individual to reputation and privacy under Article 21 and the right to  

information of third-party parties under Article 19(1)(a). The doctrine of  

proportionality has to be applied to resolve the conflict between the two  

rights and the right to reputation and privacy of a judge should prevail over  

the right to information of third parties; and

PART C  

11    

(ix) Legislation and rules with respect to disclosure of assets and liabilities of  

public servants do not provide for placing such information in the public  

domain or granting third party access to such information. The judiciary is  

seeking self-regulation by providing a voluntary disclosure of assets and  

liabilities and it is up to the Supreme Court to disclose such information.  

No third party can seek information which is not in the public domain.  

8. On the contrary, Mr Prashant Bhushan, learned Counsel appearing on  

behalf of the respondent made the following submissions:  

 (i) The observations made by the seven judge Bench of this Court in S P  

Gupta are binding on the present Bench. Even though certain aspects of  

the judgment have been overruled in Supreme Court Advocates-on-

Record Assn v Union of India 17

, the decision of this Court vis-à-vis the  

disclosure of correspondence in respect of the appointment process  

remains unaffected. If S P Gupta has to be overruled, this could be only  

done by a Bench comprising of more than seven judges;  

(ii) This Court has interpreted Article 19(1)(a) to include the right to  

information under the ambit of free speech and expression even before the  

RTI Act was enacted by the Parliament. Disclosure of the information  

sought in the present batch of cases is an essential part of the freedom of  

speech and expression guaranteed in Article 19(1)(a) and involves a  

significant public interest;  

(iii) Free flow of information to citizens is necessary, particularly in matters  

which form part of public administration for ensuring good governance and  

                                                 17

(1993) 4 SCC 441

PART C  

12    

transparency. The fundamental right of free speech and expression  

includes every citizen‘s right to know about assets, criminal antecedents  

and educational backgrounds of candidates contesting for public office. To  

cover public acts with a veil of secrecy is not in the interest of the public  

and may lead to oppression and abuse by, and distrust of, public  

functionaries. The lack of transparency, accountability and objectivity in  

the collegium system does not enhance the credibility of the institution.  

Disclosure of the information sought, on the other hand, would promote  

transparency and prevent undue influence over the judiciary;  

(iv) The claim of class privilege or class immunity to the correspondence  

between the Chief Justice of India and the Law Minister was rejected in S  

P Gupta. After the enactment of the RTI Act, information otherwise held by  

a public authority cannot be excluded from disclosure unless it falls under  

the exemptions laid down in Section 8 or relates to an institution excluded  

under Section 24 18  

of the RTI Act. When information regarding a judge is  

                                                 18

Section 24 - Act not to apply to certain organisations   

(1)Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second  Schedule, being organisations established by the Central Government or any information furnished by such  organisations to that Government: Provided that the information pertaining to the allegations of corruption and  human rights violations shall not be excluded under this sub-section: Provided further that in the case of  information sought for is in respect of allegations of violation of human rights, the information shall only be  provided after the approval of the Central Information Commission, and notwithstanding anything contained in  section 7, such information shall be provided within forty-five days from the date of the receipt of request.   (2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein  any other intelligence or security organisation established by that Government or omitting therefrom any  organisation already specified therein and on the publication of such notification, such organisation shall be  deemed to be included in or, as the case may be, omitted from the Schedule.  (3) Every notification issued under sub-section (2) shall be laid before each House of Parliament.   (4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations  established by the State Government, as that Government may, from time to time, by notification in the Official  Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights  violations shall not be excluded under this sub-section:    Provided further that in the case of information sought for is in respect of allegations of violation of human rights,  the information shall only be provided after the approval of the State Information Commission and,  notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the  date of the receipt of request. (5) Every notification issued under sub-section (4) shall be laid before the State  Legislature.    

PART C  

13    

provided to the Chief Justice of India, it constitutes information held by a  

public authority and thus, would be amenable to the provisions of the RTI  

Act;   

(v) In S P Gupta, the argument that disclosure of correspondence between  

constitutional functionaries in relation to the appointment process of judges  

would preclude the free and frank expression of opinions was rejected.  

During the drafting of the Right to Information Bill, the argument that  

disclosure will deter consultees from expressing themselves freely and  

fairly and that the dignity and reputation of people would be tarnished was  

rejected. The argument of candour does not fall under any of the  

exemptions under the RTI Act and therefore, this  disclosure of information  

cannot be excluded from the purview of the RTI Act;  

(vi) The disclosure of assets of judges is warranted in the larger public  

interest. It cannot be argued that information regarding the assets of  

judges, who are public functionaries, is personal information having no  

relationship with any public activity or interest. Hence, the information  

sought is not exempt under Section 8 (1)(j);  

(vii) There exists no fiduciary relationship between those who are vested with  

the responsibility of determining whether an appointee is suitable for  

elevation as a judge and the appointee herself. The duty of a public  

servant is to act in the interest of the public and not in the interest of  

another public servant. The entire process of consultation and making  

information available to the members of the collegium regarding  

credentials and the suitability of the appointee is a matter of public interest.

PART D  

14    

Further, when judges act in their official capacity in compliance with the  

1997 resolution and disclose their assets, it cannot be said that the Chief  

Justice of India acts in a fiduciary capacity for the judges. The Chief  

Justice of India and other members of the collegium discharge official  

duties vested in them by the law and the information sought is not exempt  

under Section 8(1)(e). Even if some part of the information is personal,  

that part can be severed after due examination on a case to case basis  

under Section 10; and   

(viii) The argument that the independence of the judiciary will be affected  

prejudicially due to the disclosure of information is misconceived. The  

independence of the judiciary means independence from the legislature  

and the executive and not from the public. It is a constitutional and legal  

right of the respondent to access information and identify the persons who  

have attempted to compromise the functioning of the judiciary. Disclosure  

of such information is essential for the citizenry to maintain their faith in the  

independence of the judiciary.  

9. The rival submissions fall for our consideration.  

D Relevant statutory provisions  

10. For the purpose of the present dispute it is necessary to analyse the  

relevant provisions contained in the statutory framework of the RTI Act. Sections  

2 and 3 read:  

 ―2. Definitions. – In this Act, unless the context otherwise  requires, -  

PART D  

15    

…  (e) ―competent authority‖ means –   

(i) the Speaker in the case of the House of People or the  Legislative Assembly of a State or a Union territory having  such Assembly and the Chairman in the case of the  Council of States of a Legislative Council of States;  (ii) the Chief Justice of India in the case of the Supreme  Court;  (iii) the Chief Justices of the High Court in the case of a  High Court;  (iv) the President or the Governor, as the case may be, in  the case of other authorities established or constituted by  or under the Constitution;  (v) the administrator appointed under article 239 of the  Constitution;  

 (f) ―information‖ means 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 law for the time  being in force.  …    (h) ―public authority‖ means 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 finds provided by the appropriate  Government;   …    (j) ―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 rights 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;  …  

 3. Right to information. – Subject to the provisions of this Act,  all citizens shall have the right to information.  

PART D  

16    

11. Both the terms ―public authority‖ and ―information‖ have been broadly  

defined. Section 2(j) which defines the ―right to information‖ stipulates that the  

information accessible under the RTI Act is held by or under the control of any  

―public authority‖, which is defined in Section 2(h) of the RTI Act. Section 3 of the  

Act confers on all citizens the substantive right to seek information covered within  

the ambit of the Act, subject to its provisions. The remaining scheme of the RTI  

Act operationalises the substantive right conferred by Section 3. Section 4  

imposes a statutory duty on public authorities to create and maintain a record of  

the activities stipulated therein to ensure that these records are available to  

applicants. Section 6 empowers an individual to file a request with the relevant  

Central Public Information Officer (―CPIO‖) or State Public Information Officer  

(―SPIO‖) or their corresponding Assistant Officers (collectively hereafter  

―Information Officer‖).  Section 7 empowers the Information Officer to either  

provide the information sought or reject the application for reasons set out in  

Section 8 and 9.    

 12. For an authority to be covered under the RTI Act, it must be a ―public  

authority‖ as defined under Section 2(h) of the Act. ―Public authority‖ is defined  

as any authority or body or institution or self-government which falls within the  

ambit of any of the enumerated provisions in that sub-section. The Supreme  

Court of India is established by virtue of Article 124(1) of the Constitution of India.  

Similarly, Article 214 of the Constitution stipulates that there shall be a High  

Court for each state. In terms of Section 2(h)(a), a body or an institution which is  

established or constituted by or under the Constitution would be a public  

authority. But virtue of being established by the Constitution, the Supreme Court

PART D  

17    

and the High Courts would fall within the ambit of ―public authority‖ in Section  

2(h) of the Act.   

 13. Section 2(e)(ii) expressly stipulates that the competent authority means  

the Chief Justice of India in the case of the Supreme Court and Section 2(e)(iii)  

stipulates that the competent authority in the case of a high Court is the Chief  

Justice of that Court. Significantly, Article 124 of the Constitution of India  

stipulates that there shall be a Supreme Court of India consisting of a Chief  

Justice of India and other judges. The office of the Chief Justice of India is not  

distinct from the Supreme Court of India. The Supreme Court is constituted by  

virtue of the Constitution and consists of judges, of which the Chief Justice is the  

head. This however, does not mean that the Supreme Court and the Chief  

Justice are two separate ‗public authorities‘ within the RTI Act.   

 14. The term information under Section 2(f) has been defined broadly to  

include ―any material in any form‖. The word ‗including‘ denotes the intention of  

the Parliament to provide a non-exhaustive list of materials that fall within the  

ambit of the sub-clause. The sub-clause includes information relating to any  

private body ―which can be accessed by a public authority under any law for the  

time being in force‖. The import of this phrase is that information relating to a  

third party is included only where the requisite pre-conditions of any law in force  

to access such information is satisfied. The right sought to be exercised and  

information asked for should fall within the scope of ‗information‘ and ‗right to  

information‘ as defined under the Act. The information sought must be in  

existence and must be held or under the control of the public authority.

PART D  

18    

15. Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything  

contained in this Act‖. The import of this phrase is that clause (1) of Section 8  

carves out an exception to the general obligation to disclose under the RTI Act.  

Where the conditions set out in any of the sub-clauses to clause (1) of Section 8  

are satisfied, the Information Officer is under no obligation to provide information  

to the applicant. The scope of the exception and its applicability to the present  

dispute shall be discussed in the course of the judgment.   

 16. Section 22

19  contains a non-obstance clause and stipulates that the RTI  

Act has an overriding effect over laws. The import of this provision is to impart  

priority to the salient objectives of the Act and ensure that where information is  

held by or is under the control of a public authority, such information must be  

furnished to the applicant notwithstanding any prohibition in any other law in  

force at that time. It is pertinent to state that Section 22 does not obviate legal  

restrictions that apply to a public authority to the access to any information which  

is clarified by the use of the phrase ―which can be accessed by a public authority  

under any law for the time being in force‖ in Section 2(f).  

                                                 19

22. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything  

inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time  being in force or in any instrument having effect by virtue of any law other than this Act.   

PART E  

19    

E S P Gupta, candour and class immunity  

17. Relevant to the present controversy, is the question whether the decision  

of this Court in S P Gupta v Union of India 20

is a binding precedent on the  

issues raised. Mr Prashant Bhushan, learned counsel appearing on behalf of the  

respondent contended that the points for determination that arise in the present  

case have been answered by the seven judge Bench in S P Gupta where this  

Court ordered the disclosure of the correspondence between the Chief Justice of  

India, the Chief Justice of Delhi and the Law Minister which concerned the non-

appointment of an additional judge for a full term of two years. Counsel   

contended that this Court held that the public interest in disclosure outweighed  

the potential harm resulting from disclosure and that a free and open democratic  

society mandated the disclosure of correspondences concerning the appointment  

process of judges.  

 18. Opposing the submission, Mr K K Venugopal, learned Attorney General for  

India appearing on behalf of the appellant, urged that the decision of this Court in  

S P Gupta was based on a factually distinguishable situation. The Court in that  

case was concerned with the disclosure of the correspondence concerning the  

appointment process for the purpose of adjudicating the case before it. Moreover  

the judge whose appointment was in issue was a party to the case. The court did  

not address the potential harm to public interest by the disclosure of  

correspondence in all circumstances. The Attorney General contended that the

                                                 20

1981 Supp SCC 87

PART E  

20    

decision assessed the right to know in a passing observation and contrary to the  

submission of the respondent, it established a restriction on the disclosure of  

personal information.   

 19. In S P Gupta, this Court was concerned with two issues: (i) the initial  

appointment of additional judges and their reappointment on the expiry of their  

terms; and (ii) the transfer of High Court judges and the Chief Justices of the High  

Courts. Among the issues involved in the proceedings, one concerned the  

disclosure of the correspondence exchanged between the Chief Justice of India,  

the Chief Justice of Delhi and the Law Minister concerning the decision to grant  

an extension in the tenure to Justice O N Vohra and Justice S N Kumar as  

additional judges of the Delhi High Court by a period of three months. It was  

contended that Justice O N Vohra should have been appointed as a permanent  

judge and that Justice S N Kumar should have been reappointed as an additional  

judge for the complete tenure of two years upon the expiry of their initial tenure.  

During the course of the proceedings, their terms expired and a decision was  

communicated by the Central Government to not renew their terms. An  

application was filed to contend that the withholding of the re-appointment was  

mala fide and unconstitutional. Both former judges were impleaded as  

respondents. While Justice O N Vohra did not appear in the proceedings, Justice  

S N Kumar appeared through counsel and contended that the decision of the  

Central Government to not reappoint him for a complete term of two years was  

vitiated since it was reached without full and effective consultation with the Chief  

Justice of India.   

