rtifed correspondence - 072a- 13 mar 2014 - to pm on appointment of central information...

8/12/2019 RTIFED Correspondence - 072A- 13 Mar 2014 - To PM on Appointment of Central Information Commissioners

1/34

www. rti fed .com

RTI FED /PMO/DoPT/Appointment of ICs/2014/072A/1303

13 March 2014THROUGH E-MAIL To,

Honble Prime Minister of India,Government of IndiaSouth Block, New Delhi [email protected]

Government Eludes the Apex Court Directions

STRANGULATION OF RTI ACT Appointment of Persons Who has WideKnowledge and Experience in the Field of Law

is given a go by

Honble Sir,

It is further to RTI FED communication RTI FED /DoPT/Appointment ofICs/2014/072/1103 dated 11 March 2014 addressed to Mr. V. Narayanasamy,

Honble Minister of State, Government of India, Ministry of Personnel, PublicGrievances and Pensions, Department of Personnel and Training, North Block, NewDelhi [email protected] and Dr. Syamal Kumar Sarkar, Secretary, Government ofIndia, Ministry of Personnel, Public Grievances and Pensions, Department ofPersonnel and Training, North Block, New Delhi ([email protected] ) and to acommunication dated 6th instant from Advocate Mani Ram Sharma, Chairman,Indian National Bar Association, Churu- Chapter, Nakul Niwas, Behind RoadwaysDepot Sardarshahar- 331 403-7 District- Churu (Raj) India TVC Email:[email protected] and Cell: 919460605417, 919001025852 (Copiesattached).

Also please refer to Government of India Circular No. F. No.4/4/2014 -IR dated 25February 2014 issued by Ministry of Personnel, Public Grievances and Pensions,(Department of Personnel and Training) North Block, New Delhi regarding theappointment of Information Commissioners on two vacant posts in the CentralInformation Commission at New Delhi.

Apart from what Advocate Sharma has pleaded, RTI FED must add that the Peopleof India are supreme and rest every-thing is subordinate to it. Your government has been put in place by the People of this Great Country. Whenever you go abroad, yourefer yourself as a representative of People of India . Moreover the foreignDignitaries also refer India as People of India . Everybody comes and go, but thepeople of India remain. It is the People of India that makes the country great.

The Government, Executive, Judiciary are all here to serve the People of India . But what is happening is that the power and authority that People of India has
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


2/34

This communication is sent through electronic media and as such does not require any signature. Write at: 3056, Sector 37-D, Chandigarh 160036 | Mobile +919-888-810-811 | Email: [email protected]

Page 2 of 5

bestowed on the Government, Executive, Judiciary through the Constitution of India,have made the troika to think that they are the masters and the People of India arethe slaves. The triumvirate has forgotten that there comes the Responsibility and Accountability with the Power and Authority . The Constitution of Indiasafeguarded the democracy with the Checks and Balances in the system. But in thepast 65-years, all Checks and Balances has been eroded. The AAM AADMI has

been left in lurch in a miserable condition. While the Haves are having more andmore Have-nots are deprived off whatever they have. The gap between the rich andthe poor is widening. Successive governments have done nothing to check this trend.

Central Government recent move to initiate the process to appoint informationcommissioner on the two vacant posts, by issuing the circular dated 25 February2014 , without inviting the application from/for persons who has wideknowledge and experience in the field of law as per the order dated 03-09-2013 of the Hon'ble Supreme Court in Review Petition [C] 2309 of 2012, isconsidered to be a blatant disobedience of the direction of the Honble SupremeCourt Of India. It is feared that owing to the political compulsions of the present

regime, department of personnel and Training is again out to appoint somefavourites close to the corridor of power.

In Para 32(vi) the Apex Court had directed that:

"32(vi) We also direct that wherever Chief InformationCommissioner is of the opinion that intricate questionsof law will have to be decided in a matter coming up

before the Information Commission, he will ensurethat the matter is heard by an InformationCommissioner who has wide knowledge and experiencein the field of law."

RTI FED reads out in this direction that the Apex Court indicating that a Sitting or aretired Judge of Supreme Court or High Court should be appointed, at least, as oneof the post of Information Commissioners.

It is humbly prayed that the RTI regime is the only hope left with the people toparticipate in the governance. RTI FED pleads that the Right to Information Act2005 may please be further strengthened. The Bureaucrats may not be rehabilitatedin the RTI Regime. A procedure of selecting and recommending may be set in so that

the experienced persons with par-excellence track record may only be elected. Thereshould be a stringent qualifying test of all the aspirants though UPSC or any otheragency. Let the competition may bring out the best talent.

This communication may please be read with the RTI FED earlier communication asreferred to above in the opening paragraph of this communication. Thiscommunication is being sent through electronic mail and as such do not require anysignatures.

RTI FED hopes that this humble suggestion will be given a serious thought. Thisrequest may please be taken up earlier, immediately on its receipt, as the matter is ofutmost importance and also involve the implementation of the directions of the ApexCourt, as referred to above.


3/34


Page 3 of 5

The receipt of this communication may please be acknowledged.

Surendera M. Bhanot President RTI FED [email protected]

Enclosure: as stated please1. Communication dated 6th instant from Advocate Mani Ram Sharma,

Chairman, Indian National Bar Association, Churu- Chapter, Nakul Niwas,Behind Roadways Depot Sardarshahar- 331 403-7 District- Churu (Raj) IndiaTVC Email: [email protected] and Cell: 919460605417,919001025852

2. RTI FED communication RTI FED /DoPT/Appointment of ICs/2014/072/1103 dated 11 March 2014

3. Government of India Circular No. F. No.4/4/2014 -IR dated 25 February 2014issued by Ministry of Personnel, Public Grievances and Pensions,(Department of Personnel and Training) North Block, New Delhi

4. Hon'ble Supreme Court order dated 03-09-2013 in Review Petition [C] 2309of 2012

A copy is sent to:

Mr. V. Narayanasamy,Honble Minister of State,Government of India,Ministry of Personnel, Public Grievances and Pensions,Department of Personnel and Training,North Block, New [email protected]

Dr. Syamal Kumar Sarkar,Secretary, Government of India,Ministry of Personnel,Public Grievances and Pensions,Department of Personnel and Training,North Block, New [email protected]

Honble Mr. V.S.SampathChief Election Commissioner, Election Commission of India,Nirvachan Sadan, Ashoka Road, New Delhi-110001Email: [email protected]

with the request that the Government of India may please be refrained fromappointing the Information Commissioners, as the Model Core of Conduct is inforce and the government is in hurry to go ahead to appoint the incumbents on theseposts without ensuring the implementation of the Directions of the Honble SupremeCourt of India as per the order dated 03-09-2013 of the Hon'ble Supreme Court inGovernment of Indias Review Petition [C] 2309 of 2012.

