Central Information Commission
Jitendra Nath Singh vs Supreme Court Of India on 23 April, 2021
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
द्वितीय अपील संख्या / Second Appeal No. CIC/SCOFI/A/2018/150916
Shri Jitendra Nath Singh ... अपीलकताा /Appellant
(Heard through video conference)
VERSUS/बनाम
PIO, Supreme Court of India
Through Shri Ajay Aggrawal, Advocate, CPIO; and
Shri Bharat Singh, Advocate.
(Heard through video conference)
...प्रद्वतवादीगण /Respondent
Date of Hearing : 25.01.2021
Date of Interim Decision : 27.01.2021
Date of Final Decision : 23.04.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 23.04.2018
PIO replied on : 22.05.2018
First Appeal filed on : 12.06.2018
First Appellate Order on : 10.07.2018
2ndAppeal/complaint received on : 17.08.2018
Information soughtand background of the case:
The Appellant filed an RTI application dated 23.04.2018 seeking certain clarifications and also certified copy of D.O. letters dated 03.10.2014 & 16.03.2017. The CPIO/Addl. Registrar vide letter dated 22.05.2018 replied as under:-
Point No. (i)-(iii) & [(iv) (First Part)]: It is beyond thejurisdiction and scope of the duties of CPIO, Supreme Court of India under the Right to Information Act, 2005 to interpret the law, judgments/ orders of this Hon'ble Court or of anyother Court, to give explanation,opine, comment or advise onmatters. Your request is not covered under Section 2(f) of the Right to Information Act, 2005 and cannot be acceded to that extent.
Point No. (iv) (Second Part): The subject of communications Page 1 of 9 referred to being of confidential nature, are exempt under Section 8(1)(g), 8(1)(e) & 8(1)(j) of the Right to Information Act, 2005.
Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal dated 12.06.2018. The FAA, Supreme Court of India vide order dated 10.07.2018 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, virtual hearings were scheduled after giving prior notice to both the parties. Both the parties are heard through video conference. The Appellant relied on a letter no. 90/CPIO/HCLB/36/2018 dated 13.04.2018, received from the CPIO, Allahabad High Court (in response to his RTI application dated 12.02.2018), which referred to the DO letters of the Hon'ble Chief Justice of India. However, the information has been wrongly denied by the CPIO u/s.
8(1)(g), 8(1)(e) and 8(1)(j) of the RTI Act.
The Respondent contended that the contents of RTI Application are vague and not specific. He submitted that the desired information i.e. copy of Demi Official (D.O.)letters, is related to the personal opinion of the then CJI forwarded to the Allahabad High Court, which is informal in nature and exchanged in confidence. The Respondent during hearing apprised the Commission that as per Article 235 of the Indian Constitution, High Court is vested with the administrative power to control/supervise their subordinate courts and the Supreme Court does not have any such power. There is a fiduciary relationship between the High Court and the Supreme Court and this kind of correspondence especially D.O. letters between the two judges is in fiduciary capacity and the information related to such correspondence cannot be provided u/s. 8(1)(e), 8(1)(j) and 8(1)(g) of the RTI Act. In support of his arguments, the Respondent placed reliance on Supreme Court's decision in the case of CPIO, Supreme Court of India v. Subhash Chandra Agarwal & Anr. He further apprised the Commission that as per the procedure of law, the CPIO's reply should have been challenged by the Appellant before the concerned FAA of Allahabad High Court. However, the Appellant instead of following the due procedure has chosen to file a First Appeal before the Apex Court.
Upon being queried regarding filing of First Appeal before the FAA, AHC, the Appellant confirmed that he indeed did so. The Appellant has further drawn the attention of the Commission to the case of Budhan v. State of Bihar (AIR 1955 191) which has no bearing with the facts of the case in hand.
Page 2 of 9Interim Decision Upon hearing the arguments of both the parties at length, it is noted that the core issue to be decided herein is whether the copy(ies) of D.O. letters exchanged between the Chief Justice of India and Judge of Allahabad High Court are exempt from disclosure u/s. 8(1)(e), 8(1)(g) and 8(1)(j) of the RTI Act, 2005. In this regard, the Commission is not convinced with the submissions made by the Respondent claiming that the D.O. letter is an informal communication between the then CJI and the Judge of Allahabad High Court and confidential in nature.
In view of the above, Respondent- PIO, Supreme Court of India is directed to file a written submission to the Commission by 28.02.2021, explaining why the D.O. letters dated 03.10.2014 & 16.03.2017 of Hon'ble CJI mentioned by the CPIO in letter dated 13.04.2018 should not be provided/disclosed to the Appellant under the provisions of RTI Act, 2005. Based on the written submission so received from PIO- Supreme Court of India, the Commission shall pronounce its final decision in the instant matter.
Final Decision: 23.04.2021 The Commission is in receipt of written submissions dated 23.02.2021 from the Respondent, wherein the following relevant points have been highlighted:
i) Applicant filed an RTI application dated 12.02.2018 before the CPIO, High Court of Judicature at Allahabad seeking some information relating to his complaint dated 13.11.2017 filed before the Allahabad High Court. Upon receipt of reply dated 13.04.2018 from the PIO, Allahabad High Court, the Appellant approached the PIO, Supreme Court with RTI application dated 23.04.2018, instead of filing a First Appeal before the First Appellate Authority, Allahabad High Court.
ii) The DO letters dated 03.10.2014 and 16.03.2017 mentioned by the PIO, Allahabad High Court in letter dated 13.04.2018 are held in the custody of the High Court of Judicature at Allahabad. Thus PIO, Supreme Court is not the actual custodian of the information sought by the Appellant, nor can they part with the same. The Supreme Court Registry is only in possession of authenticated photocopy of the said communications after demitting of Office by the then CJI.
iii) The DO letters sought by the Appellant had been sent by the then Hon'ble Chief Justice of India to all Hon'ble Chief Justices of High Courts expressing his concern towards large number of complaints received in the High Courts against the subordinate judiciary, emphasising the need for devising a uniform procedure for dealing with such complaints and provided their Lordships' suggestions/inputs through these communications, which had been specifically marked as "confidential".Page 3 of 9
iv) The DO letters dated 03.10.2014 and 16.03.2017 sent by the then CJI to the then CJI, Allahabad High Court were sent as a general semi-
formal communication between the judges and do not form part of any official correspondence, and was specifically marked as "confidential".
v) The DO letters dated 03.10.2014 and 16.03.2017 were sent by the then CJI to the then Chief Justice, Allahabad High Court and the Chief Justices of other High Courts. The said letters had been sent much before in time than the Appellant's complaint dated 13.11.2017 and were not in the context of the Appellant's complaint dated 13.11.2017, filed before the High Court of Allahabad. Therefore, the said letters are not related to the Appellant's complaint.
vi) The decision passed by the Five Judge Constitution Bench of the Hon'ble Supreme Court of India in the case of CPIO, Supreme Court vs. Subhash Chandra Agarwal, (decided on 13.11.2019)has been quoted extensively by the Respondent justifying denial of the information, invoking provisions of Section 8(1)(e) and (j) of the RTI Act, 2005 specifically in the following manner:
a) The information sought by the Appellant was exchanged by the then CJI with the Chief Justice of Allahabad High Court in fiduciary capacity and hence attracted exemption u/s 8(1)(e) of the RTI Act. This provision has been dealt with in details in the above decision as follows:
34........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, 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.
Page 4 of 9b) On the issue of Public interest, the Respondent placed reliance on the following paragraph of the same decision:
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.
c) the Respondent supported their argument on the issue of judicial independence, quoting the following para of the above cited decision:
88......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 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.
Conclusion
1. In the light of the submissions put forth by the Respondent, it is noted that the Apex Court Five Bench decision dated 13.11.2019 cited by the Respondent in the case of CPIO, Supreme Court vs. Subhash Chandra Agarwal, is substantive and deals extensively with the aspects of fiduciary relationship, right to privacy, confidentiality, judicial independence and information held by the public authority, in the following paragraphs, apart from the excerpts cited by the Respondent:
"...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 Page 5 of 9 the fiduciary should protect the beneficiary and not promote personal self-interest...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.
Emphasis supplied The expression 'fiduciary relationship' was examined and explained by the Supreme Court in the celebrated decision of Central Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497, 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.
