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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (CIVIL)     NO.     210     of     2012   

Namit Sharma    … Petitioner  

Versus

Union of India    … Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J.   

1. The value of any freedom is determined by the extent to  

which the citizens are able to enjoy such freedom.  Ours is a  

constitutional democracy and it is axiomatic that citizens have  

the right to know about the affairs of the Government which,  

having been elected by them, seeks to formulate some policies of  

governance aimed at their welfare.  However, like any other  

freedom, this freedom also has limitations.  It is a settled  

proposition that the Right to Freedom of Speech and Expression  

enshrined under Article 19(1)(a) of the Constitution of India (for  

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short ‘the Constitution’) encompasses the right to impart and  

receive information.  The Right to Information has been stated to  

be one of the important facets of proper governance.  With the  

passage of time, this concept has not only developed in the field of  

law, but also has attained new dimensions in its application.  

This court while highlighting the need for the society and its  

entitlement to know has observed that public interest is better  

served by effective application of the right to information.  This  

freedom has been accepted in one form or the other in various  

parts of the world.  This Court, in absence of any statutory law, in  

the case of Secretary, Ministry of Information and Broadcasting,  

Government of India & Ors. v. Cricket Association of Bengal & Anr.  

[(1995) 2 SCC 161] held as under :

“The democracy cannot exist unless all  citizens have a right to participate in the  affairs of the polity of the country.  The right  to participate in the affairs of the country is  meaningless unless the citizens are well  informed on all sides of the issues, in respect  of which they are called upon to express their  views.  One-sided information,  disinformation, misinformation and non- information, all equally create an uninformed  citizenry which makes democracy a farce  when medium of information is monopolized  either by a partisan central authority or by  private individuals or oligarchy  organizations.  This is particularly so in a  country like ours where about 65 per cent of  the population is illiterate and hardly 1 ½  

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per cent of the population has an access to  the print media which is not subject to pre- censorship.”  

2. The legal principle of ‘A man’s house is his castle.  The  

midnight knock by the police bully breaking into the peace of the  

citizen’s home is outrageous in law’, stated by Edward Coke has  

been explained by Justice Douglas as follows:

“The free State offers what a police state  denies – the privacy of the home, the dignity  and peace of mind of the individual.  That  precious right to be left alone is violated once  the police enter our conversations.”   

3. The States which are governed by Policing and have a policy  

of greater restriction and control obviously restrict the enjoyment  

of such freedoms.  That, however, does not necessarily imply that  

this freedom is restriction-free in the States where democratic  

governance prevails.  Article 19(1)(a) of the Constitution itself is  

controlled by the reasonable restrictions imposed by the State by  

enacting various laws from time to time.   

4. The petitioner, a public spirited citizen, has approached this  

Court under Article 32 of the Constitution stating that though the  

Right to Information Act, 2005 (for short ‘Act of 2005’) is an  

important tool in the hands of any citizen to keep checks and  

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balances on the working of the public servants, yet the criterion  

for appointment of the persons who are to adjudicate the disputes  

under this Act are too vague, general, ultra vires the Constitution  

and contrary to the established principles of law laid down by a  

plethora of judgments of this Court.  It is the stand of the  

petitioner that the persons who are appointed to discharge  

judicial or quasi-judicial functions or powers under the Act of  

2005 ought to have a judicial approach, experience, knowledge  

and expertise.  Limitation has to be read into the competence of  

the legislature to prescribe the eligibility for appointment of  

judicial or quasi-judicial bodies like the Chief Information  

Commissioner, Information Commissioners and the  

corresponding posts in the States, respectively.  The legislative  

power should be exercised in a manner which is in consonance  

with the constitutional principles and guarantees.  Complete lack  

of judicial expertise in the Commission may render the decision  

making process impracticable, inflexible and in given cases,  

contrary to law.  The availability of expertise of judicial members  

in the Commission would facilitate the decision-making to be  

more practical, effective and meaningful, besides giving  

semblance of justice being done.   The provision of eligibility  

criteria which does not even lay down any qualifications for  

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appointment to the respective posts under the Act of 2005 would  

be unconstitutional, in terms of the judgments of this Court in  

the cases of Union of India  v.  Madras Bar Association, [(2010) 11  

SCC 1]; Pareena Swarup v.  Union of India [(2008) 14 SCC 107]; L.  

Chandra Kumar  v.  Union of India [(1997) 3 SCC 261]; R.K. Jain  

v.  Union of India [(1993) 4 SCC 119]; S.P. Sampath Kumar  v.  

Union of India [(1987) 1 SCC 124].

5. It is contended that keeping in view the powers, functions  

and jurisdiction that the Chief/State Information Commissioner  

and/or the Information Commissioners exercise undisputedly,  

including the penal jurisdiction, there is a certain requirement of  

legal acumen and expertise for attaining the ends of justice,  

particularly, under the provisions of the Act of 2005.  On this  

premise, the petitioner has questioned the constitutional validity  

of sub-Sections (5) and (6) of Section 12 and sub-Sections (5) and  

(6) of Section 15 of the Act of 2005.  These provisions primarily  

deal with the eligibility criteria for appointment to the posts of  

Chief Information Commissioners and Information  

Commissioners, both at the Central and the State levels.  It will  

be useful to refer to these provisions at this very stage.

“Section 12 —  (5) The Chief Information  Commissioner and Information Commissioners  

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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.  

(6) 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 carrying on any business or  pursuing any profession.  

XXX XXX XXX

Section 15 (5) The State Chief Information  Commissioner and the 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.  

(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.  

6. The challenge to the constitutionality of the above provisions  

inter alia is on the following grounds :

(i) Enactment of the provisions of eligibility criteria for  

appointment to such high offices, without providing  

qualifications, definite criterion or even consultation with  

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judiciary, are in complete violation of the fundamental  

rights guaranteed under Article 14, 16 and 19(1)(g) of the  

Constitution.

(ii) Absence of any specific qualification and merely providing  

for experience in the various specified fields, without there  

being any nexus of either of these fields to the object of the  

Act of 2005, is violative of the fundamental constitutional  

values.  

(iii) Usage of extremely vague and general terminology like  

social service, mass media and alike terms, being indefinite  

and undefined, would lead to arbitrariness and are open to  

abuse.   

(iv) This vagueness and uncertainty is bound to prejudicially  

affect the administration of justice by such Commissions or  

Tribunals which are vested with wide adjudicatory and  

penal powers.  It may not be feasible for a person of  

ordinary experience to deal with such subjects with legal  

accuracy.  

(v) The Chief Information Commissioner and Information  

Commissioners at the State and Centre level perform  

judicial and/or quasi-judicial functions under the Act of  

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2005 and therefore, it is mandatory that persons with  

judicial experience or majority of them should hold these  

posts.   

(vi)  The fundamental right to equality before law and equal  

protection of law guaranteed by Article 14 of the  

Constitution enshrines in itself the person’s right to be  

adjudged by a forum which exercises judicial power in an  

impartial and independent manner consistent with the  

recognised principles of adjudication.

(vii) Apart from specifying a high powered committee for  

appointment to these posts, the Act of 2005 does not  

prescribe any mechanism for proper scrutiny and  

consultation with the judiciary in order to render effective  

performance of functions by the office holders, which is  

against the basic scheme of our Constitution.   

(viii)  Even if the Court repels the attack to the constitutionality  

of the provisions, still, keeping in view the basic structure  

of the Constitution and the independence of judiciary, it is  

a mandatory requirement that judicial or quasi-judicial  

powers ought to be exercised by persons having judicial  

knowledge and expertise.  To that extent, in any case, these  

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provisions would have to be read down.   Resultantly,  

limitation has to be read into the competence of the  

legislature to prescribe requisite qualifications for  

appointment of judicial or quasi-judicial bodies or  

tribunals.   

Discussion

7. The Constitution of India expressly confers upon the courts  

the power of judicial review.  The courts, as regards the  

fundamental rights, have been assigned the role of sentinel on the  

qui vive under Article 13 of the Constitution.   Our courts have  

exercised the power of judicial review, beyond legislative  

competence, but within the specified limitations.  While the court  

gives immense weightage to the legislative judgment, still it  

cannot deviate from its own duties to determine the  

constitutionality of an impugned statute.   Every law has to pass  

through the test of constitutionality which is stated to be nothing  

but a formal test of rationality.

8. The foundation of this power of judicial review, as explained  

by a nine-Judge’s Bench in the case of Supreme Court Advocates  

on Record Association & Ors. v. Union of India [(1993) 4 SCC 441],  

is the theory that the Constitution which is the fundamental law  

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of the land, is the ‘will’ of the ‘people’, while a statute is only the  

creation of the elected representatives of the people; when,  

therefore, the ‘will’  of the legislature as declared in the statute,  

stands in opposition to that of the people as declared in the  

Constitution - the ‘will’ of the people must prevail.

9. In determining the constitutionality or validity of a  

constitutional provision, the court must weigh the real impact  

and effect thereof, on the fundamental rights.   The Court would  

not allow the legislature to overlook a constitutional provision by  

employing indirect methods.  In Minerva Mills Ltd. & Ors. v. Union  

of India & Ors. [(1980) 3 SCC 625], this Court mandated without  

ambiguity, that it is the Constitution which is supreme in India  

and not the Parliament. The Parliament cannot damage the  

Constitution, to which it owes its existence, with unlimited  

amending power.

10. An enacted law may be constitutional or unconstitutional.  

Traditionally, this Court had provided very limited grounds on  

which an enacted law could be declared unconstitutional.   They  

were legislative competence, violation of Part III of the  

Constitution and reasonableness of the law.   The first two were  

definite in their scope and application while the cases falling in  

the third category remained in a state of uncertainty.    With the  

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passage of time, the law developed and the grounds for  

unconstitutionality also widened.  D.D. Basu in the ‘Shorter  

Constitution of India’ (Fourteenth Edition, 2009) has detailed, with  

reference to various judgments of this Court, the grounds on  

which the law could be invalidated or could not be invalidated.  

Reference to them can be made as follows:-

“Grounds of unconstitutionality . –  A law may be  unconstitutional on a number of grounds:

i.   Contravention of any fundamental right,  specified in Part III of the Constitution.  (Ref. Under Art. 143, (Ref. AIR 1965 SC  745 (145): 1965 (1) SCR 413)  

ii. Legislating on a subject which is not  assigned to the relevant legislature by the  distribution of powers made by the 7th  Sch., read with the connected Articles.  (Ref. Under Art. 143, AIR 1965 SC 745)

iii. Contravention of any of the mandatory  provisions of the Constitution which  impose limitations upon the powers of a  Legislature, e.g., Art. 301. (Ref. Atiabari  Tea Co. v. State of Assam, AIR 1961 SC  232)

iv. In the case of a State law, it will be invalid  in so far as it seeks to operate beyond the  boundaries of the State. (State of Bombay  v. Chamarbaughwala R.M.D., AIR 1957 SC  699)

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v. That the Legislature concerned has  abdicated its essential legislative function  as assigned to it by the Constitution or has  made an excessive delegation of that power  to some other body. Hamdard Dawakhana  Wakf v. Union of India, AIR 1960 SC 554  (568)

11. On the other hand, a law cannot be invalidated on the  

following grounds:

(a)  That in making the law (including an  Ordinance), the law-making body did not apply  its mind (even though it may be a valid ground  for challenging an executive act), (Ref. Nagaraj  K. V. State of A.P., AIR 1985 SC 551 (paras 31,  36), or was prompted by some improper  motive.   (Ref. Rehman Shagoo v. State of J &  K, AIR 1960 SC 1(6); 1960 (1) SCR 681)

(b)That the law contravenes some constitutional  limitation which did not exist at the time of  enactment of the law in question. (Ref. Joshi  R.S. v. Ajit Mills Ltd., AIR 1977 SC 2279  (para 16)

(c) That the law contravened any of the Directive  contained in Part IV of the Constitution. (Ref.  Deep Chand v. State of U.P., AIR 1959 SC  648 (664)”

12. Since great emphasis has been placed on the violation of  

fundamental rights, we may notice that no prejudice needs to be  

proved in cases where breach of fundamental rights is claimed.  

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Violation of a fundamental right itself renders the impugned  

action void {Ref. A.R. Antulay v. R.S. Nayak & Anr. [(1988) 2 SCC  

602]}.

13. A law which violates the fundamental right of a person is  

void.  In such cases of violation, the Court has to examine as to  

what factors the Court should weigh while determining the  

constitutionality of a statute. First and the foremost, as already  

noticed, is the competence of the legislature to make the law.  The  

wisdom or motive of the legislature in making it is not a relative  

consideration.   The Court should examine the provisions of the  

statute in light of the provisions of the Constitution (e.g. Part III),  

regardless of how it is actually administered or is capable of being  

administered.   In this regard, the Court may consider the  

following factors as noticed in D.D. Basu (supra).

