# UNION OF INDIA ) v. NAMIT SHARMA

- **Citation:** [2013] 13 S.C.R. 96
- **Court:** Supreme Court of India
- **Decided:** 2013-09-03
- **Bench:** A.K. Patnaik, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-namit-sharma-28994
- **Pages:** 52

## Headnote

"
c
Constitution of India, 1950 - Article 137 - Review under
)-..
- Held: Is confined to only errors apparent on the face of the
record - On an application for review, the Supreme Court can
reverse or modify its decision on the ground of mistake of law
or fact - In the instant case, as the judgment under review
D suffered from mistake of law, directions and declarations in
the judgment under review recalled - Supreme Court Rules,
1966 - Order XL.
+
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
E Appointment of Central Information Commissioner I
Information Commissioner - Eligibility criteria - ss. 12(5) and
15(5) providing that Chief Information Commissioner and
Information Commissioners shall be persons with eminence
in public life with wide knowledge and experience in law,
F
science and technology, social service, management,
journalism, mass media or administration and governance -
).._
Constitutional validity of ss.12(5) and 15(5) - Upheld in the
judgment under review, but with the rider that the expression
...
'knowledge and experience' appearing in the provisions would
mean and include a basic degree in the respective field and
G the experience gained thereafter; and that appointments of
legally qualified, judicially trained and experienced persons
.~ -
would certainly manifest in more effective serving of the ends
of justice as well as ensuring better administration of justice
-
H
96
UNION OF INDIAv. NAMIT SHARMA
97
.J_
by the Information Commission - Held: ss.12(5) and 15(5) are
A
not ultra vires the Constitution - Said provisions, however, do
not prescribe any basic qualification in the respective fields
of work - In the judgment under review, missing words were
"read into" ss.12(5) and 15(5) and it was held that a basic
"""" -
degree in the respective field was required - This "reading
B
into" the provisions of ss. 12(5) and 15(5), words which the
Parliament has not intended is contrary to the principles of
statutory interpretation - The court could not correct or make
up for any deficiencies or omissions in the language of the
statute - ss.12(5) and 15(5) do not provide that the Chief c
Information Commissioner and Information Commissioners
shall be persons having judicial experience, training and
acumen - Yet, in the judgment under review, it was held that
for effectively petforming the functions and exercising the
powers of the Information Commission, there is a requirement D
of a judicial mind and therefore persons eligible for
__..
appointment should preferably have judicial background and
possess judicial acumen and experience - Such direction
amounted to encroachment in the field of legislation - Since
Information Commissions do not exercise judicial powers, the
E
constitutional principles of separation of powers and
independence of judiciary cannot be relied upon to direct that
they must be manned by persons with judicial training,
'
experience and acumen or former Judges of the High Court
'
or the Supreme Court - Interpretation of Statute.
.
_;..
F
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
~
Matter involving intricate questions of law - Duty of the Chief
Information Commissioner - Held: Wherever, the Chief
Information Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter coming
G
up before the Information Commission, he will ensure that the
.._.
matter is heard by an Information Commissioner who has wide
knowledge and experience in the field of law .
....,..,..
Right to Information Act, 2005 - ss. 12(6) and 15(6)-
H
98
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A Appointment of Chief Information Commissioner/Information
Commissioner - Disqualification provision u/ss.12(6) and
15(6) - Interpretation and effect of - Held: ss. 12(6) and 15(6)
do not debar a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may
B be, or a person holding any other office of profit or connected
with any political party or c

## Text

_Characters 0–39,851 of 100,510. This is a partial read: ask again with offset=39851 for what follows._

[2013] 13 S.C.R. 96
A
UNION OF INDIA
)..
v.
NAMIT SHARMA
REVIEW PETITION [C] No.2309 OF 2012
IN
B
WRIT PETITION [CJ N0.210 OF 2012
SEPTEMBER 3, 2013
[A.K. PATNAIK AND A.K. SIKRI, JJ.)
"
c
Constitution of India, 1950 - Article 137 - Review under
)-..
- Held: Is confined to only errors apparent on the face of the
record - On an application for review, the Supreme Court can
reverse or modify its decision on the ground of mistake of law
or fact - In the instant case, as the judgment under review
D suffered from mistake of law, directions and declarations in
the judgment under review recalled - Supreme Court Rules,
1966 - Order XL.
+
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
E Appointment of Central Information Commissioner I
Information Commissioner - Eligibility criteria - ss. 12(5) and
15(5) providing that Chief Information Commissioner and
Information Commissioners shall be persons with eminence
in public life with wide knowledge and experience in law,
F
science and technology, social service, management,
journalism, mass media or administration and governance -
).._
Constitutional validity of ss.12(5) and 15(5) - Upheld in the
judgment under review, but with the rider that the expression
...
