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PETITIONER:

R.K. JAIN

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/05/1993

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

PUNCHHI, M.M.

RAMASWAMY, K.

CITATION:

1993 AIR 1769 1993 SCR (3) 802

1993 SCC (4) 119 JT 1993 (3) 297

1993 SCALE (2)843

ACT:

%

Customs Excise and Gold Control Appellate Tribunal Members

(Recruitment and Conditions of Service) Rules, 1987: Rules

2c,3,6, 10.-CEGAT-President-Appointment of- Appointment of

senior Vice-President as President-Legality and validity of

-Appointment held valid but need for appointing a sitting or

retired High Court Judge as President emphasised-Need for

amendment of Rule 10(4) emphasised.

CEGAT-Writ in public interest-Allegation of mal-functioning

in CEGAT-Examination of allegation by a high level team

directed.

Indian Evidence Act, 1872: Sections 123, 124 and 162. State

Documents-Right of Government to claim immunity from

disclosure-Scope of-Claimfor immunity, should be supported

by affidavit by head of department indicating reasons for

claim-Oath of office secrecy adumberated in Article74(5) and

Schedule III of Constitution does not absolve Minister from

stating reasons in support of immunity-It is dun, of Court

and not executive to decide whether a document needs

immunity from disclosure.

Constitution of India, 1950:

Article 75(3) and Schedule III-Cabinet-Role and functions

of-Cabinet documents-Need for secrecy-,Extent of immunity

from disclosure.

Article 74 (2)-Scope of-Advice tendered by Ministers to

President-Bar of judicial review is to the factum of advice

tendered by Council of Ministers to President-but not to

record ie. material on which advice is founded.

Articles 323A and 323B-Tribunals set tip under-Need for a

study In, law Commission suggesting measures for improved

functioning of Tribunals emphasised.

803

Judicial Review-Is basic feature of Constitution-Cannot be

dispersed with by creating Tribunals tinder Articles 323A

and 323B of Constitution-Alternative Mechanism devised for

judicial review should be effective and efficient-Court's

anguish over in effectively of alternative mechanism devised

for judicial review expressed Appeal to a Bench of two

Judges of High Court over orders of Tribunal suggested.

Service Law-Selection-Rule conferring power on Central

Government to make appointment-Court cannot sit over the

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choice of selection.

Service Law-Challenge to legality of offending action-Only,

aggrieved person has locus-Third party, has no locus to

canvass the legality. of action.

Maxim: Salus Popules Cast Suprema Lax-Meaning of

HEADNOTE:

By a letter dated December 26, 1991 addressed to the Chief

Justice of India, the petitioner, Editor, Excise Law Times,

complained that ever since the retirement of president of

the Customs, Excise and Gold control Appellate Tribunal

(CEGAT) in 1985 no appointment of President was made as a

result of which the functioning of the Tribunal was

adversely affected. He also alleged malfunctioning in the

CEGAT and sought directions for immediate appointment of the

President as well as an enquiry into the mal-functioning of

CEGAT. The letter was treated as a Writ Petition in public

interest litigation and on February 25,1992, this Court

issued Rule Nisi to Union of India to make immediate

appointment of the President of CEGAT, preferably a senior

High Court Judge. After the directions were issued by this

Court, Respondent No. 3, who was initially appointed as

judicial Member and subsequently as Senior Vice-President of

the Tribunal, was appointed as President.

The petitioner filed another petition challenging the

appointment of President and sought to quash the same on the

grounds that (1) the appointment was in breach of judicial

order passed by this Court on February 25, 1992 because as

per the convention a sitting or retired Judge of the High

Court should have been appointed as President in

consultation with the Chief Justice of India; even though

High Court Judges were available no serious attempt was made

to requisition the services of one of them for appointment

as President; (2) before the Act was made a positive

commitment was made time and again by the Government on the

floor of the House that judicial independence of CEGAT is

sine qua non to sustain the confidence of the

804

litigant public. The appointment of any person other than

sitting or a retired judge of the High Court as President

would be in its breach; and (3) the appointment of

Respondent No. 3 as a Judge of the Delhi High Court was

turned down by Chief Justice of India doubting his

integrity, therefore appointment (of such a person as

President of CEGAT would undermine the confidence of the

litigant public in the efficacy of judicial adjudication.

even though Rules may permit such appointment.

The petitioner also prayed that Rules 10(1)(3) and (4) of

the CEGAT Members (Recruitment and Conditions of Service)

Rules, 1987 should be struck down as violative of Article 43

of the Constitution. the rules were ultra vires of the basic

structure of the Constitution, namely independence of

Judiciary. On May 4,1992 this Court issued Rule Nisi and on

the next date of bearing the relevant rile on which decision

regarding the appointment of President was made produced in

the Court but on behalf of the Union of India an objection

was taken by the Additional Solicitor General that this

Court cannot inspect the rile as he intended to claim

privilege`. Accordingly, pursuant to the directions given

by this Court that a formal application may be made setting

out the grounds on which the claim for privilege was

founded, the Finance Secretary and the Minister of State for

Finance filed affidavits claiming privilege under Sections

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123 and 124 of the Indian Evidence Act and Article 74 (2) of

the Constitution stating that the Government had no

(objection for the Court to peruse the rile but claimed

privilege to disclose the contents of the rile to the

petitioner.

On behalf of the Union of India it was contended that a

Cabinet SubCommittee approved the appointment of Respondent

No. 3 as President of CEGAT and by operation of Article

77(3) and 74(1), the appointment was made by the President.

The rile constitutes Cabinet documents forming part of the

preparation (if the documents leading to the formation of

the advice tendered to the President. Section'123 of the

Evidence Act and Article 74 (2) precluded this Court from

enquiring into the nature of the advice tendered to the

President and the documents were, therefore, immune from

disclosure. The disclosure would cause public injury

preventing candid and frank discussion and expression of

views by the bureaucrats at higher level and by the

Minister/Cabinet Sub-Committee causing serious injury to

public service.

On behalf of Respondent No.3 it was contended that (1) he

had an excellent and impeccable record of service without

any adverse remarks and dropping of his recommendation for

appointment as a Judge of Delhi High

805

Court could not be construed adverse 'to him; (2) the

Government had prerogative to appoint any member, or Vice

Chairman or Senior Vice President as President and

Respondent No.3 being the Senior Vice President, was

considered and recommended by the Cabinet Committee for

appointment. Hence he was validly appointed as President.

Disposing the petitions, this Court,

HELD: Per Ramaswamy, J.

1.The claim in the affidavits of the State Minister for

Finance and the Secretary for immunity of state documents

from disclosure is unsustainable. However, having perused

the file and given anxious considerations,the Court is of

the view that on the facts and circumstances of the case and

in the light of the view taken, it is not necessary to

disclose the contents of the records to the petitioner or

his counsel.

1.1.Section 123 of the Evidence Act gives right to the

Government to claim privilege, in other words immunity from

disclosure of the unpublished official state documents in

public interest. The initial claim for immunity should be

made through an affidavit generally by the Minister

concerned, in his absence by the Secretary of the department

or head of the Department indicating that the documents in

question have been carefully read and considered and the

deponent has been satisfied, supported by reasons or grounds

valid and germance, as to why it is apprehended that public

interest would be injured by disclosure of the document

summoned or called for. The claim for immunity should never

he on administrative routine nor be a garb to avoid in

convenience, embarrassment or adverse to its defence in the

action, the latter themselves a ground for disclosure.

1.2.When a claim for public interest immunity has been laid

for nondisclosure of the State documents, it is the

Minister's due discharge of duty to state on oath in his

affidavit the grounds on which and the reasons for which he

has been persuaded to claim public interest immunity from

disclosure of the State papers and produce them. He takes

grave risk on insistence of oath of secrecy to avoid filing

an affidavit or production of State documents and the Court

may be constrained to draw such inferences as are available

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at law. Accordingly the oath of office of secrecy

adumbrated in Article 75(4) and Schedule III of the

Constitution does not absolve the Minister either to state

the reasons in support of the public interest immunity to

produce the State documents or as to how the matter was

dealt with or for their production when discovery order nisi

or rule nisi was issued. On the other hand it is his due

806

discharge of the duty as a Minister to obey rule nisi or

discovery order nisi and act in aid of the Government.

Attorney General v. Jonathan Cape Ltd., 1976 Q.B. 752;

Sankey v. Whitlan, [1979] 53 A.L. R. 11 and Whitlam v.

Australian Consolidated Press, [1985] 60 A.L.R. 7, referred

to.

1.3. If the Court is satisfied from the affidavit and the

reasons assigned for withholding production or disclosure,

the Court may pass an appropriate order in that behalf If

the Court still desired to peruse the record for satisfying

itself whether the reasons assigned in the affidavit would

justify withholding disclosure, the court would, in camera,

examine the record and satisfy itself whether the public

interest subserves withholding production or disclosure or

making the documents as part of the record.

1.4. By operation of Section 162 of Evidence Act the final

decision in regard to the validity of an objection against

disclosure raised under Section 123 would always be with the

Court.

1.5. The Court is not bound by the statement made by the

Minister or the Head of the Department in the affidavit and

it retains the power to balance the injury to the State or

the public service against the risk of injustice.

The real question which the Court is required to consider is

whether public interest is so strong to override the

ordinary right and interest of the litigant that he shall he

able to lay before a Court of justice the relevant evidence.

In balancing the competing interests it is the duty of the

court to see that there is the public interest that harm

shall not be done to the nation or the public service by

disclosure of the document and there is a public interest

that the administration of justice shall not be frustrated

by withholding documents which must he produced if justice

is to be done.

1.6. The basic question to which the court would, therefore,

have to address itself for the purpose of deciding the

validity of the objection would be, whether the document

relates to affairs of State or the public service and if so,

whether the public interest in its non-disclosure is so

strong that it must prevail over the private interest in the

administration of justice and on that account, it should not

be allowed to be disclosed.

State of U.P. v. Raj Narain & Ors., [1975] 2 S.C.R. 333;

S.P. Gupta Ors.

807

etc. etc. v. Union of India & Ors. etc. etc., 1982 (2)

S.C.R. 365; relied on.

Conway v. Rimmer, 1968 A.C. 910 (H.L); D. v. National

Society for the Prevention of Cruelty to Children, 1978 A.C.

171 (H.L.); Burmah Oil Co. Ltd. v. Governor and Company of

the Bank of England, 1980 A.C. 1090 (H.L.); Butters Gas and

Oil Co. v. Hammer, 1982 A.C. 888 (H.L.); Air Canada v.

Secretary of State for Trade, [1983] 2 A.C. 394 (H.L.);

Council of Civil Service Unions v. Minister for the Civil

Service, 1985 A.C. 374 (H.L.); United State v. Reynolds,

(1935) 345 U.S. 1; Environmental Agency, v. Pats), T Mink,

410 U.S. 73 (35) L. Ed. 2nd 11 9; Newyond Times v. U.S.,

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[1971] 403 U.S. 713; U.S. v. Richard M. Nixon, [1974] 418

U.S. 683 = 41 L.Ed. 2nd 1035; Robindon v. State of South

Australia, 1931 A.C. 704 (PC); Shankey v. Whitlan, [1979]

153 A.L.R. 1; FAI Insurances Ltd. v. The Hon Sir, Henn,

Arthur Winneke and Ors., [1982] 151 C.L.R. 342; Whitlan v.

Australian Consolidated Press Ltd., [1985] 60 A.L.R. 7;

Minister for Arts Heritage and Environment and Ors. v. Peko

Wallsend Ltd. and Ors. [1987] 75 A.L.R. 218; Commonwealth of

Australia v. Northern Land Council and Anr. [1991] 103

A.L.R. 267; R. v. Shinder, 1954 S.L.R. 479 Gagnon v. Ouebec

Securities Commission, 1964 S.C.R. 329; Bruce v. Waldron,

1963 V.L.R. 3; Re Tunstall, Ex.P. Brown, [19661 84 W.N.

(Pt2) (N.S.W.); Corbett v. Social Security Commission, 1962

N.Z.L.R. 878; Greednz Inc. v. Governor General, [1981] 1

N.L.R. 172. Apponhamy v. Illangarutute, [1964] 66 C.L.W.

17; Jamaica in Allen v. Byfields (No.2) [1964] 7 W.I.R.69 and

Scotland in Glasgow Corporation v. Central Land Board,

[1956] Scotland Law Time 4, referred to.

Mecormic on Evidence, 4th Edn. by John w. Strong, referred

to.

1.7.Every communication which proceeded from one of ricer of

the State to another or the officers inter se does not

necessarily per-se relate, to the affairs of the State.

Whether they so relate has got to be determined by reference

to the nature of the consideration, the level at which it

was considered, the contents of the document or class to

which it relates to and their indelible impact on public

administration or public service and administration of

justice itself.

2. The power to issue 'discovery order nisi' is express as

well as inherent as an integral power of judicial review and

process in the Court to secure the attendance of any person

or discovery or production of any document or to order

investigation in that behalf. However, in an appropriate

case, depend -

808

ing on facts on hand. Court may adopt such other procedure

as would be warranted. The petitioner must make a strong

prima facie case to order discovery order nisi, etc. and it

must not be a haunting expedition to fish out some facts or

an attempt to cause embarrassment to the respondents nor for

publicity. But on issuance of rule nisi by this Court under

Article 32 or a discovery order nisi the Government or any

authority, constitutional, civil, judicial, statutory or

otherwise or any person, must produce the record in their

custody and disobedience thereof would be at the pain of

contempt.

3. The Cabinet known as Council of Ministers headed by

Prime Minister under Article 75 (3) is the driving and

steering body responsible for the governance of the country.

Collective responsibility under Article 75(3) of the

Constitution inheres maintenance of confidentiality as

enjoined in oaths of office and of secrecy set forth in

Schedule III of the Constitution that the Minister will not

directly or indirectly communicate or reveal to any person

or persons any matter which shall be brought under his

consideration or shall become known to him as Minister

except as may be required for the 'due discharge of his duty

as Minister'. The base and basic postulate of its

significance is unexceptionable. But the need for and

effect of confidentiality has to be nurtured not merely from

political imperatives of collective responsibility envisaged

by Article 75(3) but also from its pragmatism.

Satwant Singh Sawhney v. D. Ramarathnam Asstt. Passport

Officer, [1967] 3 S.C.R. 525; Magnbhai Ishwarbhai Patel v.

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Union of India and Anr., [1969] 3 S.C.R. 254; Shamsher Singh

v. State of Punjab, [1975] 1 S.C.R. 814; Rai Sabhib Ram

Jawaya Kapur & Ors. v. State of Punjab, [1955] 2 S.C.R. 225

and Commonwealth of Australia v. Northern Land Council &

Anr., [1991] 103 A.L.R. 267, referred to.

Sir Ivor Jennings, Cabinet Government; Patrick Gordon

Walker, The Cabinet, 1973 Revised Ed. P. 178; John P.

Mackintosh, The British Cabinet, 2nd Edn. p.1 1; 0 Hood

Phillips and Paul Jackson, Constitutional and Administrative

Law, 7th Edn. P. 301; Walker, The Cabinet, p. 183; Halsbury

Laws of England, 4th Edn. Vol. 8 para 820; Bagehot and The

English Constitution, 1964 Edn., referred to.

3.1. The Court would be willing to respond to the executive

public interest immunity to disclose certain documents where

national security or high policy, high sensitivity is

involved. Information relating to national security,

diplomatic relations, internal security or sensitive

diplomatic corre-

809

spondence per se are class documents and that public

interest demands total immunity from disclosure. Even the

slightest divulgence would endanger the lives of the

personnel engaged in the services etc. The maxim Salvs

Populs Cast Suprema Lax which means that regard for public

welfare is the highest law, is the basic postulate for this

immunity.

Asiatic Petroleum v. Anglo-Persian oil, 1916

K.B. 822; Duncan v. Cammell Laird, 1942 A.C.

624; Council of Civil Service Union v.

Minister for Civil Service, 1985 A.C. 374 and

Mark Hosemball R. v. Home Secretary exparte

Hosenball, [1977] 1 W.L.R. 766, referred to.

3.2. But it would be going too far to lay down that no

document in any particular class or one of the categories of

Cabinet papers or decisions or contents thereof should

never, in any circumstances, be ordered to he produced.

Robinson v. State of South Australia, [1931]

A.C. 704 (PC); S.P. Gupta v. Union of India &

Ors., [1982] 2 S.C.R. 365; State of U. P. v.

Raj Narain & Ors., [1975] 2 S.C.R.333; Conway

v..Rimmerl968A.C.910 (HL);Burmah Oil Co. Ltd.

v. Governor and Company of the Bank of

England, 1980 A.C. 1090 (HL); Reg. v. Lewes

Justices, Ex Parte Secretary of State for the

Home Department, 1973 A.C. 388 and D. V.

National Society for the Prevention of Cruelty

to Children, [1978] A.C. 171; Air Canada v.

Secretary of State for Trade, [1983] 2 A.C.

394 (HL); Shankey v. Whitlan, [1979] 53 A.L.R.

1; Harbour Corp of Queensland v. Vessey

Chemicals Pvt. Ltd., [1986] 67 A.L.R 100;

Manthal Australia Pvt. Ltd. v. Minister for

Industry, Technology and Commerce, [1987] 71

A.L.R. 109; Koowarta v. Bjelke-Petersen,

[1988] 92 F.L.R. 104; United States v. Richard

M. Nixon, [1974] 418 U.S. 683=41 Lawyers Ed.

2nd Ed. 1039; Attorney General v. Jonathan

Cape Ltd. 1976 Q.B. 752; Minister for Arts

Heritage and Environment and Ors. v.