PART E  

21    

 20. The government resisted the disclosure of the correspondence and urged  

that as it formed a part of the advice tendered by the Council of Ministers to the  

President of India, the court was precluded from ordering disclosure by virtue of  

Article 74(2) 21

of the Constitution. It was also contended that the correspondence  

related to the ‗affairs of the state‘ and its disclosure was precluded by virtue of  

Section 123 22

of the Indian Evidence Act 1872.   

 21. An interim order dated 16 October 1981 ordered the disclosure of the  

correspondence to the Court. In its final judgment dated 30 December 1981, the  

Court, by a majority, rejected the contention of the Central Government and  

upheld the disclosure of the correspondence exchanged between the Chief  

Justice of India, the Chief Justice of Delhi and the Law Minister concerning the  

decision to not continue Justice S N Kumar as an additional Judge of the Delhi  

High Court for another full term.   

 22. Mr K K Venugopal, learned Attorney General for the Union of India sought  

to distinguish the decision in S P Gupta by contending that the order of  

disclosure was made in the specific context of Sections 123 and 162 23

of the  

Indian Evidence Act and in respect of judicial proceedings to which Justice S N  

Kumar was a party. Hence he urged that the decision does not establish the duty  

to disclose the correspondence in all circumstances. Justice S N Kumar had  

                                                 21

―The question whether any, and if so what, advice was tendered by Ministers to the President shall not be  inquired into in any court.‖  22

―123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from  

unpublished official records relating to any affairs of State, except with the permission of the officer at the head of  the department concerned, who shall give or withhold such permission as he thinks fit.‖  23

―162. Production of documents.—A witness summoned to produce a document shall, if it is in his possession  

or power, bring it to court, notwithstanding any objection which there may be to its production or to its  admissibility. The validity of any such objection shall be decided on by the court.  

The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to  enable it to determine on its admissibility….‖

PART E  

22    

actively participated in the proceedings before the Court and information  

regarding his non-appointment was sought during the course of the proceedings  

to adjudicate upon the contention that there was no effective consultation  

between the Central Government and the Chief Justice of India. The balancing of  

interests in that case was between the public harm resulting from disclosure and  

the public interest in the administration of justice (by securing complete justice for  

the litigant before the court) which, it is urged, is materially different from the  

present case.   

 23. In S P Gupta, this Court, by an interim order directed the disclosure of the  

file notings only in respect of the non-renewal of the term of Justice S N Kumar.  

Justice O N Vohra had chosen to not appear in or participate in the proceedings  

before the court. As no relief was sought by the latter before the Court, the Court  

held that the correspondence pertaining to him was not relevant to the  

controversy. Consequently, the Union of India was not required to disclose it.  

Justice PN Bhagwati (as he then was) noted the comparably distinct role of  

Justice S N Kumar in the proceedings in the following terms:  

―58. That takes us to the case of S.N. Kumar which stands on  

a totally different footing, because S.N. Kumar has appeared  

in the writ petition, filed an affidavit supporting the writ petition  

and contested, bitterly and vehemently, the decision of the  

Central Government not to continue him as an Additional  

Judge for a further term. Since S.N. Kumar has claimed relief  

from the Court in regard to his continuance as an Additional  

Judge, an issue is squarely joined between the petitioners  

and S.N. Kumar on the one hand and the Union of India on  

the other which requires to be determined for the purpose of  

deciding whether relief as claimed in the writ petition can be  

granted to S.N. Kumar.‖  

PART E  

23    

24. In its final judgment, the Court first rejected the contention that the  

correspondence formed part of the advice tendered to the President by the  

Council of Ministers. The Court noted that while the advice tendered by the  

Council of Ministers to the President is information protected under Article 74(2),  

the principal question was whether the correspondence between the Chief  

Justice of India, Chief Justice of the Delhi High Court and the Law Minister  

formed part of the advice tendered by the Council of Ministers to the President so  

as to preclude its disclosure by virtue of Article 74(2). The Court rejected this  

contention and held that any advice tendered by the Council of Ministers would  

be based on the views expressed by the two Chief Justices and their views would  

not form part of the advice tendered. In this view, the material on the basis of  

which the Council of Ministers formed a view and subsequently tendered the  

same to the President would not constitute advice protected under Article 74(2).  

Justice Bhagwati held:  

―61…The advice is given by the Council of  

Ministers after consultation with the Chief Justice of the High  

Court and the Chief Justice of India. The two Chief Justices  

are consulted on ―full and identical facts‖ and their views are  

obtained and it is after considering those views that the  

Council of Ministers arrives at its decision and tenders its  

advice to the President. The views expressed by the two  

Chief Justices precede the formation of the advice and merely  

because they are referred to in the advice which is ultimately  

tendered by the Council of Ministers, they do not necessarily  

become part of the advice. What is protected against  

disclosure under clause (2) or Article 74 is only the advice  

tendered by the Council of Ministers…But the material on  

which the reasoning of the Council of Ministers is based and  

the advice is given cannot be said to form part of the advice.‖  

25. The Court then proceeded to the claim against disclosure under Section  

123 of the Indian Evidence Act. It held that where protection from disclosure is

PART E  

24    

sought under Section 123 on the ground that the correspondence relates to the  

affairs of the state, the court, by virtue of Section 162, is called upon to carry out  

a balancing task between ―the detriment to the public interest on the  

administrative or executive side which would result from the disclosure of the  

document against the detriment to the public interest on the judicial side which  

would result from non-disclosure of the document though relevant to the  

proceeding‖. It held that the court balances the competing aspects of public  

interest and decides which should prevail in the particular case before it. A claim  

for non-disclosure, in this view, would be sustainable where the disclosure of the  

document would be injurious to the public interest to a greater degree than the  

harm caused to the administration of justice by non-disclosure. Analysing the  

claim in the context of Section 123, Justice Bhagwati noted:  

―73. We have already pointed out that whenever an objection  

to the disclosure of a document under Section 123 is raised,  

two questions fall for the determination of the court, namely,  

whether the document relates to affairs of State and whether  

its disclosure would, in the particular case before the court, be  

injurious to public interest. The court in reaching its  

decision on these two questions has to balance two  

competing aspects of public interest, because the  

document being one relating to affairs of State, its  

disclosure would cause some injury to the interest of the  

State or the proper functioning of the public service and  

on the other hand if it is not disclosed, the nondisclosure  

would thwart the administration of justice by keeping  

back from the court a material document…The court has  

to decide which aspect of the public interest predominates or  

in other words, whether the public interest which requires that  

the document should not be produced, outweighs the public  

interest that a court of justice in performing its function should  

not be denied access to relevant evidence.‖  

(Emphasis supplied)  

PART E  

25    

26. The Court held that the nature of the proceeding in which the disclosure is  

sought, the relevance of the document and the degree of importance that the  

document holds in the litigation are relevant factors in the balancing process. If  

the correspondence alone would furnish evidence relevant to adjudicating the  

dispute before the court, it would be inappropriate to ‗exclude these documents  

which constitute the only evidence, if at all, for establishing this charge, by saying  

that the disclosure of these documents would impair the efficient functioning of  

the judicial institution.‘ The Court held thus:  

―82. …Apart from these documents, there would be no  

other documentary evidence available to the petitioner to  

establish that there was no full and effective consultation  

or that the decision of the Central Government was  

based on irrelevant considerations … It is only through  

these documents that the petitioner can, if at all, hope to  

show that there was no full and effective consultation by the  

Central Government with the Chief Justice of the High Court,  

the State Government and the Chief Justice of India or that  

the decision of the Central Government was mala fide or  

based on irrelevant grounds and therefore, to accord  

immunity against disclosure to these documents would be  

tantamount to summarily throwing out the challenge against  

the discontinuance of the Additional Judge…The harm that  

would be caused to the public interest in justice by the  

non-disclosure of these documents would in the  

circumstances far outweigh the injury which may  

possibly be caused by their disclosure, because the non-

disclosure would almost inevitably result in the dismissal  

of the writ petition and consequent denial of justice even  

though the claim of the petitioner may be true and just.‖  

(Emphasis supplied)  

 The Court held that the potential injury caused by disclosure is outweighed by the  

public interest in justice as the non-disclosure of documents relevant to decide  

the controversy would inevitably lead to the dismissal of the writ petition. On a  

balancing of the above two competing public interests, the Court upheld the

PART E  

26    

interim order requiring the disclosure of the correspondence concerning the  

reappointment in respect of Justice S N Kumar.  

 27. The Court in S P Gupta was required to adjudicate claims resisting  

disclosure of documents in a judicial proceeding based on Sections 123 and 162  

of the Indian Evidence Act. The balancing exercise was between the public harm  

resulting from a disclosure of documents relating to the affairs of the state and  

the public interest in the administration of justice. The public interest in the  

administration of justice pertained to the disposal of the case instituted before the  

court in which the judge was a party. The decision in S P Gupta did not lay down  

a general proposition that the correspondence between constitutional  

functionaries in regard to the appointment process must be disclosed to a  

member of the public in all circumstances. The view that the disclosure was  

ordered in the specific context of a judicial proceeding was also affirmed in the  

separate opinion of Justice E S Venkataramiah (as he then was):  

―1194. It may be necessary to deal with the question of official  

secrecy in greater detail in a case where the constitutionality  

of the claim for official secrecy, independently of the power  

of the Court to order discovery of official documents in  

judicial proceedings, arises for consideration. We are  

concerned in this case with the power of the Court to  

direct the disclosure of official documents in judicial  

proceedings.   

1203… we felt that a decision not to direct disclosure of the  

documents would result in graver public prejudice than the  

decision to direct such disclosure and that the public interest  

involved in the administration of justice should prevail over  

the public interest of the public service in the peculiar  

circumstances of the case.‖  

(Emphasis supplied)  

PART E  

27    

28. Though, the decision in S P Gupta is not a precedent in support of a  

proposition for general disclosure in all circumstances, it is, however, relevant to  

the present dispute for it rejected the contention that: (i) disclosure and candour  

are incompatible; and (ii) such correspondence is entitled to class immunity.   

 Candour  

 29. The Court addressed the contention that the reason for protecting a certain  

class of documents is that they concern decision making at the highest level of  

government and only complete freedom from public gaze will enable freedom of  

expression and candour amongst government functionaries. In this view, public  

scrutiny was contended to adversely affect the ability of the participants in the  

decision-making process to express their opinion in a free and frank manner. The  

Court, however, rejected the contention that candour and frankness justify the  

grant of complete immunity against disclosures. Justice PN Bhagwati (as he then  

was) addressed the argument founded on candour in the following terms:  

―71…The candour argument has also not prevailed with  

judges.  

The candour argument has also not prevailed with Judges  

and jurists in the United States and it is interesting to note  

what Raoul Berger while speaking about the immunity  

claimed by President Nixon against the demand for disclosure  

of the Watergate Tapes, says in his book Executive  

Privilege”: A Constitutional Myth at page 264:  

―Candid interchange‖ is yet another pretext for  

doubtful secrecy. It will not explain Mr. Nixon's  

claim of blanket immunity for members of his  

White House staff on the basis of mere  

membership without more; it will not justify  

Kleindienst's assertion of immunity from  

congressional inquiry for two and one-half  

million federal employees. It is merely  

another testimonial to the greedy  

expansiveness of power, the costs of

PART E  

28    

which patently outweigh its benefits. As  

the latest branch in a line of illegitimate  

succession, it illustrates the excess bred  

by the claim of executive privilege.  

We agree with these learned Judges that the need for  

candour and frankness cannot justify granting of  

complete immunity against disclosure of documents of  

this class, but as pointed out by Gibbs, ACJ in Sankey v.  

Whitlam, it would not be altogether unreal to suppose  

―that in some matters at least communications between  

ministers and servants of the Crown may be more frank  

and candid if those concerned believe that they are  

protected from disclosure‖ because not all Crown  

servants can be expected to be made of ―sterner stuff‖.  

The need for candour and frankness must therefore  

certainly be regarded as a factor to be taken into account  

in determining whether, on balance, the public interest  

lies in favour of disclosure or against it (vide: the  

observations of Lord Denning in Neilson v, Lougharre (1981)  

1 All ER at P. 835.  

…  

81.  It is undoubtedly true that appointment or non-

appointment of a High Court Judge or a Supreme Court  

Judge and transfer of a High Court Judge are extremely  

important matters affecting the quality and efficiency of the  

judicial institution and it is therefore absolutely essential that  

the various constitutional functionaries concerned with these  

matters should be able to freely and frankly express their  

views in regard to these matters…We have no doubt that  

high level constitutional functionaries like the Chief  

Justice of a High Court and the Chief Justice of India  

would not be deterred from performing their  

constitutional duty of expressing their views boldly and  

fearlessly even if they were told that the correspondence  

containing their views might subsequently be  

disclosed…We have already dealt with the argument  

based on the need for candour and frankness and we  

must reject it in its application to the case of holders of  

high constitutional offices like the Chief Justice of a High  

Court and the Chief Justice of India. Be it noted — and of  

this we have no doubt — that our Chief Justices and  

Judges are made of sterner stuff; they have inherited a  

long and ancient tradition of independence and  

impartiality…‖  

(Emphasis supplied)  

PART E  

29    

The Court held that though candour may be a factor in determining what set of  

communications require protection, the measure of protection depends whether,  

on a balance of all competing interests, public interest favours disclosure or  

secrecy. While the Court noted that candour may be a relevant factor to prevent  

disclosure in some circumstances, it expressly rejects its weight as a relevant  

factor when it comes to constitutional functionaries such as the Chief Justice of  

India and the Chief Justices of the High Courts. Constitutional functionaries are  

bound to the oath of their office to discharge their duties in a fair manner in  

accordance with the principles enshrined in the Constitution. It cannot be  

countenanced that public gaze or subsequent disclosure will detract an individual  

from discharging their duty in an effective manner true to the dignity and ethic  

associated with their office. Candour and frankness cannot be the reason to  

preclude disclosures of correspondence between constitutional functionaries  

which concern the appointment process of judges.  

