R.K JAIN V. UNION OF INDIA.

ON

14 May 1993 | Supreme Court Of India

A.M Ahmadi, J. (for himself and Punchhi, J.) (concurring)—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. Ramaswami, 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.`

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

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

the 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 over the last

six months the functioning of the Tribunal was adversely

affected, in that, the Benches sit for hardly two hours or so, the

sittings commence late at about 10.50 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—

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“(i) The immediate appointment of the President to the CEGAT,

preferably a senior High Court Judge;

(ii) order an enquiry into the malfunctioning of the CEGAT; and

(iii) issue all other directions as your Lordship may deem fit and

necessary.”

3. 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

tampered with. The focus which was initially on the working of

the CEGAT and in particular against the conduct and behaviour of

one of its members now shifted to the legality and validity of the

appointment of respondent 3 as its President. Serious allegations

were made against respondent 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

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enable the making of such an application. 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.

4. 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-law of both

foreign and Indian courts, the authoritative textbooks, 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 all the reasons which

have weighed with him.

5. On the question of appointment of respondent 3 as the

President of the CEGAT we must notice a few provisions

contained in the CEGAT Members (Recruitment and Conditions of

Service) Rules, 1987 (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 6

sets 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:

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“(2) Notwithstanding anything contained in Rule 6, a sitting or

retired Judge of a High Court may also be 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:

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 years as may be determined by the

Central Government at the time of appointment or re-appointment.”

It will thus be 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 62 years but in the

case of a retired Judge he may be appointed for a 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, beats common

sense why a sitting Judge of the 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 perks

which are attached to the office of a High Court Judge. Even

status-wise he would suffer as his decisions would be subject to

the writ jurisdiction of the High Court under articles 226/227 of

the 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 rules 10

of the rules needs a suitable change to make it sufficiently

attractive for sitting High Court Judges to accept appointment as

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the President of the CEGAT. We also agree with our learned

Brother that to instil 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 of 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. This would be 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.

6. 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 3 as the President. But it was

said that the track record of respondent 3 was poor and he was

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

been averred that respondent 3 had been in the past proposed for

appointment 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

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appointment of respondent 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.

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

of the CEGAT are grave and the authorities can ill afford 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 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 crisis. 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 crisis and suggest remedial measures. This

cannot brook delay.

8. 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 323-a and 323-b in the constitution. A sound 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

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 served 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

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that a body like the Law Commission of India has 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 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.

9. 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.—Te same facts gave birth to the twin petitions

for disposal by a common judgment. On October 11, 1982, the

Customs, 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 a letter dated December 26, 1991 addressed to the

Chief Justice of India, the petitioner highlighted the

malfunctioning 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 waning and withering

faith of the litigant public in the efficacy of its adjudication.

Treating it as a writ petition, on February 25, 1992 this Court

issued rule nisi to the first respondent, initially to make

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immediate appointment of the President of the CEGAT, preferably

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 be taken within two weeks from that

date. On April 20, 1992 the learned Additional Solicitor General

reported that the appointment of the President had been made,

however, the order was not placed on record. In the meanwhile

the petitioner filed Writ Petition No. 312 of 1992 impugning the

appointment of Shri Harish Chander as President and sought to

quash the same being in violation of the direction issued by this

Court 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 ‘Rules’ as violative of Article

43 (sic) of the Constitution. Rule nisi was also issued to the

respondents in that writ petition on May 4, 1992. The file in a

sealed cover was produced. The first and the third respondents

were directed to file their counters 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 respondent”; 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.

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At request, to enable the Government to file a counter, the file

was returned.

11. 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 envelope 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 section 123 of

the indian evidence act and article 74(2) of the constitution of

india. Later on the Solicitor General modified the stand that the

Government have no objection to the Court perusing the file but

claimed privilege to disclose the contents of the file to the

petitioner.

12. 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”. Section 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, notwithstanding any objection

which there may be to its production or to its admissibility. “The

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validity of any such objection shall be decided on 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.

13. The remedy under article 32 of the constitution itself is a

fundamental right to enforce the guaranteed rights in Part III.

This Court shall have power to issue writ of habeas corpus,

mandamus, certiorari, quo warranto or any other appropriate writ

or direction or order appropriate to the situation to enforce any of

the fundamental rights (power of High Court under Article 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 Article 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”.

