# NAMIT SHARMA v. UNION OF INDIA

- **Citation:** [2013] 13 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2012-09-13
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/namit-sharma-v-union-of-india-28977
- **Pages:** 95

## Headnote

Right to Information Act, 2005:
A
8
ss. 12(5), (6) and 15(5), (6) - Appointment to the post of c
Chief Information Commissioners and Information
Commissioners at Central as well as State Level - Eligibility
criteria - Constitutional validity of - Held: The provisions of ss.
12(5) and 15(5) are constitutionally valid with a rider that the
court will have to read into the provisions that the expression 0
'knowledge and experience' would mean and include a basic
degree in the field and the experience gained thereafter - The
provisions ulss. 12(6) and 15(6) are vague, have no nexus with
the object of the Act and there is no intelligible differentia to
,support such classification - The court would, rather than
deq(aring ss. 12(6) and 15(6) unconstitutional, would read E
down\{hese provisions as having effect post-appointment
rather than pre-appointment - Direction to legislature to
suitably amend the provisions and direction to competent
authority to frame rules - Constitution of India, 1950 - Art. 14.
F
Central/State Information Commissions - Character and
structure of - The Information Commissions are quasi-judicial
authorities or tribunals performing judicial functions - The
Commission is vested with civil as well as penal powers - It is
required to determine the disputes by striking a balance G
between right to privacy and right to information - The nature
of functions of the Commission involves an adjudicatory
process - It possesses the essential attributes and trappings
of a court - Once Information Commission is held to be
1
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SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
essentially a quasi-judicial forum, the Chief Information
Commissioner and members of the Commission should b·e
the persons possessing requisite qualification and experience
in the field of Law and/or other specified fi~lds - The
Commission to work in a bench of two i.e. a Judicial member'
B
and an expert member' - Appointment to the post of judicial
member should be made in consultation' with the Chief Justice
of India in case of Central Information Commission and with
the Chief Justices of the High Courts of the respective States
in case of State Information Commissions - The term
c experience in law and other specified field as enumerated ul
ss. 12(5) and 15(5) of the Act would take within its ambit bothrequisite qualification as well as experience in that field -A
Law Officer or a lawyer having twenty years of law practice and
having experience of social work is also eligible for
0
appointment as judicial member - For appointment as
Information Commissioners, the authority should prefer a
person who is or has been a judge of High Court - Chief
Information Commissioner shall only be a person who is or
has been Chief Justice of High Court or a Judge of Supreme
E Court - A panel of prospective members should be created
by the Department of Personnel and Training or the
concerned State level ministry and be placed before the High
Powered Committee to make selections in accordance with
s. 12(3) of the Act.
F
G
H
First
Appellate
Authority
Qualification
Recommendation of Court that the qualification for the post
should be degree in law and adequate knowledge and
experience in the field of law.
Judicial Review:
Determination of constitutionality of a statute - Principles
to be followed - While determining the constitutional validity
of a statute, court has to see the legislative competence and
the provisions of the statute to be examined in the light of the
·y
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NAMIT SHARMA v. UNION OF INDIA
3
/l
provisions of the Constitution - No prejudice needs to be
A
proved in cases of breach of fundamental rights - Even if two
views are possible, one making the statute constitutional, the
court to make efforts to uphold its constitutional validity - There
is presumption of constitutionality in favour of legislation - The
burden to prove that the enacted law offends fundamental
B
rights is on the one who questions the constitutionality and
shows that despite the presumptio

## Text

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[2013] 13 S.C.R. 1
NAMIT SHARMA
v.
UNION OF INDIA
(Writ Petition (Civil) No. 210 of 2012)
SEPTEMBER 13, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Right to Information Act, 2005:
A
8
ss. 12(5), (6) and 15(5), (6) - Appointment to the post of c
Chief Information Commissioners and Information
Commissioners at Central as well as State Level - Eligibility
criteria - Constitutional validity of - Held: The provisions of ss.
12(5) and 15(5) are constitutionally valid with a rider that the
court will have to read into the provisions that the expression 0
'knowledge and experience' would mean and include a basic
degree in the field and the experience gained thereafter - The
provisions ulss. 12(6) and 15(6) are vague, have no nexus with
the object of the Act and there is no intelligible differentia to
,support such classification - The court would, rather than
deq(aring ss. 12(6) and 15(6) unconstitutional, would read E
down\{hese provisions as having effect post-appointment
rather than pre-appointment - Direction to legislature to
suitably amend the provisions and direction to competent
authority to frame rules - Constitution of India, 1950 - Art. 14.