“(a) The possibility of abuse of a statute does not  impart to it any element of invalidity.

(b) Conversely, a statute which violates the  Constitution cannot be pronounced valid merely  because it is being administered in a manner  which might not conflict with the constitutional  requirements.  

In the case of Charan Lal Sahu v. UOI [(1990) 1  SCC 614 (667) (para 13), MUKHERJEE, C.J.  made an unguarded statement, viz., that  

“In judging the Constitutional validity of the  Act, the subsequent events, namely, how the  Act has worked out, have to be looked into.”

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It can be supported only on the test of ‘direct  and inevitable effect’ and, therefore, needs to be  explained in some subsequent decision.

(c) When the constitutionality of a law is  challenged on the ground that it infringes a  fundamental right, what the Court has to  consider is the ‘direct and inevitable effect’  of  such law.

(d) There is presumption in favour of  constitutionality of statutes.   The law courts  can declare the legislative enactment to be an  invalid piece of legislation only in the even of  gross violation of constitutional sanctions.”

14. It is a settled canon of constitutional jurisprudence that the  

doctrine of classification is a subsidiary rule evolved by courts to  

give practical content to the doctrine of equality. Over-emphasis  

of the doctrine of classification or anxious or sustained attempt to  

discover some basis for classification may gradually and  

imperceptly erode the profound potency of the glorious content of  

equality enshrined in Article 14 of the Constitution. (Ref. LIC of  

India v. Consumer Education & Research Centre [(1995) 5 SCC  

482].  It is not necessary that classification in order to be valid,  

must be fully carried out by the statute itself.    The statute itself  

may indicate the persons or things to whom its provisions are  

intended to apply.  Instead of making the classification itself, the  

State may lay down the principle or policy for selecting or  

classifying the persons or objects to whom its provisions are to  

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apply and leave it to the discretion of the Government or  

administrative authority to select such persons or things, having  

regard to the principle or policy laid down by the Legislature.

15. Article 14 forbids class legislation but does not forbid  

reasonable classification which means :

(i)  It must be based on reasonable and intelligible  

differentia; and  

(ii) Such differentia must be on a rational basis.

(iii) It must have nexus to the object of the Act.

16. The basis of judging whether the institutional reservation,  

fulfils the above-mentioned criteria, should be a) there is a  

presumption of constitutionality; b) the burden of proof is upon  

the writ petitioners, the person questioning the constitutionality  

of the provisions; c) there is a presumption as regard the States’  

power on the extent of its legislative competence; d) hardship of  

few cannot be the basis of determining the validity of any statute.  

17. The principles for adjudicating the constitutionality of a  

provision have been stated by this Court in its various judgments.  

Referring to these judgments and more particularly to the cases of  

Ram Krishna Dalmia v.  Justice S.R. Tendolkar AIR 1958 SC 538  

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and Budhan Chodhry  v.  State of Bihar  AIR 1955 SC 191, the  

author Jagdish Swarup in his book ‘Constitution of India (2nd  

Edition, 2006) stated the principles to be borne in mind by the  

Courts and detailed them as follows:

“(a)  that a law may be constitutional even  though it relates to a single individual if on  account of some special circumstances or  reasons applicable to him and not applicable to  others, that single individual may be treated as  a class by himself;

(b) that there is always a presumption in favour  of the constitutionality of an enactment and the  burden is upon him who attacks it to show that  there has been a clear transgression of the  constitutional principles;

(c) that it must be presumed that the  Legislature understands and correctly  appreciates the need of its own people, that its  laws are directed to problems made manifest  by experience and that its discriminations are  based on adequate grounds;

(d) that the legislature is free to recognize  decrees of harm and may confine its  restrictions to those cases where the need is  deemed to be the clearest;

(e) that in order to sustain the presumption of  constitutionality the Court may take into  consideration matters of common knowledge,  matters of common report, the history of the  times and may assume every state of facts  which can be conceived existing at the time of  legislation; and

(f) that while good faith and knowledge of the  existing conditions on the part of a Legislature  are to be presumed, if there is nothing on the  face of the law or the surrounding  

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circumstances brought to the notice of the  Court on which the classification may  reasonably be regarded as based, the  presumption of  constitutionality cannot be  carried to the extent of always holding that  there must be some undisclosed and unknown  reasons for subjecting certain individuals or  corporations to hostile or discriminating  legislation.”

18. These principles have, often been reiterated by this Court  

while dealing with the constitutionality of a provision or a statute.  

Even in the case of Atam Prakash v. State of Haryana & Ors.  

[(1986) 2 SCC 249], the Court stated that whether it is the  

Constitution that is expounded or the constitutional validity of a  

statute that is considered, a cardinal rule is to look to the  

Preamble of the Constitution as the guiding light and to the  

Directive Principles of State Policy as the Book of Interpretation.  

The Constitution being sui generis, these are the factors of distant  

vision that help in the determination of the constitutional issues.  

Referring to the object of such adjudicatory process, the Court  

said :

“....we must strive to give such an  interpretation as will promote the march and  progress towards a Socialistic Democratic  State. For example, when we consider the  question whether a statute offends Article 14  of the Constitution we must also consider  

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whether a classification that the legislature  may have made is consistent with the  socialist goals set out in the Preamble and  the Directive Principles enumerated in Part  IV of the Constitution.”

19. Dealing with the matter of closure of slaughter houses in the  

case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat &  

Ors. [(2008) 5 SCC 33], the Court while noticing its earlier  

judgment  in the case of Government of Andhra Pradesh & Ors. v.  

Smt. P. Laxmi Devi [(2008) 4 SCC 720], introduced a rule for  

exercise of such jurisdiction by the courts stating that the Court  

should exercise judicial restraint while judging the constitutional  

validity of the statute or even that of a delegated legislation and it  

is only when there is clear violation of a constitutional provision  

beyond reasonable doubt that the Court should declare a  

provision to be unconstitutional. Further, in the case of P.  

Lakshmi Devi (supra), the Court has observed that even if two  

views are possible, one making the statute constitutional and the  

other making it unconstitutional, the former view must prevail  

and the Court must make efforts to uphold the constitutional  

validity of a statute, unlike a policy decision, where the executive  

decision could be rendered invalid on the ground of malafide,  

unreasonableness and arbitrariness alone.

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20. In order to examine the constitutionality or otherwise of a  

statute or any of its provisions, one of the most relevant  

considerations is the object and reasons as well as the legislative  

history of the statute.   It would help the court in arriving at a  

more objective and justful approach.  It would be necessary for  

the Court to examine the reasons of enactment of a particular  

provision so as to find out its ultimate impact vis-a-vis the  

constitutional provisions. Therefore, we must examine the  

contemplations leading to the enactment of the Act of 2005.

A)SCHEME, OBJECTS AND REASONS   

21. In light of the law guaranteeing the right to information, the  

citizens have the fundamental right to know what the  

Government is doing in its name.  The freedom of speech is the  

lifeblood of democracy.  The free flow of information and ideas  

informs political growth.  It is a safety valve.  People are more  

ready to accept the decisions that go against them if they can in  

principle seem to influence them.  In a way, it checks abuse of  

power by the public officials.  In the modern times, where there  

has been globalization of trade and industry, the scientific growth  

in the communication system and faster commuting has turned  

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the world into a very well-knit community.  The view projected,  

with some emphasis, is that the imparting of information qua the  

working of the government on the one hand and its decision  

affecting the domestic and international trade and other activities  

on the other, impose an obligation upon the authorities to  

disclose information.   

OBJECTS     AND     REASONS   

22. The Right to Information was harnessed as a tool for  

promoting development; strengthening the democratic governance  

and effective delivery of socio-economic services.  Acquisition of  

information and knowledge and its application have intense and  

pervasive impact on the process of taking informed decision,  

resulting in overall productivity gains.  It is also said that  

information and knowledge are critical for realising all human  

aspirations such as improvement in the quality of life.  Sharing of  

information, for instance, about the new techniques of farming,  

health care facilities, hazards of environmental degradation,  

opportunities for learning and earning, legal remedies for  

combating gender bias etc., have overtime, made significant  

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contributions to the well being of poor people.  It is also felt that  

this right and the laws relating thereto empower every citizen to  

take charge of his life and make proper choices on the basis of  

freely available information for effective participation in economic  

and political activities.   

23. Justice V.R. Krishna Iyer in his book “Freedom of  

Information” expressed the view:

“The right to information is a right incidental to the  constitutionally guaranteed right to freedom of  speech and expression.  The international  movement to include it in the legal system gained  prominence in 1946 with the General Assembly of  the United Nations declaring freedom of  information to be a fundamental human right and  a touchstone for all other liberties. It culminated in  the United Nations Conference on Freedom of  Information held in Geneva in 1948.  

Article 19 of the Universal Declaration of  Human Rights says:

“Everyone has the right to freedom of  information and expression; this right  includes freedom to hold opinions  without interference and to seek, receive  and impart information and ideas  through any media and regardless of  frontiers.”

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It may be a coincidence that Article 19 of the  Indian Constitution also provides every citizen the  right to freedom of speech and expression.  However, the word ‘information’  is conspicuously  absent.  But, as the highest Court has explicated,  the right of information is integral to freedom of  expression.

“India was a member of the Commission  on Human Rights appointed by the  Economic and Social Council of the  United Nations which drafted the 1948  Declaration.  As such it would have been  eminently fit and proper if the right to  information was included in the rights  enumerated under Article 19 of our  Constitution.  Article 55 of the U.N.  Charter stipulates that the United  Nations ‘shall promote respect for, and  observance of, human rights and  fundamental freedoms’  and according to  Article 56 ‘all members pledge  themselves to take joint and separate  action in co-operation with the  Organisation for the achievement of the  purposes set forth in Article 55’.”

24. Despite the absence of any express mention of the word  

‘information’  in our Constitution under Article 19(1)(a), this right  

has stood incorporated therein by the interpretative process by  

this Court laying the unequivocal statement of law by this Court  

that there was a definite right to information of the citizens of this  

country.  Before the Supreme Court spelt out with clarity the  

right to information as a right inbuilt in the constitutional  

framework, there existed no provision giving this right in absolute  

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terms or otherwise.  Of course, one finds glimpses of the right to  

information of the citizens and obligations of the State to disclose  

such information in various other laws, for example, Sections 74  

to 78 of the Indian Evidence Act, 1872 give right to a person to  

know about the contents of the public documents and the public  

officer is required to provide copies of such public documents to  

any person, who has the right to inspect them.  Under Section  

25(6) of the Water (Prevention and Control of Pollution) Act, 1974,  

every State is required to maintain a register of information on  

water pollution and it is further provided that so much of the  

register as relates to any outlet or effluent from any land or  

premises shall be open to inspection at all reasonable hours by  

any person interested in or affected by such outlet, land or  

premises, as the case may be.  Dr. J.N. Barowalia in ‘Commentary  

on the Right to Information Act’ (2006) has noted that the Report of  

the National Commission for Review of Working of Constitution  

under the Chairmanship of Justice M.N.Venkatachaliah, as he then  

was, recognised the right to information wherein it is provided  

that major assumption behind a new style of governance is the  

citizen’s access to information. Much of the common man’s  

distress and helplessness could be traced to his lack of access to  

information and lack of knowledge of decision-making processes.  

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He remains ignorant and unaware of the process which virtually  

affects his interest.  Government procedures and regulations  

shrouded in the veil of secrecy do not allow the litigants to know  

how their cases are being handled. They shy away from  

questioning the officers handling their cases because of the  

latter’s snobbish attitude.  Right to information should be  

guaranteed and needs to be given real substance. In this regard,  

the Government must assume a major responsibility and mobilize  

skills to ensure flow of information to citizens.  The traditional  

insistence on secrecy should be discarded.  

25. The Government of India had appointed a Working Group on  

Right to Information and Promotion of Open and Transparent  

Government under the Chairmanship of Shri H.D. Shourie which  

was asked to examine the feasibility and need for either full-  

fledged Right to Information Act or its introduction in a phased  

manner to meet the needs of an open and responsive  

Government.  This group was also required to examine the  

framework of rules with reference to the Civil Services (Conduct)  

Rules and Manual of Office Procedure.  This Working Group  

submitted its report in May 1997.   

26. In the Chief Ministers Conference on ‘Effective and  

Responsive Government’  held on 24th May, 1997, the need to  

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enact a law on the Right to Information was recognized  

unanimously.  This conference was primarily to discuss the  

measures to be taken to ensure a more effective and responsive  

government. The recommendations of various Committees  

constituted for this purpose and awareness in the Government  

machinery of the significance and benefits of this freedom  

ultimately led to the enactment of the ‘Freedom of Information  

Act, 2002’ (for short, the ‘Act of 2002’).   The proposed Bill was to  

enable the citizens to have information on a statutory basis.  The  

proposed Bill was stated to be in accord with both Article 19 of  

the Constitution of India as well as Article 19 of the Universal  

Declaration of Human Rights, 1948. This is how the Act of 2002  

was enacted.

27. In terms of the Statement of Objects and Reasons of the Act  

of 2002, it was stated that this law was enacted in order to make  

the government more transparent and accountable to the public.  

It was felt that in the present democratic framework, free flow of  

information for citizens and non-Government institutions suffers  

from several bottlenecks including the existing legal framework,  

lack of infrastructure at the grass root level and an attitude of  

secrecy within the Civil Services as a result of the old framework  

of rules.  The Act was to deal with all such aspects.  The purpose  

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and object was to make the government more transparent and  

accountable to the public and to provide freedom to every citizen  

to secure access to information under the control of public  

authorities, consistent with public interest, in order to promote  

openness, transparency and accountability in administration and  

in relation to matters connected therewith or incidental thereto.   

28. After the Act of 2002 came into force, there was a definite  

attempt to exercise such freedom but it did not operate fully and  

satisfactorily.  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.  Since, with the passage of time, it was  

felt that the Act of 2002 was neither sufficient in fulfilling the  

aspirations of the citizens of India nor in making the right to  

freedom of information more progressive, participatory and  

meaningful, significant changes to the existing law were proposed.  

The National Advisory Council suggested certain important  

changes to be incorporated in the said Act of 2002 to ensure  

smoother and greater access to information.  After examining the  

suggestions of the Council and the public, the Government  

decided that the Act of 2002 should be replaced and, in fact, an  

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attempt was made to enact another law for providing an effective  

framework for effectuating the right to information recognized  

under the Article 19 of the Constitution.  The Right to Information  

Bill was introduced in terms of its statements of objects and  

reasons to ensure greater and more effective access to  

information.  The Act of 2002 needed to be made even more  

progressive, participatory and meaningful.  The important  

changes proposed to be incorporated therein included  

establishment of an appellate machinery with investigative  

powers to review the decision of the Public Information Officer,  

providing penal provisions in the event of failure to provide  

information as per law, etc.  This Bill was passed by both the  

Houses of the Parliament and upon receiving the assent of the  

President on 15th June, 2005, it came on the statute book as the  

Right to Information Act, 2005.

SCHEME     OF     ACT     of     2005     (COMPARATIVE     ANALYSIS     OF     ACT    OF     2002     AND     ACT     OF     2005)    

29. Now, we may deal with the comparative analysis of these  

two Acts.  The first and the foremost significant change was the  

change in the very nomenclature of the Act of 2005 by replacing  

the word ‘freedom’ with the word ‘right’ in the title of the statute.  

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The obvious legislative intent was to make seeking of prescribed  

information by the citizens, a right, rather than a mere freedom.  

There exists a subtle difference when people perceive it as a right  

to get information in contra-distinction to it being a freedom.  

Upon such comparison, the connotations of the two have distinct  

and different application.  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.  In substance,  

the Act of 2005 does not alter the spirit of the Act of 2002 and on  

the contrary, the substantive provisions like Sections 3 to 11 of  

both the Acts are similar except with some variations in some of  

the provisions.  The Act of 2005 makes the definition clause more  

elaborate and comprehensive.  It broadens the definition of public  

authority under Section 2(h) by including therein even an  

authority or body or institution of self-government established or  

constituted by a notification issued or order made by the  

appropriate Government and includes any body owned, controlled  

or substantially financed by the Government and also non-

governmental organization substantially financed by the  

appropriate Government, directly or indirectly.  Similarly, the  

expression ‘Right to Information’ has been defined in Section 2(j)  

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to include the right to inspection of work, documents, records,  

taking certified samples of material, taking notes and extracts  

and even obtaining information in the form of floppies, tapes,  

video cassettes, etc.  This is an addition to the important step of  

introduction of the Central and State Information Commissions  

and the respective Public Information Officers.  Further, Section  

4(2) is a new provision which places a mandatory obligation upon  

every public authority to take steps in accordance with the  

requirements of clause (b) of sub-Section (1) of that Section to  

provide as much information suo moto to the public at regular  

intervals through various means of communication including  

internet so that the public have minimum resort to use of this Act  

to obtain information.  In other words, the aim and object as  

highlighted in specific language of the statute is that besides it  

being a right of the citizenry to seek information, it was obligatory  

upon the State to provide information relatable to its functions for  

the information of the public at large and this would avoid  

unnecessary invocation of such right by the citizenry under the  

provisions of the Act of 2005.  Every authority/department is  

required to designate the Public Information Officers and to  

appoint the Central Information Commission and State  

Information Commissions in accordance with the provisions of  

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Sections 12 and 15 of the Act of 2005.  It may be noticed that  

under the scheme of this Act, the Public Information Officer at the  

Centre and the State Levels are expected to receive the  

requests/applications for providing the information.  Appeal  

against decision of such Public Information Officer would lie to  

his senior in rank in terms of Section 19(1) within a period of 30  

days.  Such First Appellate Authority may admit the appeal after  

the expiry of this statutory period subject to satisfactory reasons  

for the delay being established.  A second appeal lies to the  

Central or the State Information Commission, as the case may be,  

in terms of Section 19(3) within a period of 90 days The decision  

of the Commission shall be final and binding as per Section 19(7).  

Section 19 is an exhaustive provision and the Act of 2005 on its  

cumulative reading is a complete code in itself.  However, nothing  

in the Act of 2005 can take away the powers vested in the High  

Court under Article 226 of the Constitution and of this Court  

under Article 32.  The finality indicated in Sections 19(6) and  

19(7) cannot be construed to oust the jurisdiction of higher  

courts, despite the bar created under Section 23 of the Act.  It  

always has to be read and construed subject to the powers of the  

High Court under Article 226 of the Constitution. Reference in  

this regard can be made to the decision of a Constitution Bench  

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of this Court in the case of L. Chandra Kumar vs. Union of India  

and Ors. [(1997) 3 SCC 261].

30. Exemption from disclosure of information is a common  

provision that appears in both the Acts.  Section 8 of both the  

Acts open with a non-obstante language.  It states that  

notwithstanding anything contained in the respective Act, there  

shall be no obligation to give any citizen the information specified  

in the exempted clauses.  It may, however, be noted that Section  

8 of the Act of 2005 has a more elaborate exemption clause than  

that of the Act of 2002. In addition, the Act of 2005 also provides  

the Second Schedule which enumerates the intelligence and  

security organizations established by the Central Government to  

which the Act of 2005 shall not apply in terms of Section 24.   

31. Further, under the Act of 2002, the appointment of the  

Public Information Officers is provided in terms of Section 5 and  

there exists no provision for constituting the Central and the  

State Information Commission.  Also, the Act does not provide  

any qualifications or requirements to be satisfied before a person  

can be so appointed.  On the other hand, in terms of Section 12  

and Section 15 of the Act of 2005, specific provisions have been  

made to provide for the constitution of and eligibility for  

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appointment to the Central Information Commission or the State  

Information Commission, as the case may be.   

32. Section 12(5) is a very significant provision under the  

scheme of the Act of 2005 and we shall deal with it in some  

elaboration at a subsequent stage.  Similarly, the powers and  

functions of the Authorities constituted under the Act of 2005 are  

conspicuous by their absence under the Act of 2002, which under  

the Act of 2005 are contemplated under Section 18.  This section  

deals in great detail with the powers and functions of the  

Information Commissions.  An elaborate mechanism has been  

provided and definite powers have been conferred upon the  

authorities to ensure that the authorities are able to implement  

and enforce the provisions of the Act of 2005 adequately.  Another  

very significant provision which was non-existent in the Act of  

2002, is in relation to penalties.  No provision was made for  

imposition of any penalty in the earlier Act, while in the Act of  

2005 severe punishment like imposition of fine upto Rs.250/- per  

day during which the provisions of the Act are violated, has been  

provided in terms of Section 20(1).  The Central/State Information  

Commission can, under Section 20(2), even direct disciplinary  

action against the erring Public Information Officers.  Further, the  

appropriate Government and the competent authority have been  

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empowered to frame rules under Sections 27 and 28 of the Act of  

2005, respectively, for carrying out the provisions of the Act.  

Every rule made by the Central Government under the Act has to  

be laid before each House of the Parliament while it is in session  

for a total period of 30 days, if no specific modifications are made,  

the rules shall thereafter have effect either in the modified form or  

if not annulled, it shall come into force as laid.   

33. Greater transparency, promotion of citizen-government  

partnership, greater accountability and reduction in corruption  

are stated to be the salient features of the Act of 2005.  

Development and proper implementation of essential and  

constitutionally protected laws such as Mahatma Gandhi Rural  

Guarantee Act, 2005, Right to Education Act, 2009, etc. are some  

of the basic objectives of this Act.   Revelation in actual practice is  

likely to conflict with other public interests, including efficiency,  

operation of the government, optimum use of limited fiscal  

resources and the preservation of confidentiality of sensitive  

information.  It is necessary to harness these conflicting interests  

while preserving the parameters of the democratic ideal or the  

aim with which this law was enacted.  It is certainly expedient to  

provide for furnishing certain information to the citizens who  

desire to have it and there may even be an obligation of the state  

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authorities to declare such information suo moto.  However,  

balancing of interests still remains the most fundamental  

requirement of the objective enforcement of the provisions of the  

Act of 2005 and for attainment of the real purpose of the Act.   

34. The Right to Information, like any other right, is not an  

unlimited or unrestricted right.  It is subject to statutory and  

constitutional limitations.  Section 3 of the Act of 2005 clearly  

spells out that the right to information is subject to the provisions  

of the Act.  Other provisions require that information must be  

held by or under the control of public authority besides providing  

for specific exemptions and the fields to which the provisions of  

the Act do not apply.  The doctrine of severability finds place in  

the statute in the shape of Section 10 of the Act of 2005.   

35. Neither the Act of 2002 nor the Act of 2005, under its repeal  

provision, repeals the Official Secrets Act, 1923.   The Act of 2005  

only repeals the Freedom of Information Act, 2002 in terms of  

Section 31.   It was felt that under the Official Secrets Act, 1923,  

the entire development process had been shrouded in secrecy and  

practically the public had no legal right to know as to what  

process had been followed in designing the policies affecting them  

and how the programmes and schemes were being implemented.  

Lack of openness in the functioning of the Government provided a  

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fertile ground for growth of inefficiency and corruption in the  

working of the public authorities.   The Act of 2005 was intended  

to remedy this widespread evil and provide appropriate links to  

the government.     It was also expected to bring reforms in the  

environmental, economic and health sectors, which were  

primarily being controlled by the Government.   

36. The Central and State Information Commissions have played  

a critical role in enforcing the provisions of the Act of 2005, as  

well as in educating the information seekers and providers about  

their statutory rights and obligations.   Some section of experts  

opined that the Act of 2005 has been a useful statutory  

instrument in achieving the goal of providing free and effective  

information to the citizens as enshrined under Article 19(1)(a) of  

the Constitution.  It is true that democratisation of information  

and knowledge resources is critical for people’s empowerment  

especially to realise the entitlements as well as to augment  

opportunities for enhancing the options for improving the quality  

of life.   Still of greater significance is the inclusion of privacy or  

certain protection in the process of disclosure, under the right to  

information under the Act. Sometimes, information ought not to  

be disclosed in the larger public interest.  

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37. The courts have observed that when the law making power  

of a State is restricted by a written fundamental law, then any law  

enacted, which is opposed to such fundamental law, being in  

excess of fundamental authority, is a nullity.  Inequality is one  

such example.   Still, reasonable classification is permissible  

under the Indian Constitution.  Surrounding circumstances can  

be taken into consideration in support of the constitutionality of  

the law which is otherwise hostile or discriminatory in nature, but  

the circumstances must be such as to justify the discriminatory  

treatment or the classification, subserving the object sought to be  

achieved.  Mere apprehension of the order being used against  

some persons is no ground to hold it illegal or unconstitutional  

particularly when its legality or constitutionality has not been  

challenged.  {Ref. K. Karunakaran v. State of Kerala & Anr. [(2000)  

3 SCC 761]}.  To raise the plea of Article 14 of the Constitution,  

the element of discrimination and arbitrariness has to be brought  

out in clear terms.  The Courts have to keep in mind that by the  

process of classification, the State has the power of determining  

who should be regarded as a class for the purposes of legislation  

and in relation to law enacted on a particular subject.  The power,  

no doubt, to some degree is likely to produce some inequality but  

if a law deals with liberties of a number of individuals or well  

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defined classes, it is not open of the charge of denial of equal  

protection on the ground that has no application to other  

persons. Classification, thus, means segregation in classes which  

have a systematic relation usually found in common properties  

and characteristics.  It postulates a rational basis and does not  

mean herding together of certain persons and classes arbitrarily,  

as already noticed.  The differentia which is the basis of the  

classification and the object of the Act are distinct things and  

what is necessary is that there must be a nexus between them.  

The basis of testing constitutionality, particularly on the ground  

of discrimination, should not be made by raising a presumption  

that the authorities are acting in an arbitrary manner.  No  

classification can be arbitrary.  One of the known concepts of  

constitutional interpretation is that the legislature cannot be  

expected to carve out classification which may be scientifically  

perfect or logically complete or which may satisfy the expectations  

of all concerned.  The Courts would respect the classification  

dictated by the wisdom of the Legislature and shall interfere only  

on being convinced that the classification would result in  

pronounced inequality or palpable arbitrariness tested on the  

touchstone of Article 14 of the Constitution.  {Ref. Welfare  

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Association of Allottees of Residential Premises, Maharashtra v.  

Ranjit P. Gohil [(2003) 9 SCC 358]}.

38. The rule of equality or equal protection does not require that  

a State must choose between attacking every aspect of a problem  

or not attacking the problem at all, and particularly with respect  

to social welfare programme. So long as the line drawn, by the  

State is rationally supportable, the Courts will not interpose their  

judgment as to the appropriate stopping point.  A statute is not  

invalid because it might have gone further than it did, since the  

legislature need not strike at all evils at the same time and may  

address itself to the phase of the problem which seemed most  

acute to the legislative mind.  A classification based on experience  

was a reasonable classification, and that it had a rational nexus  

to the object thereof and to hold otherwise would be detrimental  

to the interest of the service itself.  This opinion was taken by this  

Court in the case of State of UP & Ors. v. J.P. Chaurasia & Ors.  

[(1989) 1 SCC 121].  Classification on the basis of educational  

qualifications made with a view to achieve administrative  

efficiency cannot be said to rest on any fortuitous circumstances  

and one has always to bear in mind the facts and circumstances  

of the case in order to judge the validity of a classification.  In the  

case of State of Jammu & Kashmir v. Sh. Triloki Nath Khosa & Ors.  

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[(1974) 1 SCC 19], it was noted that intelligible differentia and  

rational nexus are the twin tests of reasonable classification.

39. If the law deals equally with members of a well defined class,  

it is not open to the charge of denial of equal protection.  There  

may be cases where even a single individual may be in a class by  

himself on account of some special circumstances or reasons  

applicable to him and not applicable to others.  Still such law can  

be constitutional.  [Ref. Constutional Law of India by H.M. Seervai  

(Fourth Edition) Vol.1]

40. In Maneka Gandhi v. Union of India & Anr. [(1978) 1 SCC  

248] and Charanlal Sahu v. Union of India (supra), the Court has  

taken the view that when the constitutionality of a law is  

challenged on the ground that it infringes a fundamental right,  

what the Court has to consider is the ‘direct and inevitable effect’  

of such law.  A matter within the legislative competence of the  

legislature has to be left to the discretion and wisdom of the  

framers, so long as it does not infringe any constitutional  

provision or violate any fundamental right.  The law has to be  

just, fair and reasonable.  Article 14 of the Constitution does not  

prohibit the prescription of reasonable rules for selection or of  

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qualifications for appointment, except, where the classification is  

on the face of it, unjust.

41. We have noticed the challenge of the petitioner to the  

constitutionality of Section 12(5) and (6) and Section 15(5) and (6)  

of the Act of 2005.   The challenge is made to these provisions  

stating that the eligibility criteria given therein is vague, does not  

specify any  qualification, and the stated ‘experience’  has no  

nexus to the object of the Act.   It is also contended that the  

classification contemplated under the Act is violative of Article 14  

of the Constitution.  The petitioner contends that the legislative  

power has been exercised in a manner which is not in consonance  

with the constitutional principles and guarantees and provides for  

no proper consultative process for appointment.  It may be noted  

that the only distinction between the provisions of Sections 12(5)  

and 12(6) on the one hand and Sections 15(5) and 15(6) on the  

other, is that under Section 12, it is the Central Government who  

has to make the appointments in consonance with the provisions  

of the Act, while under Section 15, it is the State Government  

which has to discharge similar functions as per the specified  

parameters.  Thus, discussion on one provision would sufficiently  

cover the other as well.

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42. Sub-Section (5) of Section 12 concerns itself with the  

eligibility criteria for appointment to the post of the Chief  

Information Commissioner and Information Commissioners to the  

Central Information Commission.  It states that these authorities  

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.

43. Correspondingly, Sub-Section (6) of Section 12 states certain  

disqualifications for appointment to these posts.  If such person is  

a Member of Parliament or Member of the legislature of any State  

or Union Territory or holds any other office of profit or connected  

with any political party or carrying on any business or pursuing  

any profession, he would not be eligible for appointment to these  

posts.

44. In order to examine the constitutionality of these provisions,  

let us state the parameters which would finally help the Court in  

determining such questions.

(a)  Whether the law under challenge lacks legislative  

competence?

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(b)  Whether it violates any Article of Part III of the Constitution,  

particularly, Article 14?

(c) Whether the prescribed criteria and classification resulting  

therefrom is discriminatory, arbitrary and has no nexus to  

the object of the Act?

(d)Lastly, whether it a legislative exercise of power which is not  

in consonance with the constitutional guarantees and does  

not provide adequate guidance to make the law just, fair and  

reasonable?

45. As far as the first issue is concerned, it is a commonly  

conceded case before us that the Act of 2005 does not, in any  

form, lack the legislative competence.   In other words, enacting  

such a law falls squarely within the domain of the Indian  

Parliament and has so been enacted under Entry 97 (residuary  

powers) of the Union List. Thus, this issue does not require any  

discussion.

46. To examine constitutionality of a statute in its correct  

perspective, we have to bear in mind certain fundamental  

principles as afore-recorded.  There is presumption of  

constitutionality in favour of legislation. The Legislature has the  

power to carve out a classification which is based upon intelligible  

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differentia and has rational nexus to the object of the Act.  The  

burden to prove that the enacted law offends any of the Articles  

under Part III of the Constitution is on the one who questions the  

constitutionality and shows that despite such presumption in  

favour of the legislation, it is unfair, unjust and unreasonable.   

47. Another most significant canon of determination of  

constitutionality is that the courts would be reluctant to declare a  

law invalid or ultra vires on account of unconstitutionality.  The  

courts would accept an interpretation which would be in favour of  

the constitutionality, than an approach which would render the  

law unconstitutional.  Declaring the law unconstitutional is one of  

the last resorts taken by the courts.  The courts would preferably  

put into service the principle of ‘reading down’ or ‘reading into’ the  

provision to make it effective, workable and ensure the attainment  

of the object of the Act.  These are the principles which clearly  

emerge from the consistent view taken by this court in its various  

pronouncements.

48. The provisions of Section 12(5) do not discuss the basic  

qualification needed, but refer to two components: (a) persons of  

eminence in public life; and (b) with wide knowledge and  

experience in the fields stated in the provision.  The provision,  

thus, does not suffer from the infirmity of providing no criteria  

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resulting in the introduction of the element of arbitrariness or  

discrimination.  The provisions require the persons to be of  

eminence and with knowledge in the stated fields.  Knowledge and  

experience in these fields normally shall be preceded by a  

minimum requisite qualification prescribed in that field.  For  

example, knowledge and experience in the field of law would pre-

suppose a person to be a law graduate.  Similarly, a person with  

wide knowledge and experience in the field of science and  

technology would invariably be expected to be at least a graduate  

or possess basic qualification in science & technology. The  

vagueness in the expression ‘social service’, ‘mass media’  or  

‘administration and governance’  does create some doubt.  But,  

certainly, this vagueness or doubt does not introduce the element  

of discrimination in the provision. The persons from these various  

walks of life are considered eligible for appointment to the post of  

Chief Information Commissioner and Information Commissioners  

in the respective Information Commissions.  This gives a wide  

zone of consideration and this alleged vagueness can always be  

clarified by the appropriate government in exercise of its powers  

under Section 27 and 28 of the Act, respectively.  

Constitutional     Validity     of     Section     12(6)   

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49. Similarly, as stated above, sub-Section (6) of Section 12  

creates in a way a disqualification in terms thereof.  This  

provision does have an element of uncertainty and indefiniteness.  

Upon its proper construction, an issue as to what class of persons  

are eligible to be appointed to these posts, would unexceptionally  

arise.   According to this provision, a person to be appointed to  

these posts ought not to have been carrying on any business or  

pursuing any profession.  It is difficult to say what the person  

eligible under the provision should be doing and for what period.  

The section does not specify any such period.   Normally, the  

persons would fall under one or the other unacceptable  

categories.   To put it differently, by necessary implication, it  

excludes practically all classes while not specifying as to which  

class of persons is eligible to be appointed to that post. The  

exclusion is too vague, while inclusion is uncertain.  It creates a  

situation of confusion which could not have been the intent of law.  

It is also not clear as to what classification the framers of the Act  

intended to lay down.  The classification does not appear to have  

any nexus with the object of the Act.  There is no intelligible  

differentia to support such classification.  Which class is intended  

to be protected and is to be made exclusively eligible for  

appointment in terms of Sections     12(5)   and (6) is something that  

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is not understandable.  Wherever, the Legislature wishes to  

exercise its power of classification, there it has to be a reasonable  

classification, satisfying the tests discussed above.  No Rules have  

been brought to our notice which even intend to explain the  

vagueness and inequality explicit in the language of Section 12(6).  

According to the petitioner, it tantamounts to an absolute bar  

because the legislature cannot be stated to have intended that  

only the persons who are ideal within the terms of Sub-section (6)  

of Section 12, would be eligible to be appointed to the post.  If we  

read the language of Sections 12(5) and 12(6) together, the  

provisions under sub-Section (6) appear to be in conflict with  

those under sub-Section (5).  Sub-Section (5) requires the person  

to have eminence in public life and wide knowledge and  

experience in the specified field.  On the contrary, sub-Section (6)  

requires that the person should not hold any office of profit, be  

connected with any political party or carry on any business or  

pursue any profession.  The object of sub-section (5) stands partly  

frustrated by the language of sub-Section (6).  In other words,  

sub-section (6) lacks clarity, reasonable classification and has no  

nexus to the object of the Act of 2005 and if construed on its plain  

language, it would result in defeating the provisions of sub-

Section (5) of Section 12 to some extent.

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50. The legislature is required to exercise its power in conformity  

with the constitutional mandate, particularly contained in Part III  

of the Constitution.  If the impugned provision denies equality and  

the right of equal consideration, without reasonable classification,  

the courts would be bound to declare it invalid.  Section 12(6)  

does not speak of the class of eligible persons, but practically  

debars all persons from being appointed to the post of Chief  

Information Commissioner or Information Commissioners at the  

Centre and State levels, respectively.

51. It will be difficult for the Court to comprehend as to which  

class of persons is intended to be covered under this clause.   The  

rule of disqualification has to be construed strictly.   If anyone,  

who is an elected representative, in Government service, or one  

who is holding an office of profit, carrying on any business or  

profession, is ineligible in terms of Section 12(6), then the  

question arises as to what class of persons would be eligible?  The  

Section is silent on that behalf.   

52. The element of arbitrariness and discrimination is evidenced  

by the language of Section 12(6) itself, which can be examined  

from another point of view.  No period has been stated for which  

the person is expected to not have carried on any business or  

pursued any profession.  It could be one day or even years prior to  

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his nomination.  It is not clear as to how the persons falling in  

either of these classes can be stated to be differently placed.  This  

uncertainty is bound to bring in the element of discrimination and  

arbitrariness.    

53. Having noticed the presence of the element of discrimination  

and arbitrariness in the provisions of Section 12(6) of the Act, we  

now have to examine whether this Court should declare this  

provision ultra vires the Constitution or read it down to give it its  

possible effect, despite the drawbacks noted above. We have  

already noticed that the Court will normally adopt an approach  

which is tilted in favour of constitutionality and would prefer  

reading down the provision, if necessary, by adding some words  

rather than declaring it unconstitutional.   Thus, we would prefer  

to interpret the provisions of Section 12(6) as applicable post-

appointment rather than pre-appointment of the Chief  

Information Commissioner and Information Commissioners.   In  

other words, these disqualifications will only come into play once  

a person is appointed as Chief Information Commissioner/  

Information Commissioner at any level and he will cease to hold  

any office of profit or carry any business or pursue any profession  

that he did prior to such appointment.   It is thus implicit in this  

provision that a person cannot hold any of the posts specified in  

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sub-section (6) of Section 12 simultaneous to his appointment as  

Chief Information Commissioner or Information Commissioner.  

In fact, cessation of his previous appointment, business or  

profession is a condition precedent to the commencement of his  

appointment as Chief Information Commissioner or Information  

Commissioner.

Constitutional     Validity     of     Section     12(5)   

54. The Act of 2005 was enacted to harmonise the conflicting  

interests while preserving the paramountcy of the democratic  

ideal and provide for furnishing of certain information to the  

citizens who desire to have it.   The basic purpose of the Act is to  

set up a practical regime of right to information for the citizens to  

secure and access information under the control of the public  

authorities. The intention is to provide and promote transparency  

and accountability in the functioning of the authorities.   This  

right of the public to be informed of the various aspects of  

governance by the State is a pre-requisite of the democratic value.  

The right to privacy too, is to be protected as both these rival  

interests find their origin under Article 19(1)(a) of the  

Constitution. This brings in the need for an effective adjudicatory  

process. The authority or tribunals are assigned the responsibility  

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of determining the rival contentions and drawing a balance  

between the two conflicting interests.   That is where the scheme,  

purpose and the object of the Act of 2005 attain greater  

significance.

55. In order to examine whether Section 12(5) of the Act suffers  

from the vice of discrimination or inequality, we may discuss the  

adjudicatory functions of the authorities under the Act in the  

backdrop of the scheme of the Act of 2005, as discussed above.  

The authorities who have to perform adjudicatory functions of  

quasi-judicial content are:-

1. The Central/State Public Information Officer;

2. Officers senior in rank to the Central/State Public  

Information Officer to whom an appeal would lie under  

Section 19(1) of the Act; and

3. The Information Commission (Central/State) consisting of  

Chief Information Commissioner and Information  

Commissioners.

56. In terms of Section 12(5), the Chief Information  

Commissioner and Information Commissioners should be the  

persons of eminence in public life with wide knowledge in the  

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prescribed fields.   We have already indicated that the terminology  

used by the legislature, such as ‘mass-media’  or ‘administration  

and governance’, are terms of uncertain tenor and amplitude.   It  

is somewhat difficult to state with exactitude as to what class of  

persons would be eligible under these categories.

57. The legislature in its wisdom has chosen not to provide any  

specific qualification, but has primarily prescribed ‘wide  

knowledge and experience’ in the cited subjects as the criteria for  

selection.   It is not for the courts to spell out what ought to be  

the qualifications or experience for appointment to a particular  

post.   Suffices it to say, that if the legislature itself provides  

‘knowledge and experience’  as the basic criteria of eligibility for  

appointment, this per se, would not attract the rigors of Article 14  

of the Constitution.  On a reasonable and purposive  

interpretation, it will be appropriate to interpret and read into  

Section 12(5) that the ‘knowledge and experience’  in a particular  

subject would be deemed to include the basic qualification in that  

subject.  We would prefer such an approach than to hold it to be  

violative of Article 14 of the Constitution. Section 12(5) has inbuilt  

guidelines to the effect that knowledge and experience, being two  

distinct concepts, should be construed in their correct  

perspective.  This would include the basic qualification as well as  

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an experience in the respective field, both being the pre-requisites  

for this section. Ambiguity, if any, resulting from the language of  

the provision is insignificant, being merely linguistic in nature  

and, as already noticed, the same is capable of being clarified by  

framing appropriate rules in exercise of powers of the Central  

Government under Section 27 of the Act of 2005.  We are unable  

to find that the provisions of Section 12(5) suffer from the vice of  

arbitrariness or discrimination.   However, without hesitation, we  

would hasten to add that certain requirements of law and  

procedure would have to be read into this provision to sustain its  

constitutionality.

58. It is a settled principle of law, as stated earlier, that courts  

would generally adopt an interpretation which is favourable to  

and tilts towards the constitutionality of a statute, with the aid of  

the principles  like ‘reading into’   and/or  ‘reading down’   the  

relevant provisions, as opposed to declaring a provision  

unconstitutional.  The courts can also bridge the gaps that have  

been left by the legislature inadvertently.  We are of the  

considered view that both these principles have to be applied  

while interpreting Section 12(5).  It is the application of these  

principles that would render the provision constitutional and not  

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opposed to the doctrine of equality.  Rather the application of the  

provision would become more effective.

59. Certainty to vague expressions, like ‘social service’ and ‘mass  

media’, can be provided under the provisions which are capable of  

being explained by framing of proper rules or even by way of  

judicial pronouncements.  In order to examine the scope of this  

provision and its ramifications on the other parts of the Act of  

2005, it is important to refer back to the scheme of the Act.  

Under the provisions of the Act, particularly, Sections 4, 12, 18,  

19, 20, 22, 23 and 25, it is clear that the Central or State  

Information Commission, as the case may be, not only exercises  

adjudicatory powers of a nature no different than a judicial  

tribunal but is vested with the powers of a civil court as well.  

Therefore, it is required to decide a lis, where information is  

required by a person and its furnishing is contested by the other.  

The Commission exercises two kinds of penal powers: firstly, in  

terms of Section 20(1), it can impose penalty upon the defaulters  

or violators of the provisions of the Act and, secondly, Section  

20(2) empowers the Central and the State Information  

Commission to conduct an enquiry and direct the concerned  

disciplinary authority to take appropriate action against the erring  

officer in accordance with law.  Hence, the Commission has  

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powers to pass orders having civil as well as penal consequences.  

Besides this, the Commission has been given monitoring and  

recommendatory powers.  In terms of Section 23, the jurisdiction  

of Civil Courts has been expressly barred.   

60. Now, let us take an overview of the nature and content of the  

disputes arising before such Commission.  Before the Public  

Information Officers, the controversy may fall within a narrow  

compass.  But the question before the First Appellate Authority  

and particularly, the Information Commissioners (Members of the  

Commission) are of a very vital nature.  The impact of such  

adjudication, instead of being tilted towards administrative  

adjudication is specifically oriented and akin to the judicial  

determinative process.  Application of mind and passing of  

reasoned orders are inbuilt into the scheme of the Act of 2005.  In  

fact, the provisions of the Act are specific in that regard.  While  

applying its mind, it has to dwell upon the issues of legal essence  

and effect.  Besides resolving and balancing the conflict between  

the ‘right to privacy’  and ‘right to information’, the Commission  

has to specifically determine and return a finding as to whether  

the case falls under any of the exceptions under Section 8 or  

relates to any of the organizations specified in the Second  

Schedule, to which the Act does not apply in terms of Section 24.  

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Another significant adjudicatory function to be performed by the  

Commission is where interest of a third party is involved.  The  

legislative intent in this regard is demonstrated by the language of  

Section 11 of the Act of 2005.  A third party is not only entitled to  

a notice, but is also entitled to hearing with a specific right to  

raise objections in relation to the disclosure of information.  Such  

functions, by no stretch of imagination, can be termed as  

‘administrative decision’ but are clearly in the domain of ‘judicial  

determination’  in accordance with the rule of law and provisions  

of the Act.  Before we proceed to discuss this aspect in any further  

elaboration, let us examine the status of such  

Tribunal/Commissions and their functions.

B) TRIBUNAL/COMMISSIONS     AND     THEIR     FUNCTIONS   :

61. Before dwelling upon determination of nature of Tribunals in  

India, it is worthwhile to take a brief account of the scenario  

prevalent in some other jurisdictions of the world.   

62. In United Kingdom, efforts have been made for improvising  

the system for administration of justice.  The United Kingdom has  

a growing human rights jurisprudence, following the enactment of  

the Human Rights Act, 1998, and it has a well-established  

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ombudsman system.  The Tribunals have been constituted to  

provide specialised adjudication, alongside the courts, to the  

citizens dissatisfied from the directives made by the Information  

Commissioners under either of these statutes.  The Tribunals,  

important cogs in the machinery of administration of justice, have  

recently undergone some major reforms.  A serious controversy  

was raised whether the functioning of these Tribunals was more  

akin to the Government functioning or were they a part of the  

Court-attached system of administration of justice. The  

Donoughmore Committee had used the term ‘ministerial  

tribunals’, and had regarded them as part of the machinery of  

administration.  The Franks Report saw their role quite  

differently:

“Tribunals are not ordinary courts, but neither  are they appendages of Government  Departments.  Much of the official evidence…  appeared to reflect the view that tribunals should  properly be regarded as part of the machinery of  administration, for which the Government must  retain a close and continuing responsibility.  Thus, for example, tribunals in the social services  field would be regarded as adjuncts to the  administration of the services themselves.  We do  not accept this view.  We consider that tribunals  should properly be regarded as machinery  provided by Parliament for adjudication rather  than as part of the machinery of administration.  The essential point is that in all these cases  Parliament has deliberately provided for a  decision outside and independent of the  

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Department concerned, either at first instance….  or on appeal from a decision of a Minister or of  an official in a special statutory  position….Although the relevant statutes do not  in all cases expressly enact that tribunals are to  consist entirely of persons outside the  Government service, the use of the term ‘tribunal’  in legislation undoubtedly bears this connotation,  and the intention of the Parliament to provide for  the independence of tribunals is clear and  unmistakable.”  

63. Franks recommended that tribunal chairmen should be  

legally qualified.  This was implemented in respect of some  

categories of tribunal, but not others.  But one of the most  

interesting issues arising from the Franks exercise is the extent to  

which the identification of tribunals as part of the machinery of  

adjudication led the Committee, in making its specific  

recommendations, down the road of increased legal formality and  

judicialisation.   (Refer : “The Judicialisation of ‘Administrative’  

Tribunals in the UK : from Hewart to Leggatt” by Gavin Drewry).

64. In the United Kingdom, the Tribunals, Courts and  

Enforcement Act, 2007 (for short, the ‘TCEA’) explicitly confirmed  

the status of Tribunal Judges (as the legally qualified members of  

the Tribunals are now called) as part of the independent judicial  

system, extending to them the same guarantees of independence  

as apply to the judges in the ordinary courts.

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65. From the analysis of the above system of administrative  

justice prevalent in United Kingdom, a very subtle and clear  

distinction from other laws is noticeable in as much as the  

sensitive personal data and right of privacy of an individual is  

assured a greater protection and any request for access to such  

information firstly, is subject to the provisions of the Act and  

secondly, the members of the Tribunals, who hear the appeals  

from a rejection of request for information by the Information  

Commissioners under the provisions of either of these Acts,  

include persons qualified judicially and having requisite  

experience as Judges in the regular courts.

66. In United States of America, the statute governing the  

subject is ‘Freedom of Information Act, 1966’  (for short, the  

‘FOIA’).  This statute requires each ‘agency’  to furnish the  

requisite information to the person demanding such information,  

subject to the limitations and provisions of the Act.  Each agency  

is required to frame rules.  A complainant dissatisfied from non-

furnishing of the information can approach the district courts of  

the United States in the district in which the complainant resides  

or the place in which the agency records are situated.  Such  

complaints are to be dealt with as per the procedure prescribed  

and within the time specified under the Act.

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67. In New South Wales, under the Privacy and Government  

Information Legislation Amendment Bill, 2010, amendments were  

made to both, the Government Information (Public Access) Act,  

2009 and the Personal and Privacy Information Act, 1998, to  

bring the Information Commissioner and the Privacy  

Commissioner together within a single office.  This led to the  

establishment of the Information and Privacy Commission.

68. On somewhat similar lines is the law prevalent in some  

other jurisdictions including Australia and Germany, where there  

exists a unified office of Information and Privacy Commissioner.  

In Australia, the Privacy Commissioner was integrated into the  

office of the Australian Information Commissioner in the year  

2010.   

69. In most of the international jurisdictions, the Commission or  

the Tribunals have been treated to be part of the court attached  

system of administration of justice and as said by the  

Donoughmore Committee, the ‘ministerial tribunals’  were  

different and they were regarded as part of machinery of the  

administration.  The persons appointed to these Commissions  

were persons of legal background having legally trained mind and  

judicial experience.  