 Class immunity       30. The second argument rejected in S P Gupta and relevant to the present  

case is the contention that the correspondence between ―the Law Minister or  

other high level functionary of the Central Government, the Chief Justice of the  

High Court, the Chief Minister or the Law Minister of the State Government and  

the Chief Justice of India in regard to appointment or non-appointment of a High  

Court Judge or a Supreme Court Judge or transfer of a High Court Judge and the  

notings made by these constitutional functionaries in that behalf‖, belong to a  

protected class of documents. It was contended that the disclosure of these

PART E  

30    

documents would be prejudicial to national interest and the dignity of the  

judiciary. In this view, the court is not required to assess the effects of the  

disclosure of correspondence in a particular case, as all correspondence of such  

nature belongs to a special class which is exempt from disclosure. In this view,  

disclosure is not precluded because of the specific contents of the documents,  

but because of its membership of a certain class of documents that require non-

disclosure.    

31. Justice Bhagwati, with whom five other judges agreed, held that a claim for  

class immunity is an ‗extraordinary claim‘ which is granted as a ‗highly  

exceptional measure‘ as such broad claims are contradictory to and destructive  

of the concept of an open government. He cautioned against blanket immunity  

and lay emphasis on the commitment to an open and transparent government in  

the following terms:  

―80…It is only under the severest compulsion of the  

requirement of public interest that the court may extend  

the immunity to any other class or classes of documents  

and in the context of our commitment to an open  

Government with the concomitant right of the citizen to  

know what is happening in the Government, the court  

should be reluctant to expand the classes of documents  

to which immunity may be granted. The court must on the  

contrary move in the direction of attenuating the protected  

class or classes of documents, because by and large secrecy  

is the badge of an authoritarian Government…‖  

(Emphasis supplied)  

The Court adopted a high standard for the conferral of class immunity which  

would be accorded ―only under the severest compulsion of the requirement of  

public interest‖. With these observations, the Court rejected the contention that

PART E  

31    

correspondence between constitutional functionaries constitutes a class of  

documents exempt from public disclosure:  

―81. …it will be clear that the class of documents consisting of  

the correspondence exchanged between the Law Minister or  

other high level functionary of the Central Government, the  

Chief Justice of the High Court, the State Government and  

the Chief Justice of India in regard to appointment or non-

appointment of a High Court Judge or Supreme Court Judge  

or the transfer of a High Court Judge and the notes made by  

these constitutional functionaries in that behalf cannot be  

regarded as a protected class entitled to immunity against  

disclosure…Confidentiality is not a head of privilege and the  

need for confidentiality of high level communications without  

more cannot sustain a claim for immunity against  

disclosure…‖  

Thus, the disclosure of correspondence between constitutional functionaries was  

held not to fall within a protected category exempt from disclosure. Disclosure is  

precluded only where it is injurious to public interest. Justice Bhagwati clarified  

that the principal consideration before the Court when assessing a claim for the  

non-disclosure of any document is that of public interest:   

―80…Every claim for immunity in respect of a document,  

whatever be the ground on which the immunity is  

claimed and whatever be the nature of the document,  

must stand scrutiny of the court with reference to one and  

only one test, namely, what does public interest require —  

disclosure or non-disclosure…this exercise has to be  

performed in the context of the democratic ideal of an  

open Government.‖  

(Emphasis supplied)    

32. A claim of immunity from disclosure for any document is subject to the  

controlling factor of public interest – a determination informed by the commitment  

to an open and transparent government:  

―67…The concept of an open Government is the direct  

emanation from the right to know which seems to be  

implicit in the right of free speech and expression  

guaranteed under Article 19(1)(a). Therefore, disclosure of

PART E  

32    

information in regard to the functioning of Government must  

be the rule and secrecy an exception justified only where  

the strictest requirement of public interest so demands.  

The approach of the court must be to attenuate the area of  

secrecy as much as possible consistently with the  

requirement of public interest, bearing in mind all the time that  

disclosure also serves an important aspect of public interest.‖  

(Emphasis supplied)  

Justice Bhagwati expanded on the socio-political background that must inform  

any approach in a ―democratic society wedded to the basic values enshrined in  

the Constitution‖. He drew an interconnection between democracy, transparency  

and accountability to hold that a basic postulate of accountability, which is  

fundamental to a democratic government, is that information about the  

government is accessible to the people. He held that participatory democracy is  

premised on the availability of information about the functioning of the  

government. The right to know as a ―pillar of a democratic state‖ imputes positive  

content to democracy and ensures that democracy does not remain static but  

becomes a ―continuous process‖. Thus, a limitation on transparency must be  

supported by more than a claim to confidentiality – it must demonstrate the public  

harm arising from disclosure is greater than the public interest in transparency.  

Justice Bhagwati emphasized transparency in the judicial apparatus in the  

following terms:  

―85…We believe in an open Government and openness in  

Government does not mean openness merely in the  

functioning of the executive arm of the State. The same  

openness must characterise the functioning of the  

judicial apparatus including judicial appointments and  

transfers. Today the process of judicial appointments and  

transfers is shrouded in mystery. The public does not know  

how Judges are selected and appointed or transferred and  

whether any and if so what, principles and norms govern this  

process. The exercise of the power of appointment and  

transfer remains a sacred ritual whose mystery is confined

PART E  

33    

only to a handful of high priests, namely, the Chief Justice of  

the High Court, the Chief Minister of the State, the Law  

Minister of the Central Government and the Chief Justice of  

India in case of appointment or non-appointment of a High  

Court Judge and the Law Minister of the Central Government  

and the Chief Justice of India in case of appointment of a  

Supreme Court Judge or transfer of a High Court Judge. The  

mystique of this process is kept secret and confidential  

between just a few individuals, not more than two or four as  

the case may be, and the possibility cannot therefore be ruled  

out that howsoever highly placed may be these individuals,  

the process may on occasions result in making of wrong  

appointments and transfers and may also at times, though  

fortunately very rare, lend itself to nepotism, political as well  

as personal and even trade-off. We do not see any reason  

why this process of appointment and transfer of Judges  

should be regarded as so sacrosanct that no one should  

be able to pry into it and it should not be protected  

against disclosure at all events and in all circumstances.‖  

(Emphasis supplied)  

   The Court extended its observations on the indispensable nature of openness  

and transparency to the judiciary and held that there is no basis to conclude that  

information concerning appointments must be protected against disclosure ―at all  

events and in all circumstances.‖ The circumstances which justify disclosure on  

one hand and non-disclosure on the other calls into consideration a variety of  

factors which shall be adverted to in the course of the judgment. At this juncture,  

it is sufficient to note the observations of this Court that transparency in the  

functioning of the government serves a cleansing purpose:  

―66….Now, if secrecy were to be observed in the functioning  

of Government and the processes of Government were to be  

kept hidden from public scrutiny, it would tend to promote and  

encourage oppression, corruption and misuse or abuse of  

authority, for it would all be shrouded in the veil of secrecy  

without any public accountability. But if there is an open  

Government with means of information available to the public,  

there would be greater exposure of the functioning of  

Government and it would help to assure the people a better  

and more efficient administration. There can be little doubt  

that exposure to public gaze and scrutiny is one of the surest

PART F  

34    

means of achieving a clean and healthy administration. It has  

been truly said that an open Government is clean  

Government and a powerful safeguard against political and  

administrative aberration and inefficiency.‖  

33. The approach adopted by Justice Bhagwati in S P Gupta, with which we  

are in agreement provides a bright line standard for the Court on the approach  

that must be adopted when answering questions of disclosure in regards to the  

appointment process. The principal consideration will always be that of public  

interest. Any balancing must be carried out in the context of our commitment to  

the transparency and accountability of our institutions. The specific content of  

public interest and its role in the balancing process will be explored in the course  

of the judgment.  

 It was contended by the respondents that the decision of this Court in S P Gupta  

did not deal with the trade-off between disclosure and judicial independence. It is  

necessary to turn to this issue.  

F Judicial independence   

34. Mr K K Venugopal, learned Attorney General for India appearing on behalf  

of the appellant, contended that the disclosure of file notings between  

constitutional functionaries which concern the appointment process will erode the  

independence of the judiciary, which is part of the basic structure of the  

Constitution. It was further contended that disclosures will result in damage to the  

institution and adversely impact the independence of the judiciary. It is necessary  

to briefly analyse the contours of this concept in assessing the contention urged.  

PART F  

35    

35. At the outset, it must be noted that while the term ‗independence of the  

judiciary‘ is not new, its meaning is still imprecise. 24

There may be a debate over  

various facets of judicial independence: for instance, from whom and to do what  

is independence engrafted. Broadly speaking, judicial independence entails the  

ability of judges to adjudicate and decide cases without the fear of retribution.  

Judicial independence and the ability of judges to apply the law freely is crucial to  

the rule of law.  

In his seminal work ―Cornerstone of a Nation‖, Granville Austin states:  

―The [Constituent] Assembly went to great lengths to ensure  

that the courts would be independent, devoting more hours of  

debate to this subject than to almost any other aspect.‖ 25

However, it was the independence of the judiciary, and not its absolute insulation  

that appeared to be the prevailing view of members of the Constituent  

Assembly. 26

This, they believed was necessary for the preservation of inter-

institutional equilibrium. The starting point of the independence of the judiciary is  

constitutional design through the provisions of the Constitution.   

36. Article 124(2) guarantees a security of tenure for judges. Article 124(4)  

stipulates that a Judge of the Supreme Court shall not be removed from their  

office except on the ground of proved misbehaviour or incapacity. The proviso to  

clause (2) of Article 125 guarantees that a judges‘ privileges, allowances and  

rights in respect of leave of absence or pension shall not be varied to their  

                                                 24

MP Jain, Securing the Independence of the Judiciary – The Indian Experience, Indian International and  Comparative Law Review, p. 246  25

Granville Austin, Cornerstone of a Nation (1999), p. 164  26

Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary (2019), p. 17

PART F  

36    

disadvantage after their appointment. Article 129 empowers the Supreme Court  

to punish for the contempt of itself. Article 145 empowers the Supreme Court to  

make rules for regulating generally the practice and procedure of the Court.  

Clauses (1) and (2) of Article 146 stipulate that the Chief Justice of India or such  

other Judge or officer of the Court, as may direct, shall be responsible for the  

appointments and prescription of rules governing the conditions of service of the  

officers and servants of the Supreme Court. Clauses (1) and (2) of Article 229  

assign responsibility to the Chief Justice of a High Court or such other judge or  

officer of the court, as they may direct, in respect of matters of appointment and  

prescription of rules governing the conditions of service of the officers and  

servants of a High Court.  

 37. Article 215 empowers the High Court to punish for contempt of itself.  

Article 217 provides security of tenure. The proviso to clause (2) of Article 221  

stipulates that the allowances of a Judge of a High Court as well as the rights in  

respect of leave of absence or pension shall not be varied to their disadvantage  

after their appointment. Article 227(2) stipulates that each High Court may, by  

virtue of its power of superintendence under Article 227(1): (i) call for returns  

from certain courts and tribunals, (ii) make and issue general rules and prescribe  

forms for regulating the practice and proceedings of such courts; and (iii)  

prescribe forms in which books, entries and accounts shall be kept by the officers  

of any such courts.  

38. These provisions reflect constitutional safeguards to ensure the  

independence of the judiciary and guarantee to it the freedom to function

PART F  

37    

independent of the will of the legislature and executive. Supriya Routh discusses  

these provisions in the following words:  

―[T]he Constitution provides for adequate safeguards in  

furtherance of the independence of the judiciary in a  

democratic republic. It separates the judiciary from the  

executive and prohibits the Parliament and the state  

legislatures from questioning the conduct of judges of the  

higher judiciary in furtherance of their judicial duties...It also  

provides for an arduous and elaborate process for the  

impeachment of judges...‖ 27

The constitutional safeguards for judicial independence were noticed by this  

Court in L Chandra Kumar v Union of India 28

. Chief Justice AM Ahmadi,  

speaking for a seven judge Bench of this Court held:  

―78…While the Constitution confers the power to strike down  

laws upon the High Courts and the Supreme Court, it also  

contains elaborate provisions dealing with the tenure, salaries,  

allowances, retirement age of Judges as well as the  

mechanism for selecting Judges to the superior courts. The  

inclusion of such elaborate provisions appears to have been  

occasioned by the belief that, armed with such provisions, the  

superior courts would be insulated from any executive or  

legislative attempts to interfere with the making of their  

decisions.‖  

Justice Ruma Pal discussed the position in the following words:  

―To ensure freedom from Executive and Legislative control,  

the pay and pension due to judges in the superior courts are  

charged on the Consolidated Funds of the States in the case  

of High Court judges and the Consolidated Fund of India in  

the case of Supreme Court judges and are not subject to the  

vote of the Legislative Assembly in the case of the former or  

Parliament in the latter case. Salaries are specified in the  

Second Schedule to the Constitution and cannot be varied  

without an amendment of the Constitution.‖ 29

                                                 27

Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian  Judiciary, 13 Washington University Global Studies Law Review 321 (2014)  28

(1997) 3 SCC 261  29

―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5 th

V.M. Tarkunde Memorial  Lecture, November 10, 2011.

