Supreme Court of India
UNION OF INDIAversusNAMIT SHARMA
- Citation
- 2013 INSC 587
- Decided
- 3 September 2013
- Disposal
- Case Allowed
- Bench
- A K PATNAIK
Holding
The Court held that Sections 12(5) and 15(5) of the Right to Information Act are constitutionally valid, the Act does not require a judicial background or a basic degree, the Information Commissions discharge administrative functions, and the direction to compel rule‑making within six months was erroneous.
Summary
The Supreme Court reviewed its own September 2012 judgment that upheld Sections 12(5), 12(6), 15(5) and 15(6) of the Right to Information Act, 2005, on the ground that the earlier decision contained a manifest error of law. The Court held that the provisions merely require persons of eminence with wide knowledge and experience and do not mandate a judicial background or a basic degree in the relevant field. It clarified that the Information Commissions perform administrative, not judicial, functions, and therefore the separation of powers doctrine does not compel the appointment of former judges. The Court also rejected the direction to compel the rule‑making authority to frame rules within six months, as the statute uses the word "may". Consequently, the review petition was allowed, the earlier directions were recalled, and the Constitutionality of the contested sections was affirmed. The judgment further directed that appointment committees must disclose the eminence, knowledge and experience of candidates and that post‑appointment disqualification provisions apply only after appointment.
Issues considered
- Whether Sections 12(5) and 15(5) of the Right to Information Act, 2005 are ultra vires the Constitution on the ground of vagueness and violation of Article 14.
- Whether the requirement of a "judicial mind" or judicial experience for Information Commissioners is mandated by the statute.
- Whether the Information Commissions exercise judicial or administrative functions under the Act.
- Whether the Court can read a basic degree requirement into Sections 12(5) and 15(5) by statutory interpretation.
- Whether the direction to the Central Government to frame rules within six months is permissible under Sections 27 and 28 of the Act.
Legislation cited
- Constitution of Indias. Article 137, s. Article 14, s. Article 141, s. Article 21, s. Article 32
- Right to Information Act, 2005s. 12(3), s. 12(5), s. 12(6), s. 15(3), s. 15(5), s. 15(6), s. 18, s. 19, s. 20, s. 27, s. 28
- Supreme Court Rules, 1966s. Order XL
Subjects
Right to Information ActAppointment criteriaStatutory interpretationReview under Article 137Administrative vs judicial functionEquality clause Article 14Separation of powersSupreme Court Rules
Judgment
[2013] 13 S.C.R. 96
A UNION OF INDIA
)..
v.
NAMIT SHARMA
REVIEW PETITION [C] No.2309 OF 2012
IN
B WRIT PETITION [CJ N0.210 OF 2012
SEPTEMBER 3, 2013
[A.K. PATNAIK AND A.K. SIKRI, JJ.) "
)-..
c Constitution of India, 1950 - Article 137 - Review under
- Held: Is confined to only errors apparent on the face of the
record - On an application for review, the Supreme Court can
reverse or modify its decision on the ground of mistake of law
or fact - In the instant case, as the judgment under review
D suffered from mistake of law, directions and declarations in
the judgment under review recalled - Supreme Court Rules,
1966 - Order XL.
+
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
Appointment of Central Information Commissioner I
E
Information Commissioner - Eligibility criteria - ss. 12(5) and
15(5) providing that Chief Information Commissioner and
Information Commissioners shall be persons with eminence
in public life with wide knowledge and experience in law,
science and technology, social service, management,
F journalism, mass media or administration and governance - ).._
Constitutional validity of ss.12(5) and 15(5) - Upheld in the
judgment under review, but with the rider that the expression
...
'knowledge and experience' appearing in the provisions would
mean and include a basic degree in the respective field and
G the experience gained thereafter; and that appointments of
legally qualified, judicially trained and experienced persons
would certainly manifest in more effective serving of the ends .~ -
H
of justice as well as ensuring better administration of justice
96
-
UNION OF INDIAv. NAMIT SHARMA 97
.J_ by the Information Commission - Held: ss.12(5) and 15(5) are A
not ultra vires the Constitution - Said provisions, however, do
not prescribe any basic qualification in the respective fields
of work - In the judgment under review, missing words were
"read into" ss.12(5) and 15(5) and it was held that a basic
degree in the respective field was required - This "reading B
"""" -
into" the provisions of ss. 12(5) and 15(5), words which the
Parliament has not intended is contrary to the principles of
statutory interpretation - The court could not correct or make
up for any deficiencies or omissions in the language of the
statute - ss.12(5) and 15(5) do not provide that the Chief c
Information Commissioner and Information Commissioners
shall be persons having judicial experience, training and
acumen - Yet, in the judgment under review, it was held that
for effectively petforming the functions and exercising the
powers of the Information Commission, there is a requirement
D
of a judicial mind and therefore persons eligible for
__.. appointment should preferably have judicial background and
possess judicial acumen and experience - Such direction
amounted to encroachment in the field of legislation - Since
Information Commissions do not exercise judicial powers, the
constitutional principles of separation of powers and
E
independence of judiciary cannot be relied upon to direct that
they must be manned by persons with judicial training,
experience and acumen or former Judges of the High Court
.'
'
_;..
or the Supreme Court - Interpretation of Statute.
F
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
~
Matter involving intricate questions of law - Duty of the Chief
Information Commissioner - Held: Wherever, the Chief
Information Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter coming G
up before the Information Commission, he will ensure that the
.._. matter is heard by an Information Commissioner who has wide
knowledge and experience in the field of law.
....,..,..
Right to Information Act, 2005 - ss. 12(6) and 15(6)-
H
98 SUPREME COURT REPORTS [2013] 13 S.C.R.
A Appointment of Chief Information Commissioner/Information
Commissioner - Disqualification provision u/ss.12(6) and
15(6) - Interpretation and effect of - Held: ss. 12(6) and 15(6)
do not debar a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may
B be, or a person holding any other office of profit or connected
with any political party or carrying on any business or pursuing
any profession from being considered for appointment as
Chief Information Commissioner/Information Commissioner
- But after such person is appointed as Chief Information
c Commissioner or Information Commissioner, he has to
discontinue as Member of Parliament or Member of the
Legislature of any State or Union Territory, or discontinue to
hold any other office of profit or remain connected with any
political party or carry on any business or pursue any
profession during the period he functions as Chief Information
0
Commissioner/Information Commissioner.
Right to Information Act, 2005 - ss. 12(3) and 15(3) -
Committee u/ss. 12(3) and 15(3) for appointment of Chief
Information Commissioner/Information Commissioners -
E Role and duty of - Held: The Committee while making
recommendations for such appointment must mention
against the name of each candidate recommended, the facts
to indicate his eminence in public life, his knowledge in the
particular field and his experience in the particular field and
F these facts must be accessible to the citizens as part of their
right to information under the Act after the appointment is
made.
Right to Information Act, 2005 - ss. 18, 19 and 20 -
G Functions of the Information Commission - Nature of - Held:
The Information Commission discharges administrative
..~
functions, not judicial functions - While performing the
administrative functions, however, the Information
Commissions are required to act in a fair and just manner
following the procedure laid down in ss. 18, 19 and 20 - But
H
UNION OF INDIA v. NAMIT SHARMA 99
_A this does not mean that the Information Commissioners are A
like Judges or Justices who must have judicial experience,
training and acumen.
Right to Information Act, 2005 - ss. 27 and 28 - Direction
given in the judgment under review, to the Central
B
Government and/or the competent authority to frame practice
and procedure related rules within a period of six months -
Challenge to - Held: The direction is patently erroneous
since the use of word "may" in ss. 27 and 28 make it clear that
the Parliament has left it to the discretion of the rule making
authority to make rules to carry out the provisions of the Act c
- Hence, no mandamus can be issued to the rule making
authority to make the rules either within a specific time or in
a particular manner- The Court cannot direct the rule making
authority to make the rules where the Legislature confers
discretion on the rule making authority to make rules. D
·\- The respondent had filed a Writ Petition filed under
Article 32 of the Constitution, praying for declaring
Sections 12(5), 12(6), 15(5) and 15(6) of the Right to
Information Act, 2005 as ultra vires the Constitution E
contending that the said provisions, whereby eligibility
criteria was l(iid down for appointment of Central
Information Commissioners and State Information
Commissioners, were vague and had no nexus with the
"
_._ object of the Act and were violative of Article 14 of the F
Constitution and while enacting these provisions, the
Parliament had not exercised legislative power in
consonance with the constitutional principles and
guarantees.
The Supreme Court disposed of the writ petition G
--! holding the provisions of Sections 12(5) and 15(5) of the
Act of 2005 to be constitutionally valid, but with the rider
that, to give it a meaningful and purposive interpretation,
the expression 'knowledge and experience' appearing in
these provisions would mean and include a basic degree H
100 SUPREME COURT REPORTS (2013] 13 S.C.R.
A in the field and the experience gained thereafter; and that
appointments of legally qualified, judicially trained and
experienced persons would certainly manifest in more
effective serving of the ends of justice as well as ensuring
better administration of justice by the Information
8 Commission. Further as opposed to declaring the
provisions of Section 12(6) and 15(6) unconstitutional, the
Supreme Court read these provisions as having effect
'post-appointment' i.e. cessation/termination of holding of
office of profit, pursuing any profession or carrying any >--
C business is a condition precedent to the appointment of
a person as Chief Information Commissioner or
Information Commissioner at the Centre or State levels.
The Supreme Court further directed the Central
Government and/or the competent authority to frame all
D practice and procedure related rules to make working of
the Information Commissions effective and in ~-
consonance with the basic rule of law and such rules be
framed with particular reference to Section 27 and 28 of
the Act within a period of six months. The Supreme Court
E also held that the Commission is a 'judicial tribunal'
performing functions of 'judicial' as well as 'quasi-judicial'
nature and having the trappings of a Court, unlike a
ministerial tribunal which is more influenced and
controlled and performs functions akin to the machinery
F of administration and thus it will be just, fair and proper
that the first appellate authority (i.e. the senior officers to
be nominated in terms of Section 5 of the Act of 2005)
preferably should be the persons possessing a degree
in law or having adequate knowledge and experience in
G the field of law.
The said judgment of the Supreme Court was
challenged in the instant Review Petitions filed under
Article 137 of the Constitution. The question which arose
for consideration was whether the reasoning and
H
UNION OF INDIA v. NAMIT SHARMA 101
directions in the judgment under review were at variance A
with the clear and simple language employed in the
different provisions of the Right to Information Act, 2005
and whether the judgment under review suffered from
manifest errors of law apparent on the face of the record.
