The Supreme Court in Namita Sharma v. Union of India dealt with the constitutional validity of sections 12(5), 12(6), 15(5) and 15(6) of the Right to Information Act, 2005 (“Act“). Sections 12(5) and 12(6) deal with the eligibility criteria for appointment to the post of Chief Information Commissioner and Central Information Commissioners. Sections 15(5) and 15(6) deal with the appointment to the post of State Chief Information Commissioner and State Information Commissioners. Under Section 12(5)/15(5) the members of the State and Central Information Commission should 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. Furthermore, section 12 (6)/15(6) elaborates that such members should 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 connected with any political party or carrying on any business or pursuing any profession. The petitioner approached the Hon’ble Supreme Court with the grievance that even though the members of the Central and State Information Commissions exercise judicial and quasi-judicial powers under the Act, the eligibility requirements prescribed for their appointment under the Act are too vague, general, ultra vires the Constitution, specifically Article 14, 16 and 19 (1) (g) and contrary to the established principles of law laid down by a plethora of judgments of the Supreme Court.
Judgment of the Supreme Court:
The Hon’ble Supreme Court discussed the scheme, objects and reasons of the Act, and also compared the Act with the Freedom of Information Act, 2002. After an elaborate discussion on the above, the Hon’ble Supreme Court came to the following conclusions:
(a) Constitutional validity of section 12(5) /15(5):
The Hon’ble Supreme Court observed that sections 12(5) / 15(5) of the Act have two components: (i) persons should be of public eminence; and (ii) person should have knowledge and experience in their respective field. Even though these provisions do not provide for any qualifications, they are not arbitrary as knowledge and experience by implication would mean and include satisfaction of basic qualification in their respective fields. Sections 12(5) / 15(5) have inbuilt guidelines to the effect that knowledge and experience, being two distinct concepts, should be construed in their correct perspective. Certainty to vague expressions like ‘social service’, ‘mass media’ or ‘administration and governance’ can be explained by framing proper rules under sections 27 and 28 of the Act. Therefore, sections 12 (5) /15(5) are not ultra vires the constitution of India.
(b) Constitutional validity of section 12(6) /15(6)
Section 12 (6) /15(6) of the Act state that the members of the Information Commissions should not hold ministerial positions, office of profit or be connected with a political party or carry on business or profession whereas section 12(5) / 15(5) requires the member to have eminence in public life and wide knowledge and experience in the specified field. When sections 12(5) / 15(5) and section 12(6) / 15(6) are read together, the purpose of sections 12(5) /15(5) is defeated as virtually no person will be able to become a member of the Information Commission. Section 12(6) / 15(6) lacks clarity, reasonable classification and has no nexus to the object of the Act and if construed on its plain language, it would result in defeating the provisions of section 12(5) / 15(5) to some extent. Also, these clauses do not specify any time period for which a person should not have carried on any business or profession. The Supreme Court has reasoned that these disqualifications are not pre-appointment but operate post-appointment.
(c) Quasi-Judicial Authority:
The Information Commission is vested with penal powers under the Act which include the power to impose fines and conduct enquiries. Under the Act, the Commissions determine the outcome of disputes between the parties by striking a balance between right to privacy and right to information. Therefore, the powers of Information Commissions are adjudicatory in nature and not merely administrative. This requires performance of judicial functions of hearing a dispute between two parties, weighing the arguments of the parties and pronouncing a decision in accordance with the rule of law. The Information Commissions are, therefore, quasi-judicial authority or tribunals performing judicial functions.
(d) Information Commissions supplant the civil courts
Section 23 of the Act ousts the jurisdiction of civil courts in respect of any suit, application or other proceedings in respect of any order made under the Act. The complete code for appeal and challenge has been laid out in the Act. The appeal from the decision of the information officer lies with the first appellate authority and a subsequent second appeal to the Information Commission. Exclusion of jurisdiction of civil courts does not preclude the right to approach the High Court and the Supreme Court under their writ jurisdictions. The Hon’ble Supreme Court on several occasions (S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124, Union of India v. Madras Bar Association (2010) 11 SCC 17) has held that tribunals exercising quasi-judicial functions should have legally trained and experienced members because they are required to supplant the High Court.
(e) Structure of Information Commission
(i) The Supreme Court held that the Information Commissions will work in a bench of two members, one judicial member and another qualified person from the specified field (expert member).
(ii) The judicial member should have degree in law and experience in performing judicial functions. A law officer or a lawyer who has practiced law at least for a period of twenty years will be eligible for appointment as a judicial member. Such lawyer should also have experience in social work. Preference should be given to a person who is or has been a Judge of the High Court for appointment as Information Commissioners. The Chief Information Commissioner at the Centre or State level should only be a person who is or has been a Chief Justice of the High Court / a Judge of the Supreme Court. The judicial members will be appointed in consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
(iii) Under section 12(3) of the Act, the members of the Information Commissions are to be appointed by the President upon the recommendations of the High Powered Committee. The Act is silent upon the procedure to be followed. The Hon’ble Supreme Court directed that a panel of prospective members will be created by the Department of Personnel and Training or the concerned state level ministry, as the case may be after due advertisement. The panel will be placed before the High Powered Committee to make selections in accordance with section 12 (3) of the Act.
(iv) The Supreme Court recommended that first appellate authority under the Act should be a person possessing a degree in law or having adequate knowledge and experience in the field of law.
(f) Amendments to the Act and framing of rules:
The Supreme Court has read down the provisions of section 12(5), 12 (6), 15 (5) and 15(6) to up hold their constitutional validity. However, the Supreme Court has observed that it is necessary for the legislature to suitably amend the Act. The Supreme Court also directed the Central Government and the competent authority to frame rules within 6 months from the date of the judgment to make the practice and procedure of the Information Commissions in accordance with rule of law.
(g) Rule of precedence
In its judgment the Supreme Court has also held that the Information Commission must bear in mind the rule of precedence in respect of not only Supreme Court and High Court judgments but judgments of larger Information Commission benches in case of a smaller bench.
Saumya Sharma [firstname.lastname@example.org]