Uttarakhand High Court
Udham Singh Nagar Dugdha Utpadak ... vs Uttarakhand Information Commission ... on 12 January, 2018
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1491 of 2014
Udham Singh Nagar Dugdha Utpadak Sahkari Sangh Ltd.
....Petitioner
Versus
Uttarakhand Information Commission & others
....Respondents
With
Writ Petition (M/S) No. 1492 of 2014
Udham Singh Nagar Dugdha Utpadak Sahkari Sangh Ltd.
....Petitioner
Versus
Uttarakhand Information Commission & others
....Respondents
Writ Petition (M/S) No. 1493 of 2014
Udham Singh Nagar Dugdha Utpadak Sahkari Sangh Ltd.
....Petitioner
Versus
Uttarakhand Information Commission & others
....Respondents
Writ Petition (M/S) No. 1494 of 2014
Udham Singh Nagar Dugdha Utpadak Sahkari Sangh Ltd.
....Petitioner
Versus
Uttarakhand Information Commission & others
....Respondents
Writ Petition (M/S) No. 1496 of 2014
Udham Singh Nagar Dugdha Utpadak Sahkari Sangh Ltd.
....Petitioner
Versus
Uttarakhand Information Commission & others
....Respondents
Mr. Lalit Belwal, Advocate for the petitioner(s).
Mr. B.S. Parihar, Standing Counsel for the State.
Judgment Reserved- 05.01.2018
Date of Judgment - 12.01.2018
Hon'ble Rajiv Sharma, J.
Since common questions of law and facts are involved in the above-titled writ petitions, hence the same are being taken up together and adjudicated by this 2 common judgment. In order to maintain clarity, the facts of WPMS No.1491 of 2014 have been taken into consideration.
2. "Key facts", necessary for the adjudication of these petitions, are that the respondent no.3 has sought the information from the petitioner vide application dated 05.03.2014.
3. Petitioner informed the respondent no.3 vide letter dated 14.03.2014 to receive the information after depositing the charges.
4. Respondent no.3 filed an appeal before the Appellate Authority bearing Appeal No.01 of 2014. The appeal was allowed by the Appellate Authority.
5. Thereafter, the petitioner filed second appeal before the Appellate Authority and the same was dismissed on 16.05.2014 by holding that the appeal could not be filed by the petitioner i.e. Managing Director.
6. The question which has fallen for consideration before this Court is whether the second appeal could be filed by the petitioner under Section 19 of the Right to Information Act, 2005 (hereinafter to be referred as the Act, 2005).
7. The Right to Information Act, 2005 has been enacted to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith. It has come into force w.e.f.12.10.2005.
38. Section 2(a) of the Act, 2005 defines "appropriate Government".
9. Section 2(e) of the Act, 2005 defines "competent authority".
10. Section 2(h) of the Act, 2005 defines "public authority".
11. Section 2(j) of the Act, 2005 defines "Right to Information".
12. Section 2(k) of the Act, 2005 defines "State Information Commission".
13. Section 3 of the Act, 2005 deals with the subject to the provisions of this Act, all citizens shall have the right to information.
14. The obligations of public authorities have been laid down under Section 4 of the Act, 2005.
15. Designation of Public Information Officers is provided under Section 5 of the Act, 2005.
16. The information is required to be submitted under Section 6 of the Act, 2005.
17. The procedure of disposal of the request has been laid down under Section 7 of the Act, 2005.
18. Section 7(1) and Clause (a) of sub-Section 3 of Section 7 reads as under: -
"7. Disposal of request.-(1) Subject to the proviso to sub- section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the lift or liberty of a person, the same shall be provided within forty- eight hours of the receipt of the request.4
(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be shall send an intimation to the person making the request, giving-
(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the dispatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section."
19. According to the plain language of Section 19 of the Act, 2005, any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision file an appeal.
20. According to sub-Section 3 of Section 19 of the Act, 2005, the second appeal against the decision under sub-section (1) may be filed within ninety days from the date on which the decision was made.
21. It is thus, evident by harmonizing Section 19(1) and (3) that a person who does not receive a decision within the time specified in sub-section (1) or clause (a) of sub- section (3) of Section 7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer can file the first appeal and if he is not satisfied with the decision can file second appeal under sub-section (3) of Section 19.