F
Central/State Information Commissions - Character and
structure of - The Information Commissions are quasi-judicial
authorities or tribunals performing judicial functions - The
Commission is vested with civil as well as penal powers - It is
required to determine the disputes by striking a balance G
between right to privacy and right to information - The nature
of functions of the Commission involves an adjudicatory
process - It possesses the essential attributes and trappings
of a court - Once Information Commission is held to be
1
H
2
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
essentially a quasi-judicial forum, the Chief Information
Commissioner and members of the Commission should b·e
the persons possessing requisite qualification and experience
in the field of Law and/or other specified fi~lds - The
Commission to work in a bench of two i.e. a Judicial member'
B
and an expert member' - Appointment to the post of judicial
member should be made in consultation' with the Chief Justice
of India in case of Central Information Commission and with
the Chief Justices of the High Courts of the respective States
in case of State Information Commissions - The term
c experience in law and other specified field as enumerated ul
ss. 12(5) and 15(5) of the Act would take within its ambit bothrequisite qualification as well as experience in that field -A
Law Officer or a lawyer having twenty years of law practice and
having experience of social work is also eligible for
0
appointment as judicial member - For appointment as
Information Commissioners, the authority should prefer a
person who is or has been a judge of High Court - Chief
Information Commissioner shall only be a person who is or
has been Chief Justice of High Court or a Judge of Supreme
E Court - A panel of prospective members should be created
by the Department of Personnel and Training or the
concerned State level ministry and be placed before the High
Powered Committee to make selections in accordance with
s. 12(3) of the Act.
F
G
H
First
Appellate
Authority
Qualification
Recommendation of Court that the qualification for the post
should be degree in law and adequate knowledge and
experience in the field of law.
Judicial Review:
Determination of constitutionality of a statute - Principles
to be followed - While determining the constitutional validity
of a statute, court has to see the legislative competence and
the provisions of the statute to be examined in the light of the
·y
•
NAMIT SHARMA v. UNION OF INDIA
3
/l
provisions of the Constitution - No prejudice needs to be
A
proved in cases of breach of fundamental rights - Even if two
views are possible, one making the statute constitutional, the
court to make efforts to uphold its constitutional validity - There
is presumption of constitutionality in favour of legislation - The
burden to prove that the enacted law offends fundamental
B
rights is on the one who questions the constitutionality and
shows that despite the presumption of constitutionality, the
statue is unfair, unjust and unreasonable - Declaring the Law
·~
unconstitutional is one of the last resorts taken by courts - The
~
courts should prefer to put into service principles of 'reading c
down' or 'reading into'.
Judicial review of the orders of Information Commission
- Nothing in the Right to Information Act can take away powers
vested in u!Arts.226 and 32 of the Constitution - The finality
D
indicated ulss. 19(6) and (7) cannot be construed to oust the
jurisdiction of higher courts despite the bar created u/s. 23 -
'f
Right to Information Act, 2005.
Constitution of India, 1950 - Right to Information - Nature
of - Held: Right to freedom of Speech and Expression under E
Article 19(1)(a) encompasses the right to import and receive
information - This right is not an unlimited or unrestricted right
- It is subject to statutory and constitutional limitations.
-t
Words and Phrases - 'Quasi-judicial - Meaning of
F
The petitioner filed the present writ petition under
Article 32 of the Constitution as a PIL questioning the
constitutional validity of sub- sections (5) and (6) of s. 12
and sub-sections (5) and (6) of s. 15 of theRight to
Information Act, 2005, which primarily deal with the G
eligibility criteria for appointment to the posts of Chief
>
Information
Commissioners
and
Information
Commissioners at the Central level as well as State level.
Partly allowing the writ petition, the Court
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SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
HELD: 1.1. The Constitution of India expressly
confers upon th~ courts thepower of judicial review. The
courts, as regards ,the fundamental rights, have been
assigned the role of sentinel on the qui vive under Article
13 of the Constitution. The courts have exercised the
B power of judicial review, beyond legislative competence,
but within the specified limitations. Whilethe court gives ·
immense weightage to the legjslative judgment; still it
cannot deviate from its own duties to determine the
constitutionality of an impugned statute. Every law has
c to pass through the test ofconstitutionality which is
stated to.be.nothing but a.formal test .of rationality. [Para
7] [34-F-H]
Supreme Court. Advo.cates on Record Association and
Ors. v.Union oflndia (1993)4SCC 441: 1993 (2) Suppl. SCR
D 659 ~ followed.
1.2. In determining the constitutionality or validity of
a constitutional provision, the court must weigh the real
impact and effect thereof, on the fundamental rights. The
E Court would not allow the legislature to overlook a
constitutional provision by employing indirect methods.
[Para 9] [35-C-D]
Minerva Mills Ltd. and Ors. v. Union of India and Ors.
F (1980) 3 SCC 625: 1981 (1) SCR 206 - followed.
