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TMI Blog2013 (10) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner. (iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Sections 12(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of profit or connected with any political party or carrying on any business or pursuing any profession. 15(5) The State Chief Information Commissioner and State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. 15(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. The grounds taken in the writ petition were that the provisions of Sections 12(5), 12(6), 15(5) and 15(6) of the Act laying down the eligibility criteria for appointment of Central Information Commissioners and State Information Commissioners were vague and had no nexus with the object of the Act and were violative of Article 14 of the Constitution of India and while enacting these provisions, Parliament had not exercised legislative power in consonance with the consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act may also involve the question of prejudice to a third party, unlike in some countries where information involving a third party cannot be disclosed without the consent of that party. This Court held that considering all these functions to be performed by the Information Commission, the exercise of powers and passing of the orders by the Information Commission cannot be arbitrary and have to be in consonance with the principles of natural justice, namely, notice to a party, grant of hearing and passing of reasoned orders, and, therefore, the Information Commission is a Tribunal discharging quasi-judicial functions. This Court held that there is a lis to be decided by the Information Commission inasmuch as the request of a party seeking information is to be allowed or to be disallowed and the decisions rendered by the Information Commission on such a lis may prejudicially affect a third party. For these reasons, this Court further held that the Information Commission possesses the essential attributes and trappings of a Court as the adjudicatory powers performed by the Information Commission are akin to the Court system and the adjudicatory matters that they decide can have serio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 12(5) of the Act, to ensure judicial independence, effective adjudicatory process and public confidence in the administration of justice by the Commission, it would be necessary that the Commission is required to work in Benches comprising one judicial member and one other member from the specified fields mentioned in Sections 12(5) and 15(5) of the Act. 6. On the appointment procedure, this Court also held in the judgment under review that the appointments to the post of judicial member has to be made in consultation with the Chief Justice of India in case of Chief Information Commissioner and members of the Central Information Commission, and the Chief Justices of the High Courts of the respective States, in the case of State Chief Information Commissioner and State Information Commissioners of that State Commission. This Court further held that in the case of appointment of members to the respective Commissions from other specified fields, the DoPT in the Centre and the concerned Ministry in the States should prepare a panel, after due publicity. Empanelling the names proposed should be at least three times the number of vacancies existing in the Commission and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make it in consonance with the constitutional mandates. 5. We also direct that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today. 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 a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration. 7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law. 8. The Information Commissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedent and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case. It is not only the higher court's judgments that are binding precedents for the Information Commission, but even those of the larger Benches of the Commission should be given due acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is equally applicable to intra-court appeals or references in the hierarchy of the Commission. 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 it is only the Legislature which has the power to make law and amend the law and the Court cannot in exercise of its judicial power encroach into the field of legislation. In support of this submission, he relied on the decision of a seven-Judge Bench of this Court in P. Ramachandra Rao v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provided in Sections 12(5) and 15(5) of the Act that Information Commissioners have to have judicial experience and acumen. He argued that direction no. 8 that Information Commissions 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 and experience in performing judicial functions and the direction that competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners and that the Chief Information Commissioner shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court of India is a palpable error which needs to be corrected in this review. He further submitted that consequently direction no.9 in the judgment under review that the appointment of judicial members as Information Commissioners shall be in consultation with the Chief Justice of India and Chief Justice of High Court of the respective States, as the case may be, should be deleted. 10. Mr. Chandhiok finally submitted that in direction no.5 of the judgment under review, this Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore they need not have judicial background, judicial experience and judicial acumen. Mr. Ganesh next submitted that persons who have been appointed as Chief Information Commissioners and Information Commissioners under Sections 12(5) and 15(5) of the Act, have been persons without any eminence in public life. He submitted that mostly retired IAS Officers and IPS Officers without any experience in public life but only experience in administration have been appointed as Information Commissioners. He submitted that in this review, the Court should issue appropriate directions to ensure that appointment of Chief information Commissioners and Information Commissioners are made in accordance with Sections 12(5) and 15(5) of the Act. 13. Mr. Prashant Bhushan, learned senior counsel appearing for the interveners, Mr. Shailesh Gandhi and Mrs. Aruna Roy, submitted that as the Information Commissions do not perform judicial work, they need not be manned by judicial officers and Justices of High Courts and Supreme Court and, therefore, directions No.8 and 9 of the judgment under review need to be deleted. He further submitted that directions No.10 and 11 of the judgment under review regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this reason also a person with judicial experience and training is best suited and therefore this Court has rightly held that persons with judicial experience and training and judicial acumen should be preferred for appointment as Information Commissioners. He finally submitted that it will be evident from Sections 7, 8, 9 and 11 of the Act that a lis between the parties will have to be decided by the Central Public Information Officer or State Public Information Officer and this Court has rightly held in judgment under review that Information Commissions which decide appeals under Section 20 of the Act against the decisions of the Central Public Information Officer or State Public Information Officer are akin to courts. He referred to Section 18 of the Act to show that Information Commissions have been vested with the powers of a civil court and, therefore, are in the nature of courts which have to be manned by judicial officers. 