'knowledge and experience' appearing in the provisions would
mean and include a basic degree in the respective field and
G the experience gained thereafter; and that appointments of
legally qualified, judicially trained and experienced persons
.~ -
would certainly manifest in more effective serving of the ends
of justice as well as ensuring better administration of justice
-
H
96
UNION OF INDIAv. NAMIT SHARMA
97
.J_
by the Information Commission - Held: ss.12(5) and 15(5) are
A
not ultra vires the Constitution - Said provisions, however, do
not prescribe any basic qualification in the respective fields
of work - In the judgment under review, missing words were
"read into" ss.12(5) and 15(5) and it was held that a basic
"""" -
degree in the respective field was required - This "reading
B
into" the provisions of ss. 12(5) and 15(5), words which the
Parliament has not intended is contrary to the principles of
statutory interpretation - The court could not correct or make
up for any deficiencies or omissions in the language of the
statute - ss.12(5) and 15(5) do not provide that the Chief c
Information Commissioner and Information Commissioners
shall be persons having judicial experience, training and
acumen - Yet, in the judgment under review, it was held that
for effectively petforming the functions and exercising the
powers of the Information Commission, there is a requirement D
of a judicial mind and therefore persons eligible for
__..
appointment should preferably have judicial background and
possess judicial acumen and experience - Such direction
amounted to encroachment in the field of legislation - Since
Information Commissions do not exercise judicial powers, the
E
constitutional principles of separation of powers and
independence of judiciary cannot be relied upon to direct that
they must be manned by persons with judicial training,
'
experience and acumen or former Judges of the High Court
'
or the Supreme Court - Interpretation of Statute.
.
_;..
F
Right to Information Act, 2005 - ss. 12(5) and 15(5) -
~
Matter involving intricate questions of law - Duty of the Chief
Information Commissioner - Held: Wherever, the Chief
Information Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter coming
G
up before the Information Commission, he will ensure that the
.._.
matter is heard by an Information Commissioner who has wide
knowledge and experience in the field of law .
....,..,..
Right to Information Act, 2005 - ss. 12(6) and 15(6)-
H
98
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A Appointment of Chief Information Commissioner/Information
Commissioner - Disqualification provision u/ss.12(6) and
15(6) - Interpretation and effect of - Held: ss. 12(6) and 15(6)
do not debar a Member of Parliament or Member of the
Legislature of any State or Union Territory, as the case may
B be, or a person holding any other office of profit or connected
with any political party or carrying on any business or pursuing
any profession from being considered for appointment as
Chief Information Commissioner/Information Commissioner
- But after such person is appointed as Chief Information
c Commissioner or Information Commissioner, he has to
discontinue as Member of Parliament or Member of the
Legislature of any State or Union Territory, or discontinue to
hold any other office of profit or remain connected with any
political party or carry on any business or pursue any
0 profession during the period he functions as Chief Information
Commissioner/Information Commissioner.
Right to Information Act, 2005 - ss. 12(3) and 15(3) -
Committee u/ss. 12(3) and 15(3) for appointment of Chief
Information Commissioner/Information Commissioners -
E Role and duty of - Held: The Committee while making
recommendations for such appointment must mention
against the name of each candidate recommended, the facts
to indicate his eminence in public life, his knowledge in the
particular field and his experience in the particular field and
F these facts must be accessible to the citizens as part of their
right to information under the Act after the appointment is
made.
Right to Information Act, 2005 - ss. 18, 19 and 20 -
G Functions of the Information Commission - Nature of - Held:
The Information Commission discharges administrative
functions, not judicial functions -
While performing the
administrative functions, however, the Information
Commissions are required to act in a fair and just manner
following the procedure laid down in ss. 18, 19 and 20 - But
H
.. ~
UNION OF INDIA v. NAMIT SHARMA
99
_A
this does not mean that the Information Commissioners are
A
like Judges or Justices who must have judicial experience,
training and acumen.
Right to Information Act, 2005 - ss. 27 and 28 - Direction
given in the judgment under review, to the Central
B
Government and/or the competent authority to frame practice
and procedure related rules within a period of six months -
Challenge to - Held: The direction is patently erroneous
since the use of word "may" in ss. 27 and 28 make it clear that
the Parliament has left it to the discretion of the rule making c
authority to make rules to carry out the provisions of the Act
- Hence, no mandamus can be issued to the rule making
authority to make the rules either within a specific time or in
a particular manner- The Court cannot direct the rule making
authority to make the rules where the Legislature confers
D
discretion on the rule making authority to make rules.
