. .,1._ NAMIT SHARMA v. UNION OF INDIA

The Judgment of the Court was delivered by c 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 G 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 H

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A 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, B 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 c 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 D 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 E 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 F 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

NAMIT SHARMA v. UNION OF INDIA 31 [SWATANTER KUMAR, J.]

..L balances on the working of the public servants, yet the criterion 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 c 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) 1 x. 14 SCC 107]; L. Chandra Kumar v. Union of India ((1997) 3 F )"" 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 G 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 H

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A 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 B 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, c 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 D 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 y' business or pursuing any profession.

E 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, F 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 G 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 :

NAMIT SHARMA v. UNION OF INDIA 33 [SWATANTER KUMAR, J.]

.>-. (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. B

(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. c (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. D

1 (iv) This vagueness and uncertainty is bound to 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 H

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A consistent with the recognised principles of -l- adjudication.

(vii) Apart from specifying a high powered committee for appointment to these posts, the Act of 2005 B 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. >, c (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 courts the power of judicial review. The courts, as regards the y 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. H

.

NAMIT SHARMA v. UNION OF INDIA 35 [SWATANTER KUMAR, J.]

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 C 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 D 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. E

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 F 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, G 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: H

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A 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 the relevant legislature by the distribution of powers r- B 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 )-. c 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 D 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 E 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)

F 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 G 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) H r

NAMIT SHARMA v. UNION OF INDIA 37 [SWATANTER KUMAR, J.]

>- (b) That the law contravenes some constitutional A 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 c 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 D 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 E 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). F "(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 G 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 H

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A "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 B 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 c 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. 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. (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.

H

NAMIT SHARMA v. UNION OF INDIA 39 [SWATANTER KUMAR, J.]

15. Article 14 forbids class legislation but does not forbid A reasonable classification which means :

(i) It must be based on reasonable and intelligible differentia; and

(ii) Such differentia must be on a rational basis. B

(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) C 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 deter!Tiining the validity of any statute. · 0

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 E 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: F "(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; G (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; H

40 SUPREME COURT REPORTS [2013] 13 S.C.R.

A (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; B (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 c 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 D (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 E 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." F

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.

NAMIT SHARMA v. UNION OF INDIA 41 [SWATANTER KUMAR, J.] issues. Referring to the object of such adjudicatory process, A > 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 B question whether a statute offends Article 14. of the Constitution we must also consider whether a 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." c

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 of Andhra Pradesh D & 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 E 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 F 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 G 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 H

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A particular provision so as to find out its ultimate impact vis-a- vis the constitutional provisions. Therefore, we must examine the contemplations leading to the enactment of the Act of 2005.

(A) SCHEME. OBJECTS AND REASONS

B 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 c 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

NAMIT SHARMA v. UNION OF INDIA 43 [SWATANTER KUMAR, J.]

poor people. It is also felt that this right and the laws relating A ,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. B

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 c 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 D

- Geneva in 1948.

Article 19 of the Universal Declaration of Human Rights says: E "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 F -i regardless of frontiers." ... 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 G 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 H

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A 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 B 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 c 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 Evidence Act, 1872 give right to a person to know about the r- 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) G 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 H by any person interested in or affected by such outlet, land or

NAMIT SHARMA v. UNION OF INDIA 45 [SWATANTER KUMAR, J.]

premises, as the case may be. Dr. J.N. Barowalia in A ---+· '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 B 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 information and lack of knowledge of decision-making processes. He remains ignorant and unaware of the process which virtually affects his interest. c Government procedures and regulations shrouded in the veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning the officers handling their cases because of the latter's snobbish attitude. Right to information should be guaranteed and needs to be D given real substance. In this regard, the Government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded.