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

Article 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 clause (2) of Article 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

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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 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.

15. 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 on a par with a person by Article 19(6) in

commercial/industrial activities. It possessed of no special

privileges. This Court in State of U.P v. Raj Narain 1975 4 SCC

428, 443 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” should be made through an

affidavit generally by the Minister concerned, in his absence by

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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 he 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 an 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.

16. 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

competing public interest in the balance as against another

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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 Section 123 or not: whether 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

arises between public and private interest, private interest must

yield to the public interest. In S.P Gupta v. Union of India 1982 2

SCR 365 this Court by a seven Judge 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.

17. When an objection was raised against disclosure of a

particular document that it belongs to a class which in the 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

13
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 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 be

produced if justice is to be 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 be 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 outweighs 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 weigh 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 of 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

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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 its non-disclosure is so strong that it must prevail over

the private (sic public) interest in the administration of justice

and on that account, it should not be allowed to be disclosed. 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. The

contention, therefore, that the claim of public interest immunity

claimed in the affidavit of the State Minister for Finance and the

Secretary needs privacy and claim for immunity of State

documents from disclosure is unsustainable.

18. The same is the law laid down by the Commonwealth

countries, see Conway v. Rimmer 1968 AC 910, D. v. National

Society for the Prevention of Cruelty to Children 1978 AC

171, Burmah Oil Co. Ltd v. Governor and Company of the Bank of

England 1980 AC 1090, Butters Gas and Oil Co. v. Hammer 1982

AC 888, Air Canada v. Secretary of State for Trade 1983 2 AC

394 and Council of Civil Service Unions v. Minister for the Civil

Service 1985 AC 374. Pursuant to the law laid down in Conway

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 case.

19. 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 secrecy or of the document

relating to foreign relations. In other respects the court would

reject the assertion of executive privilege. In United States v.

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Reynolds 345 US 1, Environmental Protection Agency v. Patsy T.

Mink 410 US 73, New York Times v. U.S 403 US 713 (Pentagon

Paper's case) and U.S v. Richard M. Nixon 418 US 683 what is

known as Watergate Tapes case, the Supreme Court of USA

rejected the claim of the President not to disclose the

conversation he had with the officials. The

Administrative procedure act 5, article 552 was made.

Thereunder it was broadly conceded to permit access to official

information. Only as 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 Edn., John. W. Strong in Chapter 12, surveyed the

development of law on the executive privilege and stated 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 outweighed 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.”

20. In Robinson v. State of South Australia 1931 AC 704, Shankey

v. Whitlan 1979 53 Aust LR 1, FAI Insurances Ltd. v. Hon. Sir

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Henry Arthur Winneke 1982 151 CLR 342, Whitlan v. Australian

Consolidated Press Ltd. 1985 60 Aust LR 7, Minister for Arts,

Heritage and Environment v. Peko Wallsend Ltd. 1987 75 Aust LR

218, Commonwealth of Australia v. Northern Land Council 1991

103 Aust LR 267. Australian Courts consistently rejected the

executive privilege and exercised the power to determine

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. Shinder1954 SLR 479 SC of

Canada and Gagnon v. Quebec Securities Commission 1964 50

DLR 3d 329 SC of Canada, the Supreme Court of Victoria in Bruce

v. Waldron 1963 VLR 3, the Court of Appeal of New South Wales in

Re Tunstall, ex p Brown22, the Court of Appeal of New Zealand

in Corbett v. Social Security Commission 1962 NZLR

878 and Creednz Inc. v. Governor General 1981 1 NLR 172, the

Supreme Court of Ceylon in Apponhamy v. Illangaretute 1964 66

CLW 17, the Court of Appeal of Jamaica in Allen v. Ryfield (No.

2)1964 7 WIR 69, 71 and the Court of Session in Scotland

in Glasgow Corporation v. Central Land Board 1956 Scotland LT 4.

21. 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 articles

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. Notings of the officials which

led to the Cabinet note and Cabinet decision and all papers

brought into existence to prepare the Cabinet note are also its

part. section 123 of the evidence act and article 74(2) precludes

this Court from enquiring into the nature of the advice tendered

to the President and the documents are, therefore, immune from

disclosure. The disclosure would cause public injury preventing

17
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 machinery 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.

