Holding

Sections 12(5) and 15(5) of the Right to Information Act, 2005 are constitutionally valid when read to require a basic degree and relevant experience, and Sections 12(6) and 15(6) are to be read down to apply post‑appointment.

Summary

The petition challenged the constitutional validity of Sections 12(5), 12(6), 15(5) and 15(6) of the Right to Information Act, 2005, which prescribe the eligibility criteria for appointing Chief Information Commissioners and Information Commissioners. The petitioner argued that the provisions were vague, lacked specific qualifications, and violated Articles 14, 16 and 19 of the Constitution. The Court examined the principles of judicial review, the doctrine of reasonable classification under Article 14, and the need for a judicial mind in quasi‑judicial bodies. It held that Sections 12(5) and 15(5) are valid if read to include a basic degree in the relevant field together with experience, and that Sections 12(6) and 15(6) should be read down to apply only post‑appointment. The Court directed the legislature to amend the provisions and framed procedural rules for appointments, and ordered the Information Commissions to function in benches of a judicial and an expert member.

Issues considered

The constitutional validity of Sections 12(5) and 15(5) of the Right to Information Act, 2005 on the ground of violation of Article 14.
The constitutional validity of Sections 12(6) and 15(6) of the Right to Information Act, 2005 on the ground of vagueness, arbitrariness and lack of intelligible differentia.
Whether the expression ‘knowledge and experience’ in the said provisions must be interpreted to include a basic degree in the relevant field.
Whether the disqualification provisions of Sections 12(6) and 15(6) should be read down to apply only after appointment.
The appropriate procedure for appointment of members to the Central and State Information Commissions, including the role of the judiciary.

Legislation cited

Constitution of Indias. Article 13, s. Article 14, s. Article 16, s. Article 19(1)(a), s. Article 21, s. Article 226, s. Article 301, s. Article 32, s. Part III, s. Part IV
Indian Evidence Act, 1872s. 74, s. 75, s. 76, s. 77, s. 78
Right to Information Act, 2005s. 12(5), s. 12(6), s. 15(5), s. 15(6), s. 19, s. 20, s. 22, s. 23, s. 24, s. 27, s. 28, s. 2(h), s. 31, s. 4(2), s. 8
Water (Prevention and Control of Pollution) Act, 1974s. 25(6)

Subjects

Right to Information ActArticle 14quasi‑judicialeligibility criteriaknowledge and experiencereading downappointment procedureInformation Commissionconstitutional validity

Judgment

[2013] 13 S.C.R. 1

. .,1._ NAMIT SHARMA A
v.
UNION OF INDIA
(Writ Petition (Civil) No. 210 of 2012)
SEPTEMBER 13, 2012
8
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

',(
Right to Information Act, 2005:
'
ss. 12(5), (6) and 15(5), (6) - Appointment to the post of c
Chief Information Commissioners and Information
Commissioners at Central as well as State Level - Eligibility
criteria - Constitutional validity of - Held: The provisions of ss.
12(5) and 15(5) are constitutionally valid with a rider that the
court will have to read into the provisions that the expression
0
'knowledge and experience' would mean and include a basic
degree in the field and the experience gained thereafter - The
provisions ulss. 12(6) and 15(6) are vague, have no nexus with
the object of the Act and there is no intelligible differentia to
,support such classification - The court would, rather than
deq(aring ss. 12(6) and 15(6) unconstitutional, would read E
down\{hese provisions as having effect post-appointment
rather than pre-appointment - Direction to legislature to
.
'
-~ suitably amend the provisions and direction to competent
authority to frame rules - Constitution of India, 1950 - Art. 14.
F
Central/State Information Commissions - Character and
structure of - The Information Commissions are quasi-judicial
authorities or tribunals performing judicial functions - The
Commission is vested with civil as well as penal powers - It is
required to determine the disputes by striking a balance G
between right to privacy and right to information - The nature
of functions of the Commission involves an adjudicatory
process - It possesses the essential attributes and trappings
of a court - Once Information Commission is held to be
1 H
2 SUPREME COURT REPORTS [2013] 13 S.C.R.

A essentially a quasi-judicial forum, the Chief Information
Commissioner and members of the Commission should b·e
the persons possessing requisite qualification and experience
in the field of Law and/or other specified fi~lds - The
Commission to work in a bench of two i.e. a Judicial member'
B and an expert member' - Appointment to the post of judicial
member should be made in consultation' with the Chief Justice
of India in case of Central Information Commission and with
the Chief Justices of the High Courts of the respective States
in case of State Information Commissions - The term
c experience in law and other specified field as enumerated ul
ss. 12(5) and 15(5) of the Act would take within its ambit both-
requisite qualification as well as experience in that field -A
Law Officer or a lawyer having twenty years of law practice and
having experience of social work is also eligible for
0 appointment as judicial member - For appointment as
Information Commissioners, the authority should prefer a ·y
person who is or has been a judge of High Court - Chief
Information Commissioner shall only be a person who is or
has been Chief Justice of High Court or a Judge of Supreme
E Court - A panel of prospective members should be created
by the Department of Personnel and Training or the
concerned State level ministry and be placed before the High
Powered Committee to make selections in accordance with
s. 12(3) of the Act.

F First Appellate Authority Qualification
Recommendation of Court that the qualification for the post
should be degree in law and adequate knowledge and
experience in the field of law.

Judicial Review:
G
Determination of constitutionality of a statute - Principles •
to be followed - While determining the constitutional validity
of a statute, court has to see the legislative competence and
the provisions of the statute to be examined in the light of the
H
NAMIT SHARMA v. UNION OF INDIA 3

provisions of the Constitution - No prejudice needs to be A
/l
proved in cases of breach of fundamental rights - Even if two
views are possible, one making the statute constitutional, the
court to make efforts to uphold its constitutional validity - There
is presumption of constitutionality in favour of legislation - The
burden to prove that the enacted law offends fundamental B
rights is on the one who questions the constitutionality and
shows that despite the presumption of constitutionality, the
statue is unfair, unjust and unreasonable - Declaring the Law
unconstitutional is one of the last resorts taken by courts - The
·~
~
courts should prefer to put into service principles of 'reading c
down' or 'reading into'.

Judicial review of the orders of Information Commission
- Nothing in the Right to Information Act can take away powers
vested in u!Arts.226 and 32 of the Constitution - The finality
indicated ulss. 19(6) and (7) cannot be construed to oust the D
jurisdiction of higher courts despite the bar created u/s. 23 -
'f Right to Information Act, 2005.

Constitution of India, 1950 - Right to Information - Nature
of - Held: Right to freedom of Speech and Expression under E
Article 19(1)(a) encompasses the right to import and receive
information - This right is not an unlimited or unrestricted right
- It is subject to statutory and constitutional limitations.

Words and Phrases - 'Quasi-judicial - Meaning of
-t F
The petitioner filed the present writ petition under
Article 32 of the Constitution as a PIL questioning the
constitutional validity of sub- sections (5) and (6) of s. 12
and sub-sections (5) and (6) of s. 15 of theRight to
Information Act, 2005, which primarily deal with the G
eligibility criteria for appointment to the posts of Chief
> Information Commissioners and Information
Commissioners at the Central level as well as State level.

Partly allowing the writ petition, the Court
H
4 SUPREME COURT REPORTS [2013] 13 S.C.R.

A HELD: 1.1. The Constitution of India expressly
confers upon th~ courts thepower 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. The courts have exercised the
B power of judicial review, beyond legislative competence,
but within the specified limitations. Whilethe court gives ·
immense weightage to the legjslative judgment; still it
cannot deviate from its own duties to determine the
constitutionality of an impugned statute. Every law has
c to pass through the test ofconstitutionality which is
stated to.be.nothing but a.formal test .of rationality. [Para
7] [34-F-H]

Supreme Court. Advo.cates on Record Association and
Ors. v.Union oflndia (1993)4SCC 441: 1993 (2) Suppl. SCR
D 659 ~ followed.

1.2. 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
E Court would not allow the legislature to overlook a
constitutional provision by employing indirect methods.
[Para 9] [35-C-D]

Minerva Mills Ltd. and Ors. v. Union of India and Ors.
F (1980) 3 SCC 625: 1981 (1) SCR 206 - followed.
1.3. 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
G and the foremost, 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 the light
of the provisions of the Constitution (e.g. Part Ill),
H
NAMIT SHA~MA v.. UNION OF INDIA 5

regardless of how it is actually administered or is capable A
of being administered. [Para 13) [37-D-E] ·

1.4. 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
8
void. [Para 12) [37-C]
A.R. Antulayv. R.S. Nayak and Anr. (1988)2 SCC
602:1988 (1) Suppl. SCR 1 ·~ referred to.

~ 1.5. The Court should exercise judicial restraint while c
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. [Para 19) [41-E) 0
Government of Andhra Pradesh and Ors. v. Smt. P.
'( Laxmi Devi (2008) 4 SCC 720: 2008 (3) SCR 330 - relied
on.
1.6. Even if two views are possible, one making the E
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 F
ground of malafide, unreasonableness and arbitrariness
alone. [Para 19] [41-F-G]

1.7. 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 G
as well as the legislative history of the/statute. It would
~"' help the court in arriving a_t a more objective and justful
approach. It would be necessary for the Court to examine
the reasons of enactment of a particular provision so as
H
6 SUPREME COURT REPORTS [2013] 13 S.C.R.

