2012 (9) TMI 809 - SC - Indian Laws

SC upholds RTI Act Sections 12(5)(6) and 15(5)(6) with modifications requiring judicial-expert benches

Namit Sharma Versus Union of India

The SC upheld the constitutionality of Sections 12(5) and (6) and 15(5) and (6) of the Right to Information Act, 2005, but with significant modifications. ... Constitutionality of Section 12(5) and (6) and Section 15(5) and (6) of the Right to Information Act, 2005 - eligibility criteria for appointment to the posts of Chief Information Commissioners and Information Commissioners, both at the Central and the State levels - requirement of legal acumen and expertise - violation of the fundamental rights guaranteed under Article 14, 16 and 19(1)(g) of the Constitution - Meaning of word ‘Lis’ - Held that:- The Chief Information Commissioner and members of the Commission are required to possess wide knowledge and experience in the respective fields. They are expected to be well versed with the procedure that they are to adopt while performing the adjudicatory and quasi judicial functions in accordance with the statutory provisions and the scheme of the Act of 2005. They are to examine whether the information required by an applicant falls under any of the exemptions stated under Section 8 or the Second Schedule of the Act of 2005 particularly, sub-sections (e), (g) and (j) have been very widely worded by the Legislature keeping in mind the need to afford due protection to privacy, national security and the larger public interest. All these functions may be performed by a legally trained mind more efficaciously. The most significant function which may often be required to be performed by these authorities is to strike a balance between the application of the freedom guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution. In terms of sub-Section (5), besides being a person of eminence in public life, the necessary qualification required for appointment as Chief Information Commissioner or Information Commissioner is that the person should have wide knowledge and experience in law and other specified fields. The term ‘experience in law’ is an expression of wide connotation. It pre-supposes that a person should have the requisite qualification in law as well as experience in the field of law. However, it is worthwhile to note that having a qualification in law is not equivalent to having experience in law and vice-versa. ‘Experience in law’, thus, is an expression of composite content and would take within its ambit both the requisite qualification in law as well as experience in the field of law. Thus 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 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. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional it would be preferred 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. 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.- 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 & 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. 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 - Writ partly allowed. Issues Involved:1. Constitutionality of Sections 12(5) and 12(6) and Sections 15(5) and 15(6) of the Right to Information Act, 2005.2. Eligibility criteria for Chief Information Commissioner and Information Commissioners.3. Requirement of legal acumen for Information Commissioners.4. Procedural guidelines for appointments to Information Commissions.5. Functioning and nature of Information Commissions.Issue-wise Detailed Analysis:1. Constitutionality of Sections 12(5) and 12(6) and Sections 15(5) and 15(6) of the Right to Information Act, 2005:The petitioner challenged the constitutionality of these sections on grounds including vagueness, lack of specific qualifications, and potential arbitrariness, arguing they violated Articles 14, 16, and 19(1)(g) of the Constitution. The court held that while Sections 12(5) and 15(5) are constitutionally valid, they need to be interpreted to include a basic degree in the respective fields and experience gained thereafter. Sections 12(6) and 15(6) were read to apply post-appointment, meaning cessation of any office of profit or business is a condition precedent to the appointment.2. Eligibility Criteria for Chief Information Commissioner and Information Commissioners:The court emphasized that the Chief Information Commissioner and Information Commissioners should be persons of eminence in public life with wide knowledge and experience in specified fields. The terms 'knowledge and experience' were interpreted to include basic qualifications in the respective fields. The court suggested that judicial members should preferably be persons who have been Judges of the High Court or the Supreme Court.3. Requirement of Legal Acumen for Information Commissioners:The court noted that the Information Commission performs quasi-judicial functions and thus requires members with legal expertise. It was emphasized that legally qualified, judicially trained, and experienced persons would enhance the effectiveness of the Commission. The court recommended that the Commission should work in Benches comprising one judicial member and one expert member from specified fields.4. Procedural Guidelines for Appointments to Information Commissions:The court directed that appointments should be made in consultation with the judiciary to ensure independence and public confidence. The DoPT and concerned Ministries should prepare a panel of candidates after due advertisement, and the High-powered Committee should adopt a fair and transparent method for recommending appointments. The selection process should begin at least three months before a vacancy arises.5. Functioning and Nature of Information Commissions:The court declared that the Information Commission is a judicial tribunal with the trappings of a court, performing functions of judicial and quasi-judicial nature. The Commission's orders are subject to judicial review by the High Court and the Supreme Court. The court directed that the Commission should adhere to the doctrine of precedence and maintain judicial discipline.Conclusion:The judgment upheld the constitutionality of the challenged provisions with specific interpretations to ensure they align with constitutional mandates. It emphasized the need for legal expertise in the Information Commissions and provided detailed procedural guidelines for appointments to enhance transparency and effectiveness. The Information Commission was recognized as a judicial tribunal, reinforcing its role in the administration of justice.