22. The executive power of the Union vested in the President by

operation of Article 53(1) shall be exercised by him either directly

or through officers subordinate to him in accordance with the

Constitution. By operation of article 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; Article 75(3) posits that the Council of Ministers

shall be collectively responsible to the House of the People;

Article 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 (forty-second 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 advice. The proviso

thereto added by section 11 of the constitution (forty-fourth

amendment) act, 1978 which came into effect from June 20, 1979

envisages that “provided that the President may require the

Council of Ministers to reconsider such advice, either generally

18
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 Ministers 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 1969 3 SCR 254 this Court held

that the Ministers are officers subordinate to the President under

Article 53(1) or the Governor under Article 154(1), as the case

may be.

23. The President exercises his executive power under Article

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 Government

administration made under article 77(3), viz. the government of

india (transaction of business) rules, 1961 for short the ‘Business

Rules’. The Prime Minister shall be duty bound under Article 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) and (2) prescribe that “all executive

actions of the Government of India shall be expressed to be taken

in the name of the President” and “shall be authenticated in the

manner specified in rules to be 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.

24. 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 judicial power, but executive power

also partakes of legislative or judicial actions. All powers and

19
functions of the President, except his legislative powers, are

executive powers of the Union vested in the President under

Article 53(1). The President exercises his functions, except those

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 Government. The Minister lays down the policies. The

Council of Ministers settle the major policies. The civil servant

does it on behalf of the Government as a limb of the Government.

The decision of any Minister or officer under the rules is the

decision of the President.

25. 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 inter-departmental discussions and in the

preparation of papers for Cabinet Committees. Political decisions

of importance are in their nature complex 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 variety of meanings precise and

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, that the Minister is answerable for his decision

to the Parliament is fanciful.

26. Sir Ivor Jennings, in his ‘Cabinet Government’ stated that the

Cabinet is the supreme directing authority. It integrates what

20
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 co-ordinating 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 co-ordinating ministers are non-responsible.

Having no statutory powers as co-ordinating ministers, they

perform in that capacity no formal acts. But they share in the

collective responsibility of the Government as a whole, and, as

Ministers they are accountable to Parliament. At page 233, he

stated that the Cabinet has to decide policy matters. Cabinet is

the 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 Government. 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 351, he states that civil

servants prepare memorandum for their Ministers. Ministers

discuss in Cabinet. Proposals are debated in the House of

Commons. All 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

Minister's responsibility, at page 449, he states that when it is

21
said that a Minister is responsible to Parliament, it is meant that

the House of Commons (in our Constitution the Lok Sabha) may

demand an explanation. If that explanation is not considered

satisfactory and the responsibility is collective, the House will

vote against the Government 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.

27. In Halsbury's Laws of England, 4th Edn., Vol. 8, para 820, it is

stated that the Cabinet controls the legislative and executive

functions, that

“… 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 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 Edn. at p. 178

stated that basically the 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 inter-departmental

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

22
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 resolved, the

minority either accepting the decision and assuming joint

responsibility or, if they cannot tolerate it, tendering 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 permanent officials. Of these bodies the

Cabinet holds the central position because, though 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

Ministers are the only ones who have the right to complain, if

they have not been informed or consulted. O. Hood Phillips and

Paul Jackson in their Constitutional and Administrative Law, 7th

Edn. 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

23
under Parliament, supreme control over all departments of State,

and to be the body which coordinates 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 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”.

28. 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

be 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 to secure free and frank advice. In Ram

24
Jawaya Kapur v. State of Punjab 1955 2 SCR 225, 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 governmental function that remain after

legislative and judicial functions are taken away, subject to the

provisions of the Constitution or the law.

29. It would thus be held that 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. 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 the

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 Government in

conformity with the directive principles of the Constitution for

the governance of the nation; place the same before the

Parliament for acceptance and to carry on the executive function

of the State as per the provisions of the Constitution and the

laws.

30. Collective responsibility under article 75(3) of the

constitutioninheres 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

25
which shall be brought under his/her consideration or shall

become known to him/her as Minister 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 Article 75(3) but also from its pragmatism.

31. Bagehot in his The English Constitution, 1964 Edn. 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

minutes in all ordinary cases are 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 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.

32. In Commonwealth of Australia v. Northern Land Council 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.”
26
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 centres (sic centuries) of political experience

have created. To impair it without a very strong reason would be

vandalism, the wanton rejection of the fruits of civilisation.

33. By operation of Article 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 for 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 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. Each member of the Cabinet has personal

responsibility to his conscience and also responsibility to the

Government. Discussion and persuasion may diminish

27
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 he/she finds 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.

34. 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 the 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

supersedes 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 of 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

28
decision to alongate 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.

35. The 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 unpublished 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 organ of the State or the 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 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 QB 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

29
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 of 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 secretly in

Council.”

He went on to point out that:

“I stress that because, as my noble and learned friend Lord

Halsbury suggested, and the noble Marques, 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.”

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

the oath of secrecy should be maintained

“upon matters upon which it is their sworn 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, 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.”

30
37. As a Cabinet Minister, his duty is to maintain the sanctity of

the oath and to keep discussions and information he had during

its course a 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 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.

38. In Shankey v. Whitlan 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.

39. 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 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

31
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.

40. 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 or the opinion by the Ministers or

bureaucrats etc. The prospects of later disclosure at a litigation

would hamper and dampen 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. Lord Warrington speaking for the Board held that the

privilege is a narrow one and must sparingly be exercised. This

Court in Raj Narain case considering the blue book, i.e,

guidelines for protecting VVIPs on tour, though held to be

confidential document and withheld from production, though part

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

confidentiality itself is not a head of privilege.

41. In S.P Gupta 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

Additional 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 Government is doing.

No democratic Government can survive without accountability

and the basic postulate of accountability is that the people

should have information about the functioning of the Government.

It is only if the people know how the Government is functioning

32
that they can fulfil their own democratic rights given to them and

make the democracy a 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 Government must be the rule and secrecy can

be exceptionally justified only where strict requirement 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.

42. In Conway the speech of Lord Reid is the sole votary to

support the plea of confidentiality emphasising that, “the

business of Government is difficult enough as it is no

Government could contemplate with equanimity the inner

workings of the Government machinery 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

of 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 led to a complete 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. 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

33
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, “nowadays the State in multifarious manifestations

impinges closely upon the lives and activities of individual

citizens. Where this involved a citizen, in litigation with the state

or one of its agencies, the candour argument is an utterly

insubstantial ground for denying him 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 withheld from

disclosure. Reg v. Lewes Justices, ex p Secretary of State for the

Home Department 1973 AC 388 and D. v. National Society for the

Prevention of Cruelty to Children are cases in point on that

matter and need no reiteration.

43. 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 Burmah Oil 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. Insofar as a matter of 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 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

34
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 to total immunity to Cabinet documents on the plea of

candour. In Air Canada case Lord Fraser lifted Cabinet minutes

from the total immunity to disclose, although same were “entitled

to a high degree of protection …”.

44. In Jonathan Cape Ltd. case it was held that, “it seems 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 a time gap of 15 years to withhold

disclosure of the Cabinet proceedings and the Government

accepted the same. Shankey 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 Government 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 Pty.

Ltd. 1986 67 Aust LR 100, Wilcox J. in Manthal Australia Pty. Ltd.

v. Minister for Industry, Technology and Commerce 1987 71 Aust

LR 109, Koowarta v. Bjelke-Petersen 1988 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-by.

In United States v. Richard M. Nixon 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;

35
and Mr Nixon, the President of United States was also named as

an unindicted co-conspirator. 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 tapes. The President's executive privilege against

disclosure of confidential communications was negatived holding

that the right to the production of all evidence at a criminal trial

has constitutional dimensions under the 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 litigation, civil or criminal 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

confidentiality in the communications of his office is general in

nature, whereas the 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

36
preliminarily shown to have some bearing on the pending

criminal cases. If the privilege is based only on the generalised

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 candour 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

Article II 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 candour 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

37
significantly diminished by production of such material for in

camera inspection with all the protection that a district court will

be obliged to provide.

45. 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 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 countries have. Their very lives may be endangered

if there is the slightest hint of what they are doing.” In R. v.

Secretary of State for Home Affairs, ex p 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 confidential. 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.

46. 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 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

38
authority would have reached or otherwise abuse its powers, etc.

If and when such wrongs are suffered or injustice encountered by

an individual what would be the remedy? Just as a 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 what the nature of the statutory body or status or

stature of the constitutional functionary though it 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 Government or between the members of the

same department inter se 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 relates to a matter of vital

importance, the disclosure of which is likely to prejudice the

interest of the State.

