etition Nos 90  312 of 1992
Under Article 32 of the Constitution of India  DD Thakur Tapash Ray ML Verma Gauray Jain and Ms Abha Jain for the Petitioner in WP No 90 of 1992
RP Gupta for the Petitioner in WP No 31292
G Ramaswamy Attorney General DP Gupta Solicitor General B Parthasarthy CVS Rao AS Bhasme and Chava Badri Nath Babu for the Respondent
R K Jain and Rajan Mukherjee for the customs Excise  Gold Control Appellate Tribunal
KK Venugopal Ms Pallav Shisodia and CSS Rao for the Respondent
The Judgments of the Court were delivered by AHMADI J We have had the benefit of the industry erudition and exposition of the constitutional and jurisprudential aspects of law on the various questions urged before us in the judgment of our esteemed Brother K Ramaswamy J
But while concurring with the hereinafter mentioned conclusions recorded by him we would like to say a few words to explain our points of view
Since the facts have been set out in detail by our learned Brother we would rest content by giving an abridged preface which we consider necessary
It all began with the receipt of a letter dated December 26 1991 from Shri RK Jain Editor Excise Law Times addressed to then Chief Justice of India Shri MH Kania J complaining that as the Customs Excise and Gold Control Appellate Tribunal for short the CEGAT was without a President for the last over six months the functioning of the Tribunal was adversely affected in that the Benches sit for hardly two hours or so the sittings commence late at about 1050 818 am 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 42000 appeals and approximately 2000 stay petitions pending in the CEGAT involving revenue worth crores of rupees which will remain blocked for long
Three directions were sought namely i the immediate appointment of the President to the CEGAT preferably a senior High Court Judge  ii order an enquiry into the mal functioning of the CEGAT and iii issue all other directions as your Lordship may deem fit and necessary
 This letter was directed to be treated as Public Interest Litigation and notice was issued to the Union of India restricted to relief No i ie in regard to the appointment of the President of the CEGAT
On April 29 1992 the learned Additional Solicitor General informed the Court that the appointment of the President was made
On the next date of hearing the relevant file on which the decision regarding appointment was made was produced in a sealed envelope in Court which we directed to be kept in safe custody as apprehension was expressed that the file may be tempered with
The focus which was initially on the working of the CEGAT and in particular against the conduct and behaviour one of its Members now shifted to the legality and validity of the appointment of respondent No 3 as its President
Serious allegations were made against respondent No 3 and his competence to hold the post was questioned
It was contended that his appointment was made in violation of the Rules and convention found mentioned in the message of Shri YV 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 41992 but when we were about to peruse the same the learned Additional Solicitor General contended that the Court cannot inspect it because he desired to claim privilege 
We therefore directed that a formal application may be made in that behalf before the next date of hearing and returned the file to enable the making of such an application
819 Accordingly the then Finance Secretary filed an affidavit claiming privilege under sections 123 and 124 Evidence Act and Article 742 of the Constitution
The Minister of State in the Finance Department was also directed to file an affidavit in support of the claim for privilege which he did
It is in this context that the question of privilege arose in the present proceedings
Our learned Brother Ramaswamy J dealt with this question elaborately
After referring to the provisions of the relevant Statutes and the Constitution as well as the case law of both foreign and Indian courts the authoritative text books
he has concluded as under Having perused the file and given our anxious consideration we are of the opinion that on the facts of the case  it is not necessary to disclose the contents of the records of the petitioner or his counsel
 We are in respectful agreement with this conclusion recorded by our learned Brother though not entirely for in the reasons which have weighed with him
On the question of appointment of respondent No 3 as the President of the CEGAT we must notice a few provisions contained in the CEGAT Members Recruitment anti Conditions of Service
Rules 1997 hereinafter called the Rules 
Rule 2c defines a member to include the President of the CEGAT also Rule 3 prescribes the qualifications for appointment and Rule 6sets out the method of recruitment of a member through a Selection Committee consisting of a Judge of the Supreme Court of India nominated by the Chief Justice of India
Rule 10 provides for the appointment of the President
It says that the Central Government shall appoint one of the members to be the President
Sub rule 2 then provides as under 2 Notwithstanding anything contained in rule 6
a sitting or retired judge of a High Court may also he appointed by the Central Government as a member and President simultaneously
 Sub rule 4 and the proviso thereto bear reproduction 4 Where a serving judge of a High Court is appointed as a member and President he shall hold office as President for a period of three years from the date of his appointment or till he attains the age of 62 years whichever is earlier 820 Provided that where a retired judge of a High Court above the age of 62 years is appointed its President
he shall hold office for such period not exceeding three years as may be determined by the Central Government at the time of  appointment or re appointment
 It will thus he seen that the rules empower the Central Government to appoint any member as the President of the CEGAT
It is true that under sub rule 4 a serving judge and under the proviso thereto a retired judge can also be appointed a Member and President simultaneously
In the case of a serving judge his age of superannuation is fixed at 02 years but in the case of a retired judge he may be appointed for it period of three years at the most
Insofar as a serving High Court Judge is concerned he holds office until he attains the age of 62 years vide Article 217 of the Constitution
It therefore heats common sense why a sitting Judge of he High Court would opt to serve as the President of tile CEGAT if lie is to retire At the same age without any benefit
On tile contrary he would lose certain perks which are attached to tile office of a High Court Judge
Even status wise lie would suffer as his decisions would he subject to the writ jurisdiction of the High Court under Articles 226227 of tile Constitution
He may agree to accept the offer only if he had an extended tenure of at least three years
We are therefore in agreement with our learned Brother that sub rule 4 of Rule 10 of the Rules needs a suitable change to make it sufficiently attractive for sitting High Court Judges to accept appointment as the President of the CEGAT
We also agree with our learned brother that to instill the confidence of the litigating public in the CEGAT
the Government must make a sincere effort to appoint a sitting Judge of the High Court is a President of the CEGAT in consultation of the Chief Justice of India and it a sitting Judge is not available the choice must fall on a retired Judge as far as possible
This would he consistent with the assurance given by the Finance Department as is reflected in the letter of Shri Chandrachud extract wherefrom is reproduced by our learned Brother in his judgment
Shri Harish Chandra was a Senior Vice President when the question of  filling up the vacancy of the President came up for consideration
He was fully qualified for the post under the Rules
No challenge is made on that count
Under Rule 101 the Central Government is conferred the power to appoint one of the Members to be the President