PART F  

38    

39. The above provisions are indicative of the intention of the founders of the  

Constitution to create a strong foundation to secure the independence of the  

judiciary. This also marked a strong departure from the ‗pleasure doctrine‘ under  

the pre-constitutional colonial framework. Under the Government of India Act,  

1935 the judges of the High Court held office during the pleasure of the Crown.  

Through Article 217(1) of the Constitution of India, tenure at the pleasure of the  

Crown was substituted with a fixed tenure subject to limited exceptions. Justice  

Srikrishna (speaking in non-judicial capacity) elucidates upon the importance of  

this tradition in the following words:  

―A judge of the High Court or Supreme Court is thus not  

removable from office except for proved misbehaviour or  

incapacity during his tenure of office. The very obviation of  

the pleasure doctrine as controlling the tenure of office of a  

judge of the High Court or the Supreme Court is explicit of the  

intention of the founding fathers to insulate the judges of the  

superior courts from the pleasure of the executive. The  

several Articles embedded in the Constitution ensure that a  

judge is fully independent and capable of rendering justice not  

only between citizens and citizens but also between citizens  

and the State, without let, hindrance, or interference by  

anyone in the State polity. This kind of insulation or immunity  

from the pleasure of the executive is essential in view of the  

fact that the Constitution has guaranteed several fundamental  

rights to the citizens and persons and also empowered the  

High Courts and Supreme Court under Article 226 and 32 to  

render justice against acts of the State.‖ 30

It becomes evident that judicial independence is secured through security over  

judicial tenure. The edifice of judicial independence is built on the constitutional  

safeguards to guard against interference by the legislature and the executive.  

Judicial independence is not secured by the secrecy of cloistered halls. It cannot  

be said that increasing transparency would threaten judicial independence.  

                                                 30

Justice BN Srikrishna, Judicial Independence, The Oxford Handbook of the Indian Constitution (2016) at p.  350.

PART F  

39    

40. The need for transparency and accountability has been emphasised in  

decisions of this Court. In Supreme Court Advocates-on-Record Association  

v Union of India 31

(‗NJAC‘), a Constitution Bench of this Court struck down the  

99 th  Constitutional Amendment Act setting up the National Judicial Appointments  

Commission as ultra vires the Constitution by a four-to-one majority. Significantly,  

Justice Kurian Joseph, in his separate concurring opinion and Justice  

Chelameswar, in his dissenting opinion, pointed to the lack of transparency and  

accountability in the manner of making appointments to the judiciary. Justice  

Kurian Joseph observed:  

―990. All told, all was and is not well. To that extent, I agree  

with Chelameswar, J. that the present Collegium system lacks  

transparency, accountability and objectivity. The trust deficit  

has affected the credibility of the Collegium system, as  

sometimes observed by the civic society. Quite often, very  

serious allegations and many a time not unfounded too, have  

been raised that its approach has been highly subjective.  

Deserving persons have been ignored wholly for subjective  

reasons, social and other national realities were overlooked,  

certain appointments were purposely delayed so as either to  

benefit vested choices or to deny such benefits to the less  

patronised, selection of patronised or favoured persons were  

made in blatant violation of the guidelines resulting in  

unmerited, if not, bad appointments, the dictatorial attitude of  

the Collegium seriously affecting the self-respect and dignity,  

if not, independence of Judges, the court, particularly the  

Supreme Court, often being styled as the Court of the  

Collegium, the looking forward syndrome affecting impartial  

assessment, etc., have been some of the other allegations in  

the air for quite some time. These allegations certainly call for  

a deep introspection as to whether the institutional trusteeship  

has kept up the expectations of the framers of the  

Constitution… To me, it is a curable situation yet.‖  

The need for greater transparency and accountability in the appointment  

procedure or the lack of the same, has also been highlighted by other eminent  

                                                 31

(2016) 5 SCC 1

PART F  

40    

retired judges such as Justice JS Verma and Justice Ruma Pal. In an article  

quoted in Justice Lokur‘s separate concurring opinion in the NJAC decision,  

Justice Verma while speaking about the collegium system observed:  

―546…Have any system you like, its worth and efficacy will  

depend on the worth of the people who work it! It is, therefore,  

the working of the system that must be monitored to ensure  

transparency and accountability.‖  

Furthermore, Justice Chelameswar, in his dissenting opinion, references a  

speech made by Justice Ruma Pal, 32

where she stated thus:  

―… [T]he process by which a judge is appointed to a superior  

court is one of the best kept secrets in this country. The very  

secrecy of the process leads to an inadequate input of  

information as to the abilities and suitability of a possible  

candidate for appointment as a judge. A chance remark, a  

rumour or even third-hand information may be sufficient to  

damn a judge‘s prospects. Contrariwise a personal friendship  

or unspoken obligation may colour a recommendation.  

Consensus within the collegium is sometimes resolved  

through a trade-off resulting in dubious appointments with  

disastrous consequences for the litigants and the credibility of  

the judicial system. Besides, institutional independence has  

also been compromised by growing sycophancy and  

‗lobbying‘ within the system.‖  

41. The collegium system has come under immense criticism for its lack of  

transparency. As early as in S P Gupta, this Court acknowledged that disclosure  

would lead to bona fide consideration and deliberation and proper application of  

mind on the part of the judges. 33

Even in NJAC, the need for transparency and  

accountability has not been denied in any of the separate opinions. The 99th  

Constitutional Amendment was struck down on the ground that it would  

adversely affect the independence of the judiciary by giving the executive a  

                                                 32

―An Independent Judiciary‖ – speech delivered by Ms. Justice Ruma Pal at the 5 th  V.M. Tarkunde  

Memorial Lecture, November 10, 2011.  33

S.P. Gupta v. Union of India, 1981 Supp SCC 87, 85 (per Bhagwati J.)

PART F  

41    

definitive say in the appointment of judges. The dilution of the judiciary‘s  

autonomy in the context of making judicial appointments was deemed to be  

unconstitutional. However, the need to reduce the opacity and usher in a regime  

of transparency in judicial appointments has not been denied and has in fact  

been specifically acknowledged by some of the learned Judges.   

42. Scholars caution that while judicial independence is important, one should  

not lose sight of the larger goals and purposes which judicial independence is  

intended to serve. Charles Gardner Geyh considers such ends to include  

upholding of the rule of law, preserving the separation of governmental powers,  

and promotion of due process, amongst many others. Therefore, he believes that  

if judges are free to disregard such ends in their decision making, judicial  

independence serves no purpose. He notes thus:  

―Most thoughtful scholars recognize that judicial  

independence is an instrumental value-a means to achieve  

other ends. As an instrumental value, judicial independence  

has limits, defined by the purposes it serves…[Hence,] judges  

who are so independent that they can disregard the law  

altogether without fear of reprisal likewise undermine the rule  

of law values that judicial independence is supposed to  

further. Judicial accountability is yin to the judicial  

independence yang.‖ 34

Burt Neuborne in his incisive article on the Supreme Court of India observes: ―We  

care about constitutional courts not for the aesthetic value of their structures, but  

because where certain prerequisites are assembled, constitutional courts are  

capable of preserving the values of open, democratic governance.‖ 35

                                                 34

Charles Gardner Geyh, ‗Rescuing Judicial Accountability from the Realm of Political Rhetoric‘, 56 Case  Western Reserve Law Review 911 (2006)   35

International Journal of Constitutional Law, Volume 1, Issue 3, July 2003, Pages 476–510

PART F  

42    

43. Lorne Sossin argues that transparency is necessary to ensure the public  

perception of the judiciary as independent. In the context of judicial  

appointments, he believes that appointments may happen on a proper, well-

justified, substantive understanding of judicial ‗merit‘. However, in order for the  

same to be truly independent, they must include within themselves the  

transparency of the criteria and openness of the process. He notes that:  

―What matters most in a democracy, I would suggest, is not  

the precise criteria for merit but the transparency of the  

criteria, and the authenticity of the reasons for choosing one  

individual over another. Merit, in other words, is as much  

about process as substance.‖  36

He then goes on to address how the transparency of criteria and the process is a  

logical extension of the judicial appointment being ‗meritorious‘, and that doing so  

would remove the ‗arbitrariness‘ of the process, leading to upholding of rule of  

law:   

―We often frame our concern with the rule of law as one  

designed to prevent "arbitrary" decisions. Arbitrary decisions  

are not, however, decisions taken for no reason. They are,  

rather, decisions taken for undisclosed reason. In a  

democracy, some reasons for judicial selection will and  

should be seen as more legitimate than others. Increasingly,  

however, it is the demand for justification itself that is  

coming to define our democratic aspirations. This  

demand, in my view, not only arises as a logical extension to  

the requirement of merit, but is also justified as a necessary  

condition of judicial independence.‖  

(Emphasis supplied)  

44. The fault that was identified with the purported framework under Article  

124A of the Constitution of India for ensuring transparency was the lack of  

                                                 36

Lorne Sossin, ‗Judicial Appointment, Democratic Aspirations, and the Culture of Accountability‘, 58 University  of New Brunswick Law Journal 11 (2008)

PART F  

43    

adequate safeguards for protecting the right to privacy of the appointees. 37

This  

was in the context of the deliberations of the NJAC falling within the purview of  

the RTI Act. Justice Madan B Lokur in his separate concurring opinion noted that  

the right to know was circumscribed by the right to privacy of individuals: 38

―555. The balance between transparency and confidentiality  

is very delicate and if some sensitive information about a  

particular person is made public, it can have a far-reaching  

impact on his/her reputation and dignity. The 99th  

Constitution Amendment Act and the NJAC Act have not  

taken note of the privacy concerns of an individual. This is  

important because it was submitted by the learned Attorney  

General that the proceedings of NJAC will be completely  

transparent and any one can have access to information that  

is available with NJAC. This is a rather sweeping  

generalisation which obviously does not take into account the  

privacy of a person who has been recommended for  

appointment, particularly as a Judge of the High Court or in  

the first instance as a Judge of the Supreme Court. The right  

to know is not a fundamental right but at best it is an implicit  

fundamental right and it is hedged in with the implicit  

fundamental right to privacy that all people enjoy. The  

balance between the two implied fundamental rights is difficult  

to maintain, but the 99th Constitution Amendment Act and the  

NJAC Act do not even attempt to consider, let alone achieve  

that balance.‖  

None of these failings of the specific framework envisaged by the 99th  

Constitutional Amendment Act however can be interpreted as a denial of the  

importance of disclosure, transparency and accountability in the context of  

judicial appointments or of its constitutionality. They only point to the need for a  

balance between the right to know and the right to privacy, the specific contours  

of which will be explored shortly.   

                                                 37

NJAC., 953   38

Id

PART F  

44    

45. Judicial independence cannot be used as a byword for avoiding the  

accountability and criticism that accompanies transparency:  

―[T]hrough judicial activism, the Supreme Court of India has  

completely insulated the judiciary from any democratic  

deliberation, thereby sacrificing accountability and  

transparency in the functioning of the judges…Accountability  

and transparency are not only necessary for upholding the  

democratic underpinnings of the Constitution, but are also  

necessary for the independence of the judiciary itself,  

because if public trust and confidence in the judiciary cannot  

be maintained, the judiciary is destined to lose its  

independence.‖ 39

 The judiciary is an important organ of the Indian state, and it has a vital role in the  

proper functioning of the state as a democracy based on the rule of law. The  

integrity, independence, and impartiality of the judiciary are preconditions for fair  

and effective access to justice and for the protection of rights. The judiciary has a  

vital role to play as a bulwark of the integrity infrastructure in the country.  

Failure to bring about accountability reforms would erode trust in the courts‘  

impartiality, harming core judicial functions. Further, it also harms the broader  

accountability function that the judiciary is entrusted with in democratic systems  

including upholding citizens‘ rights and sanctioning representatives of other  

branches when they act in contravention of the law. Transparency and the right to  

information are crucially linked to the rule of law itself.  

F.1 Judicial accountability   

46. Questions of judicial accountability raise three interconnected questions:  

                                                 39

Supriya Routh, Independence Sans Accountability: A Case for Right to Information against the Indian  Judiciary, 13 Washington University Global Studies Law Review 321 (2014)

PART F  

45    

(i) What is the source of accountability?;   

(ii) To whom is the accountability owed?; and   

(iii) What does accountability entail?   

  Judicial independence and judicial accountability are often seen as conflicting  

values. It is believed that judicial independence, which mandates that  

adjudication take place free from interference by the legislature and the  

executive, is compromised by the questions of responsibility which judicial  

accountability entails. In this view, accountability compromises the ability of  

judges to decide free from external pressure and is undesirable. There is a fallacy  

about the postulate that independence and accountability are conflicting values.   

 47. Judicial independence is defined by the existence of conditions which  

enable a judge to decide objectively, without succumbing to pressures and  

influences which detract from the course of justice. To be independent a judge  

must have the ability to decide ‗without fear or favour, affection or ill will‘. The  

Constitution creates conditions to secure the independence of judges by setting  

out provisions to govern appointments, tenure and conditions of service. These  

are provisions through which the conditions necessary to secure judicial  

independence are engrafted as mandatory institutional requirements. These are  

intrinsic elements of our constitutional design. But constitutional design must be  

realised through the actual working of its functionaries. Mechanisms which  

facilitate independence are hence a crucial link in ensuring that constitutional  

design translates into the realisation of judicial independence. Facilitative  

mechanisms include those which promote transparency. For true judicial

PART F  

46    

independence is not a shield to protect wrong doing but an instrument to secure  

the fulfilment of those constitutional values which an independent judiciary is  

tasked to achieve. Judicial independence is hence not a carte blanche to  

arbitrary behaviour.  Where the provisions of the Constitution secure a standard  

of judicial independence for free and impartial adjudication, the independence  

guaranteed by the Constitution must be employed in a manner that furthers the  

objective for which it was secured. In the quest for a balance between the  

freedom guaranteed and the responsibility that attaches to the freedom, judicial  

independence and judicial accountability converge.   

