NAMIT SHARMA v. UNION OF INDIA

Citation: [2013] 13 S.C.R. 1

Court: Supreme Court of India

Bench: A.K. PATNAIK, SWATANTER KUMAR

Case summary

NAMIT SHARMA v. UNION OF INDIA.pdf

Judgment text

[2013] 13 S. C. R. 1 . . ,1. _ NAMIT SHARMA v. UNION OF INDIA (Writ Petition (Civil) No. 210 of 2012) SEPTEMBER 13, 2012 8 [A. K. PATNAIK AND SWATANTER KUMAR, JJ. ] Right to Information Act, 2005: ',( ' ss. 12(5), (6) and 15(5), (6) - Appointment to the post of Chief Information Commissioners and Information Commissioners at Central as well as State Level - Eligibility criteria - Constitutional validity of - Held: The provisions of ss. 12(5) and 15(5) are constitutionally valid with a rider that the court will have to read into the provisions that the expression 0 'knowledge and experience' would mean and include a basic degree in the field and the experience gained thereafter - The provisions ulss. 12(6) and 15(6) are vague, have no nexus with the object of the Act and there is no intelligible differentia to ,support such classification - The court would, rather than deq(aring ss.

12(6) and 15(6) unconstitutional, would read down\{hese provisions as having effect post-appointment rather than pre-appointment - Direction to legislature to suitably amend the provisions and direction to competent . -~ ' authority to frame rules - Constitution of India, 1950 - Art. 14.

Central/State Information Commissions - Character and structure of - The Information Commissions are quasi-judicial authorities or tribunals performing judicial functions - The Commission is vested with civil as well as penal powers - It is required to determine the disputes by striking a balance between right to privacy and right to information - The nature of functions of the Commission involves an adjudicatory process - It possesses the essential attributes and trappings of a court - Once Information Commission is held to be essentially a quasi-judicial forum, the Chief Information Commissioner and members of the Commission should b·e the persons possessing requisite qualification and experience in the field of Law and/or other specified fi~lds - The Commission to work in a bench of two i. e.

a Judicial member' and an expert member' - Appointment to the post of judicial member should be made in consultation' with the Chief Justice of India in case of Central Information Commission and with the Chief Justices of the High Courts of the respective States in case of State Information Commissions - The term experience in law and other specified field as enumerated ul ss.

12(5) and 15(5) of the Act would take within its ambit bothrequisite qualification as well as experience in that field -A Law Officer or a lawyer having twenty years of law practice and having experience of social work is also eligible for appointment as judicial member - For appointment as 0 Information Commissioners, the authority should prefer a ·y person who is or has been a judge of High Court - Chief Information Commissioner shall only be a person who is or has been Chief Justice of High Court or a Judge of Supreme Court - A panel of prospective members should be created by the Department of Personnel and Training or the concerned State level ministry and be placed before the High Powered Committee to make selections in accordance with s. 12(3) of the Act. First Appellate Authority Qualification Recommendation of Court that the qualification for the post should be degree in law and adequate knowledge and experience in the field of law.

Judicial Review: Determination of constitutionality of a statute - Principles • to be followed - While determining the constitutional validity of statute, court has to see the legislative competence and the provisions of the statute to be examined in the light of the provisions of the Constitution - No prejudice needs to be /l proved in cases of breach of fundamental rights - Even if two views are possible, one making the statute constitutional, the court to make efforts to uphold its constitutional validity - There is presumption of constitutionality in favour of legislation - The burden to prove that the enacted law offends fundamental rights is on the one who questions the constitutionality and shows that despite the presumption of constitutionality, the statue is unfair, unjust and unreasonable - Declaring the Law unconstitutional is one of the last resorts taken by courts - The ~ ·~ courts should prefer to put into service principles of 'reading down' or 'reading into'.

Judicial review of the orders of Information Commission - Nothing in the Right to Information Act can take away powers vested in u! Arts. 226 and 32 of the Constitution - The finality indicated ulss. 19(6) and (7) cannot be construed to oust the jurisdiction of higher courts despite the bar created u/s. 23 - 'f Right to Information Act, 2005. Constitution of India, 1950 - Right to Information - Nature of - Held: Right to freedom of Speech and Expression under Article 19(1)(a) encompasses the right to import and receive information - This right is not an unlimited or unrestricted right - It is subject to statutory and constitutional limitations. Words and Phrases - 'Quasi-judicial - Meaning of -t The petitioner filed the present writ petition under Article 32 of the Constitution as a PIL questioning the constitutional validity of sub- sections (5) and (6) of s. 12 and sub-sections (5) and (6) of s.