47. Confidentiality, candour and efficient public service often

bear a common mask. Lord Keath in Burmah Oil 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 in litigation is grotesque. The possibility that it impairs

the public service was also nailed. This Court in S.P Gupta case

also rejected the plea of hampering candid expression of views

or opinion by constitutional functionaries and bureaucrats. In

39
Whitlan v. Australian Consolidated Press 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: 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

40
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 from being 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 C.J 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 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 v. Peko Wallsend Ltd. [Federal Court of

Australia — General Division], the respondent had mining lease

under the existing law. In 1986 the Cabinet decided that a portion

of the same land covered by KNP Kakadu National Park in the

Northern Territory (Stage 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 a plan of management for the national park which

differed 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 no

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

the rules of natural justice to afford them an opportunity to be

41
heard and that it failed to do so. The Single Judge declared the

action as void. Thereafter the National Parks and Wildlife

Conservation Amendment Act, 1987 came into force adding sub-

section (1-a) to section 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 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 adversary 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.

48. In a democracy it is inherently difficult to function at high

governmental level without some degree of secrecy. No Minister,

nor a Senior Officer would effectively discharge his official

responsibilities if every document prepared to formulate

sensitive policy decisions or to make assessment of character

42
rolls of co-ordinate 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 delicate one

which would further get 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 to

improve efficiency and integrity in the officers.

49. The business of the Government when transacted by

bureaucrats, even in personal level, it would be difficult to have

equanimity if the inner working of the Government 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 be willing to respond to the executive public interest

immunity to disclose certain documents where national security

or high policy, high sensitivity is involved.

50. In Asiatic Petroleum Co. Ltd v. Anglo-Persian Oil Co. Ltd. 1916

1 KB 822 the court refused production of the letter concerning

the Government plans relating to Middle Eastern campaigns of

the First World War, as claimed by the Board of Admiralty.

Similarly, in Duncan v. Cammell Laird & Co. Ltd. 1942 AC 624 the

House of Lords refused disclosure of the design of submarine.

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 Government and its agencies need

immunity from production.

43
51. In Council of Civil Service Union v. Minister for Civil Service

the Government Communications Headquarters (GCHQ) functions

were to ensure the security of military and official

communications and to provide the Government with signals

intelligence. They have to handle secret information vital to

national security. The staff of GCHQ was permitted to be

members of the trade union, but later on, instructions were

issued, without prior consultation, amending the staff rules and

directed them to dissociate from the trade union activities. The

previous practice of prior consultation before amendment was

not followed. Judicial review was sought of the amended rules

pleading that failure to consult the union before amendment

amounts to unfair act, and the records relating to it were

summoned. An affidavit of the Cabinet Secretary was filed

explaining the disruptive activities, the national security and the

union actions designed to damage Government 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, be

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

issuing the amended instructions or amending the rules was held

not infracted.

52. In Burmah Oil Co. 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

44
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 as to

override the public interest objections to their production. Lords

Wilberforce dissented and held that public interest demands

protection of them.

53. In Australian Communist Party v. Commonwealth 1950-51 83

CLR 1, 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 the question whether the satisfaction reached by the

Governor General in Council was justified. The court has gone

into the question of competence to dissolve a voluntary or

corporate association i.e Communist Party as unlawful within the

meaning of section 5(2) of the Constitutional Law of the

Commonwealth. In Queen v. Toohey 1982-83 151 CLR 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 claiming the

privilege of certain documents stating that with a view to

preserve the land to the original, the Government have decided to

treat that the land will continue to be held by or on behalf of the

originals. Gibbs, C.J held that under modern conditions, a

responsible Government Parliament could not always be relied on

to check excesses of power by the Crown or its Ministers. The

45
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.”

54. 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, whether 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 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

46
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 absolute

independence when essential criminal statute would upset the

constitutional balance of “a workable government” and gravely

impair the role of the courts under Article III. The very integrity of

the judicial system and public confidence in the system depend

on full 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.

55. The above discussion leads to the following conclusions. The

President while exercising the executive power under Article 73

read with Article 53, discharges such of those powers which are

exclusively conferred to his individual discretion like appointing

the Prime Minister under Article 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 Article 74(1). They exercise the power not as his

delegates but as officers subordinate to him by constitutional

mechanism envisaged under Article 77 and express in the name

of President as per Rules of Business made under Article 77(3).