  48. Accountability, defined narrowly, is ―a relationship between an actor and a  

forum, in which the actor has an obligation to explain and to justify his or her  

conduct, the forum can pose questions and pass judgment, and the actor may  

face consequences‖ 40

. The narrow conception of accountability however suffers  

from a straight-jacket view devoid of general guiding principles. Professor  

Stephen Burbank stipulates:  

―…the concept of accountability, defined inclusively  

…includes a broader complex of values which public  

organisations must adopt based in the fundamental values  

of democratic regimes. Accountability is conceived in such  

a way as to enable the democratic process of establishing  

respect for those values, whether of efficiency or  

independence, efficacy in achieving objectives, or  

impartiality in the treatment of citizens.‖ 41

 In this view, accountability is the search for normative values informed by  

democratic values that guide the exercise of power and freedom granted by the  

                                                 40

M Bovens, Analysing and Assessing Accountability: A Conceptual Framework, European Law Journal (2007),  p. 450.   41

Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review  (2007), p. 31

PART F  

47    

Constitution. The judiciary, like other institutions envisaged by the Constitution, is  

essentially a human institution. The independence of the judiciary was not  

envisaged to mean its insulation from the checks and balances that are inherent  

in the exercise of constitution power. The independence of the judiciary, is a  

constitutional guarantee of freedom. Notions of accountability however, concern  

the manner and ends for which the freedom guaranteed is employed. Where  

judicial independence focuses on freedom, judicial accountability is concerned  

with the manner in which that freedom is exercised by the adjudicator.  

  49. Article 124(6) and Article 219 of the Constitution of India prescribe that  

every person who is appointed to be a judge of the Supreme Court or the High  

Court respectively, shall, prior to entering office, make and subscribe to an Oath  

or affirmation set out in the Third Schedule of the Constitution. The Oath for the  

office reads:  

―I, (name), having been appointed Chief Justice (or a  

Judge) of the Supreme Court of India, do swear in the  

name of God (or affirm) that I will bear true faith and  

allegiance to the Constitution of India as by law  

established, that I will uphold the sovereignty and integrity  

of India, that I will duly and faithfully and to the best of my  

ability, knowledge and judgment perform the duties of my  

office without fear or favour, affection or ill-will and that  

I will uphold the Constitution and the laws.‖  

(Emphasis supplied)  

Prior to the advent of the Constitution, the oath or affirmation for a person  

appointed to the Federal Court was prescribed in Schedule IV to the Government  

of India Act, 1935. Significantly, the words ―without fear or favour, affection or ill-

will‖, contained in the present Constitution in Form VIII did not find place in the

PART F  

48    

oath prescribed 42

in Schedule IV to the Government of India Act, 1935. Added to  

the present Constitution, these are words with significance. The framers of the  

Constitution were alive to the need for the exercise of judicial power in   

accordance with the ethics of judicial office. The express inclusion of these words  

indicates that persons entering judicial office bind themselves to the principles  

inherent in the effective discharge of the judicial function, in conformity with the  

rule of law and the values of the Constitution.  

    50. The oath of office postulates that the judge shall discharge the duties of  

the office without fear or favour, affection or ill-will. Any action that abridges the  

discharge of judicial duty in conformity with the principles enunciated in the oath  

negates the fundamental precept underlying the conferment of judicial power.   

Commenting on the significance of the inclusion of the term  in its application to   

judges of the High Courts in Union of India v Sankalchand Himatlal 43

, Justice  

PN Bhagwati (as he then was) held:  

―These words, of course, do not add anything to the nature of  

the judicial function to be discharged by the High Court Judge  

because, even without them, the High Court Judge would, by  

the very nature of the judicial function, have to perform the  

duties of his office without fear or favour, but they serve to  

highlight two basic characteristics of the judicial  

function, namely, independence and impartiality…‖  

(Emphasis supplied)  

As constitutional functionaries tasked with adjudication, judges of the High Courts  

and Supreme Court are bound to discharge their duties in a fair and impartial  

                                                 42

―I, A.B., having been appointed Chief Justice [or a judge] of the Court do solemnly swear [or affirm] that saving  the faith and allegiance which I owe to C.D., his heirs and successors, I will be faithful and bear true allegiance in  my judicial capacity to His Majesty the King, Emperor of India, His heirs and successors, and that I will faithfully  perform the duties of my office to the best of my ability, knowledge and judgment.‖  43

(1977) 4 SCC 193

PART F  

49    

manner in accordance with law and the principles enshrined in the Constitution.  

But this indeed is only a restatement of a principle which attaches to all judicial  

office. The principles embodied in the oath furnish a non-derogable obligation  

upon the person affirming it to abide by its mandate.  

  51. On 21 November 1993, the then Chief Justice of India constituted a  

Committee to draft and circulate a statement on the values that must be reflected  

in judicial life. In December 1999, the Conference of Chief Justices of all High  

Courts resolved and adopted the Restatement of Values of Judicial Life. The  

statement serves as a guiding light of the values that must be followed in  

conformity with the dignity and ethic required of judicial life. The statement, apart  

from mentioning 16 values of judicial life concludes that the values enumerated  

are not exhaustive but  illustrative of what is expected of a judge. The Bangalore  

Principles of Judicial Conduct 2002 which were adopted at the Round Table  

Meeting of Chief Justices held at the Peace Palace, The Hague in 2002 defined  

six main values as an inherent element of the judicial system: independence,  

impartiality, integrity, propriety, equality and competence, and diligence.  

  52. Judicial accountability also stems from the principle that the entrustment  

and exercise of power in a constitutional democracy is not unfettered. The  

Constitution confers upon judges with the power to dispense justice, which is a  

foundational value in the Preamble to the Constitution. Judicial power, conferred  

in public interest as a necessary element in the administration of justice cannot  

be used to achieve extraneous ends. The private interests of an individual have

PART F  

50    

no nexus to the discharge of the official duties of a judge.  Professor TRS Allen  

stipulates:  

―Powers may be conferred on public officials and agencies for  

the attainment of appropriate ends, consistent with a plausible  

account of the public good; but such powers must not be  

abused for extraneous ends, serving only private interests,  

nor wielded in a manner that undermines the ideal of freedom  

as independence. No one should be at the mercy of  

unfettered official discretion; and the enforcement of legal  

constraints on such discretion is a necessary part of the idea  

of government according to law.‖ 44

The rule of law commands compliance with the law, without exception. It requires  

the protection of individuals against the unfettered discretion by officials on one  

hand and the protection of individuals from depredations by other private  

individuals.  

  53. Adjudicators in robes are human and may be pre-disposed to the failings  

that are inherently human. But the law demands that they must aspire to a  

standard of behaviour that does not condone those failings of a human persona  

in the discharge of judicial duties. Recognition of the fallibility of individuals who  

work constitutional institutions and of the need for safeguards to prevent the  

abuse of power found articulation in the Constitutional Assembly Debates. Dr B R  

Ambedkar, K T Shah, H V Kamath, S Nagappa, Hussain Imam, Pandit Lakshmi  

Kanta Maitra, Alladi Krishnaswami Ayyar, B Pocker Sahib Bahadur, Z H Lari, A K   

Ghosh, and R K Sidhva all emphasized the possibility of human error in the  

inherently human institutions that the Constitution envisaged. This idea was  

given its clearest articulation in by Dr B R Ambedkar when he reminded us that:  

                                                 44

TRS Allen, Accountability to Law, in Accountability in the Contemporary Constitution (Nicholas Bamforth and  Peter Leyland eds.) (2013), Oxford Scholarship Online, p. 84

PART F  

51    

―however good a Constitution may be, it is sure to turn out bad because those  

who are called to work it, happen to be a bad lot.‘  

  54. To equate the actions of an individual which have no nexus with the  

discharge of official duties as a judge with the institution may have dangerous  

portents. The shield of the institution cannot be entitled to protect those actions  

from scrutiny.  The institution cannot be called upon to insulate and protect a  

judge from actions which have no bearing on the discharge of official duty. It is  

for this reason that judicial accountability is an inherent component of the justice  

delivery system. Accountability is expected to animate the day to day functioning  

of the courts. Judges are required to issue reasoned orders after affording an  

opportunity to both sides of a dispute to present their case. Judicial ethic requires  

that a judge ought to recuse herself from hearing a case where there is a  

potential conflict of interest. These illustration norms serve to further the  

democratic ideal that no constitutional functionary is above the rule of law.  

  55. In the view explored above, judicial accountability traces itself from both  

the oath of office and the nature of the judicial power itself. In a broader sense  

however, there is a significant public interest in ensuring the smooth and efficient  

functioning of the justice delivery system, consistent with the requirements of  

justice in individual cases. The legitimacy of the institution which depends on  

public trust is a function of an assurance that the judiciary and the people that  

work it are free from bias and partiality. Mark Tushnet explores the idea of judicial  

accountability in the following terms:  

―Under prevailing understandings in liberal democracies, law  

is a human artefact, so accountability ‗to law‘ must involve

PART F  

52    

accountability to someone. Roughly, ‗political accountability‘  

refers to accountability to contemporaneous power-holders as  

representatives of today‘s people, whereas ‗accountability  

to law‘ refers to accountability to the people and their  

representatives in the more distant past. Accountability  

to law is a form of indirect accountability to the people in  

the past, taking its route through their enactments of  

law. 45

(Emphasis supplied)  

In this view, accountability is not confined to elected posts. The creation of the  

legal system founded on constitutional precept marked a break from its colonial  

past. An independent judiciary is the guardian and final arbiter of the text and  

spirit of the Constitution. To ensure this, the Constitution envisages a system of  

checks and balances. Article 124(4) 46

of the Constitution stipulates that a judge of  

the Supreme Court may be removed by an order of the President on the ground  

of proven misbehavior or incapacity. Article 218 47

of the Constitution makes the  

substantive provisions in Article 124(4) and Article 124(5) applicable to judges of  

the High Courts. The Judges (Enquiry) Act 1986 was enacted in furtherance of  

Article 124(5) which empowered the Parliament to regulate the presentation of an  

address and investigation of judges. A notice of motion to present an address to  

the President of India for the removal of judge is given in the Lok Sabha on  

receiving the signatures of not less than one hundred members or in the Rajya  

Sabha on receiving the signature of not less than fifty members. The Speaker of  

the Lok Sabha or the Chairman of the Rajya Sabha constitutes a Committee as  

                                                 45

Mark Tushnet, Judicial Accountability in Comparative Perspective, in Accountability in the Contemporary  Constitution (Nicholas Bamforth and Peter Leyland eds.) (2013), Oxford Scholarship Online at Tushnet, p. 69  46

124(4) - A Judge of the Supreme Court shall not be removed from his office except by an order of the  President passed after as address by each House of Parliament supported by a majority of the total membership  of that House and by a majority of not less than two-thirds of the members of that House present and voting has  been presented to the President in the same session for such removal on the ground of proved misbehaviour or  incapacity.   47

218 – The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in  relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme  Court.

PART F  

53    

stipulated in the Act to enquire into the alleged misbehavior of incapacity. If the  

report of the Committee finds that a judge is guilty of misbehavior or suffers from  

any incapacity, each house of the Parliament votes on the motion in accordance  

with Article 124(4) of the Constitution. The Lok Sabha and the Rajya Sabha must  

both pass a motion to impeach the judge with a majority of not less than two-

thirds of the members of the house present and voting. The stringent procedure  

adopted by the Parliament for the impeachment of a judge draws a balance  

between ensuring the independence of judges from political will and ensuring the  

accountability of judges for their actions.  

  56. Judicial independence does not mean the insulation of judges from the  

rule of law. In a constitutional democracy committed to the rule of law and to the  

equality of its citizens, it cannot be countenanced that judges are above the law.  

The notion of a responsible judiciary furthers the ideal for which an independent  

judiciary was envisaged. It is the exercise of the decision making authority  

guaranteed by judicial independence in a just and responsible manner, true to  

the ethos of judicial office that sub-serves the founding vision of the judiciary.  

Professor Stephen Burbank has characterized judicial independence and  

accountability as "different sides of the same coin‖. 48

Professor Charles Gardner  

has stated that:  

―Judicial accountability is yin to the judicial independence  

yang. Although some trumpet judicial accountability as if it  

were an end in itself, accountability-like independence-is  

better characterized as an instrumental value that promotes  

three discrete ends: the rule of law, public confidence in the  

courts, and institutional responsibility.‖ 49   

                                                 48

Stephen Burbank, The Past and Present of Judicial Independence, California Law Review (1999).  49

Charles Gardner, Rescuing Judicial Accountability from the Realm of Political Rhetoric (2006), p .916

PART F  

54    

Hence, independence and accountability are mutually reinforcing concepts. The  

specific form of accountability which this Court has been called to address is in  

regard to the appointment process and disclosure of assets owned by judges.  

This form of accountability involves competing interests between the need for  

transparency and accountability and the privacy interests of judges. The nature  

and balancing of the competing interests involved in such a determination shall  

be explored in the course of the judgment.  

  57. The executive in a cabinet form of government in accountable to the  

legislature. Ministers of the government are elected members of the legislature.  

