National RTI Forum for Research and Analysis: Namit Sharma vs. UOI IN THE SUPREME COURT OF INDIA WRIT PETITION (CIVIL) NO. 210 of 2012

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 210 of 2012

Namit Sharma … Petitioner

Versus

Union of India … Respondent

J U D G M E N T

Swatanter Kumar, J.

1. The value of any freedom is determined by the extent to

which the citizens are able to enjoy such freedom. Ours is a

constitutional democracy and it is axiomatic that citizens have

the right to know about the affairs of the Government which,

having been elected by them, seeks to formulate some policies of

governance aimed at their welfare. However, like any other

freedom, this freedom also has limitations. It is a settled

proposition that the Right to Freedom of Speech and Expression

enshrined under Article 19(1)(a) of the Constitution of India (for

short 'the Constitution') encompasses the right to impart and

receive information. The Right to Information has been stated to

be one of the important facets of proper governance. With the

passage of time, this concept has not only developed in the field

of law, but also has attained new dimensions in its application.

This court while highlighting the need for the society and its

entitlement to know has observed that public interest is better

served by effective application of the right to information. This

freedom has been accepted in one form or the other in various

parts of the world. This Court, in absence of any statutory law,

in the case of Secretary, Ministry of Information and Broadcasting,

Government of India & Ors. v. Cricket Association of Bengal & Anr.

[(1995) 2 SCC 161] held as under :

"The democracy cannot exist unless all

citizens have a right to participate in the

affairs of the polity of the country. The right

to participate in the affairs of the country is

meaningless unless the citizens are well

informed on all sides of the issues, in respect

of which they are called upon to express

their views. One-sided information,

disinformation, misinformation and noninformation,

all equally create an

uninformed citizenry which makes

democracy a farce when medium of

information is monopolized either by a

partisan central authority or by private

individuals or oligarchy organizations. This

is particularly so in a country like ours

where about 65 per cent of the population is

illiterate and hardly 1 ½ per cent of the

population has an access to the print media

which is not subject to pre-censorship."

2. The legal principle of 'A man's house is his castle. The

midnight knock by the police bully breaking into the peace of the

citizen's home is outrageous in law', stated by Edward Coke has

been explained by Justice Douglas as follows:

"The free State offers what a police state

denies – the privacy of the home, the dignity

and peace of mind of the individual. That

precious right to be left alone is violated once

the police enter our conversations."

3. The States which are governed by Policing and have a policy

of greater restriction and control obviously restrict the enjoyment

of such freedoms. That, however, does not necessarily imply that

this freedom is restriction-free in the States where democratic

governance prevails. Article 19(1)(a) of the Constitution itself is

controlled by the reasonable restrictions imposed by the State by

enacting various laws from time to time.

4. The petitioner, a public spirited citizen, has approached this

Court under Article 32 of the Constitution stating that though

the Right to Information Act, 2005 (for short 'Act of 2005') is an

important tool in the hands of any citizen to keep checks and

balances on the working of the public servants, yet the criterion

for appointment of the persons who are to adjudicate the

disputes under this Act are too vague, general, ultra vires the

Constitution and contrary to the established principles of law laid

down by a plethora of judgments of this Court. It is the stand of

the petitioner that the persons who are appointed to discharge

judicial or quasi-judicial functions or powers under the Act of

2005 ought to have a judicial approach, experience, knowledge

and expertise. Limitation has to be read into the competence of

the legislature to prescribe the eligibility for appointment of

judicial or quasi-judicial bodies like the Chief Information

Commissioner, Information Commissioners and the

corresponding posts in the States, respectively. The legislative

power should be exercised in a manner which is in consonance

with the constitutional principles and guarantees. Complete lack

of judicial expertise in the Commission may render the decision

making process impracticable, inflexible and in given cases,

contrary to law. The availability of expertise of judicial members

in the Commission would facilitate the decision-making to be

more practical, effective and meaningful, besides giving

semblance of justice being done. The provision of eligibility

criteria which does not even lay down any qualifications for

appointment to the respective posts under the Act of 2005 would

be unconstitutional, in terms of the judgments of this Court in

the cases of Union of India v. Madras Bar Association, [(2010) 11

SCC 1]; Pareena Swarup v. Union of India [(2008) 14 SCC 107]; L.

Chandra Kumar v. Union of India [(1997) 3 SCC 261]; R.K. Jain

v. Union of India [(1993) 4 SCC 119]; S.P. Sampath Kumar v.

Union of India [(1987) 1 SCC 124].

5. It is contended that keeping in view the powers, functions

and jurisdiction that the Chief/State Information Commissioner

and/or the Information Commissioners exercise undisputedly,

including the penal jurisdiction, there is a certain requirement of

legal acumen and expertise for attaining the ends of justice,

particularly, under the provisions of the Act of 2005. On this

premise, the petitioner has questioned the constitutional validity

of sub-Sections (5) and (6) of Section 12 and sub-Sections (5) and

(6) of Section 15 of the Act of 2005. These provisions primarily

deal with the eligibility criteria for appointment to the posts of

Chief Information Commissioners and Information

Commissioners, both at the Central and the State levels. It will

be useful to refer to these provisions at this very stage.

"Section 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.

(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.

XXX XXX XXX

Section 15 (5) The State Chief Information

Commissioner and the 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.

(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.

6. The challenge to the constitutionality of the above

provisions inter alia is on the following grounds :

(i) Enactment of the provisions of eligibility criteria for

appointment to such high offices, without providing

qualifications, definite criterion or even consultation with

judiciary, are in complete violation of the fundamental

rights guaranteed under Article 14, 16 and 19(1)(g) of the

Constitution.

(ii) Absence of any specific qualification and merely providing

for experience in the various specified fields, without there

being any nexus of either of these fields to the object of the

Act of 2005, is violative of the fundamental constitutional

values.

(iii) Usage of extremely vague and general terminology like

social service, mass media and alike terms, being indefinite

and undefined, would lead to arbitrariness and are open to

abuse.

(iv) This vagueness and uncertainty is bound to prejudicially

affect the administration of justice by such Commissions or

Tribunals which are vested with wide adjudicatory and

penal powers. It may not be feasible for a person of

ordinary experience to deal with such subjects with legal

accuracy.

(v) The Chief Information Commissioner and Information

Commissioners at the State and Centre level perform

judicial and/or quasi-judicial functions under the Act of

2005 and therefore, it is mandatory that persons with

judicial experience or majority of them should hold these

posts.

(vi) The fundamental right to equality before law and equal

protection of law guaranteed by Article 14 of the

Constitution enshrines in itself the person's right to be

adjudged by a forum which exercises judicial power in an

impartial and independent manner consistent with the

recognised principles of adjudication.

(vii) Apart from specifying a high powered committee for

appointment to these posts, the Act of 2005 does not

prescribe any mechanism for proper scrutiny and

consultation with the judiciary in order to render effective

performance of functions by the office holders, which is

against the basic scheme of our Constitution.

(viii) Even if the Court repels the attack to the constitutionality

of the provisions, still, keeping in view the basic structure

of the Constitution and the independence of judiciary, it is

a mandatory requirement that judicial or quasi-judicial

powers ought to be exercised by persons having judicial

knowledge and expertise. To that extent, in any case,

these provisions would have to be read down. Resultantly,

limitation has to be read into the competence of the

legislature to prescribe requisite qualifications for

appointment of judicial or quasi-judicial bodies or

tribunals.

Discussion

7. The Constitution of India expressly confers upon the courts

the power of judicial review. The courts, as regards the

fundamental rights, have been assigned the role of sentinel on the

qui vive under Article 13 of the Constitution. Our courts have

exercised the power of judicial review, beyond legislative

competence, but within the specified limitations. While the court

gives immense weightage to the legislative judgment, still it

cannot deviate from its own duties to determine the

constitutionality of an impugned statute. Every law has to pass

through the test of constitutionality which is stated to be nothing

but a formal test of rationality.

8. The foundation of this power of judicial review, as explained

by a nine-Judge's Bench in the case of Supreme Court Advocates

on Record Association & Ors. v. Union of India [(1993) 4 SCC 441],

is the theory that the Constitution which is the fundamental law

of the land, is the 'will' of the 'people', while a statute is only the

creation of the elected representatives of the people; when,

therefore, the 'will' of the legislature as declared in the statute,

stands in opposition to that of the people as declared in the

Constitution - the 'will' of the people must prevail.

9. In determining the constitutionality or validity of a

constitutional provision, the court must weigh the real impact

and effect thereof, on the fundamental rights. The Court would

not allow the legislature to overlook a constitutional provision by

employing indirect methods. In Minerva Mills Ltd. & Ors. v. Union

of India & Ors. [(1980) 3 SCC 625], this Court mandated without

ambiguity, that it is the Constitution which is supreme in India

and not the Parliament. The Parliament cannot damage the

Constitution, to which it owes its existence, with unlimited

amending power.

10. An enacted law may be constitutional or unconstitutional.

Traditionally, this Court had provided very limited grounds on

which an enacted law could be declared unconstitutional. They

were legislative competence, violation of Part III of the

Constitution and reasonableness of the law. The first two were

definite in their scope and application while the cases falling in

the third category remained in a state of uncertainty. With the

passage of time, the law developed and the grounds for

unconstitutionality also widened. D.D. Basu in the 'Shorter

Constitution of India' (Fourteenth Edition, 2009) has detailed,

with reference to various judgments of this Court, the grounds on

which the law could be invalidated or could not be invalidated.

Reference to them can be made as follows:-

"Grounds of unconstitutionality . – A law may be

unconstitutional on a number of grounds:

i. Contravention of any fundamental right,

specified in Part III of the Constitution. (Ref.

Under Art. 143, (Ref. AIR 1965 SC 745

(145): 1965 (1) SCR 413)

ii. Legislating on a subject which is not

assigned to the relevant legislature by the

distribution of powers made by the 7th Sch.,

read with the connected Articles. (Ref.

Under Art. 143, AIR 1965 SC 745)

iii. Contravention of any of the mandatory

provisions of the Constitution which impose

limitations upon the powers of a

Legislature, e.g., Art. 301. (Ref. Atiabari Tea

Co. v. State of Assam, AIR 1961 SC 232)

iv. In the case of a State law, it will be invalid in

so far as it seeks to operate beyond the

boundaries of the State. (State of Bombay v.

Chamarbaughwala R.M.D., AIR 1957 SC

699)

v. That the Legislature concerned has

abdicated its essential legislative function

as assigned to it by the Constitution or has

made an excessive delegation of that power

to some other body. Hamdard Dawakhana

Wakf v. Union of India, AIR 1960 SC 554

(568)

11. On the other hand, a law cannot be invalidated on the

following grounds:

(a) That in making the law (including an

Ordinance), the law-making body did not

apply its mind (even though it may be a

valid ground for challenging an executive

act), (Ref. Nagaraj K. V. State of A.P., AIR

1985 SC 551 (paras 31, 36), or was

prompted by some improper motive. (Ref.

Rehman Shagoo v. State of J & K, AIR 1960

SC 1(6); 1960 (1) SCR 681)

(b) That the law contravenes some

constitutional limitation which did not exist

at the time of enactment of the law in

question. (Ref. Joshi R.S. v. Ajit Mills Ltd.,

AIR 1977 SC 2279 (para 16)

Directive contained in Part IV of the

Constitution. (Ref. Deep Chand v. State of

U.P., AIR 1959 SC 648 (664)"

12. Since great emphasis has been placed on the violation of

fundamental rights, we may notice that no prejudice needs to be

proved in cases where breach of fundamental rights is claimed.

Violation of a fundamental right itself renders the impugned

action void {Ref. A.R. Antulay v. R.S. Nayak & Anr. [(1988) 2 SCC

602]}.

13. A law which violates the fundamental right of a person is

void. In such cases of violation, the Court has to examine as to

what factors the Court should weigh while determining the

constitutionality of a statute. First and the foremost, as already

noticed, is the competence of the legislature to make the law.

The wisdom or motive of the legislature in making it is not a

relative consideration. The Court should examine the provisions

of the statute in light of the provisions of the Constitution (e.g.

