Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [C] No.2309 OF 2012
IN
WRIT PETITION [C] NO.210 OF 2012
Union of India …
Petitioner
Versus
Namit Sharma … Respondent
WITH
REVIEW PETITION [C] No.2675 OF 2012
IN
WRIT PETITION [C] NO.210 OF 2012
State of Rajasthan & Anr. … Petitioners
Versus
Namit Sharma … Respondent
J U D G M E N T
A. K. PATNAIK, J.
These are petitions filed under Article 137 of the Constitution of
India for review of the judgment dated 13.09.2012 of this Court in Writ
Petition (C) No.210 of 2012 (hereinafter referred to as ‘the judgment under
review’).
Background Facts:
2. In Writ Petition (C) No.210 of 2012 filed under Article 32 of the
Constitution of India, Namit Sharma, the respondent herein, had prayed for
declaring the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the
Right to Information Act, 2005 (for short ‘the Act’) as ultra vires the
Constitution. Sections 12(5), 12(6), 15(5) and 15(6) of the Act are
extracted hereinbelow:
“12(5) The Chief Information Commissioner and Information
Commissioners shall be persons of eminence in public life with wide
knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance.”
“12(6) The Chief Information Commissioner or an Information
Commissioner shall not be a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may be, or
hold any other office of profit or connected with any political party
or carrying on any business or pursuing any profession.”
“15(5) The State Chief Information Commissioner and State Information
Commissioners shall be persons of eminence in public life with wide
knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance.”
“15(6) The State Chief Information Commissioner or a State Information
Commissioner shall not be a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may be, or
hold any other office of profit or connected with any political party
or carrying on any business or pursuing any profession.”
The grounds taken in the writ petition were that the provisions of Sections
12(5), 12(6), 15(5) and 15(6) of the Act laying down the eligibility
criteria for appointment of Central Information Commissioners and State
Information Commissioners were vague and had no nexus with the object of
the Act and were violative of Article 14 of the Constitution of India and
while enacting these provisions, Parliament had not exercised legislative
power in consonance with the constitutional principles and guarantees.
3. After hearing the learned counsel for the respondent-writ petitioner
and the learned Additional Solicitor General for Union of India, this Court
held in the judgment under review that the provisions of Sections 12(5) and
15(5) of the Act did not specify the basic qualifications of the persons to
be appointed as Information Commissioners and only mentioned that the Chief
Information Commissioner and Information Commissioners shall be persons of
eminence in public life with wide knowledge and experience in law, science
and technology, social service, management, journalism, mass media or
administration and governance. This Court held that the knowledge and
experience in the different fields mentioned in Section 12(5) and Section
15(5) of the Act would presuppose a graduate who possesses basic
qualification in the concerned field. This Court also held that Sections
12(6) and 15(6) of the Act, which provide that the Chief Information
Commissioner or an Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or Union Territory or
hold any other office of profit or be connected with any political party or
carry on any business or pursue any profession, do not disqualify such
persons for consideration for appointment as Chief Information Commissioner
or Information Commissioner, but these disqualifications will come into
play after a person is appointed as Chief Election Commissioner or
Information Commissioner. In other words, after a Chief Election
Commissioner or Information Commissioner is appointed, he cannot continue
to be a Member of Parliament or Member of the Legislature of any State or
hold any other office of profit or remain connected with any political
party or carry on any business or pursue any profession.
4. In the judgment under review, this Court also held that the
Information Commission, as a body, performs functions of wide magnitude,
through its members, including adjudicatory, supervisory as well as penal
functions. This Court held that access to information is a statutory
right, subject to certain constitutional and statutory limitations and the
Information Commissioners have been vested with the power to decline
furnishing of information under certain circumstances and in the specified
situations. This Court held that disclosure of information under the Act
may also involve the question of prejudice to a third party, unlike in some
countries where information involving a third party cannot be disclosed
without the consent of that party. This Court held that considering all
these functions to be performed by the Information Commission, the exercise
of powers and passing of the orders by the Information Commission cannot be
arbitrary and have to be in consonance with the principles of natural
justice, namely, notice to a party, grant of hearing and passing of
reasoned orders, and, therefore, the Information Commission is a Tribunal
discharging quasi-judicial functions. This Court held that there is a lis
to be decided by the Information Commission inasmuch as the request of a
party seeking information is to be allowed or to be disallowed and the
decisions rendered by the Information Commission on such a lis may
prejudicially affect a third party. For these reasons, this Court further
held that the Information Commission possesses the essential attributes and
trappings of a Court as the adjudicatory powers performed by the
Information Commission are akin to the Court system and the adjudicatory
matters that they decide can have serious consequences on various rights
including the right to privacy protected under Article 21 of the
Constitution.
5. In the judgment under review, this Court also expressed the opinion
that for effectively performing the functions and exercising the powers of
the Information Commission, there is a requirement of a judicial mind. For
holding this opinion, the Court relied on the judgments of this Court in
Bharat Bank Ltd., Delhi v. Employees of Bharat Bank & Ors. [AIR 1950 SC
188], S.P. Sampath Kumar v. Union of India and Others [(1987) 1 SCC 124],
Union of India v. R. Gandhi, President Madras Bar Association [(2010) 11
SCC 1] and L. Chandra Kumar v. Union of India and Others [(1997) 3 SCC
261]. This Court also held that separation of powers and the independence
of judiciary are fundamental constitutional values in the structure of our
Constitution as without these two constitutional values, impartiality
cannot thrive as has been held by this Court in Union of India v. R.
Gandhi, President, Madras Bar Association (supra). This Court, thus, held
that though the independence of judiciary stricto sensu applied to the
Court system, by necessary implication, it would also apply to Tribunals
whose functioning is quasi-judicial and akin to the Court system and the
entire administration of justice has to be so independent and managed by
persons of legal acumen, expertise and experience that persons demanding
justice must not only receive justice, but should also have the faith that
justice would be done. This Court accordingly held that the persons
eligible for appointment should be of public eminence, with knowledge and
experience in the specified fields and should preferably have some judicial
background and they should possess judicial acumen and experience to fairly
and effectively deal with the intricate questions of law that would come up
for determination before the Information Commission in its day-to-day
working. This Court held that the Information Commission is a judicial
tribunal having the essential trappings of a Court and, as an irresistible
corollary, it will follow that the appointments to the Information
Commission are made in consultation with the judiciary. The Court,
however, observed that in the event, the Government is of the opinion and
desires to appoint not only judicial members but also experts from other
fields to the Commission in terms of Section 12(5) of the Act, to ensure
judicial independence, effective adjudicatory process and public confidence
in the administration of justice by the Commission, it would be necessary
that the Commission is required to work in Benches comprising one judicial
member and one other member from the specified fields mentioned in Sections
12(5) and 15(5) of the Act.
6. On the appointment procedure, this Court also held in the judgment
under review that the appointments to the post of judicial member has to be
made in consultation with the Chief Justice of India in case of Chief
Information Commissioner and members of the Central Information Commission,
and the Chief Justices of the High Courts of the respective States, in the
case of State Chief Information Commissioner and State Information
Commissioners of that State Commission. This Court further held that in
the case of appointment of members to the respective Commissions from other
specified fields, the DoPT in the Centre and the concerned Ministry in the
States should prepare a panel, after due publicity. Empanelling the names
proposed should be at least three times the number of vacancies existing in
the Commission and the names so empanelled, with the relevant record should
be placed before the High Powered Committee mentioned in Section 12(3) and
15(3) of the Act and in furtherance of the recommendations of the High
Powered Committee, appointments to the Central and State Information
Commissions should be made by the competent authority.
7. For the reasons recorded in the judgment under review, this Court
disposed of the writ petition of the respondent-writ petitioner with the
following directions/declarations:
“1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act of 2005
are held to be constitutionally valid, but with the rider that, to
give it a meaningful and purposive interpretation, it is necessary
for the Court to 'read into' these provisions some aspects without
which these provisions are bound to offend the doctrine of
equality. Thus, we hold and declare that the expression 'knowledge
and experience' appearing in these provisions would mean and
include a basic degree in the respective field and the experience
gained thereafter. Further, without any peradventure and veritably,
we state that appointments of legally qualified, judicially trained
and experienced persons would certainly manifest in more effective
serving of the ends of justice as well as ensuring better
administration of justice by the Commission. It would render the
adjudicatory process which involves critical legal questions and
nuances of law, more adherent to justice and shall enhance the
public confidence in the working of the Commission. This is the
obvious interpretation of the language of these provisions and, in
fact, is the essence thereof.
3. As opposed to declaring the provisions of Section 12(6) and
15(6) unconstitutional, we would prefer to read these provisions as
having effect 'post-appointment'. In other words,
cessation/termination of holding of office of profit, pursuing any
profession or carrying any business is a condition precedent to the
appointment of a person as Chief Information Commissioner or
Information Commissioner at the Centre or State levels.
4. There is an absolute necessity for the legislature to reword or
amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of
the Act. We observe and hope that these provisions would be amended
at the earliest by the legislature to avoid any ambiguity or
impracticability and to make it in consonance with the
constitutional mandates.
5. We also direct that the Central Government and/or the competent
authority shall frame all practice and procedure related rules to
make working of the Information Commissions effective and in
consonance with the basic rule of law. Such rules should be framed
with particular reference to Section 27 and 28 of the Act within a
period of six months from today.
6. We are of the considered view that it is an unquestionable
proposition of law that the Commission is a 'judicial tribunal'
performing functions of 'judicial' as well as 'quasi-judicial'
nature and having the trappings of a Court. It is an important cog
and is part of the court attached system of administration of
justice, unlike a ministerial tribunal which is more influenced and
controlled and performs functions akin to the machinery of
administration.
7. It will be just, fair and proper that the first appellate
authority (i.e. the senior officers to be nominated in terms of
Section 5 of the Act of 2005) preferably should be the persons
possessing a degree in law or having adequate knowledge and
experience in the field of law.
8. The Information Commissions at the respective levels shall
henceforth work in Benches of two members each. One of them being a
'judicial member', while the other an 'expert member'. The judicial
member should be a person possessing a degree in law, having a
judicially trained mind and experience in performing judicial
functions. A law officer or a lawyer may also be eligible provided
he is a person who has practiced law at least for a period of
twenty years as on the date of the advertisement. Such lawyer
should also have experience in social work. We are of the
considered view that the competent authority should prefer a person
who is or has been a Judge of the High Court for appointment as
Information Commissioners. The Chief Information Commissioner at
the Centre or State level shall only be a person who is or has been
a Chief Justice of the High Court or a Judge of the Supreme Court
of India.
9. The appointment of the judicial members to any of these posts
shall be made 'in consultation' with the Chief Justice of India and
Chief Justices of the High Courts of the respective States, as the
case may be.
10. The appointment of the Information Commissioners at both levels
should be made from amongst the persons empanelled by the DoPT in
the case of Centre and the concerned Ministry in the case of a
State. The panel has to be prepared upon due advertisement and on a
rational basis as afore-recorded.
11. The panel so prepared by the DoPT or the concerned Ministry
ought to be placed before the High-powered Committee in terms of
Section 12(3), for final recommendation to the President of India.
Needless to repeat that the High Powered Committee at the Centre
and the State levels is expected to adopt a fair and transparent
method of recommending the names for appointment to the competent
authority.
12. The selection process should be commenced at least three months
prior to the occurrence of vacancy.
13. This judgment shall have effect only prospectively.
14. Under the scheme of the Act of 2005, it is clear that the
orders of the Commissions are subject to judicial review before the
High Court and then before the Supreme Court of India. In terms of
Article 141 of the Constitution, the judgments of the Supreme Court
are law of the land and are binding on all courts and tribunals.
Thus, it is abundantly clear that the Information Commission is
bound by the law of precedent, i.e., judgments of the High Court
and the Supreme Court of India. In order to maintain judicial
discipline and consistency in the functioning of the Commission, we
direct that the Commission shall give appropriate attention to the
doctrine of precedent and shall not overlook the judgments of the
courts dealing with the subject and principles applicable, in a
given case.
It is not only the higher court's judgments that are binding
precedents for the Information Commission, but even those of the
larger Benches of the Commission should be given due acceptance and
enforcement by the smaller Benches of the Commission. The rule of
precedence is equally applicable to intra-court appeals or
references in the hierarchy of the Commission.”
Contentions of the learned counsel for the parties:
8. Mr. A.S. Chandhiok, learned ASG appearing for the Union of India,
submitted that under the Constitution it is only the Legislature which has
the power to make law and amend the law and the Court cannot in exercise of
its judicial power encroach into the field of legislation. In support of
this submission, he relied on the decision of a seven-Judge Bench of this
Court in P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] in
which this Court has recognised the limits of judicial power in a
constitutional democracy. He also cited the decision of a three- Judge
Bench in Union of India and Another v. Deoki Nandan Aggarwal [1992 Supp.
(1) SCC 323] for the proposition that courts cannot rewrite, recast or
reframe the legislation for the very good reason that it has no power to
legislate. He submitted that this being the position of law, this Court
could not have held in the judgment under review that the knowledge and
experience in different fields mentioned in Sections 12(5) and 15(5) of the
Act would presuppose a graduate or basic degree in the concerned field when
Parliament has not provided in Sections 12(5) and 15(5) of the Act that
only persons with basic degree in law, science and technology, social
science, management, journalism, mass media, etc. would be eligible for
appointment as Chief Information Commissioner and Information
Commissioners. He submitted that directions nos. 2 and 7 of the judgment
under review that persons possessing basic degree in the respective fields
can be Information Commissioners amount to amendment of Sections 12(5) and
15(5) of the Act.
9. Mr. Chandhiok next submitted that the view taken by this Court in the
judgment under review that the Information Commissioners should possess the
essential attributes of a court and that for effectively performing the
functions and powers of the Information Commission there is requirement of
a judicial mind and hence persons eligible for appointment as Information
Commissioners should preferably have some judicial background and possess
judicial acumen, is a patent error of law. He submitted that Information
Commissioners have a duty to act judicially and perform quasi-judicial
functions, but this does not mean that they must have the experience and
acumen of judicial officers. In support of this submission, he cited the
observations of Hidayatullah, J in Harinagar Sugar Mills Ltd. v. Shyam
Sunder Jhunjhunwala and Others (AIR 1961 SC 1669) that an officer who is
required to decide the matters judicially does not make him a Court or even
a Tribunal because that only establishes that he is following the standards
of conduct and is free from bias and interest. He submitted that as
Information Commissions are not really exercising judicial powers, and are
not courts, Parliament has not provided in Sections 12(5) and 15(5) of the
Act that Information Commissioners have to have judicial experience and
acumen. He argued that direction no. 8 that Information Commissions at the
respective levels shall work in Benches of two members each and one of them
has to be a judicial member possessing a degree in law and having
judicially trained mind and experience in performing judicial functions and
the direction that competent authority should prefer a person who is or has
been a Judge of the High Court for appointment as Information Commissioners
and that the Chief Information Commissioner shall only be a person who is
or has been a Chief Justice of a High Court or a Judge of the Supreme Court
of India is a palpable error which needs to be corrected in this review.
He further submitted that consequently direction no.9 in the judgment under
review that the appointment of judicial members as Information
Commissioners shall be in consultation with the Chief Justice of India and
Chief Justice of High Court of the respective States, as the case may be,
should be deleted.
10. Mr. Chandhiok finally submitted that in direction no.5 of the
judgment under review, this Court has further directed the Central
Government to frame all practice and procedure related rules to make
working of the Information Commissions effective and in consonance with the
basic rule of law under Sections 27 and 28 of the Act within a period of 6
months but law is well settled that the Court cannot direct a rule making
authority to make rules in a particular fashion. He relied on the decision
of this Court in Mallikarjuna Rao and Others v. State of Andhra Pradesh and
Others [(1990) 2 SCC 707] in support of this submission. He argued that
direction no.5 of the judgment under review is, therefore, a patent error
which needs to be corrected in this review.
11. Dr. Manish Singhvi, Additional Advocate General for the State of
Rajasthan, submitted that the Information Commissioners do not perform
functions which prior to the Act were vested in courts and therefore they
need not be persons having judicial background/judicial training/judicial
experience. He submitted that in Union of India v. R. Gandhi, Madras Bar
Association (supra), this Court took the view that only if functions which
have been dealt with by civil courts are transferred to tribunals, such
tribunals should be manned by persons having judicial background/judicial
training/judicial experience. He submitted that the view taken by this
Court in the judgment under review that persons having judicial
background/judicial training/judicial experience should be preferred while
appointing Information Commissioners is an apparent error which should be
corrected in this review.
12. Mr. M.S. Ganesh, learned senior counsel appearing for the intervener,
Commonwealth Human Rights Initiative, submitted that the Information
Commission is not vested with sovereign judicial powers and discharges only
administrative functions under the provisions of the Act and the view taken
by this Court in the judgment under review that Information Commissioners
should be persons having judicial background, judicial experience and
judicial acumen is not a correct view. He cited the opinion of Lord
Greene, M.R. in B. Johnson & Co. (Builders), Ltd. v. Minister of Health
[(1947) 2 All England Law Reports 395] as well as the opinion of Lord
Diplock in Bushell v. Secretary of State for the Environment [(1980) 2 All
ER 608 HL] that Information Commissioners arrive at administrative
decisions and do not decide litigations and therefore they need not have
judicial background, judicial experience and judicial acumen. Mr. Ganesh
next submitted that persons who have been appointed as Chief Information
Commissioners and Information Commissioners under Sections 12(5) and 15(5)
of the Act, have been persons without any eminence in public life. He
submitted that mostly retired IAS Officers and IPS Officers without any
experience in public life but only experience in administration have been
appointed as Information Commissioners. He submitted that in this review,
the Court should issue appropriate directions to ensure that appointment of
Chief information Commissioners and Information Commissioners are made in
accordance with Sections 12(5) and 15(5) of the Act.
13. Mr. Prashant Bhushan, learned senior counsel appearing for the
interveners, Mr. Shailesh Gandhi and Mrs. Aruna Roy, submitted that as the
Information Commissions do not perform judicial work, they need not be
manned by judicial officers and Justices of High Courts and Supreme Court
and, therefore, directions No.8 and 9 of the judgment under review need to
be deleted. He further submitted that directions No.10 and 11 of the
judgment under review regarding the procedure to be followed for
appointment of Information Commissioners may not ensure transparency in the
matter of appointment of Information Commissioners. He submitted that this
Court in Centre for PIL and Another v. Union of India & Another [(2011) 4
SCC] has laid down a procedure in para 88 for selecting and appointing the
Central Vigilance Commissioner and Vigilance Commissioners under Section 3
(3) of the Central Vigilance Commission Act, 2003 and has laid down therein
that the empanelment of persons to be considered for appointment of Central
Vigilance Commissioner and Vigilance Commissioner shall be carried out on
the basis of rational criteria, which is to be reflected by recording of
reasons and/or noting akin to reasons by the empanelling authority. He
submitted that similar procedure should be followed for short listing
persons for appointment as Information Commissioners and some reasons
should be indicated as to why the person has been empanelled for
appointment as Information Commissioner. He further submitted that the
direction No.8 in the judgment under review that Information Commissioners
at the respective levels shall henceforth work in benches of two members
and one of them should be a judicial member would result in very few
Division Benches of the Information Commission taking up matters and the
working of the Information Commission in dealing with matters will slow
down. He submitted that instead legal training can be given to Information
Commissioners to decide matters involving intricate questions of law.
14. Learned counsel for the respondent- writ petitioner Mr. Amit Sharma,
on the other hand, supported the judgment under review. According to him,
this Court has rightly held that the Information Commission functions as an
adjudicatory authority and decides issues relating to the fundamental right
of a citizen to be informed about the Government policies and information.
He submitted that to ensure proper adjudication of the fundamental right to
information of every citizen, it is absolutely necessary that an
independent person who does not have a political agenda is appointed as
Information Commissioner. He further submitted that Information
Commissioners also have to adjudicate issues relating to right of privacy
of the citizens of India, which is part of their personal liberty under
Article 21 of the Constitution and for this reason also a person with
judicial experience and training is best suited and therefore this Court
has rightly held that persons with judicial experience and training and
judicial acumen should be preferred for appointment as Information
Commissioners. He finally submitted that it will be evident from Sections
7, 8, 9 and 11 of the Act that a lis between the parties will have to be
decided by the Central Public Information Officer or State Public
Information Officer and this Court has rightly held in judgment under
review that Information Commissions which decide appeals under Section 20
of the Act against the decisions of the Central Public Information Officer
or State Public Information Officer are akin to courts. He referred to
Section 18 of the Act to show that Information Commissions have been vested
with the powers of a civil court and, therefore, are in the nature of
courts which have to be manned by judicial officers.
15. Mr. Sharma vehemently argued that in the event this Court holds in
this review that the persons with judicial experience and training need not
be appointed as Information Commissioners, then the provisions of Section
12(5) and 15(5) of the Act have to be struck down as ultra vires Article 14
of the Constitution. He cited the decision of this Court in Indra Das v.
State of Assam [(2011) 3 SCC 380] in which it has been held that ordinarily
the literal rule of interpretation while construing a statutory provision
should be followed, but where such interpretation makes the provision
unconstitutional it can be departed from and the statute should be read
down to make it constitutional. He submitted that in the judgment under
review, this Court has saved the provisions of Section 12(5) and 15(5) of
the Act by reading down the said provisions.
16. Mr. Sharma referred to the chart at page 40 of the writ petition to
show qualifications of persons appointed equivalent to Information
Commissioners in Australia, Canada, Scotland, England and United States and
argued that they are required to obtain a degree in the field of law. He
cited the observations of this Court in the case of Union of India v. R.
Gandhi, President, Madras Bar Association (supra) that the assumption that
members of the civil services will have the judicial experience or
expertise in company law to be appointed either as judicial member or
technical member is an erroneous assumption. He submitted that in that
case, this Court therefore issued directions that only High Court Judges or
District Judges of 5 years experience or lawyers having practice of 10
years can be considered for appointment as judicial members of the National
Company Law Tribunal. He also relied on the decision of this Court in
Pareena Swarup v. Union of India [(2008) 14 SCC 107] in which this Court
observed that while creating new avenue of judicial forums, it is the duty
of the Government to see that they are not in breach of basic
constitutional scheme of separation of powers and independence of judiciary
and held that the provisions of the Prevention of Money-Laundering Act,
2002 as enacted may not ensure an independent judiciary to decide the cases
under the Act and accordingly directed the Union of India to incorporate
the proposed provisions to ensure independence of judiciary.
Findings of the Court:
17. Review of a judgment or order of this Court under Article 137 of the
Constitution is confined to only errors apparent on the face of the record
as provided in Order XL Rule 1 of the Supreme Court Rules, 1966. A three
Judge Bench of this Court has held in Commissioner of Sales Tax, J & K and
Others v. Pine Chemicals Ltd. and Others [(1995) 1 SCC 58] that if a
reasoning in the judgment under review is at variance with the clear and
simple language in a statute, the judgment under review suffers from a
manifest error of law, an error apparent on the face of the record, and is
liable to be rectified. Hence, in these Review Petitions, we have to
decide whether the reasoning and directions in the judgment under review is
at variance with the clear and simple language employed in the different
provisions of the Act and accordingly whether the judgment under review
suffers from manifest errors of law apparent on the face of the record.
18. As we have noticed, Sections 12(5) and 15(5) of the Act provide that
Chief Information Commissioner and Information Commissioners shall be
persons of eminence in public life with wide knowledge and experience in
law, science and technology, social service, management, journalism, mass
media or administration and governance. These provisions of the Act do not
provide that the Chief Information Commissioner and Information
Commissioners shall be persons having judicial experience, training and
acumen and yet this Court has held in the judgment under review that for
effectively performing the functions and exercising the powers of the
Information Commission, there is a requirement of a judicial mind and
therefore persons eligible for appointment should preferably have judicial
background and possess judicial acumen and experience. We may now examine
the bare provisions of the Act, whether this finding that there is
requirement of a judicial mind to discharge the functions of Information
Commission is an error apparent on the face of the record.
19. Sections 18, 19 and 20 of the Act, which confer powers on the
Information Commission, are extracted hereinbelow:
“18. Powers and 'Functions of Information Commissions.—(1) Subject
to the provisions of this Act, it shall be the duty of the Central
Information Commission or State Information Commission, as the case
may be, to receive and inquire into a complaint from any person,—
(a) who has been unable to submit a request to a Central Public
Information Officer or State Public Information Officer, as the
case may be, either by reason that no such officer has been
appointed under this Act, or because the Central Assistant
Public Information Officer or State Assistant Public Information
Officer, as the case may be, has refused to accept his or her
application for information or appeal under this Act for
forwarding the same to the Central Public Information Officer or
State Public Information Officer or senior officer specified in
sub-section (1) of section 19 or the Central Information
Commission or the State Information Commission, as the case may
be;
(b) who has been refused access to any information requested
under this Act;
(c) who has not been given a response to a request for
information or access to information within the time limit
specified under this Act;
(d) who has been required to pay an amount of fee which he or
she considers unreasonable;
(e) who believes that he or she has been given incomplete,
misleading or false information under this Act; and
(f) in respect of any other matter relating to requesting or
obtaining access to records under this Act.
(2) Where the Central Information Commission or State Information
Commission, as the case may be, is satisfied that there are
reasonable grounds to inquire into the matter, it may initiate an
inquiry in respect thereof.
(3) The Central Information Commission or State Information
Commission, as the case may be, shall, while inquiring into any
matter under this section, have the same powers as are vested in a
civil court while trying a suit under the Code of Civil Procedure,
1908, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of persons and
compel them to give oral or written evidence on oath and to
produce the documents or things;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any
court or office;
(e) issuing summons for examination of witnesses or documents;
and
(f) any other matter which may be prescribed.
(4) Notwithstanding anything inconsistent contained in any other
Act of Parliament or State Legislature, as the case may be, the
Central Information Commission or the State Information Commission,
as the case may be, may, during the inquiry of any complaint under
this Act, examine any record to which this Act applies which is
under the control of the public authority, and no such record may
be withheld from it on any grounds.
19. Appeal.—(1) Any person who, does not receive a decision within
the time specified in sub-section (1) or clause (a) of sub-section
(3) of section 7, or is aggrieved by a decision of the Central
Public Information Officer or State Public Information Officer, as
the case may be, may within thirty days from the expiry of such
period or from the receipt of such a decision prefer an appeal to
such officer who is senior in rank to the Central Public
Information Officer or State Public Information Officer as the case
may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of
the period of thirty days if he or she is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
in time.
(2) Where an appeal is preferred against an order made by a Central
Public Information Officer or a State Public Information Officer,
as the case may be, under section 11 to disclose third party
information, the appeal by the concerned third party shall be made
within thirty days from the date of the order.
(3) A second appeal against the decision under sub-section (1)
shall lie within ninety days from the date on which the decision
should have been made or was actually received, with the Central
Information Commission or the State Information Commission:
Provided that the Central Information Commission or the State
Information Commission, as the case may be, may admit the appeal
after the expiry of the period of ninety days if it is satisfied
that the appellant was prevented by sufficient cause from filing
the appeal in time.
(4) If the decision of the Central Public Information Officer or
State Public Information Officer, as the case may be, against which
an appeal is preferred relates to information of a third party, the
Central Information Commission or State Information Commission, as
the case may be, shall give a reasonable opportunity of being heard
to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a
request was justified shall be on the Central Public Information
Officer or State Public Information Officer, as the case may be,
who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall be
disposed of within thirty days of the receipt of the appeal or
within such extended period not exceeding a total of forty-five
days from the date of filing thereof, as the case may be, for
reasons to be recorded in writing.
(7) The decision of the Central Information Commission or State
Information Commission, as the case may be, shall be binding.
(8) In its decision, the Central Information Commission or State
Information Commission, as the case may be, has the power to—
(a) require the public authority to take any such steps as may
be necessary to secure compliance with the provisions of this
Act, including—
(i) by providing access to information, if so requested, in
a particular form;
(ii) by appointing a Central Public Information Officer or
State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of
information;
(iv) by making necessary changes to its practices in
relation to the maintenance, management and destruction of
records;
(v) by enhancing the provision of training on the right to
information for its officials;
(vi) by providing it with an annual report in compliance
with clause (b) of sub-section (1) of section 4;
(b) require the public authority to compensate the complainant
for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.
(9) The Central Information Commission or State Information
Commission, as the case may be, shall give notice of its decision,
including any right of appeal, to the complainant and the public
authority.
(10) The Central Information Commission or State Information
Commission, as the case may be, shall decide the appeal in
accordance with such procedure as may be prescribed.
20. Penalties.—(1) Where the Central Information Commission or the
State Information Commission, as the case may be, at the time of
deciding any complaint or appeal is of the opinion that the Central
Public Information Officer or the State Public Information Officer,
as the case may be, has, without any reasonable cause, refused to
receive an application for information or has not furnished
information within the time specified under sub-section (1) of
section 7 or malafidely denied the request for information or
knowingly given incorrect, incomplete or misleading information or
destroyed information which was the subject of the request or,
obstructed in any manner in furnishing the information, it shall
impose a penalty of two hundred and fifty rupees each day till
application is received or information is furnished, so however,
the total amount of such penalty shall not exceed twenty-five
thousand rupees:
Provided that the Central Public Information Officer or the State
Public Information Officer, as the case may be, shall be given a
reasonable opportunity of being heard before any penalty is imposed
on him:
Provided further that the burden of proving that he acted
reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer, as the
case may be.
(2) Where the Central Information Commission or the State
Information Commission, as the case may be, at the time of deciding
any complaint or appeal is of the opinion that the Central Public
Information Officer or the State Public Information Officer, as the
case may be, has, without any reasonable cause and persistently,
failed to receive an application for information or has not
furnished information within the time specified under sub-section
(1) of section 7 or malafidely denied the request for information
or knowingly given incorrect, incomplete or misleading information
or destroyed information which was the subject of the request or
obstructed in any manner in furnishing the information, it shall
recommend for disciplinary action against the Central Public
Information Officer or the State Public Information Officer, as the
case may be, under the service rules applicable to him.
20. It will be clear from the plain and simple language of Sections 18,
19 and 20 of the Act that, under Section 18 the Information Commission has
the power and function to receive and inquire into a complaint from any
person who is not able to secure information from a public authority, under
Section 19 it decides appeals against the decisions of the Central Public
Information Officer or the State Public Information Officer relating to
information sought by a person, and under Section 20 it can impose a
penalty only for the purpose of ensuring that the correct information is
furnished to a person seeking information from a public authority. Hence,
the functions of the Information Commissions are limited to ensuring that a
person who has sought information from a public authority in accordance
with his right to information conferred under Section 3 of the Act is not
denied such information except in accordance with the provisions of the
Act. Section 2(j) defines “Right to Information” conferred on all citizens
under Section 3 of the Act to mean the right to information accessible
under the Act, “which is held by or under the control of any public
authority”. While deciding whether a citizen should or should not get a
particular information “which is held by or under the control of any public
authority”, the Information Commission does not decide a dispute between
two or more parties concerning their legal rights other than their right to
get information in possession of a public authority. This function
obviously is not a judicial function, but an administrative function
conferred by the Act on the Information Commissions.
21. In the judgment under review, this Court after examining the
provisions of the Act, however, has held that there is a lis to be decided
by the Information Commission inasmuch as the request of a party seeking
information is to be allowed or to be disallowed and hence requires a
judicial mind. But we find that the lis that the Information Commission
has to decide was only with regard to the information in possession of a
public authority and the Information Commission was required to decide
whether the information could be given to the person asking for it or
should be withheld in public interest or any other interest protected by
the provisions of the Act. The Information Commission, therefore, while
deciding this lis does not really perform a judicial function, but performs
an administrative function in accordance with the provisions of the Act.
As has been held by Lord Greene, M.R. in B. Johnson & Co. (Builders), Ltd.
v. Minister of Health (supra):
“Lis, of course, implies the conception of an issue joined
between two parties. The decision of a lis, in the ordinary use
of legal language, is the decision of that issue. The What is
described here as a lis – the raising of the objections to the
order, the consideration of the matters so raised and the
representations of the local authority and the objectors – is
merely a stage in the process of arriving at an administrative
decision. It is a stage which the courts have always said
requires a certain method of approach and method of conduct, but
it is not a lis inter partes, and for the simple reason that the
local authority and the objectors are not parties to anything
that resembles litigation.”
22. In the judgment under review, this Court has also held after
examining the provisions of the Act that the Information Commission decides
matters which may affect the rights of third parties and hence there is
requirement of judicial mind. For example, under Section 8(1)(d) of the
Act, there is no obligation to furnish information including commercial
confidence, trade secrets, or intellectual property, the disclosure of
which would harm the competitive position of the third party, unless the
competent authority is satisfied that the larger public interest warrants
the disclosure of such information. Similarly, the right to privacy of a
third party, which is part of his personal liberty under Article 21 of the
Constitution, may be breached if a particular kind of information, purely
of personal nature may be directed to be furnished by the concerned
authority. To protect the rights of third parties, Section 11 of the Act
provides that where a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to disclose any
information or record or part thereof, may on a request made under the Act,
which relates to or has been supplied by a third party and has been treated
as confidential by that third party, a written notice will have to be given
to such third party inviting such party to make a submission in writing or
orally, regarding whether the information should be disclosed, and such
submission of the third party can be kept in view while taking a decision
about disclosure of the information. The decision taken by the Central
Public Information Officer or the State Public Information Officer, as the
case may be, under Section 11 of the Act is appealable under Section 19 of
the Act before the Information Commission and when the Information
Commission decides such an appeal, it decides only whether or not the
information should be furnished to the citizen in view of the objection of
the third party. Here also the Information Commission does not decide the
rights of a third party but only whether the information which is held by
or under the control of a public authority in relation to or supplied by
that third party could be furnished to a citizen under the provisions of
the Act. Hence, the Information Commission discharges administrative
functions, not judicial functions.
23. While performing these administrative functions, however, the
Information Commissions are required to act in a fair and just manner
following the procedure laid down in Sections 18, 19 and 20 of the Act.
But this does not mean that the Information Commissioners are like Judges
or Justices who must have judicial experience, training and acumen. In
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Others (supra),
Hidayatullah, J, explained:
“33. In my opinion, a Court in 'the strict sense is a tribunal
which is a part of the ordinary hierarchy of Courts of Civil
Judicature maintained by the State under its constitution to
exercise the judicial power of the State. These Courts perform all
the judicial functions of the State except those that are excluded
by law from their jurisdiction. The word "judicial", be it noted,
is itself capable of two meanings. They were admirably stated by
Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society
v. Parkinson (1892) 1 QB 431(452) in these words:
"The word 'judicial' has two meanings. It may refer to the
discharge of duties exercisable by a judge or by justices in
court, or to administrative duties which need not be
performed in court, but in respect of which it is necessary
to bring to bear a judicial mind - that is, a mind to
determine what is fair and just in respect of the matters
under consideration."
That an officer is required to decide matters before him
"judicially" in the second sense does not make him a Court or even
a tribunal, because that only establishes that he is following a
standard of conduct, and is free from bias or interest.”
24. Once the Court is clear that Information Commissions do not
exercise judicial powers and actually discharge administrative functions,
the Court cannot rely on the constitutional principles of separation of
powers and independence of judiciary to direct that Information
Commissions must be manned by persons with judicial training, experience
and acumen or former Judges of the High Court or the Supreme Court. The
principles of separation of powers and independence of judiciary embodied
in our Constitution no doubt require that judicial power should be
exercised by persons with judicial experience, training and acumen. For
this reason, when judicial powers vested in the High Court were sought to
be transferred to tribunals or judicial powers are vested in tribunals by
an Act of the legislature, this Court has insisted that such tribunals be
manned by persons with judicial experience and training, such as High
Court Judges and District Judges of some experience. Accordingly, when
the powers of the High Court under Companies Act, 1956 were sought to be
transferred to Tribunals by the Companies (Amendment) Act, 2002, a
Constitution Bench of this Court has held in Union of India v. R. Gandhi,
President Madras Bar Association (supra):
“When the legislature proposes to substitute a tribunal in place
of the High Court to exercise the jurisdiction which the High
Court is exercising, it goes without saying that the standards
expected from the judicial members of the Tribunal and standards
applied for appointing such members, should be as nearly as
possible as applicable to High Court Judges, which are apart
from a basic degree in law, rich experience in the practice of
law, independent outlook, integrity, character and good
reputation. It is also implied that only men of standing who
have special expertise in the field to which the Tribunal
relates, will be eligible for appointment as technical members.