Pekowallsend Ltd. and Ors., (1987) 75 A.L.R.

218; Commonwealth of Australia, v. Northern

Land Council and Anr., [1991] 103 A.L.R. 267;

Australian Community Party & Ors. v.

Commonwealth & Ors., [1950-51] 83 C.L.R. 1 and

Queen v. Tohey, [1982-83] 151 C.L.R. 170,

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referred to.

3.3. Undoubtedly, the Prime Minister is enjoined under

Article 78 to communicate to the President all decisions of

the Council of Minister relating to the administration of

the affairs of the Union and proposals for legislation and

to furnish such information relating to the administration

or reconsideration by the Council of Minister if the

President so requires and submit its

810

decisions thereafter to the President. That by itself is

not conclusive and does not get blanket public interest

immunity from disclosure. The Council of Ministers though

shall be collectively responsible to the House of the

people, their acts are subject to the Constitution; Rule of

law and judicial review are parts of the scheme of the

Constitution as basic structure and judicial review is

entrusted to this Court (High court under Article 226).

3.3.1.The communication of cabinet decisions or policy to

the President under Article 74(1) gives only limited

protection by Article 74(2) of judicial review of the actual

tendered to the President of India. The rest of the file

and all the records forming part thereof are open to in

camera inspection by this Court. Each case must be

considered on its own facts and surrounding scenario and

decision taken thereon.

Jyoti Prakash Mitter v. Chief Justice Calcutta

High Court, [1965] 2 S.C.R. 53 and Union of

India v. Jyoti Prakash, [1971] 3 S.C.R. 483,

referred to.

3.3.2.Article 74(2) is not a total bar for production of the

records. Only the actual advice tendered by the Minister or

Council of Ministers to the President and the question

whether any, and if so, what advice was tendered by the

Minister or Council of Ministers to the President, shall not

be enquired into by the Court. In other words, the bar of

judicial review is confined to the factum of advice, its

extent, ambit and scope, but not the record i.e. the

material on which the advice is founded.

S.P. Gupta v. Union of India & Ors., [1982] 2 S.C.R. 365,

referred to.

4.Judicial review is concerned with whether the incumbent

possessed of qualification for appointment and the manner in

which the appointment came to made or the procedure adopted

whether fair, just and reasonable. Exercise of Judicial

Review is to protect the citizen from the abuse of the power

etc. by an appropriate Government or department etc. In

Court's considered view granting the compliance of the above

power of appointment was conferred on the executive and

confided to be exercised wisely. When a candidate was found

qualified and eligible and was accordingly appointed by the

executive to hold an office as a Member or Vice-President or

President of Tribunal, this Court cannot sit over the choice

of the selection, but it be left to the executive to select

the personnel as per law or procedure in this behalf.

Shri Kumar Padma Prasad v. Union of India & Ors., [1992] 2

S.C.C. 428,

811

distinguished.

5. In service jurisprudence it is settled law that it is

for the aggrieved person i.e. non-appointee to assail the

legality of the offending action. Third party has not locus

standi to canvass the legality or correctness of the action.

Only public law declaration would be made at the behest of

the petitioner, a public spirited person. Therefore, the

contention that there was need to evaluate the comparative

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merits of Respondent and the senior most Member for

appointment as President would not be gone into in a public

interest litigation. Only in a proceedings initiated by an

aggrieved person it may be open to be considered.

6. It is expedient to have a sitting or retired senior

Judge or retired Chief Justice of a High Court to be the

President. The rules need amendment immediately.

Government had created a healthy convention of providing

that the Tribunals will be headed by a President who will be

a sitting or a retired judge of the High Court This Court to

elongate the above objective directed the Government to show

whether the convention is being followed in appointment of

the President of CEGAT and further directed to consider

appointment of a Senior Judge or a retired Chief Justice of

the High Court as it President Admittedly Chief Justice of

India was not consulted before appointing Respondent No.3 as

President of CEGAT The solemn assurance given to the

Parliament that the Tribunal bears a judicious blend by

appointment of a High Court Judge as President was given a

go-bye.

6.1.While making statutory rules the executive appears to

have made the appointment of a sitting or retired High Court

Judge as President unattractive and Directly frustrating the

legislative animation. A sitting Judge, when he is entitled

to continue in his office upto 62 years, would not he

willing to opt to serve as President, if his superannuation

as President is co-terminus with 62 years. He would he

attracted only if he is given extended three years more

tenure after his superannuation. But Rule 10 (3) says that

the total period of the enure of the President by a sitting

or retired Judge is 'a period of three years or till he

attains the age of 62 years, whichever is earlier', i.e. co-

terminus with superannuation as a Judge of the High Court.

The, proviso is only discretionary at the whim of the

executive depleting independence and is an exception to the

rule. Thereby, practically the spirit of the Act, the

solemn assurance given by the Government to the Parliament

kindling hope in the litigant public to have a sitting or a

retired Judge appointed as President has been frustrated

deflecting the appointment of a

812

judicially trained judge to exercise judicial review. Court

is constrained to observe that the rules, though statutory,

were so made as to defeat the object of the Act.

7.There are persistent allegations against mal-functioning

of the CEGAT and against Respondent No. 3 himself. Though

this Court exercised self restraint to assume the role of an

investigator to charter out the ills surfaced, suffice to

say that the Union Government cannot turn a blind eve to the

persistent public demands and 'the Court directs to swing

into action, an indepth enquiry made expeditiously by an

officer or team of officers to control the malfunctioning of

the institution. It is expedient that the Government should

immediately take action in the matter and have fresh look.

8. The Tribunals set up under Articles 323A and 323B of

the Constitution or under an Act of legislature are

creatures of the Statute and in no case can claim the status

as Judges of the High Court or parity or as substitutes.

However, the personnel appointed to hold the office under

the State are called upon to discharge judicial or quasi-

judicial powers. So they must have judicial approach and

also knowledge and expertise in that particular branch of

constitutional, administrative and tax laws. The legal

input would undeniably be more important and sacrificing the

legal input and not giving it sufficient weightage and teeth

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would definitely impair the efficacy and effectiveness of

the judicial adjudication. It is, therefore, necessary that

those who adjudicate upon these matters should have legal

expertise, judicial experience and modicum of legal training

as on many an occasion different and complex questions of

law which baffle the minds of even trained judges in the

High Court and Supreme Court would arise for discussion and

decision.

M.B. Majumdar v. Union of India, [1990] 3

S.C.R. 946; Union of India v. Paras Laminates

Ltd., [1990] 49 E.L.T. 322 (SC); Krishna Sahai

& Ors. v. State of U. P. & Ors., [1990] 2

S.C.C. 673, and Rajendra Singh Yadav &

Ors.v.State of U.P. & Ors.. [1990] 2 S.C.C.

763, referred to.

8.1.Equally the need for recruitment of members of the Bar

to man the Tribunals as well as the working system by the

Tribunals need fresh look and regular monitoring is

necessary. An expert body like the Law Commission of India

should make an in-depth study in this behalf including the

desirability of bringing CEGAT under the control of Law and

Justice Department in line with Income-tax Appellate

Tribunal and make appropriate urgent recommendations to the

Government of India who should take remedial steps by an

813

appropriate legislation to overcome the handicaps and

difficulties and make the Tribunals effective and efficient

instruments for making judicial review efficacious,

inexpensive and satisfactory.

8.2. For inspiring confidence and trust in the litigant

public they must have an assurance that the person deciding

their causes is totally and completely free from the

influence or pressure from the Government. To maintain

independence imperativity it is necessary that the personnel

should have at least modicum of legal training, learning and

experience. Selection of competent and proper people

instill people's faith and trust in the office and help to

build up reputation and acceptability. Judicial

independence which is essential and imperative is secured

and independent and impartial administration of justice is

assured. Absence thereof only may get both law and

procedure wronged and wrong headed views of the facts and

may likely to give rise to nursing grievance of injustice

Therefore, functional fitness, experience at the Bar and

aptitudinal approach are fundamental for efficient judicial

adjudication. Then only as repository of the confidence, as

its duty, the Tribunal would properly and efficiently

interpret the law and apply the law to the given set of

facts. Absence thereof would be repugnant or derogatory to

the Constitution.

Union of India v. Sankal Chand Himatlal Sheth

& Anr. [1978] 1 S.C.R. 423, referred to.

9. Judicial review is the basic and essential feature of

the Indian constitutional scheme entrusted to the judiciary.

It cannot be dispensed with by creating Tribunal under

Articles 323A and 323B of the Constitution. Any

institutional mechanism or authority in negation of judicial

review is destructive of basic structure, So long as the

alternative institutional mechanism or authority set up by

an Act is not less effective than the High Court, it Ls

consistent with constitutional scheme. The faith of the

people is the bed-rock on which the edifice of judicial

review and efficacy of the adjudication are founded. The

alternative arrangement must, therefore, be effective and

efficient.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 50

Keshwanand Bharati v. Union of India, [1973]

Suppl. S.C.R. 1; Waman Rao v. Union of India,

[1980] 3 S.C.R. 587; Raghunathrao Ganpatrao v.

Union of India [1993] 1 SCALE 363; Krishna

Swathi v. Union of India, 1199214 S.C.C. 605;

S.P. Sampat Kumar v. Union of India & Ors.,

[1987] 1 S.C.R. 435 and J.B. Chopra v. Union

of India, [1987] 1 S.C.C. 422, referred to.

814

9.1. It is necessary tip express Court's anguish over the

ineffectivity of the alternative mechanism devised for

judicial review. The judicial review and remedy are

fundamental rights of the citizens. The dispensation of

justice by the Tribunals is much to be desires. Court is

not doubting the ability of the members or Vice-Chairman

(non-judges) who may be experts in their regular service.

But judicial adjudication is a special process and would

efficiency be administered by advocate Judges. The remedy

of appeal by special leave under Article 136 to this Court

also proves to be costly and prohibitive and far-flung

distance too is working as a constant constraint to litigant

public who could ill afford to reach this Court. An appeal

to a Bench of two Judges of the respective High Courts over

the orders of the Tribunals within its territorial

jurisdiction on questions of law would assuage a growing

feeling of iNjustice of those who can ill-afford to approach

the Supreme Court.

10. No one can suppose that the executive will never be

guilty of the sins common to all people. Sometimes they may

do things which they ought not to do or will not do things

they ought to do. The Court must be alive to that

possibility of the executive committing illegality in its

process, exercising its powers, reaching a decision which no

reasonable authority would have reached or otherwise abuse

its powers, etc. If the proceeding, decision (or order is

influenced extraneous considerations which ought not to

have been taken into account, it cannot stand and needs

correction, no matter of the nature of the statutory body or

status or stature of the constitutional functionary though

might have acted in good faith. It is, therefore, the

function of the Court to see that lawful authority is not

abused.

10.1. Under modern conditions of responsible Government,

Parliament should not always be relied on as a check on

excess of power by the Council (of Ministers or Minister.

Though the Court would not substitute its views to that of

the executive on matters of policy, it is its undoubted

power and duty to see that the executive exercises its power

only for the purpose for which it is granted. It is the

constitutional, legitimate and lawful power and duty of this

Court to ensure that powers, constitutional statutory or

executive are exercised in accordance with the Constitution

and the law. This may demand, though no doubt only in

limited number of cases, Yet the in networkings of

government may be exposed to public gaze.

Per Ahmadi J. (For himself and Punchhi J.) (Concurring)

1. This Court cannot sit in judgment over the wisdom of

the Central

815

Government in the choice of the person to be appointed as a

President so long as the person chosen possesses the

prescribed qualification and is otherwise eligible for

appointment. Respondent No. 3 was a Senior Vice-President

when the question of filling up the vacancy of the President

came up for consideration. He was fully qualified for the

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post under the Rules. No challenge is made on that count.

Under Rule 10 (1), the Central Government is conferred the

power to appoint one of the Members to be the President.

Since the validity of the Rule is not questioned there can

be no doubt that the Central Government was entitled to

appoint Respondent No. 3 as President.

1.1. This Court cannot interfere with the appointment of

Respondent No. 3 on the ground that his track record was

poor or because of adverse reports on which account his

appointment as a High Court Judge had not materialised.

Assuming that the allegations against Respondent No. 3 are

factually accurate, this Court cannot sit in judgment over

the choice of the person made by the Central Government over

the choice of the person made by the Central Government for

appointment as a President if the person chosen is qualified

and eligible for appointment under the Rules.

2. However, to instill the confidence of the litigating

public in the CEGAT, the Government must make a sincere

effort to appoint a sitting Judge of the High Court as a

President of the CEGAT in consultation with the Chief

justice of India and if a sitting Judge is not available the

choice must fall on a retired Judge as far as possible.

3. Sub-rule (4) of Rule 10 of the CEGAT Members

(Recruitment and Conditions of Service) Rules, 1987 needs a

suitable change to make it sufficiently attractive for

sitting High Court judges to accept appointment as the

President of the CEGAT. The rules empower the Central

Government to appoint any member as the President of the

CEGAT. It is true that under subrule (4), a serving Judge

and under the proviso thereto, a retired Judge, can also be

appointed a Member and President simultaneously.

In the case of a serving Judge his age of superannuation is

fixed at 62 years but in the case of the retired Judge he

may be appointed for a period of three years at the most.

Insofar as a service High Court Judge is concerned, he holds

office until he attains the age of 62 years, vide Article

217 of Constitution. It, therefore, beats common sense why

a sifting Judge of tile High Court would opt to serve as the

President of the CEGAT if he is to retire at the same age

without any benefit. On the contrary, he would lose certain

816

perks which are attached to the office of a High Court

Judge. Even status-wise he would suffer as his decisions

would he subject to the writ jurisdiction of the High Court

under Article 226,227 of the Constitution. He may agree to

accept the offer only if he had an extended tenure of at

least three years.

4. The allegations made by Petitioner in regard to the

working the CEGAT are grave and the authorities can ill-

aford to turn a Nelson's eye to those allegations made by a

person who is fairly well conversant with the internal

working of the Tribunal. Refusal to inquire into such grave

allegations, some of which are capable of verification, can

only betrays indifference and lack of a sense of urgency to

tone up the working of the Tribunal. It is high time that

the administrative machinery which is charged with the duty

to supervise the working of the CEGAT wakes-up from its

slumber and initiates prompt action to examine the

allegations by appointing a high level team which would

immediately inspect the CEGAT, identify the causes for the

crises and suggest remedial measures. This cannot brook

delay.

5.1. The time is ripe for taking stock of the working of the

various Tribunals set up in the country after the insertion

of Articles 323A and 323B in the Constitution. A sound

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justice delivery system is a sine qua non for the efficient

governance of a country wedded to the rule of law. An

independent and impartial justice delivery system in which

the litigating public has faith and confidence alone can

deliver the goods. After the incorporation of these two

articles, Acts have been enacted where under Tribunals have

been constituted for dispensation of justice. Sufficient

time has passed and experience gained in these last few

years for taking stock of the situation with a view to

finding out if they have served the purpose and objectives

for which they were constituted.

5.2. Complaints have been heard in regard to the functioning

of other Tribunals as well and it is time that a body like

the Law Commission of India ha, a comprehensive look-in with

a view to suggesting measures for their improved

functioning. That body can also suggest changes in the

different statutes and evolve a model on the basis where of

Tribunals may be constituted or reconstituted with a view to

ensuring greater independence. An intensive and extensive

study needs to be undertaken by the Law Commission in regard

to the constitution of Tribunals under various statutes with

a view to ensuring their independence so that the public

confidence in such Tribunals may increase and the quality of

their performance may improve. It is strongly recommended

to the Commission of India to undertake such an exercise

817

on priority basis.

6. On the facts of the case it is not necessary to disclose

the contents of the records to the petitioner or his

counsel.

JUDGMENT:

CIVIL, ORIGINAL JURISDICTION: Writ Petition Nos. 90 & 312 of

1992.

Under Article 32 of the Constitution of India. ,

D.D. Thakur, Tapash Ray, M.L. Verma, Gauray Jain, and Ms.

Abha Jain for the Petitioner in W.P. No. 90 of 1992.

R.P. Gupta for the Petitioner in W.P. No. 312/92.

G. Ramaswamy, Attorney General, D.P. Gupta, Solicitor

General, B. Parthasarthy, C.V.S. Rao, A.S. Bhasme and Chava

Badri Nath Babu for the Respondent.

R. K. Jain, and Rajan Mukherjee for the customs, Excise &

Gold (Control) Appellate Tribunal.

K.K. Venugopal, Ms. Pallav Shisodia and C.S.S. Rao for the

Respondent.

The Judgments of the Court were delivered by

AHMADI, J. We have had the benefit of the industry,

erudition and exposition of the constitutional and

jurisprudential aspects of law on the various questions

urged before us in the judgment of our esteemed Brother K.

Ramaswamy, J. But while concurring with the hereinafter

mentioned conclusions recorded by him we would like to say a

few words to explain our points of view. Since the facts

have been set out in detail by our learned Brother we would

rest content by giving an abridged preface which we consider

necessary.