Collectively, the government is accountable to the legislature as an institution  

and through the legislature to the people. Unlike the elected representatives of  

the people, judges of the district and higher judiciary are not elected. The  

accountability which the political process exacts from members of the legislature  

is hence distinct from the accountability of judges who are accountable to the  

trust which is vested in them as independent decision makers. Making them  

accountable in the discharge of that trust does not dilute their independence. The  

independence of judges is designed to protect them from the pressures of the  

executive and the legislature and of the organised interests in society which may  

detract judges from discharging the trust as dispassionate adjudicators. Scrutiny  

and transparency, properly understood are not placed in an antithesis to  

independence. They create conditions where judges are protected against  

unwholesome influences. Scrutiny and transparency are allies of the  

conscientious because they are powerful instruments to guard against influences  

which threaten to suborn the judicial conscience. To use judicial independence

PART G  

55    

as a plea to refuse accountability is fallacious. Independence is secured by  

accountability. Transparency and scrutiny are instruments to secure  

accountability.   

G Fiduciary relationship  

58. The appellant argued that the information about the assets of judges is  

exempt from disclosure, by virtue of Section 8(1)(e) of the RTI Act which casts a  

fiduciary duty on the Chief Justice of India to hold the asset declarations in  

confidence. It is argued by the respondent that judges, while declaring their  

assets, do so in their official capacity in accordance with the 1997 resolution and  

not as private individuals. It is urged that the process of information gathering  

about the assets of the judges by the Chief Justice of India, is in his official  

capacity and therefore, no fiduciary relationship exists between them.   

59. In order to determine whether the Chief Justice of India holds information  

with respect to asset declarations of judges of the Supreme Court in a fiduciary  

capacity, it is necessary to assess the nature of the relationship and the power  

dynamics between the parties. Justice Frankfurter of the United States Supreme  

Court in SEC v Chenery Corp 50

, while determining the question whether officers  

and directors who manage a holding company in the process of reorganisation  

occupy positions of trust, stated:  

― But to say that a man is a fiduciary only begins analysis; it  

gives direction to further inquiry. To whom is he a fiduciary?  

What obligations does he owe as a fiduciary? In what respect  

                                                 50

SEC v. Chenery Corp., 318 U.S. 80, 85–86 (1942)

PART G  

56    

has he failed to discharge these obligations? And what are  

the consequences of his deviation from duty?‖ 51

   60. Black‘s Law Dictionary

52 , defines ―fiduciary relationship‖ thus:   

―A relationship in which one person is under a duty to act for  

the benefit of the other on matters within the scope of the  

relationship. Fiduciary relationships – such as trustee-

beneficiary, guardian-ward, principal-agent, and attorney-

client – require an unusually high degree of care. Fiduciary  

relationships usually arise in one of four situations : (1) when  

one person places trust in the faithful integrity of another,  

who as a result gains superiority or influence over the  

first, (2) when one person assumes control and  

responsibility over another, (3) when one person has a  

duty to act for or give advice to another on matters falling  

within the scope of the relationship, or (4) when there is a  

specific relationship that has traditionally been recognized as  

involving fiduciary duties, as with a lawyer and a client or a  

stockbroker and a customer.‖                     

(Emphasis supplied)  

In Words and Phrases 53

the term ―fiduciary‖ is defined:  

―Generally, the term ‗fiduciary‘ applies to any person who  

occupies a position of peculiar confidence towards another...  

It refers to integrity and fidelity... It contemplates fair dealing  

and good faith, rather than legal obligation, as the basis of the  

transaction…  The term includes those informal relations  

which exist whenever one party trusts and relies upon  

another, as well as technical fiduciary relations.‖     

                                                (Emphasis supplied)    

In Corpus Juris Secundum 54

―fiduciary‖ is defined thus:  

―A general definition of the word which is sufficiently  

comprehensive to embrace all cases cannot well be given.  

The term is derived from the civil, or Roman law. It connotes  

the idea of trust or confidence, contemplates good faith,  

rather than legal obligation, as the basis of the transaction,  

                                                   52

Black‘s Law Dictionary, Tenth Edition, p. 744  53

Words and Phrases, Volume 16-A, St. Paul: West Pub. Co, 1940  54

Corpus Juris Secundum: A Complete Restatement of the Entire American Law As Developed by All Reported  Cases, Volume 36-A, p. 38

PART G  

57    

refers to the integrity, the fidelity, of the party trusted, rather  

than his credit or ability, and has been held to apply to all  

persons who occupy a position of peculiar confidence toward  

others, and to include those informal relations which exist  

whenever one party trusts and relies on another, as well as  

technical fiduciary relations.  

The word ‗fiduciary‘, as a noun, means one who holds a thing  

in trust for another, a trustee, a person holding the character  

of a trustee, or a character analogous to that of a trustee, with  

respect to the trust and confidence involved in it and the  

scrupulous good faith and candor which it requires; a person  

having the duty, created by his undertaking, to act primarily  

for another's benefit in matters connected with such  

undertaking. Also more specifically, in a statute, a guardian,  

trustee, executor, administrator, receiver, conservator or any  

person acting in any fiduciary capacity for any person, trust or  

estate. Some examples of what, in particular connections, the  

term has been held to include and not to include are set out in  

the note.‖  

61. In CBSE v Aditya Bandopadhyay 55

, a two judge Bench of this Court  

while discussing the nature of fiduciary relationships relied upon several  

decisions and explained the terms ―fiduciary‖ and ―fiduciary relationship‖ thus:   

―39. The term ―fiduciary‖ refers to a person having a duty to  

act for the benefit of another, showing good faith and  

candour, where such other person reposes trust and special  

confidence in the person owing or discharging the duty. The  

term ―fiduciary relationship‖ is used to describe a  

situation or transaction where one person (beneficiary)  

places complete confidence in another person (fiduciary)  

in regard to his affairs, business or transaction(s). The  

term also refers to a person who holds a thing in trust for  

another (beneficiary). The fiduciary is expected to act in  

confidence and for the benefit and advantage of the  

beneficiary, and use good faith and fairness in dealing with  

the beneficiary or the things belonging to the beneficiary. If  

the beneficiary has entrusted anything to the fiduciary, to hold  

the thing in trust or to execute certain acts in regard to or with  

reference to the entrusted thing, the fiduciary has to act in  

confidence and is expected not to disclose the thing or  

information to any third party.‖          

(Emphasis supplied)  

                                                 55

(2011) 8 SCC 497

PART G  

58    

62. In RBI v Jayantilal N Mistry 56

, a two judge Bench of this Court reiterated   

the observations made in CBSE v Aditya Bandopadhyay and held that RBI did  

not place itself in a fiduciary relationship with other financial institutions by virtue  

of collecting their reports of inspections, statements of the banks and information  

related to the business. It was held that the information collected by the RBI was  

required under law and not under the pretext of confidence or trust:  

―64. The exemption contained in Section 8(1)(e) applies to  

exceptional cases and only with regard to certain pieces of  

information, for which disclosure is unwarranted or  

undesirable. If information is available with a regulatory  

agency not in fiduciary relationship, there is no reason to  

withhold the disclosure of the same. However, where  

information is required by mandate of law to be provided  

to an authority, it cannot be said that such information is  

being provided in a fiduciary relationship. As in the instant  

case, the financial institutions have an obligation to provide all  

the information to RBI and such information shared under an  

obligation/duty cannot be considered to come under the  

purview of being shared in fiduciary relationship.‖           

                                    (Emphasis supplied)  

63. The Canadian Supreme Court in the case of Hodgkinson v Simms 57

,  

discussed the term ‗fiduciary‘ thus:  

―A party becomes a fiduciary where it, acting pursuant to  

statute, agreement or unilateral undertaking, has an  

obligation to act for the benefit of another and that obligation  

carries with it a discretionary power.  Several indicia are of  

assistance in recognizing the existence of fiduciary  

relationships:  (1) scope for the exercise of some discretion or  

power; (2) that power or discretion can be exercised  

unilaterally so as to effect the beneficiary's legal or practical  

interests; and, (3) a peculiar vulnerability to the exercise of  

that discretion or power.  

The term fiduciary is properly used in two ways.  The first  

describes certain relationships having as their essence  

                                                 56

(2016) 3 SCC 525  57

[1994] 3 SCR. 377

PART G  

59    

discretion, influence over interests, and an inherent  

vulnerability.  A rebuttable presumption arises out of the  

inherent purpose of the relationship that one party has a duty  

to act in the best interests of the other party.  The second,  

slightly different use of fiduciary exists where fiduciary  

obligations, though not innate to a given relationship, arise as  

a matter of fact out of the specific circumstances of that  

particular relationship.  In such a case the question to ask is  

whether, given all the surrounding circumstances, one party  

could reasonably have expected that the other party would  

act in the former's best interests with respect to the subject  

matter at issue.  Discretion, influence, vulnerability and trust  

are non-exhaustive examples of evidentiary factors to be  

considered in making this determination.  Outside the  

established categories of fiduciary relationships, what is  

required is evidence of a mutual understanding that one party  

has relinquished its own self-interest and agreed to act solely  

on behalf of the other party.  In relation to the advisory  

context, then, there must be something more than a simple  

undertaking by one party to provide information and execute  

orders for the other for a relationship to be enforced as  

fiduciary.‖  

64. Dr Paul Finn in his comprehensive work on ―Fiduciary Obligations‖ 58

,  

describes a fiduciary as someone who has an obligation to act ―in the interests  

of‖ or ―for the benefit of‖ their beneficiaries in some particular matter. For a  

person to act as a fiduciary they must first have bound themselves in some way  

to protect and further the interests of another. 59

Where such a position has been  

assumed by one party then that party's position is potentially of a fiduciary. 60

The  

Federal Court of Australia in the case of Australian Sec & Inv Comm‘n v  

Citigroup Global Markets Australia Pty Ltd 61

has held:  

―The question of whether a fiduciary relationship exists, and  

the scope of any duty, will depend upon the factual  

circumstances and an examination of the contractual terms  

between the parties... Apart from the established categories,  

perhaps the most that can be said is that a fiduciary  

                                                 58

P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 15  59

P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p. 9  60

P.D. Finn ―Fiduciary Obligations‖, Carswell 1977 at p.9  61

Australian Sec. & Inv. Comm‘n v Citigroup Global Markets Australia Pty. Ltd., [2007] FCA 963 (Citing P.D.  Finn, The Fiduciary Principle, in Equity, Fiduciaries and Trusts (T. Youden ed., 1989))

PART G  

60    

relationship exists where a person has undertaken to act  

in the interests of another and not in his or her own  

interests but all of the facts and circumstances must be  

carefully examined to see whether the relationship is, in  

substance, fiduciary… The critical matter in the end is  

the role that the alleged fiduciary has, or should be taken  

to have, in the relationship. It must so implicate that party in  

the other‘s affairs or so align him with the protection or  

advancement of that other‘s interests that foundation exists  

for the fiduciary expectation.‖            (Emphasis supplied)  

65. A fiduciary must be entrusted with a degree of discretion (power) and must  

have freedom to act without resorting to prior approval of the beneficiary. 62

The  

greater the independent authority to be exercised by the fiduciary, the greater the  

scope of fiduciary duty. 63

The person so entrusted with power is required to  

determine how to exercise that power. 64

Fiduciaries are identified by ascendancy,  

power and control on the part of the stronger party and therefore, a fiduciary  

relationship implies a condition of superiority of one of the parties over the  

other. 65

It is not necessary that the relationship has to be defined as per law, it  

may exist under various circumstances, and exists in cases where there has  

been a special confidence placed in someone who is bound to act in good faith  

and with due regard to the interests of the one reposing the confidence. Such is  

normally the case with, inter alia, attorney-client, agent-principal, doctor-patient,  

parent-child, trustees-beneficiaries 66

, legal guardian-ward 67

, personal  

representatives, court appointed receivers and between the directors of company  

and its shareholders. In Needle Industries (India) Ltd v Needle Industries  

                                                 62

Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011   63

Scott, Austin W. "The Fiduciary Principle." California Law Review 37, no. 4 (1949): 539-55.   64

Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011   65

Ken Coghill, Charles Sampford and Tim Smith ―Fiduciary Duty and the Atmospheric Trust‖, Ashgate (2012)  66

Section 88, Indian Trusts Act 1882  67

Section 20, Guardians and Wards Act 1890

PART G  

61    

Newey (India) Holding Ltd 68

and Dale & Carrington Invt (P) Lt v P K  

Prathaphan 69

, this Court held that the directors of the company owe a fiduciary  

duty to its shareholders. In P V Sankara Kurup v Leelavathy Nambier 70

, this  

Court held that an agent and power of attorney can be said to owe a fiduciary  

relationship to the principal.   

66. Other structural properties of the fiduciary relationship are dependence  

and vulnerability, where the beneficiary is dependent upon the fiduciary to  

exercise power and impact the practical interests. 71

Once a fiduciary relationship  

is established, fiduciary duties include the duty of loyalty and duty of care  

towards the interests of the beneficiaries. 72

67. From the discussion above, it can be seen that a fiduciary is someone who  

acts for and on behalf of another in a particular matter giving rise to a relationship  

of trust and confidence. A fiduciary relationship implies a condition of superiority  

of one of the parties over the other, where special confidence has been reposed  

in an individual to act in the best interests of another.   