15 of theRight to Information Act, 2005, which primarily deal with the eligibility criteria for appointment to the posts of Chief Information Commissioners and Information > Commissioners at the Central level as well as State level. Partly allowing the writ petition, the Court HELD: 1. 1. The Constitution of India expressly confers upon th~ courts thepower 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. The courts have exercised the power of judicial review, beyond legislative competence, but within the specified limitations. Whilethe court gives · immense weightage to the legjslative 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 ofconstitutionality which is stated to. be. nothing but a. formal test . of rationality. [Para 7] [34-F-H] Supreme Court. Advo.

cates on Record Association and Ors. v. Union oflndia (1993)4SCC 441: 1993 (2) Suppl. SCR 659 ~ followed. 1. 2. In determining the constitutionality or validity of 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. [Para 9] [35-C-D] Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625: 1981 (1) SCR 206 - followed. 1. 3. 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, 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 the light of the provisions of the Constitution (e.

g. Part Ill), NAMIT SHA~MA v.. UNION OF INDIA 5 regardless of how it is actually administered or is capable of being administered. [Para 13) [37-D-E] · 1. 4. No prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of fundamental right itself renders the impugned action 8 void. [Para 12) [37-C] A. R. Antulayv. R. S. Nayak and Anr. (1988)2 SCC 602:1988 (1) Suppl. SCR 1 ·~ referred to. ~ 1. 5. 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 provision to be unconstitutional. [Para 19) [41-E) 0 Government of Andhra Pradesh and Ors. v. Smt. P. '( Laxmi Devi (2008) 4 SCC 720: 2008 (3) SCR 330 - relied on. 1. 6.

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. [Para 19] [41-F-G] 1. 7. 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 a_t 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. [Para 20) [41-G-H; 42-A] -J. ~ 1. 8.

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' 8 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 riot prohibit the prescription of reasonable rules for selection or of qualifications for appointment, except, where the classification is on the face of it, unjust. [Para 40) [55-B-D] Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248: 1978 (2) SCR 621 - relied on. 1. 9. There is presumption of constitutionality in favour of legislation. The legislature has . the power to carve out a classification which is based upon intelligible 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 Ill 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. [Para 46] [57-C-D] 1. 10. 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 w9uld 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. [Para 47) [57-D-F] 1. 11.

When the law making power of a State is restricted by a written fundamental law, then any law 8 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. [Para 37) [52-H; 53-A-C] K. Karunakaran v. State of Kera/a and Anr. (2000) 3 SCC 761: 2000 (2) SCR 735 - relied on. 1. 12.

It is a settled canon of constitutional jurisprudence that the doctrine of classification is 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. 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.. ·wt;iom. its prov. isions. are to apply · -L and leave it to the discretion of the Government or administr~ti:ve authority to select such-persons or ~llings, '• having regard to,t.

he principle or poli~y laid doVtn by the. Legislature. [Para 14] [38-D-H] · 8 UC of India v. Consumer Education and Research Centre (1995) 5 SCC 482: 1995 (1) Suppl: SCR 349 referred to. 1. 13. Article 14 forbids class legislation but does not forbid reasonable classification which means : It must be based on reasonable and intelligible differentia; and such differentia must be on a rational basis. It must have nexus to the object of the Act. The basis of judging whether the institutional reservation, fulfils the above-mentioned o criteria, should be a) there is a presumption of constitutionality; b) the burden of proof is upon the writ y petitioner's, the person questioning the constitution'ality of the provisions; c) there is a presumption as regard the States' power on. tt;ie extent of its legislative competence; d) hardship of few cannot be the basis of determining the validity of any statute. [Paras 15 and 16] [39-A-D] • • ' - ' ; i • •'' Ram Krishna Dalmia v. Justice S. R.

Tendo/kar AIR 1958 SC 538:1959 SCR 279; Budhan Chodhry v. State of Bihar AIR 1955 SC 191:1955 SCR 1045; Atam Prakash Ii. State. of Haryana and Ors. (1986) 2 sec 249: 1986 (1) SCR 399; Hinsa V~rodhak Sangh. v.. Mtizapur Moti Kuresh Jamata and Ors. (2()08) 5 sec 3~: 2008 (4) SCR 1020 - referred to. ' ' 1. 14. Classification, means segregation in classes which have a systematic relation usually found in common properties and characteristics. It postulates a rational basis and does notmean herding together of certain persons and clas. ses arbitrarily. The differentia which· is tile basis of the classification and the object of the Act are distinct things and what is necessary is that· NAMIT SHARMA v. UNION OF. 11\fDIA 9 I · there must be a nexus between them. The basis of testing constitutionality, particularly on. the ground· of discrimination~ should· not· be made by· raising presumption that the: authorities are acting in an arbitrar}r · manner. No classification can be arbitrary.

One of the known concepts 'of constitutionarinterpretation 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. [Para 37] [53-E-H; 54-A-BJ ,. ,, ... · 0 •·• Welfare Association of Allottees of: Reside'ritial ' Premises; Maharashtra v. Ranjit P. ' Gohil (2003),9 sec 358: 2003 (2) SCR 139 ~relied on. '", . · . , , ··· · , . . '·'' . ' 1. 15. The rule of equality or equal protection does not . require that a State must choose between attacking -E every aspect of a' problem or not attacking the problem at all, and particularly with 'respect to social welfare . programme. So !

ong as the ~ine drawn,;_by'the:State is . rationally supportable, ~he, Courts will not interpose, their judgment as to the appropriate stopping point. A statute , is not invalid because it might havegone 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 t,o the legislative mind.. A classification based . on experience was a reasonable ·G classification, and' that it had. a rational nexus. toJhe · object thereof and to hold otherwise would be detrimental to the. interest of the service itself. : [Para 38] [54-C·E] ,- '· -· ( . i ; . -, . . • : - ' - '. ' '' . State of UP ·and Orit v: J. P. Chaurasia and Ors. · (1989) ' ' ' ' : I: ' ' •• ;; ' ·• ' .. 1 SCC121: 1988 (3) Suppl. SCR 288 - relied on. 1. 16.

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 8 facts and circumstances of the case in order to judge the validity of a classification. Intelligible differentia and rational nexus are the twin tests of reasonable classification. [Para 38] [54-F-G] State of Jammu Kashmir v. Sh. Triloki Nath Khosa and Ors. (1974) 1SCC 19: 1974 (1) SCR 771 - relied on. 1. 17. If the law deals equally with members of a well defined class, it is not open to the cbarge of denial of equal protection. There may be cases where even a 0 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. [Para 39] [54-H; 55-A] Constutional Law of India by H. M. Seervai (Fourth Edition) Vol. 1 - referred t. o. 2. 1.

The 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. The Right to Information was harnessed as a tool for promoting development; strengthening the democratic governance and effective delivery of socio-economic services. 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. Public interest is better served by effective application of the right to information. [Paras 1 and 22] [29-D-F; 42-F] .. --+ Secretary, Ministry of Information and Broadcasting, Government of India and Ors. v. Cricket Association of Bengal ~ and Anr. (1995) 2 sec 161: 1995 (1) SCR 1036 - relied on. "Freedom of Information" By Justice V. R. Krishna Iyer referred to. 2. 2.

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, 0 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 authorities to declare sucti 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. [Para 33] [51-B-F] .. A- 2. 3. The Right to Freedom of Speech and Expression enshrined under Article 19(1 )(a) of the Constitution of --< India encompasses the right to impart and receive - information. Despite the absence of any express mention of the word 'information' in the Constitution under Article +-.. . 19(1 )(a), this right has stood incorporated therein by the interpretative process by this Court. 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 terms or otherwise. One finds glimpses of the right to information of the citizens and obligations of the State to disclose I such information in various other laws, for example, Sections 74 to 78 of the Evidence Act, 1872 and Section Jr 25(6) of the Water (Prevention and Control of Pollution) Act, 1974. [Para 1 and 24] [29-E; 44-D-G] 'Commentary on the Right to Information Act' (2006) by Dr. J. N. Barowa/ia - referred to. 2. 4. 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 t- 2005. [Para 34] [51-G-H] ,, 2. 5. Nothing in the Act of 2005 can take 1away the powers vested in the High Court under Article 226 of the Constitution and of this Court under Article 32. The finality indicated in ss. 19(6) and 19(7) cannot be ~ ... construed to oust the jurisdiction of higher courts, despite the bar created u/s. 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. [Para 29] [49-E] .. ·L. Chandra Kurnar vs. Union of India and Ors. (1997) 3 sec 261: 1997 (2) SCR 1186 - relied on. 3. 1.

