• Ms. Kanika Balhara

Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal ((2020) 5 SCC 481)


Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal


(2020) 5 SCC 481


Supreme Court of India

Constitutional Bench - Hon’ble Justice Ranjan Gogoi, Hon’ble Justice NV Ramana, Hon’ble Justice D.Y. Chandrachud, Hon’ble Justice Sanjiv Khanna and Hon’ble Justice Deepak Gupta


Right to Information case (2019)


Transparency under the Right to Information Act, 2005 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.


  1. In November 2009, the Central Information Commission (CIC) ordered the Supreme Court of India to disclose information regarding the Collegium's decision making. The CIC order pertains to a Right to Information request made by activist Subhash Chandra Agarwal. In particular, the CIC ordered the Central Public Information Office (CPIO) of the Supreme Court to disclose correspondences between the Collegium and the government regarding the appointment of Justices HL Dattu, AK Ganguly and RM Lodha. At the time of appointment, these three judges were less senior than Justices AP Shah, AK Patnaik and VK Gupta.

  2. The Supreme Court appealed the November 2009 CIC order to itself. On 4 December 2009, the Supreme Court stayed (temporarily halted) the CIC order.

  3. The legitimacy of a similar CIC order had come before the Delhi High Court. On 6 January 2009, the CIC ordered the Supreme Court to disclose information regarding judges' personal assets, putting into effect Subhash Chandra Agarwal's RTI request. Mr. Agarwal sought to find out if Supreme Court justices had declared their assets to the Chief Justice of India.

  4. The Supreme Court's CPIO challenged this CIC order in the Delhi High Court (HC). On 2 September 2009, a single-judge Bench comprising Justice Ravindra Bhat upheld the CIC order. The Supreme Court CPIO appealed and in January 2010 a three-judge Delhi HC Bench referred it to the Supreme Court.

  5. On 26 November 2010, a two-judge Supreme Court Bench led by now retired Justice B Sudershan Reddy referred the matter to a three-judge Bench.

  6. On 17th August 2018, a three-judge Bench comprising former CJI Ranjan Gogoi, retired Justice Prafulla C Pant and Justice AM Khanwilkar referred the matter to a five judge Constitution Bench. They held that the matter involved constitutional questions relating to the separation of powers (independence of the judiciary) and the right to privacy.

  7. On 4th April 2019, the Constitution Bench reserved judgment.


  • Whether public disclosure of information held by the office of the CJI and collegium curtail the independence of the judiciary?

The question of judicial independence must be 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 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. A distinction must be drawn between the final opinion or resolutions passed by the collegium concerning 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, 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.

  • Whether Section 8(i)(e) and/or (j) of the RTI Act exempt the CJI from public disclosure of information, on the grounds of protecting fiduciary and personal information?

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 the 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.

The apex court concurred in its opinion with that of the Delhi High court stating that -

“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 the 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 is directed to be revealed, would result in a breach of such duty.”

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 Chief Justice of India in exercising his official functions following 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.


  1. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others (1995) 5 SCC 457

  2. Election Commission of India v. Dr Subramaniam Swamy, (1996) 4 SCC 104

  3. State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428

  4. S.P. Gupta v. Union of India, (1981) Supp. (1) SCC 87

  5. KS Puttaswamy v. Union of India, (2017) 10 SCC 1

  6. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300

  7. Kharak Singh v. State of U.P., AIR 1963 SC 1295

  8. State of U.P. v. Raj Narain and Others (1975) 4 SCC 428

  9. Reserve Bank of India v. Jayantilal N. Mistry (2016) 3 SCC 525

  10. Khanapuram Gandaiah v. Administrative Officer and Others (2010) 2 SCC 1

The author is a law graduate from the University School of Law & Legal studies, GGS IP University, New Delhi

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