68. The dispute before us is whether the Chief Justice of India while exercising  

its official function and holding asset declaration information of the judges acts in  

a fiduciary capacity. The Full Bench of the Delhi High Court agreed with the  

learned single judge and held:  

                                                 68

(1981) 3 SCC 333  69

(2005) 1 SCC 212  70

(1994) 6 SCC 68  71

Gold, Andrew S.; Miller, Paul B. ―Philosophical foundations of fiduciary law‖ Oxford University Press, 2016.  72

Tamar Frankel, ―Fiduciary Law‖ Oxford University Press, 2011

PART G  

62    

―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.‖  

   We are in agreement with the above observation. The words ―held by‖ or ―under  

the control of‖ under Section 2(j) of the RTI Act 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 while  

exercising functions in its official capacity. The 1997 resolution on declaration of  

judge‘s assets as adopted on 7 May 1997 states:  

―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.‖  

69. The Chief Justice of India in exercising his official functions in accordance  

with the 1997 resolution while holding asset information of other judges does not  

act for and on behalf of other judges of the Supreme Court. There exists no  

fiduciary relationship between them. The Chief Justice of India is not entrusted

PART G  

63    

with the power to protect and further the interests of individual judges who  

disclose their assets. The information is required by the mandate of the  

resolution dated 7 May 1997 passed by all the then sitting judges of the Supreme  

Court and it cannot be said that such information is being provided in any  

personal capacity. The Chief Justice of India merely holds the information in  

accordance with the official functions and not in any fiduciary capacity. The  

judges of the Supreme Court, including the Chief Justice of India occupy a  

constitutional office. There exists no set hierarchies between the judges and they  

enjoy the same judicial powers and immunities. The judges who disclose their  

assets cannot be said to be vulnerable to and dependent on the Chief Justice of  

India. In these circumstances, it cannot be held that asset information shared  

with the Chief Justice of India, by the judges of the Supreme Court, are held by  

him in a fiduciary capacity, which if revealed, would result in breach of fiduciary  

duty. Therefore, the argument that the information sought is held in a fiduciary  

capacity is inapplicable and cannot be used to prevent the information from being  

made public.  

 70. While we have not accepted the argument of the appellant regarding the  

existence of the fiduciary relationship between the Chief Justice of India and the  

judges, it is relevant to point out the application of the fiduciary principle to public  

institutions where judges hold citizens‘ interests in public trust, guided by

fiduciary standards. 73

 A Judge‘s public fiduciary obligation towards the citizen  

includes a duty of loyalty, duty of care and the cluster comprising the duties of

                                                 73

Robert G. Natelson, ―Judicial Review of Special Interest Spending: The General Welfare Clause and the  Fiduciary Law of the Founders‖, 11 Tex. Rev. L. & PoL 239, 245

PART H  

64    

candour, disclosure and accounting. 74

The duty of loyalty for a judge entails  

them being loyal to the citizenry by remaining impartial towards the litigants  

before them. 75

The duty of care for judges includes the expectation from judges  

to fulfil their responsibilities with reasonable diligence and to engage in reason  

based decision making. 76

The duties of candour, disclosure and accounting are  

based on the premise of judicial transparency and judicial honesty.  

H The right to privacy and the right to know  

71. The third referral question to be answered by this Court is: ―Whether the  

information sought for is exempt under Section 8(1)(j) of the RTI Act 77

.‖ The  

question requires this Court to determine whether and under what circumstances  

the information sought by the applicant should be disclosed under the provisions  

of the RTI Act. This Court is cognisant that in interpreting the statutory scheme of  

the RTI Act, the constitutional right to know and the constitutional right to privacy  

of citizens are also implicated. In answering the question, it is necessary to  

analyse the scheme of the RTI Act, the role of the exemptions under Section 8,  

the interface between the statutory rights and duties under Section 8(1)(j) and the  

constitutional rights under Part III of the Constitution.   

                                                 74

Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law  Review 101, no. 3 (2013): 699-753.  75

Matthew Conaglen, Public-Private Intersection: Comparing Fiduciary Conflict Doctrine and Bias, 2008 PUB. L.  58 (2008)  76

Leib, Ethan J., David L. Ponet, and Michael Serota. "A Fiduciary Theory of Judging." California Law  Review 101, no. 3 (2013): 699-753. See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial  Review, 2 J. LEGAL analysis 227, 249 n.23 (2010).   77

―RTI Act‖

PART H  

65    

72. In order to facilitate effective governance, the government or ‗public  

authority‘ must be empowered to efficiently coordinate diverse activities and at  

the same time be constrained to ensure that it does not override the freedoms of  

those it serves. In explaining the system of checks and balances in the American  

Constitution, James Madison noted:   

―If men were angels, no government would be necessary. If  

angels were to govern men, neither external nor internal  

controls on government would be necessary. In framing a  

government which is to be administered by men over  

men, the great difficulty lies in this: you must first enable  

the government to control the governed; and in the next  

place oblige it to control itself. A dependence on the  

people is, no doubt, the primary control on the government;  

but experience has taught mankind the necessity of auxiliary  

precautions.‖ 78

(Emphasis supplied)  

Our Constitution institutes and operationalises the functions of government. It is  

necessary to empower the government to operationalise the public functions of  

the state and ensure the governance of the public lives of citizens. However, the  

framers of our Constitution recognised that this act of empowerment also carried  

certain associated risks, that no government of people is infallible and that in  

addition to democratic controls, certain additional checks and balances on  

governmental power are necessary. Part III of the Constitution represents a  

crucial aspect of the constitutional scheme by which governmental power is  

restricted, and the government is obligated to respect the rights and freedoms of  

citizens.   

                                                 78

James Madison, Federalist No 51 (1788)  

PART H  

66    

 Scheme of Sections 8 and 11       73. The RTI Act was enacted in furtherance of the principles found in Part III of  

the Constitution. The RTI Act operationalises the disclosure of information held  

by ‗public authorities‘ in order to reduce the asymmetry of information between  

individual citizens and the state apparatus. The RTI Act facilities transparency in  

the decisions of public authorities, the accountability of public officials for any  

misconduct or illegality and empowers individuals to bring to light matters of  

public interest. The RTI Act has provided a powerful instrument to citizens: to  

individuals engaged in advocacy and journalism. It facilitates a culture of  

assertion to the citizen – activist, to the whistle-blower, but above all to each  

citizen who has a general interest in the affairs of the state. The preamble of the  

RTI Act notes:   

―An Act to provide for setting out the practical regime of right  

to information for citizens to secure access to information  

under the control of public authorities, in order to  

promote transparency and accountability in the working  

of every public authority, the constitution of a Central  

Information Commission and State Information Commissions  

and for matters connected therewith or incidental thereto.  

…  

AND WHEREAS democracy requires an informed citizenry  

and transparency of information which are vital to its  

functioning and also to contain corruption and to hold  

Governments and their instrumentalities accountable to the  

governed;‖   

(Emphasis supplied)   

As observed earlier in the judgement, the provisions of the RTI Act are dedicated  

to operationalising access to information held by public authorities. The scheme  

of the RTI Act and its applicability to the judiciary has already been examined in  

detail. In answering the third referral question, this Court can confine itself to the

PART H  

67    

statutory exemptions carved out from the general obligation of disclosure. When  

enacting the RTI Act, Parliament was cognisant that the unrestricted disclosure of  

information could be fiscally inefficient, result in real world harms and infringe on  

the rights of others. In addition to the extracts above, the preamble to the RTI Act  

also states:   

―AND WHEREAS revelation of information in actual  

practice is likely to conflict with other public interests  

including efficient operations of the Governments, optimum  

use of limited fiscal resources and the preservation of  

confidentiality of sensitive information;‖   

(Emphasis supplied)  

74. To address the harms that may result from an unrestricted disclosure of  

information, the legislature included certain qualified and unqualified exemptions  

to the general obligation to disclose under Sections 3, 4 and 7 of the RTI Act.  

Section 8(1) sets out certain classes of information, the disclosure of which, the  

legislature foresaw may result in harm to the nation or the rights and interests of  

other citizens. Section 8 reads as under:   

―8. Exemption from disclosure of information –   

(1) Notwithstanding anything contained in this Act, there shall  

be no obligation to give any citizen, -   

(a) information, 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

PART H  

68    

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:   

Provided that the decisions of 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:   

Provided further that those matters which come under  

the exemptions specified in this section shall not be  

disclosed;   

(j) information which relates 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 unless the Central  

Public Information Officer or the State Public Information  

Officer or the appellate authority, as the case may be, is  

satisfied that the larger public interest justifies the disclosure  

of such information:   

Provided that the information which cannot be denied  

to the Parliament or a State Legislature shall not be denied to  

any person.   

(2) Notwithstanding anything in the Official Secrets  

Act, 1923 (19 of 1923) nor any of the exemptions permissible  

in accordance with sub-section (1), a public authority may  

allow access to information, if public interest in disclosure  

outweighs the harm to the protected interests….‖  

Section 8(1) begins with a non-obstante phrase ―Notwithstanding anything  

contained in this Act‖. The import of this phrase is that clause (1) of Section 8  

carves out an exception to the general obligation to disclose under the RTI Act.  

Where the conditions set out in any of the sub-clauses to clause (1) of Section 8  

are satisfied, the Information Officer is under no obligation to provide information  

to the applicant. By expressly enumerating the circumstances in which the

PART H  

69    

disclosure of information may be restricted on the grounds of certain identified  

harms, the RTI Act negates the notion that information may be withheld on the  

grounds of confidentiality simpliciter. A harm under clause (1) of Section 8 must  

be identified and invoked to justify the non-disclosure of a document requested  

for under the RTI Act.      

 75. It is also pertinent to note that clauses (a), (b), (c), (f), (g) and (h) to clause  

(1) of Section 8 provide an absolute exemption from the obligation of  disclosure  

under the RTI Act. However, clauses (d), (e), (i) and (j) to clause (1) of Section 8  

provide a qualified exemption from disclosure. For example, clause (a) to sub  

section (1) of Section 8 provides an unconditional exemption where it is  

determined that disclosure of the information sought ―would prejudicially affect  

the sovereignty and integrity of India‖. On the other hand, while clause (d) to   

Section 8(1) similarly provides that information is exempt from disclosure where  

such disclosure ―would harm the competitive position of a third party‖ the  

exemption is further qualified by the phrase, ―unless the competent authority is  

satisfied that larger public interest warrants the disclosure‖. Thus, the exemption  

under clause (d) is not absolute but is qualified and cannot be invoked where  

there exists a ―larger public interest‖. Where the Information Officer determines  

that the ―larger public interest‖ warrants a disclosure, the exemption in clause (d)  

cannot be invoked and the information must be disclosed.   

 76. Clause (j) of Section 8(1) provides a qualified exemption from disclosure  

where the information sought relates to ―personal information the disclosure of  

which has no relationship to any public activity or interest‖ or the disclosure of the

PART H  

70    

information would cause an ―unwarranted invasion of the privacy‖. However, the  

exemption may be overridden where the Information Officer is ―satisfied that the  

larger public interest justifies the disclosure‖. Clause (j) is not an absolute  

exemption from the disclosure of information on the ground of privacy but states  

that disclosure is exempted in cases where ―personal information‖ is sought and  

there exists no ―larger public interest‖. Where the Information Officer is satisfied  

that the existence of the ―larger public interest‖ justifies the disclosure of the  

―personal information‖, the information must be disclosed. The exact contours of  

the phrases ―personal information‖ and ―larger public interest‖ with respect to  

members of the judiciary, and the exact manner in which they relate to each  

other form the subject matter of the third referral question and shall be analysed  

during the course of this judgement.  

77. Sections 2(n) and 11 of the RTI Act read as under:   

―2(n) ―third party‖ means a person other than the citizen  

making a request for information and includes a public  

authority‖  

―11. Third party information.—(1) Where a Central Public  

Information Officer or a State Public Information Officer, as  

the case may be, intends to disclose any information or  

record, or part thereof on a request made under this Act,  

which relates to or has been supplied by a third party and  

has been treated as confidential by that third party, the  

Central Public Information Officer or State Public  

Information Officer, as the case may be, shall, within five  

days from the receipt of the request, give a written notice to  

such third party of the request and of the fact that the Central  

Public Information Officer or State Public Information Officer,  

as the case may be, intends to disclose the information or  

record, or part thereof, and invite the third party to make a  

submission in writing or orally, regarding whether the  

information should be disclosed, and such submission of the  

third party shall be kept in view while taking a decision about  

disclosure of information:  

Provided that except in the case of trade or commercial  

secrets protected by law, disclosure may be allowed if the

PART H  

71    

public interest in disclosure outweighs in importance any  

possible harm or injury to the interests of such third  

party.  

(2) Where a notice is served by the Central Public Information  

Officer or State Public Information Officer, as the case may  

be, under sub-section (1) to a third party in respect of any  

information or record or part thereof, the third party shall,  

within ten days from the date of receipt of such notice, be  

given the opportunity to make representation against the  

proposed disclosure.  

(Emphasis supplied)  

The definition of a ―third party‖ includes a public authority. ‗Third party  

information‘ is information which ―relates to or has been supplied by any other  

person (including a public authority) other than the information applicant and has  

been treated as confidential by such third party. Where disclosure of ‗third party  

information‘ is sought, and such information has been prima facie treated as  

confidential by the third party in question, the procedure under Section 11 of the  

RTI Act is mandatory. The Information Officer shall, within five days of receiving  

the request for ‗third party information‘ notify the relevant third party to whom the  

information relates or which had supplied it. The notice shall invite the third party  

to submit reasons (in writing or orally) as to whether or not the information sought  

should be disclosed. Section 11(2) provides the third party with a right to make a  

representation against the proposed disclosure within ten days of receiving the  

notice. The provision expressly mandates the Information Officer to take into  

consideration the objections of the third party when making a decision with  

respect to disclosure or non-disclosure of the information. It encapsulates the  

fundamental idea that a party whose personal information is sought to be  

disclosed is afforded the opportunity to contest disclosure. The proviso to sub  

section (1) of Section 11 permits disclosure where the ―public interest‖ in

PART H  

72    

disclosure ―outweighs‖ any possible harms in disclosure highlighted by the third  

party.    

