we allow the
Review Petitions, recall the directions and declarations in
the judgment under review and dispose of Writ Petition (C)
No. 210 of 2012 with the following declarations and
directions:
(i) We declare that Sections 12(5) and 15(5) of the Act are
not ultra vires the Constitution.
(ii) We declare that Sections 12(6) and 15(6) of the Act do
not debar a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case
may be, or a person holding any other office of profit or
connected with any political party or carrying on any
business or pursuing any profession from being
considered for appointment as Chief Information
Commissioner or Information Commissioner, but after
such
person
is
appointed
as
Chief
Information
Commissioner or Information Commissioner, he has to
discontinue as
Member of Parliament or Member of
the Legislature of any State or Union Territory, or
discontinue to hold any other office of profit or remain
54
connected with any political party or carry on any
business or pursue any profession during the period
he functions as Chief Information Commissioner or
Information Commissioner.
(iii) We direct that only persons of eminence in public life
with wide knowledge and experience in the fields
mentioned in Sections 12(5) and 15(5) of the Act be
considered
for
appointment
as
Information
Commissioner and Chief Information Commissioner.
(iv) We further direct that persons of eminence in public
life with wide knowledge and experience in all the
fields mentioned in Sections 12(5) and 15(5) of the Act,
namely, law, science and technology, social service,
management,
journalism,
mass
media
or
administration and governance, be considered by the
Committees under Sections 12(3) and 15(3) of the Act
for appointment as Chief Information Commissioner or
Information Commissioners.
(v) We further direct that the Committees under Sections
12(3)
and
15(3)
of
the
Act
while
making
recommendations to the President or to the Governor,
as the case may be, for appointment of Chief
Information
Commissioner
and
Information
Commissioners must mention against the name of
each candidate recommended, the facts to indicate his
55
eminence in public life, his knowledge in the particular
field and his experience in the particular field and
these facts must be accessible to the citizens as part of
their right to information under the Act after the
appointment is made.
(vi) We
also
direct
that
wherever
Chief
Information
Commissioner is of the opinion that intricate questions
of law will have to be decided in a matter coming up
before the Information Commission, he will ensure
that
the
matter
Commissioner
is
who
heard
has
by
wide
an
Information
knowledge
and
experience in the field of law.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [C] No.2309 OF 2012
IN
WRIT PETITION [C] NO.210 OF 2012
Union of India
... Petitioner
Versus
Namit Sharma
... Respondent
These are petitions filed under Article 137 of the
Constitution of India for review of the judgment dated
13.09.2012 of this Court in Writ Petition (C) No.210 of 2012
(hereinafter referred to as ‘the judgment under review’).
2
Background Facts:
2.
In Writ Petition (C) No.210 of 2012 filed under Article
32 of the Constitution of India, Namit Sharma, the
respondent herein, had prayed for declaring the provisions
of Sections 12(5), 12(6), 15(5) and 15(6) of the Right to
Information Act, 2005 (for short ‘the Act’) as ultra vires the
Constitution.
Sections 12(5), 12(6), 15(5) and 15(6) of the
Act are extracted hereinbelow:
“12(5) The Chief Information Commissioner and
Information Commissioners shall be persons of
eminence in public life with wide knowledge and
experience in law, science and technology, social
service, management, journalism, mass media
or administration and governance.”
“12(6) The Chief Information Commissioner or
an Information Commissioner shall not be a
Member of Parliament or Member of the
Legislature of any State or Union Territory, as
the case may be, or hold any other office of profit
or connected with any political party or carrying
on any business or pursuing any profession.”
“15(5)
The
State
Chief
Information
Commissioner
and
State
Information
Commissioners shall be persons of eminence in
public life with wide knowledge and experience
in law, science and technology, social service,
management, journalism, mass media or
administration and governance.”
3
“15(6)
The
State
Chief
Information
Commissioner
or
a
State
Information
Commissioner shall not be a Member of
Parliament or Member of the Legislature of any
State or Union Territory, as the case may be, or
hold any other office of profit or connected with
any political party or carrying on any business
or pursuing any profession.”
The grounds taken in the writ petition were that the
provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Act
laying down the eligibility criteria for appointment of Central
Information
Commissioners
and
State
Information
Commissioners were vague and had no nexus with the
object of the Act and were violative of Article 14 of the
Constitution of India and while enacting these provisions,
Parliament
consonance
had
with
not
the
exercised
legislative
constitutional
power
principles
in
and
guarantees.
3.
After hearing the learned counsel for the respondent-
writ petitioner and the learned Additional Solicitor General
for Union of India, this Court held in the judgment under
review that the provisions of Sections 12(5) and 15(5) of the
Act did not specify the basic qualifications of the persons to
be appointed as Information Commissioners and only
4
mentioned that the Chief Information Commissioner and
Information Commissioners shall be persons of eminence in
public life with wide knowledge and experience in law,
science
and
technology,
social
service,
management,
journalism, mass media or administration and governance.
This Court held that the knowledge and experience in the
different fields mentioned in Section 12(5) and Section 15(5)
of the Act would presuppose a graduate who possesses
basic qualification in the concerned field. This Court also
held that Sections 12(6) and 15(6) of the Act, which provide
that the Chief Information Commissioner or an Information
Commissioner shall not be a Member of Parliament or
Member of the Legislature of any State or Union Territory or
hold any other office of profit or be connected with any
political party or carry on any business or pursue any
profession, do not disqualify such persons for consideration
for appointment as Chief Information Commissioner or
Information Commissioner, but these disqualifications will
come into play after a person is appointed as Chief Election
Commissioner or Information Commissioner.
In other
words, after a Chief Election Commissioner or Information
5
Commissioner is appointed, he cannot continue to be a
Member of Parliament or Member of the Legislature of any
State or hold any other office of profit or remain connected
with any political party or carry on any business or pursue
any profession.
4.
In the judgment under review, this Court also held
that the Information Commission, as a body, performs
functions of
wide
magnitude,
including adjudicatory,
through
supervisory
as
its
well
members,
as
penal
functions. This Court held that access to information is a
statutory
right,
subject
to
certain
constitutional
and
statutory limitations and the Information Commissioners
have been vested with the power to decline furnishing of
information
under
specified situations.
certain
circumstances
and
in
the
This Court held that disclosure of
information under the Act may also involve the question of
prejudice to a third party, unlike in some countries where
information involving a third party cannot be disclosed
without the consent of that party.
This Court held that
considering all these functions to be performed by the
Information Commission, the exercise of powers and
6
passing of the orders by the Information Commission
cannot be arbitrary and have to be in consonance with the
principles of natural justice, namely, notice to a party, grant
of hearing and passing of reasoned orders, and, therefore,
the Information Commission is a Tribunal discharging
quasi-judicial functions. This Court held that there is a lis
to be decided by the Information Commission inasmuch as
the request of a party seeking information is to be allowed
or to be disallowed and the decisions rendered by the
Information Commission on such a lis may prejudicially
affect a third party. For these reasons, this Court further
held that the Information Commission possesses the
essential attributes and trappings of a Court as the
adjudicatory
powers
performed
by
the
Information
Commission are akin to the Court system and the
adjudicatory matters that they decide can have serious
consequences on various rights including the right to
privacy protected under Article 21 of the Constitution.