25. The Government of India had appointed a Working E Group on Right to Information and Promotion of Open and Transparent Government under the Chairmanship of Shri H.D. Shourie which was asked to examine the feasibility and need for either full- fledged Right to Information Act or its introduction -f in a phased manner to meet the needs of an open and F responsive Government. This group was also required to examine the framework of rules with reference to the Civil Services (Conduct) Rules and Manual of Office Procedure. This Working Group submitted its report in May 1997. G

26. In the Chief Ministers Conference on 'Effective and ):.. Responsive Government' held on 24th May, 1997, the need to enact a law on the Right to Information was recognized unanimously. This conference was primarily to discuss the measures to be taken to ensure a more effective and H

46 SUPREME COURT REPORTS [2013] 13 S.C.R.

A responsive government. The recommendations of various -~ Committees constituted for this purpose and awareness in the Government machinery of the significance and benefits of this freedom ultimately led to the enactment of the 'Freedom of Information Act, 2002' (for short, the 'Act of 2002'). The B proposed Bill was to enable the citizens to have information on a statutory basis. The proposed Bill was stated to be in accord with both Article 19 of the Constitution of India as well as Article 19 of the Universal Declaration of Human Rights, 1948. This is how the Act of 2002 was enacted. c 27. In terms of the Statement of Objects and Reasons of the Act of 2002, it was stated that this law was enacted in order to make the government more transparent and accountable to the public. It was felt that in the present democratic framework, free flow of information for citizens and non-Government D institutions suffers from several bottlenecks including the existing legal framework, lack of infrastructure at the grass root level and an attitude of secrecy within the Civil Services as a result of the old framework of rules. The Act was to deal with all such aspects. The purpose and object was to make the government more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. '\-

28. After the Act of 2002 came into force, there was a definite attempt to exercise such freedom but it did not operate fully and satisfactorily. The Civil Services (Conduct) Rules and the Manual of the Office Procedure as well as the Official Secrets Act, 1923 and also the mindset of the authorities were implied impediments to the full, complete and purposeful ~ achievement of the object of enacting the Act of 2002. Since, with the passage of time, it was felt that the Act of 2002 was neither sufficient in fulfilling the aspirations of the citizens of India H

NAMIT SHARMA v. UNION OF INDIA 47 [SWATANTER KUMAR, J.] nor in making the right to freedom of information more progressive, participatory and meaningful, significant changes to the existing law were proposed. The National Advisory Council suggested certain important changes to be incorporated in the said Act of 2002 to ensure smoother and greater access to information. After examining the suggestions of the Council and the public, the Government decided that the Act of 2002 should be replaced and, in fact, an attempt was made to enact another law for providing an effective framework for effectuating the right to information recognized under the Article 19 of the Constitution. The Right to Information Bill was introduced in terms of its statements of objects and reasons c to ensure greater and more effective access to information. The Act of 2002 needed to be made even more progressive, participatory and meaningful. The important changes proposed to be incorporated therein included establishment of an D appellate machinery with investigative powers to review the '-r. decision of the Public Information Officer, providing penal ' provisions in the event of failure to provide information as per law, etc. This Bill was passed by both the Houses of the Parliament and upon receiving the assent of the President on 15th June, 2005, it came on the statute book as the Right to E Information Act, 2005.

SCHEME OF ACT of 2005 (COMPARATIVE ANALYSIS OF ACT OF 2002 AND ACT OF 2005} --+ F

29. Now, we may deal with the comparative analysis of these two Acts. The first and the foremost significant change was the change in the very nomenclature of the Act of 2005 by replacing the word 'freedom' with the word 'right' in the title of the statute. The obvious legislative intent was to make seeking of prescribed information by the citizens, a right, rather than a G ~. mere freedom. There exists a subtle difference when people perceive it as a right to get information in contra-distinction to it being a freedom. Upon such comparison, the connotations of the two have distinct and different application. The Act of H