1.3. A law which violates the fundamental right of a
person is void. In such cases of violation, the Court has
to examine as to what factors the court should weigh
while determining the constitutionality of a statute. First
G and the foremost, is the competence of the legislature to
make the law. The wisdom or motive of the legislature in
making it is not a relative consideration. The Court
should examine the provisions of the statute in the light
of the provisions of the Constitution (e.g. Part Ill),
H
NAMIT SHA~MA v .. UNION OF INDIA
5
regardless of how it is actually administered or is capable A
of being administered. [Para 13) [37-D-E] ·
1.4. No prejudice needs to be proved in cases where
breach of fundamental rights is claimed. Violation of a
fundamental right itself renders the impugned action 8
void. [Para 12) [37-C]
A.R. Antulayv. R.S. Nayak and Anr. (1988)2 SCC
602:1988 (1) Suppl. SCR 1 ·~ referred to.
~
1.5. The Court should exercise judicial restraint while c
judging the constitutional validity of the statute or even
that of a delegated legislation and ·it is only when there is
clear violation of a constitutional provision beyond
reasonable doubt that the Court should declare a
provision to be unconstitutional. [Para 19) [41-E)
0
Government of Andhra Pradesh and Ors. v. Smt. P.
'(
Laxmi Devi (2008) 4 SCC 720: 2008 (3) SCR 330 - relied
on.
1.6. Even if two views are possible, one making the
E
statute constitutional and the other making it
unconstitutional, the former view must prevail and the
Court must make efforts to uphold the constitutional
validity of a statute, unlike a policy decision, where the
executive decision could be rendered invalid on the
F
ground of malafide, unreasonableness and arbitrariness
alone. [Para 19] [41-F-G]
1.7. In order to examine the constitutionality or
otherwise of a statute or any of its provisions, one of the
most relevant considerations is the object and reasons G
as well as the legislative history of the/statute. It would
~"'
help the court in arriving a_t a more objective and justful
approach. It would be necessary for the Court to examine
the reasons of enactment of a particular provision so as
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SUPREME COURT REPORTS
[2013] 13 S.C.R.
A to find out its ultimate impact vis-a-vis the constitutional
.
provisions. [Para 20) [41-G-H; 42-A]
-J.~
1.8. When the constitutionality of a law is challenged
on the ground that it infringes a fundamental right, what
8 the Court has to consider is the 'direct and inevitable effect'
of such law. A matter within the legislative competence of
the legislature has to be left to the discretion and wisdom
of the framers, so long as it does not infringe any
constitutional provision or violate any fundamental right.
The law has to be just, fair and reasonable. Article 14 of
C the Constitution does riot prohibit the prescription of
reasonable rules for selection or of qualifications for
appointment, except, where the classification is on the
face of it, unjust. [Para 40) [55-B-D]
D
Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC
248: 1978 (2) SCR 621 - relied on.
1.9. There is presumption of constitutionality in
favour of legislation. The legislature has .the power to
E carve out a classification which is based upon intelligible
differentia and has rational nexus to the object of the Act.
The burden to prove that the enacted law offends any of
the Articles under Part Ill of the Constitution is on the one
who questions the constitutionality and shows that
despite such presumption in favour of the legislation, it
F is unfair, unjust and unreasonable. [Para 46] [57-C-D]
1.10. Another most significant canon of determination
of constitutionality is that the courts would be reluctant
to declare a law invalid or ultra vires on account of
G unconstitutionality. The courts would accept an
interpretation which would be in favour of the
constitutionality, than an approach which would render
the
law
unconstitutional.
Declaring
the · law
unconstitutional is one of the last resorts taken by the
H courts. The courts w9uld preferably put into service the
NAMIT SHARMA v. UNION OF INDIA
7
principle of 'reading down' or 'reading into' the provision
A
to make it effective, workable and ensure the attainment
of the object of the Act. [Para 47) [57-D-F]
1.11. When the law making power of a State is
restricted by a written fundamental law, then any law 8
enacted, which is opposed to such fundamental law,
being in excess of fundamental authority, is a nullity.
Inequality is one such example. Still, reasonable
classification is permissible under the Indian
Constitution. Surrounding circumstances can be taken
into consideration in support of the constitutionality of C
the law which is otherwise hostile or discriminatory in
nature, but the circumstances must be such as to justify
the discriminatory treatment or the classification,
subserving the object sought to be achieved. Mere
apprehension of the order being used against some D
persons is no ground to hold it illegal or unconstitutional
particularly when its legality or constitutionality has not
been challenged. [Para 37) [52-H; 53-A-C]
K. Karunakaran v. State of Kera/a and Anr. (2000) 3 SCC
E
761: 2000 (2) SCR 735 - relied on.
1.12. It is a settled canon of constitutional
jurisprudence that the doctrine of classification is a
subsidiary rule evolved by courts to give practical content
to the doctrine of equality. Over-emphasis of the doctrine
F
of classification or anxious or sustained attempt to
discover some basis for classification may gradually and
imperceptly erode the profound potency of the glorious
content ·of equality enshrined in Article 14 of the
Constitution. It is not necessary that classification in order G
to be valid, must be fully carried out by the statute itself.