22. The Public Information Officer is the quasi- judicial authority to decide the issue, raised before him. It is required to take a decision where the particular information sought is to be supplied to the citizen or not on the application moved under Section 6 of the Act, 2005 and 5 in case the decision is against the public authority, the public authority can also prefer appeal before the Central or the State Information Commissioner, as the case may be, against the decision of the concerned Information Commission and thereafter before the High Court in writ petition under Article 226/227 of the Constitution of India.
23. There is another flaw in the order passed by the first appellate authority. Respondent no.2 has only mentioned Appeal No.1 of 2014. Only one appeal was maintainable against the rejection of one application. The first appellate authority could not decide multiple applications in a single appeal.
24. In 2011 (15) SCC 1, in the case of "Chief Information Commissioner & another vs. State of Manipur & another", their Lordships of the Hon'ble Supreme Court have held that the nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Their Lordships have further held that the Right to Information Act, 2005 strengthens democracy through informed citizenry but at the same time balancing this ideal with overall State interest of preserving where confidentiality is required. Their Lordships have held as under:-
"6. As its Preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise 6 the conflicting interests of the Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal. The Preamble would obviously show that the Act is based on the concept of an open society.
7. On the emerging concept of an "open Government", about more than three decades ago, the Constitution Bench of this Court in State of U.P. v. Raj Narain1 speaking through Mathew, J. held: (SCC p. 453, para 74) "74. ... The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.* To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired." (AIR p. 884, para 74) (emphasis supplied)
8. Another Constitution Bench in S.P. Gupta v. Union of India2 relying on the ratio in Raj Narain1 held: (S.P. Gupta case2, SCC p. 275, para 67) "67. ... The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest." (AIR p. 234, para
66) (emphasis supplied)
9. It is, therefore, clear from the ratio in the above decisions of the Constitution Bench of this Court that the right to information, which is basically founded on the right to know, is an intrinsic part of the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution. The said Act was, thus, enacted to consolidate the fundamental right of free speech.
17. However, while considering the width and sweep of this right as well as its fundamental importance in a democratic republic, this Court is also conscious that such a right is subject to reasonable restrictions under Article 19(2) of the Constitution.
39. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is 7 aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act.
48. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the Information Officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time-bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.
49. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information."
25. In 2013 (1) SCC 745, in the case of "Namit Sharma vs. Union of India", their Lordships of the Hon'ble Supreme Court have held that commissions have trappings of tribunals functioning on court pattern, as opposed to being administrative bodied. Their Lordships have held as under: -
"39. 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.
40. Neither the Act of 2002 nor the Act of 2005, under their 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 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 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 8 health sectors, which were primarily being controlled by the Government.
41. The Central and State Information Commissions have 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 rights and obligations. Some 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 empowerment especially to realise the entitlements as well as 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. Sometimes, information ought not to be disclosed in the larger public interest.
52. The provisions of Section 12(5) 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 provisions require the persons to be of eminence and with knowledge in the stated fields. Knowledge and experience in these fields normally shall be preceded by a minimum requisite qualification prescribed in that field. For example, knowledge and experience in the field of law would presuppose a person to be a law graduate. Similarly, a person with wide knowledge and experience in the field of science and technology would invariably be expected to be at least a graduate or possess basic qualification in science and technology. The vagueness in the expression "social service", "mass media" or "administration and governance" does create some doubt. But certainly, this vagueness or doubt does not introduce the element of discrimination in the provision. The persons from these various walks of life are considered eligible for appointment to the post of Chief Information Commissioner and Information Commissioners in the respective Information Commissions. This gives a wide zone of consideration and this alleged vagueness can always be clarified by the appropriate Government in exercise of its powers under Sections 27 and 28 of the Act, respectively.