A to find out its ultimate impact vis-a-vis the constitutional .
provisions. [Para 20) [41-G-H; 42-A] -J.~
1.8. 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'
8
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
C the Constitution does riot prohibit the prescription of
reasonable rules for selection or of qualifications for
appointment, except, where the classification is on the
face of it, unjust. [Para 40) [55-B-D]
D Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC
248: 1978 (2) SCR 621 - relied on.
1.9. There is presumption of constitutionality in
favour of legislation. The legislature has .the power to
E 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 Ill of the Constitution is on the one
who questions the constitutionality and shows that
despite such presumption in favour of the legislation, it
F is unfair, unjust and unreasonable. [Para 46] [57-C-D]
1.10. 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
G 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
H courts. The courts w9uld preferably put into service the
NAMIT SHARMA v. UNION OF INDIA 7

principle of 'reading down' or 'reading into' the provision A
to make it effective, workable and ensure the attainment
of the object of the Act. [Para 47) [57-D-F]
1.11. When the law making power of a State is
restricted by a written fundamental law, then any law
8
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 C
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 D
persons is no ground to hold it illegal or unconstitutional
particularly when its legality or constitutionality has not
been challenged. [Para 37) [52-H; 53-A-C]
K. Karunakaran v. State of Kera/a and Anr. (2000) 3 SCC E
761: 2000 (2) SCR 735 - relied on.
1.12. It is a settled canon of constitutional
jurisprudence that the doctrine of classification is a
subsidiary rule evolved by courts to give practical content
to the doctrine of equality. Over-emphasis of the doctrine F
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. It is not necessary that classification in order G
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 H
8 SUPREME: COURT REPORTS . [2013] 13 S.C.R

A persons or objects to. ·wt;iom. its prov.is ions. are to apply · -L
and leave it to the discretion of the Government or
administr~ti:ve authority to select such-persons or ~llings, '•
having regard to,t.he principle or poli~y laid doVtn by the.
Legislature. [Para 14] [38-D-H] ·
8
UC of India v. Consumer Education and Research
Centre (1995) 5 SCC 482: 1995 (1) Suppl: SCR 349 -
referred to.

1.13. Article 14 forbids class legislation but does not
C forbid reasonable classification which means : It must be
based on reasonable and intelligible differentia; and such
differentia must be on a rational basis. It must have nexus
to the object of the Act. The basis of judging whether the
institutional reservation, fulfils the above-mentioned
o criteria, should be a) there is a presumption of
constitutionality; b) the burden of proof is upon the writ y
petitioner's, the person questioning the constitution'ality
of the provisions; c) there is a presumption as regard the
States' power on. tt;ie extent of its legislative competence;
E d) hardship of few cannot be the basis of determining the
validity of any statute. [Paras 15 and 16] [39-A-D]
• • ' - ' ; i • •''

Ram Krishna Dalmia v. Justice S.R. Tendo/kar AIR 1958
SC 538:1959 SCR 279; Budhan Chodhry v. State of Bihar
AIR 1955 SC 191:1955 SCR 1045; Atam Prakash Ii. State.
F of Haryana and Ors. (1986) 2 sec 249: 1986 (1) SCR 399;
Hinsa V~rodhak Sangh. v.. Mtizapur Moti Kuresh Jamata and
Ors. (2()08) 5 sec 3~: 2008 (4) SCR 1020 - referred to.
' '

1.14. Classification, means segregation in classes
G which have a systematic relation usually found in
common properties and characteristics. It postulates a
rational basis and does notmean herding together of
certain persons and clas.ses arbitrarily. The differentia
which· is tile basis of the classification and the object of
H the Act are distinct things and what is necessary is that·
NAMIT SHARMA v. UNION OF. 11\fDIA 9

I
· there must be a nexus between them. The basis of testing A
constitutionality, particularly on. the ground· of
discrimination~ should· not· be made by· raising a
presumption that the: authorities are acting in an arbitrar}r
· manner. No classification can be arbitrary. One of the
known concepts 'of constitutionarinterpretation is that . B
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 c
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. [Para 37] [53-E-H; 54-A-BJ ,.,, ... ·
0
Welfare Association
•·• of
Allottees of: Reside'ritial ' D
Premises; Maharashtra v. Ranjit P.' Gohil (2003),9 sec 358:
2003 (2) SCR 139 ~relied on.'", . · . , , ··· ·
, .. '·'' .
' 1.15. The rule of equality or equal protection does not .
require that a State must choose between attacking -E
every aspect of a' problem or not attacking the problem
at all, and particularly with 'respect to social welfare
.programme. So !ong as the ~ine drawn,;_by'the:State is
.rationally supportable, ~he, Courts will not interpose, their
I ,, judgment as to the appropriate stopping point. A statute F
is not invalid because it might havegone further _than it
I did, since the legislature need.not strike at all evils at_ the
same time and may address:itself·to the phase of the
problem which. seemed most acute t,o the legislative mind ..
A classification based .on experience was a reasonable ·G
classification, and' that it had. a rational nexus. toJhe ·
object thereof and to hold otherwise would be detrimental
to the. interest of the service itself.: [Para 38] [54-C·E]
,- '· -· ( . i ; .-, . . • : - '- '.' ''

' '
. State of UP ·and Orit
' ' : I:
v:' J.P. Chaurasia
'
and Ors.· (1989)
•• ;; ' ·• ' .. H
10 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 1 SCC121: 1988 (3) Suppl. SCR 288 - relied on.
1.16. 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
8
facts and circumstances of the case in order to judge the
validity of a classification. Intelligible differentia and
rational nexus are the twin tests of reasonable
classification. [Para 38] [54-F-G]

C State of Jammu Kashmir v. Sh. Triloki Nath Khosa and
Ors. (1974) 1SCC 19: 1974 (1) SCR 771 - relied on.

1.17. If the law deals equally with members of a well
defined class, it is not open to the cbarge of denial of
0 equal protection. There may be cases where even a
single individual may be in a class by himself on account
of some special circumstances or reasons applicable to
him and not applicable to others. Still such law can be
constitutional. [Para 39] [54-H; 55-A]
E Constutional Law of India by H. M. Seervai (Fourth
Edition) Vol.1 - referred t.o.

2.1. The citizens have the right to know about the
affairs of the Government which, having been elected by
F them, seeks to formulate some policies of governance
aimed at their welfare. The Right to Information was
harnessed as a tool for promoting development;
strengthening the democratic governance and effective
delivery of socio-economic services. The Right to
G 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.
Public interest is better served by effective application of
H the right to information. [Paras 1 and 22] [29-D-F; 42-F]
NAMIT SHARMA v. UNION OF INDIA 11

..--+ Secretary, Ministry of Information and Broadcasting, A
Government of India and Ors. v. Cricket Association of Bengal
~ and Anr. (1995) 2 sec 161: 1995 (1) SCR 1036 - relied on.

"Freedom of Information" By Justice V.R. Krishna Iyer -
referred to. B

-
2.2. 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 C
protected laws such as Mahatma Gandhi Rural Guarantee
Act, 2005, Right to Education Act, 2009, etc. are some of
the basic objectives of this Act. Revelation in actual

- practice is likely to conflict with other public interests,
including efficiency, operation of the Government,
optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information. It
0

is necessary to harness these conflicting interests while
preserving the parameters of the democratic ideal or the
E

-
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 sucti
information suo moto. However, balancing of interests
F
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. [Para
33] [51-B-F]
.. A- 2.3. The Right to Freedom of Speech and Expression G
enshrined under Article 19(1 )(a) of the Constitution of
--< India encompasses the right to impart and receive
- information. Despite the absence of any express mention
of the word 'information' in the Constitution under Article
H
12 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 19(1 )(a), this right has stood incorporated therein by the +-.. .
interpretative process by this Court. 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
B otherwise. 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, I

Sections 74 to 78 of the Evidence Act, 1872 and Section
Jr
25(6) of the Water (Prevention and Control of Pollution)
c Act, 1974. [Para 1 and 24] [29-E; 44-D-G]
'Commentary on the Right to Information Act' (2006) by
Dr. J. N. Barowa/ia - referred to.

2.4. The Right to Information, like any other right, is
D
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
E
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. [Para 34] [51-G-H]
t-
F ,,
2.5. Nothing in the Act of 2005 can take 1away the
powers vested in the High Court under Article 226 of the
Constitution and of this Court under Article 32. The
finality indicated in ss. 19(6) and 19(7) cannot be
G construed to oust the jurisdiction of higher courts, ~ ...
despite the bar created u/s. 23 of the Act. It always has ,,,
to be read and construed subject to the powers of the
High Court under Article 226 of the Constitution. [Para 29]
[49-E]
H
..
NAMIT SHARMA v. UNION OF INDIA 13

· L. Chandra Kurnar vs. Union of India and Ors. (1997) 3 A
sec 261: 1997 (2) SCR 1186 - relied on.
3.1. The provisions of Section 12(5) of 2005 Act do
not discuss the basic qualification needed, but refer to
two components: (a) persons of eminence in public life;
8
and (b) .with wide knowledge and experience in the fields
stated in the provision. The provision, thus, does not
suffer from the infirmity of providing no criteria resulting
in the introduction of the element of arbitrariness or
discrimination. The legislature in its wisdom has chosen C
not to provide any specific qualification, but has primarily
prescribed 'wide knowledge and experience' in the cited
subjects as the criteria for selection. It is not for the courts
to spell out what ought to be the qualifications or
experience for appointment to a particular post. If the
0
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 .. [Paras 48 and 57] [57-G-H; 62-E-F] .
3.2. The principles like 'reading into' and/or 'reading E
down' 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. In order to satisfy the test of
constitutionality, the Court vvill have to read into Section F
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 G
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
Information Commission as it can tilt the balance of H
14 SUPREME COURT REPORTS (2013] 13 S.C.R.