5.
In the judgment under review, this Court also
expressed the opinion that for effectively performing the
functions and exercising the powers of the Information
7
Commission, there is a requirement of a judicial mind. For
holding this opinion, the Court relied on the judgments of
this Court in Bharat Bank Ltd., Delhi v. Employees of Bharat
Bank & Ors. [AIR 1950 SC 188], S.P. Sampath Kumar v.
Union of India and Others [(1987) 1 SCC 124], Union of India
v. R. Gandhi, President Madras Bar Association [(2010) 11
SCC 1] and L. Chandra Kumar v. Union of India and Others
[(1997) 3 SCC 261]. This Court also held that separation of
powers and the independence of judiciary are fundamental
constitutional values in the structure of our Constitution as
without these two constitutional values, impartiality cannot
thrive as has been held by this Court in Union of India v. R.
Gandhi, President, Madras Bar Association (supra).
This
Court, thus, held that though the independence of judiciary
stricto sensu applied to the Court system, by necessary
implication, it would also apply to Tribunals whose
functioning is quasi-judicial and akin to the Court system
and the entire administration of justice has to be so
independent and managed by persons of legal acumen,
expertise and experience that persons demanding justice
must not only receive justice, but should also have the faith
8
that justice would be done.
This Court accordingly held
that the persons eligible for appointment should be of public
eminence, with knowledge and experience in the specified
fields and should preferably have some judicial background
and they should possess judicial acumen and experience to
fairly and effectively deal with the intricate questions of law
that
would
come
up
for
determination
before
Information Commission in its day-to-day working.
the
This
Court held that the Information Commission is a judicial
tribunal having the essential trappings of a Court and, as
an irresistible corollary, it will follow that the appointments
to the Information Commission are made in consultation
with the judiciary. The Court, however, observed that in the
event, the Government is of the opinion and desires to
appoint not only judicial members but also experts from
other fields to the Commission in terms of Section 12(5) of
the
Act,
to
adjudicatory
ensure
process
judicial
and
independence,
public
confidence
effective
in
the
administration of justice by the Commission, it would be
necessary that the Commission is required to work in
Benches comprising one judicial member and one other
9
member from the specified fields mentioned in Sections
12(5) and 15(5) of the Act.
6.
On the appointment procedure, this Court also held in
the judgment under review that the appointments to the
post of judicial member has to be made in consultation with
the Chief Justice of India in case of Chief Information
Commissioner and members of the Central Information
Commission, and the Chief Justices of the High Courts of
the respective States, in the case of State Chief Information
Commissioner and State Information Commissioners of that
State Commission. This Court further held that in the case
of appointment of members to the respective Commissions
from other specified fields, the DoPT in the Centre and the
concerned Ministry in the States should prepare a panel,
after due publicity. Empanelling the names proposed should
be at least three times the number of vacancies existing in
the Commission and the names so empanelled, with the
relevant record should be placed before the High Powered
Committee mentioned in Section 12(3) and 15(3) of the Act
and in furtherance of the recommendations of the High
Powered Committee, appointments to the Central and State
10
Information Commissions should be made by the competent
authority.
7.
For the reasons recorded in the judgment under
review, this Court disposed of the writ petition of the
respondent-writ
petitioner
with
the
following
directions/declarations:
“1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of
the Act of 2005 are held to be constitutionally
valid, but with the rider that, to give it a
meaningful and purposive interpretation, it is
necessary for the Court to 'read into' these
provisions some aspects without which these
provisions are bound to offend the doctrine of
equality. Thus, we hold and declare that the
expression
'knowledge
and
experience'
appearing in these provisions would mean and
include a basic degree in the respective field
and the experience gained thereafter. Further,
without any peradventure and veritably, we
state that appointments of legally qualified,
judicially trained and experienced persons
would certainly manifest in more effective
serving of the ends of justice as well as
ensuring better administration of justice by the
Commission. It would render the adjudicatory
process which involves critical legal questions
and nuances of law, more adherent to justice
and shall enhance the public confidence in the
working of the Commission. This is the obvious
interpretation of the language of these
provisions and, in fact, is the essence thereof.
11
3. As opposed to declaring the provisions of
Section 12(6) and 15(6) unconstitutional, we
would prefer to read these provisions as having
effect 'post-appointment'. In other words,
cessation/termination of holding of office of
profit, pursuing any profession or carrying any
business is a condition precedent to the
appointment of a person as Chief Information
Commissioner or Information Commissioner at
the Centre or State levels.
4. There is an absolute necessity for the
legislature to reword or amend the provisions
of Section 12(5), 12(6) and 15(5), 15(6) of the
Act. We observe and hope that these provisions
would be amended at the earliest by the
legislature to avoid any ambiguity or
impracticability and to make it in consonance
with the constitutional mandates.
5. We also direct that the Central Government
and/or the competent authority shall frame all
practice and procedure related rules to make
working of the Information Commissions
effective and in consonance with the basic rule
of law. Such rules should be framed with
particular reference to Section 27 and 28 of the
Act within a period of six months from today.
6. We are of the considered view that it is an
unquestionable proposition of law that the
Commission is a 'judicial tribunal' performing
functions of 'judicial' as well as 'quasi-judicial'
nature and having the trappings of a Court. It
is an important cog and is part of the court
attached system of administration of justice,
unlike a ministerial tribunal which is more
influenced and controlled and performs
functions
akin
to
the
machinery
of
administration.
12
7. It will be just, fair and proper that the first
appellate authority (i.e. the senior officers to be
nominated in terms of Section 5 of the Act of
2005) preferably should be the persons
possessing a degree in law or having adequate
knowledge and experience in the field of law.
8. The Information Commissions at the
respective levels shall henceforth work in
Benches of two members each. One of them
being a 'judicial member', while the other an
'expert member'. The judicial member should
be a person possessing a degree in law, having
a judicially trained mind and experience in
performing judicial functions. A law officer or a
lawyer may also be eligible provided he is a
person who has practiced law at least for a
period of twenty years as on the date of the
advertisement. Such lawyer should also have
experience in social work. We are of the
considered view that the competent authority
should prefer a person who is or has been a
Judge of the High Court for appointment as
Information
Commissioners.
The
Chief
Information Commissioner at the Centre or
State level shall only be a person who is or has
been a Chief Justice of the High Court or a
Judge of the Supreme Court of India.
9. The appointment of the judicial members to
any of these posts shall be made 'in
consultation' with the Chief Justice of India
and Chief Justices of the High Courts of the
respective States, as the case may be.
10. The appointment of the Information
Commissioners at both levels should be made
from amongst the persons empanelled by the
DoPT in the case of Centre and the concerned
Ministry in the case of a State. The panel has
to be prepared upon due advertisement and on
a rational basis as afore-recorded.