It all began with the receipt of a letter dated December 26,

1991, from Shri R.K. Jain, Editor, Excise Law Times,

addressed to then Chief Justice of India, Shri M.H. Kania,

J., complaining that as the Customs, Excise and Gold Control

Appellate Tribunal (for short 'the CEGAT) was without a

President for the last over six months the functioning of

the Tribunal was adversely affected, in that, the Benches

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sit for hardly two hours or so, the sittings commence late

at about 10.50

818

a.m., there is a tendency to adjourn cases on one pretext or

the other so much so that even passing of interim orders,

like stay orders, etc., is postponed and inordinately

delayed, and the general tendency is to work for only four

days in a week. The work culture is just not there and the

environmental degradation that has taken place is reflected

in the letter of Shri G. Sankaran dated June 3, 1991 who

prematurely resigned as the President of the CEGAT. Lastly,

he says that there were nearly 42,000 appeals and

approximately 2000 stay petitions pending in the CEGAT

involving revenue worth crores of rupees, which will remain

blocked for long. Three directions were sought, namely,

"(i) the immediate appointment of the

President to the CEGAT, preferably a senior

High Court Judge-,

(ii) order an enquiry into the mal-functioning

of the CEGAT; and

(iii) issue all other directions as your

Lordship may deem fit and necessary."

This letter was directed to be treated as Public Interest

Litigation and notice was issued to the Union of India

restricted to relief No. (i) i.e. in regard to the

appointment of the President of the CEGAT. On April 29,

1992, the learned Additional Solicitor General informed the

Court that the appointment of the President was made. On

the next date of hearing the relevant file on which the

decision regarding appointment was made was produced in a

sealed envelope in Court which we directed to be kept in

safe custody as apprehension was expressed that the file may

be tempered with. The focus which was initially on the

working of the CEGAT and in particular against the conduct

and behaviour one of its Members now shifted to the legality

and validity of the appointment of respondent No. 3 as its

President. Serious allegations were made against respondent

No. 3 and his competence to hold the post was questioned.

It was contended that his appointment was made in violation

of the Rules and convention found mentioned in the message

of Shri Y.V. Chandrachud, the then Chief Justice of India,

dated October 5, 1992 forwarded on the occasion of the

inauguration of the CEGAT. The further allegation made is

that even though High Court Judges were available no serious

attempt was made to requisition the services of one of them

for appointment as President of the CEGAT. To put a quietus

to the entire matter at an early date we called the file

from the Registry on May 4,1992 but when we were about to

peruse the same the learned Additional Solicitor General

contended 'that the Court cannot inspect it because he

desired to claim privilege'. We, therefore, directed that a

formal application may be made in that behalf before the

next date of hearing and returned the file to enable the

making of such an application.

819

Accordingly, the then Finance Secretary filed an affidavit

claiming privilege under sections 123 and 124, Evidence Act,

and Article 74(2) of the Constitution. The Minister of

State in the Finance Department was also directed to file an

affidavit in support of the claim for privilege which he

did. It is in this context that the question of privilege

arose in the present proceedings.

Our learned Brother Ramaswamy, J. dealt with this question

elaborately. After referring to the provisions of the

relevant Statutes and the Constitution as well as the case

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law of both foreign and Indian courts, the authoritative

text books. etc. he has concluded as under:

"Having perused the file and given our anxious

consideration we are of the opinion that on

the facts of the case..... it is not necessary

to disclose the contents of the records of the

petitioner or his counsel."

We are in respectful agreement with this conclusion recorded

by our learned Brother though not entirely for in the

reasons which have weighed with him.

On the question of appointment of respondent No. 3 as the

President of the CEGAT we must notice a few provisions

contained in the CEGAT Members (Recruitment anti Conditions

of Service). Rules, 1997 (hereinafter called 'the Rules').

Rule 2(c) defines a member, to include the President of the

CEGAT also; Rule 3 prescribes the qualifications for

appointment and Rule 6sets out the method of recruitment of

'a member through a Selection Committee consisting of a

Judge of the Supreme Court of 'India nominated by the Chief

Justice of India. Rule 10 provides for the appointment of

the President. It says that the Central Government shall

appoint one of the members to be the President. Sub-rule

(2) then provides as under

"(2) Notwithstanding anything contained in

rule 6. a sitting or retired judge of a High

Court may also he appointed by the Central

Government as a member and President

simultaneously."

Sub-rule (4) and the proviso thereto bear

reproduction

"(4) Where a serving judge of a High Court is

appointed as a member and President, he shall

hold office as President for a period of three

years from the date of his appointment or till

he attains the age of 62 years, whichever is

earlier:

820

Provided that where a retired judge of a High

Court above the age of 62 years is appointed

its President. he shall hold office for such

period not exceeding three years as may be

determined by the Central Government at the

time of' appointment or re-appointment."

It will thus he seen that the rules empower the Central

Government to appoint any member as the President of the

CEGAT. It is true that under sub-rule (4), a serving judge

and under the proviso thereto, a retired judge, can also be

appointed a Member and President simultaneously. In the

case of a serving judge his age of superannuation is fixed

at 02 years but in the case of a retired judge he may be

appointed for it period of three years at the most. Insofar

as a serving High Court Judge is concerned, he holds office

until he attains the age of 62 years, vide Article 217 of

the Constitution. It therefore, heats common sense why a

sitting Judge of he High Court would opt to serve as the

President of tile CEGAT if lie is to retire At the same age

without any benefit. On tile contrary he would lose certain

perks which are attached to tile office of a High Court

Judge. Even status-wise lie would suffer as his decisions

would he subject to the writ jurisdiction of the High Court

under Articles 226/227 of tile Constitution. He may agree

to accept the offer only if he had an extended tenure of at

least three years. We are, therefore, in agreement with our

learned Brother that sub-rule (4) of Rule 10 of the Rules

needs a suitable change to make it sufficiently attractive

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for sitting High Court Judges to accept appointment as the

President of the CEGAT. We also agree with our learned

brother that to instill the confidence of the litigating

public in the CEGAT. the Government must make a sincere

effort to appoint a sitting Judge of the High Court is a

President of the CEGAT in consultation of the Chief Justice

of India and it a sitting Judge is not available the choice

must fall on a retired Judge as far as possible. This would

he consistent with the assurance given by the Finance

Department as is reflected in the letter of Shri

Chandrachud, extract wherefrom is reproduced by our learned

Brother in his judgment.

Shri Harish Chandra was a Senior Vice-President when the

question of' filling, up the vacancy of the President came

up for consideration. He was fully qualified for the post

under the Rules. No challenge is made on that count. Under

Rule 10(1) the Central (Government is conferred the power to

appoint one of the Members to be the President. Since the

validity of the Rule is not questioned there can be no doubt

that the Central Government was entitled to appoint

respondent No. 3 as the President. But it was said that the

track record of respondent No. 3 was poor and he was hardly

fit to hold the post of the President of the CEGAT. It has

been averred that respondent No. 3 had been in the past

proposed for appointment

821

as a Judge of the Delhi High Court but his appointment did

not materialise due to certain adverse reports. Assuming

for the sake of argument that these allegations are

factually accurate, this Court cannot sit in judgment over

the choice of the person made by the Central Government for

appointment as a President if the person chosen is qualified

and eligible for appointment under the Rules. We,

therefore, agree with our learned Brother that this Court

cannot sit in judgment over the wisdom of the Central

Government in the choice of the person to be appointed as a

President so long as the person chosen possesses the

prescribed qualification and is otherwise eligible for

appointment. We. therefore, cannot interfere with the

appointment of respondent No. 3 on the ground that his track

record was poor or because of adverse reports on which

account his appointment as a High Court Judge had not

materialised.

The allegations made by Shri R.K. Jain in regard to the

working of the CEGAT are -rave and the authorities can ill

afford to turn a Nelson's eve to those allegations made by a

person who is fairly well conversant with the internal

working of the Tribunal.

Refusal to inquire into such grave allegations, some of

which are capable of verification, can only betray

indifference and lack of a sense of urgency to tone up the

working of the tribunal. Fresh articles have appeared in

the Excise Law Times which point to the sharp decline in the

functioning of the CEGAT pointing to a serious management

crises. It is high time that the administrative machinery

which is charged with the duty to supervise the working of

the CEGAT wakes-up from its slumber and initiates prompt

action to examine the allegations by appointing a high level

team which would immediately inspect the CEGAT, identify the

causes for the crises and suggest remedial measures. This

cannot brook delay.

Lastly, the time is ripe for taking stock of the working of'

the various Tribunals set up in the country after the

insertion of Articles 323A 323B in the Constitution. A

sound justice delivery system is a sine qua non for the

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efficient governance of a country wedded to the rule of law.

An independent and impartial justice delivery system in

which the litigating public has faith and confidence alone

can deliver the goods. After the incorporation of these two

articles,Acts have been enacted whereunder tribunals have

been constituted for dispensation of justice. Sufficient

time has passed and experience gained in these last few

years for taking stock of the situation with a view to

finding out if they have serve the purpose and objectives

for which they were constituted. Complaints have been heard

in regard to the functioning, of other tribunals as well and

it is time that a body like the Law Commission of India has

comprehensive look-in with a view to

822

suggesting- measures for their improved functioning. That

body can also suggest changes in the different statutes and

evolve a model on the basis whereof tribunals may be

constituted or reconstituted with a view to ensuring greater

independence. An intensive and extensive study needs to be

undertaken by the Law Commission in regard to the

constitution of tribunals under various statutes with a view

to ensuring their independence so that the public confidence

in such tribunals may increase and the quality of their

performance may improve. We strongly recommend to the Law

Commission of India to undertake such an exercise on

priority basis. A copy of this judgment may be forwarded by

the Registrar of this Court to the Member-Secretary of the

Commission for immediate action.

We have thought it wise to clarify the extent of our

concurrence with the views expressed by our learned Brother

in his judgment to avoid possibility of doubts being raised

in future. We accordingly agree with our learned Brother

that the writ petitions should stand disposed of accordingly

with no order as to costs.

K.RAMASWAMY, J.: The same facts gave birth to the twin

petitions for disposal. by a common judgment. On October

11, 1982, the Customs Central Excise and Gold (Control)

Appellate Tribunal for short 'CEGAT' came into existence

with Justice F.S. Gill as its President. After he retired

in 1985 no Judge was appointed as President. In letter

dated December 26, 1991, addressed to the Chief Justice of

India, the petitioner highlighted the mal-functioning of the

CEGAT and the imperative to appoint a sitting or retired

judge of the High Court as President to revitalise its

functioning and to regenerate warning and withering faith of

the litigant public of the efficacy of its adjudication.

Treating it as writ petition on February 25, 1992 this court

issued rule nisi to the first respondent, initially to make

immediate appointment of the President of the CEGAT, prefer-

ably a senior High Court Judge. On March 30, 1992 when the

Union's counsel stated that the matter was under active

consideration of the government, having regard to the

urgency, this court hoped that the decision would he taken

within two weeks from that date. On April 20, 1992 the

learned Addl. Solicitor General reported that the

appointment of the President had been made, however. the

order was not placed on record. In the meanwhile die

petitioner filed writ petition No. 312 of 1992 impugning the

appointment of Sri Harish Chander, as President and sought

to quash the same being in violation of the direction issued

by this ('our( on February 25, 1992 and to strike down Rules

10(1), (3) and (4) of the CEGAT Members (Recruitment and

Conditions of Service) Rules 1987, for short the 'Rule' as

violative of Art. 43 of the Constitution. Rule nisi was

also issued to the respondents in that writ petition on May

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4, 1992. The tile in a sealed cover was produced. The

first and the third respondents were directed to file their

counters

823

within four weeks. This court also directed the first

respondent "to reflect in the counter what was the actual

understanding in regard to the convention referred to in the

letter of the then Chief Justice of India dated October 5,

1982"; "What procedure was followed at the time of the

appointment by first respondents" and "whether Chief Justice

of India was consulted or whether the first respondent was

free to choose a retired or a sitting Judge of the High

Court as President of the Tribunal with or without

consultation of the Chief Justice of India". "It should

also point out what procedure it had followed since then in

the appointment of the President of the Tribunal". It

should also clarify whether "before the third respondent was

appointed as the President, "any effort or attempt was made

to ascertain if any retired or a sitting Judge of the High

Court could be appointed as the President of the Tribunal"

and directed to post the cases for final disposal on July

21, 1992. At request, to enable to government to file a

counter, the rile was returned.

The Solicitor General though brought the file on July 21,

1992. objected to our inspecting the file and desired to

claim privilege. The file was directed to be kept in the

custody of the Registrar-General till further orders. The

union was directed to file written application setting out

the grounds on which the claim for privilege is founded and

directed the Registry to return the sealed envelop as the

Solicitor General expressed handicap to make precise claim

of the privilege for want of file. Thereafter an

application was filed supported by the affidavit of the

Secretary, Finance and the State Minister also filed his

affidavit. Counter affidavits and rejoinders were exchanged

in the writ petitions. The Attorney General also appeared

on behalf of the Union. The government's claim for

privilege is founded upon s. 123 of the Indian Evidence Act

and Art. 74 (2) of the Constitution of India. Later on the

Solicitor General modified the stand that the government

have no objection for the court to peruse the file but

claimed privilege to disclose the contents of the file to

the petitioner.

Section 123 of the Indian Evidence Act, 1872 postulates that

"no one shall be permitted to give any evidence derived from

unpublished official records relating to any affairs of

State, except with the permission of the officer at the head

of the department concerned, who shall give or withhold such

permission as he thinks fit. Section 124 provides that no

public officer shall be compelled to disclose communications

made to him in official confidence, "when he considers that

the public interests would suffer by the disclosure". S.

162 envisages procedure on production of the documents that

a witness summoned to produce a document shall, if it is in

his possession or power, bring it to the court, notwith-

standing any objection which there may be to its production

or to its admissibility.

824

"The validity of any such objection shall be decided by the

court." The court, if it deems fit, may inspect the

documents, unless it refers to matters of State, or take

other evidence to enable it to determine on its

admissibility.

The remedy under Art. 32 of the Constitution itself is a

fundamental right to enforce the guaranteed rights in Part

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111. This court shall have power to issue writ of habeas-

corpus, mandamus, certiorari, quowarranto or any other

appropriate writ or direction or order appropriate to the

situation to enforce any of the fundamental right (power of

High court under Art. 226 is wider). Article 144 enjoins

that all authorities, civil and judicial, in the territory

of India shall act in aid of this Court. Article 142 (1)

empowers this Court to make such orders as is necessary for

doing complete justice in any cause or matter pending before

it. Subject to the provisions of any law made in this

behalf by the Parliament, by Clause 2 of Art. 142. this

Court "shall have all and every power to make any order for

the purpose of securing the attendance of any person, the

discovery or production of any documents,or the

investigation or punishment of any contempt of itself."

When this Court was moved for an appropriate writ under Art.

32, rule nisi would be issued and for doing complete justice

in that cause or matter, it has been invested with power to

issue directions or orders which includes ad interim orders

appropriate to the cause. All authorities, constitutional,

civil judicial, statutory or persons in the territory of

India are enjoined to act in aid of this court. This court

while exercising its jurisdiction, subject to any law, if

any, made by Parliament consistent with the exercise of the

said power, has been empowered by Cl. 2 of Art. 142 with all

and every power to make any order to secure attendance of

any person, to issue "discovery order nisi" for production

of any documents, or to order investigation .... Exercise of

this constituent power is paramount to enforce not only the

fundamental rights guaranteed in Part III but also to do

complete justice in any matter or cause, presented or

pending adjudication. The power to issue "discovery order

nisi" is thus express as well as inherent as an integral

power of Judicial review and process in the court to secure

the attendance of any person or discovery or production of

any document or to order investigation in that behalf.

However. in an appropriate case, depending on facts on hand,

court may adopt such other procedure as would be warranted.

The petitioner must make strong prima facie case to order

discovery order nisi, etc. and it must not be a hunting

expedition to fish out some facts or an attempt to cause

embarrassment to the respondents nor for publicity. But on

issuance of rule nisi by this Court under Art. 32 or a

discovery order nisi the government or any authority,

constitutional, civil, judicial. statutory or otherwise or

any person, must produce the record in their

825

custody and disobedience thereof would be at the pain of

contempt.

Section 123 of the Evidence Act gives right to the

government, in other words, to the minister or in his

absence head of the department, to claim privilege, in other

words immunity from disclosure of the unpublished official

state documents in public interest. In a democracy,

governed by rule of law State is treated at par with a

person by Art. 19(6) in commercial/industrial activities.

It possessed of no special privileges. This Court in State

of U.P. v. Raj Narain & Ors. [1975] 2 SCR 333 at 349 held

that an objection claiming immunity should be raised by an

affidavit affirmed by the head of the department. The court

may also require a Minister to affirm an affidavit. They

must state with precision the grounds or reasons in support

of the public interest immunity. It is now settled law that

the initial claim for public interest immunity to produce

unpublished official records for short "state documents"

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should be made through an affidavit generally by the

Minister concerned, in his absence by the Secretary of the

department or head of the Department. In the latter case

the court may require an affidavit of the Minister himself

to be filed. The affidavit should indicate that the

documents in question have been carefully read and

considered and the deponent has been satisfied, supported by

reasons or grounds valid and germane, as to why it is

apprehended that public interest would be injured by

disclosure of the document summoned or called for. If the

court finds the affidavit unsatisfactory a further

opportunity may be given to file additional affidavit or be

may be summoned for cross-examination. If the court is

satisfied from the affidavit and the reasons assigned for

withholding production or disclosure, the court may pass an

appropriate order in that behalf. The Court though would

give utmost consideration and deference to the view of the

Minister, yet it is not conclusive. The claim for immunity

should never be on administrative routine nor be a garb to

avoid inconvenience, embarrassment or adverse to its defence

in the action, the latter themselves a ground for

disclosure. If the court still desires to peruse the record

for satisfying itself whether the reasons assigned in the

affidavit would justify withholding disclosure, the court

would, in camera, examine the record and satisfy itself

whether the public interest subserves withholding production

or disclosure or making the document as part of the record.