They bear two different facets (i) the President exercises his

power on the aid and advice; (ii) the individual Minister or Council

of Ministers with the Prime Minister at the head discharge the

functions without reference to the President. Undoubtedly the

Prime Minister is enjoined under Article 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

47
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 Article 226). When public interest immunity

against disclosure of the State documents in the transaction of

business by the 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 harm shall not

be done to the nation or the public service and equally to 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 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 populi est suprema

lex which means that regard for public welfare is the highest law,

is the basic postulate for this immunity. Political decisions like

declaration of emergency under Article 356 are not open to

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

the executive wisdom. In other areas every communication which

48
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 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. In S.P Gupta case this Court held

that only the actual advice tendered to the President is immune

from enquiry and the immunity does not extend to other

documents or records which form part of the advice tendered to

the President.

56. There is a discernible modern trend 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

should be publicly recognised as having been done. 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.

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

49
Candour, frankness and confidentiality though are integral facets

of the common genus i.e, efficient governmental functioning, per

se by no means conclusive but should be kept in view in weighing

the balancing act. Decided cases show 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 document was not to be disclosed,

and the likely injury to the cause of justice must also be

assessed and weighed. Its weight will vary 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 relevance of the documents and the degree of

likelihood that the document will be of importance in the

litigation. In 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 (sic that) 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 public gaze, and that someone

who would regard this as an occasion without sufficient material

for ill-informed criticism is no longer relevant. Criticism

calculated to improve the nature of that working as affecting the

individual citizen is welcome.

57. Insofar 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

50
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 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 at the highest level

for in-camera inspection. Each case must 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 hold that the executive has no blanket immunity to

withhold Cabinet proceedings or decisions. We, therefore, hold

that 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 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.

58. In Jyoti Prokash Mitter v. Chief Justice, Calcutta High

Court1965 2 SCR 53 the question was whether the power

exercised by the President under article 217(3) of the

constitution was his discretionary one or whether he acts with

the aid and advice of the Council of Ministers. The Constitution

Bench held that the dispute as regards the age of a sitting High

Court Judge is to be decided by the President. The satisfaction of

the correctness of the age is that of the President. Therefore, the

matter has to be placed before the President. The President has

to give an opportunity to the Judge to place his version, before

the President considers and decides the age of the Judge.

51
Accordingly it would be the personal satisfaction of the President

and not that of the Council of Ministers. In the later judgment

sequential to this judgment in Union Of India v. Jyoti Prakash

Mitter† 1971 1 SCC 396 it was held that the mere fact that the

President was assisted by the machinery of Home Affairs

Ministry in serving notices or receiving communications

addressed to the learned Judge cannot lead to an inference that

he was guided by the Ministry in arriving at his decision. The

order though was subject to judicial 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 the 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.

59. The third category of case, namely the decision taken at the

level of the Ministry or by the authorised Secretary at the

Secretariat level though expressed in the name of the President

is not immuned from judicial scrutiny and are to be produced and

inspected by the court. If public interest immunity under article

74(2) or section 123 of evidence act is claimed, the Court would

first consider it in camera and decide the issue as indicated

above. The 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

the 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.

60. The first schedule of the Business Rules provide constitution

of Cabinet Standing Committees with the functions specified

therein. Item 2 is “Cabinet Committee on appointments”, which is

empowered to consider in Item 1 all recommendations and to

52
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 Government of India or which required the

approval of the Government of India carrying a salary excluding

allowances or a maximum salary excluding allowances, of not

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.

61. 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 CEGAT. After the directions were

issued by this Court, he was appointed as the President. Mr Jain

assailed the validity of his appointment on diverse grounds. It

was pleaded and Shri Thakur, his learned senior counsel, argued

that as per the convention, a sitting or a retired Judge of the

High Court should have been appointed as President of the

CEGAT in consultation with the Chief Justice of India and Harish

Chander has been appointed in disregard of the express

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

in breach of the judicial order passed by this Court under Article

32. Secondly it was contended that 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 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. In its support was cited the instance of Mr

Kalyansundaram, he being the seniormost member, his claim

should have been considered before Harish Chander was

appointed. Shri Thakur further argued that when recommendation

of Harish Chander for appointment as a Judge of the Delhi High

53
Court was turned down by the Chief Justice of India doubting his

integrity, the appointment of such person of 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 the basic structure,

namely, independence of the judiciary. Shri Thakur, to elaborate

these conditions, sought permission to peruse the record.

