RIGHT TO INFORMATION

Public authority and their privacy: Scope of RTI Act

CPIO, Supreme Court of India v. Subhash Chandra Aggarwal,
AIR 2010 Delhi 159

A.P. Shah, C.J. (for himself and Vikramjit Sen and S. Muralidhar, JJ.): 1. This proceeding,
under Article 226 of the Constitution of India, requires the examination of questions and issues
involving declaration as to personal assets of judges of the Supreme Court, made to the Chief
Justice of India, pursuant to a Full Court resolution of the Supreme Court of India, made in
1997. The petitioners challenge an order of the Central Information Commission, dated 6th
January, 2009, upholding the request of the respondent who had applied for disclosure of certain
information concerning such declaration of personal assets, by the judges (of the Supreme
Court).
2. The facts of the case are that the Respondent (hereafter “applicant”) had, on 10.11.2007
required the Central Public Information Officer, Supreme Court of India ("the CPIO"),
nominated under the Right to Information Act (hereafter “the Act”) to furnish a copy of the
resolution dated 7.5.1997 of the Full Court of the Supreme Court, (“the 1997 resolution”) which
requires every judge to make a declaration of all assets. He further sought for information
relating to declaration of assets etc., furnished by the respective Chief Justices of States. By
order dated 30th November, 2007, the CPIO informed the applicant that a copy of the resolution
dated 7.5.1997 would be furnished on remitting the requisite charges. He was also told that
information relating to declaration of assets by the judges was not held by or under the control
of the Registry of the Supreme Court and, therefore, it could not be furnished.
3. The applicant challenged the second part of the impugned order which held that the CPIO
did not hold any information regarding the declaration of assets. It was also contended that if
the CPIO was not holding the information, he should have disclosed the authority holding such
information and should have referred the application to such an authority, invoking Section 6
(3) of the Right to Information Act.
***
The appellate authority remanded the matter for reconsideration, to the CPIO, observing as
follows:
“…to the above extent, I feel that the appellant is justified in contending that if the CPIO was
not holding the information, he should have considered the question of Section 6 (3). Regarding
the respective States, if the CPIO was not holding information, he should have considered
whether he should have invoked the provision under Section 6 (3) of the Right to Information
Act.
In the above circumstances, the impugned order to the above extent is liable to be remanded
back. The matter is remanded to the CPIO to consider the question whether Section 6(3) of the
Act, is liable to be invoked by the CPIO.”
After remission, the CPIO rejected the application, stating as follows:
102 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

“In the case at hand, you yourself knew that the information sought by you is related to various
High Court in the country and instead of applying to those Public Authorities you have taken a
short circuit procedure by approaching the CPIO, Supreme Court of India remitting the fee of
Rs.10/- payable to one authority and getting it referred to all the public authorities at the expense
of one Central Public Information Officer. In view of this, the relief sought by you cannot be
appreciated and is against the spirit of Section 6 (3) of the Right to Information Act, 2005.”
4. The Applicant approached the Central Information Commission (CIC). It was contended that
the CPIO had not followed the directions of the appellate authority, which originally remanded
the case, and decided whether the application had to be sent to another authority, as it was
expected to. It was also contended that the CPIO’s order maintained a studied silence about
disclosure of information about asset declaration by judges of the Supreme Court to the Chief
Justice of India (“CJI”) in accordance with the 1997 Resolution. The CPIO contended, before
the CIC, that the RTI application had two parts, the first part related to copy of Resolution,
which was provided to the applicant, and the second part related to declaration of assets by the
Supreme Court judges. The CPIO submitted that the Registrar of the Supreme Court did not
hold the information. It was submitted that the 1997 Resolution was an in-house exercise; and
the declaration regarding assets of the judges is only voluntary. The resolution itself describes
submission of such declarations as “Confidential”. It was also contended that disclosure of the
declarations would be breach of a fiduciary relationship. The CPIO further submitted that the
declarations were submitted to the Chief Justice of India not in his official capacity but in his
personal capacity and that any disclosure would be violate of the 1997 resolution, deemed such
declarations ‘confidential’. It was also contended that the disclosure would be contrary to the
provisions of section 8(1) of the Act.
5. The CIC, in its impugned order, reasoned that since the Supreme Court was established by
the Constitution of India and is a public authority within the meaning of Section 2(h) of the Act.
Section 2(e) (i) was referred, to say that the Chief Justice of India was a competent authority,
under the Act, empowered to frame Rules under Section 28 of the Act to carry out provisions
of the Act. It was held that rule making power is conferred by provisions of the Act, upon the
Chief Justice and the Supreme Court, who cannot disclaim being public authorities. The
applicant's appeal was allowed, on the following reasoning:
“16. The rule making power has been explicitly given for the purpose of carrying out the
provisions of the RTI Act. The Act, therefore, empowers the Supreme Court and the other
competent authorities under the act and entrusts upon them an additional responsibility of
ensuring that the RTI Act is implemented in letter and spirit. In view of this, the contention of
the respondent public authority that the provisions of Right to Information act are not applicable
in case of Supreme Court cannot be accepted.
17. The learned counsel appearing on behalf of the Supreme Court during the course of hearing
argued that the information concerning the declaration of assets by the judges is provided to the
Chief Justice of India in his personal capacity and it is "voluntary' and "confidential". From
what was presented before us. It can be inferred that the declaration of assets are filed with the
Chief Justice of India and the office of the Chief Justice of India is the custodian of this
information. The information is maintained in a confidential manner and like any other official
information it is available for perusal and inspection to every succeeding Chief Justice of India.
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 103