On the one side there is the public interest to be

protected; on the other side of the scale is the interest of

the litigant who legitimately wants production of some

documents, which he believes will support his own or defeat

his adversary's case. Both are matters of public interest,

for it is also in the public interest that justice should be

done between litigating parties by production of all

relevant documents for which public interest immunity has

been claimed. They must be weighed one

826

competing public interest in the balance as against another

equally competing public administration of justice. The

reasons are: there is public interest that harm shall not be

done to the nation or the public service by disclosure of

the document in question and there is public interest that

the administration of justice shall not be frustrated by

withholding the document which must be produced, if justice

is to be done. The court also should be satisfied whether,

the evidence relates to the affairs of the State under sec.

123 or not; evidence is relevant to the issue and

admissible. As distinct from private interest, the

principle on which protection is given is that where a

conflict arise between public and private interest, private

interest must yield to the public interest. In S.P. Gupta &

Ors. etc. etc v. Union of India & Ors. etc. etc. [1982] 2

SCR 365, this court by seven Judges' bench held that the

court would allow the objection to disclosure if it finds

that the document relates to affairs of State and its

disclosure would be injurious to public interest, but on the

other hand, if it reaches the conclusion that the document

does not relate to affairs of State or that the public

interest does not compel its non-disclosure or that the

public interest in the administration of justice in the

particular case before it overrides all other aspects of

public interest, it will overrule the objection and order

disclosure of the document.

When an objection was raised against disclosure of a

particular document that it belongs to a class which in the

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public interest ought not to be disclosed, whether or not it

would be harmful to disclose that class document or the

contents of that particular document forming part of the

class would be injurious to the interest of the state or the

public service, it would be difficult to decide in vacuum

the claim because it would almost invariably be supported by

an affidavit made either by the Minister or head of the

department and if he asserts that to disclose the contents

of the document would or might do to the nation or the

public service a grave injury, the court out of deference

will be slow to question his opinion or to allow any

interest, even that of justice, to prevail over it unless

there can be shown to exist some factors suggesting either

lack of good faith or an error of judgment on the part of

the minister or the head of the department or the claim was

made in administrative routine without due consideration or

to avoid inconvenience or injury to their defence. However,

it is well-settled law that the court is not bound by the

statement made by the minister or the head of the department

in the affidavit and it retains the power to balance the

injury to the State or the public service against the risk

of injustice. The real question which the court is required

to consider is whether public interest is so strong to

override the ordinary right and interest of the litigant

that he shall be able to lay before a court of justice of

the relevant evidence. In balancing the competing interest

it is the duty of the court to see that there is the public

interest that harm shall not be done to the nation or the

827

public service by disclosure of the document and there is a

public interest that the administration of justice shall not

be frustrated by withholding documents which must be

produced if justice is to he done. It is, therefore, the

paramount right and duty of the court not of the executive

to decide whether a document will be produced or may he

withheld. The court must decide which aspect of public

interest predominates or in other words whether the public

interest which requires that the document should not be

produced out weighs the public interest that a court of

justice in performing its functions should not be denied

access to relevant evidence. In some cases, therefore, the

court must weight one competing aspect of the public

interest against the other, and decide where the balance

lies. If the nature of the injury to the public interest is

so grave a character then even private interest or any other

interest cannot be allowed to prevail over it. The basic

question to which the court would. therefore, have to

address itself for the purpose of deciding the validity of

the objection would be, whether the document relates to

affairs of State or in other words, is it of such a

character that its disclosure would be against the interest

of the State or the public service and if so, whether the

public interest in- it-; non-disclosure is so strong that it

must prevail over the private interesting the administration

of justice and on that account, it should not be allowed to

be disclosed. By operation of Sec. 162 of Evidence Act the

final decision in regard to the validity of an objection

against disclosure raised under section 123 would always be

with the court. The contention, therefore, that the claim

of public interest immunity claimed in the affidavit of the

State Minister for Finance and the Secretary need privacy

and claim for immunity of state documents from disclosure is

unsustainable.

The same is the law laid down by the Commonwealth countries,

see Conway v. Rimmer. 1968 A.C. 910, (H.L.); D. v. National

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Society for the Prevention of Cruelty to Children 1978 AC

171. (H.L.); Burmah Oil Co. Ltd. v. Governor and Company of

the Bank of England, 1980 AC 1090 (H.L.); Butters Gas and

Oil Co. v.Hammer 1982 AC 888 (H.L.); Air Canada v. Secretary

of State for Trade [1983] 2 AC 394 (H.L.); and Council of

Civil Service Unions v. Minister for the Civil service,1985

AC 374 (H.L.); Pursuant to the law laid down in Conway's,

case the Administration of Justice Act, 1970 was made

enabling the court to order disclosure of the documents

except where the court, in exercise of the power under

sections 31 to 34, considered that compliance of the order

would be injurious to the public interest consistent with

the above approach is the principle laid by this court in

S.P. Gupta's case.

In United States of America the Primacy to the executive

privilege is given only where the court is satisfied that

disclosure of the evidence will expose military

828

secrecy or of the document relating to foreign relations.

In other respects the Court would reject the assertion of

executive privilege. hi United States v. Reynolds [1935] 1

345 U.S. 1, Environment Protection Agency v. Patsy T. Mink

[410] U.S. 73 (35) L.Ed. 2nd 11; Newyork Times v. U. S.

[1971] 403 US 731; Pentagan Papers case and U. S. v. Richard

M. Nixon [1974] 418 US 683 = 41 L.Ed 2nd 1035. What is

known as Watergate Tapes case, the Supreme Court of U.S.A.

rejected the claim of the President not to disclose the

conversation he had with the officials. The Administrative

Procedure Act 5, Art 552 was made. Thereunder it was

broadly conceded to permit access to official information.

Only is stated hereinbefore the President is to withhold top

secret documents pursuant to executive order to be

classified and stamped as "highly sensitive matters vital to

our national defence and foreign policies". In other

respects under the Freedom of Information Act, documents are

accessible to production. In the latest Commentary by

McCormick on Evidence, 4th Ed. by John W. Strong in Chapter

12, surveyed the development of law on the executive

privilege and stated that at p. 155, that "once we leave the

restricted area of military and diplomatic secrets, a

greater role for the judiciary in the determination of

governmental claims of privilege becomes not only desirable

but necessary.............. Where these privileges. are

claimed, it is for the judge to determine whether the

interest in governmental secrecy is out weighed in the

particular case by the litigant's interest in obtaining

the evidence sought. A satisfactory striking of this

balance will, on the one hand, require consideration of the

interests giving rise to the privilege and an assessment of

the extent to which disclosure will realistically impair

those interests. On the other hand, factors which will

affect the litigant's need will include the significance of

the evidence sought for the case. the availability of the

desired information from other sources, and in some

instances the nature of the right being, asserted in the

litigation."

In Robinson v. State of South Australia, 1931 A.C. 704 PC,

Shankey v. Whitlan [1979] 53 ALR p.1; FAI Insurances Ltd. v.

The Hon. Sir, Henry Arthus Winneke and ors, [1982] 151 CLR

342, whitlan v. Australian Consolidated Press Ltd.,[1985] 60

ALR p.7; Minister for Arts Heritage and Environment and Ors.

v. Pekoi Wallsend Ltd and Ors. [1987] 75 ALR 218 and

Commonwealth of Australia v. Northern Land Council, and Anr.

[1991] 103 ALR 267, Australian Courts consistently rejected

the executive privilege and exercise the power to determine

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whether the documents need immunity from disclosure in the

public interest. The same view was endorsed by the Supreme

Court of 'Canada in R. v. Shinder 1954 SLR 479 and Gagnon v.

Quebec, Securities Commission 1964 SCR 329; The Supreme

Court of Victoria in Bruce v. Waldron. [1963] VLR p.3; The

Court of Appeal of New south Wales in Re Tunstall. Ex. P.

Brown, [1966] 84 W.N. (Pt. 2)

829

[N.S.W.] 13. The Court of Appeal of the New Zealand in

Corbett v.Social Security Commission [1962] N.Z.L.R. 878,

Creednz Inc v. Governor General [1981] 1 N.L.R. p. 172; The

Supreme Court of Ceylon in Apponhamy v. Illangaretute,

[1964] 66 C.L.W. 17. The Court of Appeal of Jamaica in

Allen v. By field [No.2] [1964] 7 W.I.R. 69 at page 71 and

The Court of Session in Scotland in Glasqow Corporation v.

Central Land Board, [1956] Scotland Law Time p.4.

The learned Solicitor General contended that a Cabinet sub-

committee constituted under Rules of Business approved the

appointment of Harish Chander as President of CEGAT. The

President accordingly appointed him. By operation of Art.

77 (3) and 74(1), the appointment was made by the President.

The file constitutes Cabinet documents forming part of the

Preparation of the documents leading to the formation of the

advice tendered to the President. Noting of the officials

which lead to the Cabinet note and Cabinet decision and all

papers brought into existence to prepare Cabinet note are

also its part. Section 123 of the Evidence Act and Article

74(2) precludes this court from inquiring into the nature of

the advice tendered to the President and the documents are,

therefore, immuned from disclosure. The disclosure would

cause public injury preventing candid and frank discussion

and expression of views by the bureaucrats at higher level

and by the Minister/Cabinet Sub-committee causing serious

injury to public service. Therefore, Cabinet papers,

Minutes of discussion by heads of departments; high level

documents relating to the inner working of the government

machine and all papers concerned with the government

policies belong to a class documents which in the public

interest they or contents thereof must be protected against

disclosure.

The executive power of the Union vested in the President by

Operation of Art. 53(1) shall be exercised by him either

directly or through officers subordinate to him in

accordance with the Constitution. By operation of Art.

73(1), subject to the provisions of the constitution, the

executive power of the Union shall extend to the matters

with respect to which Parliament has power to make laws.

Article 75(1) provides that the Prime Minister shall be

appointed by the President and the other Ministers shall be

appointed by the President on the advice of the Prime

Minister; Art. 75(3) posits that the Council of Ministers

shall be collectively responsible to the House of the

People; Art. 75(4) enjoins that before a Minister enters

upon his office, the President shall administer to him the

oaths of office and of secrecy according to the forms set

out for the purpose in the Third Schedule to the

Constitution. Article 74(1) as amended by section 11 of the

Constitution 42nd Amendment Act, 1976 with effect from

January 3, 1977 postulates that there shall be a Council of

Ministers with the Prime Minister as the head to aid and

advise the President who shall, in the exercise of his

functions, act in accordance with such

830

advice. The proviso thereto added by section 11 of the

Constitution 44th Amendment Act, 1978 which came into effect

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from June 20, 1979 envisages that "provided that the

President may require the Council of Ministers to reconsider

such advice, either generally or otherwise, and the

President shall act in accordance with the advice tendered

after such reconsideration." Clause (2) declares that "the

question whether any, and if so what, advice was tendered by

Minister to the President shall not be inquired into in any

court." In Satwant Singh Sawhney v. D. Ramarathnam. Asstt.

Passport Officer [1967] 3 SCR 525, and in Maganbhai

Ishwarbhai Patel v. Union of India and anr. [1969] 3 SCR

254, this Court held that the Ministers are officers

subordinate to the President under Art. 53 (1) or 'the

Governor under Art. 154 (1),. as the case may be.

The President exercises his executive power under Art: 74

(1) through the Council of Ministers with the Prime Minister

as its head who shall be collectively responsible to the

House of People. The exercise of the power would be as per

the rules of business for convenient transaction of the

Govt. administration made under Art. 77(3), viz., the Govt.

of India (Transaction of Business) Rules, 1961 for short the

'Business Rules'. The Prime Minister shall be duty bound

under Art. 78 to communicate to the President all decisions

of the Council of Ministers relating to the administration

of the affairs of the Union and proposals for legislation

etc. The details whereof are not material. Article 77(1)

prescribes that "all executive actions of the Govt. of India

shall be expressed to be taken in the name of the President

and shall be authenticated in the manner specified in the

Rules made by the President. The President issued business

rules and has allocated diverse functions to the Council of

Ministers, its committees and the officers subordinate to

them.

In Shamsher Singh v. State of Punjab [1975] 1 SCR 814, a

Bench of seven Judges, speaking through Ray, C.J., held that

the executive power is generally described as the residue

which does not fall within legislative or judical power but

executive power also partakes of legislative or judicial,

actions. All powers and functions of the President, except

his legislative powers, are executive powers of the Union

vested in the President under Art. 53(1). The President

exercises his functions, except conferred on him to be

exercised in his discretion, with the aid and advice of the

Council of Ministers as per the business rules allocated

among his Ministers or Committees. Wherever the

constitution requires the satisfaction of the President, the

satisfaction required of him by the Constitution is not the

personal satisfaction of the President, but is of the

Cabinet System of Govt. The Minister lays down the

policies. The Council of Ministers settle the major

policies. The civil servant does it on behalf of the Govt.

as limb of the Govt. The decision of any Minister or

officer under the rules is the decision of the President.

831

Cabinet is a constitutional mechanism to ensure that before

important decisions are reached many sides of the question

are weighed and considered which would mean that much work

must be done beforehand in interdepartmental discussions and

in the preparation of papers for Cabinet Committees.

Political decisions of importance are in their nature

complies and need sufficient time and considerate thought.

Equally, the decisions relating to public service need

probity and diverse consideration. The Cabinet system is

extremely well adapted to making considered decisions with

all due speed and expedition. The principle of ministerial

responsibility has a verity of meanings precise and

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imprecise, authentic and vague. Parliament rarely exercises

direct control over Ministers. Though the floor of the

House is the forum for correcting excesses of the government

but rarely a place where a Minister can be expected to keep

the information secret. Therefore, the Minister is

answerable for his decision to the Parliament is fanciful.

Sir Ivor Jennings,in his Cabinet Government, stated that the

Cabinet is the supreme directing authority. It integrates

what would otherwise be a heterogeneous collection of

authorities exercising a vast variety of functions. Neither

the Cabinet nor the Prime Minister, as such, claims to

exercise any powers conferred by law. They take the

decision, but the acts which have legal effect are taken by

others the Privy Council, a Minister, a statutory

commission and the like. At page 81, it is stated, that the

existence and activities of these coordinating ministers

does not impair or diminish the responsibility to Parliament

of the departmental ministers whose policies they co-

ordinate. The ministers are fully accountable to Parliament

for any act of policy or administration within their

departmental jurisdiction. It does not follow that the

coordinating ministers are non-responsible. Having no

statutory powers as coordinating ministers, they perform in

that capacity no formal acts. But they share in the

collective responsibility of the Govt. as a whole, and, as

Minister they are accountable to Parliament. At page 233,

he stated that the Cabinet has to decide policy matters.

Cabinet is policy formulating body. When it has determined

on a policy, the appropriate department carries it out,

either by administrative action within the law or by

drafting a bill to be submitted to Parliament so as to

change the law. The Cabinet is a general, controlling body.

It neither desires, nor is able to deal with all the

numerous details of the Govt. It expects a minister to take

all decisions which are not of real political importance.

Every Minister must, therefore, exercise his own discretion

as to what matters arising in his department ought to

receive cabinet sanction. At page 35 1, he stated that

civil servants prepare memorandum for their Ministers.

Ministers discuss in Cabinet. Proposals are debated in the

House of Commons. At the, persons involved are peculiar

people and nobody knows what the man in the back street

thinks of it all, though the politician often thinks he

does. On the Cabinet

832

Minister's responsibility at page 449, he stated that when

it is said that a Minister is responsible to Parliament, it

is meant that the House of Commons (in our constitution Lok

Sabha) may demand an explanation. If that explanation is

not considered satisfactory and the responsibility is

collective, the House will vote against the Govt. and so

compel a resignation or a dissolution. If the

responsibility is not collective, but the act or advice was

due to the negligence of or to an error of judgment by a

Minister and the House disapproves, the Minister will

resign.

In Halsbury's Laws of England, Fourth Ed., Vol. 8, para 820,

it is stated that the Cabinet control of legislative and

executive functions, the "modern English system of

government is the concentration of the control of both

legislative and executive functions in a small body of men,

presided over by the Prime Minister, who are agreed on

fundamentals and decide the most important questions of

policy secretly in the Cabinet. The most important check on

their power is the existence of a powerful and organised

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parliamentary opposition, and the possibility that measures

proposed or carried by the government may subject them to

popular disapproval and enable the Opposition to defeat them

at the next general election and supplant them in their

control of the executive. In Great Britain, Cabinet system

is based on conventions. Patrick Gordon Walker in his 'The

Cabinet' 1973 Revised Ed. at p. 178 stated that basically

Cabinet is a constitutional mechanism to ensure that before

important decisions are reached many sides of the question

are weighed and considered. This means that much work must

be done beforehand in interdepartmental discussions and in

the preparation of papers for Cabinet Committees and the

Cabinet. Cabinet that acts without briefs or over hastily'

think for themselves' usually, in my experience, make

mistaken decisions. Political decisions of importance are

in their nature complex and need some time and thought. The

cabinet system is extremely well adapted to making

considered decisions with all due speed. Cabinet

discussions as distinct from Cabinet decisions must, from

their nature, be kept secret. At page 184 he maintained

that the main effective change towards less secrecy would be

for the Cabinet to share with Parliament and public more of

the factual information on which the government makes some

of their decisions. Moves in this direction have begun to

be taken. In his "the British Cabinet" John P. Mackintosh,

2nd Edn. at p. 11 stated that if there is dissension

between Ministers, matters may be thrashed out in private

and the contestants plead in turn with the Prime Minister,

but it is in the Cabinet that the conflict must be formally

solved, the minority either accepting the decision and

assuming joint responsibility or, if they cannot tolerate

it, tender their resignations. At p.529, he stated that

some decisions are taken by the Prime Minister alone, some

in consultation between him and the senior Ministers, while

others are left to heads of departments, to the full

Cabinet, to the concerned Cabinet Committee, or to the

833

permanent officials. Of these bodies the Cabinet holds the

central position because, thou oh it does not often govern

in that sense, it is the place where disputes are settled,

where major policies are endorsed and where the balance of

the forces emerge if there is disagreement. In the end,

most decisions have to be reported to the Cabinet and

Cabinet Minister are the only ones who have the right to

complain, if they have not been informed or consulted. 0.