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(a)  NATURE OF FUNCTION  

70. The Information Commission, as a body, performs functions  

of wide magnitude, through its members, including adjudicatory,  

supervisory as well as penal functions.  Access to information is a  

statutory right.  This right, as indicated above, is subject to  

certain constitutional and statutory limitations.  The Act of 2005  

itself spells out exempted information as well as the areas where  

the Act would be inoperative.  The Central and State Information  

Commissioners have been vested with the power to decline  

furnishing of an information under certain circumstances and in  

the specified situations.  For disclosure of Information, which  

involves the question of prejudice to a third party, the concerned  

authority is required to issue notice to the third party who can  

make a representation and such representation is to be dealt with  

in accordance with the provisions of the Act of 2005.  This  

position of law in India is in clear contrast to the law prevailing in  

some other countries where information involving a third party  

cannot be disclosed without consent of that party.  However, the  

authority can direct such disclosure, for reasons to be recorded,  

stating that the public interest outweighs the private interest.  

Thus, it involves an adjudicatory process where parties are  

required to be heard, appropriate directions are to be issued, the  

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orders are required to be passed upon due application of mind  

and for valid reasons.  The exercise of powers and passing of the  

orders by the authorities concerned under the provisions of the  

Act of 2005 cannot be arbitrary.  It has to be in consonance with  

the principles of natural justice and the procedure evolved by  

such authority.  Natural justice has three indispensable facets,  

i.e., grant of notice, grant of hearing and passing of reasoned  

orders.  It cannot be disputed that the authorities under the Act  

of 2005 and the Tribunals are discharging quasi-judicial  

functions.   

71. In the case of Indian National Congress (I) v. Institute of  

Social Welfare & Ors. [(2002) 5 SCC 685], the Court explained  

that where there are two or more parties contesting each other’s  

claim and the statutory authority is required to adjudicate the  

rival claims between the parties, such a statutory authority can  

be held to be quasi-judicial and the decision rendered by it as a  

quasi judicial order.  Thus, where there is a lis between the two  

contesting parties and the statutory authority is required to  

decide such a dispute, in absence of any other attributes of a  

quasi-judicial authority, such a statutory authority is a quasi-

judicial authority.  The legal principles which emerge from the  

various judgments laying down when an act of a statutory  

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authority would be a quasi-judicial act are that where (a) a  

statutory authority empowered under a statute to do any act (b)  

which would prejudicially affect the subject (c) although there is  

no lis or two contending parties and the contest is between the  

authority and the subject and (d) the statutory authority is  

required to act judicially under the statute, the decision of the  

said authority is quasi-judicial.   

72. In other words, an authority is described as quasi judicial  

when it has some attributes or trappings of judicial provisions but  

not all.  In the matter before us, there is a lis.  The request of a  

party seeking information is allowed or disallowed by the  

authorities below and is contested by both parties before the  

Commission.  There may also be cases where a third party is  

prejudicially affected by disclosure of the information requested  

for.  It is clear that the concerned authorities particularly the  

Information Commission, possess the essential attributes and  

trappings of a Court.  Its powers and functions, as defined under  

the Act of 2005 also sufficiently indicate that it has adjudicatory  

powers quite akin to the Court system. They adjudicate matters of  

serious consequences.  The Commission may be called upon to  

decide how far the right to information is affected where  

information sought for is denied or whether the information asked  

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for is ‘exempted’ or impinges upon the ‘right to privacy’ or where  

it falls in the ‘no go area’  of applicability of the Act.  It is not  

mandatory for the authorities to allow all requests for information  

in a routine manner.  The Act of 2005 imposes an obligation upon  

the authorities to examine each matter seriously being fully  

cautious of its consequences and effects on the rights of others.  

It may be a simple query for information but can have far  

reaching consequences upon the right of a third party or an  

individual with regard to whom such information is sought.  

Undue inroad into the right to privacy of an individual which is  

protected under Article 21 of the Constitution of India or any  

other law in force would not be permissible. In Gobind v. State of  

Madhya Pradesh & Anr. [(1975) 2 SCC 148] this Court held that  

privacy-dignity claims deserve to be examined with care and to be  

denied only when an important countervailing interest is shown  

to be superior. In Ram Jethmalani & Ors. v. Union of India [(2011)  

8 SCC 1] this Court has observed that the right to privacy is an  

integral part of the right to life. Thus, the decision making process  

by these authorities is not merely of an administrative nature.  

The functions of these authorities are more aligned towards the  

judicial functions of the courts rather than mere administrative  

acts of the State authority.   

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73. ‘Quasi judicial’ is a term which may not always be used with  

utmost clarity and precision.  An authority which exercises  

judicial functions or functions analogous to the judicial  

authorities would normally be termed as ‘quasi-judicial’.  In the  

‘Advanced Law Lexicon’ (3rd Edn., 2005) by P. Ramanathan Aiyar,  

the expression ‘quasi judicial’ is explained as under :

“Of, relating to, or involving an executive or  administrative official’s adjudicative acts.  Quasi-judicial acts, which are valid if there  is no abuse of discretion, often determine  the fundamental rights of citizens.  They are  subject to review by Courts. (Blacm, 7th  

Edn., 1999)

‘Quasi-judicial is a term that is …. Not easily  definable.  In the United States, the phrase  often covers judicial decisions taken by an  administrative agency –  the test is the  nature of the tribunal rather than what it is  doing.  In England quasi-judicial belongs to  the administrative category and is used to  cover situations where the administrator is  bound by the law to observe certain forms  and possibly hold a public hearing but  where he is a free agent in reaching the final  decision.  If the rules are broken, the  determination may be set aside, but it is not  sufficient to show that the administration is  biased in favour of a certain policy, or that  the evidence points to a different  conclusion..’  (George Whitecross Paton, A  

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Textbook of Jurisprudence 336 (G.W. Paton &  Davit P Derham eds., 4th ed. (1972)

Describing a function that resembles the  judicial function in that it involves deciding a  dispute and ascertaining the facts and any  relevant law, but differs in that it depends  ultimately on the exercise of an executive  discretion rather than the application of law  (Oxford Law Dictionary 5th Edn. 2003)

When the law commits to an officer the duty  of looking into certain facts not in a way  which it specially directs, but after a  discretion in its nature judicial, the function  is quasi judicial.

Of or relating to the adjudicative acts of an  executive or administrative officials.

Sharing the qualities of and approximating  to what is judicial; essentially judicial in  character but not within the judicial power  or function nor belonging to the judiciary as  constitutionally defined. [S.128(2)(i), C.P.C.  (5 of 1908)].”

74. This Court in the case of State of Himachal Pradesh & Ors. v.  

Raja Mahendra Pal & Anr. [1995 Supp (2) SCC 731], held that the  

expression ‘quasi judicial’  has been termed to be one which  

stands midway a judicial and an administrative function.  If the  

authority has any express statutory duty to act judicially in  

arriving at the decision in question, it would be deemed to be  

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quasi-judicial.  Where the function to determine a dispute is  

exercised by virtue of an executive discretion rather than the  

application of law, it is a quasi-judicial function.  A quasi-judicial  

act requires that a decision is to be given not arbitrarily or in  

mere discretion of the authority but according to the facts and  

circumstances of the case as determined upon an enquiry held by  

the authority after giving an opportunity to the affected parties of  

being heard or wherever necessary of leading evidence in support  

of their contention.  The authority and the Tribunal constituted  

under the provisions of the Act of 2005 are certainly quasi-

judicial authority/tribunal performing judicial functions.   

75. Under the scheme of the Act of 2005, in terms of Section 5,  

every public authority, both in the State and the Centre, is  

required to nominate Public Information Officers to effectuate and  

make the right to information a more effective right by furnishing  

the information asked for under this Act.  The Information Officer  

can even refuse to provide such information, which order is  

appealable under Section 19(1) to the nominated senior officer,  

who is required to hear the parties and decide the matter in  

accordance with law.  This is a first appeal.  Against the order of  

this appellate authority, a second appeal lies with the Central  

Information Commission or the State Information Commission, as  

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the case may be, in terms of Section 19(3) of the Act of 2005.  The  

Legislature, in its wisdom, has provided for two appeals.   Higher  

the adjudicatory forum, greater is the requirement of adherence  

to the rule of judiciousness, fairness and to act in accordance  

with the procedure prescribed and in absence of any such  

prescribed procedure, to act in consonance with the principles of  

natural justice.  Higher also is the public expectation from such  

tribunal.   The adjudicatory functions performed by these bodies  

are of a serious nature.  An order passed by the Commission is  

final and binding and can only be questioned before the High  

Court or the Supreme Court in exercise of the Court’s jurisdiction  

under Article 226 and/or Article 32 of the Constitution,  

respectively.

76. If one analyses the scheme of the Act of 2005 and the multi-

farious functions that the Information Commission is expected to  

discharge in its functioning, following features become evident :

1. It has a lis pending before it which it decides.   ‘Lis’, as per  

Black’s Law Dictionary (8th Edition) means ‘a piece of  

litigation; a controversy or a dispute’.   One party asserting  

the right to a particular information, the other party  

denying the same or even contesting that it was invasion  

into his protected right gives rise to a lis which has to be  

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adjudicated by the Commission in accordance with law  

and, thus, cannot be termed as ‘administrative function’  

simpliciter.  It, therefore, becomes evident that the appellate  

authority and the Commission deal with lis in the sense it  

is understood in the legal parlance.   

2. It performs adjudicatory functions and is required to grant  

opportunity of hearing to the affected party and to record  

reasons for its orders.  The orders of the Public Information  

Officer are appealable to first appellate authority and those  

of the First Appellate Authority are appealable to the  

Information Commission, which are then open to challenge  

before the Supreme Court or the High Court in exercise of  

its extraordinary power of judicial review.   

3. It is an adjudicatory process not akin to administrative  

determination of disputes but similar in nature to the  

judicial process of determination.  The concerned authority  

is expected to decide not only whether the case was covered  

under any of the exceptions or related to any of the  

organizations to which the Act of 2005 does not apply, but  

even to determine, by applying the legal and constitutional  

provisions, whether the exercise of the right to information  

amounted to invasion into the right to privacy.   This being  

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a very fine distinction of law, application of legal principles  

in such cases becomes very significant.

4. The concerned authority exercises penal powers and can  

impose penalty upon the defaulters as contemplated under  

Section 20 of the Act of 2005.   It has to perform  

investigative and supervisory functions. It is expected to act  

in consonance with the principles of natural justice as well  

as those applicable to service law jurisprudence, before it  

can make a report and recommend disciplinary action  

against the defaulters, including the persons in service in  

terms of Section 20(2).    

5. The functioning of the Commission is quite in line with the  

functioning of the civil courts and it has even expressly  

been vested with limited powers of the civil Court.  

Exercise of these powers and discharge of the functions  

discussed above not only gives a colour of judicial and/or  

quasi-judicial functioning to these authorities but also vests  

the Commission with the essential trappings of a civil  

Court.

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77. Let us now examine some other pre-requisites of vital  

significance in the functioning of the Commission.  In terms of  

Section 22 of this Act, the provisions of the Act are to be given  

effect to, notwithstanding anything inconsistent therewith  

contained in the Official Secrets Act, 1923 and any other law for  

the time being in force or in any instrument having effect by  

virtue of any law other than this Act.  This Act is, therefore, to  

prevail over the specified Acts and even instruments. The same,  

however, is only to the extent of any inconsistency between the  

two.  Thus, where the provisions of any other law can be applied  

harmoniously, without any conflict, the question of repugnancy  

would not arise.   

78. Further, Section 23 is a provision relating to exclusion of  

jurisdiction of the Courts.  In terms of this Section, no Court shall  

entertain any suit, application or other proceedings in respect of  

any order made under this Act and no such order shall be called  

in question otherwise than by way of an appeal provided for  

under this Act.   In other words, the jurisdiction of the Court has  

been ousted by express language.  Nevertheless, it is a settled  

principle of law that despite such excluding provision, the  

extraordinary jurisdiction of the High Court and the Supreme  

Court, in terms of Articles 226 and 32 of the Constitution,  

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respectively, cannot be divested.  It is a jurisdiction incapable of  

being eroded or taken away by exercise of legislative power, being  

an important facet of the basic structure of the Constitution.  In  

the case of L. Chandra Kumar (supra), the Court observed that the  

constitutional safeguards which ensure independence of the  

Judges of the superior judiciary not being available for the  

Members of the Tribunal, such tribunals cannot be considered  

full and effective substitute to the superior judiciary in  

discharging the function of constitutional interpretation.  They  

can, however, perform a supplemental role.  Thus, all decisions of  

the Tribunals were held to be subject to scrutiny before the High  

Court under Article 226/227 of the Constitution.  Therefore, the  

orders passed by the authority, i.e., the Central or the State  

Information Commissions under the Act of 2005 would  

undoubtedly be subject to judicial review of the High Court under  

Article 226/227 of the Constitution.   