The information, therefore, cannot be categorized as "personal information" available with the
Chief Justices in their personal capacity.
18. The only issue that needs to be determined is as to whether the Chief Justice of India and
the Supreme Court of India are two distinct Public Authorities or one Public Authority. In this
context, it would be pertinent to refer again to the provisions of section 2(h) of the Right to
Information Act, the relevant part of which reads as under:
“2(h) “Public authority” means any authority or body or institution of self - government
established or constituted..."
19. The Public Authority, therefore, can only be an “authority” ‘body’ or an “institution” of
self, government, established or constituted, by or under the Constitution or by any other law,
or by an order made by the appropriate government.
20. The words “Authority, “body” or “institution” has not been distinctly defined in the Act, the
expression “authority” in its etymological sense means a Body invested with power to command
or give an ultimate decision, or enforce obedience or having a legal right to command and be
obeyed. Webster’s Dictionary of the English language defined “authorities as “official bodies
that control a particular department or activity, especially of the Government”. The expression
“other authorities” has been explained as authorities entrusted with a power of issuing
directions, disobedience of which is punishable as an offence, or bodies exercising legislative
or executive functions of the state or bodies which exercise part of the sovereign power or
authority of the State and which have power to make rules and regulations and to administer or
enforce them to the detriment of the citizens. In the absence of any statutory definition or
judicial interpretation to the contrary, the normal etymological meaning of the expression, has
to be accepted as the true and correct meaning.
21. According to the dictionary meaning, the term “institution” means a body or organization
or an association brought into being for the purpose of achieving some object. Oxford
Dictionary defines an "institution as a establishment, organization or an association instituted
for the promotion of some objects especially one of public or general utility, religious,
charitable, educational etc., The definition of the 'institution', therefore, includes an authority as
well as a body. By very implication, the three terms exclude an "individual". Even the Hon’ble
Apex Court in Kamaraju Venkata Krishna Rao v. Sub - collector, Ongole AIR 1969 SC 563
has observed that it is by no means easy to give definition of the word “institution” that would
cover every use of it. Its meaning must always depend upon the context in which it is found.
22. If the provisions of Article 124 of the Constitution are read in view of the above perspective,
it would be clear that the Supreme Court of India, consisting of the Chief Justice of India and
such number of judges as the Parliament may by law prescribe, is an institution or authority of
which the Hon’ble Chief Justice of India is the Head. The institution and its Head cannot be two
distinct public authorities. They are one and the same. Information, therefore, available with
the Chief Justice of India must be deemed to be available with the Supreme Court of India. The
Registrar of the Supreme Court of India, which is only a part of the Supreme Court cannot be
categorized as a Public Authority independent and distinct from the Supreme Court itself.
104 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

23. In view of this, the question of transferring an application under Section 6(3) of the Right
to Information Act by the CPIO of the Supreme Court cannot arise. It is the duty of the CPIO
to obtain the information that is held by or available with the public authority. Each of the
sections or department of a public Authority cannot be treated as a separate or distinct public
authority. If any information is available with one section or the department, it shall be deemed
to be available with the Public Authority as one single entity CPIO cannot take a view contrary
to this.
24. In the instant case, admittedly, the information concerning the judges of the Supreme Court
is available with the Supreme Court and the CPIO represents the Supreme Court as a public
authority. Under the RTI Act, he is, therefore, obliged to provide this information to a citizen
making an application under the RTI Act unless the disclosure of such information is exempted
under the law.
25. During course of hearing, it has been argued that the declaration of assets submitted by the
judges of the Supreme Court are confidential and the information has been provided to the chief
justice of India in a fiduciary relationship and as such, its disclosure is exempted under Section
8(1) (e) of the RTI Act.
26. In this context it will be pertinent to reiterate what the appellant has asked for in his RTI
Application and which is as follows:
I will be obliged if your honour very kindly arranges to send me a copy of the said resolution
passed by the judges of the Supreme Court on 7.5.2007.
I will be obliged if your honour kindly provides me information on any such declaration of
assets etc. ever filed by Hon’ble judges of the Supreme Court. Kindly also arrange information
if High Court judges are submitting declaration about their assets etc. to respective Chief
Justices in States.
27. The information in regard to point (i) as above has already been provided. As regards the
information covered by point No. (ii) & (iii) above, the same has been denied on the ground
that it is not held by or under the control of the Registrar of the Supreme Court of India and,
therefore, cannot be furnished by the CPIO.
28. The First Appellant Authority while deciding the matter assumed that the CPIO of the
Supreme Court was not holding the information concerning the declaration of the assets made
by the High Court judges and that this information is held by the chief justices of the State High
Courts and accordingly, he observed that the appellant is justified in contending that if the CPIO
was not holding the information, he should have considered the question of invoking Section
6(3)of the RTI Act. Accordingly, the matter was remanded back by him to the CPIO of the
Supreme Court for fresh consideration on limited point i.e. transfer of application to various
High Courts u/s 6(3) of the RTI Act.
29. CPIO on receiving the matter back on remand rejected the application of the appellant. It
appears that both the CPIO and the first Appellant Authority have remained silent as regards the
information concerning declaration of assets by the judges of the Supreme Court. At the time
of hearing, it was admitted that the information concerning declaration of the assets by the
judges of the Supreme Court is not available with the Registry, but the office of the Chief Justice
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 105