Hood Phillips and Paul Jackson in their Constitutional and

Administrative Law, 7th Ed. at p.301 stated that the duties

of Cabinets are:

"(a) the final determination of the policy to be submitted

to Parliament', (b) the supreme control of the national

executive in accordance with the policy prescribed by the

Parliament, and (c) the continuous coordination and

delimitation in the interests of the several departments of

State." The Cabinet, giving collective ..advice" to the

Sovereign through the Prime Minister, was said to exercise

under Parliament, supreme control over all departments of

State, and to be the body which coordinate the work on the

one hand of the executive and the legislature, and on the

other hand of the organs of the executive among

themselves.... At p.307, they stated that "committee system

has increased the efficiency of the Cabinet, and enables a

great deal more work to be done by Ministers". The Cabinet

itself is left free to discuss controversial matters and to

make more important decisions, and its business is better

prepared. The system also enables non-Cabinet Ministers to

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be brought into discussions. At p.309 it is stated that

"the responsibility of Ministers is both individual and

collective". The individual responsibility of a Minister

for the performance of his official duties is both legal and

conventional: it is owed legally to the sovereign and also

by convention to Parliament. Responsibility is

accountability or answerability. The responsible Minister

is the one under whose authority an act was, done, or "who

must take the constitutional consequences of what has been

done either by himself or in his department".

In 'the Cabinet Walker, at page 183 stated that the feeling

is widespread that the Cabinet shrouds its affairs in too

much secrecy and that Parliament, Press and public should be

able to participate to a greater degree in formulation of

policy. With few exceptions Cabinet decisions have to be

made public in order to he made effective, although a small

number that do not need to be executed, do not become known,

for instance talks with a foreign country or a decision not

to take some action. All other cabinet decisions are

necessarily disclosed and are subject to public scrutiny.

Cabinet discussions as distinct from Cabinet decisions must,

from their nature, be kept secret. Cabinet discussions

often depend upon confidential advice from civil servants or

reports from Ambassadors. If those are disclosed and thus

become subject to public attack, it would be extremely

difficult for the cabinet

834

to secure free and frank advice. In Rai Sahib Ram Jawaya

Kapur & Ors. v. The State of Punjab [1955] 2 SCR 225 at 236,

this Court held that the existence of the law is not a

condition precedent for the exercise of the executive power.

The executive power connotes the residual government

function that remain after legislative and judicial

functions are taken away, subject to the provisions of the

Constitution or the law.

It would thus be held that the Cabinet known as Council of

Ministers headed by Prime Minister under Art. 75(3) is the

driving and steering body responsible for the Governance of

the country. They enjoy the confidence of the Parliament

and remain in office so long as they maintain the confidence

of the majority. They are answerable to the Parliament and

accountable to people. They bear collective responsibility

and shall be bound to maintain secrecy. Their executive

function comprises of both the determination of the policy

as well as carrying it into execution, the initiation of

legislation, the maintenance of order, the promotion of

social and economic welfare, direction of foreign policy.

In short the carrying on or supervision of the general

administration of the affairs of Union of India which

includes political activity and carrying on all trading

activities, the acquisition, holding and disposal of

property and the making of contracts for any purpose. In

short the primary function of the Cabinet is to formulate

the policies of the Govt. in confirmity with the directive

principles of the Constitution for the Governance of the

nation; place before the Parliament for acceptance and would

carry on the executive function of the State as per the

provisions of the Constitution and the laws.

Collective responsibility under Art. 75(3) of the

Constitution inheres maintenance of confidentiality as

enjoined in oaths of office and of secrecy set forth in

Schedule III of the Constitution that the Minister will not

directly or indirectly communicate or reveal to any person

or persons any matter which shall be brought under his/her

consideration or shall become known to him/her as Minister

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except as may be required for the "due discharge of his/her

duty as Minister". The base and basic postulate of its

significance is unexceptionable. But the need for and

effect of confidentiality has to be nurtured not merely from

political imperatives of collective responsibility envisaged

by Art. 75(3) but also from its pragmatism. Bagehot in his

'The English Constitution', 1964 Edition at p. 68 stated

that the most curious point about the Cabinet is that so

very little is known about it. The meetings are not only

secret in theory, but secret in reality. By the present

practice, no official minute in all ordinary cases is kept

of them. Even a private note is discouraged and

disliked.......... But a Cabinet, though it is a committee

of the legislative assembly,is a committee with a power

which no assembly would-unless

835

for historical accidents, and after happy experience-have

been persuaded to entrust to any committee. It is a

committee which can dissolve the assembly which appointed

it; it is a committee with a suspensive veto-a committee

with a power of appeal.

In Commonwealth of Australia v. Northern Land Council & Anr.

[1991] 103 Australian Law Reports, p. 267, the Federal Court

of Australia General Division, was to consider the scope of

confidentiality of the cabinet papers, collective

responsibility of the Council of Ministers and the need for

discovery of the Cabinet note-books and dealt with the

question thus : "The conventional wisdom of contemporary

constitutional practice present secrecy as a necessary

incident of collective responsibility. But historically it

seems to have derived from the 17th century origins of the

cabinet as an inner circle of Privy Councillors, sometimes

called the Cabinet Council who acted as advisors to the

monarch............ However, that basis for confidentiality

has to be assessed in the light of the political,

imperatives of collective responsibility." Confidentiality

has been described as' the natural correlative of collective

responsibility. It is said to be difficult for Ministers to

make an effective defence in public of decisions with which

it is known that they have disagreed in the course of

Cabinet discussions. The Cabinet as a whole is responsible

for the advice and conduct of each of its members. If any

member of the Cabinet seriously dissents from the opinion

and policy approved' by the majority of his colleagues it is

his duty as a man of honour to resign. Cabinet secrecy is

an essential part of the structure of government which

centers of political experience have created. To impair it

without a very strong reason would be vandalism the wanton

rejection of the fruits of civilisation.

By operation of Art. 75 (3) and oaths of office and of

secrecy taken, the" individual Minister and the Council of

Ministers with the Prime Minister as its head, as executive

head of the State as a unit, body or committee are

individually and collectively responsible to their decisions

or acts or policies and they should work in unison and

harmony. They individually and collectively maintain

secrecy of the deliberations both of administration and of

formulating executive or legislative policies. Advice

tendered by the Cabinet to the President should be

unanimous. The Cabinet should stand or fall together.

Therefore, the Cabinet as a whole is collectively

responsible for the advice tendered to the President and for

the conduct of business of each of his/her department. They

require to maintain secrecy and confidentiality in the

performance of that duty of office entrusted by the

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Constitution and the laws. Political promises or aims as

per manifesto of the political party are necessarily broad;

in their particular applications, when voted to power, may

be the subject of disagreement among the members of the

Cabinet.

836

Each member of the Cabinet has personal responsibility to

his conscience and also responsibility to the Government.

Discussion and persuasion may diminish disagreement, reach

unanimity, or leave it unaltered. Despite persistence of

disagreement, it is a decision, though some members like it

less than others. Both practical politics and good

Government require that those who like it less must still

publicly support it. If such support is too great a strain

on a Minister's conscience or incompatible to his/her

perceptions of commitment and find it difficult to support

the decision, it would be open to him/her to resign. So the

price of the acceptance of Cabinet office is the assumption

of the responsibility to support Cabinet decisions. The

burden of that responsibility is shared by all.

Equally every member is entitled to insist that whatever his

own contribution was to the making of the decision, whether

favourable or unfavourable, every other member will keep it

secret. Maintenance of secrecy of an individual's

contribution to discussion, or vote in the Cabinet

guarantees most favourable and conducive atmosphere to

express views formally. To reveal the view, or vote, of a

member of the Cabinet, expressed or given in Cabinet, is not

only to disappoint an expectation on which that member was

entitled to rely, but also to reduce the security of the

continuing guarantee, and above all, to undermine the

principle of Collective responsibility. Joint

responsibility supersede individual responsibility; in

accepting responsibility for joint decision, each member is

entitled to an assurance that he will be held responsible

not only for his own, but also as member if the whole

Cabinet which made it; that he will be held responsible for

maintaining secrecy of any different view which the others

may have expressed. The obvious and basic fact is that as

part of the machinery of the Government, Cabinet secrecy is

an essential part of the structure of the government.

Confidentiality and collective responsibility in that

scenario are twins to effectuate the object of frank and

open debate to augment efficiency of public service or

effectivity of collective decision to elongate public

interest. To hamper and impair them without any compelling

or at least strong reasons, would be detrimental to the

efficacy of public administration. It would tantamount to

wanton rejection of the fruits of democratic governance, and

abdication of an office of responsibility and dependability.

Maintaining of top secrecy of new taxation policies is a

must but leaking budget proposals a day before presentation

of the budget may be an exceptional occurrence as an

instance.

Above compulsive constraints would give rise to an immediate

question whether the minister is required to disclose in the

affidavit the reasons or grounds for public interest

immunity of disclosure and the oath of secrecy is thereby

whether breached or whether it would be a shield for non-

production of unpub-

837

lished state documents or an escape route to- acts impugned

as fondly pleaded and fervently argued by Attorney General.

It is already held that on issuance of rule nisi or

discovery order nisi" every or,-,an of the State or the

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authority or a person is enjoined to act in aid of this

court and pursuant thereto shall be required to produce the

summoned documents. But when a claim for public interest

immunity has been laid for non-disclosure of the state

documents, it is the Minister's "due discharge of duty" to

state on oath in his affidavit the grounds on which and the

reasons for which he has been persuaded to claim public

interest immunity from disclosure of the state papers and

produce them. The oath of secrecy the Minister had taken

does not absolve him from filing the affidavit. It is his

due discharge of constitutional duty to state in the

affidavit of the grounds or reasons in support of public

interest immunity from producing the state documents before

the Court, In Attorney General v. Jonathan Cape Ltd. [1976]

Queen's Bench, 752, Lord Widgery, C.J., repelled the

contention that publication of the diaries maintained by the

Minister would be in breach of oath of secrecy. In support

of the plea of secrecy reliance was placed on the debates on

cabinet secrecy, that took place on December 1, 1932 in the

House of Lords. An extract from the official report of

House of Lords, at Column 520 Lord Hailsham's speech

emphasised the imperative to maintain secrecy and the

limitation which rigidly hedged around the position of a

Cabinet Minister thus: "having heard that oath read your

Lordships will appreciate what a complete misconception it

is. to suppose, as some people seem inclined to suppose,

that the only obligation that rests upon a Cabinet Minister

is not to disclose what are described as the Cabinet's

minutes. He is sworn to keep secret all matters committed

and revealed unto him or that shall be treated secretrly in

council". He went on to point out that:-

"I have stressed that because, as my noble and

learned friend Lord Halsbury suggested and the

noble Marquis, Lord Salisbury, confirmed,

Cabinet conclusions did not exist until 16

years ago. The old practice is set out in a

book which bears the name of the noble Earl's

father, Halsbury's Laws of England, with which

I have had the honour to be associated in the

present edition."

Then in column 532 of the speech Lord Hailsham, stated that

the oath of secrecy should be maintained. "Upon matters on

which it is their shorn duty to express, their. opinions.

with complete frankness and to give all information, without

any haunting fear that what happens may hereafter by

publication create difficulties for themselves or, what is

far more grave, may create complications for the king and

country that they are trying to serve. For those reasons I

hope that the inflexible rule which has hitherto prevailed

will be maintained in its integrity, and that if there has

been any relaxation or misunderstanding, of which I say

nothing,

838

the debate in this House will have done something to clarify

the position and restate the old rule in all its rigour and

all its inflexibility."

As a Council of Minister, his duty is to maintain the

sanctity of oath and to keep discussions and information he

had during its course as secret. Lord Widgery after

considering the evidence of a former Minister examined in

that case who did not support the view of Lord Hailsham,

held thus: "that degree of protection, afforded to cabinet

papers and discussions cannot be determined by single rule

of thumb. Some secrets require a high standard of

protection for short time, other requires protection till a

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new political generation has taken over. In the Present

action against the literary executors, "the perpetual

injunction against them restraining from their publication

was not proper". It was further held that the draconian

remedy when public interest demands it would be relaxed.

In Sankey v. Whitlan 1979 153 Australian Law Journal

Reports, 11, while considering the same question, Gibbs,

A.,C.J., at p.23, held that the fact that members of the

Executive Council are required to take a binding oath of

secrecy does not assist the argument that the production of

State papers cannot be compelled. The plea of privilege was

negatived and the Cabinet papers were directed to be

produced. The contention that the Minister is precluded to

disclose in his affidavit the grounds or the reasons as to

how he dealt with the matter as a part of the claim for

public interest immunity is devoid of substance.

It is already held that it is the duty of the Minister to

file an affidavit stating the grounds or the reasons in

support of the claim from public interest immunity. He

takes grave risk on insistence of oath of secrecy to avoid

filing an affidavit or production of State documents and the

court may be constrained to draw such inference as are

available at law. Accordingly we hold that the oath of

office of secrecy adumberated in Article 75(4) and Schedule

III of the Constitution does not absolve the Minister either

to state the reasons in support of the public interest

immunity to produce the state documents or as to how the

matter was dealt with or for their production when discovery

order nisi or rule nisi was issued. On the other hand it is

his due discharge of the duty as a Minister to obey rule

nisi or discovery order nisi and act in aid of the court.

The next limb of the argument is that the Cabinet Sub-

committee's decision is a class document and the contents of

state documents required to be kept in confidence for

efficient functioning of public service including candid and

objective expression of the views on the opinion by the

Ministers or bureaucrats etc. The prospects of later

disclosure at a at a litigation would hamper and dampen

839

candour causing serious incursion into the efficacy of

public service and result in deterioration in proper

functioning of the public service. This blanket shielding

of disclosure was disfavoured right from Robinson v. State

of South Australia [1931] Appeal Cases, (P.C.), p. 704 Lord

Warrington speaking for the Board held that the privilege is

a narrow, one and must sparingly be exercised. This court

in Raj Narain's case considering green book, i.e.,

guidelines for protecting VVIPs on tour, though held to be

confidential document and be wihheld from production, though

part of its contents were already revealed, yet it was held

that confidentiality itself is not a head of privilege.

In S.P. Gupta's case, Bhagwati, J., speaking per majority,

reviewing the case law and the privilege against disclosure

of correspondence exchanged between the Chief Justice of the

Delhi High Court, Chief Justice of India and the Law

Minister of the Union concerning extension of term or

appointment of Addl. Judges of the Delhi High Court, which

was not dissented, (but explained by Fazal Ali,J.) held that

in a democracy, citizens are to know what their Govt. is

doing. No democratic Govt. can survive without

accountability and the basic postulate of accountability is

that the people should have information about the

functioning of the Govt. It is only if the people know how

the Govt. is functioning and that they can fulfill their own

democratic rights given to them and make the democracy a

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really effective participatory democracy. There can be

little doubt that exposure to public scrutiny is one of the

surest means of running a clean and healthy administration.

Disclosure of information in regard to the functioning of

the Govt. must be the rule and secrecy can be exceptionally

justified only where strict requirements of public

information was assumed. The approach of the court must be

to alleviate the area of secrecy as much as possible

constantly with the requirement of public interest bearing

in mind all the time that the disclosure also serves an

important' aspect of public interest. In that case the

correspondence between the constitutional functionaries was

inspected by this court and disclosed to the opposite

parties to formulate their contentions.

In Conway's case, the speech of Lord Reid is the sole votery

to support the plea of confidentiality emphasising that,

"the business of Govt. is difficult enough as it is no Govt.

could contemplate with equanimity the inner workings of the

Govt. machine being exposed to the gazes of those ready to

criticise without adequate knowledge of the background and

perhaps with some axe to grind". Other Law Lords negated

it. Lord Morris of Borth-y-Gest referred it as "being

doubtful validity". Lord Hodson thought it "impossible to

justify the doctrine in its widest term. Lord Pearce

considered that "a general blanket protection of wide

classes

840

led to a 0complete lack of common sense". Lord Upjohn found

it difficult to justify the doctrine "when those in other

walks of life which give rise to equally important matters

of confidence in relation to security and personal matters

as in the public service can claim no such privilege". In

Burmah Oil Co's. case House of Lords dealing with the

cabinet discussion laid that the claim for blanket immunity

"must now be treated as having little weight, if any". It

was further stated that the notion that "any competent and

conscientious public servant would be inhibited at all in

the candour of his writings by consideration of the off-

chance that they might have to be produced in a litigation

as grotesque". The plea of impairment of public service was

also held not available stating "now a days the state in

multifarious manifestations impinges closely upon the lives

and activities of individual citizens. Where this was

involved a citizen in litigation with the state or one of

its agencies, the candour argument is an utterly

insubstantial ground for denying his access to relevant

document". The candour doctrine stands in a different

category from that aspect of public interest which in

appropriate circumstances may require that the "Sources and

nature of information confidentially tendered" should be

with held from disclosure. In Reg v., Lewes Justices, Ex

Parte Secretary of state for the Home Department [1973] A.C.