The provisions of Section 12(5) of 2005 Act do not discuss the basic qualification needed, but refer to two components: (a) persons of eminence in public life; 8 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 resulting in the introduction of the element of arbitrariness or discrimination. 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. If the 0 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.. [Paras 48 and 57] [57-G-H; 62-E-F] . 3. 2.

The principles like 'reading into' and/or 'reading down' have to be applied while: interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. In order to satisfy the test of constitutionality, the Court vvill 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 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 Information Commission as it can tilt the balance of justice either way. [Paras 58 and 103] [63-D-E; 89-A-C] -4... 3. 3.

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 8 well as 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 the )r· same is capable of being clarified by framing appropriate rules in exercise of powers of the Central Government u/ s. 27 of the Act of 2005. 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 0 judicial pronouncements. [Paras 57 and 59] [62-G-H; 63- y A-B, F] 3. 4.

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, it is held and declared that the expression t- 'knowledge and experience' appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice -'! ( as well as ensuring better administration of justice by the Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission.

This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof. [Para 106] [92-A-E] 4. 1. 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. 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 '"r 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. [Para 49] [58-E- H; 59-A-B] 4. 2. No Rules have been brought to the notice of the Court which even intend to explain the vagueness and inequality explicit in the language of Section 12(6). If the -4 ' language of Sections 12(5) and 12(6) are read together, the provisions under sub-Section (6) appear to be in conflict with those under sub-Section (5) and would result in defeating the provisions of sub-Section (5) of Section 12 to some extent. [Para 49] [59-C-F] 4. 3. The legislature is required to exercise its power ,, x in conformity with the constitutional mandate, particularly contained in Part Ill 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. [Para 50] (59-G-H; 60-A] 4. 4. 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, the Court 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 o Commissioner/ Information Commissioner at any level and he will cease to hold any office of profit or carry any y business or pursue any profession that he did prior to such appointment.

As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, the Court would prefer to read these provis. ions as having effect 'post-appointment'. 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. [Paras 53 and 106] (60-G-H; 61-A; 92-F-G] 5. 1. 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 accordant"~ with the statutory provisions and the scheme of the Act of 2005. 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 or apprehension or prosecution of the offenders and whether it would cause unwarranted invasion qf 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. Thus, 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. ·[Para 0 98] [86-B-H] 5. 2.

Besides separation of powers, the independence of judiciary is of fundamental constitutional value in the structure of Indian 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. [Para 101] (88-B-C] Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 17 - relied on. • ' 5. 3. 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.

[Para 102] [88- -L, D-E] 5. 4. 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 8 '. 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 pass reasoned '(' orders. [Para 97] [85-F-H; 86-A] Siemens Engineering and Manufacturing Co. of India Ltd. v.

Union of India and Anr. (1976) 2 SCC 981: 1976 Suppl. SCR 489; Assistant Commissioner, Commrcial Tax Department Works Contract and Leasing, Kofa v. Shukla and Brothers (2010) 4 SCC 785: 2010 (4) SCR 627 - relied on. 5. 5. Under the provisions of the Act, particularly, ~ Sections 4, 12, 18, 19, 20, 22, 23 and 25, the Central o:r .. _ 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 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. [Para 59] (63-G-H; 64-A-C] "The Judicialisation of 'Administrative' Tribunals in the UK : from Hewart to Leggatt" by Gavin Drewry - referred to. 5. 6.

The nature of functions of the Information Commission involves an adjudicatory process where parties are required to be heard, appropriate directions are to be issued, the 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 indispen~able facetS, i. e. ; grant ofnotice, grant of hearing and passing of reasoned orders. Thus, the authorities under the Act of 2005 and the Tribunals are discharging quasi-judicial functions. [Para 70) (68-G-H; 69-A-B] Indian National Congress (/} v. Institute of Social Welfare and Ors. (2002) 5 sec 685: 2002 (3) SCR 1040 - relied on. 5. 7. The Legislature, in its wisdom, has provided for two appeals under the 2003 Act.