Thus in the light of the above decision, the Section 8(1)(e) of RTI Act implies that information made available to a person in his fiduciary relationship shall not be disclosed unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. In the instant case, the information viz. the Demi Official letters sought by the Appellant were shared by the then Chief Justice of India with Chief Justices of all High Courts, including Allahabad High Court, in fiduciary capacity. Since the communication exchanged among the Judges had no bearing with the Appellant or his complaint filed years later, disclosure of the DO letters has no bearing with any public interest, nor has the Appellant demonstrated an overwhelming public interest which will be served by disclosure of information.Page 6 of 9
2. Dealing with the next vital exemption cited by the Respondent justifying denial of the information, is the public interest test vis-à-vis breach of confidentiality. These conflicting concepts have also been discussed threadbare in the above mentioned decision, in the following words: "37. 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 Emphasis supplied The Court went on to cite the test adopted by Lord Goff in Campbell v. Mirror Group Newspapers Ltd. as:
"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.
Discussing the 'right to privacy', the Supreme Court in the same judgment of CPIO, SC vs. Subhash Chandra Agarwal observed as follows:Page 7 of 9
"38. .............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......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..."
3. The above discussion leads us to the 'overwhelming public interest' which can be the only reason for disclosure of information, otherwise exempt from disclosure under section 8(1)(j) of the RTI Act. In the instant case, facts indicate that the demi official letters sent by the then Chief Justice of India were marked as "confidential" information and sent to the Chief Justices of all High Courts to be held by the respective High Courts, under obligation of confidentiality. It contained personal views and opinions of the then CJI about devising a uniform procedure for dealing with complaints related to subordinate judiciary. The intent of the sender of the information was obviously not a wide circulation of the content therein, otherwise, the same information would have been disseminated in the form of a notification/Circular issued by the office of the Chief Justice of India and not as demi official letters. Information shared through these letters was intended to be utilised exclusively by the selected group viz. the Chief Justices of High Courts for bringing about improvisation in the judicial system and it has nowhere been substantiated by the Appellant, how disclosure of such information will serve larger public interest.
4.The last and most important aspect of this case is about the "actual custodian" of the information. The term 'information' as defined in Section 2(f) of the RTI Act, specifies that 'right to information' extends to information which is accessible by the public authority and 'held by or under the control of any public authority'. In this regard, the Supreme Court in the decision in the case of Subhash Agrawal(supra) discussed as follows:
"20..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 Page 8 of 9 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.
The Respondent has stated in their submissions that the information sought by the Appellant is actually held by the Chief Justices of the respective High Courts, including the Allahabad High Court, whereas being a demi official letter, no official copy of the same is maintained as such by the Supreme Court, except authenticated photocopy of the said letters. Thus, in terms of the aforesaid observation of the Apex Court, in the decision mentioned above, the information is not "held" by the CPIO, Supreme Court, for the lack of the requisite assumption by the public authority of responsibility or dominion over the information that is necessary before the public authority can be said to hold the information, for dissemination of the same. Consequently, no direction can be given to the CPIO, Supreme Court for providing copies of the DO letters dated 03.10.2014 and 16.03.2017.
At the same time, the Commission observes that the DO letters were relevant to the Appellant's case because his complaint dated 13.11.2017 was consigned to the record room by the then Administrative Judge, Azamgarh, vide order dated 13.04.2018 citing that the complaint was not in accordance with the DO letters dated 03.10.2014 and 16.03.2017. Hence, in the interest of justice, it is deemed appropriate that the matter at hand shall be transferred by the CPIO, Supreme Court to the Allahabad High Court for providing an accurate response stating clearly the deficiency in the complaint dated 13.11.2017, which led to it being consigned to the record room. A compliance report in this regard shall be submitted by the CPIO, SC before the Commission within four weeks of receipt of this order. A copy of this order alongwith complete set of the Second Appeal shall be marked by the Registry of this Bench to the PIO, Allahabad High Court and compliance report should be submitted by PIO, Allahabad High Court within eight weeks of receipt of this order. It is made clear that non-compliance of these directions shall attract penal action, as envisaged in the RTI Act.
The appeal is disposed off accordingly.
Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अद्विप्रमाद्वणत सत्याद्वपत प्रद्वत) S. K. Chitkara (एस. के. द्विटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 9 of 9