Part III), regardless of how it is actually administered or is

capable of being administered. In this regard, the Court may

consider the following factors as noticed in D.D. Basu (supra).

"(a) The possibility of abuse of a statute does not

impart to it any element of invalidity.

(b) Conversely, a statute which violates the

Constitution cannot be pronounced valid merely

because it is being administered in a manner

which might not conflict with the constitutional

requirements.

In the case of Charan Lal Sahu v. UOI [(1990) 1

SCC 614 (667) (para 13), MUKHERJEE, C.J.

made an unguarded statement, viz., that

"In judging the Constitutional validity of the

Act, the subsequent events, namely, how

the Act has worked out, have to be looked

into."

It can be supported only on the test of 'direct

and inevitable effect' and, therefore, needs to be

explained in some subsequent decision.

challenged on the ground that it infringes a

fundamental right, what the Court has to

consider is the 'direct and inevitable effect' of

such law.

(d) There is presumption in favour of

constitutionality of statutes. The law courts

can declare the legislative enactment to be an

invalid piece of legislation only in the even of

gross violation of constitutional sanctions."

14. It is a settled canon of constitutional jurisprudence that the

doctrine of classification is a subsidiary rule evolved by courts to

give practical content to the doctrine of equality. Over-emphasis

of the doctrine of classification or anxious or sustained attempt

to discover some basis for classification may gradually and

imperceptly erode the profound potency of the glorious content of

equality enshrined in Article 14 of the Constitution. (Ref. LIC of

India v. Consumer Education & Research Centre [(1995) 5 SCC

482]. It is not necessary that classification in order to be valid,

must be fully carried out by the statute itself. The statute itself

may indicate the persons or things to whom its provisions are

intended to apply. Instead of making the classification itself, the

State may lay down the principle or policy for selecting or

classifying the persons or objects to whom its provisions are to

apply and leave it to the discretion of the Government or

administrative authority to select such persons or things, having

regard to the principle or policy laid down by the Legislature.

15. Article 14 forbids class legislation but does not forbid

reasonable classification which means :

(i) It must be based on reasonable and intelligible

differentia; and

(ii) Such differentia must be on a rational basis.

(iii) It must have nexus to the object of the Act.

16. The basis of judging whether the institutional reservation,

fulfils the above-mentioned criteria, should be a) there is a

presumption of constitutionality; b) the burden of proof is upon

the writ petitioners, the person questioning the constitutionality

of the provisions; c) there is a presumption as regard the States'

power on the extent of its legislative competence; d) hardship of

few cannot be the basis of determining the validity of any statute.

17. The principles for adjudicating the constitutionality of a

provision have been stated by this Court in its various

judgments. Referring to these judgments and more particularly

to the cases of Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR

1958 SC 538 and Budhan Chodhry v. State of Bihar AIR 1955

SC 191, the author Jagdish Swarup in his book 'Constitution of

India (2nd Edition, 2006) stated the principles to be borne in mind

by the Courts and detailed them as follows:

"(a) that a law may be constitutional even

though it relates to a single individual if on

account of some special circumstances or

reasons applicable to him and not applicable to

others, that single individual may be treated as

a class by himself;

(b) that there is always a presumption in

favour of the constitutionality of an enactment

and the burden is upon him who attacks it to

show that there has been a clear transgression

of the constitutional principles;

Legislature understands and correctly

appreciates the need of its own people, that its

laws are directed to problems made manifest

by experience and that its discriminations are

based on adequate grounds;

(d) that the legislature is free to recognize

decrees of harm and may confine its

restrictions to those cases where the need is

deemed to be the clearest;

(e) that in order to sustain the presumption of

constitutionality the Court may take into

consideration matters of common knowledge,

matters of common report, the history of the

times and may assume every state of facts

which can be conceived existing at the time of

legislation; and

(f) that while good faith and knowledge of the

existing conditions on the part of a Legislature

are to be presumed, if there is nothing on the

face of the law or the surrounding

circumstances brought to the notice of the

Court on which the classification may

reasonably be regarded as based, the

presumption of constitutionality cannot be

carried to the extent of always holding that

there must be some undisclosed and unknown

reasons for subjecting certain individuals or

corporations to hostile or discriminating

legislation."

18. These principles have, often been reiterated by this Court

while dealing with the constitutionality of a provision or a

statute. Even in the case of Atam Prakash v. State of Haryana &

Ors. [(1986) 2 SCC 249], the Court stated that whether it is the

Constitution that is expounded or the constitutional validity of a

statute that is considered, a cardinal rule is to look to the

Preamble of the Constitution as the guiding light and to the

Directive Principles of State Policy as the Book of Interpretation.

The Constitution being sui generis, these are the factors of

distant vision that help in the determination of the constitutional

issues. Referring to the object of such adjudicatory process, the

Court said :

"....we must strive to give such an

interpretation as will promote the march and

progress towards a Socialistic Democratic

State. For example, when we consider the

question whether a statute offends Article 14

of the Constitution we must also consider

whether a classification that the legislature

may have made is consistent with the

socialist goals set out in the Preamble and

the Directive Principles enumerated in Part

IV of the Constitution."

19. Dealing with the matter of closure of slaughter houses in

the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat

& Ors. [(2008) 5 SCC 33], the Court while noticing its earlier

judgment in the case of Government of Andhra Pradesh & Ors. v.

Smt. P. Laxmi Devi [(2008) 4 SCC 720], introduced a rule for

exercise of such jurisdiction by the courts stating that the Court

should exercise judicial restraint while judging the constitutional

validity of the statute or even that of a delegated legislation and it

is only when there is clear violation of a constitutional provision

beyond reasonable doubt that the Court should declare a

provision to be unconstitutional. Further, in the case of P.

Lakshmi Devi (supra), the Court has observed that even if two

views are possible, one making the statute constitutional and the

other making it unconstitutional, the former view must prevail

and the Court must make efforts to uphold the constitutional

validity of a statute, unlike a policy decision, where the executive

decision could be rendered invalid on the ground of malafide,

unreasonableness and arbitrariness alone.

20. In order to examine the constitutionality or otherwise of a

statute or any of its provisions, one of the most relevant

considerations is the object and reasons as well as the legislative

history of the statute. It would help the court in arriving at a

more objective and justful approach. It would be necessary for

the Court to examine the reasons of enactment of a particular

provision so as to find out its ultimate impact vis-a-vis the

constitutional provisions. Therefore, we must examine the

contemplations leading to the enactment of the Act of 2005.

A) SCHEME, OBJECTS AND REASONS

21. In light of the law guaranteeing the right to information, the

citizens have the fundamental right to know what the

Government is doing in its name. The freedom of speech is the

lifeblood of democracy. The free flow of information and ideas

informs political growth. It is a safety valve. People are more

ready to accept the decisions that go against them if they can in

principle seem to influence them. In a way, it checks abuse of

power by the public officials. In the modern times, where there

has been globalization of trade and industry, the scientific growth

in the communication system and faster commuting has turned

the world into a very well-knit community. The view projected,

with some emphasis, is that the imparting of information qua the

working of the government on the one hand and its decision

affecting the domestic and international trade and other activities

on the other, impose an obligation upon the authorities to

disclose information.

OBJECTS AND REASONS

22. The Right to Information was harnessed as a tool for

promoting development; strengthening the democratic

governance and effective delivery of socio-economic services.

Acquisition of information and knowledge and its application

have intense and pervasive impact on the process of taking

informed decision, resulting in overall productivity gains. It is

also said that information and knowledge are critical for realising

all human aspirations such as improvement in the quality of life.

Sharing of information, for instance, about the new techniques of

farming, health care facilities, hazards of environmental

degradation, opportunities for learning and earning, legal

remedies for combating gender bias etc., have overtime, made

significant contributions to the well being of poor people. It is

also felt that this right and the laws relating thereto empower

every citizen to take charge of his life and make proper choices on

the basis of freely available information for effective participation

in economic and political activities.

23. Justice V.R. Krishna Iyer in his book "Freedom of

Information" expressed the view:

"The right to information is a right incidental to the

constitutionally guaranteed right to freedom of

speech and expression. The international

movement to include it in the legal system gained

prominence in 1946 with the General Assembly of

the United Nations declaring freedom of

information to be a fundamental human right and

a touchstone for all other liberties. It culminated in

the United Nations Conference on Freedom of

Information held in Geneva in 1948.

Article 19 of the Universal Declaration of

Human Rights says:

"Everyone has the right to freedom of

information and expression; this right

includes freedom to hold opinions

without interference and to seek, receive

and impart information and ideas

through any media and regardless of

frontiers."

It may be a coincidence that Article 19 of the

Indian Constitution also provides every citizen the

right to freedom of speech and expression.

However, the word 'information' is conspicuously

absent. But, as the highest Court has explicated,

the right of information is integral to freedom of

expression.

"India was a member of the Commission

on Human Rights appointed by the

Economic and Social Council of the

United Nations which drafted the 1948

Declaration. As such it would have been

eminently fit and proper if the right to

information was included in the rights

enumerated under Article 19 of our

Constitution. Article 55 of the U.N.

Charter stipulates that the United

Nations 'shall promote respect for, and

observance of, human rights and

fundamental freedoms' and according to

Article 56 'all members pledge

themselves to take joint and separate

action in co-operation with the

Organisation for the achievement of the

purposes set forth in Article 55'."

24. Despite the absence of any express mention of the word

'information' in our Constitution under Article 19(1)(a), this right

has stood incorporated therein by the interpretative process by

this Court laying the unequivocal statement of law by this Court

that there was a definite right to information of the citizens of

this country. Before the Supreme Court spelt out with clarity the

right to information as a right inbuilt in the constitutional

framework, there existed no provision giving this right in absolute

terms or otherwise. Of course, one finds glimpses of the right to

information of the citizens and obligations of the State to disclose

such information in various other laws, for example, Sections 74

to 78 of the Indian Evidence Act, 1872 give right to a person to

know about the contents of the public documents and the public

officer is required to provide copies of such public documents to

any person, who has the right to inspect them. Under Section

25(6) of the Water (Prevention and Control of Pollution) Act, 1974,

every State is required to maintain a register of information on

water pollution and it is further provided that so much of the

premises shall be open to inspection at all reasonable hours by

any person interested in or affected by such outlet, land or

premises, as the case may be. Dr. J.N. Barowalia in

'Commentary on the Right to Information Act' (2006) has noted

that the Report of the National Commission for Review of Working

of Constitution under the Chairmanship of Justice

M.N.Venkatachaliah, as he then was, recognised the right to

information wherein it is provided that major assumption behind

a new style of governance is the citizen's access to information.

Much of the common man's distress and helplessness could be

traced to his lack of access to information and lack of knowledge

of decision-making processes. He remains ignorant and unaware

of the process which virtually affects his interest. Government

procedures and regulations shrouded in the veil of secrecy do not

allow the litigants to know how their cases are being handled.

They shy away from questioning the officers handling their cases

because of the latter's snobbish attitude. Right to information

should be guaranteed and needs to be given real substance. In

this regard, the Government must assume a major responsibility

and mobilize skills to ensure flow of information to citizens. The

traditional insistence on secrecy should be discarded.

25. The Government of India had appointed a Working Group

on Right to Information and Promotion of Open and Transparent

Government under the Chairmanship of Shri H.D. Shourie which

was asked to examine the feasibility and need for either fullfledged

Right to Information Act or its introduction in a phased

manner to meet the needs of an open and responsive

Government. This group was also required to examine the

framework of rules with reference to the Civil Services (Conduct)

Rules and Manual of Office Procedure. This Working Group

submitted its report in May 1997.

26. In the Chief Ministers Conference on 'Effective and

Responsive Government' held on 24th May, 1997, the need to

enact a law on the Right to Information was recognized

unanimously. This conference was primarily to discuss the

measures to be taken to ensure a more effective and responsive

government. The recommendations of various Committees

constituted for this purpose and awareness in the Government

machinery of the significance and benefits of this freedom

ultimately led to the enactment of the 'Freedom of Information

Act, 2002' (for short, the 'Act of 2002'). The proposed Bill was to

enable the citizens to have information on a statutory basis. The

proposed Bill was stated to be in accord with both Article 19 of

the Constitution of India as well as Article 19 of the Universal

Declaration of Human Rights, 1948. This is how the Act of 2002

was enacted.

27. In terms of the Statement of Objects and Reasons of the Act

of 2002, it was stated that this law was enacted in order to make

the government more transparent and accountable to the public.

It was felt that in the present democratic framework, free flow of

information for citizens and non-Government institutions suffers

from several bottlenecks including the existing legal framework,

lack of infrastructure at the grass root level and an attitude of

secrecy within the Civil Services as a result of the old framework

of rules. The Act was to deal with all such aspects. The purpose

and object was to make the government more transparent and

accountable to the public and to provide freedom to every citizen

to secure access to information under the control of public

authorities, consistent with public interest, in order to promote

openness, transparency and accountability in administration and

in relation to matters connected therewith or incidental thereto.

28. After the Act of 2002 came into force, there was a definite

attempt to exercise such freedom but it did not operate fully and

satisfactorily. The Civil Services (Conduct) Rules and the Manual

of the Office Procedure as well as the Official Secrets Act, 1923

and also the mindset of the authorities were implied impediments

to the full, complete and purposeful achievement of the object of

enacting the Act of 2002. Since, with the passage of time, it was

felt that the Act of 2002 was neither sufficient in fulfilling the

aspirations of the citizens of India nor in making the right to

freedom of information more progressive, participatory and

meaningful, significant changes to the existing law were

proposed. The National Advisory Council suggested certain

important changes to be incorporated in the said Act of 2002 to

ensure smoother and greater access to information. After

examining the suggestions of the Council and the public, the

Government decided that the Act of 2002 should be replaced and,

in fact, an attempt was made to enact another law for providing

an effective framework for effectuating the right to information

recognized under the Article 19 of the Constitution. The Right to

Information Bill was introduced in terms of its statements of

objects and reasons to ensure greater and more effective access

to information. The Act of 2002 needed to be made even more

progressive, participatory and meaningful. The important

changes proposed to be incorporated therein included

establishment of an appellate machinery with investigative

powers to review the decision of the Public Information Officer,

providing penal provisions in the event of failure to provide

information as per law, etc. This Bill was passed by both the

Houses of the Parliament and upon receiving the assent of the

President on 15th June, 2005, it came on the statute book as the

Right to Information Act, 2005.

SCHEME OF ACT of 2005 (COMPARATIVE ANALYSIS OF ACT

OF 2002 AND ACT OF 2005)

29. Now, we may deal with the comparative analysis of these

two Acts. The first and the foremost significant change was the

change in the very nomenclature of the Act of 2005 by replacing

the word 'freedom' with the word 'right' in the title of the statute.

The obvious legislative intent was to make seeking of prescribed

information by the citizens, a right, rather than a mere freedom.

There exists a subtle difference when people perceive it as a right

to get information in contra-distinction to it being a freedom.

Upon such comparison, the connotations of the two have distinct

and different application. The Act of 2005 was enacted to

radically alter the administrative ethos and culture of secrecy and

control, the legacy of colonial era and bring in a new era of

transparency and accountability in governance. In substance,

the Act of 2005 does not alter the spirit of the Act of 2002 and on

the contrary, the substantive provisions like Sections 3 to 11 of

both the Acts are similar except with some variations in some of

the provisions. The Act of 2005 makes the definition clause more

elaborate and comprehensive. It broadens the definition of public

authority under Section 2(h) by including therein even an

authority or body or institution of self-government established or

constituted by a notification issued or order made by the

appropriate Government and includes any body owned,

controlled or substantially financed by the Government and also

non-governmental organization substantially financed by the

appropriate Government, directly or indirectly. Similarly, the

expression 'Right to Information' has been defined in Section 2(j)

to include the right to inspection of work, documents, records,

taking certified samples of material, taking notes and extracts

and even obtaining information in the form of floppies, tapes,

video cassettes, etc. This is an addition to the important step of

introduction of the Central and State Information Commissions

and the respective Public Information Officers. Further, Section

4(2) is a new provision which places a mandatory obligation upon

every public authority to take steps in accordance with the

requirements of clause (b) of sub-Section (1) of that Section to

provide as much information suo moto to the public at regular

intervals through various means of communication including

internet so that the public have minimum resort to use of this

Act to obtain information. In other words, the aim and object as

highlighted in specific language of the statute is that besides it

being a right of the citizenry to seek information, it was obligatory

upon the State to provide information relatable to its functions

for the information of the public at large and this would avoid

unnecessary invocation of such right by the citizenry under the

provisions of the Act of 2005. Every authority/department is

required to designate the Public Information Officers and to

appoint the Central Information Commission and State

Information Commissions in accordance with the provisions of

Sections 12 and 15 of the Act of 2005. It may be noticed that

under the scheme of this Act, the Public Information Officer at

the Centre and the State Levels are expected to receive the

requests/applications for providing the information. Appeal

against decision of such Public Information Officer would lie to

his senior in rank in terms of Section 19(1) within a period of 30

days. Such First Appellate Authority may admit the appeal after

the expiry of this statutory period subject to satisfactory reasons

for the delay being established. A second appeal lies to the

Central or the State Information Commission, as the case may

be, in terms of Section 19(3) within a period of 90 days The

decision of the Commission shall be final and binding as per

Section 19(7). Section 19 is an exhaustive provision and the Act

of 2005 on its cumulative reading is a complete code in itself.

However, nothing in the Act of 2005 can take away the powers

vested in the High Court under Article 226 of the Constitution

and of this Court under Article 32. The finality indicated in

Sections 19(6) and 19(7) cannot be construed to oust the

jurisdiction of higher courts, despite the bar created under

Section 23 of the Act. It always has to be read and construed

subject to the powers of the High Court under Article 226 of the

Constitution. Reference in this regard can be made to the

decision of a Constitution Bench of this Court in the case of L.

Chandra Kumar vs. Union of India and Ors. [(1997) 3 SCC 261].

30. Exemption from disclosure of information is a common

provision that appears in both the Acts. Section 8 of both the

Acts open with a non-obstante language. It states that

notwithstanding anything contained in the respective Act, there

shall be no obligation to give any citizen the information specified

in the exempted clauses. It may, however, be noted that Section

8 of the Act of 2005 has a more elaborate exemption clause than

that of the Act of 2002. In addition, the Act of 2005 also provides

the Second Schedule which enumerates the intelligence and

security organizations established by the Central Government to

which the Act of 2005 shall not apply in terms of Section 24.

31. Further, under the Act of 2002, the appointment of the

Public Information Officers is provided in terms of Section 5 and

there exists no provision for constituting the Central and the

State Information Commission. Also, the Act does not provide

any qualifications or requirements to be satisfied before a person

can be so appointed. On the other hand, in terms of Section 12

and Section 15 of the Act of 2005, specific provisions have been

made to provide for the constitution of and eligibility for

appointment to the Central Information Commission or the State

Information Commission, as the case may be.

32. Section 12(5) is a very significant provision under the

scheme of the Act of 2005 and we shall deal with it in some

elaboration at a subsequent stage. Similarly, the powers and

functions of the Authorities constituted under the Act of 2005 are

conspicuous by their absence under the Act of 2002, which

under the Act of 2005 are contemplated under Section 18. This

section deals in great detail with the powers and functions of the

Information Commissions. An elaborate mechanism has been

provided and definite powers have been conferred upon the

authorities to ensure that the authorities are able to implement

and enforce the provisions of the Act of 2005 adequately.

Another very significant provision which was non-existent in the

Act of 2002, is in relation to penalties. No provision was made

for imposition of any penalty in the earlier Act, while in the Act of

2005 severe punishment like imposition of fine upto Rs.250/- per

day during which the provisions of the Act are violated, has been

provided in terms of Section 20(1). The Central/State

Information Commission can, under Section 20(2), even direct

disciplinary action against the erring Public Information Officers.

Further, the appropriate Government and the competent

authority have been empowered to frame rules under Sections 27

and 28 of the Act of 2005, respectively, for carrying out the

provisions of the Act. Every rule made by the Central

Government under the Act has to be laid before each House of

the Parliament while it is in session for a total period of 30 days,

if no specific modifications are made, the rules shall thereafter

have effect either in the modified form or if not annulled, it shall

come into force as laid.

33. Greater transparency, promotion of citizen-government

partnership, greater accountability and reduction in corruption

are stated to be the salient features of the Act of 2005.

Development and proper implementation of essential and

constitutionally protected laws such as Mahatma Gandhi Rural

Guarantee Act, 2005, Right to Education Act, 2009, etc. are some

of the basic objectives of this Act. Revelation in actual practice

is likely to conflict with other public interests, including

efficiency, operation of the government, optimum use of limited

fiscal resources and the preservation of confidentiality of

sensitive information. It is necessary to harness these conflicting

interests while preserving the parameters of the democratic ideal

or the aim with which this law was enacted. It is certainly

expedient to provide for furnishing certain information to the

citizens who desire to have it and there may even be an obligation

of the state authorities to declare such information suo moto.

However, balancing of interests still remains the most

fundamental requirement of the objective enforcement of the

provisions of the Act of 2005 and for attainment of the real

purpose of the Act.

34. The Right to Information, like any other right, is not an

unlimited or unrestricted right. It is subject to statutory and

constitutional limitations. Section 3 of the Act of 2005 clearly

spells out that the right to information is subject to the

provisions of the Act. Other provisions require that information

must be held by or under the control of public authority besides

providing for specific exemptions and the fields to which the

provisions of the Act do not apply. The doctrine of severability

finds place in the statute in the shape of Section 10 of the Act of

2005.

35. Neither the Act of 2002 nor the Act of 2005, under its repeal

provision, repeals the Official Secrets Act, 1923. The Act of 2005

only repeals the Freedom of Information Act, 2002 in terms of

Section 31. It was felt that under the Official Secrets Act, 1923,

the entire development process had been shrouded in secrecy

and practically the public had no legal right to know as to what

process had been followed in designing the policies affecting them

and how the programmes and schemes were being implemented.

Lack of openness in the functioning of the Government provided

a fertile ground for growth of inefficiency and corruption in the

working of the public authorities. The Act of 2005 was intended

to remedy this widespread evil and provide appropriate links to

the government. It was also expected to bring reforms in the

environmental, economic and health sectors, which were

primarily being controlled by the Government.

36. The Central and State Information Commissions have

played a critical role in enforcing the provisions of the Act of

2005, as well as in educating the information seekers and

providers about their statutory rights and obligations. Some

section of experts opined that the Act of 2005 has been a useful

statutory instrument in achieving the goal of providing free and

effective information to the citizens as enshrined under Article

19(1)(a) of the Constitution. It is true that democratisation of

information and knowledge resources is critical for people's

empowerment especially to realise the entitlements as well as to

augment opportunities for enhancing the options for improving

the quality of life. Still of greater significance is the inclusion of

privacy or certain protection in the process of disclosure, under

the right to information under the Act. Sometimes, information

ought not to be disclosed in the larger public interest.

37. The courts have observed that when the law making power

of a State is restricted by a written fundamental law, then any

law enacted, which is opposed to such fundamental law, being in

excess of fundamental authority, is a nullity. Inequality is one

such example. Still, reasonable classification is permissible

under the Indian Constitution. Surrounding circumstances can

be taken into consideration in support of the constitutionality of

the law which is otherwise hostile or discriminatory in nature,

but the circumstances must be such as to justify the

discriminatory treatment or the classification, subserving the

object sought to be achieved. Mere apprehension of the order

being used against some persons is no ground to hold it illegal or

unconstitutional particularly when its legality or constitutionality

has not been challenged. {Ref. K. Karunakaran v. State of Kerala

& Anr. [(2000) 3 SCC 761]}. To raise the plea of Article 14 of the

Constitution, the element of discrimination and arbitrariness has

to be brought out in clear terms. The Courts have to keep in

mind that by the process of classification, the State has the

power of determining who should be regarded as a class for the

purposes of legislation and in relation to law enacted on a

particular subject. The power, no doubt, to some degree is likely

to produce some inequality but if a law deals with liberties of a

number of individuals or well defined classes, it is not open of the

charge of denial of equal protection on the ground that has no

application to other persons. Classification, thus, means

segregation in classes which have a systematic relation usually

found in common properties and characteristics. It postulates a

rational basis and does not mean herding together of certain

persons and classes arbitrarily, as already noticed. The

differentia which is the basis of the classification and the object

of the Act are distinct things and what is necessary is that there

must be a nexus between them. The basis of testing

constitutionality, particularly on the ground of discrimination,

should not be made by raising a presumption that the authorities

are acting in an arbitrary manner. No classification can be

arbitrary. One of the known concepts of constitutional

interpretation is that the legislature cannot be expected to carve

out classification which may be scientifically perfect or logically

complete or which may satisfy the expectations of all concerned.

