Supreme Court allows Namit Sharma review petition; Rules Information Commissioners need not be judicial officers

The Supreme Court in a landmark judgment today allowed the review petition filed in the Namit Sharma case. A Bench of Justices AK Patnaik and AK Sikri held that it is not necessary to have judicial officers alone as the members of Central or State Information Commissions and that a decision in this regard must be taken by the Parliament..While turning down the challenge to the vires of Sections 12(5) and 15(5) of the Right to Information Act, the Court also interpreted Sections 12(6) and 15(6) to the effect that MPs and MLAs can be appointed Information Commissioners provided they cease to hold the office of profit and cease to be affiliated to any political party after their appointment. The Court, however, also held that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act should be considered for appointment as Information Commissioner and Chief Information Commissioner. It also directed that in matters involving intricate questions of law, the Chief Information Commissioner should ensure that the matter is heard by an Information Commissioner who has wide knowledge and experience in the field of law..Holding that the Information Commission discharges administrative functions and not judicial functions the Court held that.“Once the Court is clear that Information Commissions do not exercise judicial powers and actually discharge administrative functions, the Court cannot rely on the constitutional principles of separation of powers and independence of judiciary to direct that Information Commissions must be manned by persons with judicial training, experience and acumen or former Judges of the High Court or the Supreme Court.”.The Court also stated that.“any direction by this Court for appointment of persons with judicial experience, training and acumen and Judges as Information Commissioners and Chief Information Commissioner would amount to encroachment in the field of legislation………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.”.The review petition [RP (c) 2309/2012] was filed by the Union government (via Department of Personnel and Training) against the Supreme Court judgment of Namit Sharma v. Union of India (2013 (1) SCC 745) delivered by Justices AK Patnaik and Swatanter Kumar on September 13, 2012..In the said judgment, the Court while observing that the Information Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi- judicial’ nature, held that only a sitting or retired Chief Justice of a High Court or a Supreme Court judge could head the Central and State Information Commissions. The Court had also held that lawyers with over twenty years of work experience will also be eligible for appointment as a member and all such decisions will be taken after consultations with the CJI and Chief Justice of the respective High Courts..The judgment had come under heavy criticism from a number of quarters, including retired members of the judiciary as well as retired RTI functionaries..The Central government had sought a review of the judgment on the ground that the directions of the Court not only flew in the face of the provisions of the Right to Information Act, 2005 (RTI Act) but may also end up defeating the very basic purpose behind the RTI Act: to allow citizens to access information in a relatively non-technical and simple manner..Subsequently, while hearing an interim application filed by former Information Commissioner Shailesh Gandhi and activist Aruna Roy, the Supreme Court had stayed the part of the judgment in Namit Sharma which mandated that only a sitting or retired Chief Justice of a High Court or a Supreme Court judge could head the Central and State Information Commissions..Additional Solicitor General AS Chandhiok represented Union government. Additional Advocate General Manish Singhvi appeared for the State of Rajasthan while Advocate Amit Sharma represented the respondent Namit Sharma..Full text of the judgment is given below.