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To,

Honorable Shri Altamas Kabir, The Chief Justice of India, The Supreme Court of India,

Tilak Marg, New Delhi 110 001. Honorable Shri Pranav Mukherjee, The President of India, Rashtrapati Bhawan, New Delhi 110 004. Honorable Shri Mohammad Hamid Ansari, The Vice President of India, New Delhi 110 001. Room No. 208, Parliament House Annexure,

Honorable Dr. Manmohan Singh, The Prime Minister of India, Room No. 122, South Block, New Delhi 110 001. Honorable Shri Salman Khurshid, The Ministry of Law and Justice, New Delhi 110 001. Honorable Mrs. Sushma Swaraj, The Leader of the Opposition, 8, Safdarjung Lane, New Delhi 110 001.
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Room No. 402A, Wing Shastri B,

Honorable Sir / Madam,

Date: 01 10 2012.

The Supreme Court has passed a decision as on 13th of September, 2012 in WP(C) 210 of 2012, Namit Sharma v/s. Union of India.

If the order & directions given by the Honorable Judges in the said

Supreme Court Judgment were to be implemented, then, Senior Retired

High Court & Supreme Court Judges, post-retirement, in their new role as Information Commissioners, would be working for Quasi-Judicial Bodies and as such their decisions may then be subjected to the scrutiny &

appellate review before the Sitting Judges of (Judicial) Courts, which will result into violation of the letter & spirit of the provisions of Article 124(7) & Article 220 of the Constitution of India, as follows:

1. Please find quoted below, the relevant law points (Emphasis added): Judgment;

(a) Points from the order & directions of the said Supreme Court

(c) Provision of Right to Information Act, 2005; (a) Relevant points from the order & directions of the said Supreme Court Judgment: Point No. 6, Page No. 103 of the Order & Directions of the said Supreme Court Judgment:

(b) Provisions of the Constitution of India:

proposition of law that the Commission is a judicial tribunal performing functions of judicial as well as quasi-judicial nature and having the trappings of a Court. It is an important cog and is part of

"We are of the considered view that it is an unquestionable

the court attached system of administration of justice, unlike a


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ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration."

Supreme Court Judgment:

Point No. 8, Page No. 104, of the Order & Directions of the said

prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. Chief Information

We are of the considered view that the competent authority should

Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India. (b) The relevant provisions of the Constitution of India: Article 124 (7) of the Constitution of India lays down that: "No person who has held office as a Judge of the Supreme Court shall of India." plead or act in any court or before any authority within the territory

Article 220 of the Constitution of India lays down that: "No person who, after the commencement of this Constitution, has

held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts."

(c) Section 23 of the Right to Information Act, 2005: No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.
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2. To summarize the aforesaid law points: As per the Order & Directions of the said Supreme Court Judgment: An "Information Commission" is a judicial tribunal performing functions of judicial as well as quasi-judicial nature and having the trappings of a Court. It is an important cog and is (Point No. 6 of the said SC Judgment).

part of the court attached system of administration of justice Retired High Court Judges should be preferred as Information

Commissioners (Point No. 8 of the Order of the said SC Judgment).

shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India (Point No. 8 of the Order of the said SC Judgment). As per the Constitution of India:

Chief Information Commissioner at the Centre or State level

Article 124(7) very clearly & EXPLICITLY lays down that, no shall plead or act in any court or before any authority within the territory of India.

person who has held office as a Judge of the Supreme Court

Likewise, Article 220 very clearly & EXPLICITLY lays down that, no person who has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. As per RTI Act, 2005:

There is a bar of jurisdiction of courts in respect of any order made under the RTI Act.

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3. Hierarchical positions of a Quasi-Judicial Body i.e. an Information Commission viz-a-viz an appropriate (Judicial Body) Court of the Government: Information Commissions are Statutory, Independent &

Autonomous bodies. Their decisions / orders passed under the RTI Act were barred from the jurisdiction of courts by the legislature under section 23 of the RTI Act, and as such their decisions / orders could not be subjected to an appellate review before any courts (authority) in India.

But, since, the courts under their power of judicial review, have overruled the legislated section 23 of the RTI Act, the Statutory, orders can now be subjected to an appellate review before the appropriate Courts of the Government. Independent & Autonomous Information Commissions decisions /

passed by the Courts cannot be appellate reviewed before a QuasiJudicial body like Information Commissions.

But vice-versa is not true, which is, that the decisions / orders

appellate reviewed before an appropriate (Judicial) Court.

