CIC: Communications between Chief Justice of India and Union of India about the representations against former Chief Justice of India, Mr. K. G. Balakrishnan, is not privileged correspondence as per RTI Act or Constitution of India
24 Nov, 2014
Summary: Assuming for a moment that the information about ‘action taken’ on
request for probe against former CJI is privileged, such ‘privilege’ is not expressly
provided as ground for rejection of request for information under Section 8(1). Under
Section 8(1)(c) information, disclosure of which would cause breach of privilege of
Parliament or State Legislature cannot be given. The information sought has nothing to
do with the privilege of Parliament or State Legislature. The Correspondence between
Executive about a former CJI is not privileged correspondence as per any provision of
RTI Act or Constitution of India. It is not information given in fiduciary relationship.
Assuming again for a moment that disclosure of such information about probe about
former CJI would cause harm to ‘protected interest’, Section 8(2) comes to the aid of
disclosure. Section 8(2) says “…a public authority may allow access to information if
public interest in disclosure outweighs the harm to the protected interests”. Thus the
Commission finds that nondisclosure of what appellant sought would not serve any
public interest, would not harm any protected interest and in fact, public interest in its
disclosure would outweigh the probable harm, if any, to protected (if at all protected)
interests. As rightly pointed out by Justice Bhagwati, the Commission holds that the
Government’s privilege to withhold disclosure of documents is subject to the right to
information of the individual. Commission directs the Department of Legal Affairs to
provide the action taken information about request for probe about former CJI Justice K G Balakrishnan.
The appellant is present. The Public Authority is not represented by any officer.
FACTS 2.Appellant filed RTI application on 23.1.2013 seeking following information with respect to newsreport ‘Supreme Court tells government to decide on Balakrishnan Case’ ‘what about probe against NHRC Chief KG Balakrishnan’ dated 22.1.2013:
1. Is it true that Supreme Court directed Union government to take final decision on the
representation by committee of Judicial Accountability (CJA) seeking Presidential
reference on allegations against NHRC chairperson Mr Justice KG Balakrishnan as
also referred in enclosed newsreports?
2. Complete information together with related file noting/ correspondence/documents on
action taken on Supreme Court directive as referred in query above mentioning also
final decision on CJA representation against NHRC Chairperson Mr Justice KG Balakrishnan.
3. Has presidential reference been recommended on CJA representation against NHRC
Chairperson Mr Justice KG Balakrishnan.
Has Common Cause, concerned petitioner at Supreme Court, been informed about
outcome of representation by CJA seeking presidential reference of allegation against
NHRC Chairperson Mr Justice KG Balakrishnan.
5. Copies of CJA representations against Mr Justice KG Balakrishnan, Mr Justice Y K
Sabharwal and any other former Chief Justice of India together with complete
information on action taken on these representations, with related correspondence /file noting/ document
etc by department of Justice and/or any other concerned authority.
6. Copy of all communication between Common Cause and Union Government on CJA
representation against NHRC Chairperson against Mr Justice KG Balakrishnan
enclosing also copies of file notings made on corresponding with Common Cause.
7. Copies of all communication between CJA and Union government on CJA
representation against NHRC Chairperson Mr Justice KG Balakrishnan enclosing also
copies of filenoting made on corresponding with CJA.
8. Copies of al communications between CJA and Union government on representation
by CJA on allegation against any other former Chief Justice of India including Mr
Justice YK Sabharwal enclosing also copies of filenoting made on correspondence with CJA.
9. Complete information together with related correspondence/ filenoting/documents etc
on action taken on each aspect of my submission “ what about probe against NHRC
Chairperson Mr Justice KG Balakrishnan’ dt 22.1.2013 routed to department of justice
through PG portal either by department of justice or by any public authority where
these submissions has been forwarded by Department of Justice.
Copies of following letter send by dept of Justice to Supreme Court/High Court with
complaints of Supreme Court and High Court including against Chief Justice if any forward in the year 2012 and 2013.
11. Any other related information.
12. File Noting on movement of this RTI petition.
3. PIO replied on 13.2.2013. On points no. 13, CPIO stated that “the Supreme Court while
disposing writ petition W.P No. (C) No. 35 of 2012 in the matter of Common Cause vs. UOI
suggested the competent authority to take decision on CJA communication. Shri Justice
Balakrishnan has since retired as Chief Justice of India and this department has no authority to
investigate a requisite enquiry on retired Judges under the Judges(Inquiry) Act, 1968. In the Light
of the above HR Division of M/o Home Affairs had been requested to take necessary action, as
deemed appropriate; on point no 5,8 replied that department has no authority to investigate a
requisite enquiry on retired Judges under the Judges(Inquiry) Act, 1968; on point no 4,6,7 transfer
the application to HR division of M/o Home Affairs, on point 9 replied that no such representation
has been received in the Desk Side of department, whenever received will be transferred to HR
Division of M/o Home Affairs as matter relates to them”.
4. Being unsatisfied with the information provided, the appellant preferred First Appeal on
9.3.2013. FAA replied on 17.4.2013, stating that information already provided, for additional
information sought by the appellant, he may approach CPIO, HR Division of M/o Home Affairs.
Being unsatisfied with the information provided, the appellant preferred Second Appeal before the Commission.
Decision:
The appellant made his submissions. The Public Authority is not represented by any officer.
6. The appellant contended that the communications between Chief Justice of India and Union
of India about the representations against former Chief Justice of India, Mr. K. G. Balakrishnan,
could not be said to be privileged, as it was about an formerCJI, not the CJI in office. This will
not also attract third party provisions as the representation is given by an NGO. The appellant
wanted to know the action taken report on his representation dated 2212013.
7. Section 8(1)(c) of RTI Act says there shall be no obligation to give any citizen information, the
disclosure of which would cause a breach of privilege of Parliament or the State Legislature. No
other privilege is dealt with in the Right to Information Act, 2005. It does not accord any privilege
to any other authority to deny communication except the situations prescribed under the Act. We
need to look into the provisions of the Constitution and other laws to find out any privilege any where prohibits disclosure.
8. Article 74(2) of the Constitution of India prohibits the courts from inquiring into the question
‘whether any and if so what advice was tendered by Ministers to President’. Section 123 of
Indian Evidence Act says: Evidence as to affairs of State: No one shall be permitted to give any
evidence derived from unpublished official records relating to any affairs of State, except with the
permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
This section also does not impose complete prohibition against ‘disclosure’ but gives power to
head of the department to give or withhold permission to disclose ‘as he thinks fit’. Evidence Act
accorded discretion to head to decide on disclosure.
Section 124 says: Official communication: No public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that the public
interests would suffer by the disclosure. This is another provision of Evidence Act which
deals with official communication and permits the officer to withhold if disclosure results in
suffering of public interest. This provision is in tune with the scheme of Right to Information
Act, where public interest override gives discretion to officials to decide disclosure or nondisclosure in public interest.
This is about power of judicial review of cabinet advice to the President, which was
ultimately decided by the Supreme Court that judiciary could review the material aspects of
advice, if not the advice. (9 judge bench in Bommai SR, v Union of India (1994) 3 SCC 1).
9. The right to information is limited only to disclosure and power to review it or not is not under
question. If the party who obtained such information tried to use that anywhere, it is for the
judiciary to act according to the Constitution and judicial decisions. The Supreme Court
considered examination of correspondence between Chief Justice of India and Government to
determine whether requisite consultation for the appointments has taken place, in case of SP
Gupta v Union of India, AIR 1982 SC 149. Apex court dismissed the argument that such
correspondence formed part of advice given by the Council of Ministers and could not be
disclosed by virtue of Article 74(2) of the Constitution. The Court held that while the exact advice
given by the Council of Ministers to the President could not be examined by the court, the material
on which such advice was based was not excluded from the judicial purview. The apex court also
dealt with the issue of privilege to withhold the disclosure of such correspondence claimed by the
Government under Section 123 read with Section 126 of Evidence Act 1872. Six judges of seven
member Bench held that no privilege could be claimed with respect to the documents
which constituted the material for forming opinion in the case of appointment and
transfer of judges. In a landmark judgment Justice PN Bhagwati stated:
…there might be documents which needed to be withheld in public interest such as cabinet
minutes, minutes of discussion between heads of departments, high level interdepartmental
correspondence, dispatches from ambassadors from abroad, preliminary papers for
submissions to be made to the cabinet, and any other document related to the framing of government policy. (p238).
…The need for candour and frankness must be regarded as a factor to be taken into account
in determining whether, on balance, the public interest lies in favour of disclosure or against it. p 239)
Further immunity against disclosure claimed under section 123 of the Indian Evidence Act
was not a privilege which could be waived by the state. It is an immunity which was granted
in order to protect public interest. Therefore even if the state did not claim such immunity, it
was duty of the court to make sure that no document, the disclosure of which would harm
public interest was disclosed. The Court had balance public interest in fair administration of
justice against the public interest in the confidentiality of certain documents. Judicial
discretion would be exercised so as to promote maximum openness and limit secrecy to the minimum. [p232]
The observations of the Justice Bhagwati are very apt and quite relevant in this context of exercise
of right to information in present day set up.