79. Section 24 of the Act of 2005 empowers the Central  

Government to make amendments to the Second Schedule  

specifying such organization established by the Government to  

which the Act of 2005 would not apply.  The ‘appropriate  

Government’  [as defined in Section 2(a)] and the ‘competent  

authority’  [as defined in Section 2(e)] have the power to frame  

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rules for the purposes stated under Sections 27 and 28 of the Act  

of 2005.  This exercise is primarily to carry out the provisions of  

the Act of 2005.

80. Once it is held that the Information Commission is  

essentially quasi-judicial in nature, the Chief information  

Commissioner and members of the Commission should be the  

persons possessing requisite qualification and experience in the  

field of law and/or other specified fields.   We have discussed in  

some detail the requirement of a judicial mind for effectively  

performing the functions and exercising the powers of the  

Information Commission.  In the case of Bharat Bank Ltd., Delhi v.  

Employees of Bharat Bank & Ors. [1950 SCR 459 : AIR 1950 SC  

188], this Court took the view that the functions and duties of the  

Industrial Tribunal are very much like those of a body  

discharging judicial functions, although it is not a court in the  

technical sense of the word.  In S.P. Sampath Kumar v. Union of  

India [(1987) 1 SCC 124], again this Court held that in the case of  

Administrative Tribunals, the presence of a Judicial member was  

the requirement of fair procedure of law and the Administrative  

Tribunal must be so manned as to inspire confidence in the  

public mind that it is a highly competent and expert mechanism  

with judicial approach and objectivity.  It was also observed that  

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we have, in our country, brilliant civil servants who possess  

tremendous sincerity, drive and initiative and who have  

remarkable capacity to resolve and overcome administrative  

problems of great complexity.  But what is needed in a judicial  

tribunal which is intended to supplant the High Court is legal  

training and experience.  Similar view was also expressed in the  

case of Union of India v. Madras Bar Association [(2010) 11 SCC  

1].   

81. Further, in the case of L. Chandra Kumar (supra) where this  

Court was concerned with the orders and functioning of the  

Central Administrative Tribunal and scope of its judicial review,  

while holding that the jurisdiction of the High Court under Article  

226 of the Constitution was open and could not be excluded, the  

Court specifically emphasised on the need for a legally trained  

mind and experience in law for the proper functioning of the  

tribunal.  The Court held as under :

“88. Functioning of Tribunals  

XXX XXX XXX

8.65 A Tribunal which substitutes the High  Court as an alternative institutional  mechanism for judicial review must be no  less efficacious than the High Court. Such a  tribunal must inspire confidence and public  esteem that it is a highly competent and expert  

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mechanism with judicial approach and  objectivity. What is needed in a tribunal,  which is intended to supplant the High Court,  is legal training and experience, and judicial  acumen, equipment and approach. When such  a tribunal is composed of personnel drawn  from the judiciary as well as from services or  from amongst experts in the field, any  weightage in favour of the service members  or expert members and value-discounting the  judicial members would render the tribunal  less effective and efficacious than the High  Court. The Act setting up such a tribunal  would itself have to be declared as void  under such circumstances. The same would  not at all be conducive to judicial  independence and may even tend, directly or  indirectly, to influence their decision-making  process, especially when the Government is a  litigant in most of the cases coming before  such tribunal. (See S.P. Sampath Kumar v.  Union of India.) The protagonists of specialist  tribunals, who simultaneously with their  establishment want exclusion of the writ  jurisdiction of the High Courts in regard to  matters entrusted for adjudication to such  tribunals, ought not to overlook these vital  and important aspects. It must not be  forgotten that what is permissible to be  supplanted by another equally effective and  efficacious institutional mechanism is the High  Courts and not the judicial review itself.  Tribunals are not an end in themselves but a  means to an end; even if the laudable  objectives of speedy justice, uniformity of  approach, predictability of decisions and  specialist justice are to be achieved, the  framework of the tribunal intended to be set  up to attain them must still retain its basic  judicial character and inspire public  confidence. Any scheme of decentralisation of  administration of justice providing for an  alternative institutional mechanism in  substitution of the High Courts must pass  

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the aforesaid test in order to be  constitutionally valid.”

82. In India, the Central or the State Information Commission,  

as the case may be, is vested with dual jurisdiction.  It is the  

appellate authority against the orders passed by the first  

appellate authority, the Information Officer, in terms of Section  

19(1) of the Act of 2005, while additionally it is also a supervisory  

and investigative authority in terms of Section 18 of the Act  

wherein it is empowered to hear complaints by any person  

against the inaction, delayed action or other grounds specified  

under Section 18(1) against any State and Central Public  

Information Officer.  This inquiry is to be conducted in  

accordance with the prescribed procedure and by exercising the  

powers conferred on it under Section 18(3).  It has to record its  

satisfaction that there exist reasonable grounds to enquire into  

the matter.   

83. Section 20 is the penal provision.  It empowers the Central  

or the State Information Commission to impose penalty as well as  

to recommend disciplinary action against such Public Information  

Officers who, in its opinion, have committed any acts or  

omissions specified in this section, without any reasonable cause.  

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The above provisions demonstrate that the functioning of the  

Commission is not administrative simpliciter but is quasi-judicial  

in nature.  It exercises powers and functions which are  

adjudicatory in character and legal in nature.  Thus, the  

requirement of law, legal procedures, and the protections would  

apparently be essential.  The finest exercise of quasi-judicial  

discretion by the Commission is to ensure and effectuate the right  

of information recognized under Article 19 of the Constitution vis-

a-vis the protections enshrined under Article 21 of the  

Constitution.

84. The Information Commission has the power to deal with the  

appeals from the First Appellate Authority and, thus, it has to  

examine whether the order of the appellate authority and even the  

Public Information Officer is in consonance with the provisions of  

the Act of 2005 and limitations imposed by the Constitution.   In  

this background, no Court can have any hesitation in holding  

that the Information Commission is akin to a Tribunal having the  

trappings of a civil Court and is performing quasi-judicial  

functions.

85. The various provisions of this Act are clear indicators to the  

unquestionable proposition of law that the Commission is a  

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judicial tribunal and not a ministerial tribunal.  It is an important  

cog in and is part of court attached system of administration of  

justice unlike a ministerial tribunal which is more influenced and  

controlled and performs functions akin to machinery of  

administration.

(b)REQUIREMENT OF LEGAL MIND

86. Now, it will be necessary for us to dwell upon somewhat  

controversial but an aspect of greater significance as to who and  

by whom such adjudicatory machinery, at its various stages  

under the provisions of the Act of 2005 particularly in the Indian  

context, should be manned.    

87. Section 5 of the Act of 2005 makes it obligatory upon every  

public authority to designate as many officers, as Central Public  

Information Officers and State Information Public Officers in all  

administrative units or offices, as may be necessary to provide  

information to the persons requesting information under the Act  

of 2005.  Further, the authority is required to designate Central  

Assistant Public Information Officer and State Assistant Public  

Information Officer at the sub-divisional or sub-district level.  The  

Assistant Public Information Officers are to perform dual  

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functions – (1) to receive the applications for information; and (2)  

to receive appeals under the Act.  The applications for information  

are to be forwarded to the concerned Information Officer and the  

appeals are to be forwarded to the Central Information  

Commission or the State Information Commission, as the case  

may be.  It was contemplated that these officers would be  

designated at all the said levels within hundred days of the  

enactment of the Act.  There is no provision under the Act of 2005  

which prescribes the qualification or experience that the  

Information Officers are required to possess.  In fact, the  

language of the Section itself makes it clear that any officer can  

be designated as Central Public Information Officer or State  

Public Information Officer.  Thus, no specific requirement is  

mandated for designating an officer at the sub-divisional or sub-

district level.  The appeals, under Section 19(1) of the Act, against  

the order of the Public Information Officer are to be preferred  

before an Officer senior in the rank to the Public Information  

Officer.  However, under Section 19(3), a further appeal lies to the  

Central or the State Information Commission, as the case may be,  

against the orders of the Central or State Appellate Officer.  These  

officers are required to dispose of such application or appeal  

within the time schedule specified under the provisions of the Act.  

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There is also no qualification or experience required of these  

designated officers to whom the first appeal would lie.  However,  

in contradistinction, Section 12(5) and Section 15(5) provide for  

the experience and knowledge that the Chief Information  

Commissioner and the Information Commissioners at the Centre  

and the State levels, respectively, are required to possess.  This  

provision is obviously mandatory in nature.   

88. As already noticed, in terms of Section 12(5), the Chief  

Information Commissioner and Information Commissioners are  

required to be persons of eminence in public life with wide  

knowledge and experience in law, science and technology or any  

of the other specified fields.  Further, Sub-Section (6) of Sections  

12 and 15 lays down the disqualifications for being nominated as  

such. It is provided that the Chief Information Commissioner or  

Information Commissioners shall not be a Member of Parliament  

or Member of the Legislative Assembly 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.   

89. The requirement of legal person in a quasi-judicial body has  

been internationally recognized.  We have already referred,  

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amongst others, to the relevant provisions of the respective  

Information Acts of the USA, UK and Canada.  Even in the  

Canadian Human Rights Tribunal, under the Canadian Human  

Rights Act, the Vice-Chairman and Members of the Tribunal are  

required to have a degree in law from a recognized university and  

be the member of the bar of a province or a Chamber des notaires  

du Quebec for at least 10 years.  Along with this qualification,  

such person needs to have general knowledge of human rights law  

as well as public law including Administrative and Constitutional  

Laws.  The Information Commissioner under the Canadian Law  

has to be appointed by the Governor in Council after consultation  

with the leader of every recognized party in the Senate and the  

House of Commons.  Approval of such appointment is done by  

resolution of the Senate and the House of Commons.  It is noted  

that the Vice-Chairperson plays a pre-eminent role within this  

Administrative Tribunal by ensuring a fair, timely and impartial  

adjudication process for human rights complaints, for the benefit  

of all concerned.   

90. As already noticed, in the United Kingdom, the Information  

Rights Tribunal and the Information Commissioners are to deal  

with the matters arising from both, the FOIA as well as the Data  

Protection Act, 1998.  These tribunals are discharging quasi-

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judicial functions.  Appointments to them are dealt with and  

controlled by the TCEA.  These appointments are treated as  

judicial appointments and are covered under Part 2 of the TCEA.  

Section 50 provides for the eligibility conditions for judicial  

appointment.  Section 50(1)(b) refers to a person who satisfies the  

judicial-appointment eligibility condition on an N-year basis.  A  

person satisfies that condition on N-year basis if (a) the person  

has a relevant qualification and (b) the total length of the person’s  

qualifying periods is at least N years.  Section 52 provides for the  

meaning of the expression ‘gain experience in law’  appearing in  

Section 50(3)(b).  It states that a person gains experience in law  

during a period if the period is one during which the person is  

engaged in law-related activities.  The essence of these statutory  

provisions is that the concerned person under that law is required  

to possess both a degree as well as experience in the legal field.  

Such experience inevitably relates to working in that field.  Only  

then, the twin criteria of requisite qualification and experience can  

be satisfied.    

91. It may be of some relevance here to note that in UK, the  

Director in the office of the Government Information Service, an  

authority created under the Freedom of Information Act, 2000  

possesses a degree of law and has been a member of the Bar of  

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the District of Columbia and North Carolina in UK.  The Principal  

Judge of Information Rights Jurisdiction in the First-tier Tribunal,  

not only had a law degree but were also retired solicitors or  

barristers in private practice.  

92. Thus, there exists a definite requirement for appointing  

persons to these posts with legal background and acumen so as to  

ensure complete faith and confidence of the public in the  

independent functioning of the Information Commission and for  

fair and expeditious performance of its functions.  The  

Information Commissions are required to discharge their  

functions and duties strictly in accordance with law.   

93. In India, 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  

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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.  A person may have some experience in the field of  

law without possessing the requisite qualification.  That certainly  

would not serve the requirement and purpose of the Act of 2005,  

keeping in view the nature of the functions and duties required to  

be performed by the Information Commissioners.  Experience in  

absence of basic qualification would certainly be insufficient in its  

content and would not satisfy the requirements of the said  

provision.  Wide knowledge in a particular field would, by  

necessary implication, refer to the knowledge relatable to  

education in such field whereas experience would necessarily  

relate to the experience attained by doing work in such field.  

Both must be read together in order to satisfy the requirements of  

Sections 12(5) of and 15(5) the Act of 2005.  Similarly, wide  

knowledge and experience in other fields would have to be  

construed as experience coupled with basic educational  

qualification in that field.   