Hence, hierarchically, a Quasi-Judicial Bodys decision > can be

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4. Letter & Spirit (intent) of the said relevant provisions of the Constitution of India: A law is a piece of writing which lays down the intent; kindly go through the following excerpts of Article 124(7) & 220: 124 (7) - before any authority within the territory of India. 220 - before any authority in India except the Supreme Court and the other High Courts. Now, the only difference between Article 124(7) pertaining to Supreme Court Judges & Article 220 pertaining to High Court Judges is Ranking of a position to be held thereafter. the consideration for the Ranking of a position already held, and the Therefore, the basic intent of the said Articles is that, once a particular ranking position is held in the Judiciary, one should not be holding a position which is effectively below that ranking position,

And one of the reasons for that could be, that once a person who is decision becomes the law of the land cannot be participating in decisions, either by way of pleading (e.g. lawyer) or by way of acting
petition; Ref: http://legal-dictionary.thefreedictionary.com/ACT), which can

empowered to pronounce a judgment under Art. 141, whereby his

(Legal dictionary meaning - for a court to make a decision and rule on a motion or

then be subjected to an appellate review before the Sitting Judges of a court in India, a completely paradoxical situation!

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5. Thus, the order & directions of the said Supreme Court judgment results into violations of the provisions of Constitution of India, as follows: of the Constitution of India (emphasis added): within the territory of India; Again revisiting the following excerpts from the Article 124(7) & 220 124(7) - shall plead or act in any court or before any authority 220 shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. Now given that, Information Commissions, the Quasi Judicial Bodies falling under the domain of the Executive branch of the Government, have been very clearly considered as a judicial tribunal and a court attached system of administration of justice, by the said Supreme Court judgment.

And, moreover, given that the Courts have overruled the legislated

section 23 of the RTI Act, and as such, the decisions / orders of Statutory, Independent and Autonomous Information Commissions can now be subjected to an appellate review before an appropriate Court of the Government. Hence, if the said Supreme Court judgment were to be implemented,

then, Senior Retired High Court & Supreme Court judges in their role as Information Commissioners would be working for Quasi-Judicial Bodies whose decisions would be subject to the scrutiny & appellate review before the Sitting Judges of a High Court & the Supreme Court.

Thus, both the letter & spirit of the said Constitutional provisions shall stand violated, if a judge of a High Court or the Supreme Court were to act in a Quasi-Judicial body,
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6. The following scenario is likely to emerge in the day-to-day functioning of Information Commissions constituted under section 12(1) & 15(1) of the Right to Information Act, 2005: Given the rising popularity of the Right to Information Act, 2005, quite a few decisions of Information Commissions may be subjected to an appellate review before the (Judicial) Courts.

Thereby, creating embarrassing situations for the Senior Retired High

Court & Supreme Court Judges, wherein their judgments given as Information Commissioners, may quite regularly, get subjected to an appellate review before the Sitting Judges of a (Judicial) Court. This will affect the independence of judiciary, as follows: Senior Retired Judge by deciding a case differently in an appellate subjectivity creeping into the review proceedings. It may also be a case, where a Sitting Judge may not want to offend a

review, and as such, there is a possibility of an element of And so, even though an appellate review may have been an

absolutely just & fair one, it would still leave a possible room for right & reasonable-minded people to go away thinking that a Judge may have been biased.

As Lord Denning would have put it in Metropolitan Properties Co (FGC) Ltd v. Lannon [I9691 1 Q.B. 577: The court will not inquire whether he did in fact, favour one side unfairly. Suffice in that reasonable people might think he did. The reason is plain enough. when right-minded people go away thinking: The judge was biased.
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Justice must be rooted in confidence: and confidence is destroyed

Our forefathers envisaged this possibility and therefore very explicitly provided for it in Article 124(7) & 220 of the Constitution 7. I would like to take this opportunity to bring to your kind notice, of India.

similar existing violations of the Constitution of India, which also needs to be Examined & Set Right, for the same reasons that have been mentioned herein above: The Consumer Protection Act, 1986 in Section 20(1): "20. (1) The National Commission shall consist of,-

(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President."

The Human Rights Act, 1993 in Section 3: "3. (2) The Commission shall consist of-

(a) A Chairperson who has been a Chief Justice of the Supreme Court; (b) One Member who is, or has been, a Judge of the Supreme Court;"

8. I hereby kindly request you to do the needful in the interest of natural justice and to uphold the sanctity of the Constitution of India by addressing these paradoxical situations that may be created by the

implementation of the said Supreme Court Judgment, whereby the decisions of the Senior Retired Supreme Court & High Court Judges the Supreme Court. would be appellate reviewed by the Sitting Judges of the High Court & Thanking you, Yours truly, Sd/ Sunil Ahya. 098200 71606 sunilahya@gmail.com

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