This communication in original is also sent through e-mail to:
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


4/34


Page 4 of 5

- Chief Justice, Hon'ble Supreme Court of India at New Delhi- Chief Justice, Hon'ble Punjab & Haryana High Court at Chandigarh- Chief Seceretaries of all State Governments in India- Chief Central Information Commissioners Central Information Commissions

at Delhi.- Chief State Information Commissioners of all State Information Commissions

in India- A copy is also sent to all RTI & HR NGOs for making similar plea to concerned

authorities in their state/area of operation.


5/34


Page 5 of 5

Copy

From: Mani Ram SharmaChairman, Indian National Bar Association, Churu- Chapter

Nakul Niwas, Behind Roadways DepotSardarshahar- 331 403-7 District- Churu (Raj), INDIA TVC

Email:[email protected] Cell: 919460605417,919001025852

Dated: 6th Mar, 2014

The Prime Minister of India,New Delhi

Sir,

STRANGULATION OF RTI ACT

Whereas you are aware that democracy is a form of governance through activeparticipation of citizens and it is not a game of silent spectatorship. The RTI act wasintroduced to fulfill the above object with a view to infuse transparency and

accountability in governance. Unfortunately you have posted two retired policewalas asCommissioners in Central Information Commission.

As you are aware that police is the biggest enemy to democratization, and even theBasic Human Rights are not honoured by the Policewala whatever his status, post orheight may be in service. Therefore being a Police Officer must be viewed as adisqualification for appointment as Commissioner in CIC. Had the Police, extractingmoney from both parties- aggrieved and accused- and securing just below 2%conviction, had been democratic in its functioning there was hardly any need to enactsuch a law. Even if these IPSs were not instrumental in direct bribery but they could not

control and contain the malpractices in Police functioning at all and the result is beforethe Republic of India. Because the Police are made of three P namely PAISA,POLITICS AND PRESSURE there is no environment of democracy in and around policefunctioning throughout the Territory of India. Police use stick and tortures, and it had novirtual experience or habit to use law as a tool and be abide by law. Therefore pleasedesist to appoint any retired police officer in any democratic institution in future to savethe Republic of India being drowned into deep sea and strangulating the democracy.Please take note in case you continue to appoint retired IPSs this will prove suicidal tothe mass and reinforcing the POLICE RAJ.

Kindly apprise me of the concrete steps taken by you in this behalf. Meanwhile pleaseacknowledge receipt.

Sincerely yours

Mani Ram Sharma
mailto:Email%[email protected]:Email%[email protected]:Email%[email protected]


6/34

www. rti fed .com

NOTICE

RTI FED /DoPT/Appointment of ICs/2014/072/110311 March 2014THROUGH E-MAIL

To,

1. Mr. V. NarayanasamyHonble Minister of State,Government of IndiaMinistry of Personnel, Public Grievances and PensionsDepartment of Personnel and TrainingNorth Block, New [email protected]

2. Dr. Syamal Kumar SarkarSecretary, Government of IndiaMinistry of Personnel, Public Grievances and PensionsDepartment of Personnel and TrainingNorth Block, New [email protected]

A copy is sent to:

Honble Mr. V.S.SampathChief Election Commissioner, Election Commission of India,Nirvachan Sadan, Ashoka Road, New Delhi-110001Email: [email protected]

with the request that the Government of India may please be refrained fromappointing the Information Commissioners, as the Model Core of Conduct is inforce and the government is in hurry to go ahead to appoint the incumbents on theseposts without ensuring the implementation of the Directions of the Honble SupremeCourt of India as per the order dated 03-09-2013 of the Hon'ble Supreme Court inGovernment of Indias Review Petition [C] 2309 of 2012.

This communication in original in also sent through e-mail to:

- Chief Justice, Hon'ble Supreme Court of India at New Delhi- Chief Justice, Hon'ble Punjab & Haryana High Court at Chandigarh- Chief Secretaries of all State Governments in India- Central Chief Information Commissioners Central Information Commissions

at Delhi.- State Chief Information Commissioners of all State Information Commissions

in India

- A copy is also sent to all RTI & HR NGOs for making similar plea to concernedauthorities in their state/area of operation.

Continuing on next page
mailto:[email protected]:[email protected]:[email protected]:[email protected]


7/34


Page 2 of 6

Government Eludes the Apex Court Directions Appointment of Persons Who has Wide

Knowledge and Experience in the Field of Law is given a go by

Honble Sir,

This Communication is With reference to Government of India Circular No. F.No.4/4/2014 -IR dated 25 February 2014 issued by Ministry of Personnel, PublicGrievances and Pensions, (Department of Personnel and Training) North Block, NewDelhi regarding the appointment of Information Commissioners on two vacant postsin the Central Information Commission at New Delhi.

The Government of India (hereinafter referred to as Government) is a Public Authority itself under the Right to Information Act 2005, and the Hon'ble CentralInformation Commission is within the jurisdiction of the law [of Right toInformation Act 2005] to issue recommendation sought through this petition.

Central Government recent move to initiate the process to appoint informationcommissioner on the two vacant posts, by issuing the circular dated 25 February2014 , without inviting the application from/for persons who has wideknowledge and experience in the field of law as per the order dated 03-09-2013 of the Hon'ble Supreme Court in Review Petition [C] 2309 of 2012, isconsidered to be a blatant disobedience of the direction of the Honble SupremeCourt Of India. It is feared that owing to the political compulsions of the presentregime, department of personnel and Training is again out to appoint somefavourites close to the corridor of power.

In Para 32(vi) the Apex Court had directed that:

"32(vi) We also direct that wherever Chief InformationCommissioner is of the opinion that intricate questionsof law will have to be decided in a matter coming up

before the Information Commission, he will ensurethat the matter is heard by an InformationCommissioner who has wide knowledge and experiencein the field of law."

RTI FED reads out in this direction that the Apex Court indicating that a Sitting or aretired Judge of Supreme Court or High Court should be appointed, at least, as oneof the post of Information Commissioners.

At present, of the following lot of Nine Hon'ble Information Commissioners are inposition at the Central Hon'ble Information Commission.