B
Allowing the review petition, the Court
HELD:1. Review of a judgment or order of this Court
under.Article 137 of the Constitution is confined to only
errors apparent on the face of the record as provided in
Order XL Rule 1 of the Supreme Court Rules, 1966. If a C
reasoning in the judgment under review is at variance
with the clear and simple language in a statute, the
judgment under review suffers from a manifest error of
law, an error apparent on the face of the record, and is
liable to be rectified. Under Order XL of the Supreme D
Court Rules, 1966, this Court can review its judgment or
order on the ground of error apparent on the face of
record and on an application for review can reverse or
modify its decision on the ground of mistake of law or
fact. [Paras 17, 32] [128-A-C; 146-A] E
Commissioner of Sa/es Tax, J & K and Ors. v. Pine
Chemicals Ltd. and Ors. (1995) 1 SCC 58: 1994 (5) Suppl.
SCR 123 - relied on.
2.1. Sections 12(5) and 15(5) of the Act provide that F
Chief Information Commissioner and Information
Commissioners shall be persons of eminence in public
life with wide knowledge and experience in law, science
and technology, social service, management, journalism,
mass media or administration and governance. These G
provisions of the Act do not provide that the Chief
Information Commissioner and Information
Commissioners shall be persons having judicial
experience, training and acumen and yet this Court has
held in the judgment under review that for effectively H
102 SUPREME COURT REPORTS [2013] 13 S.C.R.
A performing the functions and exercising the powers of the
l.
Information Commission, there is a requirement of a
judicial mind and therefore persons eligible for
appointment should preferably have judicial background
and possess judicial acumen and experience. [Para 18]
B [128-E-G]
2.2. Sections 18, 19 and 20 of the Act confer powers
on the Information Commission. It is clear from the plain
and simple language of Sections 18, 19 and 20 of the Act
that the functions of the Information Commissions are )....
c limited to ensuring that a person who has sought
information from a public authority in accordance with his
right to information conferred under Section 3 of the Act
is not denied S\ICh information except in accordance with
the provisions of the Act. Section 2(j) defines "Right to
D Information" conferred on all citizens under Section 3 of
the Act to mean the right to information accessible under
the Act, "which is held by or under the control of any
public authority". While deciding whether a citizen should
or should not get a particular information "which is held
E by or under the control of any public authority", the
Information Commission does not decide a dispute
between two or more parties concerning their legal rights
other than their right to get information in possession of
a public authority. This function obviously is not a judicial
F function, but an administrative function conferred by the )..__
t~
Act on the Information Commissions. [Paras 19, 20] [129-
~
A; 134-H; 135-A-F]
2.3. In the judgment under review, this Court has held
that there is a /is to be decided by the Information
G Commission inasmuch as the request of a party seeking
information is to be allowed or to be disallowed and
hence requires a judicial mind. But the tis that the +-
Information Commission has to decide was only with
regard to the information in possession of a public
H
UNION OF INDIA v. NAMIT SHARMA 103
.J.. authority and the Information Commission was required A
to decide whether the information could be given to the
person asking fo.r it or should be withheld in public
interest or any other interest protected by the provisions
of the Act. The Information Commission, therefore, while
deciding this /is does not really perform a judicial function, B
but performs an administrative function in accordance
with the provisions of the Act. [Para ~1] [135-F-H; 136-A]
2.4. In the judgment under review, this Court has also
--< held that the Information Commission decides matters
which may affect the rights of third parties and hence c
there is requirement of judicial mind. To protect the rights
of third parties, Section 11 of the Act provides that where
a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to
disclose any information or record or part thereof, may D
~- on a request made under the Act, which relates to or has
been supplied by a third party and bas been treated as
confidential by that third party, a written notice will have
to be given to such third party inviting such party to make
a submission in writing or orally, regarding whether the E
information should be disclosed, and such submission
of the third party can be kept in view while taking a
decision about disclosure of the information. The
decision taken by the Central Public lnformt;ttion Officer
or the State Public Information Officer, as the case may F
be, under Section 11 of the Act is appealable under
Section 19 of the Act before the Information Commission
and when the Information Commission decides such an
appeal, it decides only whether or not the information
should be furnished to the citizen in view of the objection G
of the third party. Here also the Information Commission
~- does not decide the rights of a third party but only
whether the information which is held by or under the
control of a public authority in relation to or supplied by
that third party could be furnished to a citizen under the H
104 SUPREME COURT REPORTS [2013] 13 S.C.R.
A provisions of the Act. Hence, the Information Commission
discharges administrative functions, not judicial
functions. [Para 22) [136-E"H; 137-A-E]
2.5. While performing the administrative functions,
however, the Information Commissions are required to
8
act in a fair and just manner following the procedure laid
down in Sections 18, 19 and 20 of the Act. But this does
not mean that the Information Commissioners are like
Judges or Justices who must have judicial experience,
C training and acumen. [Para 23] (137-F]
Harinagar Sugar Mills Ltd. v. Shyam Sunder
Jhunjhunwala and Others AIR 1961 SC 1669: 1962 SCR 339
- relied on.
0 Bharat Bank Ltd., Delhi v. Employees of Bharat Bank and
Ors. AIR 1950 SC 188: 1950 SCR 459; S.P. Sampath
Kumar v. Union of India and Ors. (1987) 1 SCC 124: 1987
(1) SCR 435 and L. Chandra Kumar v. Union of India and
Ors. (1997) 3 sec 261: 1997 (2) SCR 1186 - referred to.
E B. Johnson & Co. (Builders), Ltd. v. Minister of Health
(1947) 2 All England Law Reports 395 - referred to.
Ma/likarjuna Rao and Ors. v. State of Andhra Pradesh
and Ors. (1990) 2 SCC 707: 1990 (2) SCR 418; Bushell v.
F Secretary of State for the Environment (1980) 2 All ER 608 ,L
HL; Centre for PIL and Anr. v. Union of India and Anr. (2011)
4 SCC 1 and Indra Das v. State of Assam (2011) 3 SCC 380:
2011 (4) SCR 289 - cited.
3. Once the Court is clear that Information
G Commissions do not exercise judicial powers and
actually discharge administrative functions, the Court ¥-
cannot rely on the constitutional principles of separation
of powers and independence of judiciary to direct that
Information Commissions must be manned by persons
H
\
UNION OF INDIA v. NAMIT SHARMA 105
; with judicial training, experience and acumen or former A
~ Judges of the High Court or the Supreme Court. The
principles of separation of powers and independence of
judiciary embodied in our Constitution no doubt require
that judicial power should be exercised by persons with
judicial experience, training and acumen. But, the powers B
exercised by the Information Commissions under the Act
were not earlier vested in the High Court or subordinate
court or any other court and are not in any case judicial
powers and therefore the Legislature need not provide
for appointment of judicial members in the Information c
Commissions. Perhaps for this reason, Parliament has
not provided in Sections 12(5) and 15(5) of the Act for
appointment of persons with judicial experience and
acumen and retired Judges of the High Court as
Information Commissioners and retired Judges of the D
Supreme Court and Chief Justice of the High Court as
Chief Information Commissioner and any direction by this
\"- Court for appointment of persons with judicial
experience; training and acumen and· Judges as
Information Commissioners and Chief Information
E
Commissioner would amount to encroachment in the field
of legislation. [Paras 24, 25) [138-E-G; 139-G-H; 140-A-C]
Union of India v. R. Gandhi, President Madras Bar
Association (2010) 11 SCC 1: 2010 (6) SCR 857; Pareena
Swarup v. Union of India (2008) 14 SCC107: 2008 (13) SCR F
1217- distinguished.
P. Ramachandra Rao v. State of Karnataka (2002) 4
sec 578 - followed.
·4, Moreover, Sections 12(5) and 15(5) of the Act while G
providing that Chief Information Commissioner and
+ Information Commissioners shall be persons with
eminence in public life with wide knowledge and
experience in law, science and technology, social service,
management, journalism, mass media or administration H
106 SUPREME COURT REPORTS [2013] 13 S.C.R.
A and governance, also does not prescribe any basic
qualification which such persons must have in the
respective fields in which they work. In the judgment
under review, however, this Court has "read into"
Sections 12(5) and 15(5) of the Act missing words and
B held that such persons must have a basic degree in the
respective field as otherwise Sections 12(5) and 15(5) of
the Act are bound to offend the doctrine of equality. This
"reading into" the provisions of Sections 12(5) and 15(5)
of the Act, words which Parliament has not intended is
c contrary to the principles of statutory interpretation
recognised by this Court. The court could not correct or
make up for any deficiencies or omissions in the
language of the statute. [Para 26) [140-E-H; 141-A]
Union of India and Anr. v. Deoki Nandan Aggarwal 1992
D Supp. (1) sec 323 - relied on.
5. In the judgment under review, this Court has also
held that if Sections 12(5) and 15(5) of the Act are not
read in the manner suggested in the judgment, these
E Sections would offend the doctrine of equality. But
Sections 12(5) and 15(5) of the Act do not discriminate
against any person in the matter of appointment as Chief
Information Commissioner and Information
Commissioners and so long as one is a person of
F eminence in public life with wide knowledge and
experience in law, science and technology, social service,
management, journalism, mass media or administration
and governance, he is eligible to be considered for
appointment as Chief Information Commissioner or
G Information Commissioner. However, to ensure that the
equality clause in Article 14 is not offended, the persons
to be considered for appointment as Chief Information
Commissioner or Information Commissioner should be
from different fields, namely, law, science and
technology, social service, management, journalism,
H
UNION OF INDIA v. NAMIT SHARMA 107
mass media or administration and governance and not A
l .A just from one field. [Para 27] [141-E-H; 142-A]
6. Sections 12(6) and 15(6) of the Act, however,
provide that the Chief Information Commissioner or an
Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or B
Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carry on
any business or pursue any profession. There could be
two interpretations of Sections 12(6) and 15(6) of the Act.
One interpretation could be that a Member of Parliament c
or Member of the Legislature of any State or Union
Territory, as the case may be, or a person holding any
other office of profit or connected with any political party
or carrying on any business or pursuing any profession
will not be eligible to be considered for appointment as· a D
Chief Information Commissioner and Information
Commissioner. If this interpretation is g"'en to Sections
12(6) and 15(6) of the Act, then it will obviously offend the
equality clause in Article 14 of the Constitution as it debars
such persons from being considered for appointment as E
Chief Information Commissioner and Information
Commissioners. The second interpretation of Sections
12(6) and 15(6) of the Act could be that once a person is
appointed as a Chief Information Commissioner or
~ Information Commissioner, he cannot continue to be a F
Member of Parliament or Member of the Legislature of any
State or Union Territory, as the case may be, or hold any
other office of profit or remain connected with any political
party or carry on any business or pursue any profession.