A justice either way. [Paras 58 and 103] [63-D-E; 89-A-C] -4...
3.3. 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
8
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 the )r·
C same is capable of being clarified by framing appropriate
rules in exercise of powers of the Central Government u/
s. 27 of the Act of 2005. 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
0
judicial pronouncements. [Paras 57 and 59] [62-G-H; 63- y
A-B, F]
3.4. The provisions of Sections 12(5) and 15(5) of the
Act of 2005 are held to be constitutionally valid, but with
E 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, it is held and declared that the expression t-
F 'knowledge and experience' appearing in these
provisions would mean and include a basic degree in the
respective field and the experience gained thereafter.
Further, appointments of legally qualified, judicially
trained and experienced persons would certainly
G manifest in more effective serving of the ends of justice -'!( -
as well as ensuring better administration of justice by the
Commission. It would render the adjudicatory process
which involves critical legal questions and nuances of
law, more adherent to justice and shall enhance the
H public confidence in the working of the Commission.
NAMIT SHARMA v. UNION OF INDIA 15

This is the obvious interpretation of the language of these A
provisions and, in fact, is the essence thereof. [Para 106]
[92-A-E]
4.1. 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 B
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 c
profession. 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 D
been the intent of law. It is also not clear as to what
'"r
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. [Para 49] [58-E-
E
H; 59-A-B]
4.2. No Rules have been brought to the notice of the
Court which even intend to explain the vagueness and
-4 inequality explicit in the language of Section 12(6). If the
'
language of Sections 12(5) and 12(6) are read together, F
the provisions under sub-Section (6) appear to be in
conflict with those under sub-Section (5) and would result
in defeating the provisions of sub-Section (5) of Section
12 to some extent. [Para 49] [59-C-F]
,, x 4.3. The legislature is required to exercise its power
in conformity with the constitutional mandate, particularly
G

contained in Part Ill 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) H
16 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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. [Para 50] (59-G-H; 60-A]
B 4.4. 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, the Court would prefer to interpret the provisions
c of Section 12(6) as applicable post-appointment rather
than. pre.appointment of the Chief Information
Commissioner and Information Commissioners. In other
words, these disqualifications will only come into play
once a person is appointed as Chief Information
o 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 y
such appointment. As opposed to declaring the
provisions of Section 12(6) and 15(6) unconstitutional, the
E Court would prefer to read these provis.ions as having
effect 'post-appointment'. 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
F Centre or State levels. [Paras 53 and 106] (60-G-H; 61-A;
92-F-G]
5.1. The Chief Information Commissioner and
members of the Commission are required to possess
G 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 accordant"~ with the
statutory provisions and the scheme of the Act of 2005.
H In terms of Section 8(1 )(e), (f), (g), (h) and (i), the authority
NAMIT SHARMA v. UNION OF INDIA 17

is required. to record a definite satisfaction whether A
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 qf the privacy of an individual. All these B
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 c
rights protected under Article 21 of the Constitution.
Thus, 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. ·[Para 0
98] [86-B-H]
5.2. Besides separation of powers, the independence
of judiciary is of fundamental constitutional value in the
structure of Indian Constitution. Impartiality,
independence, fairness and reasonableness in judicial E
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. [Para 101] (88-B-C]
F
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 17 - relied on .
•
' 5.3. The independence of judiciary stricto sensu
applies to the Court system. Thus, by necessary
implication, it would also apply to the tribunals whose G
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 H
'
18 SUPREME COURT REPORTS [2013] 13 S.C.R.

A have the faith that justice would be done. [Para 102] [88- -L,
D-E]

5.4. It is not only appropriate but is a solemn duty of
every adjudicatory body, including the tribunals, to state
8 the reasons in support of its decisions. Reasoning is the
soul of a judgment and embodies one of the three pillars
.
'
on which the very foundation of natural justice
jurisprudence rests. It is informative to the claimant of the
basis for rejection of his claim, as well as provides the
c grounds for challenging the order before the higher
authority/constitutional court. The reasons, therefore, ·"' )--

enable the authorities, before whom an order is challenged,

D
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. [Para 97] [85-F-H; 86-A]

Siemens Engineering and Manufacturing Co. of India
E Ltd. v. Union of India and Anr. (1976) 2 SCC 981: 1976
Suppl. SCR 489; Assistant Commissioner, Commrcial Tax
Department Works Contract and Leasing, Kofa v. Shukla and
Brothers (2010) 4 SCC 785: 2010 (4) SCR 627 - relied on.

5.5. Under the provisions of the Act, particularly, ~
F
Sections 4, 12, 18, 19, 20, 22, 23 and 25, the Central o:r
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
G 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,
H
NAMIT SHARMA v. UNION OF INDIA 19

secondly, Section 20(2) empowers the Central and the A
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 B
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. [Para 59] (63-G-H; 64-A-C]

"The Judicialisation of 'Administrative' Tribunals in the C
UK : from Hewart to Leggatt" by Gavin Drewry - referred to.

5.6. The nature of functions of the Information
Commission involves an adjudicatory process where
parties are required to be heard, appropriate directions D
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 E
the principles of natural justice and the procedure
evolved by such authority. Natural justice has three
indispen~able facetS, i.e.; grant of notice, grant of hearing
and passing of reasoned orders. Thus, the authorities
under the Act of 2005 and the Tribunals are discharging F
quasi-judicial functions. [Para 70) (68-G-H; 69-A-B]

Indian National Congress (/} v. Institute of Social Welfare
and Ors. (2002) 5 sec 685: 2002 (3) SCR 1040 - relied on.

5.7. The Legislature, in its wisdom, has provided for G
two appeals under the 2003 Act. 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 H
20 SUPREME COURTREPORTS [2013] 13 S.C.R

A principles of natural justice. Higher also is the public --l.
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
8 Court or the Supreme Court in exercise of the Court's
jurisdiction under Article 226 and/or Article 32 of the
Constitution, respectively. [Para 75) (72-H; 73-A-B]

5.8. An authority is described as quasi-judicial when
C it has some attributes or trappings of judicial provisions
but not all. The concerned authorities particularly the
Information Commission, possess the essential attributes
and trappings of a court. Its powers and functions, as
defined under the Act of 2005 also sufficiently indicate
that it has adjudicatory powers quite akin to the court
0 system. They adjudicate matters of serious
consequences. The Commission may be called upon to y
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
E '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
F being fully cautious of its consequences and effects on
the rights of others. 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
G than mere administrative acts of the State authority. (Para
72) [69-F-H; 70-A-F)
Gobind v. State of Madhya Pradesh and Anr. (1975) 2
SCC 148: 1975 (3) SCR 946; Ram Jethmalani and Ors. v.
H
NAMIT SHARMA v. UNION OF INDIA 21

A-- Union of India (2011) 8 SCC 1: 2011 (8) SCR 725 - relied A
on.
5.9. 'Quasi judicial' is a term which may not always
be used with utmost clarity and precision. An authority
which exercises judicial functions or functions
B
analogous to the judicial authorities would normally be
termed as 'quasi-judicial'. 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- C
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 D
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 E
Tribunal constituted under the provisions of the Act of
· 2005 are· certainly quasi-judici~I authority/tribunal
performing judicial functions. [Paras 73 and 74) [70-G; 72-
B-D] .
F
State of Himachal Pradesh and Ors. v. Raja Mahendra
Pal and Anr. 1995 Supp (2) sec 731 - relied on .

.'Advanced Law Lexicon' (3rd Edn., 2005) by P.
Ramanathan Aiyar - relied on.
G
5.10. Once it is held thatthe Information Commission
is essentially quasi- judicial in nature, the Chief
information Commissioner and members of the
Commission should be the persons possessing requisite
H
22 SUPREME COURT REPORTS [2013] 13 S.C.R.

A qualification and experience in the field of law-and/or . ..{.__ '
other specified fields. [Para 80) [76-C]
L. Chandra Kumar v. Union of India (1997) 3 SCC 261:
1997 (2) SCR 1186 - followed.
B Bharat Bank Ltd., Delhi v. Employees of Bharat Bank and
Ors. 1950SCR 459: AIR 1950 SC 188; S.P. Sampath Kumar
v. Union of India (1987) 1 SCC 124: 1987 (1) SCR 435;
Union of India v. Madras Bar Association [(2010) 11 SCC 1:
2010 (6 ) SCR 857 - relied on.
c
5.11. In terms of sub-Section (5) of ss. 12 and 15 of
the Act, besides being a person of eminence in public life,
the necessary qualification required for appointment as
Chief Information Commissioner or Information
0 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
composite content and would take within its ambit both
the requisite qualification in law as well as experience in
E the field of law. 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
F 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 knowl.edge and
experience in other fields would have to be construed as
G experience coupled with basic educational qualification
in that field. [Para 93) [83-A-C, E-F]
State of Madhya Pradesh v. Dharam Bir (1998) 6 SCC
165: 1998 (3) SCR 511 - referred to.
H
NAMIT SHARMA v. UNION OF INDIA 23