of India holds the same. The information requested under the RTI Act was denied only on the
ground that the Registry does not hold the information. But the first appellate authority did not
find as to where the information is available. The CPIO maintained silence as regards this matter
even after he received the matter on remand. At the time of hearing before this Commission,
however, it was submitted that the information might be available with the office of the Chief
Justice of India. It is clear that neither the CPIO nor the First Appellate Authority has claimed
that the information asked for by the appellant is exempt either under Section 8 (1) (e) of the
Act being received in fiduciary relationship or that this information is ‘personal information’
attracting exemption under section 8 (1) (j).
30. The appellant Shri S.C. Agrawal is apparently not seeking a copy of the declarations or the
contents therein or even the names etc. of the judges filing the declaration, or is he requesting
inspection of any such declaration already filed. He is seeking simple information as to whether
any such declaration of assets etc., has ever been filled by the judges of the Supreme Court or
High Courts. What he is seeking cannot be held to attract exemption under Sections 8(1)(e) or
8(1) (j).
31. The only question that remains to be decided is as to whether CPIO was justified in turning
down the request of the Appellant to transfer the RTI application to the concerned CPIO of the
High Courts even after the Fist Appellate Authority remanded the case to him. In this
connection, it may be mentioned that the request for transfer under section 6(3) of the Right to
information Act has been turned down on the ground that the appellant was well award that the
information is available with the respective High Courts which are separate and distinct public
authorities. This point has not been pressed at the time of hearing as such, it is not necessary to
decide this issue at this stage.
32. In view of what has been observed above, the CPIO of this 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 day form the date of receipt of this decision notice.”

***
11. It is next argued that any disclosure made by judges, pursuant to the 1997 resolution, is not
a public act done in the discharge of duties of their office. The petitioners elaborate this by
saying that the Act is aimed at ensuring access to all actions of public officials done or
performed during the course of their official duties. Such being the case, the declaration of
personal assets, by individual judges, has nothing to do with their duties, as judges. The
petitioners again emphasize the voluntary nature of such disclosure, and absence of any legal
sanction as a result of non-disclosure.

16. The respondent next submits that Section 8 of the Act, in the statutory scheme, exempts
certain classes of information. (The provision begins with a non-obstante clause); it is argued
that exemptions contain several legitimate grounds for excluding information from public
scrutiny in public interest. No other ground for excluding information which exists with any
106 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

public authority can be deduced under the Act, particularly in respect of information merely
marked “confidential”. The only exemption there in connection with this is the exemption under
clause 8 (1) (j) which deals with 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. However this information may also be
disclosed if 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. It is argued that by no stretch of imagination can the query
whether judges have declared their assets, be considered exempt; there is no question of any
confidentiality or privacy. The respondents argue that the information sought is only in this
regard. It was however argued, that the question of contents of asset declarations and access are
also intrinsically linked to this issue, since they involve the examination of the same legal
regime.
17. It is submitted that this issue has been settled by the Supreme Court in 2002, and 2003 in
its judgment in Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112, and
People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363, where the Court held
that the fundamental right of citizens, under Article 19 (1) (a) includes the citizens’ right to
know the assets and liabilities of candidates contesting elections to parliament or to the State
Legislatures, thereby seeking to hold positions of responsibility in Government. In para 50 of
their judgment in the Association for Democratic Reforms case, it was held that:
“Mr. Ashwni Kumar, learned senior counsel appearing on behalf of the intervenor submitted
that the aforesaid observations are with regard to citizens right to know about the affairs of the
Government, but this would not mean that citizens have a right to know the personal affairs of
MPs or MLAs. In our view this submission is totally misconceived. There is no question of
knowing personal affairs of MP’s or MLAs. The limited information is whether the person who
is contesting elections is involved in any criminal case and if involved, what is the result?
Further, there are widespread allegations of corruption against the persons holding post and
power. In such a situation, question is not of knowing personal affairs but to have openness in
democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence,
citizens who elect MPs or MLAs are entitled to know that their representative has not
misconducted himself in collecting wealth after being elected. This information could be easily
gathered only if prior to election, the assets of such person are disclosed...”