388 and D.V National Society ,for the Prevention of Cruelty

to Children [1978] A.C. 171, are cases in point on that

matter and needs no reiteration.

It would, therefore, be concluded that it would be going too

far to lay down that no document in any particular class or

one of the categories of cabinet papers or decisions or

contents thereof should never, in any circumstances, be

ordered to be produced. Lord Keith in Burnnah Oil's case

considered that it would be going too far to lay down a

total protection to cabinet minutes. The learned Law Lord

at p. 1134 stated that "something must turn upon the subject

matter, the persons who dealt with it, and the manner in

which they did so. In so far as a matter of government

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policy is concerned, it may be relevant to know the extent

to which the policy remains unfulfilled, so that its success

might be prejudiced by disclosure of the considerations

which led to it. In that context the time element enters

into the equation. Details of an affair which is stale and

no longer of topical significance might be capable of

disclosure without risk of damage to the public

interest..... The nature of the litigation and the apparent

importance to it of the documents in question may in extreme

cases demand production even of the most sensitive

communications to the highest level." Lord Scarman also

objected total immunity to Cabinet documents on the plea of

candour. In Air Canada's case, Lord Fraser lifted Cabinet

minutes front the total immunity to disclose, although same

were entitled to a hi oh degree of protection ......."

841

In Jonathan Cape Ltd.'s case, it was held that, "it seen-is

that the degree of protection afforded to Cabinet papers and

discussions cannot be determined by a single rule of thumb.

Some secrets require a high standard of protection for a

short time. Others require protection until new political

generation has taken over. Lord Redcliff Committee,

appointed pursuant to this decision, recommended time gap of

15 years to withhold disclosure of the cabinet proceedings

and the Govt. accepted the same. Shanky's case ratio too

discounted total immunity to the Cabinet document as a class

and the plea of hampering, freedom and candid advice or

exchange of views and opinions was also rejected. It was

held that the need for protection depends on the facts in

each case. The object of the protection is to ensure the

proper working of the Govt. and not to shield the Ministers

and servants of the crown from criticism however,

intemperate and unfairly based. Pincus J. in Harbour Corp.

of Queensland v. Vessey Chemicals Ply Ltd. [1986] 67 ALR

100; Wilcox J. in Manthal Australia Pty Ltd. v. Minister for

industry, Technology and commerce 11987171 ALR 109; Koowarta

v. Bjelke-Petersen [1988] and 92 FLR 104 took the same view.

In Australia, the recognised rule thus is that the blanket

immunity of all Cabinet documents was given a go-bye. In

United States v. Richard M. Nixon [1974] 418 US 683 = 41

Lawyers Ed., 2nd Ed., 1039, a grand jury of the United

States District Court for the District of Columbia indicted

named individuals, charging them with various offences,

including conspiracy to defraud the United States and to

obstruct justice; and Mr Nixon, the President of United

States was also named as an unindicted coconspirator. The

special prosecutor issued a third party subpoena duces tecum

directing the President to produce at the trial certain tape

recordings and documents relating to his conversations with

aides and advisors known as Watergate rapes. The

President's executive privilege again st disclosure of

confidential communications was negatived holding that the

right to the production of all evidence at a criminal trial

has constitutional dimensions under sixth amendment. The

fifth amendment guarantees that no person shall be deprived

of liberty without due process of law. It was, therefore,

held that it is the manifest duty of the court to vindicate

those guarantees, and to accomplish that, it is essential

that all relevant and admissible evidence be produced.

Though the court must weigh the importance of the general

privilege of confidentiality of Presidential communications

in performance of his responsibilities, it is an inroad on

the fair administration of criminal justice. In balancing

between the President's generalised interest in

confidentiality and the need for relevant evidence in the

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litigation, civil or criminal and though the interest in

preserving confidentiality is weighty indeed "and entitled

to great respect."

Allowing privilege to withhold evidence that is demonstrably

relevant in a criminal trial would cut deeply into the

guarantee of due process of law and gravely impair the basic

function of the courts. A President's acknowledged need for

842

confidentiality in the communications of his office is

general in nature, whereas constitutional need for

production of relevant evidence in a criminal proceeding is

specific, and central to the fair adjudication of a

particular criminal case in the administration of justice.

Without access to specific facts a criminal prosecution may

be totally frustrated. The President's broad interest in

confidentiality of communications will not be vitiated by

disclosure of a limited number of conversations

preliminarily shown to have some bearing on the pending

criminal cases. If the privilege is based only on the

generalized interest in confidentiality, it cannot prevail

over the fundamental demands of due process of law in the

fair administration of criminal justice. The generalized

assertion of privilege must yield to the demonstrated,

specific need for evidence in a pending criminal trial.

Exemptions were engrafted only to the evidence relating to

"the security of the State, diplomatic relations and

defence". It was held that "the importance of this

confidentiality is too plain to require further discussion.

Human experience teaches that those who expect public

dissemination of their remarks may well temper candor with a

concern for appearances and for their own interest to the

detriment of the decision-making process. Whatever the

nature of the privilege of confidentiality of Presidential

communications in the exercise of Art. 11 powers, the

privilege can be said to derive from the supremacy of each

branch within its own assigned area of constitutional

duties. Certain powers and privileges flow from the nature

of enumerated powers, the protection of the confidentiality

of Presidential communications has similar constitutional

underpinnings. However, neither the doctrine of separation

of powers, nor the need for confidentiality of high level

communications, without more, can sustain an absolute,

unqualified Presidential privilege of immunity from judicial

process under all circumstances. The President's need for

complete candor and objectivity from advisers calls for

great deference from the courts. However, when the

privilege depends solely on the broad, undifferentiated

claim of public interest in the confidentiality of such

conversations, a confrontation with other values arises.

Absent a claim of need to protect military, diplomatic, or

sensitive national security secrets, we find it difficult to

accept the argument that even the very important interest in

confidentiality of Presidential communications is

significantly diminished by production of such material for

in camera inspection with all the protection that a district

court will be obliged to provide.

In a clash of public interest that harm shall be done to the

nation or the public service by disclosure of certain

documents and the administration of justice shall not be

frustrated by withholding the document which must be

produced if justice is to be done, it is the courts duty to

balance the competing interests by weighing in scales, the

effect of disclosure on the public interest or injury to

administration

843

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of justice, which would do greater harm. Some of the

important considerations in the balancing act are thus: "in

the interest of national security some information which is

so secret that it cannot be disclosed except to a very few

for instance the state or its own spies or agents just as

other counters have. Their very lives may be endangered if

there is the slighest hint of what they are doing. In Mark

Hosenball. R. v. Home Secretary. ex parte Hosenball [1977]

1 WLR 766, in the interest of national security Lord

Denning, M.R. did not permit disclosure of the information

furnished by the security service to the Home Secretary

holding it highly confidence The public interest in the

security of the realm was held so great that the sources of

the information must not be disclosed nor should the nature

of the information itself be disclosed.

There is a natural temptation for people in executive

position to regard the interest of the department as

paramount forgetting that there is yet another Greater

interest to be considered, namely, the interest of justice

itself. Inconvenience and justice are often not on speaking

terms. No one can suppose that the executive will never be

guilty of the sins common to all people. Sometimes they may

do things which they on which they on ought not to do or

will not do things they ought to do. The court must be

alive to that possibility of the executive committing

illegality in its process, exercising its powers, reaching a

decision which no reasonable authority would have reached or

otherwise abuse its powers, etc. If and when such wrongs

are suffered or encountered injustice by an individual what

would be the remedy? Just as shawl is not suitable for

winning the cold, so also mere remedy of writ of mandamus,

certiorari, etc. or such action as is warranted are not

enough, unless necessary foundation with factual material,

in support thereof, are laid. Judicial review aims to

protect a citizen from such breaches of power, non-exercise

of power or lack of power etc. The functionary must be

guided by relevant and germane considerations. If the

proceeding, decision or order is influenced by extraneous

considerations which ought not to have been taken into

account, it cannot stand and needs correction, no matter of

the nature of the statutory body or status or stature of the

constitutional functionary though might have acted in good

faith. Here the court in its judicial review, is not

concerned with the merits of the decisions, but its

legality. It is, therefore, the function of the court to

see that lawful authority is not abused. Every

communication that passes between different departments of

the Govt. or between the members of the same department

interse and every order made by a Minister or Head of the

Department cannot, therefore, be deemed to relate to the

affairs of the-state, unless it related to a matter of vital

importance, the disclosure of which is likely to prejudice

the interest of the state.

Confidentiality, candour and efficient public service often

bear common

844

mask. Lord Keath in Burmah Oil's case, observed that the

notion that any' competent or conscientious public servant

would be inhibited in the candour of his writings by

consideration of the off-chance that they might have to be

produced inlitigationisgrotesque. The possibility that it

impairs the public service was also nailed. This court in

S. P. Gupta's case also rejected the plea of hampering

candid expression of views or opinion by constitutional

functionaries and bureaucrats. In Whitlam v. Australian

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Consolidated Press [1985] 60 ALR p. 7, the Supreme Court of

Australia Capital territory in a suit for damages for

defamation, the plaintiff, the former Prime Minister of

Australia was called upon to answer certain interrogatories

to disclose discussions and words uttered at the meeting of

the Cabinet or of the Executive Council at which the

plaintiff had been present. The commonwealth intervened and

claimed privilege prohibiting the plaintiff to disclose by

answering those interrogatories. The claim was based on two

grounds: (i) the oath taken by the plaintiff as a member of

the Executive Council; and also immunity from disclosing of

the Cabinet meetings and both were public policies. It was

also contended that it would be in breach of the principle

of collective Cabinet responsibility. The court held that

the oath taken by the plaintiff did not in itself provide a

reason for refusing to answer the interrogatories whether

immunity from disclosure would be granted depends upon the

balancing of two competing aspects, both of public policy,

on the one hand the need to protect a public interest which

might be endangered by disclosure, and on the other the need

to ensure that the private rights of individual litigants

are not unduly restricted. The disclosure of the meeting of

the Cabinet or of the Executive Council would not be a

breach of the principle of other two responsibilities.

Bagehot stated, protection from disclosure is not for the

purpose of shielding them from criticism, but of preventing

the attribution to them of personal responsibility. It was

stated that "I am not required to lay down a precise test of

when an individual opinion expressed in Cabinet becomes of

merely historical interest". The Cabinet minutes and

minutes of discussion are a class. They might in very

special circumstances be examined. Public interest in

maintaining Cabinet secrecy easily outweighs the contrary

public interest in ensuring that the defendant has proper

facilities for conducting its case, principally because of

the enormous importance of Cabinet secrecy by comparison

with the private rights of an individual and also because of

the relative unimportance of these answers to the

defendant's case. Answers to interrogatories 87 (vii),

(viii) and (ix) were restrained to be disclosed which

relates to the members of the Council who expressed doubts

as to whether the borrowing was wholly for temporary purpose

and to identify such purpose. In Jonathan Cape Ltd. case,

Lord Widgery CJ. held that publication of the Cabinet

discussion after certain lapse of time would not inhibit

free discussion in the Cabinet of today, even though the

individuals involved are the same, and the national problems

have a distressing similarity with those of a decade ago.

It is difficult to say at what point the material

845

loses its confidential character. on the ground that

publication will no longer undermine the doctrine of joint

Cabinet responsibility. The doctrine of' joint Cabinet

responsibility is not undermined so long as the publication

would not "inhibit free discussion in the Cabinet and the

court decides the issue'. In Minister for Arts Heritage and

Environment and Ors. v. Peko-Wallsend Ltd. and Ors. 11987175

ALR 218, Federal Court of Australia General Division, the

respondent had mining lease under the existing law. In 1986

the Cabinet decided that portion of the same land covered by

KNP Kakadu National Park in the Northern Territory (State 2)

was earmarked for inclusion in the World Heritage List (the

List) which had been established under the World Heritage

Convention (the Convention) and to submit to Parliament

aplan of management for the national park which differed

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from a previous plan "which enabled exploration and mining

to take place outside pre-existing leases with the approval

of the Governor-General". Under the Convention on listing,

could be made without the "consent" of the State party

concerned. The respondents laid the proceedings to restrain

the appellants from taking further steps to have Stage 2

nominated for inclusion on the list on the basis that

Cabinet was bound by tile rules of natural justice to afford

the man opportunity to be heard and that it failed to do so.

The Single Judge declared the action as void. Thereafter

the National Park and Wildlife conservation Amendment Act,

1987 came into force adding sub-s. (IA) to s. 10 of that Act

which provides that "No operations for the recovery of'

minerals shall be carried on in Kakadu National Park".

While allowing the appeal, the full court held that the

Executive action was not immune from judicial review merely

because it was carried out in pursuance of a power derived

from the prerogative rather than a statutory source. The

decision taken for the prerogative of the Cabinet is subject

to judicial review. In Commonwealth of Australia v.

Northern Land Council and Anr. [1991] 103 ALR p.267, in a

suit for injunction for Northern Land Council (NLC) against

the Commonwealth sought production of certain documents

including 126 Cabinet notebooks. A Judge of the Federal

Court ordered the Commonwealth to produce the notebooks for

confidential inspection on behalf of NLC. On appeal it was

held that information which may either directly or

indirectly enable the party requiring them either to advance

his own case or to damage the case of his advisory are

necessary. The class of Cabinet papers do not afford

absolute protection against disclosure and is not a basis

for otherwise unqualified immunity from production. The

Commonwealth cannot claim any immunity for public interest

immunity from production. The court should decide at the

threshold balancing of the public interest in the

administration of justice. The court does not have to be

satisfied that, as a matter of likelihood rather than mere

speculation, the materials would contain evidence for tender

at trial.

846

In a democracy it is inherently difficult to function at

high governmental level without some degree of secrecy. No

Minister, nor it Senior Officer would effectively discharge

his official responsibilities if every document prepared to

formulates sensitive policy decisions or to make assessment

of character rolls of coordinate officers at that level if

they were to be made public. Generally assessment of

honesty and integrity is a high responsibility. At high co-

ordinate level it would be a delegate one which would

furthered compounded when it is not backed up with material.

Seldom material will be available in sensitive areas.

Reputation gathered by an officer around him would form the

base. If the reports are made known, or if the disclosure

is routine, public interest grievously would suffer. On the

other hand, confidentiality would augment honest assessment

it) improve efficiency and integrity in the officers.

The business of the Govt., when transacted by bureaucrats,

even in personal level, it would be difficult to have

equanimity if the inner working of the Govt. machinery is

needlessly exposed to the public. On such sensitive issues

it would hamper the expression of frank and forthright views

or opinions. Therefore, it may be that at that level the

deliberations and in exceptional cases that class or

category of documents get protection in particular, on

policy matters. Therefore. the court would he willing to

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respond to the executive public interest immunity to

disclose certain documents where national security or high

policy, high sensitivity is involved.

In Asiatic Petroleium v. Anglo-Persian Oil 1916 K.B. 822,

the court refused production of the letter concerning the

Govt. plans relating to Middle Estern campaigns of the First

World was. as claimed by the Board of Admiralty. Similarly,

in Duncan v. Cammell Laired, 1942 A.C. 624, tile House of

lords refused disclosure of the design of sub-marine. The

national defence as a class needs protection in the interest

of security of the State. Similarly to keep good diplomatic

relations the state documents or official or confidential

documents between the Govt. and its agencies need immunity

from production.

In Council of Civil Service Union v. Minster for Civil

Service 1985 A.C. 374. the Govt. Communications

headquarters (GCHQ) functions were to ensure the security of

military and official communications and to provide the

Govt. with signals intelligence. They have to handle secret

information vital to national security. The staff of CCHQ

was permitted to be members of the trade union, but litter

on instructions were issued, without prior consultation,

amending the Staff rules and directed them to dissociate

from tile trade union activities. The Previous practice of

prior consultation before amendment was not followed.

Judicial review

847

was sought of the amended rules pleading that failure to

consult the union before amendment amounts to unfair act and

summoned the records relating to it. An affidavit of the

cabinet Secretary was filed explaining the disruptive

activities, the national security, and the union actions

designed to damage Govt. agencies. Explaining the risk of

participation by the members in further disruption, the

House held that executive action was not immune from

judicial review merely because it was carried out in

pursuance of a power derived from a common law, or

prerogative, rather than a statutory source and a minister

acting under a prerogative power might, depending upon its

subject matter, whether under the same duty to act fairly as

in the case of action under a statutory power. But,

however, certain information. on consideration of national

security, was withheld and the failure of prior consultation

of the trade union or its members before issue the amended

instruction or amending the rules was held not infracted.

In Burmah Oil Co's. case. at an action by the Oil Company

against the Bank for declaration that the sale of units in

British Petroleum held by the company at 2.30 Pounds per

unit was unconscionable and inequitable. The oil company

sought production of the cabinet decision and 62 documents

in possession and control of the bank. The state claimed

privilege on the basis of the certificate issued by the

Minister. House of Lords per majority directed to disclose

certain documents which were necessary to dispose of the

case fairly. Lord Scarman laid that they were relevant, but

their significance was not such a:, to override the public

interest objections to their production. Lords Wilberforce

dissented and held that public interest demands protection

of them.