13
11. The panel so prepared by the DoPT or the
concerned Ministry ought to be placed before
the High-powered Committee in terms of
Section 12(3), for final recommendation to the
President of India. Needless to repeat that the
High Powered Committee at the Centre and the
State levels is expected to adopt a fair and
transparent method of recommending the
names for appointment to the competent
authority.
12. The selection process should be
commenced at least three months prior to the
occurrence of vacancy.
13. This judgment shall have effect only
prospectively.
14. Under the scheme of the Act of 2005, it is
clear that the orders of the Commissions are
subject to judicial review before the High Court
and then before the Supreme Court of India. In
terms of Article 141 of the Constitution, the
judgments of the Supreme Court are law of the
land and are binding on all courts and
tribunals. Thus, it is abundantly clear that the
Information Commission is bound by the law
of precedent, i.e., judgments of the High Court
and the Supreme Court of India. In order to
maintain judicial discipline and consistency in
the functioning of the Commission, we direct
that the Commission shall give appropriate
attention to the doctrine of precedent and shall
not overlook the judgments of the courts
dealing with the subject and principles
applicable, in a given case.
It is not only the higher court's judgments that
are binding precedents for the Information
Commission, but even those of the larger
Benches of the Commission should be given
14
due acceptance and enforcement by the
smaller Benches of the Commission. The rule
of precedence is equally applicable to intra-
court appeals or references in the hierarchy of
the Commission.”
Contentions of the learned counsel for the parties:
8.
Mr. A.S. Chandhiok, learned ASG appearing for the
Union of India, submitted that under the Constitution it is
only the Legislature which has the power to make law and
amend the law and the Court cannot in exercise of its
judicial power encroach into the field of legislation.
In
support of this submission, he relied on the decision of a
seven-Judge Bench of this Court in P. Ramachandra Rao v.
State of Karnataka [(2002) 4 SCC 578] in which this Court
has
recognised
the
limits
constitutional democracy.
of
judicial
power
in
a
He also cited the decision of a
three- Judge Bench in Union of India and Another v. Deoki
Nandan Aggarwal [1992 Supp. (1) SCC 323] for the
proposition that courts cannot rewrite, recast or reframe the
legislation for the very good reason that it has no power to
legislate. He submitted that this being the position of law,
this Court could not have held in the judgment under
15
review that the knowledge and experience in different fields
mentioned in Sections 12(5) and 15(5) of the Act would
presuppose a graduate or basic degree in the concerned
field when Parliament has not provided in Sections 12(5)
and 15(5) of the Act that only persons with basic degree in
law, science and technology, social science, management,
journalism,
appointment
mass
as
media,
Chief
etc.
would
Information
be
eligible
Commissioner
for
and
Information Commissioners. He submitted that directions
nos. 2 and 7 of the judgment under review that persons
possessing basic degree in the respective fields can be
Information Commissioners amount to
amendment of
Sections 12(5) and 15(5) of the Act.
9.
this
Mr. Chandhiok next submitted that the view taken by
Court
in
the
judgment
under
review
that
the
Information Commissioners should possess the essential
attributes of a court and that for effectively performing the
functions and powers of the Information Commission there
is requirement of a judicial mind and hence persons eligible
for appointment as Information Commissioners should
preferably have some judicial background and possess
16
judicial acumen, is a patent error of law. He submitted that
Information Commissioners have a duty to act judicially and
perform quasi-judicial functions, but this does not mean
that they must have the experience and acumen of judicial
officers.
In support of this submission, he cited the
observations of Hidayatullah, J in Harinagar Sugar Mills Ltd.
v. Shyam Sunder Jhunjhunwala and Others (AIR 1961 SC
1669) that an officer who is required to decide the matters
judicially does not make him a Court or even a Tribunal
because that only establishes that he is following the
standards of conduct and is free from bias and interest. He
submitted that as Information Commissions are not really
exercising judicial powers, and are not courts, Parliament
has not provided in Sections 12(5) and 15(5) of the Act that
Information Commissioners have to have judicial experience
and acumen.
He argued that direction no. 8 that
Information Commissions at the respective levels shall work
in Benches of two members each and one of them has to be
a judicial member possessing a degree in law and having
judicially trained mind and experience in performing judicial
functions and the direction that competent authority should
17
prefer a person who is or has been a Judge of the High
Court for appointment as Information Commissioners and
that the Chief Information Commissioner shall only be a
person who is or has been a Chief Justice of a High Court or
a Judge of the Supreme Court of India is a palpable error
which needs to be corrected in this review.
He further
submitted that consequently direction no.9 in the judgment
under review that the appointment of judicial members as
Information Commissioners shall be in consultation with
the Chief Justice of India and Chief Justice of High Court of
the respective States, as the case may be, should be deleted.
10.
Mr. Chandhiok finally submitted that in direction no.5
of the judgment under review, this Court has further
directed the Central Government to frame all practice and
procedure related rules to make working of the Information
Commissions effective and in consonance with the basic
rule of law under Sections 27 and 28 of the Act within a
period of 6 months but law is well settled that the Court
cannot direct a rule making authority to make rules in a
particular fashion. He relied on the decision of this Court in
Mallikarjuna Rao and Others v. State of Andhra Pradesh and
18
Others [(1990) 2 SCC 707] in support of this submission.
He argued that direction no.5 of the judgment under review
is, therefore, a patent error which needs to be corrected in
this review.
11.
Dr. Manish Singhvi, Additional Advocate General for
the State of Rajasthan, submitted that the Information
Commissioners do not perform functions which prior to the
Act were vested in courts and therefore they need not be
persons
having
judicial
background/judicial
training/judicial experience. He submitted that in Union of
India v. R. Gandhi, Madras Bar Association (supra), this
Court took the view that only if functions which have been
dealt with by civil courts are transferred to tribunals, such
tribunals should be manned by persons having judicial
background/judicial
training/judicial
experience.
He
submitted that the view taken by this Court in the judgment
under
review
that
persons
having
judicial
background/judicial training/judicial experience should be
preferred while appointing Information Commissioners is an
apparent error which should be corrected in this review.
19
12.
Mr. M.S. Ganesh, learned senior counsel appearing for
the intervener, Commonwealth Human Rights Initiative,
submitted that the Information Commission is not vested
with
sovereign
judicial
powers
and
discharges
only
administrative functions under the provisions of the Act and
the view taken by this Court in the judgment under review
that Information Commissioners should be persons having
judicial
background,
judicial
experience
and
judicial
acumen is not a correct view. He cited the opinion of Lord
Greene, M.R. in B. Johnson & Co. (Builders), Ltd. v. Minister
of Health [(1947) 2 All England Law Reports 395] as well as
the opinion of Lord Diplock in Bushell v. Secretary of State
for the Environment [(1980) 2 All ER 608 HL] that
Information
Commissioners
arrive
at
administrative
decisions and do not decide litigations and therefore they
need not have judicial background, judicial experience and
judicial acumen. Mr. Ganesh next submitted that persons
who
have
been
Commissioners
and
appointed
Information
as
Chief
Information
Commissioners
under
Sections 12(5) and 15(5) of the Act, have been persons
without any eminence in public life.