21. Dealing with the contention regarding exemption under Section 8(1)(j), the respondent
argues that asset information of electoral aspirants are not deemed private or personal
information, and blanket exemption cannot be granted; reliance is placed on the Association for
Democratic Reforms case. It is also contended that likewise judges are public functionaries, and
in their official capacity, make declarations, and immunity cannot be granted to them. Counsel
disputes the petitioners’ submission that independence of the judiciary would be undermined,
if access to asset declaration is permitted. It is emphasized that if information is given to the
Government, possibly independence of the judiciary would be compromised; however, public
disclosure of the declaration, under the Act will allow access to the public,
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 107

which would thwart attempt at blackmailing of individual judges, or “corrosion” of their

independence.
27. The previous narration of events and submissions would reveal that the petition involves
the following points, that are to be ruled upon by the Court:
(1) Whether the CJI is a public authority;
(2) Whether the office of CPIO, of the Supreme Court of India, is different from the office of
the CJI; and if so, whether the Act covers the office of the CJI;
***
(5) Whether such information is exempt from disclosure by reason of Section 8(1) (j) of the
Act;
***
Point Nos. 1 and 2:
28. Both these points are taken up for consideration, together, for convenience, as they involve
analysis of related issues. Before a decision on the point, a few words about the Act are
necessary. Under the scheme of the Information Act, “record”, “information”, are held by
defined “public authorities”. By virtue of Sections 3, 5, 6 and 7, every public authority requested
to provide information is under a positive obligation to do so; the information seeker is under
no obligation to disclose why he requests it. Public authorities, as noticed above are defined by
Section 2(h) as-
“means any authority or body or institution of self - government established or
constituted- (a) by or under the Constitution of India.”
Section 4 obliges public authorities to publish various specified classes of information. The
information provider or the concerned agency is, under the Act, obliged to decide the
applications, of information seekers, within prescribed time limits. A hierarchy of authorities
is created with the CIC, at the apex to decide disputes pertaining to information disclosure. In
this Scheme, the Parliament has in its wisdom, visualized certain exemptions. Section 6
enjoins that information disclosure is the norm; in case the public authority who is
approached, does not possess the information sought, the Public Information Officer (PIO)
has to forward the application, under Section 6(3) to the authority who actually holds the
information; in that situation, the latter authority is accountable for disclosure of the
information. Section 8 lists exemptions; it opens with a non-obstante clause, signifying the
intention that irrespective of the rights of the information seeker, in regard to matters listed
under that provision, the information providers can justifiably withhold access to the
information seeker the record, information or queries sought for by him (i.e. the information
seeker or applicant).
29. The Act arguably is one of the most important pieces of legislation, in the post independence
era, to effectuate democracy. It may be likened to a powerful beacon, which illuminates unlit
corners of state activity, and those of public authorities which impact citizens’ daily lives, to
which they previously had no access. It mandates disclosure of all manner of information, and
abolishes the concept of locus standi, of the information applicant; no justification for applying
(for information) is necessary; indeed, Section 6(2) enjoins that reasons for seeking such
108 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

information cannot be sought- (to a certain extent, this bar is relieved, by Section 8). Decisions
and decision making processes, which affect lives of individuals and collectives can now been
subjected to gaze; if improper motives, or reasons contrary to law or avowed policies are
discernable, those actions can be questioned. Parliamentary intention in enacting this law was
to arm citizens with the mechanism to scrutinize government and public processes, and ensure
transparency. At the same time, however, the needs of society at large, and governments as well
as individuals in particular, to ensure that sensitive information is kept out of bounds, have also
been accommodated, under the Act. This has been addressed at two levels: one, by taking a
number of security and intelligence related organizations out of purview of the Act, and two,
by enacting specified exemptions - from disclosure, on grounds of public interest.

30. As noted previously, “public authority” has been widely defined; it includes an authority
created by or under the Constitution of India. The CIC concluded that the CJI is a public
authority, on a facial reading of Article 124. The provision is under the heading “Establishment
and constitution of the Supreme Court,” and in the relevant part, it says that “There shall be a
Supreme Court of India consisting of a Chief Justice of India and...” The Act, notes the CIC,
also provides for competent authorities defined by Section 2(e). The CJI is one such specified
competent authority, in relation to the Supreme Court, under Section 2(e) (ii) of the Act and
Section 28 empowers him to frame Rules to carry out purposes of the Act. In view of these
provisions, the court is of opinion that the CIC did not commit any error in concluding that the
CJI is a public authority.
31. The second point, which flows out of the first, requires further examination. It is contended
that the office of the CJI is different from that of the Registry (of the Supreme Court); the further
contention here appears to be that the CJI performs a verisimilitude of functions, than merely
as Chief Justice of the Supreme Court, and in such capacity, through his office, separately holds
asset declarations, and information relating to it, pursuant to the 1997 resolution.
32. That the Constitution recognizes the CJI's prominent role in higher judicial appointments is
stating the obvious. He is, unlike the United States (where the Chief Justice is the Chief Justice
of the US Supreme Court) the Chief Justice of India. This prominent role as “head of the
judiciary” or the judicial family, if one may use a well worn term, was underlined by a
Constitution Bench of the Supreme Court in K. Veeraswami v. Union of India 1991 (3) SCC
655, where the court, by the majority and concurring judgments held that members of the higher
judiciary (High Courts and the Supreme Court) are covered by the Prevention of Corruption
Act, and can be prosecuted, provided the CJI is consulted beforehand, and consents to that
course. Mr. Justice J.S. Verma (who later held the office of Chief Justice of India with
distinction) dissented; he held that the Prevention of Corruption Act, according to its scheme,
as existing, does not apply to constitutional functionaries, such as Judges of the High Courts,
Judges of the Supreme Court, the Comptroller and Auditor General and the Chief Election
Commissioner. Though not a "vertical" superior (to borrow a phrase from the dissenting opinion
in Veeraswami) nevertheless the CJI discharges various other functions. The question is
whether those are exempted from the Act.
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 109