62. Shri Venugopal, the learned senior counsel for Harish Chander

argued that his client being the senior Vice-President was validly

appointed as President of the CEGAT. 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 of Central

Government it was admitted in the counter-affidavit that since

rules do not envisage consultation with the Chief Justice,

consultation was not done. It was argued that the Government

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.

63. Under Section 129 of the Customs Act 52 of 1962 for short

‘the Act’, the Central Government shall constitute the CEGAT

consisting 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

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

CEGAT by the High Court under Section 130; to resolve conflict of

decisions by this Court under Section 130-A, the orders of the

CEGAT, by operation of sub-section (4) of section 129-b, “shall be

final”. The President of CEGAT is the controlling authority as well

54
as presiding authority of the tribunals constituted at different

places. Constitution of the CEGAT came to be made pursuant to

the Fifth Schedule of the finance act 2 of 1980 with effect from

October 11, 1982. The President of India exercising the power

under proviso to article 309 of the constitution made the rules.

rule 2(c) defined “member” to mean 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” to mean 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 a 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 Government of India in the

Ministry of Finance, (Department of Revenue); (iii) the Secretary

to the Government of India in the Ministry of Law (Department of

Legal Affairs); (iv) the President; (v) such other persons, not

exceeding two, as the Central Government may nominate.

64. Sub-rule (4) provides — Subject to the provisions of section

10, the central government 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 Government shall appoint one of the members 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 as a 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 62

years, whichever is earlier.

55
(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:

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 years as may be determined by the

Central Government at the time of appointment or re-appointment.”

65. The Jha Committee in its report in para 16(22) recommended

constitution of 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

appointment of the serving or retired High Court Judge as

President of the Tribunal for a fixed tenure. In Union of India v.

Paras Laminates (P) Ltd. 1990 49 ELT 322 this Court held that

CEGAT 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 Kesavananda Bharati v.

Union of India 1973 4 SCC 225 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 Raghunathrao Ganpatrao v. Union Of

India. 1993 1 Scale 363 [See 1994 Supp 1 SCC 191]. In Krishna

Swami v. Union of India1992 4 SCC 605, 649 para 66 one of us K.

Ramaswamy, J. held that: (SCC p. 649, para 66)

56
“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 qua non

for the efficacy of the rule of law. This Court is the final arbiter of

the interpretation of the Constitution and the law.”

66. In S.P Sampath Kumar v. Union of India 1987 1 SCC 124 this

Court held that the primary duty of the judiciary is to interpret

the Constitution and the laws and this would predominantly 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

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 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 provide alternative institutional mechanism

or arrangement for judicial 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

57
jurisdiction of the High Court under Articles 226 and 227

permissible 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 Tribunals Act, 1985 was

required to interpret and apply articles 14, 15, 16 and 311 in quite

a large number of cases. Therefore, the personnel manning the

administrative 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 giving it sufficient weightage would definitely impair the

efficacy and effectiveness of the Administrative Tribunal.

Therefore, it was held that an appropriate rule should be made to

recruit the members; and to 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 Majumdar v. Union Of India 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 a par with the judges but a

separate mechanism created for their appointment pursuant

to article 323-a of the constitution. Therefore, what was meant

by this Court in Sampath Kumar case ratio is that the tribunals

when exercise the power and functions, 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 articles 226 and 227 of the constitution. j.b chopra v. union

58
of india 1987 1 SCC 422 merely followed the ratio of Sampath

Kumar.

67. The tribunals set up under articles 323-a and 323-b 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 offices 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 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.

68. In Union of India v. Sankalchand Himatlal Sheth 1977 4 SCC

193, 236-37 this Court at p. 463 laid emphasis that: (SCC pp. 236-

37, para 50) “[I]ndependence of the judiciary is a fighting faith of

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 regarded and so ingrained it has

become in the life and thought of the people that it is now almost

taken for granted and it would be regarded an act of insanity for

any one to think otherwise.” At page 471 (SCC p. 245) 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 (SCC pp. 263-64) it was held that

59
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 Krishna Swami 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.”