Of them, three are Indian Administrative Officers, two are Indian Police ServiceOfficers, one belongs to Indian Foreign Service, one ex-officer of Department ofPost and of the remaining one off each is Banker and Writer & Journalistrespectively; comprises the Central Information Commission, as under:

Continuing on next page


8/34


Page 3 of 6

CURRENT COMPOSITION OFCENTRAL INFORMATION COMMISSION

INCUMBENT POSITION AREA OF EMINENCE

Mrs. Sushma SinghIAS

ChiefInformation Commissioner

Administration and governance

Shri Rajiv Mathur IPS Information Commissioner Administration and governance

Shri Vijai Sharma IAS Information Commissioner (a) Administration and Governance,and (b) Law

Shri Basant Seth Information Commissioner Banking & Finance, Management,Administration & Governance

Shri YashovardhanAzad IPS

Information Commissioner A dministration, Governance andBusiness Management

Shri Sharat SabharwalIFS

Information Commissioner No Eminence disclosed on the website of CIC

Mrs Manjula Prasher Information Commissioner Officer of Department of Posts . NoEminence disclosed on the website of CIC

Shri M.A. Khan YusufiEx-Central GovernmentOfficer

Information Commissioner 40 Years Legal Experience

Prof. MadabhushanamSridhar AcharyuluWriter & Journalist

Information Commissioner Writer of 30 books on Law &Journalism

Of the above, none has the wide knowledge and experience in the field of law at any level; and no commissioner from the side of Judiciary on board.

Keeping in view the preponderance of administrative experience in instantCommissioners, it would be ideal to have a person who has wide knowledgeand experience in the field of law . How can the CIC ensure compliance of theHonble Supreme Court directio ns, if there is not a single person of said knowledgeand experience within Commissioners available?

Government of India should lead by setting example and show states that respectfor law is most essential. In fact there should be no hurry unless the aim is to fill thechair with one who might be an addition to the present type of Commissionershaving no knowledge, much less " wide knowledge " and no experience in thefield of law .

The Government of India is going to appoint the last of the lot of InformationCommissioners of its statutory quota of 10 information commissioners, as providedin Section 12(2)(b) of the Right to Information Act 2005. The Apex Court direction will be rendered wholly infructuous ; if a person who has wide knowledgeand experience in the field of law are not appointed as the InformationCommissioner. Continuing on next page


9/34


Page 4 of 6

This will render the Government as well as the Chief Information Commission liableto the contempt of the court proceedings.

Having, experienced in the past the procedure adopted by the Government is opaqueand endevour was always visible that either a retiring bureaucrat or any person closeto the corridors of power has been appointed to this coveted post. This had in past brought to light many cases in which justice was found wanting in the commission attimes.

RTI FED would also like the Commission to take notice of the words which noted jurist Fali S. Nariman has used while resigning from the penal with regard to SearchCommittee for Lok Pal:

"I do fear that the most competent, the most independent andthe most courageous will get overlooked".

That is precisely what might happen in the case of selection of the InformationCommissioners in the Central Information Commission, if government fails in itsendevour & if a person who has wide knowledge and experience in the fieldof law is not appointed.

GROUNDS

1. There is an urgent need to take this matter up immediately on its receipt, as ifa person who has wide knowledge and experience in the field oflaw, directed by the Apex Court in its Judgement in Para 32(vi) inReview Petition [C] 2309 of 2012, is not appointed during the currentexercise 1, for the appointing an Information Commissioners against the two vacant post, is the only hope to do this, the grave injustice will be done to thecause of the Information Seekers.

2. From the tone and tenor of the material contained in the Government of Indiacircular dated 25 February 2014, nothing has been mentioned in therein thatGovernment intend to appoint an Information Commissioner who has

wide knowledge and experience in the field of law, in compliance ofthe directions of the supreme court, as referred to above; it is evident thatgovernment is not doing this.

3. Apex Court in its direction in Para 32(vi)in Review Petition [C]2309 of2012, a duty has been caste upon the Chief Information Commissioner toensure that matter of intricate nature be heard by a bench containing acommissioner who has wide knowledge and experience in the fieldof law.

4. The above directions of the Apex Court came on the Government of Indiasreview petition and the Government of India has not contested it any further,and thus, making itself subordinate to the Apex Cour ts directions andneeds to follow the same in letter and spirit.

5. If the Government goes ahead with its pre-determined mandate to rehabilitatea favourit bureaucrat or a person close to the corridor of power, it will be intotal disregard to the directio ns of the Honble Supreme Court. So matter is

1 as per circular Government of India Circular No. F. No.4/4/2014 -IR dated 25 February 2014 issued by Ministry of Personnel,Public Grievances and Pensions, (Department of Personnel and Training) North Block, New Delhi


10/34


Page 5 of 6

urgent so that the government may not be going ahead with the casualappointment of one of its favourit.

6. The Government will render itself exposed to the contempt proceedings, aseven after the availability of an opportunity to do so, government is wilfullyand deliberately, going ahead to appoint person who does not has wideknowledge and experience in the field of law.

7. Government of India must keep in mind that Central InformationCommission is legally b ound to ensure that the mandate of the HonbleSupreme Court is implemented for the smooth working of the commission, asotherwise the work of commission will always be considered as wanting inthe absence a person who has wide knowledge and experience in thefield of law.

8. The delivery of the justice at the Central Information Commission will behighly impaired if a person who has wide knowledge and experiencein the field of law is not appointed as an Information Commission .

9. The creditability of the decisions of the commission will get a hit a further lowif a person who has wide knowledge and experience in the field oflaw is not appointed.

10. It is in Government of Indias own interest that a person who h as wideknowledge and experience in the field of law is appointed commissionto uphold the regime of law at the quasi-judicial fora.

In view of the above RTI FED prays that:

1. In Apex Court in its direction in Para 32(vi)in Review Petition [C]2309 of2012, a duty has been caste upon the Chief InformationCommissioner to ensure that matter of intricate nature be heard by a benchcontaining a commissioner who has wide knowledge and experiencein the field of law , it is all the more necessary for the Informa tionCommission to have such a Information Commissioner on the bench. And forthis the necessary steps may be taken so that government appoints a person asdirected by Apex Court in its direction in Para 32(vi)in Review Petition[C]2309 of 2012, castes a legal responsibility upon the Chief InformationCommissioner to ensure that matter of intricate nature be heard by a benchcontaining a commissioner who has wide knowledge and experiencein the field of law, as the last-of-the-lot commissioner, failing which, this will be an opportunity lost, exposing every functionary to legal consequences.

2. RTI FED prays Government of India to appoint a person who has wideknowledge and experience in the field of law as one of the last-of-the-lot appointment of Information Commissioner by issuing a freshadvertisement and widely publishing in many newspapers pan India keepingin view the above direction of the Honble Supreme Court, to select a personwho has wide knowledge and experience in the field of law as thisis the last-of-the-lot posts left to be filled and if such a person is not placed inposition, the very purpose of the direction of Honble Supreme Court will bedefeated and the Judgement and direction of the Apex Court will be renderedinfructuous, which will be a great legal crisis .


11/34


Page 6 of 6

3. For this purpose, the present process of recruitment of InformationCommission may please be cancelled.

4. Moreover, the Code of Model Code of Conduct is in force and theGovernment should refrain from going ahead with the appointment ofInformation Commissioner without ensuring the implementation of thedirections of the Apex Court delivered in Para 32(vi) of the order dated 03-09-2013 of the Hon'ble Supreme Court in Government of Indias Review Petition[C] 2309 of 2012.