5.12. The requirement of a judicial mind for manning A
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
p.eople with judicial background and expertise, then the
most suitable and practical resolution would be that a B
'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 c
serious issues like an inbuilt conflict between the Right
to Privacy and Right to Information while applying the
balancing principle and other incidental controversies.
Participation by qualified persons from other specified
fields would be a positive contribution in attainment of
0
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). [Para 103) (89-D-G]
6.1. Once it is held that it is a judicial tribunal having E
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.
Section 12(3) of the Act states about the High-powered
Committee, which has to recommend the names for F
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 G
Committee. [Para 104) (89-H; 90-A-BJ
6.2. 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
H
24 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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. [Para 104] [90-C-D]

C 6.3. It will be incumbent and in conformity with the
scheme of the Act that the appointments to the post of
judicial member are made 'in consultation' with the Chief
Justice of India in case of Chief Information
Commissioner and members of the Central Information
Commission and the Chief Justices of the High Courts
0 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
E 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
F 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
G 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
H issued by such agency should not be restricted to any
NAMIT SHARMA v. UNION OF INDIA 25

. ;particutar :class of:persons stated u/s. 12(5), but must A
cover per-sons. from all fields. Complete information,
material and comparative data of the empanelled persons
should be made available to the High Powered
Committee. The High Powered Committee itself has to
adopt a fair and transparent process for consideration of B
the empanelled persons for its firial recommendation.
The selection process should be commenced at least
three months prior to the occurrence of vacancy. [Paras
104 and 106] [90-E-H; 91-A-C; 95-A]

6.4. The Information Commissions at the respective
c
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 0
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. The competent authority should prefer a E
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 F
India. [Para 106] [93-G-H; 94-A-C]

6.5. The Court directed that the provisions of Section
12(5), 12(6) and 15(5), 15(6) of the Act would be amended
at the earliest by the legislature to avoid any ambiguity G
or impracticability and to make it in consonance with the
constitutional mandates. The Central Government and/or
the competent authority is directed to frame all practice
and procedure related rules to make working of the
Information Commissions effective and in consonance
H
26 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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 the date of the
judgment. [Para 106] [92-H; 93-A-C]

B L. Chandra Kumar v. Union of India (1997) 3 SCC 261:
1997 (2) SCR 1186 - followed.

Centre for PIL and Anr. v. Union of India and Anr. (2011)
4 sec 1: 2011 (4) SCR 445 - relied on.
j..
c 7.1. 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
D 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
E to perform dual functions - (1) to receive the applications
for information; and (2) to receive appeals under the Act.
The applications for information are to be forwarded to
the concerned Information Officer and the appeals are to
be forwarded to the Central Information Commission or
the State Information Commission, as the case may be.
F 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
G 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 lnform·ation ~
Officer. Thus, no specific requirement is mandated for
designating an officer at the sub-divisional or sub-
H district level. There is also no qualification or experience
NAMIT SHARMA v. UNION OF INDIA 27

required of these designated officers to whom the first A
appeal would lie u/s. 19(1) of the Act. [Para 87] [79-H; 80-
A-E, F·G]
7.2. The functions of the Chief Information
Commissioner and Information Commissioners may be 8
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 C
Section 5, it may not be necessary to apply this principle
to the designation of Public Information Officer. [Para 99]
(87-0-E]
8. The Information Commission is bound by the law
of precedence, i.e., judgments of the High Court and the D
Supreme Court of India. In order to maintain judicial
discipline and consistency in the functioning of the
1 Commission, the Commission is directed to give
appropriate attention to the doctrine of precedence and
shall not overlook the judgments of the courts dealing E
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 F
Benches of the Commission. The rule of precedence is
equally applicable to intra appeals or references in the
hierarchy of the Commission. [Para 106] [95-0-F]
Case Law Reference:
G
1995 (1) SCR 1036 relied on Para 1
'>· 1993 (2) Suppl. SCR 659 followed Para 8
1981 (1) SCR 206 followed Para 9
H
28 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 1988 (1) Suppl. SCR 1 referred to Para 12
1995 (1) Suppl. SCR 349 referred to Para 14
1959 SCR 279 referred to Para 17
1955 SCR 1045 referred to Para 17
B
1986 (1) SCR 399 referred to Para 18
2008 (4) SCR 1020 referred to Para 19
2008 (3) SCR 330 relied on Para 19

c 1997 (2) SCR 1186 relied on Para 29
2000 (2) SCR 735 relied on Para 37
2003 (2) SCR 139 relied on Para 37
1988 (3) Suppl. SCR 288 relied on Para 38
D 1974 (1) SCR 771 relied on Para 38
1978 (2) SCR 621 relied on Para 40 'Y
'
2002 (3) SCR 1040 relied on Para 71
1975 (3) SCR 946 relied on Para 72
E
2011 (8) SCR 725 relied on Para 72
1995 Supp (2) sec 731 relied on Para 74
1950 SCR 459 relied on Para 80
F 1987 (1) SCR 435 relied on Para 80 ~
2010 (6) SCR 857 relied on Para 80
1997 (2) SCR 1186 followed Para 81
1998 (3) SCR 511 referred to Para 94
G
1976 (0) Suppl. SCR 489 relied on Para 97
2010 (4) SCR 627 relied on Para 97 -J,_
(2010) 11 sec 11 relied on Para 101

H 1997 (2) SCR 1186 followed Para 104
NAMIT SHARMA v. UNION OF INDIA 29

2011 (4) SCR 445 relied on Para 104 A
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
210 of 2012.
Under Article 32 of the Constitution of India.
B
Amit Sharma, Rahul Jain for the Petitioner.

A.S. Chandiok, ASG, R.K. Rathore, Rekha Pandey, B.V.
Bairam Das for the Respondent.

The Judgment of the Court was delivered by c
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 D
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 E
the Constitution of India (for short 'the Constitution')
encompasses the right to impart and receive information. The
Right to Information has been stated to be one of the important
facets of proper governance. With the passage of time, this
concept has not only developed in the field of law, but also has F
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 G
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 H
30 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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,
B disinformation, misinformation and non-information, all
equally create an uninformed citizenry which makes
democracy a farce when medium of information is
monopolized either by a partisan central authority or by
private individuals or oligarchy organizations. This is
c particularly so in a country like ours where about 65 per
cent of the population is illiterate and hardly 1 Y2 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
D 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: r

"The free State offers what a police state denies - the
E 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
F policy of greater restriction and control obviously restrict the .,..
enjoyment of such freedoms. That, however, does not r
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
G time to time.

4. The petitioner, a public spirited citizen, has approached ~
this Court under Article 32 of the Constitution stating that though
the Right to Information Act, 2005 (for short 'Act of 2005') is
H an important tool in the hands of any citizen to keep checks and
NAMIT SHARMA v. UNION OF INDIA 31
[SWATANTER KUMAR, J.]

..L balances on the working of the public servants, yet the criterion A
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 B
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 c
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
D
making process impracticable, inflexible and in given cases,
contrary to law. The availability of expertise of judicial members
1 in the Commission would facilitate the decision-making to be
more practical, effective and meaningful, besides giving
semblance of justice being done. The provision of eligibility
criteria which does not even lay down any qualifications for E
appointment to the respective posts under the Act of 2005
would· be unconstit:..itional, 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)
1
x. 14 SCC 107]; L. Chandra Kumar v. Union of India ((1997) 3 F
)""
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
i
' and jurisdiction that the Chief/State Information Commissioner G
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
H
32 SUPREME COURT REPORTS [2013] 13 S.C.R.

A of sub-Sections (5) and (6) of Section 12 and sub-Sections (5) .-1.._
and (6) of Section 15 of the Act of 2005. These provisions
primarily deal with the eligibility criteria for appointment to the
posts of Chief Information Commissioners and Information
Commissioners, both at the Central and the State levels. It will
B 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,
c 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
D 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 y'
business or pursuing any profession.

E 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,
F 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
G 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
H provisions inter a/ia is on the following grounds :
NAMIT SHARMA v. UNION OF INDIA 33
[SWATANTER KUMAR, J.]

.>-. (i) Enactment of the provisions of eligibility criteria for A
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. B

(ii) Absence of any specific qualification and merely
providing for experience in the various specified
fields, without there being any nexus of either of
,.J,_
these fields to the object of the Act of 2005, is
violative of the fundamental constitutional values.
c
(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. D

1 (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
E
be feasible for a person of ordinary experience to
deal with such subjects with legal accuracy.
~
(v) The Chief Information Commissioner and
Information Commissioners at the State and Centre
~ level perform judicial and/or quasi-judicial functions F
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 G
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
H
34 SUPREME COURT REPORTS [2013] 13 S.C.R.

A consistent with the recognised principles of -l-
adjudication.

(vii) Apart from specifying a high powered committee
for appointment to these posts, the Act of 2005
B 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.
>,
c (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
D ought to be exercised by persons having judicial
knowledge and expertise. To that extent, in any
case, these provisions would have to be read y
down. Resultantly, limitation has to be read into the
competence of the legislature to prescribe
E requisite qualifications for appointment of judicial
or quasi-judicial bodies or tribunals.