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 20 SUPREME COURTREPORTS [2013] 13 S. C. R principles of natural justice. Higher also is the public --l. 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 8 Court or the Supreme Court in exercise of the Court's jurisdiction under Article 226 and/or Article 32 of the Constitution, respectively. [Para 75) (72-H; 73-A-B] 5. 8. An authority is described as quasi-judicial when it has some attributes or trappings of judicial provisions but not all. 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 0 system. They adjudicate matters of serious consequences. The Commission may be called upon to y decide how far the right to information is affected where information sought for is denied or whether the information asked 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. 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. (Para 72) [69-F-H; 70-A-F) Gobind v. State of Madhya Pradesh and Anr. (1975) 2 SCC 148: 1975 (3) SCR 946; Ram Jethmalani and Ors. v. A-- Union of India (2011) 8 SCC 1: 2011 (8) SCR 725 - relied on. 5. 9. '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'. The expression 'quasi judicial' has been termed to be one which stands midway 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 quasijudicial.

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-judici~I authority/tribunal performing judicial functions. [Paras 73 and 74) [70-G; 72- B-D] . State of Himachal Pradesh and Ors. v. Raja Mahendra Pal and Anr. 1995 Supp (2) sec 731 - relied on. . 'Advanced Law Lexicon' (3rd Edn. , 2005) by P. Ramanathan Aiyar - relied on. 5. 10.

Once it is held thatthe 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. [Para 80) [76-C] L. Chandra Kumar v. Union of India (1997) 3 SCC 261: 1997 (2) SCR 1186 - followed. Bharat Bank Ltd. , Delhi v. Employees of Bharat Bank and Ors. 1950SCR 459: AIR 1950 SC 188; S. P. Sampath Kumar v. Union of India (1987) 1 SCC 124: 1987 (1) SCR 435; Union of India v. Madras Bar Association [(2010) 11 SCC 1: 2010 (6 ) SCR 857 - relied on. 5. 11. In terms of sub-Section (5) of ss. 12 and 15 of the Act, 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 0 knowledge and experience in law and other specified fields.

The term 'experience in law' is an expression of composite content and would take within its ambit both the requisite qualification in law as well as experience in the field of law. 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 knowl. edge and experience in other fields would have to be construed as experience coupled with basic educational qualification in that field. [Para 93) [83-A-C, E-F] State of Madhya Pradesh v. Dharam Bir (1998) 6 SCC 165: 1998 (3) SCR 511 - referred to. 5. 12.

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 p. eople 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. Participation by qualified persons from other specified fields would be a positive contribution in attainment of 0 the proper administration of justice as well as the object of the Act of 2005.

Such an approach would help to withstand the challenge to the constitutionality of Section 12(5). [Para 103) (89-D-G] 6. 1. Once it is 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. Section 12(3) of the Act 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. [Para 104) (89-H; 90-A-BJ • 6. 2.

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. 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. [Para 104] [90-C-D] 6. 3.

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 0 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. 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 . ;particutar :class of:persons stated u/s. 12(5), but must cover per-sons. from all fields. Complete information, material and comparative data of the empanelled persons should be made available to the High Powered Committee. The High Powered Committee itself has to adopt a fair and transparent process for consideration of the empanelled persons for its firial recommendation. The selection process should be commenced at least three months prior to the occurrence of vacancy. [Paras 104 and 106] [90-E-H; 91-A-C; 95-A] 6. 4.

The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a 'judicial member', while the other an 'expert member'. The judicial member should be a person possessing a degree in law, having a judicially 0 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. 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. [Para 106] [93-G-H; 94-A-C] 6. 5.

The Court directed that the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act 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. The Central Government and/or the competent authority is directed to 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 the date of the judgment. [Para 106] [92-H; 93-A-C] L. Chandra Kumar v. Union of India (1997) 3 SCC 261: 1997 (2) SCR 1186 - followed. Centre for PIL and Anr. v. Union of India and Anr. (2011) 4 sec 1: 2011 (4) SCR 445 - relied on. j.. 7. 1.

