Review Petition (C) No. 2309 of 2012 in Writ Petition (C) No. 210 of 2012 (Under Article 32 of the Constitution of India). Case: Union of India (UOI) Vs Namit Sharma, [Alongwith Review Petition (C) No. 2675 of 2012 in Writ Petition (C) No. 210 of 2012]. Supreme Court

Case NumberReview Petition (C) No. 2309 of 2012 in Writ Petition (C) No. 210 of 2012 (Under Article 32 of the Constitution of India)
Party NameUnion of India (UOI) Vs Namit Sharma, [Alongwith Review Petition (C) No. 2675 of 2012 in Writ Petition (C) No. 210 of 2012]
CounselFor Appearing Parties: Amarjit Singh Chandhiok, ASG, M.S. Ganesh, Sr. Adv., Manish Singhvi and Irshad Ahmad, AAG, Ritesh Kumar, Anoopam Prasad, T.A. Khan, Nizam Pasha, Shweta Gupta, Honey Kumari, Mallika Ahluwalia, Sidharth Tyagi, B.V. Balaram Das, R. Ayyam Perumal, K. Seshachary, Anushree Kapadia, Sukun K.S. Chandele, Amit Lubhaya, Pragati ...
JudgesA.K. Patnaik and A.K. Sikri, JJ.
IssueRight to Information Act, 2005 - Sections 2, 3, 4(1), 5, 7, 7(1), 7(3), 8, 8(1), 9, 11, 11(1), 11(2), 12, 12(3), 12(5), 12(6), 15, 15(3), 15(5), 15(6), 18, 19, 19(1), 20, 27, 27(1), 28, 28(1); Constitution of India - Articles 14, 21, 32, 137, 141; Central Vigilance Commission Act, 2003 -Section 3(3); Prevention of Money-Laundering Act, 2002; ...
Citation2013 (11) SCALE 85
Judgement DateSeptember 03, 2013
CourtSupreme Court

Judgment:

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').

    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 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 hereinbelow:

    12(5) The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

    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 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 eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

    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 on any business or pursuing any profession.

    The grounds taken in the writ petition were that the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Act laying down the eligibility criteria 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 Constitution of India and while enacting these provisions, Parliament had not exercised legislative power in consonance with the 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 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, management, journalism, mass media or administration and governance. This Court held that the knowledge and 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 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 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 cannot continue to be a Member of Parliament or Member of 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 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 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 information involving a third party cannot be disclosed without the consent of that party. This Court held that considering all these functions to be performed 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 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 lis 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 the decisions rendered by the Information Commission on such a lis may prejudicially affect a third party. For these reasons, this Court further held that the Information Commission possesses the essential attributes 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.

  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., Delhi v. Employees of Bharat Bank and Ors. AIR 1950 SC 188, S.P. Sampath Kumar v. Union of India and Ors. (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 Ors. (1997) 3 SCC 261. This Court also 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 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, expertise and experience that persons demanding justice must 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 possess judicial acumen and experience to fairly and effectively deal with the intricate questions 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 tribunal having the essential trappings of a Court and, as an irresistible corollary, it will follow that the appointments to the Information 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 fields to the Commission in terms of Section 12(5) of the Act, 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 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 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 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 vacancies existing in the Commission and the names so 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 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 Petitioner with the following...

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