He submitted that
20
mostly retired IAS Officers and IPS Officers without any
experience
in
administration
public
have
life
been
but
only
appointed
experience
as
in
Information
Commissioners. He submitted that in this review, the Court
should
issue
appropriate
directions
to
ensure
that
appointment of Chief information Commissioners and
Information Commissioners are made in accordance with
Sections 12(5) and 15(5) of the Act.
13.
Mr.
Prashant
Bhushan,
learned
senior
counsel
appearing for the interveners, Mr. Shailesh Gandhi and Mrs.
Aruna Roy, submitted that as the Information Commissions
do not perform judicial work, they need not be manned by
judicial officers and Justices of High Courts and Supreme
Court and, therefore, directions No.8 and 9 of the judgment
under review need to be deleted. He further submitted that
directions No.10 and 11 of the judgment under review
regarding the procedure to be followed for appointment of
Information Commissioners may not ensure transparency in
the matter of appointment of Information Commissioners.
He submitted that this Court in Centre for PIL and Another
v. Union of India & Another [(2011) 4 SCC] has laid down a
21
procedure in para 88 for selecting and appointing the
Central
Vigilance
Commissioner
and
Vigilance
Commissioners under Section 3 (3) of the Central Vigilance
Commission Act, 2003 and has laid down therein that the
empanelment of persons to be considered for appointment
of
Central
Vigilance
Commissioner
and
Vigilance
Commissioner shall be carried out on the basis of rational
criteria, which is to be reflected by recording of reasons
and/or
noting akin to reasons by the empanelling
authority. He submitted that similar procedure should be
followed for short listing persons for appointment as
Information Commissioners and some reasons should be
indicated as to why the person has been empanelled for
appointment as Information Commissioner.
He further
submitted that the direction No.8 in the judgment under
review that Information Commissioners at the respective
levels shall henceforth work in benches of two members and
one of them should be a judicial member would result in
very few Division Benches of the Information Commission
taking up matters and the working of the Information
Commission in dealing with matters will slow down.
He
22
submitted that instead legal training can be given to
Information Commissioners to decide matters involving
intricate questions of law.
14.
Learned counsel for the respondent- writ petitioner Mr.
Amit Sharma, on the other hand, supported the judgment
under review. According to him, this Court has rightly held
that
the
Information
Commission
functions
as
an
adjudicatory authority and decides issues relating to the
fundamental right of a citizen to be informed about the
Government policies and information. He submitted that to
ensure proper adjudication of the fundamental right to
information of every citizen, it is absolutely necessary that
an independent person who does not have a political agenda
is appointed as Information Commissioner.
He further
submitted that Information Commissioners also have to
adjudicate issues relating to right of privacy of the citizens
of India, which is part of their personal liberty under Article
21 of the Constitution and for this reason also a person with
judicial experience and training is best suited and therefore
this Court has rightly held that persons with judicial
experience and training and judicial acumen should be
23
preferred for appointment as Information Commissioners.
He finally submitted that it will be evident from Sections 7,
8, 9 and 11 of the Act that a lis between the parties will
have to be decided by the Central Public Information Officer
or State Public Information Officer and this Court has
rightly held in judgment under review that Information
Commissions which decide appeals under Section 20 of the
Act against the decisions of the Central Public Information
Officer or State Public Information Officer are akin to
courts. He referred to Section 18 of the Act to show that
Information Commissions have been vested with the powers
of a civil court and, therefore, are in the nature of courts
which have to be manned by judicial officers.
15.
Mr. Sharma vehemently argued that in the event this
Court holds in this review that the persons with judicial
experience
and
training
need
not
be
appointed
as
Information Commissioners, then the provisions of Section
12(5) and 15(5) of the Act have to be struck down as ultra
vires Article 14 of the Constitution. He cited the decision of
this Court in Indra Das v. State of Assam [(2011) 3 SCC
380] in which it has been held that ordinarily the literal rule
24
of interpretation while construing a statutory provision
should be followed, but where such interpretation makes
the provision unconstitutional it can be departed from and
the statute should be read down to make it constitutional.
He submitted that in the judgment under review, this Court
has saved the provisions of Section 12(5) and 15(5) of the
Act by reading down the said provisions.
16.
Mr. Sharma referred to the chart at page 40 of the writ
petition
to
show
qualifications
of
persons
appointed
equivalent to Information Commissioners in Australia,
Canada, Scotland, England and United States and argued
that they are required to obtain a degree in the field of law.
He cited the observations of this Court in the case of Union
of India v. R. Gandhi, President, Madras Bar Association
(supra) that the assumption that members of the civil
services will have the judicial experience or expertise in
company law to be appointed either as judicial member or
technical member is an erroneous assumption.
He
submitted that in that case, this Court therefore issued
directions that only High Court Judges or District Judges of
5 years experience or lawyers having practice of 10 years
25
can be considered for appointment as judicial members of
the National Company Law Tribunal. He also relied on the
decision of this Court in Pareena Swarup v. Union of India
[(2008) 14 SCC 107] in which this Court observed that while
creating new avenue of judicial forums, it is the duty of the
Government to see that they are not in breach of basic
constitutional
scheme
of
separation
of
powers
and
independence of judiciary and held that the provisions of
the Prevention of Money-Laundering Act, 2002 as enacted
may not ensure an independent judiciary to decide the
cases under the Act and accordingly directed the Union of
India to incorporate the proposed provisions to ensure
independence of judiciary.
Findings of the Court:
17.
Review of a judgment or order of this Court under
Article 137 of the Constitution is confined to only errors
apparent on the face of the record as provided in Order XL
Rule 1 of the Supreme Court Rules, 1966. A three Judge
Bench of this Court has held in Commissioner of Sales Tax,
J & K and Others v. Pine Chemicals Ltd. and Others [(1995) 1
SCC 58] that if a reasoning in the judgment under review is
26
at variance with the clear and simple language in a statute,
the judgment under review suffers from a manifest error of
law, an error apparent on the face of the record, and is
liable to be rectified. Hence, in these Review Petitions, we
have to decide whether the reasoning and directions in the
judgment under review is at variance with the clear and
simple language employed in the different provisions of the
Act and accordingly whether the judgment under review
suffers from manifest errors of law apparent on the face of
the record.
18.
As we have noticed, Sections 12(5) and 15(5) of the Act
provide
that
Chief
Information
Commissioner
and
Information Commissioners shall be persons of eminence in
public life with wide knowledge and experience in law,
science
and
technology,
social
service,
management,
journalism, mass media or administration and governance.
These provisions of the Act do not provide that the Chief
Information Commissioner and Information Commissioners
shall be persons having judicial experience, training and
acumen and yet this Court has held in the judgment under
review that for effectively performing the functions and
27
exercising the powers of the Information Commission, there
is a requirement of a judicial mind and therefore persons
eligible for appointment should preferably have judicial
background and possess judicial acumen and experience.