In The Australian Communist Party & Ors. v. Commonwealth &

Ors. [1950-51] 83 C.L.R. p. 1, at p. 179, Dixon, J. while

considering the claim of secrecy and non-availability of the

proclamation or declaration of the Governor General in

Council based on the advice tendered by the Minister

rejected the privilege and held that the court would go into

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the question whether the satisfaction reached by the

Governor General in Council was justified. The court has

,one into the question of competence to dissolve a voluntary

or corporate association i.e. Communist Party as unlawful

within the meaning of Sec. 5(2) of the Constitutional Law of

the Commonwealth. In The Queen v. Toohey [1982-83] 151

C.L.R. 170, the Northern Territory (Self-Government) Act,

1978 provides appointment of an Administrator to exercise

and perform the functions conferred under the Act. The Town

Planning Act, 1979 regulates the area of land to be treated

as towns. The Commissioner exercising powers under the Act

held that part of the peninsula specified in the schedule

was not available for town Planning Act. When it was

challenged. there was a change in the law and the Minister

filed an affidavit

848

claiming the privilege of certain documents stating that

with a view to preserve the land to the original, the Govt.

have decided to treat that the land will continue to be held

by or on behalf of the originals. Gibbs,. CJ. held that

under modern conditions, a responsible Govt., Parliament

could not always be relied on to check excesses of power by

the Crown or its Ministers. The court could ensure that the

statutory power is exercised only for the purpose it is

granted. The secrecy of the counsel of the Crown is by no

means complete and if evidence is available to show that the

Crown acted for an ulterior purpose, it is difficult to see

why it should not be acted upon. It was concluded thus: "In

my opinion no convincing reason can be suggested for

limiting the ordinary power of the courts to inquire whether

there has been a proper exercise of a statutory power by

giving to the Crown a special immunity from review. If the

statutory power is granted to the Crown for one purpose, it

is clear that it is not lawfully exercised if it is used for

another. The courts have the power and duty to ensure that

statutory powers are exercised only in accordance with law".

The factors-to decide the "public interest immunity would

include" (a) where the contents of the documents are relied

upon, the interests affected by their disclosure; (b) where

the class of documents is invoked, where the public interest

immunity for the class is said to protect; (c) the extent to

which the interests referred to have become attenuated by

the passage of time or the occurrence of intervening events

since the matters contained in the documents themselves came

into existence; (d) the seriousness of the issues in

relation to which production is sought; (e) the likelihood

that production of the documents will affect the outcome of

the case; (f) the likelihood of injustice if the documents

are not produced. In President Nixon's case, the Supreme

Court of the United States held that it is the court's duty

to construe and delineate claims arising under express

powers, to interpret claims with respect to powers alleged

to derive from enumerated powers of the Constitution. In

deciding whether the matter has in any measure been

committed by the Constitution to another branch of

Government, or whether the action of that branch exceeds

whatever authority has been committed, is itself a delicate

exercise in constitutional interpretation, and is the

responsibility of the court as ultimate interpreter of the

Constitution. Neither the doctrine of separation of powers,

nor the need for confidentiality of high level

communications, without more, can sustain an absolute,

unqualified Presidential privilege of immunity from judicial

process under all circumstances. The separation of powers

given in the Constitution were not intended to operate with

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absolute independence when essential criminal statute would

upset the constitutional balance of "a workable government"

and gravely impair the role of the courts under Art. III.

The very integrity of the judicial system and public

confidence in the system depend on full

849

disclosure of all the facts, within the framework of the

rules of evidence. To ensure that justice is done, it is

imperative to the function of courts that compulsory process

be available for the production of needed evidence.

The afore discussion lead to the following conclusions. The

President while exercising the Executive power under Art.73

read with Art. 53, discharges such of those Powers which are

exclusively conferred to his individual discretion like

appointing the Prime Minister under Art. 75 which are not

open to judicial review. The President exercises his power

with the aid and advice of the Council of Ministers with the

Prime Minister at the head under Art. 74 (1). They exercise

the power not as his delegates but as officers subordinate

to him by constitutional mechanism envisaged under Art. 77

and express in the name of President as per Rules of

Business made under Art.77(3). They bear two different

facets (i) the President exercise his power on the aid and

advice; (ii) the individual minister or Council of Minister

with the Prime Minister at the head discharge the functions

without reference to the President. Undoubtedly the Prime

Minister is enjoined under Art. 78 to communicate to the

President all decisions of the Council of Minister relating

to the administration of the affairs of the Union and

proposals for legislation and to furnish such information

relating to the administration or reconsideration by the

Council of Ministers if the President so requires and submit

its decisions thereafter to the President. That by itself

is not conclusive and does not get blanket public interest

immunity from disclosure. The Council of Ministers though

shall be collectively responsible to the House of the

People, their acts are subject to the Constitution, Rule of

law and judicial review are parts of the scheme of the

Constitution as basic structure and judicial review is

entrusted to this Court (High Court under Art.226). When

public interest immunity against disclosure of the state

documents in the transaction of business by Council of

Ministers of the affairs of State is made, in the clash of

those interests, it is the right and duty of the court to

weigh the balance in the scales that the harm shall not be

done to the nation or the public service and equally of the

administration of justice. Each case must be considered on

its backdrop. The President has no implied authority under

the Constitution to withhold the documents. On the other

hand it is his solemn constitutional duty to act in aid of

the court to effectuate judicial review. The Cabinet as a

narrow centre of the national affairs must be in a

possession of all relevant information which is secret or

confidential. At the cost of repetition it is reiterated

that information relating to national security, diplomatic

relations. internal security or sensitive diplomatic

correspondence per se are class documents and that public

interest demands total immunity from disclosure. Even the

slightest divulgence would endanger the lives of the

personnel engaged in the services etc. The maxim Salus

Popules Cast Supreme Lax which means that regard

850

for public welfare is the highest law, is the basic

postulate for this immunity. Political decisions like

declaration of emergency under Art. 356 are not open to

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judicial review but it is for the electorate at the polls to

decide the executive wisdom. In other areas every

communication which preceded from one officer of the State

to another or the officers inter se does not necessarily

per-se relate, to the affairs of the State. Whether they so

relate has got to be determined by reference to the nature

of the consideration, the level at which it was considered,

the contents of the document or class to which it relates to

and their indelible impact on public administration or

public service and administration of justice itself.

Article 74(2) is not a total bar for production of the

records. Only the actual advice tendered by the Minister or

Council or Ministers to the President and the question

whether any, and if so, what ad\-ice was tendered by the

Minister or Council of ministers to the President, shall not

be enquired into by the court. In other words the bar of

judicial review is confined to the factum of advice, its

extent, ambit and scope but not the record i.e. the material

on which the advice is founded. In S.P. Gupta's case (his

court held that only the actual advice tendered to the

President is immuned from enquiry and the immunity does not

extend to other documents or records which form part of the

advice tendered to the President.

There is discernible modern trends towards more open

government than was prevalent in the past. In its judicial

review the court would adopt in camera procedure to inspect

the record and evaluate the balancing act between the

competing public interest and administration of justice.It

is equally the paramount consideration that justice should

not only be done but also would be publicly recognised as

having been done. Under modern conditions of responsible

government, Parliament should not always he relied on as a

check on excess of power by the Council of Ministers or

Minister. Though the court would not substitute its views

to that of the executive on matters of policy, it is its

undoubted power and duty to see that the executive exercises

its power only for the purpose for which it is granted.

Secrecy of the advice or opinion is by no means conclusive.

Candour, frankness and confidentiality though are integral

facets of the common genus i.e. efficient governmental

functioning, per se by no means conclusive but be kept in

view in weighing the balancing act. Decided cases how that

power often was exercised in excess thereof or for an

ulterior purpose etc. Sometimes the public service reasons

will be decisive of the issue, but they should never prevent

the court from weighing them against the injury which would

be suffered in the administration of justice if the

documents was not to be disclosed, and the likely injury to

the cause of justice must also be assessed and weighed. Its

weight will very according to the nature of the proceedings

in which disclosure is sought, level at which the matter was

considered-, the subject matter of' consideration, the

851

relevance of the documents and the degree of likelihood that

the document will be of importance in the litigation. it

striking the balance, the court may always, if it thinks it

necessary, itself inspect the documents. It is therefore the

constitutional, legitimate and lawful power and duty of

this court to ensure that powers constitutional statutory

or executive are exercised in accordance with the

constitution and the law. This may demand though no doubt

only in limited number of cases yet the inner workings of

government may be exposed to public gaze. The

contentions of Attorney General and Solicitor General that

the inner workings of the government would be exposed to

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public gaze, and that some one who would regard this as

an occasion without sufficient material to ill-informed

criticism is no longer relevant. Criticism, calculated to

improve teh nature of that working as affecting the

individual citizen is welcome.

In so far as unpublished government policy is concerned, it

may be relevant to know the extent to which the policy

remains unfulfilled, so that its success might be

prejudiced by disclosure of the considerations which led to

it. In that context the time element becomes

relevant.Details of affairs which are stale and no longer

of significance might be capable of disclosure without

risk of damage to the public interest .But depending on

teh nature of he litigation and the apparent importance

to it of the documents in question may in extreme case

demand production even of the most be considered on its

backdrop. President has no implied authority to withhold

the document. On the other hand it is his solemn

constitutional duty to act in aid of the court to

effectuate judicial review. The Cabinet as a narrow centre

of the national affairs must be in possession of all

relevant information which is secret or confidential.

Decided cases on comparable jurisdiction referred to

earlier did held that executive had no blanket immunity

to withhold cabinet proceedings or decisions. We

therefore hold that the communication decisions or policy

to teh President under Art. 74(1) gives only protection by

Art. 74(2) of judicial review of the actual advice tendered

to the president of India. The rest of the file and all

the records forming part thereof are open to in camera

inspection by this court. Each case must be considered on

its own facts and surrounding scenario and decision

taken thereon.

In Jyoti Prokash Mitter v. Chief Justice Calcutta

High Court [1965] 2 SCR 53 the question was whether the

President exercised the powers under Art. 217(3) of the

Constitution was his discretionary one or acts with the aid

and advice of Council of Ministers. The Constitution Bench

held that the dispute as be decided by the President.The

satisfaction on the correctness of age is that of he

President. Therefore the matter has to be placed before the

President. The

852

President has to give an opportunity to the judge to place

his version, before teh President considers and decides the

age of the judge. Accordingly it would be the personal

satisfaction of the President and not that of the Council of

Ministers.In the latter judgement sequential to this

judgement in Union of India v. Jyoti Prakash [1971]

3SCR 4831, it was held that the mere fact that the

President was assisted by teh machinery of Home Affaris

Ministry in serving notices or receiving communications

addressed to the learned judge cannot lead to an inference

that he was guided review, this court upheld the

decision of the President. In this context it was held

that the orders of the president, even though made final

can be set aside by court in an appropriate case though

the Court will not sit in appeal over order and will not

substitute its own opinion to that of the president by

weighing the evidence placed before the president.

The third category of case namely the decision taken at

level of the minister or by the authorised Secretary at

the Secretary level though expressed in the name of the

President is not immured from judicial scrutiny and are to

be produced and inspected by the court. If public

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interest immunity under Art. 74(2) or Sec 123 of

Evidence ACt is claimed, the court would first consider it

in camera and decide the issue as indicated above. Teh

immunity must not be claimed on administrative route and

it must be for valid, relevant and strong grounds or

reasons stated in the affidavit filed in that behalf. Having

perused the file and given our anxious considerations. We

are of the view that on th facts of the case and in the

light of the view we have taken, it is not necessary to

disclose the contents of the records to the petitioner or

his counsel.

The first schedule of the business rules provide

constitution of Cabinet Standing committees with function

specified therein. Item 2 is "Cabinet Committee on

appointments". Which is empowered to consider in item 1

all recommendations and to take decisions on appointments

specified in the Annexure to the first Schedule. Therein

under the residuary heading all other appointments item 4

provides that all other appointments which are made by the

Govt. of India or which required the approval of the Govt.

of India carrying a salary excluding allowances or a maximum

salary excluding allowances of less than Rs. 5, 300 require

the approval of the Cabinet Sub-Committee. As per item 37

of the Third Schedule read with Rule 8 of the business

Rules it shall be submitted to the Prime Minister for

appointment.

Mr. Harish Chander was appointed as judicial Member on

October 29, 1982. He was later on appointed on january 15,

1991 as Senior Vice President of

853

CEGAT after the direction were issued by this Court, he was

appinted as the President Mr. Jain assailed the validity of

his appointment on diverse grounds. It was pleaded and Sri

Thakur, his learned senior counsel, argued that as per the

convention, a sitting or a retired judge of the High JCourt

should have beenappointed as president of the CEGAT in

consultation with the Chief Jusftice ofIndia and Harish

Chander has been appointed in disregafrd of the express

directions of this Court, It was, therefore, contended that

it was in breach jof the judicial orderpassed by this Court.

It was therefore, contended that it was in breach of the

judicial orderpassed by this Court under Art, 32 Secondly it

was contended that before the Actwas made a positive

commitment was made time and again by the Govt. on the floor

of the House that judicial independence of CEGAT is sifne

qua non to sustain the confidence of the litigant public.

The appointment of any person other thansitting or a retired

judge of the High Court as President would be in its breach.

Inits support it was cited the instance of Mr.

Kalyansundaram as being the seniormost member, his claim

should have been considered before Harish Chander was

appointed. Sri Thakur further argued that when

recommendations of HarishChander for appointment as a Judge

of the Delhi High Court was turned down by the Chief Justice

of India doubting his integrity, the appointment of such

personof doubtful integrity as President would erode the

independence of the judiciary and undermine the confidence

of the litigant public in the efficacy of judicial

adjudication, even though the rules may permit such an

appointment. The rules are ultra vires of the basic

structure, namely, independence of judiciary, Sri Thakur, to

elaborate these conditions, sought permission to peruse the

record.

Sri Venugopal , the learned Senior Counsel for Harish

Chander argued that his client being the senior Vice

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President was fvalidly appointed as President of the CEGET.

Harish Chander has an excellent and impeccable record of

service without any adverse remarks. His recommendation for

appointment as a judge of the Delhi High Court, was

"apparently dropped" which would not be construed to be

adverse to Harish Chander. On behalf ofCentral Govt. it was

admitted in thecounter affidavit that since rules do not

envisage consultation with the Chidf Justice consultation

was not done. It was argued that the Govt. have prerogative

to appoint any member or Vice Chairman or Senior Vice

President as President of CEGAT. Harish Chander being the

senior Vice President, his case was considered and was

recommended by the cabinet sub Committee for appointment.

Accordingly he was appointed.

Under section 129 of the Customs Act 52 of 1962 for

short the Act. The Central Govt. shall constitute the CEGAT

consisfting of as many judicial and technical members as it

thinks fit to exercise the powers and discharge the

functions conferred by the Act. Subject to making the

statement of the case for

854

decision on any question of law arising out of orders of the

CEGAT by the High Court under section 130: it) resolve

conflict of decisions by this Court under section 130A, the

orders of the CEGAT by operation of sub-sectiton (4) of

Section 129B. "shall be final". The President of CEGAT is

the controlling authority as well as Presiding authority of

the tribunals constituted at different places. Constitution

of the CEGAT came to be made pursuant to the 5th Schedule of

the Finance Act 2 of 1980 with effect from October 11, 1982.

The President of India exercising the power under proviso

it) Art. 309 of the Constitution made the Rules. Rule 2(c)

defined "member" means a member of the Tribunal and unless

the context otherwise requires, includes the President, the

Senior Vice President, a Vice President, a judicial member

and a technical member. 2(d) defines "President" means the

President of the Tribunal. Rule 6 prescribes Method of

Recruitment. Under Sub-rule (1) thereof for the purpose of

recruitment to the Post of member, there shall be a

Selection Committee consisting of - (i) a judge of the

Supreme Court of India as nominated by the Chief Justice of

India to preside over as Chairman; (ii) the Secretary to the

Govt. of India in the Ministry of Finance, (Department of

Revenue); (iii) the Secretary to the Govt. of India in the

Ministry of Law (Department of legal Affairs); (iv) the

President; (v) such other persons, not exceeding two, as the

Central Govt. may nominate.

Sub-Rule (4) - Subject to the provisions of Section 10, the

Central Govt. shall, after taking into consideration the

recommendations of the Selection Committee. make a list of

persons selected for appointment as members. Rule 10

provides thus: (1) The Central Govt. shall appoint one of

the member to be the President.

(2) Notwithstanding anything contained in rule 6 a

sitting, or retired judge of a High Court may also be

appointed by the Central Government use member and President

simultaneously.

(3) Where a member (other than a sitting or retired judge

of a High Court is appointed as President, he shall hold the

office of the President for a period of three years or till

he attains the age of 67 years, whichever is earlier.

(4) Where a serving judge of a High Court is appointed as a

member and President, he shall hold office as President for

a period of three years from the date of his appointment or

till he attains the age of 62 years. whichever is earlier.

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Provided that where a retired judge of a High Court above

the age of 62 years is appointed as President. he shall hold

office for such period not exceeding, three

855

years as may he determined by the Central Govt. At the time

of appointment or reappointment. The Jha Committee in its

report in para 16(22) recommended to constitute an

independent Tribunal for excise or customs taking away the

appellate powers from the Board. The Administrative Inquiry

Committee in its report 1958-59 in para 4.15 also

recommended that every effort should be made to enhance the

prestige of the appellate tribunal in the eyes of the public

which could be achieved by the appointment of a High Court

Judge as the President. They, therefore, recommended to

appoint the serving or retired High Court Judge as President

of the Tribunal for a fixed tenure. In Union of India v.