If this interpretation is given to Sections 12(6) and 15(6) of G
the Act then the interpretation would effectuate the object
~ of the Act inasmuch as Chief Information Commissioner
and Information Commissioners would be able to perform
their functions in the Information Commission without
being influenced by their political, business, professional
H
108 SUPREME COURT REPORTS [2013] 13 S.C.R.
A or other interests. It is this second interpretation of ;.__
Sections 12(6) and 15(6) of the Act which has been rightly f
given in the judgment under review and Sections 12(6) and
15(6) of the Act have been held as not to be violative of
Article 14 of the Constitution. [Para 28) [142-A-H; 143-A]
B 7. In the judgment under review, the Central
Government and/or the competent authority have been
directed to frame all practice and procedure related rules
to make working of the Information Commissions
effective and in consonance with the basic rule of law
c and with particular reference to Sections 27 and 28 of the
Act within a period of six months. The use of word "may"
in Sections 27 and 28 of the Act make it clear that
Parliament has left it to the discretion of the rule making
authority to make rules to carry out the provisions of the
D Act. Hence, no mandamus can be issued to the rule
making authority to make the rules either within a specific
time or in a pal1icular manner. If, however, the rules are
made by the rule making authority and the rules are not
in accordance with the provisions of the Act, the Court
E can strike down such rules as ultra vires the Act, but the
Court cannot direct the rule making authority to make the
rules where the Legislature confers discretion on the rule
making authority to make rules. In the judgment under
review, therefore, this Court made a patent error in
F directing the rule making authority to make rules within )..._
a period of six months. [Para 29) [143-C-D; F-H; 144-A]
8. Nonetheless, the selection and appointment of
Chief Information Commissioner and Information
Commissioners has not been left entirely to the discretion
G of the Central Government and the State Government
under Sections 12 and 15 of the Act. The basic
requirement for a person to be appointed as a Chief +
Information Commissioner or Information Commissioner
is that he should be a person of eminence in public life
H
UNION OF INDIA v. NAMIT SHARMA 109
with wide knowledge and experience in a particular field. A
Parliament has insisted on this basic requirement having
regard to the functions that the Chief Information
Commissioner and Information Commissioners are
required to perform under the Act. (Para 30] (144-B, E-F]
B
9. However, the orders passed by Information
Commissions have at times· gone beyond the provisions
of the Act and the Information Commissions have not
been able to harmonise the conflicting interests indicated
in the preamble and other provisions of the Act. The
reasons for this experience about the functioning of the C
Information Commissions could be either that persons
who do not answer the criteria mentioned in Sections
12(5) and 15(5) have been appointed as Chief Information
Commissioner or Information Commissioners or that the
persons appointed answer the criteria laid down in D
Sections 12(5) and 15(5) of the Act but they do not have
the required mind to balance the interests indicated in the
Act and to restrain themselves from acting beyond the
provisions of the Act. This experience of the functioning
of the Information Commissions prompted this Court to E
issue the directions in the judgment under review to
appoint judicial members in the Information
Commissions. B.ut it is for Parliament to com;ider
_,
' whether appointment of judicial members in the
Information Commissions will imp.rove the functioning of F
the Information Commissions and as Sections 12(5) and
15(5) of the Act do not provide for appointment of judicial
members in the Information Commissions, this direction
was an apparent error. Sections 12(5) and 15(5) of the
Act, however, provide for appointment of persons with G
wide knowledge and experience in law. This Court hopes
that persons with wide knowledge and experience in law
will be appointed in the Information Commissions at the
Centre and the States. Accordingly, wherever Chief
H
110 SUPREME COURT REPORTS [2013] 13 S.C.R.
A Information Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter
coming before the Information Commissions, he will
ensure that the matter is heard by an Information
Commissioner who has such knowledge and experience
B in law. [Para 31) [145-B-H]
10. As the judgment under review suffers from
mistake of law, the directions and declarations in the
judgment under review are recalled and following
C declarations and directions are given:
(i) Sections 12(5) and 15(5) of the Act are not ultra
vires the Constitution.
(ii) Sections 12(6) and 15(6) of the Act do not
D debar a Member of Parliament or Member of
the Legislature of any State or Union Territory,
as the case may be, or a person holding any
other office of profit or connected with any
political party or carrying on any business or
pursuing any profession from being
E
considered for appointment as Chief
Information Commissioner or Information
Commissioner, but after such person is
appointed as Chief Information Commissioner •
or Information Commissioner, he has to
F discontinue as Member of Parliament or
Member of the Legislature of any State or
Union Territory, or discontinue to hold any
other office of profit or remain connected with
any political party or carry on any business or
G pursue any profession during the period he
functions as Chief Information Commissioner
or Information Commissioner.
H
(iii) Only persons of eminence in public life with
-
UNION OF INDIA v. NAMIT SHARMA 111
wide knowledge and experience in the fields A
mentioned in Sections 12(5) and 15(5) of the
Act be considered for appointment as
Information Commissioner and Chief
Information Commissioner.
B
(iv) Persons of eminence in public life with wide
knowledge and experience in all the fields
mentioned in Sections 12(5) and 15(5) of the
Act, namely, law, science and technology,
social service, management, journalism, mass
media or administration and governance, be C
considered by the Committees under Sections
12(3) and 15(3) of the Act for appointment as
Chief Information Commissioner or
Information Commissioners.
D
(v) The Committees under Sections 12(3) and 15(3)
of the Act while making recommendations to
the President or to the Governor, as the case
may be, for appointment of Chief Information
Commissioner and Information Commiss- E
ioners must mention against the name of each
candidate recommended, the facts to indicate
his eminence in public life, his knowledge in
the particular field and his experience in the
particular field and these facts must be F
accessible to the citizens as part of their right
to information under the Act after the
appointment is made.
(vi) Wherever Chief Information Commissioner is
of the opinion that intricate questions of law G
will have to be decided in a matter coming up
before the Information Commission, he will
ensure that the matter is heard by an
Information Commissioner who has wide
H
112 SUPREME COURT REPORTS [2013] 13 S.C.R.
A knowledge and experience in the field of law. ~
~
[Para 32] [146-B-H; 147-A-F]
Case Law Reference:
1994 (5) Suppl. SCR 123 relied on Para 17
B
. (1947) 2 All ELR 395 referred to Paras 12, 21
1962 SCR 339 relied on Paras 9, 23
2010 (6) SCR 857 distinguished Paras 5, 16, )...
c 24
2008 (13) SCR 1217 distinguished Paras 16, 24 )-
(2002) 4 sec 578 followed Para 8
1992 supp. (1) sec 323 relied on Paras 8, 26
D
1950 SCR 459 referred to Para 5
1987 (1) SCR 435 referred to Para 5 'f
>-
1997 (2) SCR 1186 referred to Para 5
E
1990 (2) SCR 418 cited Para 10
(1980) 2 All ER 608 HL cited Para 12
(2011) 4 sec 1 cited Para 13
F 2011 (4) SCR 289 cited Para 15 }..-.
CIVIL ORIGINAL JURISDICTION : Review Petition (C) No.
2309 of 2012.
IN
G
Writ Petition (Civil) No. 210 of 2012.
+- ...
Under Article 32 of the Constitution of India.
WITH
H
UNIO~F INDIA v. NAMIT SHARMA 113
RP(C) No. 2675 of 2012 in WP(C) No. 210 of 2012. A
Amarjit Singh Chandhiok, ASG, M.S, Ganesh, Dr. Manish
Singhvi, lrshad Ahmad, AAG, Ritesh Kumar, Anoopam Prasad,
T.A. Khan, Nizam Pasha, Shweta Gupta, Honey Kumari,
Mallika Ahluwalia, Sidharth Tyagi, B.V. Balaram Das, R. B
Ayyam Perumal, K. Seshachary, Anushree Kapadia, Sukun
K.S. Chandele, Amit Lubhaya, Pragati Neekhra, Prashant
Bhushan, Pranav Sachdeva, Amit Sharma, Shweta Singh,
Upendra Mishra, Satya Narain Shukla for the appearing parties.
The Judgment of the Court was delivered by c
A.K. PATNAIK, J. 1. These are petitions filed under Article
137 of the Constitution of India for review of the judgment dated
13.09.2012 of this Court in Writ Petition (C) No.210 of 2012
(hereinafter referred to as 'the judgment under review'). D
Background· Facts:
2. In Writ Petition (C) No.210 of 2012 filed under Article
32 of the Constitution of India, Namit Sharma, the respondent
herein, had prayed for declaring the provisions of Sections E
12(5), 12(6), 15(5) and 15(6) of the Right to Information Act,
2005 (for short 'the Act') as ultra vires the Constitution.
Sections 12(5), 12(6), 15(5) and 15(6) of the Act are extracted
herein below:
F
"12(5) The Chief Information Commissioner and
Information Commissioners shall be persons of eminence
in public life with wide knowledge and experience in law,
science and technology, social service, management,
journalism, mass media or administration and G
governance."
·+
"12(6) The Chief Information Commissioner or an
Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or
H
114 SUPREME COURT REPORTS [2013] 13 S.C.R.
A Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carrying
on any business or pursuing any profession."
"15(5) The State Chief Information Commissioner and
State Information Commissioners shall be persons of
B
eminence in public life with wide knowledge and experience
in law, science and technology, social service,
management, journalism, mass media or administration
and governance."
c "15(6) The State Chief Information Commissioner or a
State Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carrying
D on any business or pursuing any profession."
L
The grounds taken in the writ petition were that the -f
provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Act
laying down the eligibility criteria for appointment of Central
E Information Commissioners and State Information
Commissioners were vague and had no nexus with the object
of the Act and were violative of Article 14 of the Constitution of
India and while enacting these provisions, Parliament had not
exercised legislative power in consonance with the
F constitutional principles and guarantees. ~
3. After hearing the learned counsel for the respondent-writ
petitioner and the learned Additional Solicitor General for Union
of India, this Court held in the judgment under review that the
provisions of Sections 12(5) and 15(5) of the Act did not specify
G the basic qualifications of the persons to be appointed as
Information Commissioners and only mentioned that the Chief +
Information Commissioner and Information Commissioners
shall be persons of eminence in public life with wide knowledge
and experience in law, science and technology, social service,
H management, journalism, mass media or administration and
UNION OF INDIA v. NAMIT SHARMA 115
[A.K. PATNAIK, J.]