Constitutional validity of Section 12(6)
53. Similarly, as stated above, 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 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 profession. It is difficult to say what the person eligible under the provision should be doing and for what period. The section does not specify any such period. Normally, the persons would fall under one or the other unacceptable categories. To put it differently, 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, 9 while inclusion is uncertain. It creates a situation of confusion which could not have 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. Which class is intended to be protected and is to be made exclusively eligible for appointment in terms of Sections 12(5) and (6) is something that is not understandable. Wherever the legislature wishes to exercise its power of classification, there it has to be a reasonable classification, satisfying the tests discussed above. No rules have been brought to our notice which even intend to explain the vagueness and inequality explicit in the language of Section 12(6). According to the petitioner, it tantamounts to an absolute bar because the legislature cannot be stated to have intended that only the persons who are ideal within the terms of sub-section (6) of Section 12, would be eligible to be appointed to the post. If we read the language of Sections 12(5) and 12(6) together, the provisions under sub-section (6) appear to be in conflict with those under sub-section (5). Sub-section (5) requires the person to have eminence in public life and wide knowledge and experience in the specified field. On the contrary, sub-section (6) requires that the person should not hold any office of profit, be connected with any political party or carry on any business or pursue any profession. The object of sub-section (5) stands partly frustrated by the language of sub-section (6). In other words, sub-section (6) lacks clarity, reasonable classification and has no nexus to the object of the Act of 2005 and if construed on its plain language, it would result in defeating the provisions of sub-section (5) of Section 12 to some extent.
54. The legislature is required to exercise its power in conformity with the constitutional mandate, particularly contained in Part III 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) 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. It will be difficult for the Court to comprehend as to which class of persons is intended to be covered under this clause. The rule of disqualification has to be construed strictly. If anyone, who is an elected representative, in government service, or one who is holding an office of profit, carrying on any business or profession, is ineligible in terms of Section 12(6), then the question arises as to what class of persons would be eligible? The section is silent on that behalf.
55. The element of arbitrariness and discrimination is evidenced by the language of Section 12(6) itself, which can be examined from another point of view. No period has been stated for which the person is expected to not have carried on any business or pursued any profession. It could be one day or even years prior to his nomination. It is not clear as to how the persons falling in either of these classes can be stated to be differently placed. This uncertainty is bound to bring in the element of discrimination and arbitrariness.
56. Having noticed the presence of the element of discrimination and arbitrariness in the provisions of Section 12(6) of the Act, we now have to examine whether this Court 10 should declare this provision ultra vires the Constitution or read it down to give it its possible effect, despite the drawbacks noted above. We have already noticed that 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, we would prefer to interpret the provisions 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 Commissioner/Information Commissioner at any level and he will cease to hold any office of profit or carry on any business or pursue any profession that he did prior to such appointment. It is thus implicit in this provision that a person cannot hold any of the posts specified in sub-section (6) of Section 12 simultaneous to his appointment as Chief Information Commissioner or Information Commissioner. In fact, cessation of his previous appointment, business or profession is a condition precedent to the commencement of his appointment as Chief Information Commissioner or Information Commissioner. Constitutional validity of Section 12(5)
57. The Act of 2005 was enacted to harmonise the conflicting interests while preserving the paramountcy of the democratic ideal and provide for furnishing of certain information to the citizens who desire to have it. The basic purpose of the Act is to set up a practical regime of right to information for the citizens to secure and access information under the control of the public authorities. The intention is to provide and promote transparency and accountability in the functioning of the authorities. This right of the public to be informed of the various aspects of governance by the State is a prerequisite of the democratic value. The right to privacy too, is to be protected as both these rival interests find their origin under Article 19(1)(a) of the Constitution. This brings in the need for an effective adjudicatory process. The authority or tribunals are assigned the responsibility of determining the rival contentions and drawing a balance between the two conflicting interests. That is where the scheme, purpose and the object of the Act of 2005 attain greater significance.
58. In order to examine whether Section 12(5) of the Act suffers from the vice of discrimination or inequality, we may discuss the adjudicatory functions of the authorities under the Act in the backdrop of the scheme of the Act of 2005, as discussed above. The authorities who have to perform adjudicatory functions of quasi-judicial content are:
1. The Central/State Public Information Officer;
2. Officers senior in rank to the Central/State Public Information Officer to whom an appeal would lie under Section 19(1) of the Act; and
3. The Information Commission (Central/State) consisting of Chief Information Commissioner and Information Commissioners.
59. In terms of Section 12(5), the Chief Information Commissioner and Information Commissioners should be the persons of eminence in public life with wide knowledge in the prescribed fields. We have already indicated that the terminology used by the legislature, such as "mass media" or "administration and governance", are terms of uncertain tenor 11 and amplitude. It is somewhat difficult to state with exactitude as to what class of persons would be eligible under these categories.