The Courts would respect the classification dictated by the

wisdom of the Legislature and shall interfere only on being

convinced that the classification would result in pronounced

inequality or palpable arbitrariness tested on the touchstone of

Article 14 of the Constitution. {Ref. Welfare Association of

Allottees of Residential Premises, Maharashtra v. Ranjit P. Gohil

[(2003) 9 SCC 358]}.

38. The rule of equality or equal protection does not require that

a State must choose between attacking every aspect of a problem

or not attacking the problem at all, and particularly with respect

to social welfare programme. So long as the line drawn, by the

State is rationally supportable, the Courts will not interpose their

judgment as to the appropriate stopping point. A statute is not

invalid because it might have gone further than it did, since the

legislature need not strike at all evils at the same time and may

address itself to the phase of the problem which seemed most

acute to the legislative mind. A classification based on

experience was a reasonable classification, and that it had a

rational nexus to the object thereof and to hold otherwise would

be detrimental to the interest of the service itself. This opinion

was taken by this Court in the case of State of UP & Ors. v. J.P.

Chaurasia & Ors. [(1989) 1 SCC 121]. Classification on the basis

of educational qualifications made with a view to achieve

administrative efficiency cannot be said to rest on any fortuitous

circumstances and one has always to bear in mind the facts and

circumstances of the case in order to judge the validity of a

classification. In the case of State of Jammu & Kashmir v. Sh.

Triloki Nath Khosa & Ors. [(1974) 1 SCC 19], it was noted that

intelligible differentia and rational nexus are the twin tests of

reasonable classification.

39. If the law deals equally with members of a well defined

class, it is not open to the charge of denial of equal protection.

There may be cases where even a single individual may be in a

class by himself on account of some special circumstances or

reasons applicable to him and not applicable to others. Still such

law can be constitutional. [Ref. Constutional Law of India by

H.M. Seervai (Fourth Edition) Vol.1]

40. In Maneka Gandhi v. Union of India & Anr. [(1978) 1 SCC

248] and Charanlal Sahu v. Union of India (supra), the Court has

taken the view that when the constitutionality of a law is

challenged on the ground that it infringes a fundamental right,

what the Court has to consider is the 'direct and inevitable effect'

of such law. A matter within the legislative competence of the

legislature has to be left to the discretion and wisdom of the

framers, so long as it does not infringe any constitutional

provision or violate any fundamental right. The law has to be

just, fair and reasonable. Article 14 of the Constitution does not

prohibit the prescription of reasonable rules for selection or of

qualifications for appointment, except, where the classification is

on the face of it, unjust.

41. We have noticed the challenge of the petitioner to the

constitutionality of Section 12(5) and (6) and Section 15(5) and (6)

of the Act of 2005. The challenge is made to these provisions

stating that the eligibility criteria given therein is vague, does not

specify any qualification, and the stated 'experience' has no

nexus to the object of the Act. It is also contended that the

classification contemplated under the Act is violative of Article 14

of the Constitution. The petitioner contends that the legislative

power has been exercised in a manner which is not in

consonance with the constitutional principles and guarantees

and provides for no proper consultative process for appointment.

It may be noted that the only distinction between the provisions

of Sections 12(5) and 12(6) on the one hand and Sections 15(5)

and 15(6) on the other, is that under Section 12, it is the Central

Government who has to make the appointments in consonance

with the provisions of the Act, while under Section 15, it is the

State Government which has to discharge similar functions as

per the specified parameters. Thus, discussion on one provision

would sufficiently cover the other as well.

42. Sub-Section (5) of Section 12 concerns itself with the

eligibility criteria for appointment to the post of the Chief

Information Commissioner and Information Commissioners to

the Central Information Commission. It states that these

authorities 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.

43. Correspondingly, Sub-Section (6) of Section 12 states

certain disqualifications for appointment to these posts. If such

person is a Member of Parliament or Member of the legislature of

any State or Union Territory or holds any other office of profit or

connected with any political party or carrying on any business or

pursuing any profession, he would not be eligible for

appointment to these posts.

44. In order to examine the constitutionality of these provisions,

let us state the parameters which would finally help the Court in

determining such questions.

(a) Whether the law under challenge lacks legislative

competence?

(b) Whether it violates any Article of Part III of the

Constitution, particularly, Article 14?

(c)Whether the prescribed criteria and classification resulting

therefrom is discriminatory, arbitrary and has no nexus to

the object of the Act?

(d)Lastly, whether it a legislative exercise of power which is not

in consonance with the constitutional guarantees and does

not provide adequate guidance to make the law just, fair

and reasonable?

45. As far as the first issue is concerned, it is a commonly

conceded case before us that the Act of 2005 does not, in any

form, lack the legislative competence. In other words, enacting

such a law falls squarely within the domain of the Indian

Parliament and has so been enacted under Entry 97 (residuary

powers) of the Union List. Thus, this issue does not require any

discussion.

46. To examine constitutionality of a statute in its correct

perspective, we have to bear in mind certain fundamental

principles as afore-recorded. There is presumption of

constitutionality in favour of legislation. The Legislature has the

power to carve out a classification which is based upon intelligible

differentia and has rational nexus to the object of the Act. The

burden to prove that the enacted law offends any of the Articles

under Part III of the Constitution is on the one who questions the

constitutionality and shows that despite such presumption in

favour of the legislation, it is unfair, unjust and unreasonable.

47. Another most significant canon of determination of

constitutionality is that the courts would be reluctant to declare a

law invalid or ultra vires on account of unconstitutionality. The

courts would accept an interpretation which would be in favour of

the constitutionality, than an approach which would render the

law unconstitutional. Declaring the law unconstitutional is one

of the last resorts taken by the courts. The courts would

preferably put into service the principle of 'reading down' or

'reading into' the provision to make it effective, workable and

ensure the attainment of the object of the Act. These are the

principles which clearly emerge from the consistent view taken by

this court in its various pronouncements.

48. The provisions of Section 12(5) do not discuss the basic

qualification needed, but refer to two components: (a) persons of

eminence in public life; and (b) with wide knowledge and

experience in the fields stated in the provision. The provision,

thus, does not suffer from the infirmity of providing no criteria

resulting in the introduction of the element of arbitrariness or

discrimination. The provisions require the persons to be of

eminence and with knowledge in the stated fields. Knowledge

and experience in these fields normally shall be preceded by a

minimum requisite qualification prescribed in that field. For

example, knowledge and experience in the field of law would presuppose

a person to be a law graduate. Similarly, a person with

wide knowledge and experience in the field of science and

technology would invariably be expected to be at least a graduate

or possess basic qualification in science & technology. The

vagueness in the expression 'social service', 'mass media' or

'administration and governance' does create some doubt. But,

certainly, this vagueness or doubt does not introduce the element

of discrimination in the provision. The persons from these various

walks of life are considered eligible for appointment to the post of

Chief Information Commissioner and Information Commissioners

in the respective Information Commissions. This gives a wide

zone of consideration and this alleged vagueness can always be

clarified by the appropriate government in exercise of its powers

under Section 27 and 28 of the Act, respectively.

Constitutional Validity of Section 12(6)

49. Similarly, as stated above, sub-Section (6) of Section 12

creates in a way a disqualification in terms thereof. This

provision does have an element of uncertainty and indefiniteness.

Upon its proper construction, an issue as to what class of

persons are eligible to be appointed to these posts, would

unexceptionally arise. According to this provision, a person to be

appointed to these posts ought not to have been carrying on any

business or pursuing any profession. It is difficult to say what

the person eligible under the provision should be doing and for

what period. The section does not specify any such period.

Normally, the persons would fall under one or the other

unacceptable categories. To put it differently, by necessary

implication, it excludes practically all classes while not specifying

as to which class of persons is eligible to be appointed to that

post. The exclusion is too vague, while inclusion is uncertain. It

creates a situation of confusion which could not have been the

intent of law. It is also not clear as to what classification the

framers of the Act intended to lay down. The classification does

not appear to have any nexus with the object of the Act. There is

no intelligible differentia to support such classification. Which

class is intended to be protected and is to be made exclusively

eligible for appointment in terms of Sections 12(5) and (6) is

something that is not understandable. Wherever, the Legislature

wishes to exercise its power of classification, there it has to be a

reasonable classification, satisfying the tests discussed above. No

Rules have been brought to our notice which even intend to

explain the vagueness and inequality explicit in the language of

Section 12(6). According to the petitioner, it tantamounts to an

absolute bar because the legislature cannot be stated to have

intended that only the persons who are ideal within the terms of

Sub-section (6) of Section 12, would be eligible to be appointed to

the post. If we read the language of Sections 12(5) and 12(6)

together, the provisions under sub-Section (6) appear to be in

conflict with those under sub-Section (5). Sub-Section (5)

requires the person to have eminence in public life and wide

knowledge and experience in the specified field. On the contrary,

sub-Section (6) requires that the person should not hold any

office of profit, be connected with any political party or carry on

any business or pursue any profession. The object of sub-section

(5) stands partly frustrated by the language of sub-Section (6). In

other words, sub-section (6) lacks clarity, reasonable

classification and has no nexus to the object of the Act of 2005

and if construed on its plain language, it would result in defeating

the provisions of sub-Section (5) of Section 12 to some extent.

50. The legislature is required to exercise its power in conformity

with the constitutional mandate, particularly contained in Part III

of the Constitution. If the impugned provision denies equality

and the right of equal consideration, without reasonable

classification, the courts would be bound to declare it invalid.

Section 12(6) does not speak of the class of eligible persons, but

practically debars all persons from being appointed to the post of

Chief Information Commissioner or Information Commissioners

at the Centre and State levels, respectively.

51. It will be difficult for the Court to comprehend as to which

class of persons is intended to be covered under this clause. The

rule of disqualification has to be construed strictly. If anyone,

who is an elected representative, in Government service, or one

who is holding an office of profit, carrying on any business or

profession, is ineligible in terms of Section 12(6), then the

question arises as to what class of persons would be eligible?

The Section is silent on that behalf.

52. The element of arbitrariness and discrimination is evidenced

by the language of Section 12(6) itself, which can be examined

from another point of view. No period has been stated for which

the person is expected to not have carried on any business or

pursued any profession. It could be one day or even years prior

to his nomination. It is not clear as to how the persons falling in

either of these classes can be stated to be differently placed. This

uncertainty is bound to bring in the element of discrimination

and arbitrariness.

53. Having noticed the presence of the element of discrimination

and arbitrariness in the provisions of Section 12(6) of the Act, we

now have to examine whether this Court should declare this

provision ultra vires the Constitution or read it down to give it its

possible effect, despite the drawbacks noted above. We have

already noticed that the Court will normally adopt an approach

which is tilted in favour of constitutionality and would prefer

reading down the provision, if necessary, by adding some words

rather than declaring it unconstitutional. Thus, we would prefer

to interpret the provisions of Section 12(6) as applicable postappointment

rather than pre-appointment of the Chief

Information Commissioner and Information Commissioners. In

other words, these disqualifications will only come into play once

a person is appointed as Chief Information Commissioner/

Information Commissioner at any level and he will cease to hold

any office of profit or carry any business or pursue any profession

that he did prior to such appointment. It is thus implicit in this

provision that a person cannot hold any of the posts specified in

sub-section (6) of Section 12 simultaneous to his appointment as

Chief Information Commissioner or Information Commissioner.

In fact, cessation of his previous appointment, business or

profession is a condition precedent to the commencement of his

appointment as Chief Information Commissioner or Information

Commissioner.

