To,
The Chief Justice of India, The President of India, The Prime Minister of India.
Honorable Sir,
The Supreme Court has passed a decision as on 13th of September, 2012
in WP(C) 210 of 2012, Namit Sharma v/s. Union of India.
If the order & directions given by the Honorable Judges in the said
Supreme Court Judgment were to be implemented, then, Senior Retired
High Court & Supreme Court Judges, post-retirement, in their new role
as Information Commissioners, would be working for Quasi-Judicial
Courts which is below the rank of Judicial Courts, and as such their
decisions would be subject to the scrutiny & appellate review of the
Sitting Judges of Judicial Courts, which will result into violation of
the provisions of Article 124(7) & Article 220 of the Constitution of
India, as follows:
1. PLEASE FIND QUOTED BELOW THE PROVISIONS OF THE CONSTITUTION OF
INDIA AS WELL AS THE RELEVANT POINTS FROM THE ORDER & DIRECTIONS OF
THE SAID SUPREME COURT JUDGMENT (EMPHASIS ADDED):
> Article 124 (7) of the Constitution of India lays down that:
"No person who has held office as a Judge of the Supreme Court shall
plead or act in any court or before any authority within the territory
of India."
> Article 220 of the Constitution of India lays down that:
"No person who, after the commencement of this Constitution, has held
office as a permanent Judge of a High Court shall plead or act in any
court or before any authority in India except the Supreme Court and
the other High Courts."
> Point No. 6, Page No. 103 of the Order & Directions of the said Supreme Court Judgment:
"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."
(Thus, the said SC judgment establishes an "Information Commission" as
a "quasi-judicial court")
> Point No. 8, Page No. 104, of the Order & Directions of the said Supreme Court Judgment (relevant portion underlined):
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.
2. TO SUMMARIZE THE AFORESAID LAW POINTS:
AS PER THE ORDER & DIRECTIONS OF THE SAID SUPREME COURT JUDGMENT:
> An Information Commission has been clearly established as a Quasi-Judicial Court (Point No. 6 of the said SC Judgment).
> Retired High Court Judges should be preferred as Information Commissioners (Point No. 8 of the Order of the said SC Judgment).
> Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India (Point No. 8 of the Order of the said SC Judgment).
AS PER THE CONSTITUTION OF INDIA:
Article 124(7) very clearly & EXPLICITLY lays down that, no person who
has held office as a Judge of the Supreme Court shall plead or act in
any court or before any authority within the territory of India.
Likewise, Article 220 very clearly & EXPLICITLY lays down that, no
person who has held office as a permanent Judge of a High Court shall
plead or act in any court or before any authority in India except the
Supreme Court and the other High Courts.
3. HIERARCHICAL POSITIONS OF A QUASI-JUDICIAL COURT VIZ-A-VIZ A
JUDICIAL COURT OF THE GOVERNMENT:
A Quasi-Judicial Court (body), as the name itself suggests, is a court
which is below a Judicial Court of a Government.
As such, any decision given by a Quasi-Judicial Court can always be
subjected to the scrutiny and appellate review of a Judicial Court of
a Government.
4. THUS, THE ORDER & DIRECTIONS OF THE SAID SUPREME COURT JUDGMENT
RESULTS INTO VIOLATIONS OF THE PROVISION OF CONSTITUTION OF INDIA:
Now, Given that,
Information Commissions have been very clearly established as
Quasi-Judicial Courts by the said Supreme Court judgment.
A Quasi-Judicial Court (body) is below a Judicial Court of a Government.
Any decision given by an Quasi-Judicial Court (i.e. Information
Commission) can always be subjected to the scrutiny and appellate
review of a Judicial Court.
Therefore, if the said SC judgment were to be implemented, then,
Senior Retired High Court & Supreme Court judges in their role as
Information Commissioners, would be working for Quasi-Judicial Courts
which is below the rank of Judicial Courts, and as such their
decisions would be subject to the scrutiny & appellate review of the
Sitting Judges of a High Court & the Supreme Court.
This, would very clearly violate the intent of the provisions of
Article 124(7) & 220 of the Constitution of India, which EXPLICITLY
lays down that no person who has held office as a Judge of the Supreme
Court and likewise no person who has held office as a permanent Judge
of a High Court shall plead or act in any Court (leave alone a
quasi-judicial court) or before any Authority in India.
5. THE FOLLOWING SCENARIO IS LIKELY TO EMERGE IN THE DAY-TO-DAY
FUNCTIONING OF INFORMATION COMMISSIONS CONSTITUTED UNDER SECTION 12(1)
& 15(1) OF THE RIGHT TO INFORMATION ACT, 2005:
Given the rising popularity of the Right to Information Act, 2005,
quite a few decisions of Information Commissions may be subjected to
an appellate review of the Judicial Courts.
Thereby, creating embarrassing situations for the Retired High Court &
Supreme Court Judges, wherein their judgments may quite regularly get
subjected to an appellate review by Sitting Judges.
Moreover, it may also be a case, where a Sitting Judge may not want to
offend a Senior Retired Judge by deciding a case differently in an
appellate review, and as such, there is a possibility of an element of
subjectivity creeping into the review proceedings.
And so, even though an appellate review may have been an absolutely
just & fair one, it would still leave a possible room for right &
reasonable-minded people to go away thinking that a Judge may have
been biased.
As Lord Denning would have put it in Metropolitan Properties Co (FGC)
Ltd v. Lannon [I9691 1 Q.B. 577: "The court will not inquire whether
he did in fact, favour one side unfairly. Suffice in that reasonable
people might think he did. The reason is plain enough. Justice must be
rooted in confidence: and confidence is destroyed when right-minded
people go away thinking: 'The judge was biased'.
Our forefathers envisaged this possibility and therefore very
explicitly provided for it in Article 124(7) & 220 of the Constitution
of India.
6. I WOULD TAKE THIS OPPORTUNITY TO BRING TO YOUR KIND NOTICE, SIMILAR
EXISTING VIOLATIONS OF THE CONSTITUTION OF INDIA, WHICH ALSO NEEDS TO
BE EXAMINED & SET RIGHT, FOR THE SAME REASONS THAT HAVE BEEN MENTIONED
HEREIN ABOVE:
The Consumer Protection Act, 1986 in Section 20(1):
"20. (1) The National Commission shall consist of,-
(a) a person who is or has been a Judge of the Supreme Court, to be
appointed by the Central Government, who shall be its President."
The Human Rights Act, 1993 in Section 3:
"3. (2) The Commission shall consist of-
(a) A Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme Court;"
7. I hereby kindly request you to do the needful in the interest of
justice & uphold the sanctity of the Constitution of India.
Thanking you,
Yours truly,
Sunil Ahya.
POSTSCRIPT:
If a parallel analogy were to be examined for any other profession
that is being practiced by human beings, the conclusion beyond any
doubt would remain the same, for example, can a Police Commissioner
take up the job of an Inspector, a Sub-Inspector or a Constable,
post-retirement ?
It is not a question of human egos here, but it is simply a matter of
self-respect and a well established protocol amongst human beings.
Else, what was the need for the Constitution of India to explicitly
provide for it under Article 124(7) & 220 ?
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