Since the validity of the Rule is not questioned there can be no doubt that the Central Government was entitled to appoint respondent No 3 as the President
But it was said that the track record of respondent No 3 was poor and he was hardly fit to hold the post of the President of the CEGAT
It has been averred that respondent No 3 had been in the past proposed for appointment 821 as a Judge of the Delhi High Court but his appointment did not materialise due to certain adverse reports
Assuming for the sake of argument that these allegations are factually accurate this Court cannot sit in judgment over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules
We therefore agree with our learned Brother that this Court cannot sit in judgment over the wisdom of the Central Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment
therefore cannot interfere with the appointment of respondent No 3 on the ground that his track record was poor or because of adverse reports on which account his appointment as a High Court Judge had not materialised
The allegations made by Shri RK Jain in regard to the working of the CEGAT are rave and the authorities can ill afford to turn a Nelson s eve to those allegations made by a person who is fairly well conversant with the internal working of the Tribunal
Refusal to inquire into such grave allegations some of which are capable of verification can only betray indifference and lack of a sense of urgency to tone up the working of the tribunal
Fresh articles have appeared in the Excise Law Times which point to the sharp decline in the functioning of the CEGAT pointing to a serious management crises
It is high time that the administrative machinery which is charged with the duty to supervise the working of the CEGAT wakes up from its slumber and initiates prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGAT identify the causes for the crises and suggest remedial measures
This cannot brook delay
Lastly the time is ripe for taking stock of the working of  the various Tribunals set up in the country after the insertion of Articles 323A 323B in the Constitution
A sound justice delivery system is a sine qua non for the 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 articlesActs have been enacted whereunder tribunals have been constituted for dispensation of justice
Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have serve the purpose and objectives for which they were constituted
Complaints have been heard in regard to the functioning of other tribunals as well and it is time that a body like the Law Commission of India has comprehensive look in with a view to 822 suggesting measures for their improved functioning
That body can also suggest changes in the different statutes and evolve a model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater independence
An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve
We strongly recommend to the Law Commission of India to undertake such an exercise on priority basis
A copy of this judgment may be forwarded by the Registrar of this Court to the Member Secretary of the Commission for immediate action
We have thought it wise to clarify the extent of our concurrence with the views expressed by our learned Brother in his judgment to avoid possibility of doubts being raised in future
We accordingly agree with our learned Brother that the writ petitions should stand disposed of accordingly with no order as to costs
KRAMASWAMY J The same facts gave birth to the twin petitions for disposal
by a common judgment
On October 11 1982 the Customs Central Excise and Gold Control Appellate Tribunal for short CEGAT  came into existence with Justice FS Gill as its President
After he retired in 1985 no Judge was appointed as President
In letter dated December 26 1991 addressed to the Chief Justice of India the petitioner highlighted the mal functioning of the CEGAT and the imperative to appoint a sitting or retired judge of the High Court as President to revitalise its functioning and to regenerate warning and withering faith of the litigant public of the efficacy of its adjudication
Treating it as writ petition on February 25 1992 this court issued rule nisi to the first respondent initially to make immediate appointment of the President of the CEGAT prefer ably a senior High Court Judge
On March 30 1992 when the Union s counsel stated that the matter was under active consideration of the government having regard to the urgency this court hoped that the decision would he taken within two weeks from that date
On April 20 1992 the learned Addl
Solicitor General reported that the appointment of the President had been made however
the order was not placed on record
In the meanwhile die petitioner filed writ petition No 312 of 1992 impugning the appointment of Sri Harish Chander as President and sought to quash the same being in violation of the direction issued by this  our on February 25 1992 and to strike down Rules 101 3 and 4 of the CEGAT Members Recruitment and Conditions of Service Rules 1987 for short the Rule  as violative of article 43 of the Constitution
Rule nisi was also issued to the respondents in that writ petition on May 4 1992
The tile in a sealed cover was produced
The first and the third respondents were directed to file their counters 823 within four weeks
This court also directed the first respondent to reflect in the counter what was the actual understanding in regard to the convention referred to in the letter of the then Chief Justice of India dated October 5 1982 What procedure was followed at the time of the appointment by first respondents and whether Chief Justice of India was consulted or whether the first respondent was free to choose a retired or a sitting Judge of the High Court as President of the Tribunal with or without consultation of the Chief Justice of India
It should also point out what procedure it had followed since then in the appointment of the President of the Tribunal
It should also clarify whether before the third respondent was appointed as the President any effort or attempt was made to ascertain if any retired or a sitting Judge of the High Court could be appointed as the President of the Tribunal and directed to post the cases for final disposal on July 21 1992
At request to enable to government to file a counter the rile was returned
The Solicitor General though brought the file on July 21 1992
objected to our inspecting the file and desired to claim privilege
The file was directed to be kept in the custody of the Registrar General till further orders
The union was directed to file written application setting out the grounds on which the claim for privilege is founded and directed the Registry to return the sealed envelop as the Solicitor General expressed handicap to make precise claim of the privilege for want of file
Thereafter an application was filed supported by the affidavit of the Secretary Finance and the State Minister also filed his affidavit
Counter affidavits and rejoinders were exchanged in the writ petitions
The Attorney General also appeared on behalf of the Union
The government s claim for privilege is founded upon section 123 of the and article 74 2 of the Constitution of India
Later on the Solicitor General modified the stand that the government have no objection for the court to peruse the file but claimed privilege to disclose the contents of the file to the petitioner
Section 123 of the 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 notwith standing any objection which there may be to its production or to its admissibility
824 The validity of any such objection shall be decided by the court
 The court if it deems fit may inspect the documents unless it refers to matters of State or take other evidence to enable it to determine on its admissibility
The remedy under article 32 of the Constitution itself is a fundamental right to enforce the guaranteed rights in Part 111