·\-
The respondent had filed a Writ Petition filed under
Article 32 of the Constitution, praying for declaring
Sections 12(5), 12(6), 15(5) and 15(6) of the Right to
Information Act, 2005 as ultra vires the Constitution
E
contending that the said provisions, whereby eligibility
criteria was l(iid down for appointment of Central
Information Commissioners and State Information
Commissioners, were vague and had no nexus with the
"
_._
object of the Act and were violative of Article 14 of the
F
Constitution and while enacting these provisions, the
Parliament had not exercised legislative power in
consonance with the constitutional principles and
guarantees.
The Supreme Court disposed of the writ petition G
--!
holding the provisions of Sections 12(5) and 15(5) of the
Act of 2005 to be constitutionally valid, but with the rider
that, to give it a meaningful and purposive interpretation,
the expression 'knowledge and experience' appearing in
these provisions would mean and include a basic degree
H
100
SUPREME COURT REPORTS
(2013] 13 S.C.R.
A in the field and the experience gained thereafter; and that
appointments of legally qualified, judicially trained and
experienced persons would certainly manifest in more
effective serving of the ends of justice as well as ensuring
better administration of justice by the Information
8 Commission. Further as opposed to declaring the
provisions of Section 12(6) and 15(6) unconstitutional, the
Supreme Court read these provisions as having effect
'post-appointment' i.e. cessation/termination of holding of
office of profit, pursuing any profession or carrying any
>--
C business is a condition precedent to the appointment of
a person as Chief Information Commissioner or
Information Commissioner at the Centre or State levels.
The Supreme Court further directed the Central
Government and/or the competent authority to frame all
D practice and procedure related rules to make working of
the Information Commissions effective and in
~-
consonance with the basic rule of law and such rules be
framed with particular reference to Section 27 and 28 of
the Act within a period of six months. The Supreme Court
E also held that the Commission is a 'judicial tribunal'
performing functions of 'judicial' as well as 'quasi-judicial'
nature and having the trappings of a Court, unlike a
ministerial tribunal which is more influenced and
controlled and performs functions akin to the machinery
F of administration and thus it will be just, fair and proper
that the first appellate authority (i.e. the senior officers to
be nominated in terms of Section 5 of the Act of 2005)
preferably should be the persons possessing a degree
in law or having adequate knowledge and experience in
G the field of law.
H
The said judgment of the Supreme Court was
challenged in the instant Review Petitions filed under
Article 137 of the Constitution. The question which arose
for consideration was whether the reasoning and
UNION OF INDIA v. NAMIT SHARMA
101
directions in the judgment under review were at variance A
with the clear and simple language employed in the
different provisions of the Right to Information Act, 2005
and whether the judgment under review suffered from
manifest errors of law apparent on the face of the record.
Allowing the review petition, the Court
B
HELD:1. Review of a judgment or order of this Court
under.Article 137 of the Constitution is confined to only
errors apparent on the face of the record as provided in
Order XL Rule 1 of the Supreme Court Rules, 1966. If a C
reasoning in the judgment under review is at variance
with the clear and simple language in a statute, the
judgment under review suffers from a manifest error of
law, an error apparent on the face of the record, and is
liable to be rectified. Under Order XL of the Supreme D
Court Rules, 1966, this Court can review its judgment or
order on the ground of error apparent on the face of
record and on an application for review can reverse or
modify its decision on the ground of mistake of law or
fact. [Paras 17, 32] [128-A-C; 146-A]
E
Commissioner of Sa/es Tax, J & K and Ors. v. Pine
Chemicals Ltd. and Ors. (1995) 1 SCC 58: 1994 (5) Suppl.
SCR 123 - relied on.
2.1. Sections 12(5) and 15(5) of the Act provide that F
Chief Information Commissioner and Information
Commissioners shall be persons of eminence in public
life with wide knowledge and experience in law, science
and technology, social service, management, journalism,
mass media or administration and governance. These G
provisions of the Act do not provide that the Chief
Information
Commissioner
and
Information
Commissioners shall be persons having judicial
experience, training and acumen and yet this Court has
held in the judgment under review that for effectively H
102
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
performing the functions and exercising the powers of the
l.