Constitutional Validity of Section 12(5)

54. The Act of 2005 was enacted to harmonise the conflicting

interests while preserving the paramountcy of the democratic

ideal and provide for furnishing of certain information to the

citizens who desire to have it. The basic purpose of the Act is to

set up a practical regime of right to information for the citizens to

secure and access information under the control of the public

authorities. The intention is to provide and promote transparency

and accountability in the functioning of the authorities. This

right of the public to be informed of the various aspects of

governance by the State is a pre-requisite of the democratic

value. The right to privacy too, is to be protected as both these

rival interests find their origin under Article 19(1)(a) of the

Constitution. This brings in the need for an effective adjudicatory

process. The authority or tribunals are assigned the

responsibility of determining the rival contentions and drawing a

balance between the two conflicting interests. That is where the

scheme, purpose and the object of the Act of 2005 attain greater

significance.

55. In order to examine whether Section 12(5) of the Act suffers

from the vice of discrimination or inequality, we may discuss the

adjudicatory functions of the authorities under the Act in the

backdrop of the scheme of the Act of 2005, as discussed above.

The authorities who have to perform adjudicatory functions of

quasi-judicial content are:-

1. The Central/State Public Information Officer;

2. Officers senior in rank to the Central/State Public

Information Officer to whom an appeal would lie under

Section 19(1) of the Act; and

3. The Information Commission (Central/State) consisting of

Chief Information Commissioner and Information

Commissioners.

56. In terms of Section 12(5), the Chief Information

Commissioner and Information Commissioners should be the

persons of eminence in public life with wide knowledge in the

prescribed fields. We have already indicated that the

terminology used by the legislature, such as 'mass-media' or

'administration and governance', are terms of uncertain tenor

and amplitude. It is somewhat difficult to state with exactitude

as to what class of persons would be eligible under these

categories.

57. The legislature in its wisdom has chosen not to provide any

specific qualification, but has primarily prescribed 'wide

knowledge and experience' in the cited subjects as the criteria for

selection. It is not for the courts to spell out what ought to be

the qualifications or experience for appointment to a particular

post. Suffices it to say, that if the legislature itself provides

'knowledge and experience' as the basic criteria of eligibility for

appointment, this per se, would not attract the rigors of Article 14

of the Constitution. On a reasonable and purposive

interpretation, it will be appropriate to interpret and read into

Section 12(5) that the 'knowledge and experience' in a particular

subject would be deemed to include the basic qualification in that

subject. We would prefer such an approach than to hold it to be

violative of Article 14 of the Constitution. Section 12(5) has

inbuilt guidelines to the effect that knowledge and experience,

being two distinct concepts, should be construed in their correct

perspective. This would include the basic qualification as well as

an experience in the respective field, both being the pre-requisites

for this section. Ambiguity, if any, resulting from the language of

the provision is insignificant, being merely linguistic in nature

and, as already noticed, the same is capable of being clarified by

framing appropriate rules in exercise of powers of the Central

Government under Section 27 of the Act of 2005. We are unable

to find that the provisions of Section 12(5) suffer from the vice of

arbitrariness or discrimination. However, without hesitation, we

would hasten to add that certain requirements of law and

procedure would have to be read into this provision to sustain its

constitutionality.

58. It is a settled principle of law, as stated earlier, that courts

would generally adopt an interpretation which is favourable to

and tilts towards the constitutionality of a statute, with the aid of

the principles like 'reading into' and/or 'reading down' the

relevant provisions, as opposed to declaring a provision

unconstitutional. The courts can also bridge the gaps that have

been left by the legislature inadvertently. We are of the

considered view that both these principles have to be applied

while interpreting Section 12(5). It is the application of these

principles that would render the provision constitutional and not

opposed to the doctrine of equality. Rather the application of the

provision would become more effective.

59. Certainty to vague expressions, like 'social service' and

'mass media', can be provided under the provisions which are

capable of being explained by framing of proper rules or even by

way of judicial pronouncements. In order to examine the scope of

this provision and its ramifications on the other parts of the Act

of 2005, it is important to refer back to the scheme of the Act.

Under the provisions of the Act, particularly, Sections 4, 12, 18,

19, 20, 22, 23 and 25, it is clear that the Central or State

Information Commission, as the case may be, not only exercises

adjudicatory powers of a nature no different than a judicial

tribunal but is vested with the powers of a civil court as well.

Therefore, it is required to decide a lis, where information is

required by a person and its furnishing is contested by the other.

The Commission exercises two kinds of penal powers: firstly, in

terms of Section 20(1), it can impose penalty upon the defaulters

or violators of the provisions of the Act and, secondly, Section

20(2) empowers the Central and the State Information

Commission to conduct an enquiry and direct the concerned

disciplinary authority to take appropriate action against the

erring officer in accordance with law. Hence, the Commission has

powers to pass orders having civil as well as penal consequences.

Besides this, the Commission has been given monitoring and

recommendatory powers. In terms of Section 23, the jurisdiction

of Civil Courts has been expressly barred.

60. Now, let us take an overview of the nature and content of the

disputes arising before such Commission. Before the Public

Information Officers, the controversy may fall within a narrow

compass. But the question before the First Appellate Authority

and particularly, the Information Commissioners (Members of the

Commission) are of a very vital nature. The impact of such

adjudication, instead of being tilted towards administrative

adjudication is specifically oriented and akin to the judicial

determinative process. Application of mind and passing of

reasoned orders are inbuilt into the scheme of the Act of 2005. In

fact, the provisions of the Act are specific in that regard. While

applying its mind, it has to dwell upon the issues of legal essence

and effect. Besides resolving and balancing the conflict between

the 'right to privacy' and 'right to information', the Commission

has to specifically determine and return a finding as to whether

the case falls under any of the exceptions under Section 8 or

relates to any of the organizations specified in the Second

Schedule, to which the Act does not apply in terms of Section 24.

Another significant adjudicatory function to be performed by the

Commission is where interest of a third party is involved. The

legislative intent in this regard is demonstrated by the language of

Section 11 of the Act of 2005. A third party is not only entitled to

a notice, but is also entitled to hearing with a specific right to

raise objections in relation to the disclosure of information. Such

functions, by no stretch of imagination, can be termed as

'administrative decision' but are clearly in the domain of 'judicial

determination' in accordance with the rule of law and provisions

of the Act. Before we proceed to discuss this aspect in any

further elaboration, let us examine the status of such

Tribunal/Commissions and their functions.

B) TRIBUNAL/COMMISSIONS AND THEIR FUNCTIONS :

61. Before dwelling upon determination of nature of Tribunals

in India, it is worthwhile to take a brief account of the scenario

prevalent in some other jurisdictions of the world.

62. In United Kingdom, efforts have been made for improvising

the system for administration of justice. The United Kingdom

has a growing human rights jurisprudence, following the

enactment of the Human Rights Act, 1998, and it has a wellestablished

ombudsman system. The Tribunals have been

constituted to provide specialised adjudication, alongside the

courts, to the citizens dissatisfied from the directives made by the

Information Commissioners under either of these statutes. The

Tribunals, important cogs in the machinery of administration of

justice, have recently undergone some major reforms. A serious

controversy was raised whether the functioning of these

Tribunals was more akin to the Government functioning or were

they a part of the Court-attached system of administration of

justice. The Donoughmore Committee had used the term

'ministerial tribunals', and had regarded them as part of the

machinery of administration. The Franks Report saw their role

quite differently:

"Tribunals are not ordinary courts, but neither

are they appendages of Government

Departments. Much of the official evidence…

appeared to reflect the view that tribunals should

properly be regarded as part of the machinery of

administration, for which the Government must

retain a close and continuing responsibility.

Thus, for example, tribunals in the social

services field would be regarded as adjuncts to

the administration of the services themselves.

We do not accept this view. We consider that

tribunals should properly be regarded as

machinery provided by Parliament for

adjudication rather than as part of the machinery

of administration. The essential point is that in

all these cases Parliament has deliberately

provided for a decision outside and independent

of the Department concerned, either at first

instance…. or on appeal from a decision of a

Minister or of an official in a special statutory

position….Although the relevant statutes do not

in all cases expressly enact that tribunals are to

consist entirely of persons outside the

Government service, the use of the term

'tribunal' in legislation undoubtedly bears this

connotation, and the intention of the Parliament

to provide for the independence of tribunals is

clear and unmistakable."

63. Franks recommended that tribunal chairmen should be

legally qualified. This was implemented in respect of some

categories of tribunal, but not others. But one of the most

interesting issues arising from the Franks exercise is the extent

to which the identification of tribunals as part of the machinery

of adjudication led the Committee, in making its specific

recommendations, down the road of increased legal formality and

judicialisation. (Refer : "The Judicialisation of 'Administrative'

Tribunals in the UK : from Hewart to Leggatt" by Gavin Drewry).

64. In the United Kingdom, the Tribunals, Courts and

Enforcement Act, 2007 (for short, the 'TCEA') explicitly confirmed

the status of Tribunal Judges (as the legally qualified members of

the Tribunals are now called) as part of the independent judicial

system, extending to them the same guarantees of independence

as apply to the judges in the ordinary courts.

65. From the analysis of the above system of administrative

justice prevalent in United Kingdom, a very subtle and clear

distinction from other laws is noticeable in as much as the

sensitive personal data and right of privacy of an individual is

assured a greater protection and any request for access to such

information firstly, is subject to the provisions of the Act and

secondly, the members of the Tribunals, who hear the appeals

from a rejection of request for information by the Information

Commissioners under the provisions of either of these Acts,

include persons qualified judicially and having requisite

experience as Judges in the regular courts.

66. In United States of America, the statute governing the

subject is 'Freedom of Information Act, 1966' (for short, the

'FOIA'). This statute requires each 'agency' to furnish the

requisite information to the person demanding such information,

subject to the limitations and provisions of the Act. Each agency

is required to frame rules. A complainant dissatisfied from nonfurnishing

of the information can approach the district courts of

the United States in the district in which the complainant resides

or the place in which the agency records are situated. Such

complaints are to be dealt with as per the procedure prescribed

and within the time specified under the Act.

67. In New South Wales, under the Privacy and Government

Information Legislation Amendment Bill, 2010, amendments were

made to both, the Government Information (Public Access) Act,

2009 and the Personal and Privacy Information Act, 1998, to

bring the Information Commissioner and the Privacy

Commissioner together within a single office. This led to the

establishment of the Information and Privacy Commission.

68. On somewhat similar lines is the law prevalent in some

other jurisdictions including Australia and Germany, where there

exists a unified office of Information and Privacy Commissioner.

In Australia, the Privacy Commissioner was integrated into the

office of the Australian Information Commissioner in the year

2010.

69. In most of the international jurisdictions, the Commission

or the Tribunals have been treated to be part of the court

attached system of administration of justice and as said by the

Donoughmore Committee, the 'ministerial tribunals' were

different and they were regarded as part of machinery of the

administration. The persons appointed to these Commissions

were persons of legal background having legally trained mind and

judicial experience.

(a) NATURE OF FUNCTION

70. The Information Commission, as a body, performs functions

of wide magnitude, through its members, including adjudicatory,

supervisory as well as penal functions. Access to information is a

statutory right. This right, as indicated above, is subject to

certain constitutional and statutory limitations. The Act of 2005

itself spells out exempted information as well as the areas where

the Act would be inoperative. The Central and State Information

Commissioners have been vested with the power to decline

furnishing of an information under certain circumstances and in

the specified situations. For disclosure of Information, which

involves the question of prejudice to a third party, the concerned

authority is required to issue notice to the third party who can

make a representation and such representation is to be dealt

with in accordance with the provisions of the Act of 2005. This

position of law in India is in clear contrast to the law prevailing in

some other countries where information involving a third party

cannot be disclosed without consent of that party. However, the

authority can direct such disclosure, for reasons to be recorded,

stating that the public interest outweighs the private interest.