This request may please be taken up earlier, immediately on its receipt, as the matteris of utmost importance and also involve the implementation of the directions of the Apex Court, as referred to above.

This communication is being sent through electronic mail and as such do not requireany signatures.

The receipt of this communication may please be acknowledged.

Surendera M. Bhanot President RTI FED [email protected]

Enclosure: as stated please1. Annexure A Government of India Circular No. F. No.4/4/2014 -IR dated

25 February 2014 issued by Ministry of Personnel, Public Grievances andPensions, (Department of Personnel and Training) North Block, New Delhi

2. Annexure B Hon'ble Supreme Court order dated 03-09-2013 in ReviewPetition [C] 2309 of 2012
mailto:[email protected]:[email protected]:[email protected]


12/34

www. rti fed .com

ANNEXTURE - A


13/34

F. No.4/4/2014 IRGovernment of India

Ministry of Personnel, Public Grievances and PensionsDepartment of Personnel and Training)

North Block, New DelhiDated: February 25 th, 2014

Subject: ppointment of Information Commissioners in the CentralInformation Commission.

The Government of India has constituted a body under the Right to InformationAct, 2005 (the Act) known as the Central Information Commission to exercise thepowers conferred on and to perform the functions assigned to it under the Act. It islocated in New Delhi. The Commission shall have the Chief Information

Commissioner and upto ten Information Commissioners. The present composition ofthe Central Information Commission can be seen at www.cicmov.in . The powers andfunctions of an Information Commissioner in the Central Information Commission areas per chapter V of the Act.

2. It is proposed to appoint more Information Commissioners in the Commission.The Act provides that the Information Commissioners shall be persons of eminence inpublic life with wide knowledge and experience in law, science and technology, socialservice, management, journalism, mass-media or administration and governance.

3. Further, the 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 holdany other office of profit or connected with any political party or carrying on anybusiness or pursuing any profession. It is clarified that cessation/termination of holdingof office of profit, pursuing any profession or carrying any business is a conditionprecedent to the appointment of a person as Information Commissioner.

4. An Information Commissioner shall hold office for a term of five years from thedate on which he enters upon his office or till he attains the age of 65 years, whicheveris earlier. The salary and allowances payable to an Information Commissioner shall bethe same as that of an Election Commissioner, subject to adjustment of thepensionary/retirement benefits availed by him, if any, in accordance with theprovisions of the Act.

5. Persons fulfilling the criteria for appointment as Information Commissioner andinterested for appointment to the post may send their particulars in the enclosedproforma by post to Under Secretary (RTI), Department of Personnel and Training,North Block, New Delhi or through e-mail to usrti-doptenic.in by March 25 t h, 2014.Persons who are serving under the State/Central Government or any otherOrganization, may send their particulars through proper channel.

(Sandeep Jain)Director

Tel: 23092755


14/34

Profomia for sending particulars for consideration for the post of InformationCommissioner in the Central Information Commission

Please affix thelatest passport

size photograph

1. Name

2. Date of Birth

3. Present Address

4. Contact No.

a) Telephone along with STD code)

b) Mobile

c) Fax

5. E-mail Address

6. Educational Qualification

7. Area of Eminence8. Present Occupation

9. Achievements/Work Experiencein brief)

Date : Signature :

Place : ame :


15/34

ERA 4/4/2014-34S

3TRF

cblrAct), el cti c7ZTf e T V I Rditelq

(tact) 3117 CAlaTur itatrat)

Fr46M14, , a4 farei1rug) : 25 tRaft, 2014

forzr:-tattuomotarwa wer m a l - tt

a T r {-6 twrdi ei tjaeil wr 311 +R 3rIte4 47r, 2005 ( 3 T 7) * at -dir d, i3trzitarRW k wrav fachiel w Trawl 30tAzra:r iRd4.41 *r srzO r *1# KT *

#fer rre. faw-fico t q t 1 zrF 4 2(.14) tem 1 3iTzl* Z rT iggq tkr- 0 1 1Napa n &TT at 3a irl 3117 9 t r I 4 41 4 TM 3iTzltar * f acldilmi atmwww.cic.gov.in Etatofr tiq,cfi t I 4).-414i tjaail 3114ltaT iro 31Talpff *t QTf c f1tr*CI ca 3tfir4zraT *3turrzr v * arlurT2. itsiell atrzfrar a S taro 31Tardt *t faecii f*zrr awr t 1 3TfIThNat 311-4t1TR t 1 ttirif 3T -a", r* 3/411.71 ltar, crdtr, 414IRCII,Olegii 4117rxr ZIT CreTW ?VT qiTTR" W teach 7Ta 931-4 113M di* 011 galwzgrra c,g%j r i

3 . tridi 31rdit4R, 1T7 zrtnit2TIW tttic.,' 5F 4.144-4-1 ZTT it#1 71:1 zit Tizt TMT* MUM' eusei i 0+11 zfr l RTST 4cT tr( Mita' 4t q+1 41 1 Z i Tiik+ft

# #44 4t Ott 3 ttat *tt `MOIR 4t chIciZIT ( Id I ziFTc r t W-41- war t 19 -*# * M Z 4.ff Ict eiRci Tar 41,7 rK,

ZiT 041141i t1go -I1* 4)011 Off I

4. Naafi 1:1 caia F RT ER' WI' chid t tit4 4 1 At ataftr *fit* zrr tto3 atir *r rrt7 r wia eat # 71 aft 'OTT{ e , ut *kn I itchril3TRififf "1" 4 FF LTa ar rig 3Trra * Tr x r r a. tzr vg 1* 1 -4 T3if 4 riWgiT WRITMt* 391TrT it14) cow NTWAcilfacPa WaT, ZIf*ft W A fcatilativdil I

5. ittirii 34Tra" *I" 1 TV aii44s TT WM aTA' *Tr, ref*Fr 34't4timdd Slfl 4 3197 eRla (3TRet3Ti, tact) S cifituaT fditrir, Fitt selTq,, ac.4INM cam zIT 5 { 71R [email protected] T1arst at 25 in, 2014 aq 31ST iichA ti1114,11 1 4 1 1 1 ft * 3o airff acIlici cad 31 4 RUN 1411 I

ncr

(#trcr i)WOW, alriF *whit

WWII': 23092755


16/34

frez r Trwr at rzfir i m i t r o t r mutt at rr4 Pinar tit

1. Ta r

2. 7RT

3. acl dim gat

4. Tit Tizzrr

vaTrEr N i t a *rg taciUf a-I OW{

ar) r

. *-sly trer

6. titrw 3rtdRi

7 . F o l i cTar 9 8. a difri 04.4cuaiii

9. rdisitzd1Wrif 398fd (*kg k

1:21W :


17/34

Supreme Court of IndiaSupreme Court of IndiaUnion Of India vs Namit Sharma on 3 September, 2013Author: . .J.Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

REVIEW PETITION [C] No.2309 OF 2012

IN

WRIT PETITION [C] NO.210 OF 2012

Union of India Petitioner

Versus

Namit Sharma Respondent

WITH

REVIEW PETITION [C] No.2675 OF 2012

IN

WRIT PETITION [C] NO.210 OF 2012

State of Rajasthan & Anr. Petitioners

Versus

Namit Sharma Respondent

J U D G M E N T

A. K. PATNAIK, J.

These are petitions filed under Article 137 of the Constitution of India for review of the judgment dated13.09.2012 of this Court in Writ Petition (C) No.210 of 2012 (hereinafter referred to as the judgmentunder review ).

