This website is taking up consultancy in some chosen fields, which have been dealt with on another website: www.legalvus.in. Brief mention of the topics, on which a person may need to take advice are given on last link, 'Agenda'  of this website.    

INTENT. Main intent of the website is to take up important issues on which recent rulings are land-mark decisions, likely to change course of things with regard to what has been happening. First issue is on the Right to Information (RTI) Act 2005, a subject on which detailed investigations were conducted by the author in 2009; please click Notes link.  

Right to Information.   [same as FOI, Freedom of Information, elsewhere]

Namit Sharma v. Union of India, Writ petition (Civil) No. 210 of 2012, dated 13-9-2012, is under discussion. 

The land-mark judgment of the Supreme Court of India, on the Right to Information (RTI) Act 2005, dated 13-09-2012,  by the bench of Justices AK Patnaik and Swatanter Kumar,  has not come a day too soon to show what wrong has been happening in Information Commissions and how it should henceforth be remedied.  Primary requirement  has been shown to be of proper judicial personnel manning the Commissions, jointly with experts, different from present incumbents who have only   administrative experience, not only irrelevant for RTI, but anti-RTI. The quasi-judicial Commissions functioned without any element of judiciary, whatsoever. They did not recognise the established norms for quasi-judicial Tribunals, to have two-member benches, each comprised of  a 'Judicial member' and an 'Expert member' under overall charge of a Judge. No wonder most relevant decisions have no legal basis. While the ruling has been sufficiently presented in print-media, the  emphasis of this website is on looking deeper into factors unique to RTI Act, highlighted by the  Court.  It is the 'Reading into' of the the provisions by the  Apex Court which  has led to avoiding declaration of unconstitutionality of the existing system. There is nothing in the ruling which could lead to stop functioning of several Commissions, by the instant incumbents adjourning Complaints and Appeals, without any rhyme or reason. That the ruling 'shall have effect prospectively', has been declared in para 106(13).  The only issue that could be raised for review, before the Apex Court, is the decision with regard to appointment of the Chief Information Commissioners, arising from  'clash of age: 65 years'.  It has been observed by the Apex Court, in para 28 of the order, the reason for failure of the Freedom of Information Act 2002, thus: "The Civil Services (Conduct) Rules and the Manual of the Office Procedure as well as the Official Secrets Act, 1923 and also the mindset of the authorities were implied impediments to the full, complete and purposeful achievement of the object of enacting the Act of 2002". As further added in para 29:"The Act of 2005 was enacted to radically alter the administrative ethos and culture of secrecy and control, the legacy of colonial era and bring in a new era of transparency and accountability in governance".  It was a conspiracy by the powers that be, that the will of the legislature in 2005 was negated by the same coterie, faithful to the Official Secrets Act (OSA) to high-jack the RTI Act 2005 itself. No wonder the cherished transparency and accountability demonstrated through display of section 4 information on websites of public authorities was poor, and in many cases was not revised, as envisaged.      

Para 106 of the order, summarising the decisions, is reproduced below, with emphasis added through underling certain parts.

“ 106. Based upon elaborate discussion and reasons recorded, we pass the following order and directions:

1. The writ petition is partly allowed.

2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with 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, we hold and declare that the expression ‘knowledge and experience’ appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, without any peradventure and veritably, we state 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 Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof.

3. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, we would prefer to read these provisions as having effect ‘post-appointment’. In other words, 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 Centre or State levels.

4. There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act.   We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and 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 at the respective levels shall henceforth work in Benches of two members each.  One of them being a ‘judicial member’, while the other an ‘expert member’.  The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing  judicial functions.  A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the  advertisement.  Such lawyer should also have experience in social work.  We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners.  Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.

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

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

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

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

13. This judgment shall have effect only prospectively. 

14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India.  In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals.  Thus, it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India.  In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedence 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 appeals or references in the hierarchy of the Commission.”

Perusal of the Order, with emphasis added through some underlined parts, would show that in order to hold certain provision constitutionally valid, purposive interpretation has been adopted, to lead to better administration of justice and enhance the public confidence in the working of the Commission.  This would also avoid any ambiguity or impracticality, leading to consonance with the constitutional mandates.  Leaving no doubt about what should be qualifications and experience of Chief Commissioner, the only issue that needs review is the clash of age ‘65’.   

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