NAMIT SHARMA v. UNION OF INDIA

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 H 12 SUPREME COURT REPORTS [2013) 13 S.C.R. A 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 B otherwise. 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 7 4 to 78 of the Evidence Act, 1872 and Section 25(6) of the Water (Prevention and Control of Pollution) c 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 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] D E F G H +-.. . • I Jr " - t- ,, ~ ... ,, , .. NAMIT SHARMA v. UNION OF INDIA 13 · L. Chandra Kurnar vs. Union of India and Ors. (1997) 3 A sec 261: 1997 (2) SCR 1186 - relied on. 8

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; 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 C 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 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] . 0

3.2. The principles like 'reading into' and/or 'reading E 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 F 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 G 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 H . >- 14 SUPREME COURT REPORTS (2013] 13 S.C.R. A justice either way. [Paras 58 and 103] [63-D-E; 89-A-C] -4 ... 8

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 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 C 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 judicial pronouncements. [Paras 57 and 59] [62-G-H; 63- A-B, F] 0 F E

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 '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 G 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 H public confidence in the working of the Commission. )r· y t- -'!( - NAMIT SHARMA v. UNION OF INDIA 15 This is the obvious interpretation of the language of these A 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 B 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 c 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 D been the intent of law. It is also not clear as to what classification the framers of the Act intended to lay down. The classification does not appear to have any nexus with the object of the Act. There is no intelligible differentia to support such classification. [Para 49] [58-E- H; 59-A-B] E

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 language of Sections 12(5) and 12(6) are read together, F 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 G 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) H -;. .. '"r -4 ' ,, x 16 SUPREME COURT REPORTS [2013] 13 S.C.R. A 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] B

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 c 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 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 E 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 F 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 G 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 H y !'( - NAMIT SHARMA v. UNION OF INDIA 17 is required. to record a definite satisfaction whether A 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 B 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 c 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 Impartiality, Indian Constitution. independence, fairness and reasonableness in judicial E 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 . F

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 G 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 H • ' .., ' 18 SUPREME COURT REPORTS [2013] 13 S.C.R. A have the faith that justice would be done. [Para 102] [88- -L, D-E] 8

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 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 c 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- D judicial bodies is gradually becoming faint, even the administrative bodies are required to pass reasoned orders. [Para 97] [85-F-H; 86-A]