Therefore, only persons with a judicial background, that is,
those who have been or are Judges of the High Court and lawyers
with the prescribed experience, who are eligible for appointment
as High Court Judges, can be considered for appointment as
judicial members.”
In Pareena Swarup v. Union of India (supra), having found that judicial
powers were to be exercised by the Appellate Tribunals under the
Prevention of Money- Laundering Act, 2002 this Court held that to protect
the constitutional guarantee of independence of judiciary, persons who
are qualified to be judges be appointed as members of the Appellate
Tribunal. But, as we have seen, the powers exercised by the Information
Commissions under the Act were not earlier vested in the High Court or
subordinate court or any other court and are not in any case judicial
powers and therefore the Legislature need not provide for appointment of
judicial members in the Information Commissions.
25. Perhaps for this reason, Parliament has not provided in Sections
12(5) and 15(5) of the Act for appointment of persons with judicial
experience and acumen and retired Judges of the High Court as Information
Commissioners and retired Judges of the Supreme Court and Chief Justice
of the High Court as Chief Information Commissioner and any direction by
this Court for appointment of persons with judicial experience, training
and acumen and Judges as Information Commissioners and Chief Information
Commissioner would amount to encroachment in the field of legislation.
To quote from the judgment of the seven-Judge Bench in P. Ramachandra Rao
v. State of Karnataka (supra):
“Courts can declare the law, they can interpret the law, they
can remove obvious lacunae and fill the gaps but they cannot
entrench upon in the field of legislation properly meant for the
legislature.”
26. Moreover, Sections 12(5) and 15(5) of the Act while providing
that Chief Information Commissioner and Information Commissioners shall
be persons with eminence in public life with wide knowledge and
experience in law, science and technology, social service, management,
journalism, mass media or administration and governance, also does not
prescribe any basic qualification which such persons must have in the
respective fields in which they work. In the judgment under review,
however, this Court has “read into” Sections 12(5) and 15(5) of the Act
missing words and held that such persons must have a basic degree in the
respective field as otherwise Sections 12(5) and 15(5) of the Act are
bound to offend the doctrine of equality. This “reading into” the
provisions of Sections 12(5) and 15(5) of the Act, words which Parliament
has not intended is contrary to the principles of statutory
interpretation recognised by this Court. In Union of India and Another v.
Deoki Nandan Aggarwal (supra) this Court has held that the court could
not correct or make up for any deficiencies or omissions in the language
of the statute. V. Ramaswami, J. writing the judgment on behalf of a
three Judge Bench says:
“It is not the duty of the Court either to enlarge the scope of
the legislation or the intention of the legislature when the
language of the provision is plain and unambiguous. The Court
cannot rewrite, recast or reframe the legislation for the very
good reason that it has no power to legislate. The power to
legislate has not been conferred on the courts. The Court cannot
add words to a statute or read words into it which are not
there. Assuming there is a defect or an omission in the words
used by the legislature the Court could not go to its aid to
correct or make up the deficiency. Courts shall decide what the
law is and not what it should be. The Court of course adopts a
construction which will carry out the obvious intention of the
legislature but could not legislate itself. But to invoke
judicial activism to set at naught legislative judgment is
subversive of the constitutional harmony and comity of
instrumentalities.”
27. In the judgment under review, this Court has also held that if
Sections 12(5) and 15(5) of the Act are not read in the manner suggested
in the judgment, these Sections would offend the doctrine of equality.
But on reading Sections 12(5) and 15(5) of the Act, we find that it does
not discriminate against any person in the matter of appointment as Chief
Information Commissioner and Information Commissioners and so long as one
is a person of eminence in public life with wide knowledge and experience
in law, science and technology, social service, management, journalism,
mass media or administration and governance, he is eligible to be
considered for appointment as Chief Information Commissioner or
Information Commissioner. However, to ensure that the equality clause
in Article 14 is not offended, the persons to be considered for
appointment as Chief Information Commissioner or Information Commissioner
should be from different fields, namely, law, science and technology,
social service, management, journalism, mass media or administration and
governance and not just from one field.
28. Sections 12(6) and 15(6) of the Act, however, provide that the
Chief Information Commissioner or an Information Commissioner shall not
be a Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office of profit
or connected with any political party or carry on any business or pursue
any profession. There could be two interpretations of Sections 12(6) and
15(6) of the Act. One interpretation could be that a Member of
Parliament or Member of the Legislature of any State or Union Territory,
as the case may be, or a person holding any other office of profit or
connected with any political party or carrying on any business or
pursuing any profession will not be eligible to be considered for
appointment as a Chief Information Commissioner and Information
Commissioner. If this interpretation is given to Sections 12(6) and
15(6) of the Act, then it will obviously offend the equality clause in
Article 14 of the Constitution as it debars such persons from being
considered for appointment as Chief Information Commissioner and
Information Commissioners. The second interpretation of Sections 12(6)
and 15(6) of the Act could be that once a person is appointed as a Chief
Information Commissioner or Information Commissioner, he cannot continue
to be a Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office of profit
or remain connected with any political party or carry on any business or
pursue any profession. If this interpretation is given to Sections 12(6)
and 15(6) of the Act then the interpretation would effectuate the object
of the Act inasmuch as Chief Information Commissioner and Information
Commissioners would be able to perform their functions in the Information
Commission without being influenced by their political, business,
professional or other interests. It is this second interpretation of
Sections 12(6) and 15(6) of the Act which has been rightly given in the
judgment under review and Sections 12(6) and 15(6) of the Act have been
held as not to be violative of Article 14 of the Constitution.
Therefore, the argument of Mr. Sharma, learned counsel for the respondent-
writ petitioner, that if we do not read Sections 12(5) and 15(5) of the
Act in the manner suggested in the judgment under review, the provisions
of Sections 12(5) and 15(5) of the Act would be ultra vires the Article
14 of the Constitution, is misconceived.
29. In the judgment under review, in direction no.5, the Central
Government and/or the competent authority have been directed to frame all
practice and procedure related rules to make working of the Information
Commissions effective and in consonance with the basic rule of law and
with particular reference to Sections 27 and 28 of the Act within a
period of six months. Sections 27(1) and 28(1) of the Act are extracted
hereinbelow:
“27. Power to make rules by appropriate Government.—(1) The
appropriate Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
28. Power to make rules by competent authority.—(1) The
competent authority may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.”
The use of word “may” in Sections 27 and 28 of the Act make it clear that
Parliament has left it to the discretion of the rule making authority to
make rules to carry out the provisions of the Act. Hence, no mandamus can
be issued to the rule making authority to make the rules either within a
specific time or in a particular manner. If, however, the rules are made
by the rule making authority and the rules are not in accordance with the
provisions of the Act, the Court can strike down such rules as ultra vires
the Act, but the Court cannot direct the rule making authority to make the
rules where the Legislature confers discretion on the rule making authority
to make rules. In the judgment under review, therefore, this Court made a
patent error in directing the rule making authority to make rules within a
period of six months.
30. Nonetheless, the selection and appointment of Chief Information
Commissioner and Information Commissioners has not been left entirely to
the discretion of the Central Government and the State Government under
Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the
Chief Information Commissioner and Information Commissioners shall be
appointed by the President or the Governor, as the case may be, on the
recommendation of the Committee named therein. Sections 12(5) and 15(5)
provide that Chief Information Commissioner and Information Commissioners
have to be persons of eminence in public life with wide knowledge and
experience in the different fields mentioned therein, namely, law, science
and technology, social service, management, journalism, mass media or
administration and governance. Thus, the basic requirement for a person to
be appointed as a Chief Information Commissioner or Information
Commissioner is that he should be a person of eminence in public life with
wide knowledge and experience in a particular field. Parliament has
insisted on this basic requirement having regard to the functions that the
Chief Information Commissioner and Information Commissioners are required
to perform under the Act. As the preamble of the Act states, democracy
requires an informed citizenry and transparency of information which are
vital to its functioning and also requires that corruption is contained and
Governments and their instrumentalities are held accountable to the
governed. The preamble of the Act, however, cautions that revelation of
information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use of
limited fiscal resources and the preservation of confidentiality of
sensitive information. Moreover, under the Act, a citizen has the right
to information held or under the control of public authority and hence
Information Commissioners are to ensure that the right to privacy of person
protected under Article 21 of the Constitution is not affected by
furnishing any particular information.
31. Unfortunately, experience over the years has shown that the orders
passed by Information Commissions have at times gone beyond the provisions
of the Act and that Information Commissions have not been able to harmonise
the conflicting interests indicated in the preamble and other provisions of
the Act. The reasons for this experience about the functioning of the
Information Commissions could be either that persons who do not answer the
criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief
Information Commissioner or Information Commissioners or that the persons
appointed answer the criteria laid down in Sections 12(5) and 15(5) of the
Act but they do not have the required mind to balance the interests
indicated in the Act and to restrain themselves from acting beyond the
provisions of the Act. This experience of the functioning of the
Information Commissions prompted this Court to issue the directions in the
judgment under review to appoint judicial members in the Information
Commissions. But it is for Parliament to consider whether appointment of
judicial members in the Information Commissions will improve the
functioning of the Information Commissions and as Sections 12(5) and 15(5)
of the Act do not provide for appointment of judicial members in the
Information Commissions, this direction was an apparent error. Sections
12(5) and 15(5) of the Act, however, provide for appointment of persons
with wide knowledge and experience in law. We hope that persons with wide
knowledge and experience in law will be appointed in the Information
Commissions at the Centre and the States. Accordingly, wherever Chief
Information Commissioner is of the opinion that intricate questions of law
will have to be decided in a matter coming before the Information
Commissions, he will ensure that the matter is heard by an Information
Commissioner who has such knowledge and experience in law.
32. Under Order XL of the Supreme Court Rules, 1966 this Court can review
its judgment or order on the ground of error apparent on the face of record
and on an application for review can reverse or modify its decision on the
ground of mistake of law or fact. As the judgment under review suffers
from mistake of law, we allow the Review Petitions, recall the directions
and declarations in the judgment under review and dispose of Writ Petition
(C) No. 210 of 2012 with the following declarations and directions:
i) We declare that Sections 12(5) and 15(5) of the Act are not ultra
vires the Constitution.
ii) We declare that Sections 12(6) and 15(6) of the Act do not debar a
Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or a person holding any other
office of profit or connected with any political party or carrying on
any business or pursuing any profession from being considered for
appointment as Chief Information Commissioner or Information
Commissioner, but after such person is appointed as Chief Information
Commissioner or Information Commissioner, he has to discontinue as
Member of Parliament or Member of the Legislature of any State or
Union Territory, or discontinue to hold any other office of profit or
remain connected with any political party or carry on any business or
pursue any profession during the period he functions as Chief
Information Commissioner or Information Commissioner.
iii) We direct that only persons of eminence in public life with wide
knowledge and experience in the fields mentioned in Sections 12(5) and
15(5) of the Act be considered for appointment as Information
Commissioner and Chief Information Commissioner.
iv) We further direct that persons of eminence in public life with wide
knowledge and experience in all the fields mentioned in Sections 12(5)
and 15(5) of the Act, namely, law, science and technology, social
service, management, journalism, mass media or administration and
governance, be considered by the Committees under Sections 12(3) and
15(3) of the Act for appointment as Chief Information Commissioner or
Information Commissioners.
v) We further direct that the Committees under Sections 12(3) and 15(3)
of the Act while making recommendations to the President or to the
Governor, as the case may be, for appointment of Chief Information
Commissioner and Information Commissioners must mention against the
name of each candidate recommended, the facts to indicate his eminence
in public life, his knowledge in the particular field and his
experience in the particular field and these facts must be accessible
to the citizens as part of their right to information under the Act
after the appointment is made.
vi) We also direct that wherever Chief Information Commissioner is of the
opinion that intricate questions of law will have to be decided in a
matter coming up before the Information Commission, he will ensure
that the matter is heard by an Information Commissioner who has wide
knowledge and experience in the field of law.
33. There shall be no order as to costs.
.……………………….J.
(A. K. Patnaik)
.……………………….J.