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A 2005 was enacted to radically alter the administrative ethos and culture of secrecy and control, the legacy of colonial era and bring in a new era of transparency and accountability in governance. In substance, the Act of 2005 does not alter the spirit of the Act of 2002 and on the contrary, the substantive provisions like Sections 3 to 11 of both the Acts are similar except with some variations in some of the provisions. The Act of 2005 makes the definition clause more elaborate and comprehensive. It broadens the definition of public authority under Section 2(h) by including therein even an authority or body or institution of self-government established or constituted by a notification issued or order made by the appropriate- Government and includes any body owned, controlled or substantially financed by the Government and also non- governmental organization substantially financed by the appropriate Government, directly or indirectly. Similarly, the 0 expression 'Right to Information' has been defined in Section 20) to include the right to inspection of work, documents, records, taking certified samples of material, taking notes and extracts and even obtaining information in the form of floppies, tapes, video cassettes, etc. This is an addition to the important E step of introduction of the Central and State Information Commissions and the respective Public Information Officers. Further, Section 4(2) is a new provision which places a mandatory obligation upon every public authority to take steps in accordance with the requirements of clause (b) of sub- F Section (1) of that Section to provide as much information suo moto to the public at regular intervals through various means of communication including internet so that the public have minimum resort to use of this Act to obtain information. In other words, the aim and object as highlighted in specific language G of the stat1,.1te is that besides it being a right of the citizenry to seek information, it was obligatory upon the State to provide information relatable to its functions for the information of the public at large and this would avoid unnecessary invocation of such right by the citizenry under the provisions of the Act of

H 2005. Every authority/department is required to designate the

NAMIT SHARMA v. UNION OF INDIA 49 [SWATANTER KUMAR, J.]

Public Information Officers and to appoint the Central A Information Commission and State Information Commissions in accordance with the provisions of Sections 12 and 15 of the Act of 2005. It may be noticed that under the scheme of this Act, the Public Information Officer at the Centre and the State Levels are expected to receive the requests/applications for B providing the information. Appeal· against decision of such Public Information Officer would lie to his senior in rank in terms of Section 19(1) within a period of 30 days. Such First Appellate Authority may admit the appeal after the expiry of this statutory period subject to satisfactory reasons for the delay c being established. A second appeal lies to the Central or the State Information Commission, as the case may be, in terms of Section 19(3) within a period of 90 days The decision of the Commission shall be final and binding as per Section 19(7). Section 19 is an exhaustive provision and the Act of 2005 on its cumulative reading is a complete code in itself. However, nothing in the Act of 2005 can take away the powers vested in the High Court under Article 226 of the Constitution and of this Court under Article 32. The finality indicated in Sections 19(6) and 19(7) cannot be construed to oust the jurisdiction of higher courts, despite the bar created under Section 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. Reference in this regard can be made to the decision of a Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India and Ors. [(1997) 3 SCC 261]. F

30. Exemption from disclosure of information is a common provision that appears in both the Acts. Section 8 of both the Acts open with a non-obstante language. It states that notwithstanding anything contained in the respective Act, there G shall be no obligation to give any citizen the information specified in the exempted clauses. It may, however, be noted that Section 8 of the Act of 2005 has a more elaborate exemption clause than that of the Act of 2002. In addition, the Act of 2005 also provides the Second Schedule which H

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A enumerates the intelligence and security organizations -l.. established by the Central Government to which the Act of 2005 , shall not apply in terms of Section 24. '

31. Further, under the Act of 2002, the appointment of the Public Information Officers is provided in terms of Section 5 and B there exists no provision for constituting the Central and the State Information Commission. Also, the Act does not provide • any qualifications or requirements to be satisfied before a ' person can be so appointed. On the other hand, in terms of A. Section 12 and Section 15 of the Act of 2005, specific c provisions have been made to provide for the constitution of and eligibility for appointment to the Central Information Commission or the State Information Commission, as the case may be.

D 32. Section 12(5) is a very significant provision under the scheme of the Act of 2005 and we shall deal with it in some y' •·- elaboration at a subsequent stage. Similarly, the powers and ' functions of the Authorities constituted under the Act of 2005 are conspicuous by their absence under the Act of 2002, which E under the Act of 2005 are contemplated under Section 18. This ...._ section deals in great detail with the powers and functions of the Information Commissions. An elaborate mechanism has been provided and definite powers have been conferred upon the authorities to ensure that the authorities are able to ,- I,...