The statute itself may indicate the persons or things to
whom its provisions are intended to apply. Instead of
making the classification itself, the State may lay down
the principle or policy for selecting or classifying the
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SUPREME: COURT REPORTS . [2013] 13 S.C.R
A persons or objects to .. · wt;iom. its prov.is ions. are to apply
· -L
and leave it to the discretion of the Government or
administr~ti:ve authority to select such-persons or ~llings, '•
8
having regard to,t.he principle or poli~y laid doVtn by the.
Legislature. [Para 14] [38-D-H]
·
UC of India v. Consumer Education and Research
Centre (1995) 5 SCC 482: 1995 (1) Suppl: SCR 349 -
referred to.
1.13. Article 14 forbids class legislation but does not
C forbid reasonable classification which means : It must be
based on reasonable and intelligible differentia; and such
differentia must be on a rational basis. It must have nexus
to the object of the Act. The basis of judging whether the
institutional reservation, fulfils the above-mentioned
o criteria, should be a) there is a presumption of
constitutionality; b) the burden of proof is upon the writ
petitioner's, the person questioning the constitution'ality
of the provisions; c) there is a presumption as regard the
States' power on. tt;ie extent of its legislative competence;
E d) hardship of few cannot be the basis of determining the
validity of any statute. [Paras 15 and 16] [39-A-D]
•
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i
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Ram Krishna Dalmia v. Justice S.R. Tendo/kar AIR 1958
SC 538:1959 SCR 279; Budhan Chodhry v. State of Bihar
AIR 1955 SC 191:1955 SCR 1045; Atam Prakash Ii. State.
F of Haryana and Ors. (1986) 2 sec 249: 1986 (1) SCR 399;
Hinsa V~rodhak Sangh. v .. Mtizapur Moti Kuresh Jamata and
Ors. (2()08) 5 sec 3~: 2008 (4) SCR 1020 - referred to.
'
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1.14. Classification, means segregation in classes
G which have a systematic relation usually found in
common properties and characteristics. It postulates a
rational basis and does notmean herding together of
certain persons and clas.ses arbitrarily. The differentia
which· is tile basis of the classification and the object of
H the Act are distinct things and what is necessary is that·
y
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NAMIT SHARMA v. UNION OF. 11\f DIA
9
I
· there must be a nexus between them. The basis of testing
A
constitutionality, particularly on. the ground· of
discrimination~ should· not· be made by· raising a
presumption that the: authorities are acting in an arbitrar}r
· manner. No classification can be arbitrary. One of the
known concepts 'of constitutionarinterpretation is that . B
the legislature. cannot· be expected'to carve out
classification which may be scientifically perfect or
logically complete or which· may satisfy the expectations
of all concerned. The Courts would' respect the
classification dictated by the wisdom of the Legislature c
and shall interfere only on being convinced that the
classification would result in pronounced inequality or
palpable arbitrariness· tested on the touchstone of Article
14 of the Constitution. [Para 37] [53-E-H; 54-A-BJ ,.,, ... ·
•·•
0 Welfare Association of Allottees of: Reside'ritial ' D
Premises; Maharashtra v. Ranjit P.' Gohil (2003),9 sec 358:
2003 (2) SCR 139 ~relied on.'", .
·
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··· ·
, . .
'·'' .
' 1.15. The rule of equality or equal protection does not .
require that a State must choose between attacking -E
every aspect of a' problem or not attacking the problem
at all, and particularly with 'respect to social welfare
.programme. So !ong as the ~ine drawn,;_by'the:State is
. rationally supportable, ~he, Courts will not interpose, their
judgment as to the appropriate stopping point. A statute
F
is not invalid because it might havegone further _than it
did, since the legislature need.not strike at all evils at_ the
same time and may address:itself·to the phase of the
problem which. seemed most acute t,o the legislative mind ..
A classification based .on experience was a reasonable ·G
classification, and' that it had. a rational nexus. toJhe ·
object thereof and to hold otherwise would be detrimental
to the. interest of the service itself.: [Para 38] [54-C·E]
,-
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. State of UP ·and Orit v: J.P. Chaurasia and Ors.· (1989)
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SUPREME COURT REPORTS
[2013] 13 S.C.R.
A 1 SCC121: 1988 (3) Suppl. SCR 288 - relied on.
1.16. Classification on the basis of educational
qualifications made with a view to achieve administrative
efficiency cannot be said to rest on any fortuitous
8 circumstances and one has always to bear In mind the
facts and circumstances of the case in order to judge the
validity of a classification. Intelligible differentia and
rational nexus are the twin tests of reasonable
classification. [Para 38] [54-F-G]
C
State of Jammu Kashmir v. Sh. Triloki Nath Khosa and
Ors. (1974) 1SCC 19: 1974 (1) SCR 771 - relied on.
1.17. If the law deals equally with members of a well
defined class, it is not open to the cbarge of denial of
0 equal protection. There may be cases where even a
single individual may be in a class by himself on account
of some special circumstances or reasons applicable to
him and not applicable to others. Still such law can be
constitutional. [Para 39] [54-H; 55-A]
E
Constutional Law of India by H. M. Seervai (Fourth
Edition) Vol.1 - referred t.o.