(A. K. Sikri)
New Delhi,
September 03, 2013.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [C] No.2309 OF 2012
IN
WRIT PETITION [C] NO.210 OF 2012
Union of India …
Petitioner
Versus
Namit Sharma … Respondent
WITH
REVIEW PETITION [C] No.2675 OF 2012
IN
WRIT PETITION [C] NO.210 OF 2012
State of Rajasthan & Anr. … Petitioners
Versus
Namit Sharma … Respondent
J U D G M E N T
A. K. PATNAIK, J.
These are petitions filed under Article 137 of the Constitution of
India for review of the judgment dated 13.09.2012 of this Court in Writ
Petition (C) No.210 of 2012 (hereinafter referred to as ‘the judgment under
review’).
Background Facts:
2. In Writ Petition (C) No.210 of 2012 filed under Article 32 of the
Constitution of India, Namit Sharma, the respondent herein, had prayed for
declaring the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the
Right to Information Act, 2005 (for short ‘the Act’) as ultra vires the
Constitution. Sections 12(5), 12(6), 15(5) and 15(6) of the Act are
extracted hereinbelow:
“12(5) The Chief Information Commissioner and Information
Commissioners shall be persons of eminence in public life with wide
knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance.”
“12(6) The Chief Information Commissioner or an Information
Commissioner shall not be a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may be, or
hold any other office of profit or connected with any political party
or carrying on any business or pursuing any profession.”
“15(5) The State Chief Information Commissioner and State Information
Commissioners shall be persons of eminence in public life with wide
knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance.”
“15(6) The State Chief Information Commissioner or a State Information
Commissioner shall not be a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may be, or
hold any other office of profit or connected with any political party
or carrying on any business or pursuing any profession.”
The grounds taken in the writ petition were that the provisions of Sections
12(5), 12(6), 15(5) and 15(6) of the Act laying down the eligibility
criteria for appointment of Central Information Commissioners and State
Information Commissioners were vague and had no nexus with the object of
the Act and were violative of Article 14 of the Constitution of India and
while enacting these provisions, Parliament had not exercised legislative
power in consonance with the constitutional principles and guarantees.
3. After hearing the learned counsel for the respondent-writ petitioner
and the learned Additional Solicitor General for Union of India, this Court
held in the judgment under review that the provisions of Sections 12(5) and
15(5) of the Act did not specify the basic qualifications of the persons to
be appointed as Information Commissioners and only mentioned that the Chief
Information Commissioner and Information Commissioners shall be persons of
eminence in public life with wide knowledge and experience in law, science
and technology, social service, management, journalism, mass media or
administration and governance. This Court held that the knowledge and
experience in the different fields mentioned in Section 12(5) and Section
15(5) of the Act would presuppose a graduate who possesses basic
qualification in the concerned field. This Court also held that Sections
12(6) and 15(6) of the Act, which provide that the Chief Information
Commissioner or an Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or Union Territory or
hold any other office of profit or be connected with any political party or
carry on any business or pursue any profession, do not disqualify such
persons for consideration for appointment as Chief Information Commissioner
or Information Commissioner, but these disqualifications will come into
play after a person is appointed as Chief Election Commissioner or
Information Commissioner. In other words, after a Chief Election
Commissioner or Information Commissioner is appointed, he cannot continue
to be a Member of Parliament or Member of the Legislature of any State or
hold any other office of profit or remain connected with any political
party or carry on any business or pursue any profession.
4. In the judgment under review, this Court also held that the
Information Commission, as a body, performs functions of wide magnitude,
through its members, including adjudicatory, supervisory as well as penal
functions. This Court held that access to information is a statutory
right, subject to certain constitutional and statutory limitations and the
Information Commissioners have been vested with the power to decline
furnishing of information under certain circumstances and in the specified
situations. This Court held that disclosure of information under the Act
may also involve the question of prejudice to a third party, unlike in some
countries where information involving a third party cannot be disclosed
without the consent of that party. This Court held that considering all
these functions to be performed by the Information Commission, the exercise
of powers and passing of the orders by the Information Commission cannot be
arbitrary and have to be in consonance with the principles of natural
justice, namely, notice to a party, grant of hearing and passing of
reasoned orders, and, therefore, the Information Commission is a Tribunal
discharging quasi-judicial functions. This Court held that there is a lis
to be decided by the Information Commission inasmuch as the request of a
party seeking information is to be allowed or to be disallowed and the
decisions rendered by the Information Commission on such a lis may
prejudicially affect a third party. For these reasons, this Court further
held that the Information Commission possesses the essential attributes and
trappings of a Court as the adjudicatory powers performed by the
Information Commission are akin to the Court system and the adjudicatory
matters that they decide can have serious consequences on various rights
including the right to privacy protected under Article 21 of the
Constitution.
5. In the judgment under review, this Court also expressed the opinion
that for effectively performing the functions and exercising the powers of
the Information Commission, there is a requirement of a judicial mind. For
holding this opinion, the Court relied on the judgments of this Court in
Bharat Bank Ltd., Delhi v. Employees of Bharat Bank & Ors. [AIR 1950 SC
188], S.P. Sampath Kumar v. Union of India and Others [(1987) 1 SCC 124],
Union of India v. R. Gandhi, President Madras Bar Association [(2010) 11
SCC 1] and L. Chandra Kumar v. Union of India and Others [(1997) 3 SCC
261]. This Court also held that separation of powers and the independence
of judiciary are fundamental constitutional values in the structure of our
Constitution as without these two constitutional values, impartiality
cannot thrive as has been held by this Court in Union of India v. R.
Gandhi, President, Madras Bar Association (supra). This Court, thus, held
that though the independence of judiciary stricto sensu applied to the
Court system, by necessary implication, it would also apply to Tribunals
whose functioning is quasi-judicial and akin to the Court system and the
entire administration of justice has to be so independent and managed by
persons of legal acumen, expertise and experience that persons demanding
justice must not only receive justice, but should also have the faith that
justice would be done. This Court accordingly held that the persons
eligible for appointment should be of public eminence, with knowledge and
experience in the specified fields and should preferably have some judicial
background and they should possess judicial acumen and experience to fairly
and effectively deal with the intricate questions of law that would come up
for determination before the Information Commission in its day-to-day
working. This Court held that the Information Commission is a judicial
tribunal having the essential trappings of a Court and, as an irresistible
corollary, it will follow that the appointments to the Information
Commission are made in consultation with the judiciary. The Court,
however, observed that in the event, the Government is of the opinion and
desires to appoint not only judicial members but also experts from other
fields to the Commission in terms of Section 12(5) of the Act, to ensure
judicial independence, effective adjudicatory process and public confidence
in the administration of justice by the Commission, it would be necessary
that the Commission is required to work in Benches comprising one judicial
member and one other member from the specified fields mentioned in Sections
12(5) and 15(5) of the Act.
6. On the appointment procedure, this Court also held in the judgment
under review that the appointments to the post of judicial member has to be
made in consultation with the Chief Justice of India in case of Chief
Information Commissioner and members of the Central Information Commission,
and the Chief Justices of the High Courts of the respective States, in the
case of State Chief Information Commissioner and State Information
Commissioners of that State Commission. This Court further held that in
the case of appointment of members to the respective Commissions from other
specified fields, the DoPT in the Centre and the concerned Ministry in the
States should prepare a panel, after due publicity. Empanelling the names
proposed should be at least three times the number of vacancies existing in
the Commission and the names so empanelled, with the relevant record should
be placed before the High Powered Committee mentioned in Section 12(3) and
15(3) of the Act and in furtherance of the recommendations of the High
Powered Committee, appointments to the Central and State Information
Commissions should be made by the competent authority.
7. For the reasons recorded in the judgment under review, this Court
disposed of the writ petition of the respondent-writ petitioner with the
following directions/declarations:
“1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act of 2005
are held to be constitutionally valid, but with the rider that, to
give it a meaningful and purposive interpretation, it is necessary
for the Court to 'read into' these provisions some aspects without
which these provisions are bound to offend the doctrine of
equality. Thus, we hold and declare that the expression 'knowledge
and experience' appearing in these provisions would mean and
include a basic degree in the respective field and the experience
gained thereafter. Further, without any peradventure and veritably,
we state that appointments of legally qualified, judicially trained
and experienced persons would certainly manifest in more effective
serving of the ends of justice as well as ensuring better
administration of justice by the Commission. It would render the
adjudicatory process which involves critical legal questions and
nuances of law, more adherent to justice and shall enhance the
public confidence in the working of the Commission. This is the
obvious interpretation of the language of these provisions and, in
fact, is the essence thereof.
3. As opposed to declaring the provisions of Section 12(6) and
15(6) unconstitutional, we would prefer to read these provisions as
having effect 'post-appointment'. In other words,
cessation/termination of holding of office of profit, pursuing any
profession or carrying any business is a condition precedent to the
appointment of a person as Chief Information Commissioner or
Information Commissioner at the Centre or State levels.
4. There is an absolute necessity for the legislature to reword or
amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of
the Act. We observe and hope that these provisions would be amended
at the earliest by the legislature to avoid any ambiguity or
impracticability and to make it in consonance with the
constitutional mandates.
5. We also direct that the Central Government and/or the competent
authority shall frame all practice and procedure related rules to
make working of the Information Commissions effective and in
consonance with the basic rule of law. Such rules should be framed
with particular reference to Section 27 and 28 of the Act within a
period of six months from today.
6. We are of the considered view that it is an unquestionable
proposition of law that the Commission is a 'judicial tribunal'
performing functions of 'judicial' as well as 'quasi-judicial'
nature and having the trappings of a Court. It is an important cog
and is part of the court attached system of administration of
justice, unlike a ministerial tribunal which is more influenced and
controlled and performs functions akin to the machinery of
administration.
7. It will be just, fair and proper that the first appellate
authority (i.e. the senior officers to be nominated in terms of
Section 5 of the Act of 2005) preferably should be the persons
possessing a degree in law or having adequate knowledge and
experience in the field of law.
8. The Information Commissions at the respective levels shall
henceforth work in Benches of two members each. One of them being a
'judicial member', while the other an 'expert member'. The judicial
member should be a person possessing a degree in law, having a
judicially trained mind and experience in performing judicial
functions. A law officer or a lawyer may also be eligible provided
he is a person who has practiced law at least for a period of
twenty years as on the date of the advertisement. Such lawyer
should also have experience in social work. We are of the
considered view that the competent authority should prefer a person
who is or has been a Judge of the High Court for appointment as
Information Commissioners. The Chief Information Commissioner at
the Centre or State level shall only be a person who is or has been
a Chief Justice of the High Court or a Judge of the Supreme Court
of India.
9. The appointment of the judicial members to any of these posts
shall be made 'in consultation' with the Chief Justice of India and
Chief Justices of the High Courts of the respective States, as the
case may be.
10. The appointment of the Information Commissioners at both levels
should be made from amongst the persons empanelled by the DoPT in
the case of Centre and the concerned Ministry in the case of a
State. The panel has to be prepared upon due advertisement and on a
rational basis as afore-recorded.
11. The panel so prepared by the DoPT or the concerned Ministry
ought to be placed before the High-powered Committee in terms of
Section 12(3), for final recommendation to the President of India.
Needless to repeat that the High Powered Committee at the Centre
and the State levels is expected to adopt a fair and transparent
method of recommending the names for appointment to the competent
authority.
12. The selection process should be commenced at least three months
prior to the occurrence of vacancy.
13. This judgment shall have effect only prospectively.
14. Under the scheme of the Act of 2005, it is clear that the
orders of the Commissions are subject to judicial review before the
High Court and then before the Supreme Court of India. In terms of
Article 141 of the Constitution, the judgments of the Supreme Court
are law of the land and are binding on all courts and tribunals.
Thus, it is abundantly clear that the Information Commission is
bound by the law of precedent, i.e., judgments of the High Court
and the Supreme Court of India. In order to maintain judicial
discipline and consistency in the functioning of the Commission, we
direct that the Commission shall give appropriate attention to the
doctrine of precedent and shall not overlook the judgments of the
courts dealing with the subject and principles applicable, in a
given case.
It is not only the higher court's judgments that are binding
precedents for the Information Commission, but even those of the
larger Benches of the Commission should be given due acceptance and
enforcement by the smaller Benches of the Commission. The rule of
precedence is equally applicable to intra-court appeals or
references in the hierarchy of the Commission.”