Jc governance. This Court held that the knowledge and A
experience in the different fields mentioned in Section 12(5)
and Section 15(5) of the Act would presuppose a graduate who
possesses basic qualification in the concerned field. This Court
also held that Sections 12(6) and 15(6) of the Act, which
provide that the Chief Information Commissioner or an B
Information Commissioner shall not be a Member of Parliament
or Member of the Legislature of any State or Union Territory or
hold any other office of profit or be connected with any political
party or carry on any business or pursue any profession, do not
disqualify such persons for consideration for appointment as c
Chief Information Commissioner or Information Commissioner,
but these disqualifications will come into play after a person is
appointed as Chief Election Commissioner or Information
Commissioner. In other words, after a Chief Election
Commissioner or Information Commissioner is appointed, he
D
cannot continue to be a Member of Parliament or Member of
r the Legislature of any State or hold any other office of profit or
remain connected with any political party or carry on any
business or pursue any profession.
4. In the judgment under review, this Court also held that E
the Information Commission, as a body, performs functions of
wide magnitude, through its members, including adjudicatory,
supervisory as well as penal functions. This Court held that
-~ access to information is a statutory right, subject to certain
" constitutional and statutory limitations and the Information F
Commissioners have been vested with the power to decline
furnishing of information under certain circumstances and in the
specified situations. This Court held that disclosure of
information under the Act may also involve the question of
prejudice to a third party, unlike in some countries where G
-+ information involving a third party cannot be disclosed without
the consent of that party. This Court held that considering all
these functions to be perfc;>rmed by the Information Commission,
the exercise of powers and passing of the orders by the
Information Commission cannot be arbitrary and have to be in H
116 SUPREME COURT REPORTS [2013] 13 S.C.R.
~
A consonance with the principles of natural justice, namely, notice
to a party, grant of hearing and passing of reasoned orders,
and, therefore, the Information Commission is a Tribunal
discharging quasi-judicial functions. This Court held that there
is a /is to be decided by the Information Commission inasmuch
B as the request of a party seeking information is to be allowed
or to be disallowed and the decisions rendered by the
Information Commission on such a /is may prejudicially affect
a third party. For these reasons, this Court further held that the
Information Commission possesses the essential attributes ,\>..._
c and trappings of a Court as the adjudicatory powers performed
by the Information Commission are akin to the Court system
and the adjudicatory matters that they decide can have serious
consequences on various rights including the right to privacy
protected under Article 21 of the Constitution.
D 5. In the judgment under review, this Court also expressed
the opinion that for effectively performing the functions and
exercising the powers of the Information Commission, there is
a requirement of a judicial mind. For holding this opinion, the
Court relied on the judgments of this Court in Bharat Bank Ltd.,
E Delhi v. Employees of Bharat Bank & Ors. [AIR 1950 SC 188],
S.P. Sampath Kumar v. Union of India and Others [(1987) 1
SCC 124], Union of India v. R. Gandhi, President Madras Bar
Association [(2010) 11 SCC 1] and L. Chandra Kumar v.
Union of India and Others [(1997) 3 SCC 261]. This Court also
~ •·
F held that separation of powers and the independence of
judiciary are fundamental constitutional values in the structure
of our Constitution as without these two constitutional values,
impartiality cannot thrive as has been held by this Court in
Union of India v. R. Gandhi, President, Madras Bar
G Association (supra). This Court, thus, held that though the
independence of judiciary stricto sensu applied to the Court
system, by necessary implication, it would also apply to
Tribunals whose functioning is quasi-judicial and akin to the
Court system and the entire administration of justice has to be
so independent and managed by persons of legal acumen,
H
UNION OF INDIA v. NAMIT SHARMA 117
[A.K. PATNAIK, J.]
expertise and experience that persons demanding justice must A
not only receive justice, but should also have the faith that justice
would be done. This Court accordingly held that the persons
eligible for appointment should be of public eminence, with
knowledge and experience. in the specified fields and should
preferably have some judicial background and they should B
possess judicial acumen and experience to fairly and effectively
deal with the intricate quespons of law that would come up for
determination before the Information Commission in its day-to-
day working. this Court held that the Information Commission
is a judicial tribu.nal having the.essential trappings of a Court c
and, as an rrresistible corolJ.ary, it will follow that the
appointments to the lnformay.Qn Commission are made in
consultation with the judiciary'. The Court, however, observed
that in the event, the Government is of the opinion and desires
to appoint not only judicial members but also experts from other 0
fields to the Commission in terms of Section 12(5) of the Act,
·r to ensure judicial independence, effective adjudicatory process
and public confidence in the administration of justice by the
Commission, it would be necessary that the Commission is
required to work in Benches comprising one judicial member E
and one other member from the specified fields mentioned in
Sections 12(5) and 15(5) of the Act.
6. On the appointment procedure, this Court also held in
the judgment under review that the appointments to the post of
judicial member has to be made in consultation with the Chief F
Justice of India in case of Chief Information Commissioner and
members of the Central Information Commission, and the Chief
Justices of the High Courts of the respective States, in the case
of State Chief Information Commissioner and State Information
Commissioners of that State Commission. This Court further G
held that in the case of appointment of members to the
respective Commissions from other specified fields, the DoPT
in the Centre and the concerned Ministry in the States should
prepare a panel, after due publicity. Empanelling the names
proposed should be at least three times the number of H
118 SUPREME COURT REPORTS [2013] 13 S.C.R.
A vacancies existing in the Commission and the names so i
empanelled, with the relevant record should be placed before
the High Powered Committee mentioned in Section 12(3) and
15(3) of the Act and in furtherance of the recommendations of
the High Powered Committee, appointments to the Central and
B State Information Commissions should be made by the
competent authority.
7. For the reasons recorded in the judgment under review,
this Court disposed of the writ petition of the respondent-writ
C petitioner with the following directions/declarations:
"1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act
of 2005 are held to be constitutionally valid, but with the
D rider that, to give it a meaningful and purposive
interpretation, it is necessary for the Court to 'read into'
these provisions some aspects without which these
provisions are bound to offend the doctrine of equality.
Thus, we hold and declare that the expression 'knowledge
and experience' appearing in these provisions would mean
E
and include a basic degree in the respective field and the
experience gained thereafter. Further, without any
peradventure and veritably, we state that appointm~nts of
legally qualified, judicially trained and experienced persons
would certainly manifest in more effective serving of the
F ends of justice as well as ensuring better administration
of justice by the Commission. It would render the
adjudicatory process which involves critical legal questions
and nuances of law, more adherent to justice and shall
enhance the public confidence in the working of the
G Commission. This is the obvious interpretation of the
language of these provisions and, in fact, is the essence
thereof.
3. As opposed to declaring the provisions of Section 12(6)
H and 15(6) unconstitutional, we would prefer to read these
UNION OF INDIA v. NAMIT SHARMA 119
[A.K. PATNAIK, J.]
provisions as having effect 'post-appointment'. In other A
words, cessation/termination of holding of office of profit,
pursuing any profession or carrying any business is a
condition precedent to the appointment of a person as
Chief Information Commissioner or Information
Commissioner at the Centre or State levels. B
4. There is an absolute necessity for the legislature to
reword or amend the provisions of Section 12(5), 12(6) and
15(5), 15(6) of the Act. We observe and hope that these
provisions would be amended at the earliest by the
legislature to avoid any ambiguity or impracticability and C
to make it in consonance with the constitutional mandates.
5. We also direct that the Central Government and/or the
competent authority shall frame all practice and procedure
related rules to make working of the Information D
Commissions effective and in consonance with the basic
rule of law. Such rules should be framed with particular
reference to Section 27 and 28 of the Act Within a period
of six months from today.
E
6. We are of the considered view that it is an
unquestionable proposition of law that the Commission is
a 'judicial tribunal' performing functions of 'judicial' as well
as 'quasi-judicial' nature and having the trappings of a
Court. It is an important cog and is part of the court
F
attached system of administration of justice, unlike a
ministerial tribunal which is more influenced and controlled
and performs functions akin to the machinery of
administration.
7. It will be just, fair and proper that the first appellate G
authority (i.e. the senior officers to be nominated in terms
of Section 5 of the Act of 2005) preferably should be the
persons possessing a degree in law or having adequate
knowledge and experience in the field of law.
H
120 SUPREME COURT REPORTS [20-13] 13 S.C.R.
A 8. The Information Commissions at the respective levels
shall henceforth work in Benches of two members each.
One of them being a 'judicial member', while the other an
'expert member'. The judicial member should be a person
possessing a degree in law, having a judicially trained
B mind and experience in performing judicial functions. A law
officer or a lawyer may also be eligible provided he is a
person who has practiced law at least for a period of twenty
years as on the date of the advertisement. Such lawyer
should also have experience in social work. We are of the
c considered view that the competent authority should prefer >-
a person who is or has been a Judge of the High Court
for appointment as Information Commissioners. The Chief
Information Commissioner at the Centre or State level shall
only be a person who is or has been a Chief Justice of
the High Court or a Judge of the Supreme Court of India.
D
9. The appointment of the judicial members to any of these
posts shall be made 'in consultation' with the Chief Justice "f
of India and Chief Justices of the High Courts of the
respective States, as the case may be.
E
10. The appointment of the Information Commissioners at
both levels should be made from amongst the persons
empanelled by the DoPT in the case of Centre and the
concerned Ministry in the case of a State. The panel has
F to be prepared upon due advertisement and on a rational
basis as afore-recorded.
11. The panel so prepared by the DoPT or the concerned
Ministry ought to be placed before the High-powered
Committee in terms of Section 12(3), for final
G recommendation to the President of India. Needless to
repeat that the High Powered Committee at the Centre and
the State levels is expected to adopt a fair and transparent
method of recommending the names for appointment to
the competent authority.
H
UNION OF INDIA v. NAMIT SHARMA 121
[A.K. PATNAIK, J.]
12. The selection process should be commenced at least A
)r three months prior to the occurrence of vacancy.
13. This judgment shall have effect only prospectively.
14. Under the scheme of the Act of 2005, it is clear that
the orders of the Commissions are subject to judicial B
review before the High Court and then before the Supreme
Court of India. In terms of Article 141 of the Constitution,
the judgments of the Supreme Court are law of the land
and are binding on all courts and tribunals. Thus, it is
abundantly clear that the Information Commission is bound c
by the law of precedent, i.e., judgments of the High Court
and the Supreme Court of India. In order to maintain
judicial discipline and consistency in the functioning of the
Commission, we direct that the Commission shall give
appropriate attention to the doctrine of precedent and shall D
not overlook the judgments of the courts dealing with the
subject and principles applicable, in a given case.