2.1. The citizens have the right to know about the
affairs of the Government which, having been elected by
F them, seeks to formulate some policies of governance
aimed at their welfare. The Right to Information was
harnessed as a tool for promoting development;
strengthening the democratic governance and effective
delivery of socio-economic services. The Right to
G Information has been stated to be one of the important
facets of proper governance. With the passage of time,--
this concept has not only developed in the field of law,
but also has attained new dimensions in its application.
Public interest is better served by effective application of
H the right to information. [Paras 1 and 22] [29-D-F; 42-F]
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NAMIT SHARMA v. UNION OF INDIA
11
..--+
Secretary, Ministry of Information and Broadcasting,
A
Government of India and Ors. v. Cricket Association of Bengal
~
and Anr. (1995) 2 sec 161: 1995 (1) SCR 1036 - relied on.
,... -
-
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"Freedom of Information" By Justice V.R. Krishna Iyer -
referred to.
B
2.2. Greater transparency, promotion of citizengovernment partnership,greater accountability and
reduction in corruption are stated to be the salient
features of the Act of 2005. Development and proper
implementation of essential and constitutionally C
protected laws such as Mahatma Gandhi Rural Guarantee
Act, 2005, Right to Education Act, 2009, etc. are some of
the basic objectives of this Act. Revelation in actual
practice is likely to conflict with other public interests,
0
including efficiency, operation of the Government,
optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information. It
is necessary to harness these conflicting interests while
preserving the parameters of the democratic ideal or the
aim with which this law was enacted. It is certainly
expedient to provide for furnishing certain information to
the citizens who desire to have it and there may even be
an obligation of the state authorities to declare sucti
information suo moto. However, balancing of interests
still remains the most fundamental requirement of the
objective enforcement of the provisions of the Act of 2005
and for attainment of the real purpose of the Act. [Para
33] [51-B-F]
E
F
.. A2.3. The Right to Freedom of Speech and Expression
G
enshrined under Article 19(1 )(a) of the Constitution of
--<
India encompasses the right to impart and receive
-
information. Despite the absence of any express mention
of the word 'information' in the Constitution under Article
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SUPREME COURT REPORTS
[2013) 13 S.C.R.
A 19(1 )(a), this right has stood incorporated therein by the
+-.. .
interpretative process by this Court. Before the Supreme
Court spelt out with clarity the right to information as a.
•
right inbuilt in the constitutional framework, there existed •
no provision giving this right in absolute terms or
B otherwise. One finds glimpses of the right to information
of the citizens and obligations of the State to disclose
such information in various other laws, for example,
I
Sections 7 4 to 78 of the Evidence Act, 1872 and Section
Jr
25(6) of the Water (Prevention and Control of Pollution)
c Act, 1974. [Para 1 and 24] [29-E; 44-D-G]
'Commentary on the Right to Information Act' (2006) by
Dr. J. N. Barowa/ia - referred to.
D
2.4. The Right to Information, like any other right, is
not an unlimited or unrestricted right. It is subject to
" -
statutory· and constitutional limitations. Section 3 of the
Act of 2005 clearly spells out that the right to information
is subject to the provisions of the Act. Other provisions
E require that information must be held by or under the
control of public authority besides providing for specific
exemptions and the fields to which the provisions of the
Act do not apply. The doctrine of severability finds place
in the statute in the shape of Section 10 of the Act of
tF 2005. [Para 34] [51-G-H]
,,
2.5. Nothing in the Act of 2005 can take 1away the
powers vested in the High Court under Article 226 of the
Constitution and of this Court under Article 32. The
G
finality indicated in ss. 19(6) and 19(7) cannot be
~ ...
construed to oust the jurisdiction of higher courts,
despite the bar created u/s. 23 of the Act. It always has
,, ,
to be read and construed subject to the powers of the
High Court under Article 226 of the Constitution. [Para 29]
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[49-E]
..
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NAMIT SHARMA v. UNION OF INDIA
13
· L. Chandra Kurnar vs. Union of India and Ors. (1997) 3
A
sec 261: 1997 (2) SCR 1186 - relied on.
3.1. The provisions of Section 12(5) of 2005 Act do
not discuss the basic qualification needed, but refer to
two components: (a) persons of eminence in public life;
8
and (b) .with wide knowledge and experience in the fields
stated in the provision. The provision, thus, does not
suffer from the infirmity of providing no criteria resulting
in the introduction of the element of arbitrariness or
discrimination. The legislature in its wisdom has chosen
C
not to provide any specific qualification, but has primarily
prescribed 'wide knowledge and experience' in the cited
subjects as the criteria for selection. It is not for the courts
to spell out what ought to be the qualifications or
experience for appointment to a particular post. If the
0
legislature itself provides 'knowledge and experience' as
the basic criteria of eligibility for appointment, this per se,'
would not attract the rigors of Article 14 of the
Constitution .. [Paras 48 and 57] [57-G-H; 62-E-F] .