Discussion
7. The Constitution of India expressly ·confers upon the
F courts the power of judicial review. The courts, as regards the
y
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
G gives immense weightage to the legislative judgment, still it
cannot deviate from its own duties to determine the
,(_ .,
constitutionality of an impugned statute. Every law has to pass
through the test of constitutionality which is stated to be nothing
but a formal test of rationality.
H

.
NAMIT SHARMA v. UNION OF INDIA 35
[SWATANTER KUMAR, J.]
8. The foundation of this power of judicial review, as A
explained by a nine-Judge's Bench in the case of Supreme
Courl 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 B
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 C
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 oflndia & Ors. [(1980) 3 SCC 625], this Court mandated D
without ambiguity, that it is the Constitution which is supreme
in India and not the Parliament. The Parliament cannot damage
the Constitution, to which it owes its existence, with unlimited
amending power.
E
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 Ill of the Constitution and reasonableness of the law. The
F
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. O.D. Basu in
the 'Shatter Constitution of India' (Fourteenth Edition, 2009)
has detailed, with reference to various judgments of this Court, G
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: H
36 SUPREME COURT REPORTS (2013] 13 S.C.R.

A i. Contravention of any fundamental right, specified
in Part·111 of the Constitution. (Ref. Under Art. 143,
(Ref. AIR 1965 SC 745 (145): 1965 (1) SCR 413)

ii. Legislating on a subject which is not assigned to
the relevant legislature by the distribution of powers r-
B
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 )-.
c the powers of a Legislature, e.g1, 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
D
State. (State of Bombay v. Chamarbaughwala
R.M.D., AIR 1957 SC 699) y'
v. That the Legislature concerned has abdicated its
essential legislative function as assigned to it by the
E 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)

F 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
G executive act), (Ref. Nagaraj K. V. State of A.P.,
AIR 1985 SC 551(paras31, 36), or was prompted 'A_
.by some improper motive. (Ref. Rehman Shagoo
v. State of J & K, AIR 1960 SC 1(6); 1960 (1) SCR
681)
H
r
NAMIT SHARMA v. UNION OF INDIA 37
[SWATANTER KUMAR, J.]

>- (b) That the law contravenes some constitutional A
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
8
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 c
claimed. Violation of a fundamental right itself renders the
impugned action void {Ref. A.R. Antulay v. R.S. Nayak & Anr.
[(1988) 2 sec 602]}.

13. A law which violates the fundamental right of a person D
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
E
relative consideration. The Court should examine the provisions
of the statute in light of the provisions of the Constitution (e.g.
Part Ill), regardless of how it is actually administered or is
capable of being administered. In this regard, the Court may
consider the following factors as noticed in 0.0. Basu (supra).
F
"(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 G
administered in a manner which might not conflict with the
>~ constitutional requirements.

In the case of Charan Lal Sahu v. UOI [(1990) 1sec614
(667) (para 13), MUKHERJEE, C.J. made an unguarded
statement, viz., that H
38 SUPREME COURT REPORTS [2013] 13 S.C.R.

A "In judging the Constitutional validity of the Act, . ,.l_
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
B
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
c 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
D even of gross violation of constitutional sanctions."

14. It is a settled canon of constitutional jurisprudence that ·y
the doctrine of classification is a subsidiary rule evolved by
courts to give practical content to the doctrine of equality. Over-
emphasis of the doctrine of classification or anxious or
E 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. L/C of India v. Consumer Education &
Research Centre [(1995) 5 sec 482]. It is not necessary that
F 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
G 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.

H
NAMIT SHARMA v. UNION OF INDIA 39
[SWATANTER KUMAR, J.]
15. Article 14 forbids class legislation but does not forbid A
reasonable classification which means :

(i) It must be based on reasonable and intelligible
differentia; and

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

(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) C
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
deter!Tiining the validity of any statute. · 0

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 E
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:
F
"(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;
G
(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;
H
40 SUPREME COURT REPORTS [2013] 13 S.C.R.

A (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;
B
(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
c 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
D
(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
E 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."
F
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
G 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
H distant vision that help in the determination of the constitutional.
NAMIT SHARMA v. UNION OF INDIA 41
[SWATANTER KUMAR, J.]
issues. Referring to the object of such adjudicatory process, A
> 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 B
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."
c
19. Dealing with the matter of closure of slaughter houses
in the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh
Jamat & Ors. [(2008) 5 SCC 33], the Court while noticing its
earlier judgment in the case of Government of Andhra Pradesh D
& Ors. v. Smt. P. Laxmi Devi [(2008) 4 SCC 720], introduced
"'1 a rule for exercise of such jurisdiction by the courts stating that
th~ 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 E
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 F
i 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 G
of a statute or any of its provisions, one of the most relevant
J-, considerations is the object and reasons as well as the
legislative history of the statute. It would help the court in arriving
at a more objective and justful approach. It would be necessary
for the Court to examine the reasons of enactment of a H
42 SUPREME COURT REPORTS (2013] 13 S.C.R.

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
B 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
c 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
D 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 y
hand and its decision affecting the domestic and international
trade and other activities on the other, impose an obligation
E 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
F governance and effective delivery of socio-economic services. r·
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
G 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 anji--
earning, legal remedies for combating gender bias etc., have
H overtime, made significant contributions to the well being of
NAMIT SHARMA v. UNION OF INDIA 43
[SWATANTER KUMAR, J.]

poor people. It is also felt that this right and the laws relating A
,k
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.
B
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 c
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 D

- Geneva in 1948.

Article 19 of the Universal Declaration of Human
Rights says:
E
"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
F
-i 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 G
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
H
44 SUPREME COURT REPORTS (2013] 13 S.C.R.

A and Social Council of the United Nations
.~
which drafted the 1948 Declaration. As such
it would have been eminently fit and proper
if the right to information was included in the
rights enumerated under Article 19 of our
B 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
c 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
0 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
E 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
F other laws, for example, Sections 74 to 78 of the Indian
Evidence Act, 1872 give right to a person to know about the
r-
contents of the public documents and the public officer is
required to provide copies of such public documents to any
person, who has the right to inspect them. Under Section 25(6)
G 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
H by any person interested in or affected by such outlet, land or
NAMIT SHARMA v. UNION OF INDIA 45
[SWATANTER KUMAR, J.]

premises, as the case may be. Dr. J.N. Barowalia in A
---+·
'Commentary on the Right to Information Act' (2006) has noted
tha.t 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 B
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. c
Government procedures and regulations shrouded in the veil
of secrecy do not allow the litigants to know how their cases
are being handled. They shy away from questioning the officers
handling their cases because of the latter's snobbish attitude.
Right to information should be guaranteed and needs to be D
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 E
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 full- fledged Right to Information Act or its introduction
-f in a phased manner to meet the needs of an open and F
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.
G
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
H
46 SUPREME COURT REPORTS [2013] 13 S.C.R.

A responsive government. The recommendations of various -~
Committees constituted for this purpose and awareness in the
Government machinery of the significance and benefits of this
freedom ultimately led to the enactment of the 'Freedom of
Information Act, 2002' (for short, the 'Act of 2002'). The
B 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.
c 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
D 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
E government more transparent and accountable to the public
and to provide freedom to every citizen to secure access to
information under the control of public authorities, consistent
with public interest, in order to promote openness, transparency
and accountability in administration and in relation to matters
F 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
G 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
H
NAMIT SHARMA v. UNION OF INDIA 47
[SWATANTER KUMAR, J.]
nor in making the right to freedom of information more A
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 B
of the Council and the public, the Government decided that the
Act of 2002 should be replaced and, in fact, an attempt was
made to enact another law for providing an effective framework
for effectuating the right to information recognized under the
Article 19 of the Constitution. The Right to Information Bill was
introduced in terms of its statements of objects and reasons
c
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
D
appellate machinery with investigative powers to review the
'-r. 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 E
Information Act, 2005.

SCHEME OF ACT of 2005 (COMPARATIVE ANALYSIS OF
ACT OF 2002 AND ACT OF 2005}
--+ F
29. Now, we may deal with the comparative analysis of
these two Acts. The first and the foremost significant change
was the change in the very nomenclature of the Act of 2005 by
replacing the word 'freedom' with the word 'right' in the title of
the statute. The obvious legislative intent was to make seeking
of prescribed information by the citizens, a right, rather than a G
~. 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
H
48 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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
C 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
0
expression 'Right to Information' has been defined in Section
20) 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
E 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-
F 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
G of the stat1,.1te 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
H 2005. Every authority/department is required to designate the
NAMIT SHARMA v. UNION OF INDIA 49
[SWATANTER KUMAR, J.]

Public Information Officers and to appoint the Central A
Information Commission and State Information Commissions
in accordance with the provisions of Sections 12 and 15 of the
Act of 2005. It may be noticed that under the scheme of this
Act, the Public Information Officer at the Centre and the State
Levels are expected to receive the requests/applications for B
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 c
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
D
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
E
courts, despite the bar created under Section 23 of the Act. It
always has to be read and construed subject to the powers of
the High Court under Article 226 of the Constitution. Reference
in this regard can be made to the decision of a Constitution
Bench of this Court in the case of L. Chandra Kumar vs. Union
of India and Ors. [(1997) 3 SCC 261]. F

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 G
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 H
50 SUPREME COURT REPORTS (2013] 13 S.C.R.

A enumerates the intelligence and security organizations -l..
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
B
there exists no provision for constituting the Central and the
State Information Commission. Also, the Act does not provide •
any qualifications or requirements to be satisfied before a '
person can be so appointed. On the other hand, in terms of
A.
Section 12 and Section 15 of the Act of 2005, specific
c 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.