60. The legislature in its wisdom has chosen 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. Suffice it to say, that if the legislature itself provides "knowledge and experience" as the basic criteria of eligibility for appointment, this per se, would not attract the rigours of Article 14 of the Constitution. On a reasonable and purposive interpretation, it will be appropriate to interpret and read into Section 12(5) that the "knowledge and experience" in a particular subject would be deemed to include the basic qualification in that subject. We would prefer such an approach than to hold it to be violative of Article 14 of the Constitution. 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 prerequisites for this section. Ambiguity, if any, resulting from the language of the provision is insignificant, being merely linguistic in nature and, as already noticed, the same is capable of being clarified by framing appropriate rules in exercise of powers of the Central Government under Section 27 of the Act of 2005. We are unable to find that the provisions of Section 12(5) suffer from the vice of arbitrariness or discrimination. However, without hesitation, we would hasten to add that certain requirements of law and procedure would have to be read into this provision to sustain its constitutionality.
61. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like "reading into" and/or "reading down" the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles 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. Rather the application of the provision would become more effective.
62. 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. In order to examine the scope of this provision and its ramifications on the other parts of the Act of 2005, it is important to refer back to the scheme of the Act. Under the provisions of the Act, particularly Sections 4, 12, 18, 19, 20, 22, 23 and 25, it is clear that the Central or State Information Commission, as the case may be, not only exercises adjudicatory powers of a nature no different than a judicial tribunal, but is vested with the powers of a civil court as well. Therefore, it is required to decide a lis, where information is required by a person and its furnishing is contested by the other. The Commission exercises two kinds of penal powers: firstly, in terms of Section 20(1), it can impose penalty upon the defaulters or violators of the provisions of the 12 Act and, secondly, Section 20(2) empowers the Central and the State Information Commission to conduct an enquiry and direct the disciplinary authority concerned to take appropriate action against the erring officer in accordance with law. Hence, the Commission has powers to pass orders having civil as well as penal consequences. Besides this, the Commission has been given monitoring and recommendatory powers. In terms of Section 23, the jurisdiction of the civil courts has been expressly barred.
72. The Information Commission, as a body, performs functions of wide magnitude, through its members, including adjudicatory, supervisory as well as penal functions. Access to information is a statutory right. This right, as indicated above, is subject to certain constitutional and statutory limitations. The Act of 2005 itself spells out exempted information as well as the areas where the Act would be inoperative. The Central and State Information Commissioners have been vested with the power to decline furnishing of an information under certain circumstances and in the specified situations. For disclosure of information, which involves the question of prejudice to a third party, the authority concerned is required to issue notice to the third party who can make a representation and such representation is to be dealt with in accordance with the provisions of the Act of 2005. This position of law in India is in clear contrast to the law prevailing in some other countries where information involving a third party cannot be disclosed without consent of that party. However, the authority can direct such disclosure, for reasons to be recorded, stating that the public interest outweighs the private interest. Thus, it involves an adjudicatory process where parties are required to be heard, appropriate directions are to be issued, the orders are required to be passed upon due application of mind and for valid reasons. The exercise of powers and passing of the orders by the authorities concerned under the provisions of the Act of 2005 cannot be arbitrary. It has to be in consonance with the principles of natural justice and the procedure evolved by such authority. Natural justice has three indispensable facets i.e. grant of notice, grant of hearing and passing of reasoned orders. It cannot be disputed that the authorities under the Act of 2005 and the tribunals are discharging quasi-judicial functions.
73. In Indian National Congress (I) v. Institute of Social Welfare32 the Court explained that where there are two or more parties contesting each other's claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority can be held to be quasi- judicial and the decision rendered by it as a quasi-judicial order. Thus, where there is a lis between the two contesting parties and the statutory authority is required to decide such a dispute, in absence of any other attributes of a quasi-judicial authority, such a statutory authority is a quasi-judicial authority. The legal principles which emerge from the various judgments laying down when an act of a statutory authority would be a quasi-judicial act are that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject, and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial.