We may now examine the bare provisions of the Act,
whether this finding that there is requirement of a judicial
mind to discharge the functions of Information Commission
is an error apparent on the face of the record.
19.
Sections 18, 19 and 20 of the Act, which confer powers
on the Information Commission, are extracted hereinbelow:
“18. Powers and 'Functions of Information
Commissions.—(1) Subject to the provisions of
this Act, it shall be the duty of the Central
Information Commission or State Information
Commission, as the case may be, to receive
and inquire into a complaint from any
person,—
(a) who has been unable to submit a
request to a Central Public Information
Officer or State Public Information
Officer, as the case may be, either by
reason that no such officer has been
appointed under this Act, or because the
Central Assistant Public Information
Officer
or
State
Assistant
Public
Information Officer, as the case may be,
has refused to accept his or her
application for information or appeal
under this Act for forwarding the same to
the Central Public Information Officer or
28
State Public Information Officer or senior
officer specified in sub-section (1) of
section 19 or the Central Information
Commission or the State Information
Commission, as the case may be;
(b) who has been refused access to any
information requested under this Act;
(c) who has not been given a response to
a request for information or access to
information within the time limit specified
under this Act;
(d) who has been required to pay an
amount of fee which he or she considers
unreasonable;
(e) who believes that he or she has been
given incomplete, misleading or false
information under this Act; and
(f) in respect of any other matter relating
to requesting or obtaining access to
records under this Act.
(2) Where the Central Information Commission
or State Information Commission, as the case
may be, is satisfied that there are reasonable
grounds to inquire into the matter, it may
initiate an inquiry in respect thereof.
(3) The Central Information Commission or
State Information Commission, as the case
may be, shall, while inquiring into any matter
under this section, have the same powers as
are vested in a civil court while trying a suit
under the Code of Civil Procedure, 1908, in
respect of the following matters, namely:—
(a) summoning and enforcing the
attendance of persons and compel them
29
to give oral or written evidence on oath
and to produce the documents or
things;
(b)
requiring
the
discovery
inspection of documents;
and
(c) receiving evidence on affidavit;
(d) requisitioning any public record or
copies thereof from any court or office;
(e) issuing summons for examination of
witnesses or documents; and
(f) any other matter which may be
prescribed.
(4) Notwithstanding anything inconsistent
contained in any other Act of Parliament or
State Legislature, as the case may be, the
Central Information Commission or the State
Information Commission, as the case may be,
may, during the inquiry of any complaint
under this Act, examine any record to which
this Act applies which is under the control of
the public authority, and no such record may
be withheld from it on any grounds.
19. Appeal.—(1) Any person who, does not
receive a decision within the time specified in
sub-section (1) or clause (a) of sub-section (3)
of section 7, or is aggrieved by a decision of the
Central Public Information Officer or State
Public Information Officer, as the case may be,
may within thirty days from the expiry of such
period or from the receipt of such a decision
prefer an appeal to such officer who is senior
in rank to the Central Public Information
Officer or State Public Information Officer as
the case may be, in each public authority:
30
Provided that such officer may admit the
appeal after the expiry of the period of thirty
days if he or she is satisfied that the appellant
was prevented by sufficient cause from filing
the appeal in time.
(2) Where an appeal is preferred against an
order made by a Central Public Information
Officer or a State Public Information Officer, as
the case may be, under section 11 to disclose
third party information, the appeal by the
concerned third party shall be made within
thirty days from the date of the order.
(3) A second appeal against the decision under
sub-section (1) shall lie within ninety days
from the date on which the decision should
have been made or was actually received, with
the Central Information Commission or the
State Information Commission:
Provided
that
the
Central
Information
Commission
or
the
State
Information
Commission, as the case may be, may admit
the appeal after the expiry of the period of
ninety days if it is satisfied that the appellant
was prevented by sufficient cause from filing
the appeal in time.
(4) If the decision of the Central Public
Information Officer or State Public Information
Officer, as the case may be, against which an
appeal is preferred relates to information of a
third
party,
the
Central
Information
Commission or State Information Commission,
as the case may be, shall give a reasonable
opportunity of being heard to that third party.
(5) In any appeal proceedings, the onus to
prove that a denial of a request was justified
shall be on the Central Public Information
31
Officer or State Public Information Officer, as
the case may be, who denied the request.
(6) An appeal under sub-section (1) or sub-
section (2) shall be disposed of within thirty
days of the receipt of the appeal or within such
extended period not exceeding a total of forty-
five days from the date of filing thereof, as the
case may be, for reasons to be recorded in
writing.
(7) The decision of the Central Information
Commission or State Information Commission,
as the case may be, shall be binding.
(8) In its decision, the Central Information
Commission or State Information Commission,
as the case may be, has the power to—
(a) require the public authority to take
any such steps as may be necessary to
secure compliance with the provisions of
this Act, including—
(i)
by
providing
access
to
information, if so requested, in a
particular form;
(ii) by appointing a Central Public
Information Officer or State Public
Information Officer, as the case may
be;
(iii)
by
information
information;
publishing
certain
or
categories
of
(iv) by making necessary changes to
its practices in relation to the
maintenance,
management
and
destruction of records;
32
(v) by enhancing the provision of
training on the right to information
for its officials;
(vi) by providing it with an annual
report in compliance with clause (b)
of sub-section (1) of section 4;
(b) require the public authority to
compensate the complainant for any loss
or other detriment suffered;
(c) impose any of the penalties provided
under this Act;
(d) reject the application.
(9) The Central Information Commission or
State Information Commission, as the case
may be, shall give notice of its decision,
including any right of appeal, to the
complainant and the public authority.
(10) The Central Information Commission or
State Information Commission, as the case
may be, shall decide the appeal in accordance
with such procedure as may be prescribed.
20.
Penalties.—(1)
Where the Central
Information
Commission
or
the
State
Information Commission, as the case may be,
at the time of deciding any complaint or appeal
is of the opinion that the Central Public
Information Officer or the State Public
Information Officer, as the case may be, has,
without any reasonable cause, refused to
receive an application for information or has
not furnished information within the time
specified under sub-section (1) of section 7 or
malafidely denied the request for information
or knowingly given incorrect, incomplete or
misleading
information
or
destroyed
33
information which was the subject of the
request or, obstructed in any manner in
furnishing the information, it shall impose a
penalty of two hundred and fifty rupees each
day till application is received or information is
furnished, so however, the total amount of
such penalty shall not exceed twenty-five
thousand rupees:
Provided that the Central Public Information
Officer or the State Public Information Officer,
as the case may be, shall be given a reasonable
opportunity of being heard before any penalty
is imposed on him:
Provided further that the burden of proving
that he acted reasonably and diligently shall be
on the Central Public Information Officer or the
State Public Information Officer, as the case
may be.