This court shall have power to issue writ of habeas corpus mandamus certiorari quowarranto or any other appropriate writ or direction or order appropriate to the situation to enforce any of the fundamental right power of High court under 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 documentsor the investigation or punishment of any contempt of itself
 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 Cl 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 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 825 custody and disobedience thereof would be at the pain of contempt
Section 123 of the Evidence Act gives right to the government in other words to the minister or in his absence head of the department to claim privilege in other words immunity from disclosure of the unpublished official state documents in public interest
In a democracy governed by rule of law State is treated at par with a person by article 196 in commercialindustrial activities
It possessed of no special privileges
This Court in State of UP vs Raj Narain  Ors
at 349 held that an objection claiming immunity should be raised by an affidavit affirmed by the head of the department
The court may also require a Minister to affirm an affidavit
They must state with precision the grounds or reasons in support of the public interest immunity
It is now settled law that the initial claim for public interest immunity to produce unpublished official records for short state documents should be made through an affidavit generally by the Minister concerned in his absence by the Secretary of the department or head of the Department
In the latter case the court may require an affidavit of the Minister himself to be filed
The affidavit should indicate that the documents in question have been carefully read and considered and the deponent has been satisfied supported by reasons or grounds valid and germane as to why it is apprehended that public interest would be injured by disclosure of the document summoned or called for
If the court finds the affidavit unsatisfactory a further opportunity may be given to file additional affidavit or be may be summoned for cross examination
If the court is satisfied from the affidavit and the reasons assigned for withholding production or disclosure the court may pass an appropriate order in that behalf
The Court though would give utmost consideration and deference to the view of the Minister yet it is not conclusive
The claim for immunity should never be on administrative routine nor be a garb to avoid inconvenience embarrassment or adverse to its defence in the action the latter themselves a ground for disclosure
If the court still desires to peruse the record for satisfying itself whether the reasons assigned in the affidavit would justify withholding disclosure the court would in camera examine the record and satisfy itself whether the public interest subserves withholding production or disclosure or making the document as part of the record
On the one side there is the public interest to be protected on the other side of the scale is the interest of the litigant who legitimately wants production of some documents which he believes will support his own or defeat his adversary s case
Both are matters of public interest for it is also in the public interest that justice should be done between litigating parties by production of all relevant documents for which public interest immunity has been claimed
They must be weighed one 826 competing public interest in the balance as against another equally competing public administration of justice
The reasons are there is public interest that harm shall not be done to the nation or the public service by disclosure of the document in question and there is public interest that the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done
The court also should be satisfied whether the evidence relates to the affairs of the State under sec
123 or not evidence is relevant to the issue and admissible
As distinct from private interest the principle on which protection is given is that where a conflict arise between public and private interest private interest must yield to the public interest
In SP Gupta  Ors
etc vs Union of India  Ors
1982 2 SCR 365 this court by seven Judges  bench held that the court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest but on the other hand if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest it will overrule the objection and order disclosure of the document
When an objection was raised against disclosure of a particular document that it belongs to a class which in the public interest ought not to be disclosed whether or not it would be harmful to disclose that class document or the contents of that particular document forming part of the class would be injurious to the interest of the state or the public service it would be difficult to decide in vacuum the claim because it would almost invariably be supported by an affidavit made either by the Minister or head of the department and if he asserts that to disclose the contents of the document would or might do to the nation or the public service a grave injury the court out of deference will be slow to question his opinion or to allow any interest even that of justice to prevail over it unless there can be shown to exist some factors suggesting either lack of good faith or an error of judgment on the part of the minister or the head of the department or the claim was made in administrative routine without due consideration or to avoid inconvenience or injury to their defence
However it is well settled law that the court is not bound by the statement made by the minister or the head of the department in the affidavit and it retains the power to balance the injury to the State or the public service against the risk of injustice
The real question which the court is required to consider is whether public interest is so strong to override the ordinary right and interest of the litigant that he shall be able to lay before a court of justice of the relevant evidence
In balancing the competing interest it is the duty of the court to see that there is the public interest that harm shall not be done to the nation or the 827 public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding documents which must be produced if justice is to he done
It is therefore the paramount right and duty of the court not of the executive to decide whether a document will be produced or may he withheld
The court must decide which aspect of public interest predominates or in other words whether the public interest which requires that the document should not be produced out weighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence
In some cases therefore the court must weight one competing aspect of the public interest against the other and decide where the balance lies
If the nature of the injury to the public interest is so grave a character then even private interest or any other interest cannot be allowed to prevail over it
The basic question to which the court would
therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words is it of such a character that its disclosure would be against the interest of the State or the public service and if so whether the public interest in it  non disclosure is so strong that it must prevail over the private interesting the administration of justice and on that account it should not be allowed to be disclosed
By operation of Sec 162 of Evidence Act the final decision in regard to the validity of an objection against disclosure raised under section 123 would always be with the court
The contention therefore that the claim of public interest immunity claimed in the affidavit of the State Minister for Finance and the Secretary need privacy and claim for immunity of state documents from disclosure is unsustainable
The same is the law laid down by the Commonwealth countries see Conway vs Rimmer   D vs National Society for the Prevention of Cruelty to Children   Burmah Oil Co Ltd vs Governor and Company of the Bank of England   Butters Gas and Oil Co vs