34. Now, there cannot be any two opinions about the reality that the Chief Justice of India
performs a multitude of tasks, specifically assigned to him under the Constitution and various
enactments; he is involved in the process of appointment of judges of High Courts, Chief
Justices of High Courts, appointment of Judges of Supreme Court, transfer of High Court judges
and so on. Besides, he discharges administrative functions under various enactments or rules,
concerning appointment of members of quasi judicial tribunals; this may be by him, or
nominees (other Supreme Court judges) appointed by him. He is also involved in the
administration of legal aid, and heads policy formulation bodies, under law, in that regard, at
the national level; he heads the judicial education programme initiative, at the national level. It
is quite possible therefore, that the Chief Justice, for convenience maintains a separate office or
establishment. However, the petitioners did not urge about these aspects, or bring any other
facts to this court’s notice.
35. What this court cannot ignore, regardless of the varied roles of the CJI, is that they are
directly relatable to his holding the office of CJI, and heading the Supreme Court. His role as
Chief Justice of India, is by reason of appointment to the high office of the head of the Supreme
Court. The first petitioner did not assign the application to either the CJI or any other office or
authority; it is not also urged that such office has a separate establishment, with its own Public
Information Office, under the Act. There is no provision, other than Section 24, exemption
organizations. That provision exempts, through the Second Schedule (to the Act), the
Intelligence Bureau, Research and Analysis Wing of the Cabinet Secretariat; Directorate of
Revenue Intelligence; Central Economic Intelligence Bureau, Directorate of Enforcement,
Narcotic Control Bureau, Aviation Research Centre, various para-military forces, and named
police establishments. Section 24(2) empowers the Central Government, by notification to vary
the Second Schedule, and add other organizations. There is no clue in these provisions, that the
office of the Chief Justice of India, is exempt; on the contrary, internal indications in the
enactment point to even the President of India, being covered by the Act (Section 2(h) and
Section 2(e) (iv)). To conclude that the CJI does not hold asset declaration information in his
capacity as Chief Justice of India, would also be incongruous, since the 1997 resolution
explicitly states that the information would be given to him. In these circumstances the court
concludes that 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.
The second point stands decided, accordingly.

***

60. The petitioners argue that the information sought for is exempt from disclosure by reason
of Section 8 (1) (j) of the Act. The argument here is that such class of information - about
personal asset declarations has nothing to do with the individual’s duties required to be
discharged, as a judge, an obvious reference to the first part of Section 8 (1) (j); it is also
emphasized that access to such information would result in unwarranted intrusion of privacy.
The applicant counters the submission and says that details of whether declarations have been
made, to the CJI can hardly be said to be called “private” and that declarations are made by
110 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

individual judges to the CJI in their capacity as judges. It is submitted that the present
proceeding is not concerned with the content of asset declarations.
61. The scheme of the Act, visualizes certain exemptions from information disclosure. Section
8 lists these exemptions; it opens with a non-obstante clause, signifying the intention that
irrespective of the rights of the information seeker, in regard to matters listed under that
provision, the information providers can justifiably withhold access to the information seeker
the record, information or queries sought for by him. Section 8 (1) (j) says that disclosure may
be refused if the request pertains to:
“personal information the disclosure of which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of the privacy of the individual”
If, however, the information applicant can show sufficient public interest in disclosure, the bar
(preventing disclosure) is lifted, and after duly notifying the third party (i.e. the individual who
is concerned with the information or whose records are sought) and after considering his views,
the authority can disclose it.
62. The right to access public information, that is, information in the possession of state
agencies and governments, in democracies is an accountability measure empowering citizens
to be aware of the actions taken by such state “actors”. This transparency value, at the same
time, has to be reconciled with the legal interests protected by law, such as other fundamental
rights, particularly the fundamental right to privacy. Certain conflicts may underlie particular
cases of access to information and the protection of personal data, arising from the fact that both
rights cannot be exercised absolutely in all cases. The rights of all those affected must be
respected, and no single right must prevail over others, except in clear and express
circumstances. To achieve these objectives, and resolve the underlying the tension between the
two (sometimes) conflicting values, the Act reveals a well-defined list of 11 kinds of matters
that cannot be made public, under section 8(1)(j). There are two types of information seen as
exceptions to access; the first usually refers to those matters limited only to the State in
protection of the general public good, such as national security, international relations,
confidentiality in cabinet meetings, etc. The second class of information with state or its
agencies, is personal data of individual citizens, investigative processes, or confidential
information disclosed by artificial or juristic entities, like corporations, etc. Individuals’
personal data is protected by the laws of access to confidential data and by privacy rights. Often
these guarantees - right to access information, and right to privacy, occur at the same regulatory
level. The Universal Declaration of Human Rights, through Article 19 articulates the right to
information; Article 12, at the same time, protects the right to privacy:
“no one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks”.