Thus, it involves an adjudicatory process where parties are

required to be heard, appropriate directions are to be issued, the

orders are required to be passed upon due application of mind

and for valid reasons. The exercise of powers and passing of the

orders by the authorities concerned under the provisions of the

Act of 2005 cannot be arbitrary. It has to be in consonance with

the principles of natural justice and the procedure evolved by

such authority. Natural justice has three indispensable facets,

i.e., grant of notice, grant of hearing and passing of reasoned

orders. It cannot be disputed that the authorities under the Act

of 2005 and the Tribunals are discharging quasi-judicial

functions.

71. In the case of Indian National Congress (I) v. Institute of

Social Welfare & Ors. [(2002) 5 SCC 685], the Court explained

that where there are two or more parties contesting each other's

claim and the statutory authority is required to adjudicate the

rival claims between the parties, such a statutory authority can

be held to be quasi-judicial and the decision rendered by it as a

quasi judicial order. Thus, where there is a lis between the two

contesting parties and the statutory authority is required to

decide such a dispute, in absence of any other attributes of a

quasi-judicial authority, such a statutory authority is a quasijudicial

authority. The legal principles which emerge from the

various judgments laying down when an act of a statutory

authority would be a quasi-judicial act are that where (a) a

statutory authority empowered under a statute to do any act (b)

which would prejudicially affect the subject (c) although there is

no lis or two contending parties and the contest is between the

authority and the subject and (d) the statutory authority is

required to act judicially under the statute, the decision of the

said authority is quasi-judicial.

72. In other words, an authority is described as quasi judicial

when it has some attributes or trappings of judicial provisions

but not all. In the matter before us, there is a lis. The request of

a party seeking information is allowed or disallowed by the

authorities below and is contested by both parties before the

Commission. There may also be cases where a third party is

prejudicially affected by disclosure of the information requested

for. It is clear that the concerned authorities particularly the

Information Commission, possess the essential attributes and

trappings of a Court. Its powers and functions, as defined under

the Act of 2005 also sufficiently indicate that it has adjudicatory

powers quite akin to the Court system. They adjudicate matters

of serious consequences. The Commission may be called upon to

decide how far the right to information is affected where

information sought for is denied or whether the information

asked for is 'exempted' or impinges upon the 'right to privacy' or

where it falls in the 'no go area' of applicability of the Act. It is

not mandatory for the authorities to allow all requests for

information in a routine manner. The Act of 2005 imposes an

obligation upon the authorities to examine each matter seriously

being fully cautious of its consequences and effects on the rights

of others. It may be a simple query for information but can have

far reaching consequences upon the right of a third party or an

individual with regard to whom such information is sought.

Undue inroad into the right to privacy of an individual which is

protected under Article 21 of the Constitution of India or any

other law in force would not be permissible. In Gobind v. State of

Madhya Pradesh & Anr. [(1975) 2 SCC 148] this Court held that

privacy-dignity claims deserve to be examined with care and to be

denied only when an important countervailing interest is shown

to be superior. In Ram Jethmalani & Ors. v. Union of India [(2011)

8 SCC 1] this Court has observed that the right to privacy is an

integral part of the right to life. Thus, the decision making

process by these authorities is not merely of an administrative

nature. The functions of these authorities are more aligned

towards the judicial functions of the courts rather than mere

administrative acts of the State authority.

73. 'Quasi judicial' is a term which may not always be used with

utmost clarity and precision. An authority which exercises

judicial functions or functions analogous to the judicial

authorities would normally be termed as 'quasi-judicial'. In the

'Advanced Law Lexicon' (3rd Edn., 2005) by P. Ramanathan Aiyar,

the expression 'quasi judicial' is explained as under :

"Of, relating to, or involving an executive or

administrative official's adjudicative acts.

Quasi-judicial acts, which are valid if there

is no abuse of discretion, often determine

the fundamental rights of citizens. They are

subject to review by Courts. (Blacm, 7th

Edn., 1999)

'Quasi-judicial is a term that is …. Not easily

definable. In the United States, the phrase

often covers judicial decisions taken by an

administrative agency – the test is the

nature of the tribunal rather than what it is

doing. In England quasi-judicial belongs to

the administrative category and is used to

cover situations where the administrator is

bound by the law to observe certain forms

and possibly hold a public hearing but

where he is a free agent in reaching the final

decision. If the rules are broken, the

determination may be set aside, but it is not

sufficient to show that the administration is

biased in favour of a certain policy, or that

the evidence points to a different

conclusion..' (George Whitecross Paton, A

Textbook of Jurisprudence 336 (G.W. Paton

& Davit P Derham eds., 4th ed. (1972)

Describing a function that resembles the

judicial function in that it involves deciding

a dispute and ascertaining the facts and any

relevant law, but differs in that it depends

ultimately on the exercise of an executive

discretion rather than the application of law

(Oxford Law Dictionary 5th Edn. 2003)

When the law commits to an officer the duty

of looking into certain facts not in a way

which it specially directs, but after a

discretion in its nature judicial, the function

is quasi judicial.

Of or relating to the adjudicative acts of an

executive or administrative officials.

Sharing the qualities of and approximating

to what is judicial; essentially judicial in

character but not within the judicial power

or function nor belonging to the judiciary as

constitutionally defined. [S.128(2)(i), C.P.C.

(5 of 1908)]."

74. This Court in the case of State of Himachal Pradesh & Ors.

v. Raja Mahendra Pal & Anr. [1995 Supp (2) SCC 731], held that

the expression 'quasi judicial' has been termed to be one which

stands midway a judicial and an administrative function. If the

authority has any express statutory duty to act judicially in

arriving at the decision in question, it would be deemed to be

quasi-judicial. Where the function to determine a dispute is

exercised by virtue of an executive discretion rather than the

application of law, it is a quasi-judicial function. A quasi-judicial

act requires that a decision is to be given not arbitrarily or in

mere discretion of the authority but according to the facts and

circumstances of the case as determined upon an enquiry held

by the authority after giving an opportunity to the affected parties

of being heard or wherever necessary of leading evidence in

support of their contention. The authority and the Tribunal

constituted under the provisions of the Act of 2005 are certainly

quasi-judicial authority/tribunal performing judicial functions.

75. Under the scheme of the Act of 2005, in terms of Section 5,

every public authority, both in the State and the Centre, is

required to nominate Public Information Officers to effectuate

and make the right to information a more effective right by

furnishing the information asked for under this Act. The

Information Officer can even refuse to provide such information,

which order is appealable under Section 19(1) to the nominated

senior officer, who is required to hear the parties and decide the

matter in accordance with law. This is a first appeal. Against the

order of this appellate authority, a second appeal lies with the

Central Information Commission or the State Information

Commission, as the case may be, in terms of Section 19(3) of the

Act of 2005. The Legislature, in its wisdom, has provided for two

appeals. Higher the adjudicatory forum, greater is the

requirement of adherence to the rule of judiciousness, fairness

and to act in accordance with the procedure prescribed and in

absence of any such prescribed procedure, to act in consonance

with the principles of natural justice. Higher also is the public

expectation from such tribunal. The adjudicatory functions

performed by these bodies are of a serious nature. An order

passed by the Commission is final and binding and can only be

questioned before the High Court or the Supreme Court in

exercise of the Court's jurisdiction under Article 226 and/or

Article 32 of the Constitution, respectively.

76. If one analyses the scheme of the Act of 2005 and the multifarious

functions that the Information Commission is expected to

discharge in its functioning, following features become evident :

1. It has a lis pending before it which it decides. 'Lis', as per

Black's Law Dictionary (8th Edition) means 'a piece of

litigation; a controversy or a dispute'. One party asserting

the right to a particular information, the other party

denying the same or even contesting that it was invasion

into his protected right gives rise to a lis which has to be

adjudicated by the Commission in accordance with law

and, thus, cannot be termed as 'administrative function'

simpliciter. It, therefore, becomes evident that the

appellate authority and the Commission deal with lis in the

sense it is understood in the legal parlance.

2. It performs adjudicatory functions and is required to grant

opportunity of hearing to the affected party and to record

reasons for its orders. The orders of the Public Information

Officer are appealable to first appellate authority and those

of the First Appellate Authority are appealable to the

Information Commission, which are then open to challenge

before the Supreme Court or the High Court in exercise of

its extraordinary power of judicial review.

3. It is an adjudicatory process not akin to administrative

determination of disputes but similar in nature to the

judicial process of determination. The concerned authority

is expected to decide not only whether the case was

covered under any of the exceptions or related to any of the

organizations to which the Act of 2005 does not apply, but

even to determine, by applying the legal and constitutional

provisions, whether the exercise of the right to information

amounted to invasion into the right to privacy. This being

a very fine distinction of law, application of legal principles

in such cases becomes very significant.

4. The concerned authority exercises penal powers and can

impose penalty upon the defaulters as contemplated under

Section 20 of the Act of 2005. It has to perform

investigative and supervisory functions. It is expected to

act in consonance with the principles of natural justice as

well as those applicable to service law jurisprudence,

before it can make a report and recommend disciplinary

action against the defaulters, including the persons in

service in terms of Section 20(2).

5. The functioning of the Commission is quite in line with the

functioning of the civil courts and it has even expressly

been vested with limited powers of the civil Court.

Exercise of these powers and discharge of the functions

discussed above not only gives a colour of judicial and/or

quasi-judicial functioning to these authorities but also

vests the Commission with the essential trappings of a civil

Court.

77. Let us now examine some other pre-requisites of vital

significance in the functioning of the Commission. In terms of

Section 22 of this Act, the provisions of the Act are to be given

effect to, notwithstanding anything inconsistent therewith

contained in the Official Secrets Act, 1923 and any other law for

the time being in force or in any instrument having effect by

virtue of any law other than this Act. This Act is, therefore, to

prevail over the specified Acts and even instruments. The same,

however, is only to the extent of any inconsistency between the

two. Thus, where the provisions of any other law can be applied

harmoniously, without any conflict, the question of repugnancy

would not arise.

78. Further, Section 23 is a provision relating to exclusion of

jurisdiction of the Courts. In terms of this Section, no Court

shall entertain any suit, application or other proceedings in

respect of any order made under this Act and no such order shall

be called in question otherwise than by way of an appeal provided

for under this Act. In other words, the jurisdiction of the Court

has been ousted by express language. Nevertheless, it is a

settled principle of law that despite such excluding provision, the

extraordinary jurisdiction of the High Court and the Supreme

Court, in terms of Articles 226 and 32 of the Constitution,

respectively, cannot be divested. It is a jurisdiction incapable of

being eroded or taken away by exercise of legislative power, being

an important facet of the basic structure of the Constitution. In

the case of L. Chandra Kumar (supra), the Court observed that

the constitutional safeguards which ensure independence of the

Judges of the superior judiciary not being available for the

Members of the Tribunal, such tribunals cannot be considered

full and effective substitute to the superior judiciary in

discharging the function of constitutional interpretation. They

can, however, perform a supplemental role. Thus, all decisions of

the Tribunals were held to be subject to scrutiny before the High

Court under Article 226/227 of the Constitution. Therefore, the

orders passed by the authority, i.e., the Central or the State

Information Commissions under the Act of 2005 would

undoubtedly be subject to judicial review of the High Court under

Article 226/227 of the Constitution.

79. Section 24 of the Act of 2005 empowers the Central

Government to make amendments to the Second Schedule

specifying such organization established by the Government to

which the Act of 2005 would not apply. The 'appropriate

Government' [as defined in Section 2(a)] and the 'competent

authority' [as defined in Section 2(e)] have the power to frame

rules for the purposes stated under Sections 27 and 28 of the Act

of 2005. This exercise is primarily to carry out the provisions of

the Act of 2005.

80. Once it is held that the Information Commission is

essentially quasi-judicial in nature, the Chief information

Commissioner and members of the Commission should be the

persons possessing requisite qualification and experience in the

field of law and/or other specified fields. We have discussed in

some detail the requirement of a judicial mind for effectively

performing the functions and exercising the powers of the

Information Commission. In the case of Bharat Bank Ltd., Delhi

v. Employees of Bharat Bank & Ors. [1950 SCR 459 : AIR 1950

SC 188], this Court took the view that the functions and duties of

the Industrial Tribunal are very much like those of a body

discharging judicial functions, although it is not a court in the

technical sense of the word. In S.P. Sampath Kumar v. Union of

India [(1987) 1 SCC 124], again this Court held that in the case of

Administrative Tribunals, the presence of a Judicial member was

the requirement of fair procedure of law and the Administrative

Tribunal must be so manned as to inspire confidence in the

public mind that it is a highly competent and expert mechanism

with judicial approach and objectivity. It was also observed that

we have, in our country, brilliant civil servants who possess

tremendous sincerity, drive and initiative and who have

remarkable capacity to resolve and overcome administrative

problems of great complexity. But what is needed in a judicial

tribunal which is intended to supplant the High Court is legal

training and experience. Similar view was also expressed in the

case of Union of India v. Madras Bar Association [(2010) 11 SCC

1].