Information Commission, there is a requirement of a
judicial mind and therefore persons eligible for
appointment should preferably have judicial background
and possess judicial acumen and experience. [Para 18]
B
[128-E-G]
2.2. Sections 18, 19 and 20 of the Act confer powers
on the Information Commission. It is clear from the plain
and simple language of Sections 18, 19 and 20 of the Act
that the functions of the Information Commissions are
)....
c limited to ensuring that a person who has sought
information from a public authority in accordance with his
right to information conferred under Section 3 of the Act
is not denied S\ICh information except in accordance with
D
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 to information accessible under
the Act, "which is held by or under the control of any
public authority". While deciding whether a citizen should
or should not get a particular information "which is held
E by or under the control of any public authority", the
Information Commission does not decide a dispute
between two or more parties concerning their legal rights
other than their right to get information in possession of
a public authority. This function obviously is not a judicial
F function, but an administrative function conferred by the
)..__
Act on the Information Commissions. [Paras 19, 20] [129t~
A; 134-H; 135-A-F]
~
2.3. In the judgment under review, this Court has held
G that there is a /is to be decided by the Information
Commission inasmuch as the request of a party seeking
information is to be allowed or to be disallowed and
+-
hence requires a judicial mind. But the tis that the
Information Commission has to decide was only with
H
regard to the information in possession of a public
UNION OF INDIA v. NAMIT SHARMA
103
.J..
authority and the Information Commission was required
A
to decide whether the information could be given to the
person asking fo.r it or should be withheld in public
interest or any other interest protected by the provisions
of the Act. The Information Commission, therefore, while
deciding this /is does not really perform a judicial function,
B
but performs an administrative function in accordance
with the provisions of the Act. [Para ~1] [135-F-H; 136-A]
--<
2.4. In the judgment under review, this Court has also
held that the Information Commission decides matters
which may affect the rights of third parties and hence c
there is requirement of judicial mind. To protect the rights
of third parties, Section 11 of the Act provides that where
a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to
D
disclose any information or record or part thereof, may
~-
on a request made under the Act, which relates to or has
been supplied by a third party and bas been treated as
confidential by that third party, a written notice will have
to be given to such third party inviting such party to make
a submission in writing or orally, regarding whether the
E
information should be disclosed, and such submission
of the third party can be kept in view while taking a
decision about disclosure of the information. The
decision taken by the Central Public lnformt;ttion Officer
or the State Public Information Officer, as the case may
F
be, under Section 11 of the Act is appealable under
Section 19 of the Act before the Information Commission
and when the Information Commission decides such an
appeal, it decides only whether or not the information
should be furnished to the citizen in view of the objection
G
~-
of the third party. Here also the Information Commission
does not decide the rights of a third party but only
whether the information which is held by or under the
control of a public authority in relation to or supplied by
that third party could be furnished to a citizen under the
H
104
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A provisions of the Act. Hence, the Information Commission
discharges administrative functions, not judicial
functions. [Para 22) [136-E"H; 137-A-E]
2.5. While performing the administrative functions,
8 however, the Information Commissions are required to
act in a fair and just manner following the procedure laid
down in Sections 18, 19 and 20 of the Act. But this does
not mean that the Information Commissioners are like
Judges or Justices who must have judicial experience,
C training and acumen. [Para 23] (137-F]
Harinagar Sugar Mills Ltd. v. Shyam Sunder
Jhunjhunwala and Others AIR 1961 SC 1669: 1962 SCR 339
- relied on.
0
Bharat Bank Ltd., Delhi v. Employees of Bharat Bank and
Ors. AIR 1950 SC 188: 1950 SCR 459; S.P. Sampath
Kumar v. Union of India and Ors. (1987) 1 SCC 124: 1987
(1) SCR 435 and L. Chandra Kumar v. Union of India and
Ors. (1997) 3 sec 261: 1997 (2) SCR 1186 - referred to.
E
B. Johnson & Co. (Builders), Ltd. v. Minister of Health
(1947) 2 All England Law Reports 395 - referred to.
Ma/likarjuna Rao and Ors. v. State of Andhra Pradesh
and Ors. (1990) 2 SCC 707: 1990 (2) SCR 418; Bushell v.
F Secretary of State for the Environment (1980) 2 All ER 608
,L
HL; Centre for PIL and Anr. v. Union of India and Anr. (2011)
4 SCC 1 and Indra Das v. State of Assam (2011) 3 SCC 380:
2011 (4) SCR 289 - cited.
3. Once the Court is clear that Information
G Commissions do not exercise judicial powers and
H
actually discharge administrative functions, the Court
¥-
cannot rely on the constitutional principles of separation
of powers and independence of judiciary to direct that
Information Commissions must be manned by persons
\
UNION OF INDIA v. NAMIT SHARMA
105
with judicial training, experience and acumen or former
A
;
~
Judges of the High Court or the Supreme Court. The
principles of separation of powers and independence of
judiciary embodied in our Constitution no doubt require
that judicial power should be exercised by persons with
judicial experience, training and acumen. But, the powers
B
exercised by the Information Commissions under the Act
were not earlier vested in the High Court or subordinate
court or any other court and are not in any case judicial
powers and therefore the Legislature need not provide
for appointment of judicial members in the Information c
Commissions. Perhaps for this reason, Parliament has
not provided in Sections 12(5) and 15(5) of the Act for
appointment of persons with judicial experience and
acumen and retired Judges of the High Court as
Information Commissioners and retired Judges of the
D
Supreme Court and Chief Justice of the High Court as
\"-
Chief Information Commissioner and any direction by this
Court for appointment of persons with judicial
experience; training and acumen and· Judges as
Information Commissioners and Chief Information
E
Commissioner would amount to encroachment in the field
of legislation. [Paras 24, 25) [138-E-G; 139-G-H; 140-A-C]
Union of India v. R. Gandhi, President Madras Bar
Association (2010) 11 SCC 1: 2010 (6) SCR 857; Pareena
Swarup v. Union of India (2008) 14 SCC107: 2008 (13) SCR
F
1217- distinguished.
