Case: Union Of India Vs. Namit Sharma

of Mr. Sharma, learned counsel for the respondent- writ petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been 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 and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extracted hereinbelow: “27. Power to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.” The use of word “may” in Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]28. Sections 12(6) and 15(6) of the Act, however, provide that the Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carry on any business or pursue any profession. There could be two interpretations of Sections 12(6) and 15(6) of the Act. One interpretation could be that a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession will not be eligible to be considered for appointment as a Chief Information Commissioner and Information Commissioner. If this interpretation is given to Sections 12(6) and 15(6) of the Act, then it will obviously offend the equality clause in Article 14 of the Constitution as it debars such persons from being considered for appointment as Chief Information Commissioner and Information Commissioners. The second interpretation of Sections 12(6) and 15(6) of the Act could be that once a person is appointed as a Chief Information Commissioner or Information Commissioner, he cannot continue to 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 remain connected with any political party or carry on any business or pursue any profession. If this interpretation is given to Sections 12(6) and 15(6) of the Act then the interpretation would effectuate the object of the Act inasmuch as Chief Information Commissioner and Information Commissioners would be able to perform their functions in the Information Commission without being influenced by their political, business, professional or other interests. It is this second interpretation of Sections 12(6) and 15(6) of the Act which has been rightly given in the judgment under review and Sections 12(6) and 15(6) of the Act have been held as not to be violative of Article 14 of the Constitution. Therefore, the argument of Mr. Sharma, learned counsel for the respondentwrit petitioner, that if we do not read Sections 12(5) and 15(5) of the Act in the manner suggested in the judgment under review, the provisions of Sections 12(5) and 15(5) of the Act would be ultra vires the Article 14 of the Constitution, is misconceived.29. In the judgment under review, in direction no.5, the Central Government and/or the competent authority have been 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 and with particular reference to Sections 27 and 28 of the Act within a period of six months. Sections 27(1) and 28(1) of the Act are extractedPower to make rules by appropriate Government.—(1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.28. Power to make rules by competent authority.—(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of thisuse of wordin Sections 27 and 28 of the Act make it clear that Parliament has left it to the discretion of the rule making authority to make rules to carry out the provisions of the Act. Hence, no mandamus can be issued to the rule making authority to make the rules either within a specific time or in a particular manner. If, however, the rules are made by the rule making authority and the rules are not in accordance with the provisions of the Act, the Court can strike down such rules as ultra vires the Act, but the Court cannot direct the rule making authority to make the rules where the Legislature confers discretion on the rule making authority to make rules. In the judgment under review, therefore, this Court made a patent error in directing the rule making authority to make rules within a period of six months.30. Nonetheless, the selection and appointment of Chief Information Commissioner and Information Commissioners has not been left entirely to the discretion of the Central Government and the State Government under Sections 12 and 15 of the Act. Sections 12(3) and 15(3) provide that the Chief Information Commissioner and Information Commissioners shall be appointed by the President or the Governor, as the case may be, on the recommendation of the Committee named therein. Sections 12(5) and 15(5) provide that Chief Information Commissioner and Information Commissioners have to be persons of eminence in public life with wide knowledge and experience in the different fields mentioned therein, namely, law, science and technology, social service, management, journalism, mass media or administration and governance. Thus, the basic requirement for a person to be appointed as a Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life with wide knowledge and experience in a particular field. Parliament has insisted on this basic requirement having regard to the functions that the Chief Information Commissioner and Information Commissioners are required to perform under the Act. As the preamble of the Act states, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also requires that corruption is contained and Governments and their instrumentalities are held accountable to the governed. The preamble of the Act, however, cautions that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Moreover, under the Act, a citizen has the right to information held or under the control of public authority and hence Information Commissioners are to ensure that the right to privacy of person protected under Article 21 of the Constitution is not affected by furnishing any particular information.31. Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or Information Commissioners or that the persons appointed answer the criteria laid down in Sections 12(5) and 15(5) of the Act but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience of the functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review to appoint judicial members in the Information Commissions. But it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States. Accordingly, wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissions, he will ensure that the matter is heard by an Information Commissioner who has such knowledge and experience in law.32. Under Order XL of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact.