106. For the elaborate discussion and reasons afore-recorded, we pass the
following order and directions:
1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held
to be constitutionally valid, but with the rider that, to give it a
meaningful and purposive interpretation, it is necessary for the Court
to ‘read into’ these provisions some aspects without which these
provisions are bound to offend the doctrine of equality. Thus, we hold
and declare that the expression ‘knowledge and experience’ appearing in
these provisions would mean and include a basic degree in the respective
field and the experience gained thereafter. Further, without any
peradventure and veritably, we state that appointments of legally
qualified, judicially trained and experienced persons would certainly
manifest in more effective serving of the ends of justice as well as
ensuring better administration of justice by the Commission. It would
render 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
3. As opposed to declaring the provisions of Section 12(6) and 15(6)
unconstitutional, we would prefer to read these provisions as having
effect ‘post-appointment’. In other words, cessation/termination of
holding of office of profit, pursuing any profession or carrying any
business is a condition precedent to the appointment of a person as Chief
Information Commissioner or Information Commissioner at the Centre or
4. There is an absolute necessity for the legislature to reword or amend
the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We
observe and hope that these provisions would be amended at the earliest
by the legislature to avoid any ambiguity or impracticability and to make
it in consonance with the constitutional mandates.
5. We also direct that the Central Government and/or the competent
authority shall frame all practice and procedure related rules to make
working of the Information Commissions effective and in consonance with
the basic rule of law. Such rules should be framed with particular
reference to Section 27 and 28 of the Act within a period of six months
6. We are of the considered view that it is an unquestionable proposition
of law that the Commission is a ‘judicial tribunal’ performing functions
of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings
of a Court. It is an important cog and is part of the court attached
system of administration of justice, unlike a ministerial tribunal which
is more influenced and controlled and performs functions akin to the
machinery of administration.
7. It will be just, fair and proper that the first appellate authority
(i.e. the senior officers to be nominated in terms of Section 5 of the
Act of 2005) preferably should be the persons possessing a degree in law
or having adequate knowledge and experience in the field of law.
8. The Information Commissions at the respective levels shall henceforth
work in Benches of two members each. One of them being a ‘judicial
member’, while the other an ‘expert member’. The judicial member should
be a person possessing a degree in law, having a judicially trained mind
and experience in performing judicial functions. A law officer or a
lawyer may also be eligible provided he is a person who has practiced law
at least for a period of twenty years as on the date of the
advertisement. Such lawyer should also have experience in social work.
We are of the considered view that the competent authority should prefer
a person who is or has been a Judge of the High Court for appointment as
Information Commissioners. Chief Information Commissioner at the Centre
or State level shall only be a person who is or has been a Chief Justice
of the High Court or a Judge of the Supreme Court of India.
9. The appointment of the judicial members to any of these posts shall be
made ‘in consultation’ with the Chief Justice of India and Chief Justices
of the High Courts of the respective States, as the case may be.
10. The appointment of the Information Commissioners at both levels should
be made from amongst the persons empanelled by the DoPT in the case of
Centre and the concerned Ministry in the case of a State. The panel has
to be prepared upon due advertisement and on a rational basis as afore-
11. The panel so prepared by the DoPT or the concerned Ministry ought to be
placed before the High-powered Committee in terms of Section 12(3), for
final recommendation to the President of India. Needless to repeat that
the High Powered Committee at the Centre and the State levels is expected
to adopt a fair and transparent method of recommending the names for
appointment to the competent authority.
12. The selection process should be commenced at least three months prior
to the occurrence of vacancy.
13. This judgment shall have effect only prospectively.
14. Under the scheme of the Act of 2005, it is clear that the orders of the
Commissions are subject to judicial review before the High Court and then
before the Supreme Court of India. In terms of Article 141 of the
Constitution, the judgments of the Supreme Court are law of the land and
are binding on all courts and tribunals. Thus, it is abundantly clear
that the Information Commission is bound by the law of precedence, i.e.,
judgments of the High Court and the Supreme Court of India. In order to
maintain judicial discipline and consistency in the functioning of the
Commission, we direct that the Commission shall give appropriate
attention to the doctrine of precedence and shall not overlook the
judgments of the courts dealing with the subject and principles
applicable, in a given case.
It is not only the higher court’s judgments that are binding
precedents for the Information Commission, but even those of the
larger Benches of the Commission should be given due acceptance and
enforcement by the smaller Benches of the Commission. The rule of
precedence is equally applicable to intra appeals or references in
the hierarchy of the Commission.
107. The writ petition is partly allowed with the above directions,
however, without any order as to costs. …………………………….,J.
[A.K. Patnaik] j [Swatanter Kumar]
September 13, 2012 Please take a glance of following link-