P. Ramachandra Rao v. State of Karnataka (2002) 4
sec 578 -
followed.
·4, Moreover, Sections 12(5) and 15(5) of the Act while
G
+
providing that Chief Information Commissioner and
Information Commissioners shall be persons with
eminence in public life with wide knowledge and
experience in law, science and technology, social service,
management, journalism, mass media or administration
H
106
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A and governance, also does not prescribe any basic
qualification which such persons must have in the
respective fields in which they work. In the judgment
under review, however, this Court has "read into"
Sections 12(5) and 15(5) of the Act missing words and
B held that such persons must have a basic degree in the
respective field as otherwise Sections 12(5) and 15(5) of
the Act are bound to offend the doctrine of equality. This
"reading into" the provisions of Sections 12(5) and 15(5)
of the Act, words which Parliament has not intended is
c contrary to the principles of statutory interpretation
recognised by this Court. The court could not correct or
make up for any deficiencies or omissions in the
language of the statute. [Para 26) [140-E-H; 141-A]
Union of India and Anr. v. Deoki Nandan Aggarwal 1992
D Supp. (1) sec 323 - relied on.
5. In the judgment under review, this Court has also
held that if Sections 12(5) and 15(5) of the Act are not
read in the manner suggested in the judgment, these
E Sections would offend the doctrine of equality. But
Sections 12(5) and 15(5) of the Act do not discriminate
against any person in the matter of appointment as Chief
Information
Commissioner
and
Information
Commissioners and so long as one is a person of
F eminence in public life with wide knowledge and
experience in law, science and technology, social service,
management, journalism, mass media or administration
and governance, he is eligible to be considered for
appointment as Chief Information Commissioner or
G Information Commissioner. However, to ensure that the
equality clause in Article 14 is not offended, the persons
to be considered for appointment as Chief Information
Commissioner or Information Commissioner should be
from different fields, namely, law, science and
technology, social service, management, journalism,
H
UNION OF INDIA v. NAMIT SHARMA
107
l .A
mass media or administration and governance and not
A
just from one field. [Para 27] [141-E-H; 142-A]
6. Sections 12(6) and 15(6) of the Act, however,
provide that the Chief Information Commissioner or an
Information Commissioner shall not be a Member of B
Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carry on
any business or pursue any profession. There could be
two interpretations of Sections 12(6) and 15(6) of the Act. c
One interpretation could be that a Member of Parliament
or Member of the Legislature of any State or Union
Territory, as the case may be, or a person holding any
other office of profit or connected with any political party
or carrying on any business or pursuing any profession
will not be eligible to be considered for appointment as· a
D
Chief Information Commissioner and Information
Commissioner. If this interpretation is g"'en to Sections
12(6) and 15(6) of the Act, then it will obviously offend the
equality clause in Article 14 of the Constitution as it debars
such persons from being considered for appointment as
E
Chief Information Commissioner and Information
Commissioners. The second interpretation of Sections
12(6) and 15(6) of the Act could be that once a person is
appointed as a Chief Information Commissioner or
~
Information Commissioner, he cannot continue to be a
F
Member of Parliament or Member of the Legislature of any
State or Union Territory, as the case may be, or hold any
other office of profit or remain connected with any political
party or carry on any business or pursue any profession.