Hammer  Air Canada vs Secretary of State for Trade  and Council of Civil Service Unions vs Minister for the Civil service  Pursuant to the law laid down in Conway s case the Administration of Justice Act 1970 was made enabling the court to order disclosure of the documents except where the court in exercise of the power under sections 31 to 34 considered that compliance of the order would be injurious to the public interest consistent with the above approach is the principle laid by this court in SP Gupta s case
In United States of America the Primacy to the executive privilege is given only where the court is satisfied that disclosure of the evidence will expose military 828 secrecy or of the document relating to foreign relations
In other respects the Court would reject the assertion of executive privilege
hi United States vs Reynolds 1935 1   Environment Protection Agency vs Patsy T Mink 410 US  11 Newyork Times vs U section  Pentagan Papers case and U section vs Richard M Nixon    1035
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 Art 552 was made
Thereunder it was broadly conceded to permit access to official information
Only is stated hereinbefore the President is to withhold top secret documents pursuant to executive order to be classified and stamped as highly sensitive matters vital to our national defence and foreign policies
In other respects under the Freedom of Information Act documents are accessible to production
In the latest Commentary by McCormick on Evidence 4th Ed by John W Strong in Chapter 12 surveyed the development of law on the executive privilege and stated that at p 155 that once we leave the restricted area of military and diplomatic secrets a greater role for the judiciary in the determination of governmental claims of privilege becomes not only desirable but necessary  
Where these privileges
are claimed it is for the judge to determine whether the interest in governmental secrecy is out weighed in the particular case by the litigant s interest in obtaining the evidence sought
A satisfactory striking of this balance will on the one hand require consideration of the interests giving rise to the privilege and an assessment of the extent to which disclosure will realistically impair those interests
On the other hand factors which will affect the litigant s need will include the significance of the evidence sought for the case
the availability of the desired information from other sources and in some instances the nature of the right being asserted in the litigation In Robinson vs State of South Australia PC Shankey vs Whitlan 1979 53 ALR p1 FAI Insurances Ltd vs The Hon
Sir Henry Arthus Winneke and ors   whitlan vs Australian Consolidated Press Ltd1985 60 ALR p7 Minister for Arts Heritage and Environment and Ors
vs Pekoi Wallsend Ltd and Ors
and Commonwealth of Australia vs Northern Land Council and Anr
 Australian Courts consistently rejected the executive privilege and exercise 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 vs Shinder and Gagnon vs Quebec Securities Commission  The Supreme Court of Victoria in Bruce vs Waldron
1963 VLR p3 The Court of Appeal of New south Wales in Re Tunstall
exhibit P Brown 1966 84 WN Pt
2 829 NSW 13
The Court of Appeal of the New Zealand in Corbett vs
Social Security Commission  Creednz Inc vs Governor General 1981 1 NLR p 172 The Supreme Court of Ceylon in Apponhamy vs Illangaretute 1964 66 CLW 17
The Court of Appeal of Jamaica in Allen vs By field No2 at page 71 and The Court of Session in Scotland in Glasqow Corporation vs Central Land Board 1956 Scotland Law Time p4
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 article 77 3 and 741 the appointment was made by the President
The file constitutes Cabinet documents forming part of the Preparation of the documents leading to the formation of the advice tendered to the President
Noting of the officials which lead to the Cabinet note and Cabinet decision and all papers brought into existence to prepare Cabinet note are also its part
Section 123 of the Evidence Act and Article 742 precludes this court from inquiring into the nature of the advice tendered to the President and the documents are therefore immuned from disclosure
The disclosure would cause public injury preventing candid and frank discussion and expression of views by the bureaucrats at higher level and by the MinisterCabinet Sub committee causing serious injury to public service
Therefore Cabinet papers Minutes of discussion by heads of departments high level documents relating to the inner working of the government machine and all papers concerned with the government policies belong to a class documents which in the public interest they or contents thereof must be protected against disclosure
The executive power of the Union vested in the President by Operation of article 531 shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution
By operation of article 731 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 751 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 753 posits that the Council of Ministers shall be collectively responsible to the House of the People article 754 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 741 as amended by section 11 of the Constitution 42nd Amendment Act 1976 with effect from January 3 1977 postulates that there shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President who shall in the exercise of his functions act in accordance with such 830 advice
The proviso thereto added by section 11 of the Constitution 44th Amendment Act 1978 which came into effect from June 20 1979 envisages that provided that the President may require the Council of Ministers to reconsider such advice either generally or otherwise and the President shall act in accordance with the advice tendered after such reconsideration
 Clause 2 declares that the question whether any and if so what advice was tendered by Minister to the President shall not be inquired into in any court
 In Satwant Singh Sawhney vs D Ramarathnam
Asstt
Passport Officer  and in Maganbhai Ishwarbhai Patel vs Union of India and anr
  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
The President exercises his executive power under Art 74 1 through the Council of Ministers with the Prime Minister as its head who shall be collectively responsible to the House of People
The exercise of the power would be as per the rules of business for convenient transaction of the Govt
administration made under article 773 viz the Govt
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 771 prescribes that all executive actions of the Govt
of India shall be expressed to be taken in the name of the President and shall be authenticated in the manner specified in the Rules made by the President
The President issued business rules and has allocated diverse functions to the Council of Ministers its committees and the officers subordinate to them
In Shamsher Singh vs State of Punjab   a Bench of seven Judges speaking through Ray CJ held that the executive power is generally described as the residue which does not fall within legislative or judical power but executive power also partakes of legislative or judicial actions
All powers and functions of the President except his legislative powers are executive powers of the Union vested in the President under article 531
The President exercises his functions except conferred on him to be exercised in his discretion with the aid and advice of the Council of Ministers as per the business rules allocated among his Ministers or Committees
Wherever the constitution requires the satisfaction of the President the satisfaction required of him by the Constitution is not the personal satisfaction of the President but is of the Cabinet System of Govt
The Minister lays down the policies
The Council of Ministers settle the major policies
The civil servant does it on behalf of the Govt
as limb of the Govt
The decision of any Minister or officer under the rules is the decision of the President