Background Facts:

2. In Writ Petition (C) No.210 of 2012 filed under Article 32 of the Constitution of India, Namit Sharma, therespondent herein, had prayed for declaring the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of theRight 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:

Union Of India vs Namit Sharma on 3 September, 2013

Indian Kanoon - http://indiankanoon.org/doc/47938967/ 1


18/34

12(5) The Chief Information Commissioner and Information Commissioners shall be persons of eminencein 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 anyother office of profit or connected with any political party or carrying on any business or pursuing anyprofession.

15(5) The State Chief Information Commissioner and State Information Commissioners shall be personsof 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 aMember of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, orhold any other office of profit or connected with any political party or carrying on any business or pursuingany profession.

The grounds taken in the writ petition were that the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of theAct laying down the eligibility criteria for appointment of Central Information Commissioners and StateInformation 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 exercisedlegislative power in consonance with the constitutional principles and guarantees.

3. After hearing the learned counsel for the respondent-writ petitioner and the learned Additional SolicitorGeneral 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 InformationCommissioners and only mentioned that the Chief Information Commissioner and InformationCommissioners 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 andgovernance. This Court held that the knowledge and experience in the different fields mentioned in Section12(5) and Section 15(5) of the Act would presuppose a graduate who possesses basic qualification in theconcerned 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 Memberof the Legislature of any State or Union Territory or hold any other office of profit or be connected with anypolitical party or carry on any business or pursue any profession, do not disqualify such persons forconsideration for appointment as Chief Information Commissioner or Information Commissioner, but thesedisqualifications will come into play after a person is appointed as Chief Election Commissioner orInformation Commissioner. In other words, after a Chief Election Commissioner or InformationCommissioner is appointed, he cannot continue to be a Member of Parliament or Member of the Legislatureof any State or hold any other office of profit or remain connected with any political party or carry on anybusiness or pursue any profession.

4. In the judgment under review, this Court also held that the Information Commission, as a body, performsfunctions of wide magnitude, through its members, including adjudicatory, supervisory as well as penalfunctions. This Court held that access to information is a statutory right, subject to certain constitutional andstatutory limitations and the Information Commissioners have been vested with the power to declinefurnishing of information under certain circumstances and in the specified situations. This Court held thatdisclosure of information under the Act may also involve the question of prejudice to a third party, unlike insome countries where information involving a third party cannot be disclosed without the consent of thatparty. 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




19/34

to be in consonance with the principles of natural justice, namely, notice to a party, grant of hearing andpassing of reasoned orders, and, therefore, the Information Commission is a Tribunal dischargingquasi-judicial functions. This Court held that there is a lis to be decided by the Information Commissioninasmuch as the request of a party seeking information is to be allowed or to be disallowed and the decisionsrendered by the Information Commission on such a lis may prejudicially affect a third party. For thesereasons, this Court further held that the Information Commission possesses the essential attributes andtrappings of a Court as the adjudicatory powers performed by the Information Commission are akin to theCourt system and the adjudicatory matters that they decide can have serious consequences on various rightsincluding 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 thefunctions 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 & 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] andL. Chandra Kumar v. Union of India and Others [(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 ourConstitution 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 thatthough the independence of judiciary stricto sensu applied to the Court system, by necessary implication, itwould also apply to Tribunals whose functioning is quasi-judicial and akin to the Court system and the entireadministration of justice has to be so independent and managed by persons of legal acumen, expertise andexperience that persons demanding justice must not only receive justice, but should also have the faith that

just ice 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 dealwith the intricate questions of law that would come up for determination before the Information Commissionin its day-to-day working. This Court held that the Information Commission is a judicial tribunal having theessential 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 inthe event, the Government is of the opinion and desires to appoint not only judicial members but also expertsfrom 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, itwould be necessary that the Commission is required to work in Benches comprising one judicial member andone 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 tothe 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 StateInformation Commissioners of that State Commission. This Court further held that in the case of appointmentof members to the respective Commissions from other specified fields, the DoPT in the Centre and theconcerned Ministry in the States should prepare a panel, after due publicity. Empanelling the names proposedshould be at least three times the number of vacancies existing in the Commission and the names soempanelled, with the relevant record should be placed before the High Powered Committee mentioned inSection 12(3) and 15(3) of the Act and in furtherance of the recommendations of the High PoweredCommittee, appointments to the Central and State Information Commissions should be made by thecompetent authority.

7. For the reasons recorded in the judgment under review, this Court disposed of the writ petition of therespondent-writ petitioner with the following directions/declarations:




20/34

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 withthe 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 wouldmean and include a basic degree in the respective field and the experience gained thereafter. Further, withoutany peradventure and veritably, we state that appointments of legally qualified, judicially trained andexperienced persons would certainly manifest in more effective serving of the ends of justice as well asensuring better administration of justice by the Commission. It would render the adjudicatory process whichinvolves critical legal questions and nuances of law, more adherent to justice and shall enhance the publicconfidence in the working of the Commission. This is the obvious interpretation of the language of theseprovisions and, in fact, is the essence thereof.

3. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, we would prefer to readthese provisions as having effect 'post-appointment'. In other words, cessation/termination of holding of officeof profit, pursuing any profession or carrying any business is a condition precedent to the appointment of aperson as Chief Information Commissioner or Information Commissioner at the Centre or State levels.

4. There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6)and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest bythe legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutionalmandates.

5. We also direct that the Central Government and/or the competent authority shall frame all practice andprocedure related rules to make working of the Information Commissions effective and in consonance withthe basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Actwithin a period of six months from today.

6. We are of the considered view that it is an unquestionable proposition of law that the Commission is a'judicial tribunal' performing functions of 'judicial' as well as 'quasi-judicial' nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike aministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration.

7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated interms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or havingadequate knowledge and experience in the field of law.

8. The Information Commissions at the respective levels shall henceforth work in Benches of two memberseach. One of them being a 'judicial member', while the other an 'expert member'. The judicial member shouldbe a person possessing a degree in law, having a judicially trained mind and experience in performing judicialfunctions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law atleast for a period of twenty years as on the date of the advertisement. Such lawyer should also have experiencein social work. We are of the considered view that the competent authority should prefer a person who is orhas been a Judge of the High Court for appointment as Information Commissioners. The Chief InformationCommissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of theHigh Court or a Judge of the Supreme Court of India.