If this interpretation is given to Sections 12(6) and 15(6) of G
the Act then the interpretation would effectuate the object
~
of the Act inasmuch as Chief Information Commissioner
and Information Commissioners would be able to perform
their functions in the Information Commission without
being influenced by their political, business, professional
H
108
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A or other interests. It is this second interpretation of
;.__
Sections 12(6) and 15(6) of the Act which has been rightly
f
given in the judgment under review and Sections 12(6) and
15(6) of the Act have been held as not to be violative of
Article 14 of the Constitution. [Para 28) [142-A-H; 143-A]
B
7. In the judgment under review, the Central
Government and/or the competent authority have been
directed to frame all practice and procedure related rules
to make working of the Information Commissions
effective and in consonance with the basic rule of law
c and with particular reference to Sections 27 and 28 of the
Act within a period of six months. The use of word "may"
in Sections 27 and 28 of the Act make it clear that
Parliament has left it to the discretion of the rule making
authority to make rules to carry out the provisions of the
D Act. Hence, no mandamus can be issued to the rule
making authority to make the rules either within a specific
time or in a pal1icular manner. If, however, the rules are
made by the rule making authority and the rules are not
in accordance with the provisions of the Act, the Court
E can strike down such rules as ultra vires the Act, but the
Court cannot direct the rule making authority to make the
rules where the Legislature confers discretion on the rule
making authority to make rules. In the judgment under
review, therefore, this Court made a patent error in
F directing the rule making authority to make rules within
)..._
a period of six months. [Para 29) [143-C-D; F-H; 144-A]
8. Nonetheless, the selection and appointment of
Chief Information Commissioner and Information
G
Commissioners has not been left entirely to the discretion
of the Central Government and the State Government
under Sections 12 and 15 of the Act. The basic
+
requirement for a person to be appointed as a Chief
Information Commissioner or Information Commissioner
is that he should be a person of eminence in public life
H
_,
'
UNION OF INDIA v. NAMIT SHARMA
109
with wide knowledge and experience in a particular field.
A
Parliament has insisted on this basic requirement having
regard to the functions that the Chief Information
Commissioner and Information Commissioners are
required to perform under the Act. (Para 30] (144-B, E-F]
9. However, the orders passed by Information
Commissions have at times· gone beyond the provisions
of the Act and the Information Commissions have not
been able to harmonise the conflicting interests indicated
B
in the preamble and other provisions of the Act. The
reasons for this experience about the functioning of the
C
Information Commissions could be either that persons
who do not answer the criteria mentioned in Sections
12(5) and 15(5) have been appointed as Chief Information
Commissioner or Information Commissioners or that the
persons appointed answer the criteria laid down in
D
Sections 12(5) and 15(5) of the Act but they do not have
the required mind to balance the interests indicated in the
Act and to restrain themselves from acting beyond the
provisions of the Act. This experience of the functioning
of the Information Commissions prompted this Court to
E
issue the directions in the judgment under review to
appoint judicial members in the Information
Commissions. B.ut it is for Parliament to com;ider
whether appointment of judicial members in the
Information Commissions will imp.rove the functioning of
F
the Information Commissions and as Sections 12(5) and
15(5) of the Act do not provide for appointment of judicial
members in the Information Commissions, this direction
was an apparent error. Sections 12(5) and 15(5) of the
Act, however, provide for appointment of persons with G
wide knowledge and experience in law. This Court hopes
that persons with wide knowledge and experience in law
will be appointed in the Information Commissions at the
Centre and the States. Accordingly, wherever Chief
H
110
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[2013] 13 S.C.R.
A Information Commissioner is of the opinion that intricate
questions of law will have to be decided in a matter
coming before the Information Commissions, he will
ensure that the matter is heard by an Information
Commissioner who has such knowledge and experience
B in law. [Para 31) [145-B-H]
10. As the judgment under review suffers from
mistake of law, the directions and declarations in the
judgment under review are recalled and following
C declarations and directions are given:
D
E
F
G
H
(i)
Sections 12(5) and 15(5) of the Act are not ultra
vires the Constitution.
(ii)
Sections 12(6) and 15(6) of the Act do not
debar a Member of Parliament or Member of
the Legislature of any State or Union Territory,
as the case may be, or a person holding any
other office of profit or connected with any
political party or carrying on any business or
pursuing any profession from
being
considered for appointment as Chief
Information Commissioner or Information
Commissioner, but after such person is
appointed as Chief Information Commissioner
or Information Commissioner, he has to
discontinue as Member of Parliament or
Member of the Legislature of any State or
Union Territory, or discontinue to hold any
other office of profit or remain connected with
any political party or carry on any business or
pursue any profession during the period he
functions as Chief Information Commissioner
or Information Commissioner.
(iii)
Only persons of eminence in public life with
•
-
UNION OF INDIA v. NAMIT SHARMA
111
(iv)
wide knowledge and experience in the fields
A
mentioned in Sections 12(5) and 15(5) of the
Act be considered for appointment as
Information Commissioner and Chief
Information Commissioner.
B
Persons of eminence in public life with wide
knowledge and experience in all the fields
mentioned in Sections 12(5) and 15(5) of the
Act, namely, law, science and technology,
social service, management, journalism, mass
media or administration and governance, be C
considered by the Committees under Sections
12(3) and 15(3) of the Act for appointment as
Chief
Information
Commissioner
or
Information Commissioners.
D
(v)
The Committees under Sections 12(3) and 15(3)
of the Act while making recommendations to
the President or to the Governor, as the case
may be, for appointment of Chief Information
Commissioner and Information CommissE
ioners must mention against the name of each
candidate recommended, the facts to indicate
his eminence in public life, his knowledge in
the particular field and his experience in the
particular field and these facts must be
F
accessible to the citizens as part of their right
to information under the Act after the
appointment is made.
(vi) Wherever Chief Information Commissioner is
of the opinion that intricate questions of law G
will have to be decided in a matter coming up
before the Information Commission, he will
ensure that the matter is heard by an
Information Commissioner who has wide
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112
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
knowledge and experience in the field of law.
~ ~
[Para 32] [146-B-H; 147-A-F]
Case Law Reference:
1994 (5) Suppl. SCR 123 relied on
Para 17
B
. (1947) 2 All ELR 395
referred to
Paras 12, 21
1962 SCR 339
relied on
Paras 9, 23
2010 (6) SCR 857
distinguished
Paras 5, 16,
)...
c
24
2008 (13) SCR 1217
distinguished
Paras 16, 24
)-
(2002) 4 sec 578
followed
Para 8
D
1992 supp. (1) sec 323 relied on
Paras 8, 26
1950 SCR 459
referred to
Para 5
1987 (1) SCR 435
referred to
Para 5
'f
>-
1997 (2) SCR 1186
referred to
Para 5
E
1990 (2) SCR 418
cited
Para 10
(1980) 2 All ER 608 HL
cited
Para 12
(2011) 4 sec 1
cited
Para 13
F
2011 (4) SCR 289
cited
Para 15
}..-.
CIVIL ORIGINAL JURISDICTION : Review Petition (C) No.
2309 of 2012.
IN
G
Writ Petition (Civil) No. 210 of 2012.
+- ...
Under Article 32 of the Constitution of India.
WITH
H
·+
UNIO~F INDIA v. NAMIT SHARMA
113
RP(C) No. 2675 of 2012 in WP(C) No. 210 of 2012.
Amarjit Singh Chandhiok, ASG, M.S, Ganesh, Dr. Manish
Singhvi, lrshad Ahmad, AAG, Ritesh Kumar, Anoopam Prasad,
T.A. Khan, Nizam Pasha, Shweta Gupta, Honey Kumari,
Mallika Ahluwalia, Sidharth Tyagi, B.V. Balaram Das, R.
Ayyam Perumal, K. Seshachary, Anushree Kapadia, Sukun
K.S. Chandele, Amit Lubhaya, Pragati Neekhra, Prashant
Bhushan, Pranav Sachdeva, Amit Sharma, Shweta Singh,
Upendra Mishra, Satya Narain Shukla for the appearing parties.
The Judgment of the Court was delivered by
A.K. PATNAIK, J. 1. These are petitions filed under Article
137 of the Constitution of India for review of the judgment dated
13.09.2012 of this Court in Writ Petition (C) No.210 of 2012
(hereinafter referred to as 'the judgment under review').
Background· Facts:
2. In Writ Petition (C) No.210 of 2012 filed under Article
A
B
c
D
32 of the Constitution of India, Namit Sharma, the respondent
herein, had prayed for declaring the provisions of Sections
E
12(5), 12(6), 15(5) and 15(6) of the Right to Information Act,
2005 (for short 'the Act') as ultra vires the Constitution.
Sections 12(5), 12(6), 15(5) and 15(6) of the Act are extracted
herein below:
"12(5) The Chief Information Commissioner and
Information Commissioners shall be persons of eminence
F
in public life with wide knowledge and experience in law,
science and technology, social service, management,
journalism, mass media or administration and
G
governance."
"12(6) The Chief Information Commissioner or an
Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or
H
A
B
c
D
114
SUPREME COURT REPORTS
[2013] 13 S.C.R.
Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carrying
on any business or pursuing any profession."
"15(5) The State Chief Information Commissioner and
State Information Commissioners shall be persons of
eminence in public life with wide knowledge and experience
in law, science and technology, social service,
management, journalism, mass media or administration
and governance."
"15(6) The State Chief Information Commissioner or a
State Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or
Union Territory, as the case may be, or hold any other office
of profit or connected with any political party or carrying
on any business or pursuing any profession."
The grounds taken in the writ petition were that the
-f
provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Act
laying down the eligibility criteria for appointment of Central
E
Information Commissioners and State Information
Commissioners were vague and had no nexus with the object
of the Act and were violative of Article 14 of the Constitution of
India and while enacting these provisions, Parliament had not
exercised legislative power in consonance with the
F
constitutional principles and guarantees.
