Sections 12(5), 12(6), 15(5), and 15(6) of the Right to Information Act 2005 address the requirements of and restrictions on individuals appointed to Information Commissions (para. 2). Original petitioner Namit Sharma alleged that the eligibility criteria were nonetheless vague and ultra vires the Constitution (para. 2). In September 2012, the Supreme Court decided Namit Sharma v. Union of India, holding that Information Commissions are judicial tribunals performing “functions of wide magnitude,” including functions of judicial and quasi-judicial nature (para. 4). Moreover, the Information Commission “is a judicial tribunal having the essential trappings of a Court” (para. 5), and disclosure of information may “involve the question of prejudice to a third party” (para. 4). As such, the court “read into” the Act a “judicial mind” requirement: to be appointed to the Information Commissions, an individual must “possess [the] judicial acumen and experience” requisite “to fairly and effectively deal with the intricate questions of law that would come up for determination before the Information Commission” (para 5). Among the grounds for this holding was the upholding of two fundamental constitutional values, “separation of powers and […] independence of judiciary” (para. 5).
Practical concerns arose about the difficulty of implementing the judgment. Namely, it would be difficult to find a large number of competent judges to be appointed in Information Commissions across the country, and retired judges could become “in the race” for appointment. Others pointed out that carrying out the judgment would require immediate changes to the Right to Information Act, and the Supreme Court failed to give any time frame for the implementation. An overwhelming number of the Members of the Parliament were also opposed to the idea of amending the Act.
As a result of the reactions, the government filed a review petition with the Supreme Court contesting several parts of the decision. Several submissions echoed a general view that the court had made a “patent error of law” (para. 9). Although Information Commissioners have a “duty to act judicially and perform quasi-judicial functions,” they claimed, Commissioners do not necessarily have to have “the experience and acumen of judicial officers” (para. 9). It was also alleged that “Information Commissioners do not perform functions which prior to the Act were vested in courts” and therefore do not need “judicial background/judicial training/judicial experience” (para. 11).
The question before the court was whether its previous reading into the Right to Information Act of a judicial experience requirement constituted “an error apparent on the face of the record” (para. 18).
The court began by clarifying the specific powers possessed by Information Commissioners pursuant to Sections 18, 19, and 20 of the Act (para. 20). “It will be clear from the plain and simple language” of those provisions, the court concluded, that the Information Commissioner has the power to “receive and inquire into a complaint from any person who is not able to secure information from a public authority, […] decide appeals against the decisions of […] Information Officers […] and impose a penalty only for the purpose of ensuring that the correct information is furnished to a person seeking information from a public authority” (para. 20).
These functions, the court then concluded, were not so much judicial functions as administrative ones (para. 21). Specifically, in deciding “whether a citizen should or should not get a particular information ‘which is held by or under the control of any public authority,’” the Information Commission does not perform the judicial function of “decid[ing] a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority” (para. 20). The court clarified that, in carrying out its administrative functions, the Information Commission must of course “act in a fair and just manner following the procedure laid down in […] the Act” (para. 23). However, the court rejected the notion that acting in such a manner requires judicial experience, training, and acumen (para. 23). And while the principles of separation of powers and independence of judiciary would require that judicial power be exercised by individuals with judicial experience, training, and acumen, the Information Commissions do not exercise judicial powers (para. 24). The powers exercised by the Information Commissions “were not earlier vested in the High Court […] or any other court and are not in any case judicial powers” (para. 24). With respect to the argument about third party rights, the court found that the work of the Information Commission does not involve deciding the rights of a third party but rather “whether the information which is held by or under the control of a public authority in relation to or supplied by that third party could be furnished to a citizen under the provisions of the Act” (para. 22).
The court then pointed out flaws in its previous arguments. The previous judgment had “read into” the Act “missing words” and requirements, as otherwise the relevant sections of the Act “are bound to offend the doctrine of equality” (para. 26). The court took issue with this explanation on two grounds. First, this “reading into” of words not intended by Parliament is “contrary to the principles of statutory interpretation recognized by this Court” (para. 26). Second, the court did not agree that Sections 12(5) and 15(5) of the Act “offend the doctrine of equality,” as they do not “discriminate against any person in the matter of appointment” (para. 27). Nor do Sections 12(6) and 15(6) offend the doctrine of equality, as they should be interpreted to mean that an individual, once appointed as a Chief Information Commissioner or Information Commissioner, “cannot continue to be a Member of Parliament or Member of the Legislature,” so as to avoid any potential conflict of interest (para. 28).
Although the court acknowledged that there may have been valid concerns about individuals appointed to the Information Commissions not having “the required mind to balance the interests indicated in the Act,” the court concluded it was ultimately “for Parliament to consider” whether appointment required judicial experience (para. 31).
Original judgment of the Court (2012).
Review petition submitted by the government (unofficial source).
Review judgment of the Court (2013).