~
It is not only the higher court's judgments that are binding
precedents for the Information Commission, but even those
E
of the larger Benches of the Commission should be given
due acceptance and enforcement by the smaller Benches
of the Commission. The rule of precedence is equally
applicable to intra-court appeals or references in the
hierarchy of the Commission."
F
Contentions of the learned counsel for the ~arties:
8. Mr. As. Chandhiok, learned ASG appearing for the
Union of India, submitted that under the Constitution it is only
the Legislature which has the power to make law and amend G
the law and the Court cannot in exercise of its judicial power
encroach into the field of legislation. In support of this
J_
submission, he relied on the decision of a seven-Judge Bench
of this Court in P. Ramachandra Rao v. State of Karnataka
[(2002) 4 sec 578] in which this Court has recognised the
H
122 SUPREME COURT REPORTS [2013) 13 S.C.R.
A limits of judicial power in a constitutional democracy. He also
cited the decision of a three- Judge Bench in Union of India ,I.
and Another v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC
323) for the proposition that courts cannot rewrite, recast or
reframe the legislation for the very good reason that it has no
8 power to legislate. He submitted that this being the position of
law, this Court could not have held in the judgment under review
that the knowledge and experience in different fields mentioned
in Sections 12(5) and 15(5) of the Act would presuppose a
graduate or basic degree in the concerned field when
c Parliament has not provided in Sections 12(5) and 15(5) of the ,,..
Act that only persons with basic degree in law, science and
technology, social science, management, journalism, mass
media, etc. would be eligible for appointment as Chief
Information Commissioner and Information Commissioners. He
submitted that directions nos. 2 and 7 of the judgment under
D
review that persons possessing basic degree in the respective
fields can be Information Commissioners amount to
amendment of Sections 12(5) and 15(5) of the Act. ..,
9. Mr. Chandhiok next submitted that the view taken by this
E Court in the judgment under review that the Information
Commissioners should possess the essential attributes of a
court and that for effectively performing the functions and
powers of the Information Commission there is requirement of
a judicial mind and hence persons eligible for appointment as
F Information Commissioners should preferably have some
judicial background and possess judicial acumen, is a patent ~·
error of law. He submitted that Information Commissioners have
a duty to act judicially and perform quasi-judicial functions, but
this does not mean that they must have the experience and
G acumen of judicial officers. In support of this submission, he
cited the observations of Hidayatullah, J in Harinagar Sugar
Mills Ltd. v. Shyam Sunder Jhunjhunwala and Others (AIR
-l
.
1961 SC 1669) that an officer who is required to decide the
matters judicially does not make him a Court or even a Tribunal
because that only establishes that he is following the standards
H
UNION OF INDIA v. NAMIT SHARMA 123
[AK. PATNAIK, J.]
of conduct and is free from bias and interest. He submitted that A
~ as Information Commissions are not really exercising judicial
powers, and are not courts, Parliament has not provided in
Sections 12(5) and 15(5) of the Act that Information
Commissioners have to have judicial experience and acumen.
He argued that direction no. 8 that Information Commissions B
at the respective levels shall work in Benches of two members
each apd one of them has to be a judicial member possessing
a degree in law and having judicially trained mind and
experience in performing judicial functions and the direction that
.. ~ competent authority should prefer a person who is or has been c
a Judge of the High Court for appointment as Information
Commissioners and that the Chief Information Commissioner
shall only be a person who is or has been a Chief Justice of a
High Court or a Judge of the Supreme Court of India is a
palpable error which needs to be corrected in this review. He
D
further submitted that consequently direction no.9 in the
judgment under review that the appointment of judicial members
)' as Information Commissioners shall be in consultation with the
' Chief Justice of India and Chief Justice of High Court of the
respective States, as the case may be, should be deleted.
E
10. Mr. Chandhiok finally submitted that in direction no.5
of the judgment under review, this Court has further directed the
Central Government to frame all practice and procedure related .
rules to make working of the Information Commissions effective
and in consonance with the basic rule of law under Sections F
--! 27 and 28 of the Act within a period of 6 months but law is well
settled that the Court cannot direct a rule making authority to
make rules in a particular fashion. He relied on the decision of
this Court in Ma/likarjuna Rao and Others v. State of Andhra
Pradesh and Others [(1990) 2 SCC 707] in support of this G
submission. He argued that direction no.5 of the judgment under
. j_ review is, therefore, a patent errorwhich needs to be corrected
in this review.
11. Dr. Manish Singhvi, Additional Advocate General for
H
124 SUPREME COURT REPORTS [2013] 13 S.C.R.
A the State of Rajasthan, submitted that the Information
Commissioners do not perform functions which prior to the Act
were vested in courts and therefore they need not be persons
having judicial background/judicial training/judicial experience.
He submitted that in Union of India v. R. Gandhi, Madras Bar
B Association (supra), this Court took the view that only if
functions which have been dealt with by civil courts are
transferred to tribunals, such tribunals should be manned by
persons having judicial background/judicial training/judicial
experience. He submitted that the view taken by this Court in
c the judgment under review that persons having judicial
background/judicial training/judicial experience should be
preferred while appointing Information Commissioners is an
apparent error which should be corrected in this review.
12. Mr. M.S. Ganesh, learned senior counsel appearing
D for the intervener, Commonwealth Human Rights Initiative,
submitted that the Information Commission is not vested with
sovereign judicial powers and discharges only administrative
functions under the provisions of the Act and the view taken by
this Court in the judgment under review that Information
E Commissioners should be persons having judicial background,
judicial experience and judicial acumen is not a correct view.
He cited the opinion of Lord Greene, M.R. in B. Johnson & Co.
(Builders), Ltd. v. Minister of Health [(1947) 2 All England Law
Reports 395] as well as the opinion of Lord Diplock in Bushell
F v. Secretary of State for the Environment [(1980) 2 All ER 608
HL] that Information Commissioners arrive at administrative
decisions and do not decide litigations and therefore they need
not have judicial background, judicial experience and judicial
acumen. Mr. Ganesh next submitted that persons who have
G been appointed as Chief Information Commissioners and
Information Commissioners under Sections 12(5) and 15(5) of
the Act, have been persons without any eminence in public life. -l .
He submitted that mostly retired IAS Officers and IPS Officers
without any experience in public life but only experience in
H administration have been appointed as Information
UNION OF INDIA v. NAMIT SHARMA 125
[A.K. PATNAIK, J.]
Commissioners. He submitted that in this review, the Court A
should issue appropriate directions to ensure that appointment
of Chief information Commissioners and Information
Commissioners are made in accordance with Sections 12(5)
and 15(5) of the Act.
B
13. Mr. Prashant Bhushan, learned senior counsel
appearing for the interveners, Mr. Shailesh Gandhi and Mrs.
Aruna Roy, submitted that as the Information Commissions do
not perform judicial work, they need not be manned by judicial
officers and Justices of High Courts and Supreme Court and, C
therefore, directions No.8 and 9 of the judgment under review
need to be deleted. He further submitted that directions No.10
and 11 of the judgment under review regarding the procedure
to be followed for appointment of Information Commissioners
may not ensure transparency in the matter of appointment of
Information Commissioners. He submitted that this Court in D
Centre for PIL and Another v. Union of India & Another [(2011)
4 SCC] has laid down a procedure in para 88 for selecting and
appointing the Central Vigilance Commissioner and Vigilance
Commissioners under Section 3 (3) of the Central Vigilance
Commission Act, 2003 and has laid down therein that the E
empanelment of persons to be considered for appointment of
Central Vigilance Commissioner and Vigilance Commissioner
shall be carried out on the basis of rational criteria, which is to
be reflected by recording of reasons and/or noting akin to
reasons by the empanelling authority. He submitted that similar F
procedure should be followed for short listing persons for
appointment as Information Commissioners and some reasons
should be indicated as to why the person has been empanelled
for appointment as Information Commissioner. He further
submitted that the direction No.8 in the judgment under review G
that Information Commissioners at the respective levels shall
henceforth work in benches of two members and one of them
should be a judicial member would result in very few Division
Benches of the Information Commission taking up matters and
the working of the Information Commission in dealing with H
126 SUPREME COURT REPORTS [2013] 13 S.C.R.
A matters will slow down. He submitted that instead legal training
can be given to Information Commissioners to decide matters
involving intricate questions of law.
14. Learned counsel for the respondemt- writ petitioner Mr.
Amit Sharma, on the other hand, supported the judgment under
8
review. According to him, this Court has rightly held that the
Information Commission functions as an adjudicatory authority
and decides issues relating to the fundamental right of a citizen
to be informed about the Government policies and information.
He submitted that to ensure proper adjudication of the
C fundamental right to information of every citizen, it is absolutely
necessary that an independent person who does not have a
political agenda is appointed as Information Commissioner. He
further submitted that Information Commissioners also have to
adjudicate issues relating to right of privacy of the citizens of
D India, which is part of their personal liberty under Article 21 of
the Constitution and for this reason also a person with judicial
experience and training is best suited and therefore this Court
has rightly held that persons with judicial experience and training
and judicial acumen should be preferred for appointment as
E Information Commissioners. He finally submitted that it will be
evident from Sections 7, 8, 9 and 11 of the Act that a /is
between the parties will have to be decided by the Central
Public Information Officer or State Public Information Officer
and this Court has rightly held in judgment under review that
F Information Commissions which decide appeals under Section
20 of the Act against the decisions of the Central Public
Information Officer or State Public Information Officer are akin
to courts. He referred to Section 18 of the Act to show that
Information Commissions have been vested with the powers
G of a civil court and, therefore, are in the nature of courts which
have to be manned by judicial officers.
15. Mr. Sharma vehemently argued that in the event this
Court holds in this review that the persons with judicial
experience and training need not be appointed as Information
H
UNION OF INDIA v. NAMIT SHARMA 127
[A.K. PATNAIK, J.]