9. The appointment of the judicial members to any of these posts shall be made 'in consultation' with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.




21/34

10. The appointment of the Information Commissioners at both levels should be made from amongst thepersons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. Thepanel has to be prepared upon due advertisement and on a rational basis as afore-recorded.

11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-poweredCommittee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeatthat the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparentmethod of recommending the names for appointment to the competent authority.

12. The selection process should be commenced at least three months prior to the occurrence of vacancy.

13. This judgment shall have effect only prospectively.

14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicialreview before the High Court and then before the Supreme Court of India. In terms of Article 141 of theConstitution, the judgments of the Supreme Court are law of the land and are binding on all courts andtribunals. Thus, it is abundantly clear that the Information Commission is bound 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 appropriateattention to the doctrine of precedent and shall not overlook the judgments of the courts dealing with thesubject and principles applicable, in a given case.

It is not only the higher court's judgments that are binding precedents for the Information Commission, buteven those of the larger Benches of the Commission should be given due acceptance and enforcement by thesmaller Benches of the Commission. The rule of precedence is equally applicable to intra-court appeals orreferences in the hierarchy of the Commission.

Contentions of the learned counsel for the parties:

8. Mr. A.S. Chandhiok, learned ASG appearing for the Union of India, submitted that under the Constitution itis only the Legislature which has the power to make law and amend the law and the Court cannot in exerciseof its judicial power encroach into the field of legislation. In support of this submission, he relied on thedecision of a seven-Judge Bench of this Court in P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC578] in which this Court has recognised the limits of judicial power in a constitutional democracy. He alsocited the decision of a three- Judge Bench in Union of India and Another v. Deoki Nandan Aggarwal [1992Supp. (1) SCC 323] for the proposition that courts cannot rewrite, recast or reframe the legislation for the verygood reason that it has no power to legislate. He submitted that this being the position of law, this Court couldnot have held in the judgment under review that the knowledge and experience in different fields mentioned inSections 12(5) and 15(5) of the Act would presuppose a graduate or basic degree in the concerned field whenParliament 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 forappointment as Chief Information Commissioner and Information Commissioners. He submitted thatdirections nos. 2 and 7 of the judgment under review that persons possessing basic degree in the respectivefields 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 Court in the judgment under review that theInformation Commissioners should possess the essential attributes of a court and that for effectivelyperforming the functions and powers of the Information Commission there is requirement of a judicial mindand hence persons eligible for appointment as Information Commissioners should preferably have some

judicial background and possess judicial acumen, is a patent error of law. He submitted that InformationCommissioners have a duty to act judicially and perform quasi-judicial functions, but this does not mean thatthey must have the experience and acumen of judicial officers. In support of this submission, he cited the




22/34

observations of Hidayatullah, J in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Others(AIR 1961 SC 1669) that an officer who is required to decide the matters judicially does not make him aCourt or even a Tribunal because that only establishes that he is following the standards of conduct and is freefrom bias and interest. He submitted that as Information Commissions are not really exercising judicialpowers, and are not courts, Parliament has not provided in Secti ons 12(5) and 15(5) of the Act thatInformation Commissioners have to have judicial experience and acumen. He argued that direction no. 8 thatInformation Commissions at the respective levels shall work in Benches of two members each and one of them has to be a judicial member possessing a degree in law and having judicially trained mind andexperience in performing judicial functions and the direction that competent authority should prefer a personwho is or has been a Judge of the High Court for appointment as Information Commissioners and that theChief Information Commissioner shall only be a person who is or has been a Chief Justice of a High Court ora Judge of the Supreme Court of India is a palpable error which needs to be corrected in this review. Hefurther 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 andChief Justice of High Court of the respective States, as the case may be, should be deleted.

10. Mr. Chandhiok finally submitted that in direction no.5 of the judgment under review, this Court hasfurther 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 27 and 28of the Act within a period of 6 months but law is well settled that the Court cannot direct a rule makingauthority to make rules in a particular fashion. He relied on the decision of this Court in Mallikarjuna Rao andOthers v. State of Andhra Pradesh and Others [(1990) 2 SCC 707] in support of this submission. He arguedthat direction no.5 of the judgment under review is, therefore, a patent error which needs to be corrected inthis review.

11. Dr. Manish Singhvi, Additional Advocate General for the State of Rajasthan, submitted that theInformation Commissioners do not perform functions which prior to the Act were vested in courts andtherefore they need not be persons having judicial background/judicial training/judicial experience. Hesubmitted that in Union of India v. R. Gandhi, Madras Bar 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 shouldbe manned by persons having judicial background/judicial training/judicial experience. He submitted that theview taken by this Court in the judgment under review that persons having judicial background/judicialtraining/judicial experience should be preferred while appointing Information Commissioners is an apparenterror which should be corrected in this review.

12. Mr. M.S. Ganesh, learned senior counsel appearing for the intervener, Commonwealth Human RightsInitiative, submitted that the Information Commission is not vested with sovereign judicial powers anddischarges only administrative functions under the provisions of the Act and the view taken by this Court inthe judgment under review that Information 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 theopinion of Lord Diplock in Bushell v. Secretary of State for the Environment [(1980) 2 All ER 608 HL] thatInformation Commissioners arrive at administrative decisions and do not decide litigations and therefore theyneed not have judicial background, judicial experience and judicial acumen. Mr. Ganesh next submitted thatpersons who have been appointed as Chief Information Commissioners and Information Commissionersunder Sections 12(5) and 15(5) of the Act, have been persons without any eminence in public life. Hesubmitted that mostly retired IAS Officers and IPS Officers without any experience in public life but onlyexperience in administration have been appointed as Information Commissioners. He submitted that in thisreview, the Court should issue appropriate directions to ensure that appointment of Chief informationCommissioners and Information Commissioners are made in accordance with Sections 12(5) and 15(5) of theAct.




23/34

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 bemanned by judicial officers and Justices of High Courts and Supreme Court and, therefore, directions No.8and 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 InformationCommissioners may not ensure transparency in the matter of appointment of Information Commissioners. Hesubmitted that this Court in Centre for PIL and Another v. Union of India & Another [(2011) 4 SCC] has laiddown a procedure in para 88 for selecting and appointing the Central Vigilance Commissioner and VigilanceCommissioners under Section 3 (3) of the Central Vigilance Commission Act, 2003 and has laid down thereinthat the empanelment of persons to be considered for appointment of Central Vigilance Commissioner andVigilance Commissioner shall be carried out on the basis of rational criteria, which is to be reflected byrecording of reasons and/or noting akin to reasons by the empanelling authority. He submitted that similarprocedure should be followed for short listing persons for appointment as Information Commissioners andsome reasons should be indicated as to why the person has been empanelled for appointment as InformationCommissioner. He further submitted that the direction No.8 in the judgment under review that InformationCommissioners at the respective levels shall henceforth work in benches of two members and one of themshould be a judicial member would result in very few Division Benches of the Information Commissiontaking up matters and the working of the Information Commission in dealing with matters will slow down. He

submitted that instead legal training can be given to Information Commissioners to decide matters involvingintricate questions of law.