(2) Where the Central Information Commission
or the State Information Commission, as the
case may be, at the time of deciding any
complaint or appeal is of the opinion that the
Central Public Information Officer or the State
Public Information Officer, as the case may be,
has, without any reasonable cause and
persistently, failed to receive an application for
information or has not furnished information
within the time specified under sub-section (1)
of section 7 or malafidely denied the request
for information or knowingly given incorrect,
incomplete or misleading information or
destroyed information which was the subject of
the request or obstructed in any manner in
furnishing the information, it shall recommend
for disciplinary action against the Central
Public Information Officer or the State Public
Information Officer, as the case may be, under
the service rules applicable to him.
34
20.
It will be clear from the plain and simple language of
Sections 18, 19 and 20 of the Act that, under Section 18 the
Information Commission has the power and function to
receive and inquire into a complaint from any person who is
not able to secure information from a public authority,
under Section 19 it decides appeals against the decisions of
the Central Public Information Officer or the State Public
Information Officer relating to information sought by a
person, and under Section 20 it can impose a penalty only
for the purpose of ensuring that the correct information is
furnished to a person seeking information from a public
authority.
Hence,
the
functions
of
the
Information
Commissions are limited to ensuring that a person who has
sought information from a public authority in accordance
with his right to information conferred under Section 3 of
the Act is not denied such information except in accordance
with the provisions of the Act. Section 2(j) defines “Right to
Information” conferred on all citizens under Section 3 of the
Act to mean the right to information accessible under the
Act, “which is held by or under the control of any public
authority”.
While deciding whether a citizen should or
35
should not get a particular information “which is held by or
under the control of any public authority”, the Information
Commission does not decide a dispute between two or more
parties concerning their legal rights other than their right to
get information in possession of a public authority.
This
function obviously is not a judicial function, but an
administrative function conferred by the Act on the
Information Commissions.
21.
In the judgment under review, this Court after
examining the provisions of the Act, however, has held that
there is a lis to be decided by the Information Commission
inasmuch as the request of a party seeking information is to
be allowed or to be disallowed and hence requires a judicial
mind.
But we find that the lis that the Information
Commission has to decide was only with regard to the
information in possession of a public authority and the
Information Commission was required to decide whether the
information could be given to the person asking for it or
should be withheld in public interest or any other interest
protected by the provisions of the Act.
The Information
Commission, therefore, while deciding this lis does not
36
really
perform
a
judicial
function,
but
performs
an
administrative function in accordance with the provisions of
the Act.
As has been held by Lord Greene, M.R. in B.
Johnson & Co. (Builders), Ltd. v. Minister of Health (supra):
“Lis, of course, implies the conception of an
issue joined between two parties.
The
decision of a lis, in the ordinary use of legal
language, is the decision of that issue. The
What is described here as a lis – the raising
of the objections to the order, the
consideration of the matters so raised and
the representations of the local authority
and the objectors – is merely a stage in the
process of arriving at an administrative
decision. It is a stage which the courts
have always said requires a certain method
of approach and method of conduct, but it
is not a lis inter partes, and for the simple
reason that the local authority and the
objectors are not parties to anything that
resembles litigation.”
22.
after
In the judgment under review, this Court has also held
examining
the
provisions
of
the
Act
that
the
Information Commission decides matters which may affect
the rights of third parties and hence there is requirement of
judicial mind. For example, under Section 8(1)(d) of the Act,
there is no obligation to furnish information including
commercial
confidence,
trade
secrets,
or
intellectual
37
property,
the
disclosure
of
which
would
harm
the
competitive position of the third party, unless the competent
authority is satisfied that the larger public interest warrants
the disclosure of such information. Similarly, the right to
privacy of a third party, which is part of his personal liberty
under Article 21 of the Constitution, may be breached if a
particular kind of information, purely of personal nature
may be directed to be furnished by the concerned authority.
To protect the rights of third parties, Section 11 of the Act
provides that where a Central Public Information Officer or
a State Public Information Officer, as the case may be,
intends to disclose any information or record or part thereof,
may on a request made under the Act, which relates to or
has been supplied by a third party and has been treated as
confidential by that third party, a written notice will have to
be given to such third party inviting such party to make a
submission in writing or orally, regarding whether the
information should be disclosed, and such submission of
the third party can be kept in view while taking a decision
about disclosure of the information. The decision taken by
the Central Public Information Officer or the State Public
38
Information Officer, as the case may be, under Section 11 of
the Act is appealable under Section 19 of the Act before the
Information
Commission
and
when
the
Information
Commission decides such an appeal, it decides only
whether or not the information should be furnished to the
citizen in view of the objection of the third party. Here also
the Information Commission does not decide the rights of a
third party but only whether the information which is held
by or under the control of a public authority in relation to or
supplied by that third party could be furnished to a citizen
under the provisions of the Act.
Commission
discharges
Hence, the Information
administrative
functions,
not
judicial functions.
23.
While
performing
these
administrative
functions,
however, the Information Commissions are required to act
in a fair and just manner following the procedure laid down
in Sections 18, 19 and 20 of the Act.
But this does not
mean that the Information Commissioners are like Judges
or Justices who must have judicial experience, training and
acumen.
In Harinagar Sugar Mills Ltd. v. Shyam Sunder
39
Jhunjhunwala
and
Others
(supra),
Hidayatullah,
J,
explained:
“33.
In my opinion, a Court in 'the strict
sense is a tribunal which is a part of the
ordinary hierarchy of Courts of Civil
Judicature maintained by the State under its
constitution to exercise the judicial power of
the State. These Courts perform all the judicial
functions of the State except those that are
excluded by law from their jurisdiction. The
word "judicial", be it noted, is itself capable of
two meanings. They were admirably stated by
Lopes, L.J. in Royal Aquarium and Summer
and Winter Garden Society v. Parkinson (1892)
1 QB 431(452) in these words:
"The word 'judicial' has two
meanings. It may refer to the
discharge of duties exercisable by a
judge or by justices in court, or to
administrative duties which need
not be performed in court, but in
respect of which it is necessary to
bring to bear a judicial mind - that
is, a mind to determine what is fair
and just in respect of the matters
under consideration."
That an officer is required to decide matters
before him "judicially" in the second sense does
not make him a Court or even a tribunal,
because that only establishes that he is
following a standard of conduct, and is free
from bias or interest.”
24.
Once
the
Court
is
clear
that
Information
Commissions do not exercise judicial powers and actually
40
discharge administrative functions, the Court cannot rely
on the constitutional principles of separation of powers
and independence of judiciary to direct that Information
Commissions must be manned by persons with judicial
training, experience and acumen or former Judges of the
High Court or the Supreme Court.
The principles of
separation of powers and independence of judiciary
embodied in our Constitution no doubt require that
judicial power should be exercised by persons with
judicial experience, training and acumen.
For this
reason, when judicial powers vested in the High Court
were sought to be transferred to tribunals or judicial
powers are vested in tribunals by an Act of the
legislature, this Court has insisted that such tribunals be
manned by persons with judicial experience and training,
such as High Court Judges and District Judges of some
experience.