3.2. The principles like 'reading into' and/or 'reading
E
down' have to be applied while: interpreting Section 12(5).
It is the application of these principles that would render
the provision constitutional and not opposed to the
doctrine of equality. In order to satisfy the test of
constitutionality, the Court vvill have to read into Section
F
12(5) of the Act that the expression 'knowledge and
experience' includes basic degree in that field and
experience gained thereafter and secondly that legally·
qualified, trained and experienced persons would better
administer justice to. the people, particularly when they G
are expected to undertake an adjudicatory process which
involves critical legal questions and niceties of law. Such
appreciation and application of legal principles is a sine
qua non to the determinative functioning of the
Information Commission as it can tilt the balance of H
14
SUPREME COURT REPORTS
(2013] 13 S.C.R.
A justice either way. [Paras 58 and 103] [63-D-E; 89-A-C]
-4 ...
3.3. Section 12(5) has inbuilt guidelines to the effect
that knowledge and experience, being two distinct
concepts, should be construed in their correct
8 perspective. This would include the basic qualification as
well as an experience in the respective field, both being
the pre-requisites for this Section. Ambiguity, if any,
resulting from the language of the provision is
insignificant, being merely linguistic in nature and the
)r·
C same is capable of being clarified by framing appropriate
rules in exercise of powers of the Central Government u/
s. 27 of the Act of 2005. Certainty to vague expressions,
like 'social service' and 'mass media', .can be provided
under the provisions which are capable of being
0 explained by framing of proper rules or even by way of
judicial pronouncements. [Paras 57 and 59] [62-G-H; 63y
A-B, F]
3.4. The provisions of Sections 12(5) and 15(5) of the
Act of 2005 are held to be constitutionally valid, but with
E the rider that, to give it a meaningful and purposive
interpretation, it is necessary for the Court to-•read into'
these provisions some aspects without which these
provisions are bound to offend the doctrine of equality.
Thus, it is held and declared that the expression
tF 'knowledge and experience' appearing in these
provisions would mean and include a basic degree in the
respective field and the experience gained thereafter.
Further, appointments of legally qualified, judicially
trained and experienced persons would certainly
G manifest in more effective serving of the ends of justice
-'!( -
as well as ensuring better administration of justice by the
Commission. It would render the adjudicatory process
which involves critical legal questions and nuances of
law, more adherent to justice and shall enhance the
H public confidence in the working of the Commission.
NAMIT SHARMA v. UNION OF INDIA
15
This is the obvious interpretation of the language of these
A
provisions and, in fact, is the essence thereof. [Para 106]
[92-A-E]
4.1. Sub-Section (6) of Section 12 creates in a way a
disqualification in terms thereof. This provision does
have an element of uncertainty and indefiniteness. Upon
B
its proper construction, an issue as to what class of
persons are eligible to be appointed to these posts,
would unexceptionally arise. According to this provision,
-;. ..
a person to be appointed to these posts ought not to
have been carrying on any business or pursuing any c
profession. By necessary implication, it excludes
practically all classes while not specifying as to which
class of persons is eligible to be appointed to that post.
The exclusion is too vague, while inclusion is uncertain.
It creates a situation of confusion which could not have
D
'"r
been the intent of law. It is also not clear as to what
classification the framers of the Act intended to lay down.
The classification does not appear to have any nexus
with the object of the Act. There is no intelligible
differentia to support such classification. [Para 49] [58-EE
H; 59-A-B]
4.2. No Rules have been brought to the notice of the
Court which even intend to explain the vagueness and
'
-4
inequality explicit in the language of Section 12(6). If the
language of Sections 12(5) and 12(6) are read together,
F
the provisions under sub-Section (6) appear to be in
conflict with those under sub-Section (5) and would result
in defeating the provisions of sub-Section (5) of Section
12 to some extent. [Para 49] [59-C-F]
,, x
4.3. The legislature is required to exercise its power
G
in conformity with the constitutional mandate, particularly
contained in Part Ill of the Constitution. If the impugned
provision denies equality and the right of equal
consideration, without reasonable classification, the
courts would be bound to declare it invalid. Section 12(6)
H
16
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A does not speak of the class of eligible persons, but
practically debars all persons from being appointed to the
post of Chief Information Commissioner or Information
Commissioners at the Centre and State levels,
respectively. [Para 50] (59-G-H; 60-A]
B
4.4. The Court will normally adopt an approach which
is tilted in favour of constitutionality and would prefer
reading down the provision, if necessary, by adding
some words rather than declaring it unconstitutional.