D 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
y'
•·-
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
E 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 ,-
I,...

implement and enforce the provisions of the Act of 2005 }--
F
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.$evere punishment like imposition
G
of fine upto Rs.250/- per day during which the provisions of the
Act are violated, has been provided in terms of Section 20(1).
The Central/State Information Commission can, under Section
20(2), even direct disciplinary action against the erring Public
Information Officers. Further, the appropriate Government and
;...._ -
the competent authority have been empowered to frame rules
H under Sections 27 and 28 of the Act of 2005, respectively, for
NAMIT SHARMA v. UNION OF INDIA 51
[SWATANTER KUMAR, J.]
carrying out the provisions of the Act. Every rule made by the A
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, Jhe rules
shall thereafter have effect either in the modified form or if not
annulled, it shall come into force as laid. B

'· 33. Gre.ater transparency, promotion of dtizen-Qovemment
partnership, greater accountability and reduction in corruption
are stated to tie the salient features of the Act of 2005.
Development and proper implementatitin ,of essential and
constitutionally protected laws such as Mahatma Gandhi Rural C
Guarantee Act, 2005, Rightto 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
f' fiscal resources and the preservation of confidentiality of D
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 E
even be an obligation of the state authorities to declare such
information suo mo to .. 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. " . · · F
' . . ; j - • ' ' -
. ·· .. 34. The Right to lnfon:nation, like any other right, is not an
unlimited or unrestricted righL 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 G
of the Act. Other provisions require that informatiO(l 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 1o of the Act of 2005.
H
52 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 35. Neither the Act of 2002 nor the Act of 2005, under its J..._
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
B 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 )..
c 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.
D
36. The Central and State Information Commissions have r
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 tights and obligations. Some
E section of experts opined that the Act of 2005 has been a useful
statutory instrument in achieving the goal of providing free and
effective information to the citizens as enshrined under Article
19(1 )(a) of the Constitution. It is true that democratisation of
information and knowledge resources is critical for people's
F empowerment especially to realise the entitlements as well as 'r '
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.
G 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,
H
NAMIT SHARMA v. UNION OF INDIA 53
[SWATANTER KUMAR, J.]

being in excess of fundamental authority, is a nullity. Inequality A
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 B
as to justify the discriminatory treatment or the classification,
subserving the object sought to be achieved. Mere
apprehension of the order being used against some persons
is no ground to hold it illegal or unconstitutional particularly when
its legality or constitutionality has not been challenged. {Ref. K. c
Karunakaran v. State of Kera/a & 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 D
determining who should be regarded as a class for the
purposes of legislation and in relation to law enacted on a
"'
I 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
E
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 F
., differentia which is the basis of the classification and the object
of the Act are distinct things and what is necessary is that there
must be a nexus between them. The basis of testing
constitutionality, particularly on the ground of discrimination,
:should not be made by raising a presumption that the authorities G
are acting in an arbitrary manner. No classification can be
A 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. H
54 SUPREME COURT REPORTS (2013] 13 S.C.R.

·A The Courts would respect the classification dictated by the _i.___
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
B Allottees of Residential Premises, Maharashtra v. Ranjit P.
Gohil [(2003) 9 sec 358]}.

38. The rule of equality or equal protection does not require
that a State must choose between attacking every aspect of a
C 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
D same time and may address itself to the phase of the problem
which seemed most acute to the legislative mind. A
classification based on experience was a reasonable
classification, and that it had a rational nexus to the object
thereof and to hold otherwise would be detrimental to the
E 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
F 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 nexu·s are the twin tests of reasonable
G 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
H
NAMIT SHARMA v. UNION OF INDIA 55
[SWATANTER KUMAR, J.]

_...l or reasons applicable to him and not applicable to others. Still A
such law can be constitutional. [Ref. Constutional Law of India
by H.M. Seervai (Fourth Edition) Vol.1]

40. In Maneka Gandhi v. Union of India & Anr. ((1978) 1
SCC 248] and Charania/ Sahu v. Union of India (supra), the B
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 competeoce
A of the legislature has to be left to the discretion and wisdom of
the framers, so long as it does not infringe any constitutional
c
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. D

)I. 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 E
vague, does not specify any qualification, and the stated
'experience' has no nexus to the object of ttie 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 F
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
G
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. H
56 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 42. Sub-Section (5) of Section 12 concerns itself with the l...
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
B knowledge and experience in law, science and technology,
social service, management, journalism, mass media or
administration and governance.

43. Correspondingly, Sub-Section (6) of Section 12 states
certain disqualifications for appointment to these posts. If such
c 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.
D
44. In order to examine the constitutionality of these
)f/
provisions, let us state the parameters which would finally help
the Court in determining such questions.

(a) Whether the law under challenge lacks legislative
E
competence?

(b) Whether it violates any Article of Part Ill of the
Constitution, particularly, Article 14?

F (c) Whether the prescribed criteria and classification r-
resulting therefrom is discriminatory, arbitrary and
has no nexus to the object of the Act?

(d) Lastly, whether it a legislative exercise of power
which is not in consonance with the constitutional
G 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
H form, lack the legislative competence. In other words, enacting
NAMIT SHARMA v. UNION OF INDIA 57

' [SWATANTER KUMAR, J.]
such a law falls squarely within the domain of the Indian A
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 8

- 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
c
the Articles under Part 111 of the Constitution is on the one who
questions the constitutionality and shows that despite such
presumption in favour of the legislation, it is unfair, unjust and
unreasonable.
D
,,. 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 E
the law unconstitutional. Dedaring 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
i- ensure the attainment of the object of the Act. These are the F
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 G
'. and experience in the fields stated in the provision. The
~
provision, thus, does not suffer from the infirmity of providing
no criteria resulting in the introduction of the element of
.arbitrariness or discrimination. The provisions require the
persons to be of eminence and with knowledge in the stated H
58 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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 pre-suppose a person to be a law graduate.
Similarly, a person with wide knowledge and experience in the
B 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 dc:iubt
c 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
0
clarified by the appropriate government in exercise of its
powers under Section 27 and 28 of the Act, respectively.

Constitutional Validity of Section 12(6)

E 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,
F 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
G 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 wliich
H
NAMIT SHARMA v. UNION OF INDIA 59
[SWATANTER KUMAR, J.]
could not have been the intent of law. It is also not clear as to A
c _)_.
what classification the framers of the Act intended to lay down.
The classification does not appear to have any nexus with the
object of the Act. There is no intelligible differentia to support
such classification. Which class is intended to be protected and
is to be made exclusively eligible for appointment in terms of 8
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 c
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
D
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
't· 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 E
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,
-f· reasonable classification and has no nexus to the object of the F
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 G
conformity with the constitutional mandate, particularly contained
··~ in Part Ill 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, H
60 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
8
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
C would be eligible? The Section is silent on that behalf.

52. The element of arbitrariness and discrimination is
evidenced by the language of Section 12(6) itself, which can
be examined from another point of view. No period has been
o 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 the.se classes can be stated to
be differently placed. This uncertainty is bound to bring in the
E 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
F 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
G unconstitutional. Thus, we would prefer to interpret the
provisions of Section 12(6) as applicable post-appointment
rather than pre-appointment of the Chief Information
Commissioner and Information Commissioners. In other words,
these disqualifications will only come into play once a person
H is appointed as Chief Information Commissioner/ Information
NAMIT SHARMA v. UNION OF INDIA 61
[SWATANTER KUMAR, J.]

J Commissioner at any level and he will cease to hold any office A
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. B
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
f, Information Commissioner.

Constitutional Validitll of Section 12{5}
c
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 D
purpose of the Act is to set up a practical regime of right to
r information for the citizens to secure and access information
under the control of the public authorities. The intention is to
provide and promote transparency and accountability in the
functioning of the authorities. This right of the public to be E
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
---1 for an effective adjudicatory process. The authority or tribunals F
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 G
+ 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 perf~rm
adjudicatory functions of quasi-judicial content are:- H
62 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 1. The Central/State Public Information Officer;

2. Officers senior in rank to the Central/State Public
Information Officer to whom an appeal would lie
under Section 19(1) of the Act; and

B 3. The Information Commission (Central/State)
consisting of Chief Information Commissioner and
Information Commissioners.

56. In terms of Section 12(5), the Chief information
c 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
0 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
E knowledge and experience' in the cited subjects as the criteria
for selection. It is not for the courts to spell out what ought to
be the qualifications or experience for appointment to a
particular post. Suffices it to say, that if the legislature itself
provides 'knowledge and experience' as the basic criteria of
F 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
G 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
H basic qualification as well as an experience in the respective
NAMIT SHARMA v. UNION OF INDIA 63
[SWATANTER KUMAR, J.]

,.J. field, both being the pre-requisites for this section. Ambiguity, A
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 B
unable to find that the provisions of Section 12(5) suffer from
the vice of arbitrariness or discrimination. However, without
hesitation, we would hasten to add that certain requirements
of law and procedure would have to be read into this provision
to sustain its constitutionality. c
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 D
provision unconstitutional. The courts can also bridge the gaps
j 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 E
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 F
I
capable of being explained by framing of proper rules or even
; by way of judicial pronouncements. In order to examine the
scope of this provision and its ramifications on the other parts
of the Act of 2005, it is important to refer back to the scheme
of the Act. Under the provisions of the Act, particularly, Sections
G
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 !is, where information
is required by a person and its furnishing is contested by the H
64 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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 arid the State Information
Commission to conduct an enquiry and direct the concerned
B 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
C 23, the jurisdiction of Civil Courts has been expressly barred.

