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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
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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
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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
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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
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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
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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 :
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(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
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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.
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(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
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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
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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
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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)
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(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)
(c) That the law contravened any of the
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
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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.
(c) 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.
(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
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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.
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(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;
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(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;
(c) that it must be presumed that the
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."
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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
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& 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
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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
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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.
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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
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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
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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
register as relates to any outlet or effluent from any land or
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
25
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
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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
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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
28
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
29
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)
30
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
31
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
32
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
33
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
34
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
35
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.
36
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
37
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
38
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,
39
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
40
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
41
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
42
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
43
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?
44
(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
45
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
46
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.
47
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
48
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
49
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.
50
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
51
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
52
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;
53
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
54
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
55
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.
56
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
57
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
58
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
59
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
60
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
61
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.
62
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
63
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
64
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
65
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
66
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
67
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
68
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)]."
69
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
70
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.
71
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
72
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
73
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
74
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
75
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
76
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
77
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
78
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
79
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
80
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
81
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
82
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.
83
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
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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
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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
87
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.
88
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
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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
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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
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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
92
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
93
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
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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
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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
96
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
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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
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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
99
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
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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
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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.
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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
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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
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