Now it is obvious from the Constitution that we have adopted a democratic form of
Government. Where a society has chosen to accept democracy as its creedal faith, it is
elementary that the citizens ought to know what their government is doing. The citizens
have a right to decide by whom and by what rules they shall be governed and they are
entitled to call on those who govern on their behalf to account for their conduct. No
democratic government can survive without accountability and the basic postulate of
accountability is that the people should have information about functioning of the
government. It is only if people know how government is functioning that they can fulfill the
role which democracy assigns to them and make democracy a really effective participatory
democracy. The citizen’s right to know the facts, the true facts, about the administration of
the country is thus one of the pillars of a democratic state. And that is why the demand for
openness in the government is increasingly growing in different parts of the world. (p232)
The Supreme Court finally held that “…where a document was withheld, a court could examine it,
and only when it was convinced that its disclosure would prejudice public interest, could it allow
such action. The Government’s privilege to withhold disclosure of documents was considered as
subject to the right to information of the individual”.
Justice Bhagwati made another memorable statement:
This is the new democratic culture of an open society towards which every liberal
democracy is moving and our country should be no exception. The concept of an open
government is the direct emanation from the right to know which seems to be implicit in the
right of free speech and expression guaranteed under Article 19(1)(a) [p232]
The Supreme Court in Bommai case [(1994) 3 SCC 1] held that Article 74(2) is not a bar against
the scrutiny of the material on the basis of which the President has arrived at his satisfaction for
issuing the Proclamation under Article 356(1) [paras 90, 167(II), 456(6) of Bommai case]. It merely
bars an inquiry into the question whether any, and if so, what advice was tendered by the
Ministers to the President (Bommai Case). It does not bar the Court from calling upon Union of
India to disclose to the Court the material upon which the President has formed the requisite
satisfaction. Even if the material is looked into by the President, it does not partake the character
of advice [para 453(6) Bommai Case]. Notwithstanding Art. 74(2), it is open to the Court to inquire,
whether there was any material on the basis of which the advice was given, whether such material
was relevant for such advice etc.
10. In this case the appellant asked for copies of correspondence, filenoting/documents etc on
action taken on his submission about probe against Mr. Justice K. G. Balakrishnan (Dated
22.1.2013). He also mentioned that it was routed through Public Grievance portal. He also wanted
to know if this was forwarded to any department, the action taken thereon etc. By that time, Mr.
Justice K. G. Balakrishnan was retired as Chief Justice of India and assumed office of
chairmanship of NHRC. The request for information has nothing to do with correspondence
regarding appointment of Justice K G Balakrishnan as CJI or as Chairman NHRC. The Appellant
wanted to know the action taken on his submission about probe. Neither the application nor any
other paper deal with any allegation against any person holding high Constitutional offices, hence
it will not attract any cover of privilege.
11. Assuming for a moment that the information about ‘action taken’ on request for probe
against former CJI is privileged, such ‘privilege’ is not expressly provided as ground for rejection of
request for information under Section 8(1). Under Section 8(1)(c) information, disclosure of which
would cause of breach of privilege of Parliament or State Legislature cannot be given. The
information sought has nothing to do with the privilege of Parliament or State Legislature. The
Correspondence between Executive about a former CJI is not privileged correspondence as per
any provision of RTI Act or Constitution of India. It is not information given in fiduciary
relationship. Assuming again for a moment that disclosure of such information about probe about
former CJI would cause harm to ‘protected interest’, Section 8(2) comes to the aid of disclosure.
Section 8(2) says “…a public authority may allow access to information if public interest in
disclosure outweighs the harm to the protected interests”. Thus the Commission finds that nondisclosure
of what appellant sought would not serve any public interest, would not harm any protected
interest and in fact, public interest in its disclosure would outweigh the probable harm, if
any, to protected (if at all protected) interests. As rightly pointed out by Justice Bhagwati, the
Commission holds that the Government’s privilege to withhold disclosure of documents is subject
to the right to information of the individual.
12. The Government was not represented and it did not make any claim of privilege, as per SC
order the Government’s privilege to withhold disclosure of documents was considered as subject
to the right to information of the individual, and based on all above referred statutory provisions,
the Commission directs the respondent authority to provide the information to the appellant’s point 9
of RTI Application; Complete information together with related correspondence/ file notings/ documents
etc on action taken on each aspect of SC Agrawal’s submission about probe against NHRC Chairperson
Mr. Justice K.G. Balakrishnan’ dt 22.1.2013 routed to department of justice through PG portal either
by department of justice or by any public authority where these submissions have been forwarded by Department
of Justice, and to point 12 regarding the file notings on his RTI application within 15 days from the date of receipt of this order.
No decision could be given regarding points 4 to 7, as the respondents submitted that their department has not
received any such representation from the CJI seeking personal reference against NHRC, which
was intimated to the appellant along with a reply received from Ministry of Home Affairs. The
appeal is disposed of, with above directions.
(M. Sridhar Acharyulu)
Information Commissioner
Citation: Mr. Subhash Chand Agrawal v. Department of Legal Affairs in File No.CIC/SS/A/2013/001372SA