60. Now, let us take an overview of the nature and content
of the disputes arising before such Commission. Before the
Public Information Officers, the controversy may fall within a
narrow compass. But the question before the First Appellate
D 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
E 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
F information', the Commission has to specifically determine and ·'r-
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
G 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
H objections in relation to the disclosure of information. Such
NAMIT SHARMA v. UNION OF INDIA 65
[SWATANTER KUMAR, J.]
functions, by no stretch of imagination, can be termed as A
..J '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

B) TRIBUNAL/COMMISSIONS AND THEIR FUNCTIONS :

61. Before dwelling upon determination of nature of
·1' Tribunals in India, it is worthwhile to take a brief account of the
scenario prevalent in some other jurisdictions of the world. c
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 well- D
established ombudsman system. The Tribunals have been
''t constituted to provide specialised adjudication, alongside the
I 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
E
of justice, have recently undergone some major reforms. A
serious controversy was raised whether the functioning of these
Tribunals was more akin to the Government functioning or were
they a part of the Court-attached system of administration of
justice. The Donoughmore Committee had used the term
. --; 'ministerial tribunals', and had regarded them as part of the
F
c\
--< 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 G
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 H
66 SUPREME COURT REPORTS (2013] 13 S.C.R.

A 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
B 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 '
c do not in all cases expressly enact that tribunals are to •
consist entirely of persons outside the Government
service, the use of the term 'tribunal' in legislation
undoubtedly bears this connotation, and the intention of the
Parliament to provide for the independence of tribunals is
clear and unmistakable."
D
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
E 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"
F 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
-
G 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
H justice prevalent in United Kingdom, a very subtle and clear

)_
NAMIT SHARMA v. UNION OF INDIA 67
[SWATANTER KUMAR, J.]
J
distinction from other laws is noticeable in as much as the A
i
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 B
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
c
'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 non-
furnishing of the information can approach the district courts of D
'j:· 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.
E
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 F
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 G
+ 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.
H

1
68 . SUPREME COURT REPORTS [2013] 13 S.C.R.

A 69. In most of the international jurisdictions, the .l..
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
B the administration. The persons appointed to these
Commissions were persons of legal background having legally
trained mind and judicial experience.

(a) NATURE OF FUNCTION

C 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
D 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
E 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
F clear contrast to the law prevailing in some other countries .y-
where information involving a third party cannot be disclosed
without consent of that party. However, the authority can direct
such disclosure, for reasons to be recorded, stating that the
public interest outweighs the private interest. Thus, it involves
G 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
H
NAMIT SHARMA v. UNION OF INDIA 69
[SWATANTER KUMAR, J.]
principles of natural justice and the procedure evolved by such A
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. B

71. In the <:;ase of Indian National Congress (/) 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 C
authority can be held to be quasi-judicial and the decision
rendered by it as a quasi judicial order. Thus, where there is a
/is between the two contesting parties and fhe statutory authority
is required to decide such a dispute, in absence of any other
attributes of a quasi-judicial authority, such a statutory authority D
is.a quasi-judicial 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 E
.· there is no /is 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.
F
· 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 /is. The
request of a party seeking information is allowed or disallowed
by the authorities below and is contested by both parties before G
the Commission. There may also be cases where a third party
is prejudicially affected by disclosure of the information
'
requested for. It is clear that the concerned authorities
particularly the Information Commission, possess the essential
attributes and trappings of a Court. Its powers and functions,
H

'
j
70 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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 -+
c 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
0
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
E an important countervailing interest is shown to be superior. In
Ram Jethmalani & Ors. v. Union of India [(2011) 8 SCC 1)
this Court has observed that the right to privacy is an integral
part of the right to life. Thus, the decision making process by
these authorities is not merely of an administrative nature. The
functions of these authorities are more aligned towards the +~
F judicial functions of the courts rather than mere administrative
acts of the State authority.

73. 'Quasi judicial' is a term whjch may not always be used
with utmost clarity and precision. An authority which exercises
G 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
H
NAMIT SHARMA v. UNION OF INDIA 71
[SWATANTER KUMAR, J.]
official's adjudicative acts. Quasi-judicial acts, which are A
..l 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.
B
In the United States, the phrase often covers judicial
decisions taken by an administrative agency - the test is
the nature of the tribunal rather than what it is doing. In
England quasi-judicial belongs to the administrative
category and is used to cover situations where the
administrator is bound by the law to observe certain forms c
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 D
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 E
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)
F
-+ 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.
G
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
H
72 SUPREME COURT REPORTS [2013) 13 S.C.R.

A juc;iicial power or function nor belonging to the judiciary as
constitutionally defined. [S.128(2)(i), C.P.C. (5 of 1908))." )..__

74. This Court in the case of State of Himachal Pradesh
& Ors. v. Raja Mahendra Pal & Anr. [1995 Supp (2) SCC .731),
held that the expression 'quasi judicial' has been termed to be
B
one which stands. midway a judicial and an administrative
function. If ttw 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
c 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 ii:t mere discretion of the authority but according to the facts
and. circumstances.of the case as determined upon an enquiry
helq .by the authority after giving an opportunity to the affected
D pa,rti,19s of being heard or wherever necessary of leading
evidence in .support of their contention. The authority and the
Tril;1µnal
. ~··J..
constituted under
'
the provisions .of the Act of 2005 are ~
cer,t?inly quasi-judicial authority/tribunal performing judicial
furiCtions.
E
75. Under the scheme of the Act of 2005; in terms of
Section 5, every public authority, both in the State and the
Centre, is required to nominate Public Information Officers to
effectuate and make the right to information a more effective
F right by furnishing the information asked for underthis 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 accordancewith law. This is a first appeal. Against
the order of this appellate authority, a second appeal lies with
G
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
H and to act in accordance with the procedure prescribed and in
NAMIT SHARMA v. UNION OF INDIA 73
[SWATANTER KUMAR, J.]
absence of any such prescribed procedure, to act in A
_A 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 B
Court in exercise of the Court's jurisdiction under Article 226
and/or Article 32 of the Constitution, respectively.

76. If one analyses the scheme of the Act of 2005 and the
multi-farious functions that the Information Commission is
,k
expected to discharge in its functioning, following features
c
become evident :

1. It has a /is 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'. D
One party asserting the right to a particular
information, the other party denying the same or
If(' even contesting that it was invasion into his
protected right gives. rise to a /is which has to be
adjudicated by the Commission in accordance with E
. law and, thus, cannot be termed .as 'administrative
function' simpliciter. It, therefore, becomes evident
that the appellate authority and. the Commission
dE;ial with /is in the sense it is understood in the legal
parlance. F
-+ 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 G
Authority are appealable to the Information
4 Commission, which are then open to challenge
before the Supreme Court or the High Court in
exercise of its extraordinary power of judicial
review. · H
74 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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 •
s- 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
c 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
D 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 i'
applicable to service law jurisprudence, before it
E can make a report and recommend disciplinary
action against the defaulters, including the persons
in service in terms of Section 20(2).
5. The functioning of the Commission is quite in line
F 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
G
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
H
NAMIT SHARMA v. UNION OF INDIA 75
[SWATANTER KUMAR, J.]
effect to, notwithstanding anything inconsistent therewith A
r ~ contained in the Official Secrets Act, 1923 and any other law
for the time being in force or in any instrui;nent 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 8
between the two. Thus, where the provisions of any other law
can be applied harmoniously, without any conflict, the question
of repugnancy would not arise.
78. Further, Section 23 is a provision relating to exclusion
1(
of jurisdiction of the Courts. In terms of this Section, no Court
c
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, D
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 E
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 F
-+ tribunals cannot be considered full and effective substitute to
the superior judiciary in discharging the function of constitutional
interpretation. They can, however, perform a supplemental role.
Thus, all decisions of the Tribunals were held to be subject to
scrutiny before the High Court under Article 226/227 of the G
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 H
76 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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
C essentially quasi-judicial in nature, the Chief information
Commissioner and members of the Commission should be the
persons possessing requisite qualification and experience in
the field of law and/or other specified fields. We have discussed
in some detail the requirement of a judicial mind for effectively
performing the functions and exercising the powers of the
D 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
E 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
F 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
G overcome administrative problems of great complexity. But
what is needed in a judicial tribunal which is intended to
supplant the High Court is legal training and experience. Similar
view was also expressed in the case of Union of India v. Madras
Bar Association [(2010) 11 SCC 1].
H
NAMIT SHARMA v. UNION OF INDIA 77
[SWATANTER KUMAR, J.]
81. Further, in the case of L. Chandra Kumar (supra) A
)._
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 8
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 c
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 D
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 E
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
value-discounting the judicial members would render the
tribunal less effective and efficacious than the High Court.
F
+ 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 G
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 H
78 SUPREME COURT REPORTS [2013] 13 S.C.R.

A overlook these vital and important aspects. It must not be
forgotten that what is permissible to be supplanted by A
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
B 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.
c 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
D Commission, as the case may be, is vested with dual
jurisdiction. It is the appellate authority against the orders
passed by the first appellate authority, the Information Officer, "}
in terms of Section 19(1) of the Act of 2005, while additionally
it is also a supervisory and investigative authority in terms of
E 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
F 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
G
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 simp/iciter
H
NAMIT SHARMA v. UNION OF INDIA 79
[SWATANTER KUMAR, J.]
but is quasi-judicial in nature. It exercises powers and functions A
which are adjudicatory in character and legal in nature. Thus,
the requirement of law, legal procedures, and the protections
would apparently be essential. The finest exercise of quasi-
judicial discretion by the Commission is to ensure and
effectuate the right of information recognized under Article 19 B
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
c
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 D
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 E
important cog in and is part of court attached system of
administration of justice unlike a ministerial tribunal which is
more influenced and controlled and performs functions akin to
machinery of administration.
--t
F
(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 G
-+ 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 H
80 SUPREME COURT REPORTS {2013] 13 S.C.R.