81. Further, in the case of L. Chandra Kumar (supra) where this

Court was concerned with the orders and functioning of the

Central Administrative Tribunal and scope of its judicial review,

while holding that the jurisdiction of the High Court under Article

226 of the Constitution was open and could not be excluded, the

Court specifically emphasised on the need for a legally trained

mind and experience in law for the proper functioning of the

tribunal. The Court held as under :

"88. Functioning of Tribunals

XXX XXX XXX

8.65 A Tribunal which substitutes the High

Court as an alternative institutional

mechanism for judicial review must be no

less efficacious than the High Court. Such a

tribunal must inspire confidence and public

esteem that it is a highly competent and

expert mechanism with judicial approach and

objectivity. What is needed in a tribunal,

which is intended to supplant the High Court,

is legal training and experience, and judicial

acumen, equipment and approach. When

such a tribunal is composed of personnel

drawn from the judiciary as well as from

services or from amongst experts in the field,

any weightage in favour of the service

members or expert members and valuediscounting

the judicial members would

render the tribunal less effective and

efficacious than the High Court. The Act

setting up such a tribunal would itself have

to be declared as void under such

circumstances. The same would not at all be

conducive to judicial independence and may

even tend, directly or indirectly, to influence

their decision-making process, especially

when the Government is a litigant in most of

the cases coming before such tribunal. (See

S.P. Sampath Kumar v. Union of India.) The

protagonists of specialist tribunals, who

simultaneously with their establishment

want exclusion of the writ jurisdiction of the

High Courts in regard to matters entrusted

for adjudication to such tribunals, ought not

to overlook these vital and important

aspects. It must not be forgotten that what is

permissible to be supplanted by another

equally effective and efficacious institutional

mechanism is the High Courts and not the

judicial review itself. Tribunals are not an

end in themselves but a means to an end;

even if the laudable objectives of speedy

justice, uniformity of approach, predictability

of decisions and specialist justice are to be

achieved, the framework of the tribunal

intended to be set up to attain them must

still retain its basic judicial character and

inspire public confidence. Any scheme of

decentralisation of administration of justice

providing for an alternative institutional

mechanism in substitution of the High

Courts must pass the aforesaid test in order

to be constitutionally valid."

82. In India, the Central or the State Information Commission,

as the case may be, is vested with dual jurisdiction. It is the

appellate authority against the orders passed by the first

appellate authority, the Information Officer, in terms of Section

19(1) of the Act of 2005, while additionally it is also a supervisory

and investigative authority in terms of Section 18 of the Act

wherein it is empowered to hear complaints by any person

against the inaction, delayed action or other grounds specified

under Section 18(1) against any State and Central Public

Information Officer. This inquiry is to be conducted in

accordance with the prescribed procedure and by exercising the

powers conferred on it under Section 18(3). It has to record its

satisfaction that there exist reasonable grounds to enquire into

the matter.

83. Section 20 is the penal provision. It empowers the Central

or the State Information Commission to impose penalty as well as

to recommend disciplinary action against such Public

Information Officers who, in its opinion, have committed any acts

or omissions specified in this section, without any reasonable

cause. The above provisions demonstrate that the functioning of

the Commission is not administrative simpliciter but is quasijudicial

in nature. It exercises powers and functions which are

adjudicatory in character and legal in nature. Thus, the

requirement of law, legal procedures, and the protections would

apparently be essential. The finest exercise of quasi-judicial

discretion by the Commission is to ensure and effectuate the

right of information recognized under Article 19 of the

Constitution vis-a-vis the protections enshrined under Article 21

of the Constitution.

84. The Information Commission has the power to deal with the

appeals from the First Appellate Authority and, thus, it has to

examine whether the order of the appellate authority and even

the Public Information Officer is in consonance with the

provisions of the Act of 2005 and limitations imposed by the

Constitution. In this background, no Court can have any

hesitation in holding that the Information Commission is akin to

a Tribunal having the trappings of a civil Court and is performing

quasi-judicial functions.

85. The various provisions of this Act are clear indicators to the

unquestionable proposition of law that the Commission is a

judicial tribunal and not a ministerial tribunal. It is an

important cog in and is part of court attached system of

administration of justice unlike a ministerial tribunal which is

more influenced and controlled and performs functions akin to

machinery of administration.

(b)REQUIREMENT OF LEGAL MIND

86. Now, it will be necessary for us to dwell upon somewhat

controversial but an aspect of greater significance as to who and

by whom such adjudicatory machinery, at its various stages

under the provisions of the Act of 2005 particularly in the Indian

context, should be manned.

87. Section 5 of the Act of 2005 makes it obligatory upon every

public authority to designate as many officers, as Central Public

Information Officers and State Information Public Officers in all

administrative units or offices, as may be necessary to provide

information to the persons requesting information under the Act

of 2005. Further, the authority is required to designate Central

Assistant Public Information Officer and State Assistant Public

Information Officer at the sub-divisional or sub-district level. The

Assistant Public Information Officers are to perform dual

functions – (1) to receive the applications for information; and (2)

to receive appeals under the Act. The applications for

information are to be forwarded to the concerned Information

Officer and the appeals are to be forwarded to the Central

Information Commission or the State Information Commission,

as the case may be. It was contemplated that these officers

would be designated at all the said levels within hundred days of

the enactment of the Act. There is no provision under the Act of

2005 which prescribes the qualification or experience that the

Information Officers are required to possess. In fact, the

language of the Section itself makes it clear that any officer can

be designated as Central Public Information Officer or State

Public Information Officer. Thus, no specific requirement is

mandated for designating an officer at the sub-divisional or subdistrict

level. The appeals, under Section 19(1) of the Act, against

the order of the Public Information Officer are to be preferred

before an Officer senior in the rank to the Public Information

Officer. However, under Section 19(3), a further appeal lies to the

Central or the State Information Commission, as the case may

be, against the orders of the Central or State Appellate Officer.

These officers are required to dispose of such application or

appeal within the time schedule specified under the provisions of

the Act. There is also no qualification or experience required of

these designated officers to whom the first appeal would lie.

However, in contradistinction, Section 12(5) and Section 15(5)

provide for the experience and knowledge that the Chief

Information Commissioner and the Information Commissioners

at the Centre and the State levels, respectively, are required to

possess. This provision is obviously mandatory in nature.

88. As already noticed, in terms of Section 12(5), the Chief

Information Commissioner and Information Commissioners are

required to be persons of eminence in public life with wide

knowledge and experience in law, science and technology or any

of the other specified fields. Further, Sub-Section (6) of Sections

12 and 15 lays down the disqualifications for being nominated as

such. It is provided that the Chief Information Commissioner or

Information Commissioners shall not be a Member of Parliament

or Member of the Legislative Assembly of any State or Union

Territory or hold any other office of profit or connected with any

political party or carrying on any business or pursuing any

profession.

89. The requirement of legal person in a quasi-judicial body has

been internationally recognized. We have already referred,

amongst others, to the relevant provisions of the respective

Information Acts of the USA, UK and Canada. Even in the

Canadian Human Rights Tribunal, under the Canadian Human

Rights Act, the Vice-Chairman and Members of the Tribunal are

required to have a degree in law from a recognized university and

be the member of the bar of a province or a Chamber des notaires

du Quebec for at least 10 years. Along with this qualification,

such person needs to have general knowledge of human rights

law as well as public law including Administrative and

Constitutional Laws. The Information Commissioner under the

Canadian Law has to be appointed by the Governor in Council

after consultation with the leader of every recognized party in the

Senate and the House of Commons. Approval of such

appointment is done by resolution of the Senate and the House of

Commons. It is noted that the Vice-Chairperson plays a preeminent

role within this Administrative Tribunal by ensuring a

fair, timely and impartial adjudication process for human rights

complaints, for the benefit of all concerned.

90. As already noticed, in the United Kingdom, the Information

Rights Tribunal and the Information Commissioners are to deal

with the matters arising from both, the FOIA as well as the Data

Protection Act, 1998. These tribunals are discharging quasi85

judicial functions. Appointments to them are dealt with and

controlled by the TCEA. These appointments are treated as

judicial appointments and are covered under Part 2 of the TCEA.

Section 50 provides for the eligibility conditions for judicial

appointment. Section 50(1)(b) refers to a person who satisfies the

judicial-appointment eligibility condition on an N-year basis. A

person satisfies that condition on N-year basis if (a) the person

has a relevant qualification and (b) the total length of the person's

qualifying periods is at least N years. Section 52 provides for the

meaning of the expression 'gain experience in law' appearing in

Section 50(3)(b). It states that a person gains experience in law

during a period if the period is one during which the person is

engaged in law-related activities. The essence of these statutory

provisions is that the concerned person under that law is

required to possess both a degree as well as experience in the

legal field. Such experience inevitably relates to working in that

field. Only then, the twin criteria of requisite qualification and

experience can be satisfied.

91. It may be of some relevance here to note that in UK, the

Director in the office of the Government Information Service, an

authority created under the Freedom of Information Act, 2000

possesses a degree of law and has been a member of the Bar of

the District of Columbia and North Carolina in UK. The Principal

Judge of Information Rights Jurisdiction in the First-tier

Tribunal, not only had a law degree but were also retired

solicitors or barristers in private practice.

92. Thus, there exists a definite requirement for appointing

persons to these posts with legal background and acumen so as

to ensure complete faith and confidence of the public in the

independent functioning of the Information Commission and for

fair and expeditious performance of its functions. The

Information Commissions are required to discharge their

functions and duties strictly in accordance with law.

93. In India, in terms of sub-Section (5), besides being a person

of eminence in public life, the necessary qualification required for

appointment as Chief Information Commissioner or Information

Commissioner is that the person should have wide knowledge

and experience in law and other specified fields. The term

'experience in law' is an expression of wide connotation. It presupposes

that a person should have the requisite qualification in

law as well as experience in the field of law. However, it is

worthwhile to note that having a qualification in law is not

equivalent to having experience in law and vice-versa.

'Experience in law', thus, is an expression of composite content

and would take within its ambit both the requisite qualification

in law as well as experience in the field of law. A person may

have some experience in the field of law without possessing the

requisite qualification. That certainly would not serve the

requirement and purpose of the Act of 2005, keeping in view the

nature of the functions and duties required to be performed by

the Information Commissioners. Experience in absence of basic

qualification would certainly be insufficient in its content and

would not satisfy the requirements of the said provision. Wide

knowledge in a particular field would, by necessary implication,

refer to the knowledge relatable to education in such field

whereas experience would necessarily relate to the experience

attained by doing work in such field. Both must be read together

in order to satisfy the requirements of Sections 12(5) of and 15(5)

the Act of 2005. Similarly, wide knowledge and experience in

other fields would have to be construed as experience coupled

with basic educational qualification in that field.

94. Primarily it may depend upon the language of the rules

which govern the service but it can safely be stated as a rule that

experience in a given post or field may not necessarily satisfy the

condition of prescribed qualification of a diploma or a degree in

such field. Experience by working in a post or by practice in the

respective field even for long time cannot be equated with the

basic or the prescribed qualification. In absence of a specific

language of the provision, it is not feasible for a person to have

experience in the field of law without possessing a degree in law.