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 subdistrict level. The Assistant Public Information Officers are to perform dual 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 lnform·ation Officer. Thus, no specific requirement is mandated for designating an officer at the sub-divisional or subdistrict level. There is also no qualification or experience required of these designated officers to whom the first appeal would lie u/s. 19(1) of the Act. [Para 87] [79-H; 80- A-E, F·G] 7. 2. The functions of the Chief Information Commissioner and Information Commissioners may be 8 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. [Para 99] (87-0-E] 8. The Information Commission is bound by the law of precedence, i. e. , judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the 1 Commission, the Commission is directed to 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. [Para 106] [95-0-F] Case Law Reference: 1995 (1) SCR 1036 relied on Para 1 '>· 1993 (2) Suppl. SCR 659 followed Para 8 1981 (1) SCR 206 followed Para 9 1988 (1) Suppl. SCR 1 referred to Para 12 1995 (1) Suppl. SCR 349 referred to Para 14 1959 SCR 279 referred to Para 17 1955 SCR 1045 referred to Para 17 1986 (1) SCR 399 referred to Para 18 2008 (4) SCR 1020 referred to Para 19 2008 (3) SCR 330 relied on Para 19 1997 (2) SCR 1186 relied on Para 29 2000 (2) SCR 735 relied on Para 37 2003 (2) SCR 139 relied on Para 37 1988 (3) Suppl.

SCR 288 relied on Para 38 1974 (1) SCR 771 relied on Para 38 1978 (2) SCR 621 relied on Para 40 'Y ' 2002 (3) SCR 1040 relied on Para 71 1975 (3) SCR 946 relied on Para 72 2011 (8) SCR 725 relied on Para 72 1995 Supp (2) sec 731 relied on Para 74 1950 SCR 459 relied on Para 80 1987 (1) SCR 435 relied on Para 80 ~ 2010 (6) SCR 857 relied on Para 80 1997 (2) SCR 1186 followed Para 81 1998 (3) SCR 511 referred to Para 94 1976 (0) Suppl. SCR 489 relied on Para 97 2010 (4) SCR 627 relied on Para 97 -J,_ (2010) 11 sec 11 relied on Para 101 1997 (2) SCR 1186 followed Para 104 2011 (4) SCR 445 relied on Para 104 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 210 of 2012. Under Article 32 of the Constitution of India. Amit Sharma, Rahul Jain for the Petitioner. A. S. Chandiok, ASG, R. K. Rathore, Rekha Pandey, B. V. Bairam Das for the Respondent. The Judgment of the Court was delivered by 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 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 Y2 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: r "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 r 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 balances on the working of the public servants, yet the criterion ..

L 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 1 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 appointment to the respective posts under the Act of 2005 would· be unconstit:.. itional, 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) x. 14 SCC 107]; L. Chandra Kumar v. Union of India ((1997) 3 1 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 i ' 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) . -1.. _ 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 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 y' 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 a/ia 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 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 ,.

J,_ 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 1 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 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 -ladjudication. (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 provisions would have to be read y 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 y 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 Courl Advocates on Record Association & Ors. v. Union of India [(1993) 4 SCC 441], is the theory that the Constitution which is the fundamental law 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 oflndia & 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 Ill 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 passage of time, the law developed and the grounds for unconstitutionality also widened. O. D. Basu in the 'Shatter 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·111 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 rthe 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. g1, 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) y' 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(paras31, 36), or was prompted 'A_ . by some improper motive. (Ref. Rehman Shagoo v. State of J & K, AIR 1960 SC 1(6); 1960 (1) SCR 681) r (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 8 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. Violation of a fundamental right itself renders the impugned action void {Ref. A. R. Antulay v. R. S. Nayak & Anr. [(1988) 2 sec 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 Ill), 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 0. 0. 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) 1sec614 (667) (para 13), MUKHERJEE, C. J. made an unguarded statement, viz. , that "In judging the Constitutional validity of the Act, . ,. l_ the subsequent events, namely, how the Act has worked out, have to be looked into. " 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 ·y the doctrine of classification is a subsidiary rule evolved by courts to give practical content to the doctrine of equality. Overemphasis 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. L/C of India v. Consumer Education & Research Centre [(1995) 5 sec 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 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 0 deter! Tiining 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 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 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 whether 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 ofAndhra Pradesh & Ors. v. Smt. P. Laxmi Devi [(2008) 4 SCC 720], introduced "'1 a rule for exercise of such jurisdiction by the courts stating that th~ 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 i 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. 20. In order to examine the constitutionality or otherwise of a statute or any of its provisions, one of the most relevant J-, 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-avis 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 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 y 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. r · 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 anji-earning, legal remedies for combating gender bias etc. , have overtime, made significant contributions to the well being of poor people.

It is also felt that this right and the laws relating ,k 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. " -i ... 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 0 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 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 r- 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 tha.

t 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