64. Ironically the right to privacy, a recognized fundamental right by our Supreme Court, has
found articulation - through a safeguard, though limited, against information disclosure, under
the Act. In India, there is no law relating to data protection, or privacy; these have evolved
through the interpretive process. The right to privacy, characterized by Justice Brandeis in his
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 111

memorable dissent, in Olmstead v. United States, 277 US 438 (1928) as “right to be let alone...
the most comprehensive of rights and the right most valued by civilised men” is recognized
under our Constitution by the Supreme Court in four rulings - Kharak Singh v. State of U.P.
(1964) 1 SCR 332; Gobind v. State of M.P., (1975) 2 SCC 148; R. Rajagopal v. State of T.N.,
(1994) 6 SCC 632; and District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496.
These judgments, however did not explore the latent tension between the two values of
information rights and privacy rights; Rajagopal, which is nearest in point, was concerned to
an extent with publication of material that was part of court records.
65. It has been held by a Constitution Bench of the Supreme Court that an individual does not
forfeit his fundamental rights, by becoming a public servant, in O.K. Ghosh v. E.X. Joseph
AIR 1963 SC 812. In Kameshwar Prasad v. State of Bihar AIR 1962 1166, the Supreme
Court repelled an argument that public servants do not possess fundamental rights, through
another Constitution Bench, as follows:
“It was said that a Government servant who was posted to a particular place could obviously
not exercise the freedom to move throughout the territory of India and similarly, his right to
reside and settle in any part of India could be said to be violated by his being posted to any
particular place. Similarly, so long as he was in government service he would not be entitled to
practice any profession or trade and it was therefore urged that to hold that these freedoms
guaranteed under Art. 19 were applicable to government servants would render public service
or administration impossible....
...................... ......................... ..........................
We find ourselves unable to accept the argument that the Constitution excludes Government
servants as a class from the protection of the several rights guaranteed by the several Articles
in Part III save in those cases where such persons were specifically named. 14. In our opinion,
this argument even if otherwise possible, has to be repelled in view of the terms of Art. 33.
That Article select two of the Services under the State-members of the armed forces charged
with the maintenance of public order and saves the rules prescribing the conditions of service
in regard to them - from invalidity on the ground of violation of any of the fundamental rights
guaranteed by Part III and also defines the purpose for which such abrogation or restriction
might take place, this being limited to ensure the proper discharge of duties and the
maintenance of discipline among them. The Article having thus selected the Services
members of which might be deprived of the benefit of the fundamental rights guaranteed to
other persons and citizens and also having prescribed the limits within which such restrictions
or abrogation might take place, we consider that other classes of servants of Government in
common with other persons and other citizens of the country cannot be excluded from the
protection of the rights guaranteed by Part III by reason merely of their being Government
servants and the nature and incidents of the duties which they have to discharge in that
capacity might necessarily involve restrictions of certain freedoms as we have pointed out in
relation to Art. 19(1)(e) and (g).” (emphasis supplied)
The above discussion would mean that an individual or citizen’s fundamental rights, which
include the right to privacy - are not subsumed or extinguished if he accepts or holds public
office. Section 8(1) (j) is an affirmation of this; it ensures that all information furnished to public
112 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

authorities - including personal information (such as asset disclosures) are not given blanket
access; the information seeker has to disclose a sustainable public interest element for release
of the information.
66. It could arguably be said that that privacy rights, by virtue of Section 8(1)(j) whenever
asserted, would prevail. However, that is not always the case, since the public interest element,
seeps through that provision. Thus when a member of the public requests personal information
about a public servant, - such as asset declarations made by him- a distinction must be made
between the personal data inherent to the position and those that are not, and therefore affect
only his/her private life. This balancing task appears to be easy; but is in practice, not so, having
regard to the dynamics inherent in the conflict. If public access to the personal data containing
details, like photographs of public servants, personal particulars such as their dates of birth,
personal identification numbers, or other personal information furnished to public agencies, is
requested, the balancing exercise, necessarily dependant and evolving on a case by case basis,
would take into account of many factors which would require examination, having regard to
circumstances of each case. These may include:
i) whether the disclosure of the personal information is with the aim of providing knowledge of
the proper performance of the duties and tasks assigned to the public servant in any specific
case;
ii) whether the information is deemed to comprise the individual's private details, unrelated to
his position in the organization, and,
iii) whether the disclosure will furnish any information required to establish accountability or
transparency in the use of public resources.
Section 8(1)(j)'s explicit mention of privacy, therefore, has to be viewed in the context. Lord
Denning in his “What next in Law”, presciently emphasized the need to suitably balance the
competing values, as follows:
“English law should recognise a right to privacy. Any infringement of it should give a cause of
action for damages or an injunction as the case may require. It should also recognise a right of
confidence for all correspondence and communications which expressly or impliedly are given
in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions
are to be allowed whenever the public interest in openness outweighs the public interest in
privacy or confidentiality. In every instance it is a balancing exercise for the Courts. As each
case is decided, it will form a precedent for others. So a body of case-law will be established.”
67. A private citizen's privacy right is undoubtedly of the same nature and character as that of
a public servant. Therefore, it would be wrong to assume that the substantive rights of the two
differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good,
in the discharge of his duties, and is accountable for them. The character of protection, therefore,
afforded to the two classes - public servants and private individuals, is to be viewed from this
perspective. The nature of restriction on the right to privacy is therefore of a different order; in
the case of private individuals, the degree of protection afforded is greater; in the case of public
servants, the degree of protection can be lower, depending on what is at stake. Therefore, if an
important value in public disclosure of personal information is demonstrated, in the particular
facts of a case, by way of objective material or evidence, furnished by the
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 113