}.- Commissioners, then the provisions of Section 12(5) and 15(5) A
of the Act have to be struck down as ultra vires Article 14 of
the Constitution. He cited the decision of this Court in Indra Das
v. State of Assam [(2011) 3 SCC 380] in which it has been
held that ordinarily the literal rule of interpretation while
construing a statutory provision should be followed, but where B
such interpretation makes the provision unconstitutional it can
be departed from and the statute should be read down to make
it constitutional. He submitted that in the judgment under review,
this Court has saved the provisions of Section 12(5) and 15(5)
-"' of the Act by reading down the said provisions. c
16. Mr. Sharma referred to the chart at page 40 of the writ
petition to show qualifications of persons appointed equivalent
to Information Commissioners in Australia, Canada, Scotland,
England and United States and argued that they are required
to obtain a degree in the field of law. He cited the observations D
of this Court in the case of Union of India v. R. Gandhi,
President, Madras Bar Association (supra) that the assumption
that members of the civil services will have the judicial
experience or expertise in company law to be appointed either
as judicial member or technical member is an erroneous E
assumption. He submitted that in that case, this Court therefore
issued directions that only High Court Judges or District
Judges of 5 years experience or lawyers having practice of 1O
years can be considered for appointment as judicial members
-4 of the National Company Law Tribunal. He also relied on the F
decision of this Court in Pareena Swarup v. Union of India
[(2008) 14 SCC 107] in which this Court observed that while
creating new avenue of judicial forums, it is the duty of the
Government to see that they are not in breach of basic
constitutional schE;ime of separation of powers and G
- ~ independence of judiciary and held that the provisions of the
Prevention of Money-Laundering Act, 2002 as enacted may not
ensure an independent judiciary to decide the cases under the
Act and accordingly directed the Union of India to incorporate
the proposed provisions to ensure independence of judiciary. H
128 SUPREME COURT REPORTS [2013] 13 S.C.R.
A Findings of the Court: ....
17. Review of a judgment or order of this Court under
Article 137 of the Constitution is confined to only errors apparent
on the face of the record as provided in Order XL Rule 1 of
the Supreme Court Rules, 1966. A three Judge Bench of this
B
Court has ,held in Commissioner of Sales Tax, J & K and
Others v. Pine Chemicals Ltd. and Others [(1995) 1 SCC 58]
that if a reasoning in the judgment under review is at variance
with the clear and simple language in a statute, the judgment
under review suffers from a manifest error of law, an error
c apparent on the face of the record, and is liable to be rectified.
Hence, in these Review Petitions, we have to decide whether
the reasoning and directions in the judgment under review is
at variance with the clear and simple language employed in the
different provisions of the Act and accordingly whether the
D judgment under review suffers from manifest errors of law
apparent on the face of the record.
18. As we have noticed, Sections 12(5) and 15(5) of the
Act provide that Chief Information Commissioner and
E Information Commissioners shall be persons of eminence in
public life with wide knowledge and experience in law, science
and technology, social service, management, journalism, mass
media or administration and governance. These provisions of
the Act do not provide that the Chief Information Commissioner
).-
F and Information Commissioners shall be persons having judicial
experience, training and acumen and yet this Court has held
in the judgment under review that for effectively performing the
functions and exercising the powers of the Information
Commission, there is a requirement of a judicial mind and
therefore persons eligible for appointment should preferably
G
have judicial background and possess judicial acumen and
experience. We may now examine the bare provisions of the ~ -
Act, whether this finding that there is requirement of a judicial
mind to discharge the functions of Information Commission is
an error apparent on the face of the record.
H
UNION OF INDIA v. NAMIT SHARMA 129
[AK. PATNAIK, J.]
19. Sections 18, 19 and 20 of the Act, which confer powers A
on the Information Commission, are extracted hereinbelow:
"18. Powers and 'Functions of Information
Commissions.-(1) Subject to the provisions of this Act,
;.--
it shall be the duty of the Central Information Commission 8
or State Information Commission, as the case may be, to
receive and inquire into a complaint from any person,-
(a) who has been unable to submit a request to a
Central Public Information Officer or State Public
Information Officer, as the case may be, either by C
reason that no such officer has been appointed
under this Act, or because the Central Assistant
Public Information Officer or State Assistant Public
Information Officer, as the case may be, has
refused to accept his or her application for D
information or appeal under this Act for forwarding
the same to the Central Public Information Officer
or State Public Information Officer or senior officer
specified in sub-section (1) of section 19 or the
Central Information Commission or the State E
Information Commission, as the case may be;
(b) who has been refused access to any information
requested under this Act;
(c) who has not been given a response to a request F
for information or access to information within the
time limit specified under this Act;
(d) who has been required to pay an amount of fee
which he or she considers unreasonable; G
(e) who believes that he or she has been given
incomplete, misleading or false information under
this Act; and
H
130 SUPREME COURT REPORTS [2013] 13 S.C.R.
A (f) in respect of any other matter relating to
requesting or obtaining access to records under this
Act.
(2) Where the Central Information Commission or State
B Information Commission, as the case may be, is satisfied
that there are reasonable grounds to inquire into the matter,
it may initiate an inquiry in respect thereof.
(3) The Central Information Commission or State ~~
Information Commission, as the case may be, shall, while
c inquiring into any matter under this section, have the same
powers as are vested in a civil court white trying a suit
under the Code of Civil Procedure, 1908, in respect of the
following matters, namely:-
D (a) summoning and enforcing the attendance of
persons and compel them to give oral or written
evidence on oath and to produce the documents or
things;
(b) requiring the discovery and inspection of
E documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies
}.-
thereof from any court or office;
F
(e) issuing summons for examination of witnesses
or documents; and
· (f) any other matter which may be prescribed.
G •
(4) Notwithstanding anything inconsistent contained in any ~ '
other Act of Parliament or State Legislature, as the case
may be, the Central Information Commission or the State
Information Commission, as the case may be, may, during
the inquiry of any complaint under this Act, examine any
H
UNION OF INDIAv. NAMIT SHARMA 131
[A.K. PATNAIK, J.]
}- record to which this Act applies which is under the control A
of the public authority, and no such record may be withheld
from it on any grounds.
19. Appeal.-(1) Any person who, does not receive a
decision within the time specified in sub-section (1) or B
clause (a) of sub-section (3) of section 7, or is aggrieved
by a decision of the Central Public Information Officer or
State Public Information Officer, as the case may be, may
within thirty days from the expiry of such period or from the
,.I., receipt of such a decision prefer an appeal to such officer
who is senior in rank to the Central Public Information c
Officer or State Public Information Officer as the case may
be, in each public authority:
Provided that such officer may admit the appeal after the
expiry of the period of thirty days if he or she is satisfied D
that the appellant was prevented by sufficient cause from
filing the appeal in time.
(2) Where an appeal is preferred against an order made
by a Central Public Information Officer or a State Public
E
Information Officer, as the case may be, under section 11
to disclose third party information, the appeal by the
concerned third party shall be made within thirty days from
the date of the order.
4 (3) A second appeal against the decision under sub- F
section (1) shall lie within ninety days from the date on
which the decision should have been made or was actually
received, with the Central Information Commission or the
State Information Commission:
G
Provided that the Central Information Commission or the
State Information Commission, as the case may be, may
admit the appeal after the expiry of the period of ninety
days if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
H
132 SUPREME COURT REPORTS [2013] 13 S.C.R.
A (4) If the decision of the Central Public Information Officer -{
or State Public Information Officer, as the case may be,
against which an appeal is preferred relates to information
of a third party, the Central Information Commission or
State Information Commission, as the case may be, shall
B give a reasonable opportunity of being heard to that third
party.
(5) In any appeal proceedings, the onus to prove that a
denial of a request was justified shall be on the Central
Public Information Officer or State Public Information
c Officer, as the case may be, who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall
.be disposed of within thirty days of the receipt of the appeal
or within such extended period not exceeding a total of .
D fortycfive days from the date of filing thereof, as the case
may be, for reasons to be recorded in writing.
(7) The decision of the Central Information Commission or
State Information Commission, as the case may be, shall
be binding.
E
(8) In its decision, the Central Information Commission or
State Information Commission, as the case may be, has
the power to-
F (a) require the public authority to take any such
. steps as may be necessary to secure compliance
with the provisions of this Act, including-
(i) by providing access to information, if so
requested, in a particular form;
G
(ii) by appointing a Central Public Information
Officer or State Public Information Officer, as -4
the case may be;
H
UNION OF INDIA v. NAMIT SHARMA 133
[AK. PATNAIK, J.]
} (iii) by publishing certain information or A
categories of information;
(iv) by making necessary changes to its
practices in· relation to the maintenance,
management and destruction of records; B
(v) by enhancing the provision of training on
the right to information for its officials;
(vi) by providing it with an annual report in
compliance
. . . .with clause (b) of sub-section
- (1) c
of section 4;
(b) require the public authority to compensate the
complainant for any loss or other detriment suffered;
(c}. imp~se any of the penalties provided under. this. Act; D
(d) reject the application.
(9) The Central Information Commission or State
Information Commission, as the case. may be, shall give
E
notice of its decision, including any right of appeal, to the
complainant and the public authority.
(10) The Central Information Commission or State
. Information Commission, as the. case may be, shall decide
.-,L. the appeal in accordance with .such procedure as may be F
prescribed.
20. Penalties ...:.:...(1) Where the Central Information
Commission or the State Information Commission, as the
case may be, at the time of deciding any complaint or
G
•appeal is of the opinion that the Central Public Information
Officer or the State Public Information Officer, as the case
may be, has, without any reasonable cause, re.fused to
receive an application for information or has not furnished
information within the time specified under sub-section (1)
H
134 SUPREME COURT REPORTS [2013] 13 S.C.R.
A of section 7 or malafidely denied the request for
information or knowingly given incorrect, incomplete or
misleading information or destroyed information which was
the subject of the request or, obstructed in any manner in
furnishing the information, it shall impose a penalty of two
B hundred and fifty rupees each day till application is
received or information is furnished, so however, the total
amount of such penalty shall not exceed twenty-five
thousand rupees:
A
Provided that the Central Public Information Officer or the
c State Public Information Officer, as the case may be, shall
be given a reasonable opportunity of being heard before
any penalty is imposed on him:
Provided further that the burden of proving that he acted
D reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer,
as the case may be.
(2) Where the Central Information Commission or the State
Information Commission, as the case may be, at the time
E
of deciding any complaint or appeal is of the opinion that
the Central Public Information Officer or the State Public
Information Officer, as the case may be, has, without any
reasonable cause and persistently, failed to receive an
application for information or has not furnished information ,.Ir
F within the time specified under sub-section (1) of section
7 or malafidely denied the request for information or
knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject
of the request or obstructed in any manner in furnishing the
G information, it shall recommend for disciplinary action
against the Central Public Information Officer or the Statie
Public Information Officer, as the case may be, under the
service rules applicable to him.