Pares Laminates Pvt. Ltd. [1990] 49 ELT 322 (Supreme

Court), this Court held that GEGAT is a judicial body and

functions as court within the limits of its jurisdiction.

As a fact the Minister time and again during the debates

when the Bill was under discussion assured both the Houses

of Parliament that the CEGAT would be a judicial body

presided over by a High Court Judge. In Keshwa nand Bharti

v. Union of India [1973] Supp. SCR 1, Mathew and

Chandrachud, JJ. held that rule of law and judicial review

are basic features of the Constitution. It was reiterated

in Waman Rao v. Union of India [1980] 3 SCC 587, As per

directions therein the Constitution Bench reiterated in Sri

Raghunathrao Ganpatrao v. Union of India [1993] 1 SCALE 363.

In Krishna Swami v. Union of India [1992] 4 SCC 605 at 649

para 66 one of us (K.R.S.J.) held that judicial review is

the touchstone and repository of the supreme law of the

land. Rule of law as basic feature permeates the entire

constitutional structure Independence of Judiciary is sine

quo non for the efficacy, of the rule of law. This court is

the final arbiter of the interpretation of the constitution

and the law.

In S.P. Sampat Kumar v. Union of India & Ors.[1987] 1 SCR

435. this Court held that the primary duty of the judiciary

is to interpret the Constitution and the laws and this would

preeminently be a matter fit to be decided by the judiciary,

as judiciary alone would be possessed of expertise in this

field and secondly the constitutional and legal protection

afforded to the citizen would become illusory, if it were

left to the executive to determine the legality of its own

action. The Constitution has, therefore created an

independent machinery i.e. judiciary to resolve the disputes

which is vested with the power of judicial review to

determine the legality of the legislative and executive

actions and to ensure compliance with the requirements of

law on the part of the executive and other authorities.

This function is discharged by the judiciary by exercising

the power of judicial review which is a most potent weapon

in the hands of the judiciary for maintenance of the rule of

law. The power of judicial review is an integral part of

our constitutional system and without it, there will be no

government of laws and the rule of law would become a

teasing illusion and a promise of unreality. The judicial

review, therefore, is a basic and essential feature of the

Constitution and it cannot be

856

abrogated without affecting the basic structure of the

Constitution. The basic and essential feature of judicial

review cannot be dispensed with but it would be within the

competence of Parliament to amend the Constitution and to

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provide alternative institutional mechanism or arrangement

forjudicial review, provided it is no less efficacious than

the High Court. It must, therefore, be read as implicit in

the constitutional scheme that the law excluding the

jurisdiction of the High Court under Arts. 226 and 227

perrmissible under it, must not leave a void but it must set

up another effective institutional mechanism or authority

and vest the power of judicial review in it which must be

equally effective and efficacious in exercising the power of

judicial review. The Tribunal set up under the

Administrative Tribunal Act, 1985 was required to interpret

and apply Arts. 14, 15, 16 and 311 in quite an large number

of cases. Therefore, the personnel manning the administra-

tive tribunal in their determinations not only require

judicial approach but also knowledge and expertise in that

particular branch of constitutional and administrative law.

The efficacy of the administrative tribunal and the legal

input would undeniably be more important and sacrificing the

legal input and not givino it sufficient weityhtage would

definitely impair the efficacy and effectiveness of the

Administrative Tribunal. Therefore, it was held that the

appropriate rule should be made to recruit the members; and

consult the Chief Justice of India in recommending

appointment of the Chairman, Vice-Chairman and Members of

the Tribunal and to constitute a committee presided over by

judge of the Supreme Court to recruit the members for

appointment. In M.B. Majiundar v. Union of lndia [1990] 3

SCR 946, when the members of CAT claimed parity of pay and

superannuation as is available to the Judges of the High

Court, this court held that they are not on par with the

judges but a separate mechanism created for their

appointment pursuant to Art. 323-A of the Constitution.

Therefore, whatwas meant by this court in Sampath Kumar's

ration is that the Tribunals when exercise the power and

function, the Act created institutional alternative

mechanism or authority to adjudicate the service

disputations. It must be effective and efficacious to

exercise the power of judicial review. This court did not

appear to have meant that the Tribunals are substitutes of'

the High Court under Arts. 226 and 227 of the Constitution.

J.B. chopra v. Union of lndia [1987] 1 SCC 422, merely

followed the ratio of Sampath Kumar.

The Tribunals set up under Arts. 323A and 323B of the

Constitution or under an Act of legislature are creatures of

the Statute and in no case can claim the status as Judges of

the High Court or parity or as substitutes. However, the

personnel appointed to hold those oft7ices under the State

are called upon to dischargee judicial or quasi-judicial

power. So they must have judicial approach and also

knowledge

857

and expertise in that particular branch of constitutional,

administrative and tax laws.The legal input would undeniably

be more important and sacrificing the legal input and not

giving it sufficient weightage and teeth would definitely

impair the efficacy and effectiveness of the judicial

adjudication. It is, therefore, necessary that those who

adjudicate upon these matters should have legal expertise,

judicial experience and modicum of legal training as on many

an occasion different and complex questions of law which

baffle the minds of even trained judges in the High Court

and Supreme Court would arise for discussion and decision.

In Union of India v. Sankal Chand Himatlal Sheth & Anr.

[1978] 1 SCR 423 at 442, this court at p. 463 laid emphasis

that, "independence of the judiciary is a fighting faith of

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our Constitution. Fearless justice is the cardinal creed of

our founding document. It is indeed a part of our ancient

tradition which has produced great judges in the past. In

England too, judicial independence is prized as a basic

value and so natural and inevitable it has come to be

reorded and so ingrained it has become in the life and

thought of the people that it would be regarded an act of

insanity for any one to think otherwise." At page 471 it was

further held that if the beacon of the judiciary is to

remain bright, court must be above reproach, free from

coercion and from political influence. At page 491 it was

held that the independence of the judiciary is itself a

necessitous desideratum of public interest and so

interference with it is impermissible except where other

considerations of public interest are so strong, and so

exercised as not to militate seriously against the free flow

of public justice. Such a balanced blend is the happy

solution of a delicate, complex, subtle, yet challenging

issue which bears on human rights and human justice.The

nature of the judicial process is such that under coercive

winds the flame of justice flickers, faints and fades. The

true judge is one who should be beyond purchase by threat or

temptation, popularity or prospects. To float with the tide

is easy, to counter the counterfeit current is uneasy and

yet the Judge must be ready for it. By ordinary obligation

for written reasoning, by the moral fibre of his peers and

elevating tradition of his profession, the judge develops a

stream of tendency to function 'without fear or favour,

affection or ill-will', taking care, of course, to outgrow

his prejudices and weaknesses, to read the eternal verities

and enduring values and to project and promote the economic,

political and social philosophy of the Constitution to

uphold which his oath enjoins him. In Krishnaswaini's case

in para 67 at p. 650, it was observed that "to keep the

stream of justice clean and pure the judge must be endowed

with sterling character, impeccable integrity and upright

behaviour. Erosion thereof would undermine the efficacy of

rule of law and the working of the constitution itself.

In Krishna Sahai & Ors.v.State of U.P. & Ors.[1990] 2 SCC

673, this court

858

emphasised its need in constitution the U.P. Service

Tribunal that it would he appropriate for the State of Uttar

Pradesh to change it manning and a sufficient number of

people qualified in law should he on the Tribunal to ensure

adequate dispensation of justice and to maintain judicial

temper in the functioning of the Tribunal". In Rajendra

Singh Yadav & Ors v. State of U.P. & Ors. [1990] 2 SCC 763,

it was further reiterated that the Services Tribunal mostly

consist of Administrative Officers and the judicial element

in the manning part of the Tribunal is very small. The

disputes require judicial handling and the adjudication

being, essentially judicial in character it is necessary

that adequate number of judges of the appropriate level

should man the Services Tribunals. This would create

appropriate temper and generate the atmosphere suitable in

an adjudicatory Tribunals and the institution as well would

command the requisite confidence of the disputants. In Shri

Kumar Padma Prasad v. Union of India & Ors. [1992] 2 SCC

428, this court emphasised that, "Needless to say that the

independence, efficiency and integrity of the judiciary can

only he maintained by selecting the best persons in

accordance with the procedure provided under the

Constitution. The objectives enshrined in the constitution

cannot be achieved unless the functionaries accountable for

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making appointments act with meticulous care and utmost

responsibility".

In a democracy governed by rule of law surely the only

acceptable repository of absolute discretion should be the

courts. Judicial is the basic and essential feature of the

Indian constitutional scheme entrusted to the judiciary. It

cannot he dispensed with by creating tribunal under Art.

323A and 323B of the Constitution. Any institutional

mechanism or authority in negation of judicial review is

destructive of basic structure. So long as a the

alternative institutional mechanism or authority set up by

an Act is not less effective than the High court, it is

consistent with constitutional scheme. The faith of the

people is the bed-rock on which the edifice of judicial

review and efficacy of the adjudication are founded. The

alternative arrangement must, therefore, be effective and

efficient. For inspiring confidence and trust in the

litigant public they must have an assurance that the person

deciding their causes is totally and completely free from

the influence or pressure from the Govt. To maintain

independence and imperativity it,is necessary that the

personnel should have at least modicum of legal training,

learning and experience. Selection of competent and proper

people instill people's faith and trust in the office and

help to build up reputation and acceptability. Judicial

independence which is essential and imperative is secured

and independent and impartial administration of justice is

assured. Absence thereof only may get both law and

procedure wronged and wrong headed views of the facts and

may likely to give rise to nursing grievance of injustice.

Therefore, functional fitness,

859

experience at the liar and aptitudinal approach are

fundamental for efficient judicial adjudication. Then only

as a repository of the confidence. as its duty, the tribunal

would properly and efficiently interpret the law and apply

the law to the given set of facts. Absence thereof would be

repugnant or derogatory to the constitution.

The daily practice in the courts not only gives training to

Advocates to interrect the rules but also adopt the

conventions of courts. In built experience would play vital

role in the administration of justice and strengthen and

develop the qualities, of intellect and character,

forbearance and patience, temper and resilience which are

very important in the practice of law. Practising Advocates

from the Bar generally do endow with those qualities to

discharge judicial functions. Specialised nature of work

gives them added advantage and gives benefit to broaden the

perspectives. "Judges " by David Pannick (1987 Edition), at

page 50, stated that, "we would not allow a man to perform a

surgical operation without a thorough training and

certification of fitness. Why not require as much of a

trial judge who daily operates on the lives and fortunes of

others". This could be secured with the initial training

given at the Bar and later experience in judicial

adjudication. No-one should expect expertise in such a vast

range of subjects, but famliarity with the basic terminology

and concept coupled with knowledge of trends is essential.

A premature approach would hinder the effective performance

of judicial functions. Law is a serious matter to be left

exclusively to the judges, because judges necessarily have

an important role to play in making and applying the law

There is every reason for ensuring that their selection,

training and working practice facilitate them to render

their ability to decide the cases wisely on behalf of the

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community. If judges acts in injudicious manner, it would

often lead to miscarriage of justice and a brooding sense of

injustice rankles in an agrieved person.

The CEGAT is a creature of the statute. yet intended to have

all the flavour of judicial dispensation by independent

members and President. Sri Justice Y.V. Chandrachud, Chief

Justice of India, in his letter dated October 5, 1982 stated

that "Govt. had Created a healthy convention of providing

that the Tribunals will be headed by a President who will be

a sitting or a retired judge of the High Court. Added to

that is the fact that selection of the members of the

Tribunal is made by a Committee headed by a judge of the

Supreme Court... I am sure that the Tribunal will acquire

higher reputation in the matter of its decision and that the

litigants would look upon it as an independent forum to

which they can turn in trust and confidence". This court to

elongate the above objective directed the Govt. to show

whether the convention is being followed in appointment of

the President of

860

CEGAT and further directed to consider appointment of a Sr.

Judge or a retired Chief Justice of the High Court as its

President. Admittedly Chief justice of India was not

consulted before appointing Sri harish Chander as President.

Several affidavits filed on behalf of the Govt. do not also

bear out whether the directions issued by this court were

even brought to the notice of the Hon'ble Prime Minister

before finalising the appointment of Sri Harish Chander.

The solemn assurance given to the Parliament that the

Tribunal bears a judicious blend by appointment of a High

Court Judge as President was given a go-bye. While making

statutory rules the executive appears to have made the

appointment of it sitting or retired High Court Judge as

President unattractive and directory frustrating the

legislature animation. A sitting Judge when is entitled to

continue in his office upto 62 years would he he willing to

opt to serve as President, if his superannuation as

President is conterminous with 62 years. He would be

attracted only it he is given extended three years more

tenure after his superannuation. But Rule 10(3) says that

the total period of the tenure of the President by a

sitting, or retired judge is "a period of three years or

till he attains the age of 62 years, whichever is earlier",

i.e. coterminus with superannuation as a Judge of the High

Court. The proviso is only discretionary at the whim of the

executive depleting independence and as an exception to the

rule. Thereby practically tile spirit of the Act, the

solemn assurance given by the Govt. to the Parliament

kindling hope in the litigant public to have a sitting or a

retired judge appointed as President has been frustrated

deflecting the appointment of a judicially trained judge to

exercise judicial review. We are constrained to observe

that the rules, though statutory, were so made as to defeat

the object of the Act. The question then is: can and if

yes, whether this court would interfere with the appointment

made of Flarish Chander as President following the existing,

rules.

Judicial review is concerned with whether the incumbent

possessed of qualification for appointment and the manner in

which the appointment came to be made or the procedure

adopted whether fair, just and reasonable. Exercise of

judicial review is to protect the citizen from the abuse of

the power etc. by an appropriate Govt. or department etc.

In our considered view granitic the compliance of the above

power of appointment was conferred on the executive and

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confided to be exercised wisely. When a candidate was found

qualified and eligible and was accordingly appointed by the

executive to hold an office as a Member or Vice-President or

President of a tribunal. we cannot sit over the choice of

the selection, but it be left to tile executive to select

the personnel as per law or procedure in this behalf. In

Sri Kumar Prasad case K.N. Srivastava, M.J.S., Legal

Remembrance, Secretary to law and Justice. Govt. of Mozoram

did not possess the requisite qualifications for appointment

as a Judge of the High Court prescribed under Art.217 of the

Constitution, namely, that he was not a District Judge for

10 years in State Higher Judicial Service, which is a

mandatory

861

requirement for a valid appointment. Therefore, this Court

declared that he was not qualified to be appointed as a

judge of the High Court and quashed his appointment

accordingly. The facts therein are clearly glaring and so

the ratio is distinguishable.

Sri Harish Chander, admittedly was the Sr. Vice President

at the relevant time. The contention of Sri Thakur of the

need to evaluate the comparative merits of Mr. Harish

Chander and Mr. Kalyansundaram a senior most Member for

appointment as President would not be one into in a public

interest litigation. Only in a proceedings initiated by an

aggrieved person it may be open to be considered. This writ

petition is also not a writ of quo-warranto. In service

jurisprudence it is settled law that it is for the aggrieved

person i.e. non-appointee it) assail the legality of the

offending action. Third party has no locus stand it to

canvass the legality or correctness of the action. Only

public law declaration would be made at the behest of the

petitioner, a public spirited person.

But this conclusion does not give quietus at the journey's

end. There are persistent allegations against

malfunctioning of the CEGAT and against Harish Chander

himself. Though we exercised self-restraint to assume the

role of an Investigator to charter out the ills surfaced,

suffice to say that the union Govt. cannot turn a blind eye

to the persistent public demands and we direct to swing into

action, an indepth enquiry made expeditiously by an officer

or team of officers to control the mal-functioning of the

institution. It is expedient that the Govt. should

immediately take action in the matter and have fresh look.

It is also expedient to have a sitting or retired senior

Judge or retired Chief Justice of a High Court to be the

President. The rules need amendment immediately. A report

on the actions taken in this behalf be submitted to this

court.

Before parting with the case it is necessary to express our

anguish over the ineffectivity of the alternative mechanism

devised for judicial reviews. The Judicial review and

remedy are fundamental rights of the citizens. The

dispensation of justice by the tribunals is much to be

desired. We are not doubting the ability of the members or

Vice-Chairmen (non-Judges) who may be experts in their

regular service. But judicial adjudication is a special

process and would efficiently be administered by advocate

Judges. The remedy of appeal by special leave under Art.

136 to this Court also proves to be costly and prohibitive

and far-flung distance too is working as constant constraint

to litigant public who could ill afford to reach this court.

An appeal to a Bench of two Judges of the respective High

Courts over the orders of the tribunals within its

territorial jurisdiction on questions of law would as usage

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a growing feeling of injustice of those who can ill effort

to approach the Supreme Court. Equally the need for

recruitment of members of the Bar to man

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the Tribunals as well as the working system by the tribunals

need fresh look and regular monitoring is necessary. An

expert body like the Law Commission of India would make an

indepth study in this behalf including the desirability to

bring CEGAT under the control of Law and Justice Department

in line with Income-tax Appellate Tribunal and to make

appropriate urgent recommendations to the Govt. of India who

should take remedial steps by an appropriate legislation to

overcome the handicaps and difficulties and make the

tribunals effective and efficient instruments for making

Judicial review efficacious, inexpensive and satisfactory.

The writ petitions are disposed of with the above direction,

but in the circumstances with no order as to costs.

T.N.A. Petitions disposed of.

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