Thus, the Court would prefer to interpret the provisions
c of Section 12(6) as applicable post-appointment rather
than. pre.appointment of the Chief Information
Commissioner and Information Commissioners. In other
words, these disqualifications will only come into play
once a person is appointed as Chief Information
o Commissioner/ Information Commissioner at any level
and he will cease to hold any office of profit or carry any
business or pursue any profession that he did prior to
such appointment. As opposed to declaring the
provisions of Section 12(6) and 15(6) unconstitutional, the
E Court would prefer to read these provis.ions as having
effect 'post-appointment'. Cessation/termination of
holding of office of profit, pursuing any profession or
carrying any business is a condition precedent to the
appointment of a person as Chief Information
Commissioner or Information Commissioner at the
F Centre or State levels. [Paras 53 and 106] (60-G-H; 61-A;
92-F-G]
5.1. The Chief Information Commissioner and
members of the Commission are required to possess
y
G wide knowledge and experience in the respective fields.
They are expected to be well versed with the procedure
!'( -
that they are to adopt while performing the adjudicatory
and quasi-judicial functions in accordant"~ with the
statutory provisions and the scheme of the Act of 2005.
H In terms of Section 8(1 )(e), (f), (g), (h) and (i), the authority
• '
..,
'
NAMIT SHARMA v. UNION OF INDIA
17
is required. to record a definite satisfaction whether A
disclosure of information would be in the larger public
interest or whether it would impede the process of
investigation or apprehension or prosecution of the
offenders and whether it would cause unwarranted
invasion qf the privacy of an individual. All these
B
functions may be performed by a legally trained mind
· more efficaciously. The most significant function which
may often be required to be .performed by these
authorities is to strike a balance between the application
of the freedom guaranteed under Article 19(1)(a) and the c
rights protected under Article 21 of the Constitution.
Thus, the deciding authority ought to be conscious of the
constitutional concepts which hold significance while
determining the rights of the parties in accordance with
the provisions of the statute and the Constitution. ·[Para
0
98] [86-B-H]
5.2. Besides separation of powers, the independence
of judiciary is of fundamental constitutional value in the
structure of Indian
Constitution.
Impartiality,
independence, fairness and reasonableness in judicial
E
decision making are the hallmarks of the Judiciary. If
'Impartiality' is the soul of Judiciary, 'Independence' is the
life blood of Judiciary. Without independence, impartiality
cannot thrive. [Para 101] (88-B-C]
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 17 - relied on .
F
5.3. The independence of judiciary stricto sensu
applies to the Court system. Thus, by necessary
implication, it would also apply to the tribunals whose G
functioning is quasi-judicial and akin to the court system.
The entire administration of justice system has to be so
independent and managed by persons of legal acumen,
expertise and experience that the persons demanding
justice must not only receive justice, but should also
H
18
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A have the faith that justice would be done. [Para 102] [88-
-L,
D-E]
5.4. It is not only appropriate but is a solemn duty of
every adjudicatory body, including the tribunals, to state
8 the reasons in support of its decisions. Reasoning is the
'
soul of a judgment and embodies one of the three pillars
.
on which the very foundation of natural justice
jurisprudence rests. It is informative to the claimant of the
basis for rejection of his claim, as well as provides the
·"'
c grounds for challenging the order before the higher
authority/constitutional court. The reasons, therefore,
)--
enable the authorities, before whom an order is challenged,
to test the veracity and correctness of the impugned order.
,
In the present times, since the fine line of distinction
-
between the functioning of the administrative and quasi-
.....
D judicial bodies is gradually becoming faint, even the
)-
administrative bodies are required to pass reasoned
'('
orders. [Para 97] [85-F-H; 86-A]
Siemens Engineering and Manufacturing Co. of India
E Ltd. v. Union of India and Anr. (1976) 2 SCC 981: 1976
Suppl. SCR 489; Assistant Commissioner, Commrcial Tax
Department Works Contract and Leasing, Kofa v. Shukla and
Brothers (2010) 4 SCC 785: 2010 (4) SCR 627 - relied on.
F
5.5. Under the provisions of the Act, particularly,
~
Sections 4, 12, 18, 19, 20, 22, 23 and 25, the Central o:r
State Information Commission, as the case may be, not
.._
only exercises adjudicatory powers of a nature no
different than a judicial tribunal but is vested with the
G powers of a civil court as well. Therefore, it is required tO
decide a lis, where information is required by a person
•
and its furnishing is contested by the other. The
,.(_
.•
Commission exercises two kinds of penal powers: firstly._
in terms of Section 20(1 ), it can impose penalty upon the
H
defaulters or violators of the provisions of the Act and,
NAMIT SHARMA v. UNION OF INDIA
19
secondly, Section 20(2) empowers the Central and the
A
State Information Commission to conduct an enquiry and
direct the concerned disciplinary authority to take
appropriate action against the erring officer in
accordance with law. Hence, the Commission has
powers to pass. orders having civil as well as penal
B
consequences. Besides this, the Commission has been
given monitoring and recommendatory powers. In terms
of Section 23, the jurisdiction of civil courts has been
expressly barred. [Para 59] (63-G-H; 64-A-C]
"The Judicialisation of 'Administrative' Tribunals in the
C
UK : from Hewart to Leggatt" by Gavin Drewry - referred to.