Contentions of the learned counsel for the parties:
8. Mr. A.S. Chandhiok, learned ASG appearing for the Union of India,
submitted that under the Constitution it is only the Legislature which has
the power to make law and amend the law and the Court cannot in exercise of
its judicial power encroach into the field of legislation. In support of
this submission, he relied on the decision of a seven-Judge Bench of this
Court in P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] in
which this Court has recognised the limits of judicial power in a
constitutional democracy. He also cited the decision of a three- Judge
Bench in Union of India and Another v. Deoki Nandan Aggarwal [1992 Supp.
(1) SCC 323] for the proposition that courts cannot rewrite, recast or
reframe the legislation for the very good reason that it has no power to
legislate. He submitted that this being the position of law, this Court
could not have held in the judgment under review that the knowledge and
experience in different fields mentioned in Sections 12(5) and 15(5) of the
Act would presuppose a graduate or basic degree in the concerned field when
Parliament has not provided in Sections 12(5) and 15(5) of the Act that
only persons with basic degree in law, science and technology, social
science, management, journalism, mass media, etc. would be eligible for
appointment as Chief Information Commissioner and Information
Commissioners. He submitted that directions nos. 2 and 7 of the judgment
under review that persons possessing basic degree in the respective fields
can be Information Commissioners amount to amendment of Sections 12(5) and
15(5) of the Act.
9. Mr. Chandhiok next submitted that the view taken by this Court in the
judgment under review that the Information Commissioners should possess the
essential attributes of a court and that for effectively performing the
functions and powers of the Information Commission there is requirement of
a judicial mind and hence persons eligible for appointment as Information
Commissioners should preferably have some judicial background and possess
judicial acumen, is a patent error of law. He submitted that Information
Commissioners have a duty to act judicially and perform quasi-judicial
functions, but this does not mean that they must have the experience and
acumen of judicial officers. In support of this submission, he cited the
observations of Hidayatullah, J in Harinagar Sugar Mills Ltd. v. Shyam
Sunder Jhunjhunwala and Others (AIR 1961 SC 1669) that an officer who is
required to decide the matters judicially does not make him a Court or even
a Tribunal because that only establishes that he is following the standards
of conduct and is free from bias and interest. He submitted that as
Information Commissions are not really exercising judicial powers, and are
not courts, Parliament has not provided in Sections 12(5) and 15(5) of the
Act that Information Commissioners have to have judicial experience and
acumen. He argued that direction no. 8 that Information Commissions at the
respective levels shall work in Benches of two members each and one of them
has to be a judicial member possessing a degree in law and having
judicially trained mind and experience in performing judicial functions and
the direction that competent authority should prefer a person who is or has
been a Judge of the High Court for appointment as Information Commissioners
and that the Chief Information Commissioner shall only be a person who is
or has been a Chief Justice of a High Court or a Judge of the Supreme Court
of India is a palpable error which needs to be corrected in this review.
He further submitted that consequently direction no.9 in the judgment under
review that the appointment of judicial members as Information
Commissioners shall be in consultation with the Chief Justice of India and
Chief Justice of High Court of the respective States, as the case may be,
should be deleted.
10. Mr. Chandhiok finally submitted that in direction no.5 of the
judgment under review, this Court has further directed the Central
Government to frame all practice and procedure related rules to make
working of the Information Commissions effective and in consonance with the
basic rule of law under Sections 27 and 28 of the Act within a period of 6
months but law is well settled that the Court cannot direct a rule making
authority to make rules in a particular fashion. He relied on the decision
of this Court in Mallikarjuna Rao and Others v. State of Andhra Pradesh and
Others [(1990) 2 SCC 707] in support of this submission. He argued that
direction no.5 of the judgment under review is, therefore, a patent error
which needs to be corrected in this review.
11. Dr. Manish Singhvi, Additional Advocate General for the State of
Rajasthan, submitted that the Information Commissioners do not perform
functions which prior to the Act were vested in courts and therefore they
need not be persons having judicial background/judicial training/judicial
experience. He submitted that in Union of India v. R. Gandhi, Madras Bar
Association (supra), this Court took the view that only if functions which
have been dealt with by civil courts are transferred to tribunals, such
tribunals should be manned by persons having judicial background/judicial
training/judicial experience. He submitted that the view taken by this
Court in the judgment under review that persons having judicial
background/judicial training/judicial experience should be preferred while
appointing Information Commissioners is an apparent error which should be
corrected in this review.
12. Mr. M.S. Ganesh, learned senior counsel appearing for the intervener,
Commonwealth Human Rights Initiative, submitted that the Information
Commission is not vested with sovereign judicial powers and discharges only
administrative functions under the provisions of the Act and the view taken
by this Court in the judgment under review that Information Commissioners
should be persons having judicial background, judicial experience and
judicial acumen is not a correct view. He cited the opinion of Lord
Greene, M.R. in B. Johnson & Co. (Builders), Ltd. v. Minister of Health
[(1947) 2 All England Law Reports 395] as well as the opinion of Lord
Diplock in Bushell v. Secretary of State for the Environment [(1980) 2 All
ER 608 HL] that Information Commissioners arrive at administrative
decisions and do not decide litigations and therefore they need not have
judicial background, judicial experience and judicial acumen. Mr. Ganesh
next submitted that persons who have been appointed as Chief Information
Commissioners and Information Commissioners under Sections 12(5) and 15(5)
of the Act, have been persons without any eminence in public life. He
submitted that mostly retired IAS Officers and IPS Officers without any
experience in public life but only experience in administration have been
appointed as Information Commissioners. He submitted that in this review,
the Court should issue appropriate directions to ensure that appointment of
Chief information Commissioners and Information Commissioners are made in
accordance with Sections 12(5) and 15(5) of the Act.
13. Mr. Prashant Bhushan, learned senior counsel appearing for the
interveners, Mr. Shailesh Gandhi and Mrs. Aruna Roy, submitted that as the
Information Commissions do not perform judicial work, they need not be
manned by judicial officers and Justices of High Courts and Supreme Court
and, therefore, directions No.8 and 9 of the judgment under review need to
be deleted. He further submitted that directions No.10 and 11 of the
judgment under review regarding the procedure to be followed for
appointment of Information Commissioners may not ensure transparency in the
matter of appointment of Information Commissioners. He submitted that this
Court in Centre for PIL and Another v. Union of India & Another [(2011) 4
SCC] has laid down a procedure in para 88 for selecting and appointing the
Central Vigilance Commissioner and Vigilance Commissioners under Section 3
(3) of the Central Vigilance Commission Act, 2003 and has laid down therein
that the empanelment of persons to be considered for appointment of Central
Vigilance Commissioner and Vigilance Commissioner shall be carried out on
the basis of rational criteria, which is to be reflected by recording of
reasons and/or noting akin to reasons by the empanelling authority. He
submitted that similar procedure should be followed for short listing
persons for appointment as Information Commissioners and some reasons
should be indicated as to why the person has been empanelled for
appointment as Information Commissioner. He further submitted that the
direction No.8 in the judgment under review that Information Commissioners
at the respective levels shall henceforth work in benches of two members
and one of them should be a judicial member would result in very few
Division Benches of the Information Commission taking up matters and the
working of the Information Commission in dealing with matters will slow
down. He submitted that instead legal training can be given to Information
Commissioners to decide matters involving intricate questions of law.
14. Learned counsel for the respondent- writ petitioner Mr. Amit Sharma,
on the other hand, supported the judgment under review. According to him,
this Court has rightly held that the Information Commission functions as an
adjudicatory authority and decides issues relating to the fundamental right
of a citizen to be informed about the Government policies and information.
He submitted that to ensure proper adjudication of the fundamental right to
information of every citizen, it is absolutely necessary that an
independent person who does not have a political agenda is appointed as
Information Commissioner. He further submitted that Information
Commissioners also have to adjudicate issues relating to right of privacy
of the citizens of India, which is part of their personal liberty under
Article 21 of the Constitution and for this reason also a person with
judicial experience and training is best suited and therefore this Court
has rightly held that persons with judicial experience and training and
judicial acumen should be preferred for appointment as Information
Commissioners. He finally submitted that it will be evident from Sections
7, 8, 9 and 11 of the Act that a lis between the parties will have to be
decided by the Central Public Information Officer or State Public
Information Officer and this Court has rightly held in judgment under
review that Information Commissions which decide appeals under Section 20
of the Act against the decisions of the Central Public Information Officer
or State Public Information Officer are akin to courts. He referred to
Section 18 of the Act to show that Information Commissions have been vested
with the powers of a civil court and, therefore, are in the nature of
courts which have to be manned by judicial officers.
15. Mr. Sharma vehemently argued that in the event this Court holds in
this review that the persons with judicial experience and training need not
be appointed as Information Commissioners, then the provisions of Section
12(5) and 15(5) of the Act have to be struck down as ultra vires Article 14
of the Constitution. He cited the decision of this Court in Indra Das v.
State of Assam [(2011) 3 SCC 380] in which it has been held that ordinarily
the literal rule of interpretation while construing a statutory provision
should be followed, but where such interpretation makes the provision
unconstitutional it can be departed from and the statute should be read
down to make it constitutional. He submitted that in the judgment under
review, this Court has saved the provisions of Section 12(5) and 15(5) of
the Act by reading down the said provisions.
16. Mr. Sharma referred to the chart at page 40 of the writ petition to
show qualifications of persons appointed equivalent to Information
Commissioners in Australia, Canada, Scotland, England and United States and
argued that they are required to obtain a degree in the field of law. He
cited the observations of this Court in the case of Union of India v. R.
Gandhi, President, Madras Bar Association (supra) that the assumption that
members of the civil services will have the judicial experience or
expertise in company law to be appointed either as judicial member or
technical member is an erroneous assumption. He submitted that in that
case, this Court therefore issued directions that only High Court Judges or
District Judges of 5 years experience or lawyers having practice of 10
years can be considered for appointment as judicial members of the National
Company Law Tribunal. He also relied on the decision of this Court in
Pareena Swarup v. Union of India [(2008) 14 SCC 107] in which this Court
observed that while creating new avenue of judicial forums, it is the duty
of the Government to see that they are not in breach of basic
constitutional scheme of separation of powers and independence of judiciary
and held that the provisions of the Prevention of Money-Laundering Act,
2002 as enacted may not ensure an independent judiciary to decide the cases
under the Act and accordingly directed the Union of India to incorporate
the proposed provisions to ensure independence of judiciary.
Findings of the Court:
17. Review of a judgment or order of this Court under Article 137 of the
Constitution is confined to only errors apparent on the face of the record
as provided in Order XL Rule 1 of the Supreme Court Rules, 1966. A three
Judge Bench of this Court has held in Commissioner of Sales Tax, J & K and
Others v. Pine Chemicals Ltd. and Others [(1995) 1 SCC 58] that if a
reasoning in the judgment under review is at variance with the clear and
simple language in a statute, the judgment under review suffers from a
manifest error of law, an error apparent on the face of the record, and is
liable to be rectified. Hence, in these Review Petitions, we have to
decide whether the reasoning and directions in the judgment under review is
at variance with the clear and simple language employed in the different
provisions of the Act and accordingly whether the judgment under review
suffers from manifest errors of law apparent on the face of the record.
18. As we have noticed, Sections 12(5) and 15(5) of the Act provide that
Chief Information Commissioner and Information Commissioners shall be
persons of eminence in public life with wide knowledge and experience in
law, science and technology, social service, management, journalism, mass
media or administration and governance. These provisions of the Act do not
provide that the Chief Information Commissioner and Information
Commissioners shall be persons having judicial experience, training and
acumen and yet this Court has held in the judgment under review that for
effectively performing the functions and exercising the powers of the
Information Commission, there is a requirement of a judicial mind and
therefore persons eligible for appointment should preferably have judicial
background and possess judicial acumen and experience. We may now examine
the bare provisions of the Act, whether this finding that there is
requirement of a judicial mind to discharge the functions of Information
Commission is an error apparent on the face of the record.