A in all administrative \,Jnits 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
B level. The Assistant Public Information Officers are to perform
dual functions - (1) to receive the applications for information;
and (2) to receive appeals under the Act. The applications for
information are to be forwarded to the concerned Information
Officer and the appeals are to be forwarded to the Central
c 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
0
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
sub-district level. The appeals, under Section 19(1) of the Act,
E 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
F Appellate Officer. These officers are required to dispose of
+-
such application or appeal within the time schedule specified
under the provisions of the Act. There is also no qualification
or experience required of these designated officers to whom
the first appeal would lie. However, in contradistinction, Section
G 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.
H
NAMIT SHARMA v. UNION OF INDIA 81
[SWATANTER KUMAR, J.]
J.. 88. As already noticed, in terms of Section 12(5), the Chief A
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 8
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 c
business or pursuing any profession.

89. The requirement of legal person in a quasi-judicial body
has been internationally recognized. We have already referrP.d,
amongst others, to the relevant provisions of the respective
Information Acts of the USA, UK and Canada. Even in the D
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 1O years. Along with this E
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
-"'4 Council after consultation with the leader of every recognized F
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 pre-eminent role within this Administrative Tribunal by
ensuring a fair, timely and impartial adjudication process for G
human rights complaints, for the benefit of all concerned.
-+
90. As already noticed, in t.he United Kingdom, the
Information Rights Tribunal and the Information Commissioners
are to deal with the matters arising from both, the FOIA as well
H
82 SUPREME COURT REPORTS [2013] 13 S.C.R.

A as the Data Protection Act, 1998. These tribunals are
discharging quasi-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
B 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.
c 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
D concerned person under that law is required to possess both
a degree as well as experience in the legal field. Such
experie·nce inevitably relates to working in that field. Only then,
the twin criteria of requisite qualification and experience can
be satisfied.

E 91. It may be of some relevance here to note that in UK,
the Director in the office of the Government Information Service,
an authority created under the Freedom of Information Act, 2000
possesses a degree of law and has been a member of the Bar
of the District of Columbia and North Carolina in UK. The
F Principal Judge of Information Rights Jurisdiction in the First-
tier Tribunal, not only had a Jaw 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
G 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.
H
NAMIT SHARMA v. UNION OF INDIA 83
[SWATANTER KUMAR, J.]
~

.A 93. In India, in terms of sub-Section (5), besides being a 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 B
connotation. It pre-supposes that a person should have the
requisite qualification in law as well as experience in the field
of law. However, it is worthwhile to note that having a
~·
qualification in law is not equivalent to having experience in law
and vice-versa. 'Experience in law', thus, is an expression of c
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
D
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 E
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.
...,. F
Similarly, wide knowledge and experience in other fields would
.;
have to be construed as experience coupled with basic
educational qualification in that field.

94. Primarily it may depend upon the language ofthe rules
which govern the service but it can safely be stated as a rule G
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 H
....
84 SUPREME COURT REPORTS [2013] 13 S.C.R.

A absence of a specific language of the provision, it is not J..,
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
B 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
)-._
c appointments. Before a person becomes eligible for being
promoted to the post of Principal, Class II or Principal, Class-
I, he must possess a Degree or Diploma in Engineering, as
specified in the Schedule. The fact that the person had worked
as a Principal for a decade would not lead to a situation of
accepting that the person was qualified to hold the post. The
D
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
E 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
F 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
G
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
H

1,__
NAMIT SHARMA v. UNION OF INDIA 85
[SWATANTER KUMAR, J.]
take classes and teach the students. A person who does A
~
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 8
respective field referred to in Section 12(5) of the Act of 2005
would be an experience gained by the person upon possessing
the basic qualification in that field. Of course, the matter may
.,.( be somewhat different where the field itself does not prescribe
any degree or appropriate course. But it would be applicable c
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 D
functions are adjudicatory in nature. They are required to give
-Ir 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 E
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 F
and embodies one of the three pillars on which the very
~

foundation of natural justice jurisprudence rests. It is informative
to the claimant of the basis for rejection of his claim, as well
as provides the grounds for challenging the order before the
higher authority/constitutional court. The reasons, therefore, G
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 H
86 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B and Leasing, Kata 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
C performing the adjudicatory and quasi judicial functions in
accordance with the statutory provisions and the scheme of the
Act of 2005. They are to examine whether the information
required by an applicant falls under any of the exemptions stated
under Section 8 or the Second Schedule of the Act of 2005.
D Some of the exemptions under Section 8, particularly, sub-
sections (e), (g) and U) 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
E 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
F 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
G of the Constitution. In other words, the deciding authority ought
to be conscious of the constitutional concepts which hol<;l
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
H postulates passing of a reasoned order in light of the above.
NAMIT SHARMAv. UNION OF INDIA 87
[SWATANTER KUMAR, J.]
A reasoned order would help the parties to question the A
,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
8
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 C
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 D
performed by a legally qualified and trained mind possessing
the requisite experience. The same should also be applied to
the designation of the first appellate authority, i.e., the senior
officers to be designated at the Centre and State levels.
However, in view of language of Section 5, it may not be E
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 F
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 G
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 H
88 SUPREME COURT REPORTS [2013] 13 S.C.R.

A and basic rights contained in Part Ill of the Constitution and their 1-.
protection itself has been treated as the basic structure of the
Constitution.

101. Besides separation of powers, the independence of
B judiciary is of fundamental constitutional value in the structure
of our Constitution. Impartiality, independence, fairness and
reasonableness in judicial decision making are the hallmarks
of the Judiciary. If 'Impartiality' is the soul of Judiciary,
'Independence' is the life blood of Judiciary. Without
C 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
D 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
E 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
F eminence, with knowledge and experience in the specified +-
fields and should preferably have a judicial background. They
should possess judicial acumen and experience to fairly and
effectively deal with the intricate questions of law that would
come up for determination before the Commission, in its day-
to-day working. The Commission satisfies abecedarians of a
G 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
H of two, one being a judicial member while the other being a
NAMIT SHARMA v. UNION OF INDIA 89
[SWATANTER KUMAR, J.]

j_ qualified person from the specified fields to be called an expert A
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
-I
in that field and experience gained thereafter and secondly that
legally qualified, trained and experienced persons would better B
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 c
balance of justice either way. Malcolm Gladwell said, "the key
to good decision making is not knowledge. It is understanding.
We are swimming in the former. We are lacking in the latter''.
The requirement of a judicial mind for manning the judicial
tribunal is a well accepted discipline in all the major international D
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
E
functions in accordance with the provisions of the Act of 2005.
0

Such an approach wou ld 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
F

. 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). G

1. -1- 104. As a natural sequel to the above, the question that
comes up for consideration is as to what procedure should be
adopted to make appointments to this august body. Section
12(3) states about the High-powered Committee, which has to H
90 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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 \-

B 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 .~
c 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
0 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 fielos in terms of Section f
12(5) of the Act of 2005. It will be incumbent and in conformity
with the scheme of the Act that the appointments to the post
E 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
F Information Commissioners of that State Commission. In the ),
case of appointment of members to the respective
Commissions from other specified fields, the OoPT in the
Centre and the concerned Ministry in the States should prepare
a panel, after due publicity, empanelling the names proposed
G 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
H furtherance to the recommendations of the High Powered
NAMIT SHARMA v. UNION OF INDIA 91
[SWATANTER KUMAR, J.]
Committee, appointments to the Central and State Information A
,,..l
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 such agency should not be restricted B
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
c
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
D
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 b.e 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 E
Anr. v. Union of India & Anr. [(2011) 4 SCC 1] had also
adopted a similar approach and with respect we reiterate the
same.

_J,_ 105. Giving effect to the above scheme would not only F

- further the cause of the Act but would attain greater efficiency,
and accuracy 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 G
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. H
'
92 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 2. The provisions of Sections 12(5) and 15(5) of the J...,
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
B 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
c the experience gained thereafter. Further, without
., any peradventure and veritably, we state that
appointments of legally qualified, judicially trained
and experienced persons would certainly manifest
in more effective serving of the ends of justice as
well as ensuring better administration of justice by
D
the Commission. It would render the adjudicatory
process which involves critical legal questions and
nuances of law, more adherent to justice and shall -f
enhance the public confidence in the working of the
Commission. This is the obvious interpretation of
E 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
F to read these provisions as having effect 'post- :4
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
G 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
H
NAMIT SHARMA v. UNION OF INDIA 93
[SWATANTER KUMAR, J.]
_A hope that these provisions would be amended at A
.
~
the earliest by the legislature to avoid any ambiguity
or impracticability and to make it in consonance
with the constitutional mandates.

5. We also direct that the Central Government and/or B
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
c
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 D
functions of 'judicial' as well as 'quasi-judicial'
-'.\- nature and having the trappings of a Court. It is an
important cog and is part of the court attached
system of administration of justice, unlike a
ministerial tribunal which is more influenced and E
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
~ F
terms of Section 5 of the Act of 2005) preferably
....
/ should be the persons possessing a degree in law
or having adequate knowledge and experience in
the field of law.

8. The Information Commissions at the respective G
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 H
94 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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
c 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
D Chief Justice of India and Chief Justices of the High
Courts of the respective States, as the case may
be.

10. The appointment of the Information Commissioners
E 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-
F 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
G ·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.
H