implement and enforce the provisions of the Act of 2005 }-- F adequately. Another very significant provision which was non- existent in the Act of 2002, is in relation to penalties. No '\. provision was made for imposition of any penalty in the earlier Act, while in the Act of 2005.$evere punishment like imposition of fine upto Rs.250/- per day during which the provisions of the Act are violated, has been provided in terms of Section 20(1). The Central/State Information Commission can, under Section 20(2), even direct disciplinary action against the erring Public Information Officers. Further, the appropriate Government and ;...._ - the competent authority have been empowered to frame rules under Sections 27 and 28 of the Act of 2005, respectively, for

NAMIT SHARMA v. UNION OF INDIA 51 [SWATANTER KUMAR, J.] carrying out the provisions of the Act. Every rule made by the A Central Government under the Act has to be laid before each House of the Parliament while it is in session for a total period of 30 days, if no specific modifications are made, Jhe rules shall thereafter have effect either in the modified form or if not annulled, it shall come into force as laid. B

'· 33. Gre.ater transparency, promotion of dtizen-Qovemment partnership, greater accountability and reduction in corruption are stated to tie the salient features of the Act of 2005. Development and proper implementatitin ,of essential and constitutionally protected laws such as Mahatma Gandhi Rural C Guarantee Act, 2005, Rightto 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,. including efficiency, operation of the government, optimum use of limited f' 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 such information suo mo to .. 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. " . · · F ' . . ; j - • ' ' - . ·· .. 34. The Right to lnfon:nation, like any other right, is not an unlimited or unrestricted righL 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 G of the Act. Other provisions require that informatiO(l 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 1o of the Act of 2005. H

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35Copy pinpoint35. Neither the Act of 2002 nor the Act of 2005, under its J..._ repeal provision, repeals the Official Secrets Act, 1923. The Act of 2005 only repeals the Freedom of Information Act, 2002 in terms of Section 31. It was felt that under the Official Secrets Act, 1923, the entire development process had been shrouded B in secrecy and practically the public had no legal right to know as to what process had been followed in designing the policies affecting them and how the programmes and schemes were being implemented. Lack of openness in the functioning of the Government provided a fertile ground for growth of inefficiency ).. c and corruption in the working of the public authorities. The Act of 2005 was intended to remedy this widespread evil and provide appropriate links to the government. It was also expected to bring reforms in the environmental, economic and health sectors, which were primarily being controlled by the Government. D

36Copy pinpoint36. The Central and State Information Commissions have r played a critical role in enforcing the provisions of the Act of 2005, as well as in educating the information seekers and providers about their statutory tights and obligations. Some E section of experts opined that the Act of 2005 has been a useful statutory instrument in achieving the goal of providing free and effective information to the citizens as enshrined under Article 19(1 )(a) of the Constitution. It is true that democratisation of information and knowledge resources is critical for people's F empowerment especially to realise the entitlements as well as 'r ' to augment opportunities for enhancing the options for improving the quality of life. Still of greater significance is the inclusion of privacy or certain protection in the process of disclosure, under the right to information under the Act. G Sometimes, information ought not to be disclosed in the larger public interest.

37Copy pinpoint37. The courts have observed that when the law making power of a State is restricted by a written fundamental law, then any law enacted, which is opposed to such fundamental law, H

NAMIT SHARMA v. UNION OF INDIA 53 [SWATANTER KUMAR, J.]

being in excess of fundamental authority, is a nullity. Inequality A 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 B 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. {Ref. K. c Karunakaran v. State of Kera/a & Anr. [(2000) 3 SCC 761]}. To raise the plea of Article 14 of the Constitution, the element of discrimination and arbitrariness has to be brought out in clear terms. The Courts have to keep in mind that by the process of classification, the State has the power of determining who should be regarded as a class for the purposes of legislation and in relation to law enacted on a "' I particular subject. The power, no doubt, to some degree is likely to produce some inequality but if a law deals with liberties of a number of individuals or well defined classes, it is not open of the charge of denial of equal protection on the ground that has no application to other persons. Classification, thus, means segregation in classes which have a systematic relation usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain ~ persons and classes arbitrarily, as already noticed. The F ., differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The basis of testing constitutionality, particularly on the ground of discrimination, :should not be made by raising a presumption that the authorities G are acting in an arbitrary manner. No classification can be A arbitrary. One of the known concepts of constitutional interpretation 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. H

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