To,
The Chief Justice of India, The President of India, The Prime Minister of India.
Honorable Sir,
The Supreme Court has passed a decision as on 13th of September, 2012 in WP(C) 210 of 2012, Namit Sharma v/s. Union of India.
If the order & directions given by the Honorable Judges in the said Supreme Court Judgment were to be implemented, then, Senior Retired High Court & Supreme Court Judges, post-retirement, in their new role as Information Commissioners, would be working for Quasi-Judicial Courts which is below the rank of Judicial Courts, and as such their decisions would be subject to the scrutiny & appellate review of the Sitting Judges of Judicial Courts, which will result into violation of the provisions of Article 124(7) & Article 220 of the Constitution of India, as follows:
1. Please find quoted below the provisions of the Constitution of India as well as the relevant points from the order & directions of the said Supreme Court Judgment (emphasis added):
> Article 220 of the Constitution of India lays down that:
"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."
2. To summarize the aforesaid law points:
> Retired High Court Judges should be preferred as Information Commissioners (Point No. 8 of the Order of the said SC Judgment).
> 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 (Point No. 8 of the Order of the said SC Judgment).
A Quasi-Judicial Court (body), as the name itself suggests, is a court which is below a Judicial Court of a Government.
As such, any decision given by a Quasi-Judicial Court can always be subjected to the scrutiny and appellate review of a Judicial Court of a Government.
4. Thus, the order & directions of the said Supreme Court judgment results into violations of the provision of Constitution of India:
A Quasi-Judicial Court (body) is below a Judicial Court of a Government.
Therefore, if the said SC judgment were to be implemented, then, Senior Retired High Court & Supreme Court judges in their role as Information Commissioners, would be working for Quasi-Judicial Courts which is below the rank of Judicial Courts, and as such their decisions would be subject to the scrutiny & appellate review of the Sitting Judges of a High Court & the Supreme Court.
This, would very clearly violate the intent of the provisions of Article 124(7) & 220 of the Constitution of India, which EXPLICITLY lays down that no person who has held office as a Judge of the Supreme Court and likewise no person who has held office as a permanent Judge of a High Court shall plead or act in any Court (leave alone a quasi-judicial court) or before any Authority in India.
5. The following scenario is likely to emerge in the day-to-day functioning of Information Commissions constituted under section 12(1) & 15(1) of the Right to Information Act, 2005:
Given the rising popularity of the Right to Information Act, 2005, quite a few decisions of Information Commissions may be subjected to an appellate review of the Judicial Courts.
Moreover, it may also be a case, where a Sitting Judge may not want to offend a Senior Retired Judge by deciding a case differently in an appellate review, and as such, there is a possibility of an element of subjectivity creeping into the review proceedings.
And so, even though an appellate review may have been an absolutely just & fair one, it would still leave a possible room for right & reasonable-minded people to go away thinking that a Judge may have been biased.
As Lord Denning would have put it in Metropolitan Properties Co (FGC) Ltd v. Lannon [I9691 1 Q.B. 577: "The court will not inquire whether he did in fact, favour one side unfairly. Suffice in that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased'.
Our forefathers envisaged this possibility and therefore very explicitly provided for it in Article 124(7) & 220 of the Constitution of India.
The Consumer Protection Act, 1986 in Section 20(1):
"20. (1) The National Commission shall consist of,-
(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President."
The Human Rights Act, 1993 in Section 3:
"3. (2) The Commission shall consist of-
(a) A Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme Court;"
I hereby kindly request you to do the needful in the interest of justice & uphold the sanctity of the Constitution of India.
Thanking you,
Yours truly,
Sunil Ahya.
Postscript:
It is not a question of human egos here, but it is simply a matter of self-respect and a well established protocol amongst human beings.
Else, what was the need for the Constitution of India to explicitly provide for it under Article 124(7) & 220 ?
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