H 20. It will be clear from the plain and simple language of
UNION OF INDIA v. NAMIT SHARMA 135
[A.K. PATNAIK, J.]
Sections 18, 19 and 20 of the Act that, under Section 18 the A
Information Commission has the power and function to receive
and inquire into a complaint from any person who is not able
to secure information from a public authority, under Section 19
it decides appeals against the decisions of the Central Public
Information Officer or the State Public Information Officer B
relating to information sought by a person, and under Section
20 it can impose a penalty only for the purpose of ensuring that
the correct information is furnished to a person seeking
information from a public authority. Hence, the functions of the
Information Commissions are limited to ensuring that a person c
who has sought information from a public authority in
accordance with his right to information conferred under Section
3 of the Act is not denied such information except in accordance
with the provisions of the Act. Section 2U) defines "Right to
Information" conferred on all citizens under Section 3 of the Act 0
to mean the right to information accessible under the Act,
"which is held by or under the control of any public authority".
While deciding whether a citizen should or should not get a
particular information "which is held by or under the control of
any public authority", the Information Commission does not E
decide a dispute between two or more parties concerning their
legal rights other than their right to get information in possession
of a public authority. This function obviously is not a judicial
function, but an administrative function conferred by the Act on
the Information Commissions.
F
21. In the judgment under review, this Court after examining
the provisions of the Act, however, has held that there is a /is
to be decided by the Information Commission inasmuch as the
request of a party seeking information is to be allowed or to
be disallowed and hence requires a judicial mind. But we find G
that the /is that the Information Commission has to decide was
only with regard to the information in possession of a public
authority and the Information Commission was required to
decide whether the information could be given to the person
asking for it or should be withheld in public interest or any other H
136 SUPREME COURT REPORTS [2013] 13 S.C.R.
A interest protected by the provisions of the Act. The Information
Commission, therefore, while deciding this /is does not really
perform a judicial function, but performs an administrative
function in accordance with the provisions of the Act. As has
been held by Lord Greene, M.R. in 8. Johnson & Co.
B (Builders), Ltd. v. Minister of Health (supra):
. "Lis, of course, implies the conception of an issue joined
between two parties. The decision of a /is, in the ordinary
use of legal language, is the decision of that issue. The
What is described here as a /is - the raising of the
c objections to the order, the consideration of the matters
so raised and the representations of the local authority and
the objectors - is merely a stage in the process of arriving
at an administrative decision. It is a stage which the courts
have always said requires a certain method of approach
D and method of conduct, but it is not a /is inter partes, and
for the simple reason that the local authority and the
objectors are not parties to anything that resembles
litigation."
E 22. In the judgment under review, this Court has also held
after examining the provisions of the Act that the Information ·
Commission decides matters which may affect the rights of
third parties and hence there is requirement of judicial mind.
For example, under Section 8(1)(d) of the Act, there is no
F obligation to furnish information including commercial
confidence, trade secrets, or intellectual property, the
disclosure of which would harm the competitive position of the
third party, unless the competent authority is satisfied that the
larger public interest warrants the disclosure of such
G information. Similarly, the right to privacy of a third party, which
is part of his personal liberty under Article 21 of the Constitution,
may be breached if a particular kind of information, purely of
personal nature may be directed to be furnished by the
concerned authority.· To protect the rights of third parties,
Section 11 of the Act provJdes that where a Central Public
H
UNION OF INDIA v. NAMIT SHARMA 137
[A.K. PATNAIK, J.]
>-- Information Officer or a State Public Information Officer, as the A
case may be, intends to. disclose any information or record or
part thereof, may on a request made under the Act, which
. relates to or has been supplied by a third party and has. been
treated as confidential by that third party, a written notice will
have to be given to such third party inviting such party to make B
a subrnission in writing or orally, regarding whether the
information should be disclosed, and such submission of the
third party can be kept in view while taking a decision about
__,+. disclosure of the inforrnation. The.decision taken by the Central
Public Information Officer or the State Publiclnformation Officer, c
asthe case may be, under Section 11 of the Act is appealable
under Seetion 19 of the Act before the Information Commission
and when the Information Commission decides such an appeal,
if decides only whether or not the information should be
furnished to the citizeri in view of the objection of the third party. D
Here also the Information Comrnission does not decide the
r rights of a third party but only whether the information which is
held by or under the control C>f a public authority in relation to
or supplied by that third party could be furr 1ished to a citizen
under the provisions of the Act. Hence, the Information
E
Commission discharges administrative functions, not judicial
functions.
. .
23. While performing these administrative functions,
however, the Information Commissions are required to act in
a fair and just manner following the procedure laid down in F
Sections 18, 19 and 20 of the Act.. But. this does not mean that
the Information Commissioners are like Judges or Justices who
must have judicial experience, training and acumen. In
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala
and Others (supra), Hidayatullah, J, explained: G
~ "33. ln my opinion; a Court in 'the strict sense is a tribunal·
which is. a part of the ordinary hierarchy of Courts of Civil
. Judicature maintained by the State under its constitution
to exercise the judicial power of the State. These Courts
H
138 SUPREME COURT REPORTS [2013) 13 S.C.R.
A perform all the judicial functions of the State except those
that are excluded by law from their jurisdiction. The word
"judicial'', be it noted, is itself capable of two meanings.
They were admirably stated by Lopes, L.J. in Royal
Aquarium and Summer and Winter Garden Society v.
B Parkinson (1892) 1 QB 431(452) in these words:
"The word 'judicial' has two meanings. It may refer
to the discharge of duties exercisable by a judge
or by justices in court, or to administrative duties
which need not be performed in court, but in
c respect of which it is necessary to bring to bear a
judicial mind - that is, a mind to determine what is
fair and just in respect of the matters under
consideration."
D That an officer is required to decide matters before him
"judicially" in the second sense does not make him a Court
or even a tribunal, because that only establishes that he
is following a standard of conduct, and is free from bias
or interest."
E
24. Once the Court is clear that Information Commissions
do not exercise judicial powers and actually discharge
administrative functions, the Court cannot rely on the
constitutional principles of separation of powers and
F independence of judiciary to direct that Information
Commissions must be manned by persons with judicial
training, experience and acumen or former Judges of the High
Court or the Supreme Court. The principles of separation of
powers and independence of judiciary· embodied in our
Constitution no doubt require that judicial power should be
G exercised by persons with judicial experience, training and
acumen. For this reason, when judicial powers vested in the
High Court were sought to be transferred to tribunals or judicial
powers are vested in tribunals by an Act of the legislature, this
Court has insisted that such tribunals be manned by persons
H with judicial experience and training, such as High Court Judges
UNION OF INDIA v. NAMIT SHARMA 139
[AK. PATNAIK, J.]
}- and District Judges of some experience. Accordingly, when the A
powers of the High Court under Companies Act, 1956 were
sought to be transferred to Tribunals by the Companies
(Amendment) Act, 2002, a Constitution Bench of this Court has
held in Union of India v. R. Gandhi, President Madras Bar
Association (supra): B
"When the legislature proposes to substitute a tribunal in
place of the High Court to exercise the jurisdiction which
the High Court is exercising, it goes without saying that the
-"· standards expected from the judicial members of the
Tribunal and standards applied for appointing such c
members, should be as nearly as possible as applicable
to High Court Judges, which are apart from a basic
degree in law, rich experience in the practice of law,
independent outlook, integrity, character and good
reputation. It is also implied that only men of standing who D
have special expertise in the field to which the Tribunal
'it- relates, will be eligible for appointment as technical
members. Therefore, only persons with a judicial
background, that is, those who have been or are Judges
of the High Court and lawyers with the prescribed E
experience, who are eligible for appointment as High
Court Judges, can be considered for appointment as
judicial members."
~ In Pareena Swarup v. Union of India (supra), having found F
- that judicial powers were to be exercised by the Appellate
Tribunals under the Prevention of Money- Laundering Act, 2002
this Court held that to protect the constitutional guarantee of
independence of judiciary, persons who are qualified to be
judges be appointed as members of the Appellate Tribunal.
G
But, as we have seen, the powers exercised by the Information
~ Commissions under the Act were not earlier vested in the High
Court or subordinate court or any other court and are not in any
case judicial powers and therefore the Legislature need not
provide for appointment of judicial members in the Information
H
140 SUPREME COURT REPORTS [2013] 13 S.C.R.
A Commissions. ---.(
25. Perhaps for this reason, Parliament has not provided
in Sections 12(5) and 15(5) of the Act for appointment of
persons with judicial experie_nce and acumen and retired
Judges of the High Court as Information Commissioners and
B
retired Judges of the Supreme Court and Chief Justice of the
High Court as Chief lnformati6n Commissioner and any
direction by this Court for appointment of persons with judicial
experience, training and acumen ~nd Judges as Information
~
Commissioners and Chief Information Commissioner would
c amount to encroachment in the field of legislation. To quote from
the judgment of the seven-Judge Bench in P. Ramachandra
Rao v. State of Karnataka (supra):
"Courts can declare the law, they can interpret the law, they
D can remove obvious lacunae and fill the gaps but they
cannot entrench upon in the field of legislation properly
meant for the legislature."
26. Moreover, Sections 12(5) and 15(5) of the Act while
providing that Chief Information Commissioner and Information
E
Commissioners shall be persons with eminence in public life
with wide knowledge and experience in law, science and
technology, social service, management, journalism, mass
media or administration and governance, also does not
prescribe any basic qualification which such persons must have ),.-
F
-
in the respective fields in which they work. In the judgment under
review, however, this Court has "read into" Sections 12(5) and
15(5) of the Act missing words and held that such persons must
have a basic degree in the respective field as otherwise
Sections 12(5) and 15(5) of the Act are bound to offend the
G doctrine of equality. This "reading into" the provisions of
Sections 12(5) and 15(5) of the Act, words which .Parliament. __. 0
has not intended is contrary to. the principles of statutory
interpretation recognised by this Court. In Union of India and
Another v. Deoki Nandan Aggarwal (supra) this Court has held
H that the court could not correct or make up for any deficiencies
UNION OF INDIA v. NAMIT SHARMA 141
[A.K. PATNAIK, J.]
}-- or omissions in the language of the statute. V. Ramaswami, J. A
writing the judgment on behalf of a three Judge Bench says:
"It is not the duty .of the Court either to enlarge the scope
of the legislation or the intention of the legislature when the
language of the provision is plain and unambiguous. The B
Court cannot rewrite, recast or reframe the legislation for
the very good reason that it has no power to legislate. The
power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words
A into it which are not there. Assuming there is a defect or
an omission in the words used by the legislature the Court
c
could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law is and not what it should
be. The Court of course adopts a construction which will
carry out the obvious intention of the legislature but could
not legislate itself. But to invoke judicial activism to set at D
naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities."
