Supreme Court reviews Namit Sharma judgment - Information Commission discharges administrative functions, not judicial - only persons of eminence in public life with wide knowledge and experience in the specific fields be considered for appointment
4 Sep, 2013The Supreme Court bench comprising of Justice A K Patnaik and Justice Swatanter Kumar reserved its judgment in December 2012 but the matter had to be reheard following the retirement of Justice Swatanter Kumar and the reconstitution of the bench thereafter. SC bench of Justices AK Patnaik and AK Sikri withdrew its order of 13 September 2012 in which it was held that like other quasi-judicial bodies, the Information Commissions should function as a two member bodies one of which should be from a judicial background. Further, only sitting or retired High Court Chief Justices or an apex court Judge could head the Central and State Information Commissions. This judgment clears ambiguity and paves the way for the appointment of the Information Commissioners and Chief Information Commissioners. The SC has held that the Information Commissions are administrative bodies and not judicial tribunals. Further, it also creates the passage for the appointment of politicians into the information commissions.
This site was amongst the first to put up a critique of the SC judgment in Namit Sharma case. Readers may refer to "A critique of the Supreme Court judgment regarding appointment at Information Commission" at - http://www.rtifoundationofindia.com/critique-supreme-court-judgment-rega.... Other links on the issue are "Government moves the Supreme Court for review of verdict on RTI panels" at - http://www.rtifoundationofindia.com/government-moves-supreme-court-revie... "Centre likely to contest the SC judgment regarding appointment of information commissioners" at - http://www.rtifoundationofindia.com/centre-likely-contest-sc-judgment-re...
The main issues discussed by the SC during review are as under:
DISCUSSION
- 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 Act.
- While deciding whether a citizen should or should not get a particular information “which is held 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 function, but an administrative function conferred by the Act on the Information Commissions.
- The Information Commission decides matters which may affect the rights of third parties and hence there is requirement of judicial mind….. The decision taken by the Central Public Information Officer or the State Public Information Officer, as the case may 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 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 provisions of the Act. Hence, the Information Commission discharges administrative functions, not judicial functions.
- 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. 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.
- 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, mass media or administration and governance and not just from one field.
- 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.
- 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 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.
- 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 of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance.
- Experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act.
- 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. 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 in law.
ORDER
We allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012 with the following declarations and directions:
- We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution.
- We declare that 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.
- 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.
- We further direct that 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 considered by the Committees under Sections 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.
- We further direct that 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 Commissioners 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 accessible to the citizens as part of their right to information under the Act after the appointment is made.
- We also direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law 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 knowledge and experience in the field of law.
RTI Citation : RTIFI/2013/CIC/1462
Click here to view original RTI order of Court / Information Commission