information seeker, the protection afforded by Section 8(1)(j) may not be available; in such
case, the information officer can proceed to the next step of issuing notice to the concerned
public official, as a "third party" and consider his views on why there should be no disclosure.
The onus of showing that disclosure should be made, is upon the individual asserting it; he
cannot merely say that as the information relates to a public official, there is a public interest
element. Adopting such a simplistic argument would defeat the objective of Section 8(1)(j);
Parliamentary intention in carving out an exception from the normal rule requiring no "locus"
by virtue of Section 6, in the case of exemptions, is explicit through the non-obstante clause.
69. There is another aspect to this issue. The obligation to spell out what class of information
exists with each public authority, is provided in Section 4; the relevant part reads as follows:
“Section 4. Obligations of public authorities: (1) Every public authority shall- (a) Maintain all
its records duly catalogued and indexed in a manner and the form which facilitates the right to
information under this Act and ensure that all records that are appropriate to be computerized
are, within a reasonable time, and subject to availability of resources, computerized and
connected through a network all over the country on different systems so that access to such
records is facilitated;
(b) publish within one hundred and twenty days from the enactment of this
Act:- (i) particulars of its organization, functions and duties;
(ii) the powers and duties of its officers and employees;
***
(iv) the norms set by it for the discharge of its functions;
***
(vi) a statement of the categories of documents that are held by it or under its
control ***
(xiv) details in respect of the information, available to or held by it, reduced in electronic
form; ***
(2) It shall be a constant endeavour of every public authority to take steps in accordance with
the requirements of clause (b) of sub-section (1) to provide as much information suo motu to
the public at regular intervals through various means of communication, including internet,
so that the public have minimum resort to the use of this Act to obtain information....” 70. The
obligation to provide unimpeded access, to information, even through the internet, however, is
lifted in case of the 11 categories or classes of information, mentioned in Section 8; this is
apparent from the opening words “Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen...” If these two provisions are seen together, the primary
obligation to facilitate public access - even through internet, cast by Section 4, does not apply
in respect of information that would fall under Section 8. The norm, (by virtue of the subject
matter of Section 8, and the non-obstante clause) is non-disclosure, of those categories which
fall under the exemptions. Now, Section 8 (1) (j) clearly alludes to personal information the
disclosure of which has no relationship to any public activity or interest, or which would
114 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

cause unwarranted invasion of the privacy of the individual. If public servants - here the
expression is used expansively to include members of the higher judiciary too - are obliged to
furnish asset declarations, the mere fact that they have to furnish such declaration would not
mean that it is part of public activity, or “interest”. As observed earlier, a public servant does
not cease to enjoy fundamental rights, upon assuming office. That the public servant has to
make disclosures is a part of the system's endeavor to appraise itself of potential asset
acquisitions, which may have to be explained properly. However, such acquisitions can be made
legitimately; no law bars public servants from acquiring properties, or investing their income.
The obligation to disclose these investments and assets is to check the propensity to abuse a
public office, for private gain. If the information applicant is able to demonstrate what Section
8(1) (j) enjoins the information seeker to, i.e. that "the larger public interest justifies the
disclosure of such information" the authority deciding the application can proceed to the next
step, after recording its prima facie satisfaction, to issue notice to the “third party” i.e. the public
servant who is the information subject, why the information sought should not be disclosed.
After considering all these views and materials, the CPIO or concerned State PIO, as the case
may be can pass appropriate orders, including directing disclosure. This order is appealable.
71. Section 8 (1) in the opinion of the court, confers substantive rights even while engrafting
procedural safeguards, because of the following elements:
(1) Personal information and privacy rights being recognized by Section 8 (1) (j), as the
substantive rights of third parties;
Due satisfaction of the CPIO or the State PIO, that disclosure of such personal information is
necessary and in the public interest - which is to be arrived at on the basis of objective
materials;
The satisfaction being recorded after hearing or considering the views of the third party whose
information is in issue, in accordance with the procedure prescribed in Section 11; (2) The
satisfaction being recorded in writing, through an order, under Section 11 (3); (3) The order, if
adverse to the third party, is appealable (Section 11 (4)). 72. The respondents had relied on
Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112, and contended
that in a democracy, public officials, including members of the higher judiciary are under a
duty to disclose their assets. The context of that decision was whether electoral aspirants, i.e.
candidates to elective office, in the absence of statutory obligation, could be compelled to
disclose their assets. The Supreme Court said that they could be, affirming this court’s
decision, and significantly observing that if a law had existed, courts would have been bound
by its terms.