831 Cabinet is a constitutional mechanism to ensure that before important decisions are reached many sides of the question are weighed and considered which would mean that much work must be done beforehand in interdepartmental discussions and in the preparation of papers for Cabinet Committees
Political decisions of importance are in their nature complies and need sufficient time and considerate thought
Equally the decisions relating to public service need probity and diverse consideration
The Cabinet system is extremely well adapted to making considered decisions with all due speed and expedition
The principle of ministerial responsibility has a verity of meanings precise and imprecise authentic and vague
Parliament rarely exercises direct control over Ministers
Though the floor of the House is the forum for correcting excesses of the government but rarely a place where a Minister can be expected to keep the information secret
Therefore the Minister is answerable for his decision to the Parliament is fanciful
Sir Ivor Jenningsin his Cabinet Government stated that the Cabinet is the supreme directing authority
It integrates what would otherwise be a heterogeneous collection of authorities exercising a vast variety of functions
Neither the Cabinet nor the Prime Minister as such claims to exercise any powers conferred by law
They take the decision but the acts which have legal effect are taken by others the Privy Council a Minister a statutory commission and the like
At page 81 it is stated that the existence and activities of these coordinating ministers does not impair or diminish the responsibility to Parliament of the departmental ministers whose policies they co ordinate
The ministers are fully accountable to Parliament for any act of policy or administration within their departmental jurisdiction
It does not follow that the coordinating ministers are non responsible
Having no statutory powers as coordinating ministers they perform in that capacity no formal acts
But they share in the collective responsibility of the Govt
as a whole and as Minister they are accountable to Parliament
At page 233 he stated that the Cabinet has to decide policy matters
Cabinet is policy formulating body
When it has determined on a policy the appropriate department carries it out either by administrative action within the law or by drafting a bill to be submitted to Parliament so as to change the law
The Cabinet is a general controlling body
It neither desires nor is able to deal with all the numerous details of the Govt
It expects a minister to take all decisions which are not of real political importance
Every Minister must therefore exercise his own discretion as to what matters arising in his department ought to receive cabinet sanction
At page 35 1 he stated that civil servants prepare memorandum for their Ministers
Ministers discuss in Cabinet
Proposals are debated in the House of Commons
At the persons involved are peculiar people and nobody knows what the man in the back street thinks of it all though the politician often thinks he does
On the Cabinet 832 Minister s responsibility at page 449 he stated that when it is said that a Minister is responsible to Parliament it is meant that the House of Commons in our constitution Lok Sabha may demand an explanation
If that explanation is not considered satisfactory and the responsibility is collective the House will vote against the Govt
and so compel a resignation or a dissolution
If the responsibility is not collective but the act or advice was due to the negligence of or to an error of judgment by a Minister and the House disapproves the Minister will resign
In Halsbury s Laws of England Fourth Ed Vol 8 para 820 it is stated that the Cabinet control of legislative and executive functions the modern English system of government is the concentration of the control of both legislative and executive functions in a small body of men presided over by the Prime Minister who are agreed on fundamentals and decide the most important questions of policy secretly in the Cabinet
The most important check on their power is the existence of a powerful and organised parliamentary opposition and the possibility that measures proposed or carried by the government may subject them to popular disapproval and enable the Opposition to defeat them at the next general election and supplant them in their control of the executive
In Great Britain Cabinet system is based on conventions
Patrick Gordon Walker in his The Cabinet  1973 Revised Ed
at p 178 stated that basically Cabinet is a constitutional mechanism to ensure that before important decisions are reached many sides of the question are weighed and considered
This means that much work must be done beforehand in interdepartmental discussions and in the preparation of papers for Cabinet Committees and the Cabinet
Cabinet that acts without briefs or over hastily  think for themselves  usually in my experience make mistaken decisions
Political decisions of importance are in their nature complex and need some time and thought
The cabinet system is extremely well adapted to making considered decisions with all due speed
Cabinet discussions as distinct from Cabinet decisions must from their nature be kept secret
At page 184 he maintained that the main effective change towards less secrecy would be for the Cabinet to share with Parliament and public more of the factual information on which the government makes some of their decisions
Moves in this direction have begun to be taken
In his the British Cabinet John P Mackintosh 2nd Edn
at p 11 stated that if there is dissension between Ministers matters may be thrashed out in private and the contestants plead in turn with the Prime Minister but it is in the Cabinet that the conflict must be formally solved the minority either accepting the decision and assuming joint responsibility or if they cannot tolerate it tender their resignations
At p529 he stated that some decisions are taken by the Prime Minister alone some in consultation between him and the senior Ministers while others are left to heads of departments to the full Cabinet to the concerned Cabinet Committee or to the 833 permanent officials
Of these bodies the Cabinet holds the central position because thou oh it does not often govern in that sense it is the place where disputes are settled where major policies are endorsed and where the balance of the forces emerge if there is disagreement
In the end most decisions have to be reported to the Cabinet and Cabinet Minister are the only ones who have the right to complain if they have not been informed or consulted
Hood Phillips and Paul Jackson in their Constitutional and Administrative Law 7th Ed
at p301 stated that the duties of Cabinets are a the final determination of the policy to be submitted to Parliament  b the supreme control of the national executive in accordance with the policy prescribed by the Parliament and c the continuous coordination and delimitation in the interests of the several departments of State
 The Cabinet giving collective  advice to the Sovereign through the Prime Minister was said to exercise under Parliament supreme control over all departments of State and to be the body which coordinate the work on the one hand of the executive and the legislature and on the other hand of the organs of the executive among themselves
At p307 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 p309 it is stated that the responsibility of Ministers is both individual and collective
The individual responsibility of a Minister for the performance of his official duties is both legal and conventional it is owed legally to the sovereign and also by convention to Parliament
Responsibility is accountability or answerability
The responsible Minister is the one under whose authority an act was done or who must take the constitutional consequences of what has been done either by himself or in his department
In the Cabinet Walker at page 183 stated that the feeling is widespread that the Cabinet shrouds its affairs in too much secrecy and that Parliament Press and public should be able to participate to a greater degree in formulation of policy