15. Mr. Sharma vehemently argued that in the event this Court holds in this review that the persons with judicial experience and training need not be appointed as Information Commissioners, then the provisions of Section 12(5) and 15(5) of the Act h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Sales Tax, J K and Others v. Pine Chemicals Ltd. and Others [(1995) 1 SCC 58] that if a reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review suffers from a manifest error of law, an error apparent on the face of the record, and is liable to be rectified. Hence, in these Review Petitions, we have to decide whether the reasoning and directions in the judgment under review is at variance with the clear and simple language employed in the different provisions of the Act and accordingly whether the judgment under review suffers from manifest errors of law apparent on the face of the record. 18. As we have noticed, Sections 12(5) and 15(5) of the Act provide that Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. These provisions of the Act do not provide that the Chief Information Commissioner and Information Commissioners shall be persons having judicial experience, training and acumen and yet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit 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, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. (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 the provisions 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 may be; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service 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 Section 18 the Information Commission has the power and function to receive and inquire into a complaint from any person who is not able to secure information from a public authority, under Section 19 it decides appeals against the decisions of the Central Public Information Officer or the State Public Information Officer relating to information sought by a person, and under Section 20 it can impose a penalty only for the purpose of ensuring that the correct information is furnished to a person seeking information from a public authority. Hence, the functions of the Information Commissions are limited to ensuring that a person who has sought information from a public authority in accordance with his right to information conferred under Section 3 of the Act is not denied such information except in accordance with the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under review, this Court has also held after examining the provisions of the Act that the Information Commission decides matters which may affect the rights of third parties and hence there is requirement of judicial mind. For example, under Section 8(1)(d) of the Act, there is no obligation to furnish information including commercial confidence, trade secrets, or intellectual property, the disclosure of which would harm the competitive position of the third party, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Similarly, the right to privacy of a third party, which is part of his personal liberty under Article 21 of the Constitution, may be breached if a particular kind of information, purely of personal nature may be directed to be furnished by the concerned authority. To protect the rights of third parties, Section 11 of the Act provides that where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record or part thereof, may on a request made under the Act, which relates to or has been supplied by a third party and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to bring to bear a judicial mind - that is, a mind to determine what is fair and just in respect of the matters under consideration." That an officer is required to decide matters before him "judicially" in the second sense does not make him a Court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest. 24. Once the Court is clear that Information Commissions do not exercise judicial powers and actually discharge administrative functions, the Court cannot rely on the constitutional principles of separation of powers and independence of judiciary to direct that Information Commissions must be manned by persons with judicial training, experience and acumen or former Judges of the High Court or the Supreme Court. The principles of separation of powers and independence of judiciary embodied in our Constitution no doubt require that judicial power should be exercised by persons with judicial experience, training and acumen. For this reason, when judicial powers vested in the High Court were sought to be transferred to tribunals or judicial powers are vested in tribunals by an Act of the legislature, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner would amount to encroachment in the field of legislation. To quote from the judgment of the seven-Judge Bench in P. Ramachandra Rao v. State of Karnataka (supra): Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. 26. Moreover, Sections 12(5) and 15(5) of the Act while providing that Chief Information Commissioner and Information Commissioners shall be persons with eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance, also does not prescribe any basic qualification which such persons must have in the respective fields in which they work. In the judgment under review, however, this Court has read into Sections 12(5) and 15(5) of the Act missing words and held that such persons must have a basic degree in the respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or Information Commissioner should be from different fields, namely, law, science and technology, social service, management, journalism, mass media or administration and governance and not just from one field. 28. Sections 12(6) and 15(6) of the Act, however, provide that the Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carry on any business or pursue any profession. There could be two interpretations of Sections 12(6) and 15(6) of the Act. One interpretation could be that a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession will not be eligible to be considered for appointment as a Chief Information Commissioner and Information Commissioner. If this interpretation is given to Sections 12(6) and 15(6) of the Act, then it will obviously offend the equality clause in Article 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months. 30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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