27. In the judgment under review, this Court has also held
that if Sections 12(5) and 15(5) of the Act are not read in the E
manner suggested in the judgment, these Sections would offend
the doctrine of equality. But on reading Sections 12(5) and
15(5) of the Act, we find that it does not discriminate against
any person in the matter of appointment as Chief Information
---4., Commissioner and Information Commissioners and so long as F
one is a person of eminence in public life with wide knowledge
.... and experience in law, science and technoloQJy, social service,
management, journalism, mass media or administration and
governance, he is eligible to be considered for appointment as
C.hief Information Ccmmissioner or Information Commissioner.
G
However, to ensure that the equality clause in Article 14 is not
- ~ offended, the persons to be considered for appointment as
Chief Information Commissioner or Information Commissioner
should be from different fields, namely, law, science and
technology, social service, management, journalism, mass
H
142 SUPREME COURT REPORTS [2013] 13 S.C.R.
A media or administration and governance and not just from one
field.
28. Sections 12(6) and 15(6) of the Act, however, provide
that the Chief Information Commissioner or an Information
Commissioner shall not be a Member of Parliament or Member
8
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 carry on any business or pursue any profession.
There could be two interpretations of Sections 12(6) and 15(6)
of the Act. One interpretation could be that a Member of
C Parliament or Member of the Legislature of any State or Union
Territory, as the case may be, or a person holding any other
office of profit or connected with any political party or carrying
on any business or pursuing any profession will not be eligible
to be considered for appointment as a Chief Information
D Commissioner and Information Commissioner. If this
interpretation is given to Sections 12(6) and 15(6) of the Act,
then it will obviously offend the equality clause in Article 14 of
the Constitution as it debars such persons from being
considered for appointment as Chief Information
E Commissioner and Information Commissioners. The second
interpretation of Sections 12(6) and 15(6) of the Act could be
that once a person is appointed as a Chief Information
Commissioner or Information Commissioner, he cannot
continue to be a Member of Parliament or Member of the
F Legislature of any State or Union Territory, as the case may be,
or hold any other office of profit or remain connected with any
political party or ca'rry on any business or pursue any profession.
If this interpretation is given to Sections 12(6) and 15(6) of the
Act then the interpretation would effectuate the object of the Act
G inasmuch as Chief Information Commissioner and Information
Commissioners would be able to perform their functions in the
Information Commission without being influenced by their
political, business, professional or other interests. It is this
second interpretation of Sections 12(6) and 15(6) of the Act
H which has been rightly given in the judgment under review and
UNION OF INDIA v. NAMIT SHARMA 143
[A.K. PATNAIK, J.]
Sections 12(6) and 15(6) of the Act have been held as not to A
be violative of Article 14 of the Constitution. Therefore, the
argument of Mr. Sharma, learned counsel for the respondent-
writ petitioner, that if we do not read Sections 12(5) and 15(5)
of the Act in the manner suggested in the judgment under
review, the provisions of Sections 12(5) and 15(5) of the Act B
would be ultra vires the Article 14 of the Constitution, is
misconceived.
29. In the judgment under review, in direction no.5, the
Central Government and/or the competent authority have been
directed to frame all practice and procedure related rules to C
make working of the Information Commissions effective and in
consonance with the basic rule of law and with particular
reference to Sections 27 and 28 of the Act within a period of
six months. Sections 27(1) and 28(1) of the Act are extracted
hereinbelow: D
"27. Power to make rules by appropriate
Government.-(1) The appropriate Government may, by
notification in the Official Gazette, make rules to carry out
the provisions of this Act. E
28. Power to make rules by competent authority.-
(1) The competent authority may, by notification in the
Official Gazette, make rules to carry out the provisions of
this Act."
F
The use of word "may'' in Sections 27 and 28 of the Act
make it clear that Parliament has left it to the discretion of the
rule making authority to make rules to carry out the provisions
of the Act. Hence, no mandamus can be issued to the rule
making authority to make the rules either within a specific time G
or in a particular manner. If, however, the rules are made by
the rule making authority and the rules are not in accordance
with the provisions of the Act, the Court can strike down such
rules as ultra vires the Act, but the Court cannot direct the rule
making authority to make the rules where the Legislature H
144 SUPREME COURT REPORTS [2013) 13 S.C.R.
A confers discretion on the rule making authority to make rules. _...._
In the judgment under review, therefore, this Court made a
patent error in directing the rule making authority to make rules
within a period of six months.·
B 30. Nonetheless, the selection and appointment of Chief j..
Information Commissioner and Information Commissioners has
not been .left entirely to the discretion of the Central Government
and the State Government under Sections 12 and 15 of the Act.
Sections 12(3) and 15(3) provide that the Chief Information
Commissioner and Information Commissioners shall be ~
c appointed by the President or the Governor, as the case may
be, on the recommendation of the Committee named therein.
Sections 12(5) and. 15(5) provide that Chief Information
Commissioner and Information Commissioners have to be
persons of eminence in public life with wide knowledge and
D experience in the different fields mentioned therein, namely, law;
science and technology, social service, management,
journalism, mass media or administration and governance.
Thus, the basic requirement for a person to be appointed as a
Chief Information Commissioner or Information Commissioner
E is that he should be a person of eminence in public life with
wide knowledge and experience in a particular field. Parliament
has insisted on this basic requirement having regard to the
functions that the Chief Information Commissioner and
Information Commissioners are required to perform under the
F Act. As the preamble of the Act states, democracy requires an )-
informed citizenry and transparency of information which are
vital to its functioning and also requires that corruption is
...
contained and Governments and their instrumentalities are held
accountable to the governed. The preamble of the Act, h.owever,
G cautions that revelation of information in actual practice is likely .
to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal ~ ...
resources and the preservation of confidentiality of sensitive
information. Moreover, under the Act, a citizen has the right to
H information held or under the control of pubiic authority and
UNION OF INDIA v. NAMIT SHARMA 145
[AK. PATNAIK, J.]
hence Information Commissioners are to ensure that the right A
).-
to privacy of person protected under Article 21 of the
Constitution is not affected by furnishing any particular
information.
c,
31. Unfortunately, experience over the years has shown that B
the orders passed by Information Commissions have at times
gone beyond the provisions of the Act and that Information
Commissions have not been able to harmonise the conflicting
interests indicated in the preamble and other provisions of the
Act. The reasons for this experience about the functioning of
1
the Information Commissions could be either that persons who
c
do not answer the criteria mentioned in Sections 12(5) and
15(5) have been appointed as Chief Information Commissioner
or Information Commissioners or that the persons appointed
answer the:.criteria laid down in Sections 12(5) and 15(5) of
the Act but they do not have the required mind to balance the D
interests indicated in the Act and to restrain themselves from
t- acting beyond the provisions of the Act. This experience of the
functioning of the Information Commissions prompted this Court
to issue the directions in the judgment under review to appoint
judicial members in the Information Commissions. But it is for E
Parliament to consider whether appointment of judicial
mEimbers in the Information Commissions will improve the
functioning of the Information Commissions and as Sections
12(5) and 15(5) of the Act do not provide for appointment of
...._ judicial members in the Information Commissions, this direction F
wa·s an apparent error. Sections 12(5) and 15(5) of the Act,
however, provide for appointment of persons with wide
knowledge and experience in law. We hope that persons with
wide knowledge and experience in law will be appointed in the
Information Commissions at the Centre and the States. G
Accordingly, wherever Chief Information Commissioner is of
~ ,._ the opinion that intricate questions of law will have to be decided
in a matter coming before the Information Commissions, he will
ensure thatthe matter is heard by an Information Commissioner
who has such knowledge and experience in law.
146 SUPREME COURT REPORTS [2013] 13 S.C.R.
A 32. Under Order XL of the Supreme Court Rules, 1966 this
Court can review its judgment or order on the ground of error
apparent on the face of record and on an application for review
can reverse or modify its decision on the ground of mistake of
law or fact. As the judgment under review suffers from mistake
B of law, we allow the Review Petitions, recall the directions and
declarations in the judgment under review and dispose of Writ
Petition (C) No. 21 O of 2012 with the following declarations and
directions:
(i) We declare that Sections 12(5) and 15(5) of the Act
c are not ultra vires the Constitution.
(ii) We declare that Sections 12(6) and 15(6) of the Act
do not debar a Member of Parliament or Member
of the Legislature of any State or Union Territory, as
D the case may be, or a person holding any other
office of profit or connected with any political party
or carrying on any business or pursuing any
profession from being considered for appointment
as Chief Information Commissioner or Information
E Commissioner, but after such person is appointed
as Chief Information Commissioner or Information
Commissioner, he has to discontinue as Member
of Parliament or Member of the Legislature of any
State or Union Territory, or discontinue to hold any
F other office of profit or remain connected with any
political party or carry on any business or pursue
any profession during the period he functions as
Chief Information Commissioner or Information
Commissioner.
G (iii) We direct that only persons of eminence in public
life with wide knowledge and experience in the
fields mentioned in Sections 12(5) and 15(5) of the
Act be considered for appointment as Information
Commissioner and Chief Information
H Commissioner.
__,
UNION OF INDIA v. NAMIT SHARMA 147
-i [A.K. PATNAIK, J.]
, ~ (iv) We further direct that persons of eminence in public A
life with wide knowledge and experience in all the
fields mentioned in Sections 12(5) and 15(5) of the
Act, namely, law, science and technology, social
service, management, journalism, mass media or
administration and governance, be considered by B
the Committees under Sections 12(3) and 15(3) of
the Act for appointment as Chief Information
__.. Commissioner or Information Commissioners.
~ (v) We further direct that the Committees under
Sections 12(3) and 15(3) of the Act while making
c
recommendations to the President or to the
Governor, as the case may be, for appointment of
Chief Information Commissioner and Information
Commissioners must mention against the name of
each candidate recommended, the facts to indicate D
his eminence in public life, his knowledge in the
f particular field and his experience in the particular
field and these facts must be accessible to the
citizens as part of their right to information under the
Act after the appointment is made. E
(vi) We also direct that wherever Chief Information
Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter
_...,
coming up before the Information Commission, he F
will ensure that the matter is heard by an Information
Commissioner who has wide knowledge and
experience in the field of law.
33. There shall be no order as to costs.
G
·~~
B.B.B. Review Petition allowed.
~
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