With few exceptions Cabinet decisions have to be made public in order to he made effective although a small number that do not need to be executed do not become known for instance talks with a foreign country or a decision not to take some action
All other cabinet decisions are necessarily disclosed and are subject to public scrutiny
Cabinet discussions as distinct from Cabinet decisions must from their nature be kept secret
Cabinet discussions often depend upon confidential advice from civil servants or reports from Ambassadors
If those are disclosed and thus become subject to public attack it would be extremely difficult for the cabinet 834 to secure free and frank advice
In Rai Sahib Ram Jawaya Kapur  Ors
vs The State of Punjab at 236 this Court held that the existence of the law is not a condition precedent for the exercise of the executive power
The executive power connotes the residual government function that remain after legislative and judicial functions are taken away subject to the provisions of the Constitution or the law
It would thus be held that the Cabinet known as Council of Ministers headed by Prime Minister under article 753 is the driving and steering body responsible for the Governance of the country
They enjoy the confidence of the Parliament and remain in office so long as they maintain the confidence of the majority
They are answerable to the Parliament and accountable to people
They bear collective responsibility and shall be bound to maintain secrecy
Their executive function comprises of both the determination of the policy as well as carrying it into execution the initiation of legislation the maintenance of order the promotion of social and economic welfare direction of foreign policy
In short the carrying on or supervision of the general administration of the affairs of Union of India which includes political activity and carrying on all trading activities the acquisition holding and disposal of property and the making of contracts for any purpose
In short the primary function of the Cabinet is to formulate the policies of the Govt
in confirmity with the directive principles of the Constitution for the Governance of the nation place before the Parliament for acceptance and would carry on the executive function of the State as per the provisions of the Constitution and the laws
Collective responsibility under article 753 of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitution that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under hisher consideration or shall become known to himher as Minister except as may be required for the due discharge of hisher 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 753 but also from its pragmatism
Bagehot in his The English Constitution  1964 Edition at p 68 stated that the most curious point about the Cabinet is that so very little is known about it
The meetings are not only secret in theory but secret in reality
By the present practice no official minute in all ordinary cases is kept of them
Even a private note is discouraged and disliked 
But a Cabinet though it is a committee of the legislative assemblyis a committee with a power which no assembly would unless 835 for historical accidents and after happy experience have been persuaded to entrust to any committee
It is a committee which can dissolve the assembly which appointed it it is a committee with a suspensive veto a committee with a power of appeal
In Commonwealth of Australia vs Northern Land Council  Anr
1991 103 Australian Law Reports p 267 the Federal Court of Australia General Division was to consider the scope of confidentiality of the cabinet papers collective responsibility of the Council of Ministers and the need for discovery of the Cabinet note books and dealt with the question thus  The conventional wisdom of contemporary constitutional practice present secrecy as a necessary incident of collective responsibility
But historically it seems to have derived from the 17th century origins of the cabinet as an inner circle of Privy Councillors sometimes called the Cabinet Council who acted as advisors to the monarch 
However that basis for confidentiality has to be assessed in the light of the political imperatives of collective responsibility
 Confidentiality has been described as  the natural correlative of collective responsibility
It is said to be difficult for Ministers to make an effective defence in public of decisions with which it is known that they have disagreed in the course of Cabinet discussions
The Cabinet as a whole is responsible for the advice and conduct of each of its members
If any member of the Cabinet seriously dissents from the opinion and policy approved  by the majority of his colleagues it is his duty as a man of honour to resign
Cabinet secrecy is an essential part of the structure of government which centers of political experience have created
To impair it without a very strong reason would be vandalism the wanton rejection of the fruits of civilisation
By operation of 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 to their decisions or acts or policies and they should work in unison and harmony
They individually and collectively maintain secrecy of the deliberations both of administration and of formulating executive or legislative policies
Advice tendered by the Cabinet to the President should be unanimous
The Cabinet should stand or fall together
Therefore the Cabinet as a whole is collectively responsible for the advice tendered to the President and for the conduct of business of each of hisher 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
836 Each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government
Discussion and persuasion may diminish disagreement reach unanimity or leave it unaltered
Despite persistence of disagreement it is a decision though some members like it less than others
Both practical politics and good Government require that those who like it less must still publicly support it
If such support is too great a strain on a Minister s conscience or incompatible to hisher perceptions of commitment and find it difficult to support the decision it would be open to himher to resign
So the price of the acceptance of Cabinet office is the assumption of the responsibility to support Cabinet decisions
The burden of that responsibility is shared by all
Equally every member is entitled to insist that whatever his own contribution was to the making of the decision whether favourable or unfavourable every other member will keep it secret
Maintenance of secrecy of an individual s contribution to discussion or vote in the Cabinet guarantees most favourable and conducive atmosphere to express views formally
To reveal the view or vote of a member of the Cabinet expressed or given in Cabinet is not only to disappoint an expectation on which that member was entitled to rely but also to reduce the security of the continuing guarantee and above all to undermine the principle of Collective responsibility
Joint responsibility supersede individual responsibility in accepting responsibility for joint decision each member is entitled to an assurance that he will be held responsible not only for his own but also as member if the whole Cabinet which made it that he will be held responsible for maintaining secrecy of any different view which the others may have expressed
The obvious and basic fact is that as part of the machinery of the Government Cabinet secrecy is an essential part of the structure of the government
Confidentiality and collective responsibility in that scenario are twins to effectuate the object of frank and open debate to augment efficiency of public service or effectivity of collective decision to elongate public interest
To hamper and impair them without any compelling or at least strong reasons would be detrimental to the efficacy of public administration
It would tantamount to wanton rejection of the fruits of democratic governance and abdication of an office of responsibility and dependability
