The Delhi High Court held on January 12 that the office of the Chief Justice of India comes under the ambit of the RTI Act. The landmark judgment has been hailed by  activists across the country even as it is seen as a setback for CJI K.G. Balakrishnan who was opposed to the idea of judges declaring their assets to public.

This case had its set of twists and turns.

In November 2007, Delhi-based social activist S.C. Agrawal filed an RTI application in the Supreme Court registry asking for (i) a copy of the 1997 Resolution of the full court of the Supreme Court and (ii) information on any such declaration of assets etc. ever filed by Supreme Court judges and further information if the high court judges were submitting declaration about their assets etc. to respective Chief Justices in States.

Agrawal had demanded the resolution which said that every judge of the SC should declare of his assets in the form of real estate or investment.

Hearing his plea, the Central Information Commission, in January 2009, said that the office of the CJI comes within the ambit of RTI Act and the SC should disclose information of the judges' assets.

The SC then moved the high court against the CIC order. In September, a single bench of the high court upheld the CIC order. The next month, the apex court challenged the single bench verdict before the division bench of the high court.

The division bench of the high court finally upheld the single bench order.

Let’s analyse on what basis the division bench of Chief Justice A.P. Shah, Justice Vikramjit Sen and Justice S. Murlidharan arrived at the decision.

After considering the judgment of the single judge, the division bench had three points to consider.

First issue was whether the respondent had any “right to information” under Section 2(j) of the Act regarding the 1997 Resolution of the Supreme Court Judges.

According to Section 2(j), there are two prerequisites to constitute right to information under the Act, that is, (i) the information should be accessible under the Act and (ii) such information should be held by or under the control of a public authority.

The appellant said that the phrases “held by”or “under the control of” necessarily implied a legal sanction behind the holding of or controlling such information. Since there was no legal biding on the apex court, there could not be any right in respect of such information under Section 2(j).

The division bench did not agree with the appellant. The court said that Section 2(j) would include not only information under the legal control of the public authority but also all such information which was otherwise received or used or consciously retained by the public authority in the course of its functions and its official capacity.

According to the order, there were any numbers of examples where there was no legal obligation to provide information to public authorities, but where such information was provided. The same would be accessible under the Act, for example, the registration of births, deaths, marriages, applications for election photo identity cards, ration cards, and PAN cards.

Therefore, the high court held that the respondent had '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 the 1997 Resolution.

Second point made by the SC was that the assets were declared before the CJI in his 'fiduciary' capacity as per Section 8(1)(e) of the Act and hence, could not be provided to the respondent.

As per Section 8 (1)(e), a public authority is under no obligation to furnish “information available to a person in his fiduciary relationship”.

Thrashing the arguments of the SC, the order said that the CJI could not 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. 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,” said the order.

Section 8(1) (j) was the third ground on which information was denied to the respondent. The attorney general argued that the information sought had no relationship to any public activity and would result in intrusion of privacy.

The court held that the respondent was simply asking whether the 1997 Resolution was complied with and this did not justify or warrant protection under Section 8(1)(j).

The court agreed with the single judge ruling that the contents of asset declarations, pursuant to the 1997 Resolution, were entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j).