1374. In other words, an authority is described as quasi-judicial when it has some attributes or trappings of judicial provisions but not all. In the matter before us, there is a lis. The request of a party seeking information is allowed or disallowed by the authorities below and is contested by both parties before the Commission. There may also be cases where a third party is prejudicially affected by disclosure of the information requested for. It is clear that the authorities concerned, particularly the Information Commission, possess the essential attributes and trappings of a court. Its powers and functions, as defined under the Act of 2005 also sufficiently indicate that it has adjudicatory powers quite akin to the court system. They adjudicate matters of serious consequences. The Commission may be called upon to decide how far the right to information is affected where information sought for is denied or whether the information asked for is "exempted" or impinges upon the "right to privacy" or where it falls in the "no-go area" of applicability of the Act. It is not mandatory for the authorities to allow all requests for information in a routine manner. The Act of 2005 imposes an obligation upon the authorities to examine each matter seriously being fully cautious of its consequences and effects on the rights of others. It may be a simple query for information but can have far-reaching consequences upon the right of a third party or an individual with regard to whom such information is sought. Undue inroad into the right to privacy of an individual which is protected under Article 21 of the Constitution of India or any other law in force would not be permissible. In Gobind v. State of M.P.33 this Court held that: (SCC p. 155, para 22) "22. ... privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior." In Ram Jethmalani v. Union of India34 this Court has observed that the right to privacy is an integral part of the right to life. Thus, the decision-making process by these authorities is not merely of an administrative nature. The functions of these authorities are more aligned towards the judicial functions of the courts rather than mere administrative acts of the State authority.
75. "Quasi-judicial" is a term which may not always be used with utmost clarity and precision. An authority which exercises judicial functions or functions analogous to the judicial authorities would normally be termed as "quasi-judicial". In Advanced Law Lexicon (3rd Edn., 2005) by P. Ramanatha Aiyar, the expression "quasi-judicial" is explained as under:
"Quasi-judicial.--Of, relating to, or involving an executive or administrative official's adjudicative acts. Quasi-judicial acts, which are valid if there is no abuse of discretion, often determine the fundamental rights of citizens. They are subject to review by courts. (Black's, 7th Edn., 1999) 'Quasi-judicial is a term that is ... not easily definable. In the United States, the phrase often covers judicial decisions taken by an administrative agency--the test is the nature of the tribunal rather than what it is doing. In England quasi-judicial belongs to the administrative category and is used to cover situations where the administrator is bound by the law to observe certain forms and possibly hold a public hearing but where he is a free agent in reaching the final decision. If the rules are 14 broken, the determination may be set aside, but it is not sufficient to show that the administration is biased in favour of a certain policy, or that the evidence points to a different conclusion....' [George Whitecross Paton, A Textbook of Jurisprudence 336 (G.W. Paton & David P. Derham, Eds., 4th Edn., 1972).] Describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of law (Oxford Law Dictionary, 5th Edn., 2003).
When the law commits to an officer the duty of looking into certain facts not in a way which it specially directs, but after a discretion in its nature judicial, the function is quasi-judicial.
Of or relating to the adjudicative acts of an executive or administrative official.
Sharing the qualities of and approximating to what is judicial; essentially judicial in character but not within the judicial power or function nor belonging to the judiciary as constitutionally defined. [Section 128(2)(i), CPC (5 of 1908).]"
76. This Court in State of H.P. v. Mahendra Pal35 held that the expression "quasi-judicial" has been termed to be one which stands midway a judicial and an administrative function. If the authority has any express statutory duty to act judicially in arriving at the decision in question, it would be deemed to be quasi-judicial. Where the function to determine a dispute is exercised by virtue of an executive discretion rather than the application of law, it is a quasi-judicial function. A quasi- judicial act requires that a decision is to be given not arbitrarily or in mere discretion of the authority but according to the facts and circumstances of the case as determined upon an enquiry held by the authority after giving an opportunity to the affected parties of being heard or wherever necessary of leading evidence in support of their contention. The authority and the tribunal constituted under the provisions of the Act of 2005 are certainly quasi-judicial authority/tribunal performing judicial functions."
26. Accordingly, the writ petitions are allowed. Orders, under challenge, are quashed and set-aside.
27. Pending application, if any, stands disposed of accordingly.
(Rajiv Sharma, J.) NISHANT