78. Sections 8 and 11 must be read together. Other than in a case where the  

information applicant seeks the disclosure of information which relates to the  

information applicant herself, information sought that falls under the category of  

―personal information‖ within the meaning of clause (j) of Section 8(1) is also  

―third party information‖ within the ambit of Section 11. Therefore, in every case  

where the information requested is ―personal information‖ within the operation of  

clause (j) of sub section 1 of Section 8, the procedure of notice and objections  

under Section 11 must be complied with. The two provisions create a substantive  

system of checks and balances which seek to balance the right of the information  

applicant to receive information with the right of the third party to prevent the  

disclosure of personal information by permitting the latter to contest the proposed   

disclosure.   

79. In Arvind Kejriwal v Central Public Information Officer 79

it was  

contended that the procedure for notifying the third party and inviting objections  

under Section 11 only applied to situations where the information sought was  

directly supplied by the third party, and not to situations where the information  

‗related to‘ the third party but was not supplied by it. Rejecting this contention,  

Justice Sanjeev Khanna, (as our learned Brother then was) speaking for a  

Division Bench of the Delhi High Court held:   

                                                 79

AIR 2012 Del 29  

PART H  

73    

―13… On the other hand, in case the word ‗or‘ is read as  

‗and‘, it may lead to difficulties and problems, including the  

invasion of right of privacy/confidentiality of a third party. For  

example, a public authority may have in its records,  

medical reports or prescriptions relating to third person  

but which have not been supplied by the third person. If  

the interpretation given by the appellant is accepted then  

such information can be disclosed to the information  

seeker without following the procedure prescribed in  

Section 11(1) as the information was not furnished or  

supplied by the third person. … when information relates to  

a third party and can be prima facie regarded and treated as  

confidential, the procedure under Section 11(1) must be  

followed. Similarly, in case information has been provided by  

the third party and has been prima facie treated by the said  

third party as confidential, again the procedure under Section  

11(1) has to be followed.   

…  

15. Section 11 also ensures that the principles of natural  

justice are complied with. Information which is confidential  

relating to a third party or furnished by a third party, is not  

furnished to the information seeker without notice or without  

hearing the third party‘s point of view. A third party may  

have reasons, grounds and explanations as to why the  

information should not be furnished, which may not be in  

the knowledge of the PIO/appellate authorities or  

available in the records. The information seeker is not  

required to give any reason why he has made an application  

for information. There may be facts, causes or reasons  

unknown to the PIO or the appellant authority which may  

justify and require denial of information. Fair and just  

decision is the essence of natural justice. Issuance of  

notice and giving an opportunity to the third party serves  

a salutary purpose and ensures that there is a fair and  

just decision. In fact issue of notice to a third party may in  

cases curtail litigation and complications that may arise if  

information is furnished without hearing the third party  

concerned. Section 11 prescribes a fairly strict time schedule  

to ensure that the proceedings are not delayed.   

 (Emphasis supplied)  

The procedure under Section 11 must be complied with not only in cases where  

information has been supplied to the public authority by a third party, but equally  

when the information which is held by the public authority ―relates to‖ a third  

party. Section 11 is not merely a procedural provision, but a substantive

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protection to third parties against the disclosure of their personal information held  

by public authorities, without their knowledge or consent. The mere fact that the  

public authority holds information relating to a third party does not render it freely  

disclosable under the RTI Act. A third party may have good reason to object to  

the disclosure of the information, including on the ground that the disclosure  

would constitute a breach of the right to privacy. By including the requirement of  

inviting objections and providing a hearing on the proposed disclosure of third  

party information to the very party who may be adversely impacted by the  

disclosure, Section 11 embodies the principles of natural justice.    

  80. In the present case, the information sought pertains to the declaration of  

assets of members of the judiciary and official file notings and correspondence  

with respect to the elevation of judges to the Supreme Court. The information  

sought with respect to the assets of judges is not generated by the Supreme  

Court itself, but is provided by individual judges to the Supreme Court. The file  

notings with respect to the elevation of judges do not merely contain information  

regarding the operation of the Supreme Court, but also relate to the individual  

judges being considered for elevation. Thus, the information sought both ―relates  

to‖ and ―has been supplied by‖ a third party and has been treated as confidential  

by that third party‖. The procedure under Section 11 is applicable in regard to the  

information sought by the respondent and must be complied with.   

 Constitutional rights implicated       81. The RTI Act, although a statutory enactment, engages the rights contained  

in Part III of the Constitution of India. Article 19(1)(a) of the Constitution contains

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75    

the right to freedom of expression which grants all citizens not merely the right to  

free speech, but also the right to freely disseminate speech. The freedom of the  

press to disseminate speech has long been recognised under our Constitution. 80

An inherent component of the right to disseminate speech freely is the  

corresponding right of the audience to receive speech freely. The right to receive  

information disseminated has also been recognised as a facet of the freedom of  

expression protected by Article 19(1)(a) of the Constitution. 81

In addition to the  

right to receive information already being disseminated in the public domain,  

Article 19(1)(a) includes a positive right to information. Contrasted with the  

negative content of the right to receive information, which prohibits the State from  

restricting a citizen‘s access to information already in the public domain, the right  

to information, as a facet of Article 19(1)(a), casts a positive duty on the State to  

make available certain information not already in the public domain.   

 82. In State of Uttar Pradesh v Raj Narain

82 , Chief Justice A N Ray,  

speaking for a Constitution Bench of this Court observed:   

―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, 29 L Ed 822: 403 US  

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  

                                                 80

Express Newspaper v Union of India 1959 SCR 12   81

Bennet Coleman v Union of India (1972) 2 SCC 788  82

(1975) 4 SCC 428  

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76    

purpose of parties and politics or personal self-interest or  

bureaucratic routine…‖  

(Emphasis supplied)  

These observations were reiterated by the seven judge Bench of this Court in  

case of S P Gupta v Union of India 83

. Justice P N Bhagwati (as he then was)  

noted:   

―64. Now it is obvious from the Constitution that we have  

adopted a democratic form of Government. Where a society  

has chosen to accept democracy as its credal faith, it is  

elementary that the citizens ought to know what their  

Government is doing. The citizens have a right to decide  

by whom and by what rules they shall be governed and  

they are entitled to call on those who govern on their  

behalf to account for their conduct. No democratic  

Government can survive without accountability and the  

basic postulate of accountability is that the people  

should have information about the functioning of the  

Government. It is only if people know how Government is  

functioning that they can fulfil the role which democracy  

assigns to them and make democracy a really effective  

participatory democracy. ―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 a force 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…‖   

(Emphasis supplied)    

The above-mentioned extract accurately and succinctly summarises the position  

of law and has been consistently followed by this Court. 84

The right to freedom of  

expression under Article 19(1)(a) casts both positive and negative obligations on  

the State. It restricts the State from interfering with the right of citizens to receive  

information and its freely disseminated. It also imposes an obligation on the State  

                                                 83

(1981) Supp SCC 87  84

People's Union for Civil Liberties v Union of India (2003) 4 SCC 399; Thalappalam Service Cooperative  Bank Limited v State of Kerala (2013) 16 SCC 82 and Reserve Bank of India v Jayantilal Mistry (2016) 3  

SCC 525.  

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77    

to provide citizens with information about the public functioning of government to  

ensure accountability and create an informed electorate.   

 83. Parliament enacted the RTI Act in pursuance of the State‘s positive  

obligation to provide citizens with information about the functioning of  

government. It is a statute to operationalise the right of citizens to access  

information, otherwise only held by the government, under the ‗right to know‘ or  

‗right to information‘ as protected by Article 19(1)(a). In requesting for information  

under the provisions of the RTI Act, a citizen engages certain statutory rights and  

duties under its provisions, but simultaneously also engages the ‗right to know‘  

under the Article 19(1)(a) of the Constitution. The ‗right to know‘ is not absolute.  

The RTI Act envisages certain restrictions on the ‗right to know‘ in the form of  

exemptions enumerated in clause (1) to Section 8. Crucially, restrictions on the  

disclosure of information under the RTI Act also constitute restrictions on the  

information applicant‘s ‗right to know‘ which is protected under Article 19(1)(a) of  

the Constitution. The constitutional permissibility of the statutory restrictions on  

disclosure contained within the RTI Act is not in challenge before this Court. But  

it  is trite to state that any restrictions on the disclosure of information would  

necessarily need to comport with the existing law on the protection of the ‗right to  

know‘ as a facet of the freedom of expression. In the decision in Thalappalam  

Service Cooperative Bank Limited v State of Kerala 85

Justice Radhakrishnan,  

speaking for a two judge Bench of this Court, noted:   

―56. The Right to Information Act, 2005 is an Act which  

provides for setting up the practical regime of right to  

information for citizens to secure access to information under  

the control of public authorities in order to promote  

                                                 85

(2013) 16 SCC 82  

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transparency and accountability in the working of every public  

authority. The Preamble of the Act also states that the  

democracy requires an informed citizenry and transparency  

of information which are vital to its functioning and also to  

contain corruption and to hold Governments and their  

instrumentalities accountable to the governed. Citizens have,  

however, the right to secure access to information of only  

those matters which are ―under the control of public  

authorities‖, the purpose is to hold ―the Government and its  

instrumentalities‖ accountable to the governed.  

Consequently, though right to get information is a  

fundamental right guaranteed under Article 19(1)(a) of the  

Constitution, limits are being prescribed under the Act  

itself, which are reasonable restrictions within the  

meaning of Article 19(2) of the Constitution of India.‖  

  (Emphasis supplied)  

The court expressly acknowledged that the RTI Act was enacted to fulfil the  

positive content of the right to know that existed under Article 19(1)(a). Further,  

restrictions on the disclosure of information under the RTI Act constitute  

restrictions on the ‗right to know‘ as a facet of Article 19(1)(a).   

 84.  Clause (j) of sub section (1) of Section 8 uses the phrases ―personal  

information‖ and ―unwarranted invasion of the privacy of the individual‖. In  

interpreting the harm to be caused in disclosing personal information, this Court  

must be cognisant that the privacy of the individual is the subject of constitutional  

protection. In K S Puttaswamy v Union of India 86

a nine judge bench of this  

Court unanimously held that there exists a constitutional right to privacy located  

within Part III of the Constitution. Justice D Y Chandrachud, speaking for a  

plurality of four judges, held:   

―250. … The nine primary types of privacy are, according to  

the above depiction:  

(i) bodily privacy which reflects the privacy of the physical  

body. Implicit in this is the negative freedom of being able to  

                                                 86

(2017) 10 SCC 1

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79    

prevent others from violating one's body or from restraining  

the freedom of bodily movement;  

(ii) spatial privacy which is reflected in the privacy of a private  

space through which access of others can be restricted to the  

space; intimate relations and family life are an apt illustration  

of spatial privacy;  

…  

(ix) informational privacy which reflects an interest in  

preventing information about the self from being  

disseminated and controlling the extent of access to  

information.  

…  

320. Privacy is a constitutionally protected right which  

emerges primarily from the guarantee of life and personal  

liberty in Article 21 of the Constitution. Elements of privacy  

also arise in varying contexts from the other facets of freedom  

and dignity recognised and guaranteed by the fundamental  

rights contained in Part III.   

…  

323. Privacy includes at its core the preservation of  

personal intimacies, the sanctity of family life, marriage,  

procreation, the home and sexual orientation. Privacy  

also connotes a right to be left alone. Privacy safeguards  

individual autonomy and recognises the ability of the  

individual to control vital aspects of his or her life.  

Personal choices governing a way of life are intrinsic to  

privacy. Privacy protects heterogeneity and recognises  

the plurality and diversity of our culture. While the  

legitimate expectation of privacy may vary from the intimate  

zone to the private zone and from the private to the public  

arenas, it is important to underscore that privacy is not lost or  

surrendered merely because the individual is in a public  

place. Privacy attaches to the person since it is an essential  

facet of the dignity of the human being.  

…  

325. Like other rights which form part of the fundamental  

freedoms protected by Part III, including the right to life  

and personal liberty under Article 21, privacy is not an  

absolute right. A law which encroaches upon privacy will  

have to withstand the touchstone of permissible  

restrictions on fundamental rights. In the context of Article  

21 an invasion of privacy must be justified on the basis of a  

law which stipulates a procedure which is fair, just and  

reasonable. The law must also be valid with reference to the  

encroachment on life and personal liberty under Article 21.  

An invasion of life or personal liberty must meet the  

threefold requirement of (i) legality, which postulates the  

existence of law; (ii) need, defined in terms of a legitimate  

State aim; and (iii) proportionality which ensures a

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rational nexus between the objects and the means  

adopted to achieve them.  

326. Privacy has both positive and negative content. The  

negative content restrains the State from committing an  

intrusion upon the life and personal liberty of a citizen. Its  

positive content imposes an obligation on the State to take all  

necessary measures to protect the privacy of the individual.  

327. Decisions rendered by this Court subsequent to  

Kharak Singh upholding the right to privacy would be  

read subject to the above principles.‖  

(Emphasis supplied)  

Justice R F Nariman in his separate concurring opinion made the following  

observations:   

―521. In the Indian context, a fundamental right to privacy  

would cover at least the following three aspects:  

• Privacy that involves the person i.e. when there is some  

invasion by the State of a person's rights relatable to his  

physical body, such as the right to move freely;  

• Informational privacy which does not deal with a  

person's body but deals with a person's mind, and  

therefore recognises that an individual may have control  

over the dissemination of material that is personal to