~
3. After hearing the learned counsel for the respondent-writ
petitioner and the learned Additional Solicitor General for Union
of India, this Court held in the judgment under review that the
provisions of Sections 12(5) and 15(5) of the Act did not specify
G the basic qualifications of the persons to be appointed as
Information Commissioners and only mentioned that the Chief
+
Information Commissioner and Information Commissioners
shall be persons of eminence in public life with wide knowledge
and experience in law, science and technology, social service,
H
management, journalism, mass media or administration and
L
UNION OF INDIA v. NAMIT SHARMA
115
[A.K. PATNAIK, J.]
Jc
governance. This Court held that the knowledge and
A
experience in the different fields mentioned in Section 12(5)
and Section 15(5) of the Act would presuppose a graduate who
possesses basic qualification in the concerned field. This Court
also held that Sections 12(6) and 15(6) of the Act, which
provide that the Chief Information Commissioner or an
B
Information Commissioner shall not be a Member of Parliament
or Member of the Legislature of any State or Union Territory or
hold any other office of profit or be connected with any political
party or carry on any business or pursue any profession, do not
disqualify such persons for consideration for appointment as c
Chief Information Commissioner or Information Commissioner,
but these disqualifications will come into play after a person is
appointed as Chief Election Commissioner or Information
Commissioner. In other words, after a Chief Election
Commissioner or Information Commissioner is appointed, he
D
r
cannot continue to be a Member of Parliament or Member of
the Legislature of any State or hold any other office of profit or
remain connected with any political party or carry on any
business or pursue any profession.
4. In the judgment under review, this Court also held that
E
the Information Commission, as a body, performs functions of
wide magnitude, through its members, including adjudicatory,
supervisory as well as penal functions. This Court held that
"
-~
access to information is a statutory right, subject to certain
constitutional and statutory limitations and the Information
F
Commissioners have been vested with the power to decline
furnishing of information under certain circumstances and in the
specified situations. This Court held that disclosure of
information under the Act may also involve the question of
prejudice to a third party, unlike in some countries where G
-+
information involving a third party cannot be disclosed without
the consent of that party. This Court held that considering all
these functions to be perfc;>rmed by the Information Commission,
the exercise of powers and passing of the orders by the
Information Commission cannot be arbitrary and have to be in
H
116
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A consonance with the principles of natural justice, namely, notice
~
to a party, grant of hearing and passing of reasoned orders,
and, therefore, the Information Commission is a Tribunal
discharging quasi-judicial functions. This Court held that there
is a /is to be decided by the Information Commission inasmuch
B as the request of a party seeking information is to be allowed
or to be disallowed and the decisions rendered by the
Information Commission on such a /is may prejudicially affect
a third party. For these reasons, this Court further held that the
Information Commission possesses the essential attributes
,\>..._
c and trappings of a Court as the adjudicatory powers performed
by the Information Commission are akin to the Court system
and the adjudicatory matters that they decide can have serious
consequences on various rights including the right to privacy
protected under Article 21 of the Constitution.
D
5. In the judgment under review, this Court also expressed
the opinion that for effectively performing the functions and
exercising the powers of the Information Commission, there is
a requirement of a judicial mind. For holding this opinion, the
Court relied on the judgments of this Court in Bharat Bank Ltd.,
E Delhi v. Employees of Bharat Bank & Ors. [AIR 1950 SC 188],
S.P. Sampath Kumar v. Union of India and Others [(1987) 1
SCC 124], Union of India v. R. Gandhi, President Madras Bar
Association [(2010) 11 SCC 1] and L. Chandra Kumar v.
Union of India and Others [(1997) 3 SCC 261]. This Court also
~ •·
F held that separation of powers and the independence of
judiciary are fundamental constitutional values in the structure
of our Constitution as without these two constitutional values,
impartiality cannot thrive as has been held by this Court in
Union of India v. R. Gandhi, President, Madras Bar
G Association (supra). This Court, thus, held that though the
independence of judiciary stricto sensu applied to the Court
system, by necessary implication, it would also apply to
Tribunals whose functioning is quasi-judicial and akin to the
Court system and the entire administration of justice has to be
H so independent and managed by persons of legal acumen,
UNION OF INDIA v. NAMIT SHARMA
117
[A.K. PATNAIK, J.]
expertise and experience that persons demanding justice must
A
not only receive justice, but should also have the faith that justice
would be done. This Court accordingly held that the persons
eligible for appointment should be of public eminence, with
knowledge and experience. in the specified fields and should
preferably have some judicial background and they should
B
possess judicial acumen and experience to fairly and effectively
deal with the intricate quespons of law that would come up for
determination before the Information Commission in its day-today working. this Court held that the Information Commission
is a judicial tribu.nal having the.essential trappings of a Court c
and, as an rrresistible corolJ.ary, it will follow that the
appointments to the lnformay.Qn Commission are made in
consultation with the judiciary'.