Accordingly, when the powers of the High
Court under Companies Act, 1956 were sought to be
transferred to Tribunals by the Companies (Amendment)
Act, 2002, a Constitution Bench of this Court has held in
41
Union of India v. R. Gandhi, President Madras Bar
Association (supra):
“When
the
legislature
proposes
to
substitute a tribunal in place of the High
Court to exercise the jurisdiction which the
High Court is exercising, it goes without
saying that the standards expected from
the judicial members of the Tribunal and
standards applied for appointing such
members, should be as nearly as possible
as applicable to High Court Judges, which
are apart from a basic degree in law, rich
experience in the practice of law,
independent outlook, integrity, character
and good reputation. It is also implied that
only men of standing who have special
expertise in the field to which the Tribunal
relates, will be eligible for appointment as
technical members. Therefore, only persons
with a judicial background, that is, those
who have been or are Judges of the High
Court and lawyers with the prescribed
experience,
who
are
eligible
for
appointment as High Court Judges, can be
considered for appointment as judicial
members.”
In Pareena Swarup v. Union of India (supra), having found
that judicial powers were to be exercised by the Appellate
Tribunals under the Prevention of Money- Laundering
Act,
2002
this
Court
held
that
to
protect
the
constitutional guarantee of independence of judiciary,
persons who are qualified to be judges be appointed as
42
members of the Appellate Tribunal. But, as we have
seen, the
the
powers
exercised
by
Information
Commissions under the Act were not earlier vested in the
High Court or subordinate court or any other court and
are not in any case judicial powers and therefore the
Legislature need not provide for appointment of judicial
members in the Information Commissions.
25.
Perhaps for this reason, Parliament has not
provided in Sections 12(5) and 15(5) of the Act for
appointment of persons with judicial experience and
acumen and retired Judges of the High Court as
Information Commissioners and retired Judges of the
Supreme Court and Chief Justice of the High Court as
Chief Information Commissioner and any direction by
this Court for appointment of persons with judicial
experience,
Information
training
and
Commissioners
acumen
and
and
Chief
Judges
as
Information
Commissioner would amount to encroachment in the
field of legislation.
To quote from the judgment of the
seven-Judge Bench in P. Ramachandra Rao v. State of
Karnataka (supra):
43
“Courts can declare the law, they can
interpret the law, they can remove obvious
lacunae and fill the gaps but they cannot
entrench upon in the field of legislation
properly meant for the legislature.”
26.
Moreover, Sections 12(5) and 15(5) of the Act
while providing that Chief Information Commissioner and
Information
eminence
in
Commissioners
public
life
shall
with
be
persons
with
wide knowledge and
experience in law, science and technology, social service,
management, journalism, mass media or administration
and governance, also does not prescribe any basic
qualification which such persons must have in the
respective fields in which they work.
In the judgment
under review, however, this Court has “read into”
Sections 12(5) and 15(5) of the Act missing words and
held that such persons must have a basic degree in the
respective field as otherwise Sections 12(5) and 15(5) of
the Act are bound to offend the doctrine of equality. This
“reading into” the provisions of Sections 12(5) and 15(5)
of the Act, words which Parliament has not intended is
contrary to the principles of statutory interpretation
recognised by this Court. In Union of India and Another v.
44
Deoki Nandan Aggarwal (supra) this Court has held that
the court could not correct or make up for any
deficiencies or omissions in the language of the statute.
V. Ramaswami, J. writing the judgment on behalf of a
three Judge Bench says:
“It is not the duty of the Court either to
enlarge the scope of the legislation or the
intention of the legislature when the
language of the provision is plain and
unambiguous. The Court cannot rewrite,
recast or reframe the legislation for the very
good reason that it has no power to
legislate. The power to legislate has not
been conferred on the courts. The Court
cannot add words to a statute or read
words into it which are not there.
Assuming there is a defect or an omission
in the words used by the legislature the
Court could not go to its aid to correct or
make up the deficiency. Courts shall decide
what the law is and not what it should be.
The Court of course adopts a construction
which will carry out the obvious intention
of the legislature but could not legislate
itself. But to invoke judicial activism to set
at
naught
legislative
judgment
is
subversive of the constitutional harmony
and comity of instrumentalities.”
27.
In the judgment under review, this Court has also
held that if Sections 12(5) and 15(5) of the Act are not
read in the manner suggested in the judgment, these
Sections would offend the doctrine of equality.
But on
45
reading Sections 12(5) and 15(5) of the Act, we find that it
does not discriminate against any person in the matter of
appointment as Chief Information Commissioner and
Information Commissioners and so long as one is a
person of eminence in public life with wide knowledge
and experience in law, science and technology, social
service,
management,
journalism,
mass
media
or
administration and governance, he is eligible to be
considered
for
appointment
as
Chief
Commissioner or Information Commissioner.
Information
However,
to ensure that the equality clause in Article 14 is not
offended, the persons to be considered for appointment
as
Chief
Information
Commissioner
or
Information
Commissioner should be from different fields, namely,
law, science and technology, social service, management,
journalism,
mass
media
or
administration
and
governance and not just from one field.
28.
Sections 12(6) and 15(6) of the Act, however,
provide that the Chief Information Commissioner or an
Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or
46
Union Territory, as the case may be, or hold any other
office of profit or connected with any political party or
carry on any business or pursue any profession. There
could be two interpretations of Sections 12(6) and 15(6) of
the Act. One interpretation could be that a Member of
Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or a person holding
any other office of profit or connected with any political
party or carrying on any business or pursuing any
profession will not be eligible to be considered for
appointment as a Chief Information Commissioner and
Information Commissioner. If this interpretation is given
to Sections 12(6) and 15(6) of the Act, then it will
obviously offend the equality clause in Article 14 of the
Constitution as it debars such persons from being
considered
for
appointment
as
Chief
Information
Commissioner and Information Commissioners.
The
second interpretation of Sections 12(6) and 15(6) of the
Act could be that once a person is appointed as a Chief
Information Commissioner or Information Commissioner,
he cannot continue to be a Member of Parliament or
47
Member of the Legislature of any State or Union Territory,
as the case may be, or hold any other office of profit or
remain connected with any political party or carry on any
business or pursue any profession. If this interpretation
is given to Sections 12(6) and 15(6) of the Act then the
interpretation would effectuate the object of the Act
inasmuch
as
Chief
Information
Commissioner
and
Information Commissioners would be able to perform
their functions in the Information Commission without
being influenced by their political, business, professional
or other interests.
It is this second interpretation of
Sections 12(6) and 15(6) of the Act which has been rightly
given in the judgment under review and Sections 12(6)
and 15(6) of the Act have been held as not to be violative
of Article 14 of the Constitution. Therefore, the argument
of Mr. Sharma, learned counsel for the respondent-writ
petitioner, that if we do not read Sections 12(5) and 15(5)
of the Act in the manner suggested in the judgment
under review, the provisions of Sections 12(5) and 15(5)
of the Act would be ultra vires the Article 14 of the
Constitution, is misconceived.
48
29.