94. Primarily it may depend upon the language of the rules  

which govern the service but it can safely be stated as a rule that  

experience in a given post or field may not necessarily satisfy the  

condition of prescribed qualification of a diploma or a degree in  

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such field. Experience by working in a post or by practice in the  

respective field even for long time cannot be equated with the  

basic or the prescribed qualification. In absence of a specific  

language of the provision, it is not feasible for a person to have  

experience in the field of law without possessing a degree in law.  

In somewhat different circumstances, this Court in the case of  

State of Madhya Pradesh v. Dharam Bir [(1998) 6 SCC 165], while  

dealing with Rule 8(2) of the Madhya Pradesh Industrial Training  

(Gazetted) Service Recruitment Rules, 1985, took the view that  

the stated qualification for the post of Principal Class I or  

Principal Class II were also applicable to appointment by  

promotion and that the applicability of such qualification is not  

restricted to direct appointments.  Before a person becomes  

eligible for being promoted to the post of Principal, Class II or  

Principal, Class-I, he must possess a Degree or Diploma in  

Engineering, as specified in the Schedule.  The fact that the  

person had worked as a Principal for a decade would not lead to a  

situation of accepting that the person was qualified to hold the  

post.  The Court held as under :

“32. “Experience”  gained by the respondent  on account of his working on the post in  question for over a decade cannot be equated  with educational qualifications required to be  possessed by a candidate as a condition of  

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eligibility for promotion to higher posts. If the  Government, in exercise of its executive  power, has created certain posts, it is for it to  prescribe the mode of appointment or the  qualifications which have to be possessed by  the candidates before they are appointed on  those posts. The qualifications would  naturally vary with the nature of posts or the  service created by the Government.

33. The post in question is the post of  Principal of the Industrial Training Institute.  The Government has prescribed a Degree or  Diploma in Engineering as the essential  qualification for this post. No one who does  not possess this qualification can be  appointed on this post. The educational  qualification has a direct nexus with the  nature of the post. The Principal may also  have an occasion to take classes and teach  the students. A person who does not hold  either a Degree or Diploma in Engineering  cannot possibly teach the students of the  Industrial Training Institute the technicalities  of the subject of Engineering and its various  branches.”

95. Thus, in our opinion, it is clear that experience in the  

respective field referred to in Section 12(5) of the Act of 2005  

would be an experience gained by the person upon possessing the  

basic qualification in that field.  Of course, the matter may be  

somewhat different where the field itself does not prescribe any  

degree or appropriate course.  But it would be applicable for the  

fields like law, engineering, science and technology, management,  

social service and journalism, etc.

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96. This takes us to discuss the kind of duties and  

responsibilities that such high post is expected to perform.  Their  

functions are adjudicatory in nature.  They are required to give  

notice to the parties, offer them the opportunity of hearing and  

pass reasoned orders.  The orders of the appellate authority and  

the Commission have to be supported by adequate reasoning as  

they grant relief to one party, despite opposition by the other or  

reject the request for information made in exercise of a statutory  

right.   

97. It is not only appropriate but is a solemn duty of every  

adjudicatory body, including the tribunals, to state the reasons in  

support of its decisions.  Reasoning is the soul of a judgment and  

embodies one of the three pillars on which the very foundation of  

natural justice jurisprudence rests.  It is informative to the  

claimant of the basis for rejection of his claim, as well as provides  

the grounds for challenging the order before the higher  

authority/constitutional court.  The reasons, therefore, enable the  

authorities, before whom an order is challenged, to test the  

veracity and correctness of the impugned order.  In the present  

times, since the fine line of distinction between the functioning of  

the administrative and quasi-judicial bodies is gradually  

becoming faint, even the administrative bodies are required to  

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pass reasoned orders.  In this regard, reference can be made to  

the judgments of this Court in the cases of Siemens Engineering &  

Manufacturing Co. of India Ltd. v. Union of India & Anr. [(1976) 2  

SCC 981]; and Assistant Commissioner, Commrcial Tax  

Department Works Contract and Leasing, Kota v. Shukla &  

Brothers [(2010) 4 SCC 785].

98. 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. Some of the exemptions  

under Section 8, 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.  In terms of Section 8(1)(e), (f), (g), (h) and  

(i), the authority is required to record a definite satisfaction  

whether disclosure of information would be in the larger public  

interest or whether it would impede the process of investigation  

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or apprehension or prosecution of the offenders and whether it  

would cause unwarranted invasion of the privacy of an individual.  

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 other words, the deciding authority ought to  

be conscious of the constitutional concepts which hold  

significance while determining the rights of the parties in  

accordance with the provisions of the statute and the  

Constitution.  The legislative scheme of the Act of 2005 clearly  

postulates passing of a reasoned order in light of the above.  A  

reasoned order would help the parties to question the correctness  

of the order effectively and within the legal requirements of the  

writ jurisdiction of the Supreme Court and the High Courts.   

99. ‘Persons of eminence in public life’  is also an expression of  

wide implication and ramifications.  It takes in its ambit all  

requisites of a good citizen with values and having a public image  

of contribution to the society.  Such person should have  

understanding of concepts of public interest and public good.  

Most importantly, such person should have contributed to the  

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society through social or allied works.   The authorities cannot  

lose sight of the fact that ingredients of institutional integrity  

would be applicable by necessary implication to the Commissions  

and their members.   This discussion safely leads us to conclude  

that the functions of the Chief Information Commissioner and  

Information Commissioners may be better performed by a legally  

qualified and trained mind possessing the requisite experience.  

The same should also be applied to the designation of the first  

appellate authority, i.e., the senior officers to be designated at the  

Centre and State levels.  However, in view of language of Section  

5, it may not be necessary to apply this principle to the  

designation of Public Information Officer.     

100. Moreover, as already noticed, the Information Commission,  

is performing quasi-judicial functions and essence of its  

adjudicatory powers is akin to the Court system. It also possesses  

the essential trappings of a Court and discharges the functions  

which have immense impact on the rights/obligations of the  

parties. Thus, it must be termed as a judicial Tribunal which  

requires to be manned by a person of judicial mind, expertise and  

experience in that field. This Court, while dealing with the cases  

relating to the powers of the Parliament to amend the  

Constitution has observed that every provision of the  

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Constitution, can be amended provided in the result, the basic  

structure of the Constitution remains the same. The dignity of the  

individual secured by the various freedoms and basic rights  

contained in Part III of the Constitution and their protection itself  

has been treated as the basic structure of the Constitution.  

101. Besides separation of powers, the independence of judiciary  

is of fundamental constitutional value in the structure of our  

Constitution. Impartiality, independence, fairness and  

reasonableness in judicial decision making are the hallmarks of  

the Judiciary. If ‘Impartiality’  is the soul of Judiciary,  

`Independence' is the life blood of Judiciary. Without  

independence, impartiality cannot thrive, as this Court stated in  

the case of Union of India v. R. Gandhi, President, Madras Bar  

Association [(2010) 11 SCC 17].

102. The independence of judiciary stricto sensu applies to the  

Court system.  Thus, by necessary implication, it would also  

apply to the tribunals whose functioning is quasi-judicial and  

akin to the court system.   The entire administration of justice  

system has to be so independent and managed by persons of legal  

acumen, expertise and experience that the persons demanding  

justice must not only receive justice, but should also have the  

faith that justice would be done.

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103. The above detailed analysis leads to an ad libitum conclusion  

that under the provisions and scheme of the Act of 2005, the  

persons eligible for appointment should be of public eminence,  

with knowledge and experience in the specified fields and should  

preferably have a judicial background.  They should possess  

judicial acumen and experience to fairly and effectively deal with  

the intricate questions of law that would come up for  

determination before the Commission, in its day-to-day working.  

The Commission satisfies abecedarians of a judicial tribunal  

which has the trappings of a court.  It will serve the ends of  

justice better, if the Information Commission was manned by  

persons of legal expertise and with adequate experience in the  

field of adjudication.  We may further clarify that such judicial  

members could work individually or in Benches of two, one being  

a judicial member while the other being a qualified person from  

the specified fields to be called  an expert member.  Thus, in  

order to satisfy the test of constitutionality, we will have to read  

into Section 12(5) of the Act that the expression ‘knowledge and  

experience’  includes basic degree in that field and experience  

gained thereafter and secondly that legally qualified, trained and  

experienced persons would better administer justice to the people,  

particularly when they are expected to undertake an adjudicatory  

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process which involves critical legal questions and niceties of law.  

Such appreciation and application of legal principles is a sine qua  

non to the determinative functioning of the Commission as it can  

tilt the balance of justice either way.  Malcolm Gladwell said, “the  

key to good decision making is not knowledge.  It is  

understanding.  We are swimming in the former.  We are lacking  

in the latter”.  The requirement of a judicial mind for manning the  

judicial tribunal is a well accepted discipline in all the major  

international jurisdictions with hardly with any exceptions.  Even  

if the intention is to not only appoint people with judicial  

background and expertise, then the most suitable and practical  

resolution would be that a ‘judicial member’  and an ‘expert  

member’  from other specified fields should constitute a Bench  

and perform the functions in accordance with the provisions of  

the Act of 2005.  Such an approach would further the mandate of  

the statute by resolving the legal issues as well as other serious  

issues like an inbuilt conflict between the Right to Privacy and  

Right to Information while applying the balancing principle and  

other incidental controversies.  We would clarify that participation  

by qualified persons from other specified fields would be a positive  

contribution in attainment of the proper administration of justice  

as well as the object of the Act of 2005.  Such an approach would  

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help to withstand the challenge to the constitutionality of Section  

12(5).

104. As a natural sequel to the above, the question that comes up  

for consideration is as to what procedure should be adopted to  

make appointments to this august body.  Section 12(3) states  

about the High-powered Committee, which has to recommend the  

names for appointment to the post of Chief Information  

Commissioner and Information Commissioners to the President.  

However, this Section, and any other provision for that matter, is  

entirely silent as to what procedure for appointment should be  

followed by this High Powered Committee.  Once we have held  

that it is a judicial tribunal having the essential trappings of a  

court, then it must, as an irresistible corollary, follow that the  

appointments to this august body are made in consultation with  

the judiciary.  In the event, the Government is of the opinion and  

desires to appoint not only judicial members but also experts  

from other fields to the Commission in terms of Section 12(5) of  

the Act of 2005, then it may do so, however, subject to the riders  

stated in this judgment.  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.  

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The Bench should consist of one judicial member and the other  

member from the specified fields in terms of Section 12(5) of the  

Act of 2005.  It will be incumbent and in conformity with the  

scheme of the Act that the appointments to the post of judicial  

member are 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 case of the State Chief  

Information Commissioner and State Information Commissioners  

of that State Commission.  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 at least three times the number of vacancies  

existing in the Commission.  Such panel should be prepared on a  

rational basis, and should inevitably form part of the records.  

The names so empanelled, with the relevant record should be  

placed before the said High Powered Committee.  In furtherance  

to the recommendations of the High Powered Committee,  

appointments to the Central and State Information Commissions  

should be made by the competent authority.  Empanelment by  

the DoPT and other competent authority has to be carried on the  

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basis of a rational criteria, which should be duly reflected by  

recording of appropriate reasons.  The advertisement issued by  

such agency should not be restricted to any particular class of  

persons stated under Section 12(5), but must cover persons from  

all fields.  Complete information, material and comparative data  

of the empanelled persons should be made available to the High  

Powered Committee.  Needless to mention that the High Powered  

Committee itself has to adopt a fair and transparent process for  

consideration of the empanelled persons for its final  

recommendation.   This approach, is in no way innovative  but is  

merely derivative of the mandate and procedure stated by this  

Court in the case of L. Chandra Kumar (supra) wherein the Court  

dealt with similar issues with regard to constitution of the Central  

Administrative Tribunal.  All concerned are expected to keep in  

mind that the Institution is more important than an individual.  

Thus, all must do what is expected to be done in the interest of  

the institution and enhancing the public confidence.  A three  

Judge Bench of this Court in the case of Centre for PIL and Anr. v.  

Union of India & Anr. [(2011) 4 SCC 1] had also adopted a similar  

approach and with respect we reiterate the same.

105. Giving effect to the above scheme would not only further the  

cause of the Act but would attain greater efficiency, and accuracy  

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in the decision-making process, which in turn would serve the  

larger public purpose.  It shall also ensure greater and more  

effective access to information, which would result in making the  

invocation of right to information more objective and meaningful.  

106. For the elaborate discussion and reasons afore-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  

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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.    

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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  

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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  

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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  

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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.

107. The writ petition is partly allowed with the above directions,  

however, without any order as to costs.   

…………………………….,J. [A.K. Patnaik]

…………………………….,J. [Swatanter Kumar]

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New Delhi; September 13, 2012

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