19. Sections 18, 19 and 20 of the Act, which confer powers on the
Information Commission, are extracted hereinbelow:
“18. Powers and 'Functions of Information Commissions.—(1) Subject
to the provisions of this Act, it shall be the duty of the Central
Information Commission or State Information Commission, as the case
may be, to receive and inquire into a complaint from any person,—
(a) who has been unable to submit a request to a Central Public
Information Officer or State Public Information Officer, as the
case may be, either by reason that no such officer has been
appointed under this Act, or because the Central Assistant
Public Information Officer or State Assistant Public Information
Officer, as the case may be, has refused to accept his or her
application for information or appeal under this Act for
forwarding the same to the Central Public Information Officer or
State Public Information Officer or senior officer specified in
sub-section (1) of section 19 or the Central Information
Commission or the State Information Commission, as the case may
be;
(b) who has been refused access to any information requested
under this Act;
(c) who has not been given a response to a request for
information or access to information within the time limit
specified under this Act;
(d) who has been required to pay an amount of fee which he or
she considers unreasonable;
(e) who believes that he or she has been given incomplete,
misleading or false information under this Act; and
(f) in respect of any other matter relating to requesting or
obtaining access to records under this Act.
(2) Where the Central Information Commission or State Information
Commission, as the case may be, is satisfied that there are
reasonable grounds to inquire into the matter, it may initiate an
inquiry in respect thereof.
(3) The Central Information Commission or State Information
Commission, as the case may be, shall, while inquiring into any
matter under this section, have the same powers as are vested in a
civil court while trying a suit under the Code of Civil Procedure,
1908, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of persons and
compel them to give oral or written evidence on oath and to
produce the documents or things;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any
court or office;
(e) issuing summons for examination of witnesses or documents;
and
(f) any other matter which may be prescribed.
(4) Notwithstanding anything inconsistent contained in any other
Act of Parliament or State Legislature, as the case may be, the
Central Information Commission or the State Information Commission,
as the case may be, may, during the inquiry of any complaint under
this Act, examine any record to which this Act applies which is
under the control of the public authority, and no such record may
be withheld from it on any grounds.
19. Appeal.—(1) Any person who, does not receive a decision within
the time specified in sub-section (1) or clause (a) of sub-section
(3) of section 7, or is aggrieved by a decision of the Central
Public Information Officer or State Public Information Officer, as
the case may be, may within thirty days from the expiry of such
period or from the receipt of such a decision prefer an appeal to
such officer who is senior in rank to the Central Public
Information Officer or State Public Information Officer as the case
may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of
the period of thirty days if he or she is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
in time.
(2) Where an appeal is preferred against an order made by a Central
Public Information Officer or a State Public Information Officer,
as the case may be, under section 11 to disclose third party
information, the appeal by the concerned third party shall be made
within thirty days from the date of the order.
(3) A second appeal against the decision under sub-section (1)
shall lie within ninety days from the date on which the decision
should have been made or was actually received, with the Central
Information Commission or the State Information Commission:
Provided that the Central Information Commission or the State
Information Commission, as the case may be, may admit the appeal
after the expiry of the period of ninety days if it is satisfied
that the appellant was prevented by sufficient cause from filing
the appeal in time.
(4) If the decision of the Central Public Information Officer or
State Public Information Officer, as the case may be, against which
an appeal is preferred relates to information of a third party, the
Central Information Commission or State Information Commission, as
the case may be, shall give a reasonable opportunity of being heard
to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a
request was justified shall be on the Central Public Information
Officer or State Public Information Officer, as the case may be,
who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall be
disposed of within thirty days of the receipt of the appeal or
within such extended period not exceeding a total of forty-five
days from the date of filing thereof, as the case may be, for
reasons to be recorded in writing.
(7) The decision of the Central Information Commission or State
Information Commission, as the case may be, shall be binding.
(8) In its decision, the Central Information Commission or State
Information Commission, as the case may be, has the power to—
(a) require the public authority to take any such steps as may
be necessary to secure compliance with the provisions of this
Act, including—
(i) by providing access to information, if so requested, in
a particular form;
(ii) by appointing a Central Public Information Officer or
State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of
information;
(iv) by making necessary changes to its practices in
relation to the maintenance, management and destruction of
records;
(v) by enhancing the provision of training on the right to
information for its officials;
(vi) by providing it with an annual report in compliance
with clause (b) of sub-section (1) of section 4;
(b) require the public authority to compensate the complainant
for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.
(9) The Central Information Commission or State Information
Commission, as the case may be, shall give notice of its decision,
including any right of appeal, to the complainant and the public
authority.
(10) The Central Information Commission or State Information
Commission, as the case may be, shall decide the appeal in
accordance with such procedure as may be prescribed.
20. Penalties.—(1) Where the Central Information Commission or the
State Information Commission, as the case may be, at the time of
deciding any complaint or appeal is of the opinion that the Central
Public Information Officer or the State Public Information Officer,
as the case may be, has, without any reasonable cause, refused to
receive an application for information or has not furnished
information within the time specified under sub-section (1) of
section 7 or malafidely denied the request for information or
knowingly given incorrect, incomplete or misleading information or
destroyed information which was the subject of the request or,
obstructed in any manner in furnishing the information, it shall
impose a penalty of two hundred and fifty rupees each day till
application is received or information is furnished, so however,
the total amount of such penalty shall not exceed twenty-five
thousand rupees:
Provided that the Central Public Information Officer or the State
Public Information Officer, as the case may be, shall be given a
reasonable opportunity of being heard before any penalty is imposed
on him:
Provided further that the burden of proving that he acted
reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer, as the
case may be.
(2) Where the Central Information Commission or the State
Information Commission, as the case may be, at the time of deciding
any complaint or appeal is of the opinion that the Central Public
Information Officer or the State Public Information Officer, as the
case may be, has, without any reasonable cause and persistently,
failed to receive an application for information or has not
furnished information within the time specified under sub-section
(1) of section 7 or malafidely denied the request for information
or knowingly given incorrect, incomplete or misleading information
or destroyed information which was the subject of the request or
obstructed in any manner in furnishing the information, it shall
recommend for disciplinary action against the Central Public
Information Officer or the State Public Information Officer, as the
case may be, under the service rules applicable to him.
20. It will be clear from the plain and simple language of Sections 18,
19 and 20 of the Act that, under Section 18 the Information Commission has
the power and function to receive and inquire into a complaint from any
person who is not able to secure information from a public authority, under
Section 19 it decides appeals against the decisions of the Central Public
Information Officer or the State Public Information Officer relating to
information sought by a person, and under Section 20 it can impose a
penalty only for the purpose of ensuring that the correct information is
furnished to a person seeking information from a public authority. Hence,
the functions of the Information Commissions are limited to ensuring that a
person who has sought information from a public authority in accordance
with his right to information conferred under Section 3 of the Act is not
denied such information except in accordance with the provisions of the
Act. Section 2(j) defines “Right to Information” conferred on all citizens
under Section 3 of the Act to mean the right to information accessible
under the Act, “which is held by or under the control of any public
authority”. While deciding whether a citizen should or should not get a
particular information “which is held by or under the control of any public
authority”, the Information Commission does not decide a dispute between
two or more parties concerning their legal rights other than their right to
get information in possession of a public authority. This function
obviously is not a judicial function, but an administrative function
conferred by the Act on the Information Commissions.
21. In the judgment under review, this Court after examining the
provisions of the Act, however, has held that there is a lis to be decided
by the Information Commission inasmuch as the request of a party seeking
information is to be allowed or to be disallowed and hence requires a
judicial mind. But we find that the lis that the Information Commission
has to decide was only with regard to the information in possession of a
public authority and the Information Commission was required to decide
whether the information could be given to the person asking for it or
should be withheld in public interest or any other interest protected by
the provisions of the Act. The Information Commission, therefore, while
deciding this lis does not really perform a judicial function, but performs
an administrative function in accordance with the provisions of the Act.
As has been held by Lord Greene, M.R. in B. Johnson & Co. (Builders), Ltd.
v. Minister of Health (supra):
“Lis, of course, implies the conception of an issue joined
between two parties. The decision of a lis, in the ordinary use
of legal language, is the decision of that issue. The What is
described here as a lis – the raising of the objections to the
order, the consideration of the matters so raised and the
representations of the local authority and the objectors – is
merely a stage in the process of arriving at an administrative
decision. It is a stage which the courts have always said
requires a certain method of approach and method of conduct, but
it is not a lis inter partes, and for the simple reason that the
local authority and the objectors are not parties to anything
that resembles litigation.”
22. In the judgment under review, this Court has also held after
examining the provisions of the Act that the Information Commission decides
matters which may affect the rights of third parties and hence there is
requirement of judicial mind. For example, under Section 8(1)(d) of the
Act, there is no obligation to furnish information including commercial
confidence, trade secrets, or intellectual property, the disclosure of
which would harm the competitive position of the third party, unless the
competent authority is satisfied that the larger public interest warrants
the disclosure of such information. Similarly, the right to privacy of a
third party, which is part of his personal liberty under Article 21 of the
Constitution, may be breached if a particular kind of information, purely
of personal nature may be directed to be furnished by the concerned
authority. To protect the rights of third parties, Section 11 of the Act
provides that where a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to disclose any
information or record or part thereof, may on a request made under the Act,
which relates to or has been supplied by a third party and has been treated
as confidential by that third party, a written notice will have to be given
to such third party inviting such party to make a submission in writing or
orally, regarding whether the information should be disclosed, and such
submission of the third party can be kept in view while taking a decision
about disclosure of the information. The decision taken by the Central
Public Information Officer or the State Public Information Officer, as the
case may be, under Section 11 of the Act is appealable under Section 19 of
the Act before the Information Commission and when the Information
Commission decides such an appeal, it decides only whether or not the
information should be furnished to the citizen in view of the objection of
the third party. Here also the Information Commission does not decide the
rights of a third party but only whether the information which is held by
or under the control of a public authority in relation to or supplied by
that third party could be furnished to a citizen under the provisions of
the Act. Hence, the Information Commission discharges administrative
functions, not judicial functions.
23. While performing these administrative functions, however, the
Information Commissions are required to act in a fair and just manner
following the procedure laid down in Sections 18, 19 and 20 of the Act.
But this does not mean that the Information Commissioners are like Judges
or Justices who must have judicial experience, training and acumen. In
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Others (supra),
Hidayatullah, J, explained:
“33. In my opinion, a Court in 'the strict sense is a tribunal
which is a part of the ordinary hierarchy of Courts of Civil
Judicature maintained by the State under its constitution to
exercise the judicial power of the State. These Courts perform all
the judicial functions of the State except those that are excluded
by law from their jurisdiction. The word "judicial", be it noted,
is itself capable of two meanings. They were admirably stated by
Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society
v. Parkinson (1892) 1 QB 431(452) in these words:
"The word 'judicial' has two meanings. It may refer to the
discharge of duties exercisable by a judge or by justices in
court, or to administrative duties which need not be
performed in court, but in respect of which it is necessary
to bring to bear a judicial mind - that is, a mind to
determine what is fair and just in respect of the matters
under consideration."
That an officer is required to decide matters before him
"judicially" in the second sense does not make him a Court or even
a tribunal, because that only establishes that he is following a
standard of conduct, and is free from bias or interest.”
24. Once the Court is clear that Information Commissions do not
exercise judicial powers and actually discharge administrative functions,
the Court cannot rely on the constitutional principles of separation of
powers and independence of judiciary to direct that Information
Commissions must be manned by persons with judicial training, experience
and acumen or former Judges of the High Court or the Supreme Court. The
principles of separation of powers and independence of judiciary embodied
in our Constitution no doubt require that judicial power should be
exercised by persons with judicial experience, training and acumen. For
this reason, when judicial powers vested in the High Court were sought to
be transferred to tribunals or judicial powers are vested in tribunals by
an Act of the legislature, this Court has insisted that such tribunals be
manned by persons with judicial experience and training, such as High
Court Judges and District Judges of some experience. Accordingly, when
the powers of the High Court under Companies Act, 1956 were sought to be
transferred to Tribunals by the Companies (Amendment) Act, 2002, a
Constitution Bench of this Court has held in Union of India v. R. Gandhi,
President Madras Bar Association (supra):
“When the legislature proposes to substitute a tribunal in place
of the High Court to exercise the jurisdiction which the High
Court is exercising, it goes without saying that the standards
expected from the judicial members of the Tribunal and standards
applied for appointing such members, should be as nearly as
possible as applicable to High Court Judges, which are apart
from a basic degree in law, rich experience in the practice of
law, independent outlook, integrity, character and good
reputation. It is also implied that only men of standing who
have special expertise in the field to which the Tribunal
relates, will be eligible for appointment as technical members.