In the judgment under review, in direction no.5,
the Central Government and/or the competent authority
have been directed to frame all practice and procedure
related rules to make working of the Information
Commissions effective and in consonance with the basic
rule of law and with particular reference to Sections 27
and 28 of the Act within a period of six months. Sections
27(1) and 28(1) of the Act are extracted hereinbelow:
“27. Power to make rules by appropriate
The
appropriate
Government.—(1)
Government may, by notification in the
Official Gazette, make rules to carry out the
provisions of this Act.
28. Power to make rules by competent
authority.—(1) The competent authority
may, by notification in the Official Gazette,
make rules to carry out the provisions of
this Act.”
The use of word “may” in Sections 27 and 28 of the Act
make it clear that Parliament has left it to the discretion of
the rule making authority to make rules to carry out the
provisions of the Act. Hence, no mandamus can be issued
to the rule making authority to make the rules either within
a specific time or in a particular manner. If, however, the
49
rules are made by the rule making authority and the rules
are not in accordance with the provisions of the Act, the
Court can strike down such rules as ultra vires the Act, but
the Court cannot direct the rule making authority to make
the rules where the Legislature confers discretion on the
rule making authority to make rules.
In the judgment
under review, therefore, this Court made a patent error in
directing the rule making authority to make rules within a
period of six months.
30.
Nonetheless, the selection and appointment of Chief
Information Commissioner and Information Commissioners
has not been left entirely to the discretion of the Central
Government and the State Government under Sections 12
and 15 of the Act. Sections 12(3) and 15(3) provide that the
Chief
Information
Commissioner
and
Information
Commissioners shall be appointed by the President or the
Governor, as the case may be, on the recommendation of
the Committee named therein.
provide
that
Chief
Sections 12(5) and 15(5)
Information
Commissioner
and
Information Commissioners have to be persons of eminence
in public life with wide knowledge and experience in the
50
different fields mentioned therein, namely, law, science and
technology, social service, management, journalism, mass
media or administration and governance. Thus, the basic
requirement for a person to be appointed as a Chief
Information Commissioner or Information Commissioner is
that he should be a person of eminence in public life with
wide knowledge and experience in a particular field.
Parliament has insisted on this basic requirement having
regard
to
the
functions
that
the
Chief
Information
Commissioner and Information Commissioners are required
to perform under the Act. As the preamble of the Act states,
democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also
requires that corruption is contained and Governments and
their
instrumentalities
are
held
accountable
to
the
governed. The preamble of the Act, however, cautions that
revelation of information in actual practice is likely to
conflict with other public interests including efficient
operations of the Governments, optimum use of limited
fiscal resources and the preservation of confidentiality of
sensitive information.
Moreover, under the Act, a citizen
51
has the right to information held or under the control of
public authority and hence Information Commissioners are
to ensure that the right to privacy of person protected under
Article 21 of the Constitution is not affected by furnishing
any particular information.
31.
Unfortunately, experience over the years has shown
that the orders passed by Information Commissions have at
times gone beyond the provisions of the Act and that
Information Commissions have not been able to harmonise
the conflicting interests indicated in the preamble and other
provisions of the Act. The reasons for this experience about
the functioning of the Information Commissions could be
either that persons who do not answer the criteria
mentioned in Sections 12(5) and 15(5) have been appointed
as
Chief
Information
Commissioner
or
Information
Commissioners or that the persons appointed answer the
criteria laid down in Sections 12(5) and 15(5) of the Act but
they do not have the required mind to balance the interests
indicated in the Act and to restrain themselves from acting
beyond the provisions of the Act.
This experience of the
functioning of the Information Commissions prompted this
52
Court to issue the directions in the judgment under review
to
appoint
judicial
members
in
the
Information
Commissions. But it is for Parliament to consider whether
appointment
Commissions
of
judicial
will
members
improve
the
in
the
Information
functioning
of
the
Information Commissions and as Sections 12(5) and 15(5)
of the Act do not provide for appointment of judicial
members in the Information Commissions, this direction
was an apparent error. Sections 12(5) and 15(5) of the Act,
however, provide for appointment of persons with wide
knowledge and experience in law.
We hope that persons
with wide knowledge and experience in law will be
appointed in the Information Commissions at the Centre
and the States.
Accordingly, wherever Chief Information
Commissioner is of the opinion that intricate questions of
law will have to be decided in a matter coming before the
Information Commissions, he will ensure that the matter is
heard by an Information Commissioner who has such
knowledge and experience in law.
32.
Under Order XL of the Supreme Court Rules, 1966
this Court can review its judgment or order on the ground
53
of error apparent on the face of record and on an
application for review can reverse or modify its decision on
the ground of mistake of law or fact.
As the judgment
under review suffers from mistake of law, we allow the
Review Petitions, recall the directions and declarations in
the judgment under review and dispose of Writ Petition (C)
No. 210 of 2012 with the following declarations and
directions:
(i) We declare that Sections 12(5) and 15(5) of the Act are
not ultra vires the Constitution.
(ii) We declare that Sections 12(6) and 15(6) of the Act do
not debar a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case
may be, or a person holding any other office of profit or
connected with any political party or carrying on any
business or pursuing any profession from being
considered for appointment as Chief Information
Commissioner or Information Commissioner, but after
such
person
is
appointed
as
Chief
Information
Commissioner or Information Commissioner, he has to
discontinue as
Member of Parliament or Member of
the Legislature of any State or Union Territory, or
discontinue to hold any other office of profit or remain
54
connected with any political party or carry on any
business or pursue any profession during the period
he functions as Chief Information Commissioner or
Information Commissioner.
(iii) We direct that only persons of eminence in public life
with wide knowledge and experience in the fields
mentioned in Sections 12(5) and 15(5) of the Act be
considered
for
appointment
as
Information
Commissioner and Chief Information Commissioner.
(iv) We further direct that persons of eminence in public
life with wide knowledge and experience in all the
fields mentioned in Sections 12(5) and 15(5) of the Act,
namely, law, science and technology, social service,
management,
journalism,
mass
media
or
administration and governance, be considered by the
Committees under Sections 12(3) and 15(3) of the Act
for appointment as Chief Information Commissioner or
Information Commissioners.
(v) We further direct that the Committees under Sections
12(3)
and
15(3)
of
the
Act
while
making
recommendations to the President or to the Governor,
as the case may be, for appointment of Chief
Information
Commissioner
and
Information
Commissioners must mention against the name of
each candidate recommended, the facts to indicate his
55
eminence in public life, his knowledge in the particular
field and his experience in the particular field and
these facts must be accessible to the citizens as part of
their right to information under the Act after the
appointment is made.
(vi) We
also
direct
that
wherever
Chief
Information
Commissioner is of the opinion that intricate questions
of law will have to be decided in a matter coming up
before the Information Commission, he will ensure
that
the
matter
Commissioner
is
who
heard
has
by
wide
an
Information
knowledge
and
experience in the field of law.
33.
There shall be no order as to costs.
.............................J.
(A. K. Patnaik)
.............................J.
(A. K. Sikri)
New Delhi,
September 03, 2013.
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