Maintaining of top secrecy of new taxation policies is a must but leaking budget proposals a day before presentation of the budget may be an exceptional occurrence as an instance
Above compulsive constraints would give rise to an immediate question whether the minister is required to disclose in the affidavit the reasons or grounds for public interest immunity of disclosure and the oath of secrecy is thereby whether breached or whether it would be a shield for non production of unpub 837 lished state documents or an escape route to acts impugned as fondly pleaded and fervently argued by Attorney General
It is already held that on issuance of rule nisi or discovery order nisi every or an of the State or the authority or a person is enjoined to act in aid of this court and pursuant thereto shall be required to produce the summoned documents
But when a claim for public interest immunity has been laid for non disclosure of the state documents it is the Minister s due discharge of duty to state on oath in his affidavit the grounds on which and the reasons for which he has been persuaded to claim public interest immunity from disclosure of the state papers and produce them
The oath of secrecy the Minister had taken does not absolve him from filing the affidavit
It is his due discharge of constitutional duty to state in the affidavit of the grounds or reasons in support of public interest immunity from producing the state documents before the Court In Attorney General vs Jonathan Cape Ltd 1976 Queen s Bench 752 Lord Widgery CJ repelled the contention that publication of the diaries maintained by the Minister would be in breach of oath of secrecy
In support of the plea of secrecy reliance was placed on the debates on cabinet secrecy that took place on December 1 1932 in the House of Lords
An extract from the official report of House of Lords at Column 520 Lord Hailsham s speech emphasised the imperative to maintain secrecy and the limitation which rigidly hedged around the position of a Cabinet Minister thus having heard that oath read your Lordships will appreciate what a complete misconception it is
to suppose as some people seem inclined to suppose that the only obligation that rests upon a Cabinet Minister is not to disclose what are described as the Cabinet s minutes
He is sworn to keep secret all matters committed and revealed unto him or that shall be treated secretrly in council
He went on to point out that I have stressed that because as my noble and learned friend Lord Halsbury suggested and the noble Marquis Lord Salisbury confirmed Cabinet conclusions did not exist until 16 years ago
The old practice is set out in a book which bears the name of the noble Earl s father Halsbury s Laws of England with which I have had the honour to be associated in the present edition
 Then in column 532 of the speech Lord Hailsham stated that the oath of secrecy should be maintained
Upon matters on which it is their shorn duty to express their opinions
with complete frankness and to give all information without any haunting fear that what happens may hereafter by publication create difficulties for themselves or what is far more grave may create complications for the king and country that they are trying to serve
For those reasons I hope that the inflexible rule which has hitherto prevailed will be maintained in its integrity and that if there has been any relaxation or misunderstanding of which I say nothing 838 the debate in this House will have done something to clarify the position and restate the old rule in all its rigour and all its inflexibility As a Council of Minister his duty is to maintain the sanctity of oath and to keep discussions and information he had during its course as secret
Lord Widgery after considering the evidence of a former Minister examined in that case who did not support the view of Lord Hailsham held thus that degree of protection afforded to cabinet papers and discussions cannot be determined by single rule of thumb
Some secrets require a high standard of protection for short time other requires protection till a new political generation has taken over
In the Present action against the literary executors the perpetual injunction against them restraining from their publication was not proper
It was further held that the draconian remedy when public interest demands it would be relaxed
In Sankey vs Whitlan 1979 153 Australian Law Journal Reports 11 while considering the same question Gibbs ACJ at p23 held that the fact that members of the Executive Council are required to take a binding oath of secrecy does not assist the argument that the production of State papers cannot be compelled
The plea of privilege was negatived and the Cabinet papers were directed to be produced
The contention that the Minister is precluded to disclose in his affidavit the grounds or the reasons as to how he dealt with the matter as a part of the claim for public interest immunity is devoid of substance
It is already held that it is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity
He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the court may be constrained to draw such inference as are available at law
Accordingly we hold that the oath of office of secrecy adumberated in Article 754 and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued
On the other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the court
The next limb of the argument is that the Cabinet Sub committee s decision is a class document and the contents of state documents required to be kept in confidence for efficient functioning of public service including candid and objective expression of the views on the opinion by the Ministers or bureaucrats etc
The prospects of later disclosure at a at a litigation would hamper and dampen 839 candour causing serious incursion into the efficacy of public service and result in deterioration in proper functioning of the public service
This blanket shielding of disclosure was disfavoured right from Robinson vs State of South Australia 1931 Appeal Cases PC p 704 Lord Warrington speaking for the Board held that the privilege is a narrow one and must sparingly be exercised
This court in Raj Narain s case considering green book ie guidelines for protecting VVIPs on tour though held to be confidential document and be wihheld from production though part of its contents were already revealed yet it was held that confidentiality itself is not a head of privilege
In SP Gupta s case Bhagwati J speaking per majority reviewing the case law and the privilege against disclosure of correspondence exchanged between the Chief Justice of the Delhi High Court Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addl
Judges of the Delhi High Court which was not dissented but explained by Fazal AliJ held that in a democracy citizens are to know what their Govt
is doing
No democratic Govt
can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Govt
It is only if the people know how the Govt
is functioning and that they can fulfill their own democratic rights given to them and make the democracy a really effective participatory democracy
There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration
Disclosure of information in regard to the functioning of the Govt
must be the rule and secrecy can be exceptionally justified only where strict requirements of public information was assumed
The approach of the court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind all the time that the disclosure also serves an important  aspect of public interest
In that case the correspondence between the constitutional functionaries was inspected by this court and disclosed to the opposite parties to formulate their contentions
In Conway s case the speech of Lord Reid is the sole votery to support the plea of confidentiality emphasising that the business of Govt
is difficult enough as it is no Govt
could contemplate with equanimity the inner workings of the Govt
machine being exposed to the gazes of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind
Other Law Lords negated it
Lord Morris of Borth y Gest referred it as being doubtful validity