Therefore, only persons with a judicial background, that is,
those who have been or are Judges of the High Court and lawyers
with the prescribed experience, who are eligible for appointment
as High Court Judges, can be considered for appointment as
judicial members.”
In Pareena Swarup v. Union of India (supra), having found that judicial
powers were to be exercised by the Appellate Tribunals under the
Prevention of Money- Laundering Act, 2002 this Court held that to protect
the constitutional guarantee of independence of judiciary, persons who
are qualified to be judges be appointed as members of the Appellate
Tribunal. But, as we have seen, the powers exercised by the Information
Commissions under the Act were not earlier vested in the High Court or
subordinate court or any other court and are not in any case judicial
powers and therefore the Legislature need not provide for appointment of
judicial members in the Information Commissions.
25. Perhaps for this reason, Parliament has not provided in Sections
12(5) and 15(5) of the Act for appointment of persons with judicial
experience and acumen and retired Judges of the High Court as Information
Commissioners and retired Judges of the Supreme Court and Chief Justice
of the High Court as Chief Information Commissioner and any direction by
this Court for appointment of persons with judicial experience, training
and acumen and Judges as Information Commissioners and Chief Information
Commissioner would amount to encroachment in the field of legislation.
To quote from the judgment of the seven-Judge Bench in P. Ramachandra Rao
v. State of Karnataka (supra):
“Courts can declare the law, they can interpret the law, they
can remove obvious lacunae and fill the gaps but they cannot
entrench upon in the field of legislation properly meant for the
legislature.”
26. Moreover, Sections 12(5) and 15(5) of the Act while providing
that Chief Information Commissioner and Information Commissioners shall
be persons with eminence in public life with wide knowledge and
experience in law, science and technology, social service, management,
journalism, mass media or administration and governance, also does not
prescribe any basic qualification which such persons must have in the
respective fields in which they work. In the judgment under review,
however, this Court has “read into” Sections 12(5) and 15(5) of the Act
missing words and held that such persons must have a basic degree in the
respective field as otherwise Sections 12(5) and 15(5) of the Act are
bound to offend the doctrine of equality. This “reading into” the
provisions of Sections 12(5) and 15(5) of the Act, words which Parliament
has not intended is contrary to the principles of statutory
interpretation recognised by this Court. In Union of India and Another v.
Deoki Nandan Aggarwal (supra) this Court has held that the court could
not correct or make up for any deficiencies or omissions in the language
of the statute. V. Ramaswami, J. writing the judgment on behalf of a
three Judge Bench says:
“It is not the duty of the Court either to enlarge the scope of
the legislation or the intention of the legislature when the
language of the provision is plain and unambiguous. The Court
cannot rewrite, recast or reframe the legislation for the very
good reason that it has no power to legislate. The power to
legislate has not been conferred on the courts. The Court cannot
add words to a statute or read words into it which are not
there. Assuming there is a defect or an omission in the words
used by the legislature the Court could not go to its aid to
correct or make up the deficiency. Courts shall decide what the
law is and not what it should be. The Court of course adopts a
construction which will carry out the obvious intention of the
legislature but could not legislate itself. But to invoke
judicial activism to set at naught legislative judgment is
subversive of the constitutional harmony and comity of
instrumentalities.”
27. In the judgment under review, this Court has also held that if
Sections 12(5) and 15(5) of the Act are not read in the manner suggested
in the judgment, these Sections would offend the doctrine of equality.
But on reading Sections 12(5) and 15(5) of the Act, we find that it does
not discriminate against any person in the matter of appointment as Chief
Information Commissioner and Information Commissioners and so long as one
is a person of eminence in public life with wide knowledge and experience
in law, science and technology, social service, management, journalism,
mass media or administration and governance, he is eligible to be
considered for appointment as Chief Information Commissioner or
Information Commissioner. However, to ensure that the equality clause
in Article 14 is not offended, the persons to be considered for
appointment as Chief Information Commissioner or Information Commissioner
should be from different fields, namely, law, science and technology,
social service, management, journalism, mass media or administration and
governance and not just from one field.
28. Sections 12(6) and 15(6) of the Act, however, provide that the
Chief Information Commissioner or an Information Commissioner shall not
be a Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office of profit
or connected with any political party or carry on any business or pursue
any profession. There could be two interpretations of Sections 12(6) and
15(6) of the Act. One interpretation could be that a Member of
Parliament or Member of the Legislature of any State or Union Territory,
as the case may be, or a person holding any other office of profit or
connected with any political party or carrying on any business or
pursuing any profession will not be eligible to be considered for
appointment as a Chief Information Commissioner and Information
Commissioner. If this interpretation is given to Sections 12(6) and
15(6) of the Act, then it will obviously offend the equality clause in
Article 14 of the Constitution as it debars such persons from being
considered for appointment as Chief Information Commissioner and
Information Commissioners. The second interpretation of Sections 12(6)
and 15(6) of the Act could be that once a person is appointed as a Chief
Information Commissioner or Information Commissioner, he cannot continue
to be a Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office of profit
or remain connected with any political party or carry on any business or
pursue any profession. If this interpretation is given to Sections 12(6)
and 15(6) of the Act then the interpretation would effectuate the object
of the Act inasmuch as Chief Information Commissioner and Information
Commissioners would be able to perform their functions in the Information
Commission without being influenced by their political, business,
professional or other interests. It is this second interpretation of
Sections 12(6) and 15(6) of the Act which has been rightly given in the
judgment under review and Sections 12(6) and 15(6) of the Act have been
held as not to be violative of Article 14 of the Constitution.
Therefore, the argument of Mr. Sharma, learned counsel for the respondent-
writ petitioner, that if we do not read Sections 12(5) and 15(5) of the
Act in the manner suggested in the judgment under review, the provisions
of Sections 12(5) and 15(5) of the Act would be ultra vires the Article
14 of the Constitution, is misconceived.
29. In the judgment under review, in direction no.5, the Central
Government and/or the competent authority have been directed to frame all
practice and procedure related rules to make working of the Information
Commissions effective and in consonance with the basic rule of law and
with particular reference to Sections 27 and 28 of the Act within a
period of six months. Sections 27(1) and 28(1) of the Act are extracted
hereinbelow:
“27. Power to make rules by appropriate Government.—(1) The
appropriate Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
28. Power to make rules by competent authority.—(1) The
competent authority may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.”
The use of word “may” in Sections 27 and 28 of the Act make it clear that
Parliament has left it to the discretion of the rule making authority to
make rules to carry out the provisions of the Act. Hence, no mandamus can
be issued to the rule making authority to make the rules either within a
specific time or in a particular manner. If, however, the rules are made
by the rule making authority and the rules are not in accordance with the
provisions of the Act, the Court can strike down such rules as ultra vires
the Act, but the Court cannot direct the rule making authority to make the
rules where the Legislature confers discretion on the rule making authority
to make rules. In the judgment under review, therefore, this Court made a
patent error in directing the rule making authority to make rules within a
period of six months.
30. Nonetheless, the selection and appointment of Chief Information
Commissioner and Information Commissioners has not been left entirely to
the discretion of the Central Government and the State Government under
Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the
Chief Information Commissioner and Information Commissioners shall be
appointed by the President or the Governor, as the case may be, on the
recommendation of the Committee named therein. Sections 12(5) and 15(5)
provide that Chief Information Commissioner and Information Commissioners
have to be persons of eminence in public life with wide knowledge and
experience in the different fields mentioned therein, namely, law, science
and technology, social service, management, journalism, mass media or
administration and governance. Thus, the basic requirement for a person to
be appointed as a Chief Information Commissioner or Information
Commissioner is that he should be a person of eminence in public life with
wide knowledge and experience in a particular field. Parliament has
insisted on this basic requirement having regard to the functions that the
Chief Information Commissioner and Information Commissioners are required
to perform under the Act. As the preamble of the Act states, democracy
requires an informed citizenry and transparency of information which are
vital to its functioning and also requires that corruption is contained and
Governments and their instrumentalities are held accountable to the
governed. The preamble of the Act, however, cautions that revelation of
information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use of
limited fiscal resources and the preservation of confidentiality of
sensitive information. Moreover, under the Act, a citizen has the right
to information held or under the control of public authority and hence
Information Commissioners are to ensure that the right to privacy of person
protected under Article 21 of the Constitution is not affected by
furnishing any particular information.
31. Unfortunately, experience over the years has shown that the orders
passed by Information Commissions have at times gone beyond the provisions
of the Act and that Information Commissions have not been able to harmonise
the conflicting interests indicated in the preamble and other provisions of
the Act. The reasons for this experience about the functioning of the
Information Commissions could be either that persons who do not answer the
criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief
Information Commissioner or Information Commissioners or that the persons
appointed answer the criteria laid down in Sections 12(5) and 15(5) of the
Act but they do not have the required mind to balance the interests
indicated in the Act and to restrain themselves from acting beyond the
provisions of the Act. This experience of the functioning of the
Information Commissions prompted this Court to issue the directions in the
judgment under review to appoint judicial members in the Information
Commissions. But it is for Parliament to consider whether appointment of
judicial members in the Information Commissions will improve the
functioning of the Information Commissions and as Sections 12(5) and 15(5)
of the Act do not provide for appointment of judicial members in the
Information Commissions, this direction was an apparent error. Sections
12(5) and 15(5) of the Act, however, provide for appointment of persons
with wide knowledge and experience in law. We hope that persons with wide
knowledge and experience in law will be appointed in the Information
Commissions at the Centre and the States. Accordingly, wherever Chief
Information Commissioner is of the opinion that intricate questions of law
will have to be decided in a matter coming before the Information
Commissions, he will ensure that the matter is heard by an Information
Commissioner who has such knowledge and experience in law.
32. Under Order XL of the Supreme Court Rules, 1966 this Court can review
its judgment or order on the ground of error apparent on the face of record
and on an application for review can reverse or modify its decision on the
ground of mistake of law or fact. As the judgment under review suffers
from mistake of law, we allow the Review Petitions, recall the directions
and declarations in the judgment under review and dispose of Writ Petition
(C) No. 210 of 2012 with the following declarations and directions:
i) We declare that Sections 12(5) and 15(5) of the Act are not ultra
vires the Constitution.
ii) We declare that Sections 12(6) and 15(6) of the Act do not debar a
Member of Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or a person holding any other
office of profit or connected with any political party or carrying on
any business or pursuing any profession from being considered for
appointment as Chief Information Commissioner or Information
Commissioner, but after such person is appointed as Chief Information
Commissioner or Information Commissioner, he has to discontinue as
Member of Parliament or Member of the Legislature of any State or
Union Territory, or discontinue to hold any other office of profit or
remain connected with any political party or carry on any business or
pursue any profession during the period he functions as Chief
Information Commissioner or Information Commissioner.
iii) We direct that only persons of eminence in public life with wide
knowledge and experience in the fields mentioned in Sections 12(5) and
15(5) of the Act be considered for appointment as Information
Commissioner and Chief Information Commissioner.
iv) We further direct that persons of eminence in public life with wide
knowledge and experience in all the fields mentioned in Sections 12(5)
and 15(5) of the Act, namely, law, science and technology, social
service, management, journalism, mass media or administration and
governance, be considered by the Committees under Sections 12(3) and
15(3) of the Act for appointment as Chief Information Commissioner or
Information Commissioners.
v) We further direct that the Committees under Sections 12(3) and 15(3)
of the Act while making recommendations to the President or to the
Governor, as the case may be, for appointment of Chief Information
Commissioner and Information Commissioners must mention against the
name of each candidate recommended, the facts to indicate his eminence
in public life, his knowledge in the particular field and his
experience in the particular field and these facts must be accessible
to the citizens as part of their right to information under the Act
after the appointment is made.
vi) We also direct that wherever Chief Information Commissioner is of the
opinion that intricate questions of law will have to be decided in a
matter coming up before the Information Commission, he will ensure
that the matter is heard by an Information Commissioner who has wide
knowledge and experience in the field of law.
33. There shall be no order as to costs.
.……………………….J.
(A. K. Patnaik)
.……………………….J.
(A. K. Sikri)
New Delhi,
September 03, 2013.
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