5.6. The nature of functions of the Information
Commission involves an adjudicatory process where
parties are required to be heard, appropriate directions
D
are to be issued, the orders are required to be passed
upon due application of mind and for valid reasons. The
exercise of powers and passing of the orders by the
authorities concerned under the provisions of the Act of
2005 cannot be arbitrary. It has to be in consonance with
the principles of natural justice and the procedure
evolved by such authority. Natural justice has three
indispen~able facetS, i.e.; grant of notice, grant of hearing
and passing of reasoned orders. Thus, the authorities
under the Act of 2005 and the Tribunals are discharging
quasi-judicial functions. [Para 70) (68-G-H; 69-A-B]
E
F
Indian National Congress (/} v. Institute of Social Welfare
and Ors. (2002) 5 sec 685: 2002 (3) SCR 1040 - relied on.
5.7. The Legislature, in its wisdom, has provided for G
two appeals under the 2003 Act. Higher the adjudicatory
forum, greater is the requirement of adherence to the rule
of judiciousness, fairness and to act in accordance with
the procedure prescribed and in absence of any such
prescribed procedure, to act in consonance with the
H
20
SUPREME COURTREPORTS
[2013] 13 S.C.R
A principles of natural justice. Higher also is the public
--l.
expectation from such tribunal. The adjudicatory
functions performed by these bodies are of a serious
nature. An order passed by the Commission is final and
binding and can only be questioned before the High
8 Court or the Supreme Court in exercise of the Court's
jurisdiction under Article 226 and/or Article 32 of the
Constitution, respectively. [Para 75) (72-H; 73-A-B]
5.8. An authority is described as quasi-judicial when
C it has some attributes or trappings of judicial provisions
but not all. The concerned authorities particularly the
Information Commission, possess the essential attributes
and trappings of a court. Its powers and functions, as
defined under the Act of 2005 also sufficiently indicate
0 that it has adjudicatory powers quite akin to the court
system.
They
adjudicate
matters
of serious
consequences. The Commission may be called upon to
decide how far the right to information is affected where
information sought for is denied or whether the
information asked for is 'exempted' or impinges upon the
E 'right to privacy' or where it falls in the 'no go area' of
applicability of the Act. It is not mandatory for the
authorities to allow all requests for information in a
routine manner. The Act of 2005 imposes an obligation
upon the authorities to examine each matter seriously
F being fully cautious of its consequences and effects on
the rights of others. The decision making process by
these authorities is not merely of an administrative
nature. The functions of these authorities are more
aligned towards the judicial functions of the courts rather
G than mere administrative acts of the State authority. (Para
72) [69-F-H; 70-A-F)
H
Gobind v. State of Madhya Pradesh and Anr. (1975) 2
SCC 148: 1975 (3) SCR 946; Ram Jethmalani and Ors. v.
y
NAMIT SHARMA v. UNION OF INDIA
21
A--
Union of India (2011) 8 SCC 1: 2011 (8) SCR 725 - relied
A
on.
5.9. 'Quasi judicial' is a term which may not always
B
be used with utmost clarity and precision. An authority
which exercises judicial functions or functions
analogous to the judicial authorities would normally be
termed as 'quasi-judicial'. The expression 'quasi judicial'
has been termed to be one which stands midway a
judicial and an administrative function. If the authority has
any express statutory duty to act judicially in arriving at
the decision in question, it would be deemed to be quasiC
judicial. Where the function to determine a dispute is
exercised by virtue of an executive discretion rather than
the application of law; it is a quasi-judicial function. A
quasi-judicial act requires that a decision is to be given
not arbitrarily or in mere discretion of the authority but D
according to the facts and circumstances of the case as
determined upon an enquiry held by the authority after
giving an opportunity to the affected parties of being
heard or wherever necessary of leading evidence in
support of their contention. The authority and the
E
Tribunal constituted under the provisions of the Act of
· 2005 are· certainly quasi-judici~I authority/tribunal
performing judicial functions. [Paras 73 and 74) [70-G; 72B-D] .
State of Himachal Pradesh and Ors. v. Raja Mahendra
Pal and Anr. 1995 Supp (2) sec 731 - relied on .
.'Advanced Law Lexicon' (3rd Edn., 2005) by P.
Ramanathan Aiyar - relied on.
5.10. Once it is held thatthe Information Commission
is essentially quasi- judicial in nature, the Chief
information Commissioner and members of the
Commission should be the persons possessing requisite
F
G
H
22
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A qualification and experience in the field of law-and/or
other specified fields. [Para 80) [76-C]
B
c
L. Chandra Kumar v. Union of India (1997) 3 SCC 261:
1997 (2) SCR 1186 - followed.
Bharat Bank Ltd., Delhi v. Employees of Bharat Bank and
Ors. 1950SCR 459: AIR 1950 SC 188; S.P. Sampath Kumar
v. Union of India (1987) 1 SCC 124: 1987 (1) SCR 435;
Union of India v.