14. Learned counsel for the respondent- writ petitioner Mr. Amit Sharma, on the other hand, supported the judgment under review. According to him, this Court has rightly held that the Information Commissionfunctions as an adjudicatory authority and decides issues relating to the fundamental right of a citizen to beinformed about the Government policies and information. He submitted that to ensure proper adjudication of the fundamental right to information of every citizen, it is absolutely necessary that an independent personwho does not have a political agenda is appointed as Information Commissioner. He further submitted thatInformation Commissioners also have to adjudicate issues relating to right of privacy of the citizens of 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 judic ial acumen should be preferred for appointment as InformationCommissioners. He finally submitted that it will be evident from Sections 7, 8, 9 and 11 of the Act that a lisbetween the parties will have to be decided by the Central Public Information Officer or State PublicInformation Officer and this Court has rightly held in judgment under review that Information Commissionswhich decide appeals under Section 20 of the Act against the decisions of the Central Public InformationOfficer or State Public Information Officer are akin to courts. He referred to Section 18 of the Act to showthat Information Commissions have been vested with the powers of a civil court and, therefore, are in thenature 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 Commissioners, then the provisions of Section 12(5) and 15(5) of the Act have to be struck down as ultra vires Article 14 of the Constitution. Hecited the decision of this Court in Indra Das v. State of Assam [(2011) 3 SCC 380] in which it has been heldthat ordinarily the literal rule of interpretation while construing a statutory provision should be followed, butwhere such interpretation makes the provision unconstitutional it can be departed from and the statute shouldbe read down to make it constitutional. He submitted that in the judgment under review, this Court has savedthe provisions of Section 12(5) and 15(5) of the Act by reading down the said provisions.

16. Mr. Sharma referred to the chart at page 40 of the writ petition to show qualifications of persons appointedequivalent to Information Commissioners in Australia, Canada, Scotland, England and United States andargued that they are required to obtain a degree in the field of law. He cited the observations of this Court inthe case of Union of India v. R. Gandhi, President, Madras Bar Association (supra) that the assumption that




24/34

members of the civil services will have the judicial experience or expertise in company law to be appointedeither as judicial member or technical member is an erroneous assumption. He submitted that in that case, thisCourt therefore issued directions that only High Court Judges or District Judges of 5 years experience orlawyers having practice of 10 years can be considered for appointment as judicial members of the NationalCompany Law Tribunal. He also relied on the 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 theduty of the Government to see that they are not in breach of basic constitutional scheme of separation of powers and independence of judiciary and held that the provisions of the Prevention of Money-LaunderingAct, 2002 as enacted may not ensure an independent judiciary to decide the cases under the Act andaccordingly directed the Union of India to incorporate the proposed provisions to ensure independence of

judiciary.

Findings of the Court:

17. Review of a judgment or order of this Court under Article 137 of the Constitution is confined to onlyerrors apparent on the face of the record as provided in Order XL Rule 1 of the Supreme Court Rules, 1966. Athree Judge Bench of this Court has held in Commissioner of Sales Tax, J & K and Others v. Pine ChemicalsLtd. 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, anerror apparent on the face of the record, and is liable to be rectified. Hence, in these Review Petitions, we haveto decide whether the reasoning and directions in the judgment under review is at variance with the clear andsimple language employed in the different provisions of the Act and accordingly whether the judgment underreview 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 Commissionerand Information Commissioners shall be persons of eminence in public life with wide knowledge andexperience in law, science and technology, social service, management, journalism, mass media oradministration and governance. These provisions of the Act do not provide that the Chief InformationCommissioner 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 functionsand exercising the powers of the Information Commission, there is a requirement of a judicial mind andtherefore persons eligible for appointment should preferably have judicial background and possess judicialacumen and experience. We may now examine the bare provisions of the Act, whether this finding that thereis requirement of a judicial mind to discharge the functions of Information Commission is an error apparenton the face of the record.

19. Sections 18, 19 and 20 of the Act, which confer powers on the Information Commission, are extractedhereinbelow:

18. Powers and 'Functions of Information Commissions. (1) Subject to the provisions of this Act, itshall be the duty of the Central Information Commission or State Information Commission, as the case maybe, 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 PublicInformation Officer, as the case may be, either by reason that no such officer has been appointed under thisAct, 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 information or appeal under this Act forforwarding the same to the Central Public Information Officer or State Public Information Officer or seniorofficer specified in sub-section (1) of section 19 or the Central Information Commission or the StateInformation Commission, as the case may be;

(b) who has been refused access to any information requested under this Act;




25/34

(c) who has not been given a response to a request for information or access to information within the timelimit specified under this Act;

(d) who has been required to pay an amount of fee which he or she considers unreasonable;

(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and

(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 Information Commission, as the case may be, issatisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respectthereof.

(3) The Central Information Commission or State Information Commission, as the case may be, shall, whileinquiring into any matter under this section, have the same powers as are vested in a civil court while trying asuit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:

(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 documents;

(c) receiving evidence on affidavit;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents; and

(f) any other matter which may be prescribed.

(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, asthe case may be, the Central Information Commission or the State Information Commission, as the case maybe, may, during the inquiry of any complaint under this Act, examine any record to which this Act applieswhich is under the control 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) orclause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public InformationOfficer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to theCentral Public Information Officer or State Public Information Officer as the case may be, in each publicauthority:

Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she issatisfied 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 StatePublic Information Officer, as the case may be, under section 11 to disclose third party information, the appealby the concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date onwhich the decision should have been made or was actually received, with the Central InformationCommission or the State Information Commission:




26/34

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 wasprevented by sufficient cause from filing the appeal in time.

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the casemay be, against which an appeal is preferred relates to information of a third party, the Central InformationCommission or State Information Commission, as the case may be, shall 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 CentralPublic Information Officer or State Public Information 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 forty-five days from the date of filingthereof, 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 maybe, shall be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be,has the power to

(a) require the public authority to take any such steps as may be necessary to secure compliance with theprovisions of this Act, including

(i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case maybe;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destructionof records;

(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) of section 4;

(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

(c) impose any of the penalties provided under this Act;

(d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall givenotice 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 decidethe appeal in accordance with such procedure as may be prescribed.