73. Being a participant in the democratic process, where law and policy makers are elected, the
court reasoned that the “little” man cannot be kept in the dark, about the individuals who offer
themselves as candidates, in elections. The situation here is radically different, to say the least.
One, a statute occupies the field, in the form of the Right to Information Act, whose provisions
were not considered by the Supreme Court, in the above case. Two, India did not choose the
US model of either electing judges, or subjecting their appointment to a confirmation process
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 115

(as in the case of the Federal Judiciary) where the legislature plays a prominent participatory
role. Three, any obligations and safeguards have to be seen in the context of the statutory
mandate, and the court cannot, on vague notions of transparency, detract from well established
values of independence. It is one thing to say that judges are accountable, and have to make
asset declarations; for extension of complete and uninhibited access to the contents, of asset
declarations, by invoking transparency, a mere demand is insufficient, as the court would be
decreeing something which the law not only does not provide, but for which the existing law
makes explicit provisions to the contrary. Most importantly, it would be wrong for the court to,
for this purpose equate the two class of public servants - i.e. legislators and members of the
higher judiciary. Apart from the inalienable value of independence of the judiciary, which is
entrenched in the Constitution, and guaranteed by various provisions, judges’ tenure is secured
till retirement, subject to good behaviour (the threshold of their removal being very high),
whereas legislators, Parliamentarians and the top most echelons of the Government, at
ministerial level, occupy office as long as the people choose to keep them there, or as long as
the concerned individual has the confidence of the Prime Minister or Chief Minister (in the case
of a minister, in the cabinet or council of minister). Rhetoric and polemics apart, there is no
reason to undermine the protections provided by law, merely because some members of the
public believe that judges ought to permit unimpeded disclosure of their personal assets to the
public. The obligation to give access or deny access to information, is today controlled by
provisions of the Act, as it presently exists. It nowhere obliges disclosure of assets of spouses,
dependants and children - of judges. Members of the higher judiciary are, in this respect entitled
to the same protection - and exemptions- as in the case of other public servants, including
judicial officers up to the District Judge level, members of All India services, and other services
under the Union. The acceptance of such contentions, in disregard of express provisions of law,
can possibly lead to utterly unreasonable demands for all kinds of disclosure, from all classes
of public servants - which would be contrary to statutory intendment.
74. In this court’s opinion Section 8(1)(j) is both a check on the power of requiring information
dissemination, (having regard to its potential impact on individual privacy rights,) as well as a
mechanism whereby individuals have limited control over whether personal details can be made
public. This safeguard is made in public interest in favour of all public officials and public
servants. There can be no manner of doubt that Supreme Court and High Court judges are public
servants (K. Veeraswami established that). They are no doubt given a high status, and afforded
considerable degree of protections, under the Constitution; yet that does not make them public
servants any less. If that is the true position, the protection afforded by Section 8(1) (j) to judges
is of no lesser quality than that given to other public servants, in this regard. To hold otherwise
would be incongruous, because, members of the higher judiciary are held to self imposed
obligatory Constitutional standards, and their asset disclosures are held, (by this judgment), to
be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived
of the protection that the same enactment extends to all those covered by it. It cannot be that
judges’ being held to high standards, on the basis of norms articulated by the 1997 resolution
and the judicial conference resolution of 1999, should place their asset declarations outside of
the Act - a demand never made by the applicant, whose case from inception of these proceeding
has been that they are subjected to the Act, being "information". Therefore, as regards contents
of the declaration, information applicants would have to, whenever they approach the
116 CPIO, Supreme Court of India v. Subhash Chandra Aggarwal

authorities, under the Act, satisfy them under Section 8(1)(j) and cross the threshold of revealing
the “larger public interest” for disclosure, as in the case of all those covered by the said
provision. For the purposes of this case, however, the particulars sought do not justify or warrant
that protection; all that the applicant sought is whether the 1997 resolution was complied with.
That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j).
75. In view of the above discussion, 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.
84. The above discussion and conclusions in this judgment are summarized as follows: 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.
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.
CPIO, Supreme Court of India v. Subhash Chandra Aggarwal 117

85. In this case, the appellate authority had recorded inter alia, that:
“A perusal of the application dated 10.11.2007 discloses that the appellant had sought for
information relating, to the declaration of assets by the Hon'ble Judges of the Supreme Court as
well as the Chief Justice of the States.”
In view of the findings recorded above, the first petitioner CPIO shall release the information
sought by the respondent applicant- about the declaration of assets, (and not the contents of the
declarations, as that was not sought for) made by judges of the Supreme Court, within four
weeks. The writ petition is disposed of in terms of this direction; in the circumstances, the
parties shall bear their own cost.
Copies of this judgment be given Dasti to counsel for the parties.
*****