69. In Krishna Sahai v. State of U.P 1990 2 SCC 673 this Court

emphasised its need in constituting the U.P Service Tribunal that,

“it would be appropriate for the State of Uttar Pradesh to change

its manning and a sufficient number of people qualified in Law

should be on the Tribunal to ensure adequate dispensation of

justice and to maintain judicial temper in the functioning of the

Tribunal”. In Rajendra Singh Yadav v. State of U.P 1990 2 SCC 763

it was further reiterated that the Services Tribunal mostly consist

60
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 tribunal and the institution as well would

command the requisite confidence of the disputants. In Shri

Kumar Padma Prasad v. Union of India 1992 2 SCC 428 this Court

emphasised that, “Needless to say that the independence,

efficiency and integrity of the judiciary can only be 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 making appointments act with meticulous care

and utmost responsibility.”

70. In a democracy governed by rule of law surely the only

acceptable repository of absolute discretion should be the

courts. Judicial review is the basic and essential feature of the

Indian constitutional scheme entrusted to the judiciary. It cannot

be dispensed with by creating a tribunal under articles 323-a and

323-b 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 is consistent with the constitutional scheme. The faith

of the people is the bedrock 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 Government. To maintain independence and

61
imperativity it is necessary that the personnel should have at

least modicum of legal training, learning and experience.

Selection of competent and proper people instils people's faith

and trust in the office and helps 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 is 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 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.

71. The daily practice in the courts not only gives training to

advocates to interpret the rules but also adopt the conventions of

courts. Inbuilt 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 Edn.), at page

50, states 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 familiarity with the basic terminology and

concept coupled with knowledge of trends is essential. A

62
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 community. If judges act in injudicious manner, it

would often lead to miscarriage of justice and a brooding sense

of injustice rankles in an aggrieved person.

72. The CEGAT is a creature of the statute, yet intended to have

all the flavour of judicial dispensation by independent members

and President. Shri Justice Y.V Chandrachud, Chief Justice of

India, in his letter dated October 5, 1982 stated that “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. 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 alongate 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 its

President. Admittedly Chief Justice of India was not consulted

before appointing Shri Harish Chander as President. Several

affidavits filed on behalf of the Government 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 Shri 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-

63
by. While making statutory rules the executive appears to have

made the appointment of a sitting or retired High Court Judge as

President unattractive and directory frustrating the legislative

animation. A sitting Judge when is entitled to continue in his

office up to 62 years would he be willing to opt to serve as

President, if his superannuation as President is coterminous with

62 years? He would be attracted only if he is given extended

three years more tenure after his superannuation. But Rule 10(4)

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 coterminous

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 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 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

Harish Chander as President following the existing rules.

73. 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 Government or department etc. In our

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

64
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 the executive to select the personnel as per law or

procedure in this behalf. In Shrikumar Prasad case K.N

Srivastava, M.J.S, Legal Remembrancer, Secretary of Law and

Justice, Government of Mizoram did not possess the requisite

qualifications for appointment as a Judge of the High Court

prescribed under Article 217 of the Constitution, namely, that he

was not a District Judge for 10 years in State Higher Judicial

Service, which is a mandatory 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.

74. Shri Harish Chander, admittedly was the Senior Vice-President

at the relevant time. The contention of Shri Thakur of the need to

evaluate the comparative merits of Mr Harish Chander and Mr

Kalyansundaram a seniormost 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. 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 to assail the legality of

the offending action. Third party has no 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.

75. 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

Government cannot turn a blind eye to the persistent public

65
demands and we direct to swing into action, an in-depth 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 a 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.

76. 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-Chairman (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

Article 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 assuage a growing feeling of injustice of

those who can ill afford to approach the Supreme Court. Equally

the need for recruitment of members of the Bar to man the

tribunals as well as the working system of the tribunals need

fresh look and regular monitoring is necessary. An expert body

like the Law Commission of India would make an in-depth 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 Government of India who should take

remedial steps by an appropriate legislation to overcome the

66
handicaps and difficulties and make the tribunals effective and

efficient instruments for making judicial review efficacious,

inexpensive and satisfactory.

77. The writ petitions are disposed of with the above directions,

but in the circumstances with no order as to costs.

67