In somewhat different circumstances, this Court in the case of

State of Madhya Pradesh v. Dharam Bir [(1998) 6 SCC 165], while

dealing with Rule 8(2) of the Madhya Pradesh Industrial Training

(Gazetted) Service Recruitment Rules, 1985, took the view that

the stated qualification for the post of Principal Class I or

Principal Class II were also applicable to appointment by

promotion and that the applicability of such qualification is not

restricted to direct appointments. Before a person becomes

eligible for being promoted to the post of Principal, Class II or

Principal, Class-I, he must possess a Degree or Diploma in

Engineering, as specified in the Schedule. The fact that the

person had worked as a Principal for a decade would not lead to

a situation of accepting that the person was qualified to hold the

post. The Court held as under :

"32. "Experience" gained by the respondent

on account of his working on the post in

question for over a decade cannot be equated

with educational qualifications required to be

possessed by a candidate as a condition of

eligibility for promotion to higher posts. If the

Government, in exercise of its executive

power, has created certain posts, it is for it

to prescribe the mode of appointment or the

qualifications which have to be possessed by

the candidates before they are appointed on

those posts. The qualifications would

naturally vary with the nature of posts or the

service created by the Government.

33. The post in question is the post of

Principal of the Industrial Training Institute.

The Government has prescribed a Degree or

Diploma in Engineering as the essential

qualification for this post. No one who does

not possess this qualification can be

appointed on this post. The educational

qualification has a direct nexus with the

nature of the post. The Principal may also

have an occasion to take classes and teach

the students. A person who does not hold

either a Degree or Diploma in Engineering

cannot possibly teach the students of the

Industrial Training Institute the

technicalities of the subject of Engineering

and its various branches."

95. Thus, in our opinion, it is clear that experience in the

respective field referred to in Section 12(5) of the Act of 2005

would be an experience gained by the person upon possessing

the basic qualification in that field. Of course, the matter may be

somewhat different where the field itself does not prescribe any

degree or appropriate course. But it would be applicable for the

fields like law, engineering, science and technology, management,

social service and journalism, etc.

96. This takes us to discuss the kind of duties and

responsibilities that such high post is expected to perform. Their

functions are adjudicatory in nature. They are required to give

notice to the parties, offer them the opportunity of hearing and

pass reasoned orders. The orders of the appellate authority and

the Commission have to be supported by adequate reasoning as

they grant relief to one party, despite opposition by the other or

reject the request for information made in exercise of a statutory

right.

97. It is not only appropriate but is a solemn duty of every

adjudicatory body, including the tribunals, to state the reasons

in support of its decisions. Reasoning is the soul of a judgment

and embodies one of the three pillars on which the very

foundation of natural justice jurisprudence rests. It is

informative to the claimant of the basis for rejection of his claim,

as well as provides the grounds for challenging the order before

the higher authority/constitutional court. The reasons,

therefore, enable the authorities, before whom an order is

challenged, to test the veracity and correctness of the impugned

order. In the present times, since the fine line of distinction

between the functioning of the administrative and quasi-judicial

bodies is gradually becoming faint, even the administrative

bodies are required to pass reasoned orders. In this regard,

reference can be made to the judgments of this Court in the

cases of Siemens Engineering & Manufacturing Co. of India Ltd. v.

Union of India & Anr. [(1976) 2 SCC 981]; and Assistant

Commissioner, Commrcial Tax Department Works Contract and

Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].

98. The Chief Information Commissioner and members of the

Commission are required to possess wide knowledge and

experience in the respective fields. They are expected to be well

versed with the procedure that they are to adopt while performing

the adjudicatory and quasi judicial functions in accordance with

the statutory provisions and the scheme of the Act of 2005. They

are to examine whether the information required by an applicant

falls under any of the exemptions stated under Section 8 or the

Second Schedule of the Act of 2005. Some of the exemptions

under Section 8, particularly, sub-sections (e), (g) and (j) have

been very widely worded by the Legislature keeping in mind the

need to afford due protection to privacy, national security and the

larger public interest. In terms of Section 8(1)(e), (f), (g), (h) and

(i), the authority is required to record a definite satisfaction

whether disclosure of information would be in the larger public

interest or whether it would impede the process of investigation

or apprehension or prosecution of the offenders and whether it

would cause unwarranted invasion of the privacy of an

individual. All these functions may be performed by a legally

trained mind more efficaciously. The most significant function

which may often be required to be performed by these authorities

is to strike a balance between the application of the freedom

guaranteed under Article 19(1)(a) and the rights protected under

Article 21 of the Constitution. In other words, the deciding

authority ought to be conscious of the constitutional concepts

which hold significance while determining the rights of the

parties in accordance with the provisions of the statute and the

Constitution. The legislative scheme of the Act of 2005 clearly

postulates passing of a reasoned order in light of the above. A

reasoned order would help the parties to question the correctness

of the order effectively and within the legal requirements of the

writ jurisdiction of the Supreme Court and the High Courts.

99. 'Persons of eminence in public life' is also an expression of

wide implication and ramifications. It takes in its ambit all

requisites of a good citizen with values and having a public image

of contribution to the society. Such person should have

understanding of concepts of public interest and public good.

Most importantly, such person should have contributed to the

society through social or allied works. The authorities cannot

lose sight of the fact that ingredients of institutional integrity

would be applicable by necessary implication to the Commissions

and their members. This discussion safely leads us to conclude

that the functions of the Chief Information Commissioner and

Information Commissioners may be better performed by a legally

qualified and trained mind possessing the requisite experience.

The same should also be applied to the designation of the first

appellate authority, i.e., the senior officers to be designated at the

Centre and State levels. However, in view of language of Section

5, it may not be necessary to apply this principle to the

designation of Public Information Officer.

100. Moreover, as already noticed, the Information Commission,

is performing quasi-judicial functions and essence of its

adjudicatory powers is akin to the Court system. It also

possesses the essential trappings of a Court and discharges the

functions which have immense impact on the rights/obligations

of the parties. Thus, it must be termed as a judicial Tribunal

which requires to be manned by a person of judicial mind,

expertise and experience in that field. This Court, while dealing

with the cases relating to the powers of the Parliament to amend

the Constitution has observed that every provision of the

Constitution, can be amended provided in the result, the basic

structure of the Constitution remains the same. The dignity of

the individual secured by the various freedoms and basic rights

contained in Part III of the Constitution and their protection itself

has been treated as the basic structure of the Constitution.

101. Besides separation of powers, the independence of judiciary

is of fundamental constitutional value in the structure of our

Constitution. Impartiality, independence, fairness and

reasonableness in judicial decision making are the hallmarks of

the Judiciary. If 'Impartiality' is the soul of Judiciary,

`Independence' is the life blood of Judiciary. Without

independence, impartiality cannot thrive, as this Court stated in

the case of Union of India v. R. Gandhi, President, Madras Bar

Association [(2010) 11 SCC 17].

102. The independence of judiciary stricto sensu applies to the

Court system. Thus, by necessary implication, it would also

apply to the tribunals whose functioning is quasi-judicial and

akin to the court system. The entire administration of justice

system has to be so independent and managed by persons of

legal acumen, expertise and experience that the persons

demanding justice must not only receive justice, but should also

have the faith that justice would be done.

103. The above detailed analysis leads to an ad libitum

conclusion that under the provisions and scheme of the Act of

2005, the persons eligible for appointment should be of public

eminence, with knowledge and experience in the specified fields

and should preferably have a judicial background. 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 Commission, in its day-to-day working.

The Commission satisfies abecedarians of a judicial tribunal

which has the trappings of a court. It will serve the ends of

justice better, if the Information Commission was manned by

persons of legal expertise and with adequate experience in the

field of adjudication. We may further clarify that such judicial

members could work individually or in Benches of two, one being

a judicial member while the other being a qualified person from

the specified fields to be called an expert member. Thus, in

order to satisfy the test of constitutionality, we will have to read

into Section 12(5) of the Act that the expression 'knowledge and

experience' includes basic degree in that field and experience

gained thereafter and secondly that legally qualified, trained and

experienced persons would better administer justice to the

people, particularly when they are expected to undertake an

adjudicatory process which involves critical legal questions and

niceties of law. Such appreciation and application of legal

principles is a sine qua non to the determinative functioning of

the Commission as it can tilt the balance of justice either way.

Malcolm Gladwell said, "the key to good decision making is not

knowledge. It is understanding. We are swimming in the former.

We are lacking in the latter". The requirement of a judicial mind

for manning the judicial tribunal is a well accepted discipline in

all the major international jurisdictions with hardly with any

exceptions. Even if the intention is to not only appoint people

with judicial background and expertise, then the most suitable

and practical resolution would be that a 'judicial member' and an

'expert member' from other specified fields should constitute a

Bench and perform the functions in accordance with the

provisions of the Act of 2005. Such an approach would further

the mandate of the statute by resolving the legal issues as well as

other serious issues like an inbuilt conflict between the Right to

Privacy and Right to Information while applying the balancing

principle and other incidental controversies. We would clarify

that participation by qualified persons from other specified fields

would be a positive contribution in attainment of the proper

administration of justice as well as the object of the Act of 2005.

Such an approach would help to withstand the challenge to the

constitutionality of Section 12(5).

104. As a natural sequel to the above, the question that comes

up for consideration is as to what procedure should be adopted

to make appointments to this august body. Section 12(3) states

about the High-powered Committee, which has to recommend the

names for appointment to the post of Chief Information

Commissioner and Information Commissioners to the President.

However, this Section, and any other provision for that matter, is

entirely silent as to what procedure for appointment should be

followed by this High Powered Committee. Once we have held

that it is a judicial tribunal having the essential trappings of a

court, then it must, as an irresistible corollary, follow that the

appointments to this august body are made in consultation with

the judiciary. 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 of 2005, then it may do so, however, subject to the riders

stated in this judgment. 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.

The Bench should consist of one judicial member and the other

member from the specified fields in terms of Section 12(5) of the

Act of 2005. It will be incumbent and in conformity with the

scheme of the Act that the appointments to the post of judicial

member are 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 case of the State Chief

Information Commissioner and State Information Commissioners

of that State Commission. 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 at least three times the number of vacancies

existing in the Commission. Such panel should be prepared on a

rational basis, and should inevitably form part of the records.

The names so empanelled, with the relevant record should be

placed before the said High Powered Committee. In furtherance

to the recommendations of the High Powered Committee,

appointments to the Central and State Information Commissions

should be made by the competent authority. Empanelment by

the DoPT and other competent authority has to be carried on the

basis of a rational criteria, which should be duly reflected by

recording of appropriate reasons. The advertisement issued by

100

such agency should not be restricted to any particular class of

persons stated under Section 12(5), but must cover persons from

all fields. Complete information, material and comparative data

of the empanelled persons should be made available to the High

Powered Committee. Needless to mention that the High Powered

Committee itself has to adopt a fair and transparent process for

consideration of the empanelled persons for its final

recommendation. This approach, is in no way innovative but is

merely derivative of the mandate and procedure stated by this

Court in the case of L. Chandra Kumar (supra) wherein the Court

dealt with similar issues with regard to constitution of the

Central Administrative Tribunal. All concerned are expected to

keep in mind that the Institution is more important than an

individual. Thus, all must do what is expected to be done in the

interest of the institution and enhancing the public confidence.

A three Judge Bench of this Court in the case of Centre for PIL

and Anr. v. Union of India & Anr. [(2011) 4 SCC 1] had also

adopted a similar approach and with respect we reiterate the

same.

105. Giving effect to the above scheme would not only further the

cause of the Act but would attain greater efficiency, and accuracy

101

in the decision-making process, which in turn would serve the

larger public purpose. It shall also ensure greater and more

effective access to information, which would result in making the

invocation of right to information more objective and meaningful.

106. For the elaborate discussion and reasons afore-recorded, we

pass the following order and directions:

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

102

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

103

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 'quasijudicial'

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

104

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. 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

105

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.

106

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 precedence, 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 precedence 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

107

equally applicable to intra appeals or references in the

hierarchy of the Commission.

107. The writ petition is partly allowed with the above directions,

however, without any order as to costs.

…………………………….,J.

[A.K. Patnaik]

…………………………….,J.

[Swatanter Kumar]

New Delhi;

September 13, 2012

National RTI Forum for Research and Analysis

Thursday, September 13, 2012

Namit Sharma vs. UOI IN THE SUPREME COURT OF INDIA WRIT PETITION (CIVIL) NO. 210 of 2012

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