27/34

20. Penalties. (1) Where the Central Information Commission or the State Information Commission, as thecase may be, at the time of deciding any complaint or appeal is of the opinion that the Central PublicInformation Officer or the State Public Information Officer, as the case may be, has, without any reasonablecause, refused to receive an application for information or has not furnished information within the timespecified under sub-section (1) of section 7 or malafidely denied the request for information or knowinglygiven incorrect, incomplete or misleading information or destroyed information which was the subject of therequest or, obstructed in any manner in furnishing the information, it shall impose a penalty of two hundredand fifty rupees each day till application is received or information is furnished, so however, the total amountof such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case maybe, 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 reasonably and diligently shall be on the CentralPublic 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, atthe time 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 within the time specifiedunder sub-section (1) of section 7 or malafidely denied the request for information or knowingly givenincorrect, incomplete or misleading information or destroyed information which was the subject of the requestor obstructed in any manner in furnishing the information, it shall recommend for disciplinary action againstthe Central Public Information Officer or the State Public Information Officer, as the case may be, under theservice rules applicable to him.

20. It will be clear from the plain and simple language of Sections 18, 19 and 20 of the Act that, under Section18 the Information Commission has the power and function to receive and inquire into a complaint from anyperson 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 relatingto 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 who has soughtinformation 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 2(j)defines Right to Information conferred on all citizens under Section 3 of the Act to mean the right toinformation 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 orunder the control of any public authority , the Information Commission does not decide a dispute betweentwo or more parties concerning their legal rights other than their right to get information in possession of apublic authority. This function obviously is not a judicial function, but an administrative function conferred bythe Act on the Information Commissions.

21. In the judgment under review, this Court after examining the provisions of the Act, however, has held thatthere is a lis to be decided by the Information Commission inasmuch as the request of a party seekinginformation is to be allowed or to be disallowed and hence requires a judicial mind. But we find that the listhat the Information Commission has to decide was only with regard to the information in possession of apublic authority and the Information Commission was required to decide whether the information could begiven to the person asking for it or should be withheld in public interest or any other interest protected by theprovisions of the Act. The Information Commission, therefore, while deciding this lis does not really performa judicial function, but performs an administrative function in accordance with the provisions of the Act. Ashas been held by Lord Greene, M.R. in B. Johnson & Co. (Builders), Ltd. v. Minister of Health (supra):




28/34

Lis, of course, implies the conception of an issue joined between two parties. The decision of a lis, in theordinary use of legal language, is the decision of that issue. The What is described here as a lis the raisingof the objections to the order, the consideration of the matters so raised and the representations of the localauthority and the objectors is merely a stage in the process of arriving at an administrative decision. It is astage which the courts have always said requires a certain method of approach and method of conduct, but it isnot a lis inter partes, and for the simple reason that the local authority and the objectors are not parties toanything that resembles litigation.

22. In the judgment under review, this Court has also held after examining the provisions of the Act that theInformation Commission decides matters which may affect the rights of third parties and hence there isrequirement of judicial mind. For example, under Section 8(1)(d) of the Act, there is no obligation to furnishinformation including commercial confidence, trade secrets, or intellectual property, the disclosure of whichwould harm the competitive position of the third party, unless the competent authority is satisfied that thelarger public interest warrants the disclosure of such information. Similarly, the right to privacy of a thirdparty, which is part of his personal liberty under Article 21 of the Constitution, may be breached if a particularkind of information, purely of personal nature may be directed to be furnished by the concerned authority. Toprotect the rights of third parties, Section 11 of the Act provides that where a Central Public InformationOfficer or a State Public Information Officer, as the 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 partyand has been treated as confidential by that third party, a written notice will have to be given to such thirdparty inviting such party to make a submission in writing or orally, regarding whether the information shouldbe disclosed, and such submission of the third party can be kept in view while taking a decision aboutdisclosure of the information. The decision taken by the Central Public Information Officer or the State PublicInformation Officer, as the case may be, under Section 11 of the Act is appealable under Section 19 of the Actbefore the Information Commission and when the Information Commission decides such an appeal, it decidesonly whether or not the information should be furnished to the citizen in view of the objection of the thirdparty. Here also the Information Commission does not decide the rights of a third party but only whether theinformation which is held by or under the control of a public authority in relation to or supplied by that thirdparty could be furnished to a citizen under the provisions of the Act. Hence, the Information Commission

discharges administrative functions, not judicial functions.

23. While performing these administrative functions, however, the Information Commissions are required toact in a fair and just manner following the procedure laid down in Sections 18, 19 and 20 of the Act. But thisdoes not mean that the Information Commissioners are like Judges or Justices who must have judicialexperience, training and acumen. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Others(supra), Hidayatullah, J, explained:

33. In 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 theState. These Courts perform all the judicial functions of the State except those that are excluded by law fromtheir jurisdiction. The word "judicial", be it noted, is itself capable of two meanings. They were admirablystated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB431(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 respect of which it isnecessary to bring to bear a judicial mind - that is, a mind to determine what is fair and just in respect of thematters under consideration."

That an officer is required to decide matters before him "judicially" in the second sense does not make him aCourt or even a tribunal, because that only establishes that he is following a standard of conduct, and is freefrom bias or interest.




29/34

24. Once the Court is clear that Information Commissions do not exercise judicial powers and actuallydischarge 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 personswith judicial training, experience and acumen or former Judges of the High Court or the Supreme Court. Theprinciples of separation of powers and independence of judiciary embodied in our Constitution no doubtrequire that judicial power should be exercised by persons with judicial experience, training and acumen. Forthis 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 tribunalsbe manned by persons with judicial experience and training, such as High Court Judges and District Judges of some experience. Accordingly, when the powers of the High Court under Companies Act, 1956 were soughtto be transferred to Tribunals by the Companies (Amendment) Act, 2002, a Constitution Bench of this Courthas held in Union of India v. R. Gandhi, President Madras Bar Association (supra):

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 members, should be as nearly aspossible as applicable to High Court Judges, which are apart from a basic degree in law, rich experience in thepractice of law, independent outlook, integrity, character and good reputation. It is also implied that only men

of standing who have special expertise in the field to which the Tribunal relates, will be eligible forappointment as technical members. Therefore, only persons with a judicial background, that is, those whohave been or are Judges of the High Court and lawyers with the prescribed experience, who are eligible forappointment as High Court Judges, can be considered for appointment as judicial members.

In Pareena Swarup v. Union of India (supra), having found that judicial powers were to be exercised by theAppellate Tribunals under the Prevention of Money- Laundering Act, 2002 this Court held that to protect theconstitutional guarantee of independence of judiciary, persons who are qualified to be judges be appointed asmembers of the Appellate Tribunal. But, as we have seen, the powers exercised by the InformationCommissions under the Act were not earlier vested in the High Court or subordinate court or any other courtand are not

rtifed correspondence - 072a- 13 mar 2014 - to pm on appointment of central information...

Documents