Lord Hodson thought it impossible to justify the doctrine in its widest term
Lord Pearce considered that a general blanket protection of wide classes 840 led to a 0complete lack of common sense
Lord Upjohn found it difficult to justify the doctrine when those in other walks of life which give rise to equally important matters of confidence in relation to security and personal matters as in the public service can claim no such privilege
In Burmah Oil Co section case House of Lords dealing with the cabinet discussion laid that the claim for blanket immunity must now be treated as having little weight if any
It was further stated that the notion that any competent and conscientious public servant would be inhibited at all in the candour of his writings by consideration of the off chance that they might have to be produced in a litigation as grotesque
The plea of impairment of public service was also held not available stating now a days the state in multifarious manifestations impinges closely upon the lives and activities of individual citizens
Where this was involved a citizen in litigation with the state or one of its agencies the candour argument is an utterly insubstantial ground for denying his access to relevant document
The candour doctrine stands in a different category from that aspect of public interest which in appropriate circumstances may require that the Sources and nature of information confidentially tendered should be with held from disclosure
In Reg vs Lewes Justices Ex Parte Secretary of state for the Home Department 1973 AC 388 and DV National Society for the Prevention of Cruelty to Children   are cases in point on that matter and needs no reiteration
It would therefore be concluded that it would be going too far to lay down that no document in any particular class or one of the categories of cabinet papers or decisions or contents thereof should never in any circumstances be ordered to be produced
Lord Keith in Burnnah Oil s case considered that it would be going too far to lay down a total protection to cabinet minutes
The learned Law Lord at p 1134 stated that something must turn upon the subject matter the persons who dealt with it and the manner in which they did so
In so far as a matter of government policy is concerned it may be relevant to know the extent to which the policy remains unfulfilled so that its success might be prejudiced by disclosure of the considerations which led to it
In that context the time element enters into the equation
Details of an affair which is stale and no longer of topical significance might be capable of disclosure without risk of damage to the public interest 
The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level Lord Scarman also objected total immunity to Cabinet documents on the plea of candour
In Air Canada s case Lord Fraser lifted Cabinet minutes front the total immunity to disclose although same were entitled to a hi oh degree of protection   841 In Jonathan Cape Ltd s case it was held that it seen is that the degree of protection afforded to Cabinet papers and discussions cannot be determined by a single rule of thumb
Some secrets require a high standard of protection for a short time
Others require protection until new political generation has taken over
Lord Redcliff Committee appointed pursuant to this decision recommended time gap of 15 years to withhold disclosure of the cabinet proceedings and the Govt
accepted the same
Shanky s case ratio too discounted total immunity to the Cabinet document as a class and the plea of hampering freedom and candid advice or exchange of views and opinions was also rejected
It was held that the need for protection depends on the facts in each case
The object of the protection is to ensure the proper working of the Govt
and not to shield the Ministers and servants of the crown from criticism however intemperate and unfairly based
Pincus J in Harbour Corp of Queensland vs Vessey Chemicals Ply Ltd  Wilcox J in Manthal Australia Pty Ltd vs Minister for industry Technology and commerce 11987171 ALR 109 Koowarta vs Bjelke Petersen 1988 and took the same view
In Australia the recognised rule thus is that the blanket immunity of all Cabinet documents was given a go bye
In United States vs Richard M Nixon   41 Lawyers Ed 2nd Ed 1039 a grand jury of the United States District Court for the District of Columbia indicted named individuals charging them with various offences including conspiracy to defraud the United States and to obstruct justice and Mr Nixon the President of United States was also named as an unindicted coconspirator
The special prosecutor issued a third party subpoena duces tecum directing the President to produce at the trial certain tape recordings and documents relating to his conversations with aides and advisors known as Watergate rapes
The President s executive privilege again st disclosure of confidential communications was negatived holding that the right to the production of all evidence at a criminal trial has constitutional dimensions under sixth amendment
The fifth amendment guarantees that no person shall be deprived of liberty without due process of law
It was therefore held that it is the manifest duty of the court to vindicate those guarantees and to accomplish that it is essential that all relevant and admissible evidence be produced
Though the court must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibilities it is an inroad on the fair administration of criminal justice
In balancing between the President s generalised interest in confidentiality and the need for relevant evidence in the litigation civil or criminal and though the interest in preserving confidentiality is weighty indeed and entitled to great respect
 Allowing privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts
A President s acknowledged need for 842 confidentiality in the communications of his office is general in nature whereas constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice
Without access to specific facts a criminal prosecution may be totally frustrated
The President s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases
If the privilege is based only on the generalized interest in confidentiality it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice
The generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial
Exemptions were engrafted only to the evidence relating to the security of the State diplomatic relations and defence
It was held that the importance of this confidentiality is too plain to require further discussion
Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interest to the detriment of the decision making process
Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of article 11 powers the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties
Certain powers and privileges flow from the nature of enumerated powers the protection of the confidentiality of Presidential communications has similar constitutional underpinnings
However neither the doctrine of separation of powers nor the need for confidentiality of high level communications without more can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances
The President s need for complete candor and objectivity from advisers calls for great deference from the courts
However when the privilege depends solely on the broad undifferentiated claim of public interest in the confidentiality of such conversations a confrontation with other values arises
Absent a claim of need to protect military diplomatic or sensitive national security secrets we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide
In a clash of public interest that harm shall be done to the nation or the public service by disclosure of certain documents and the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done it is the courts duty to balance the competing interests by weighing in scales the effect of disclosure on the public interest or injury to administration 843 of justice which would do greater harm
Some of the important considerations in the balancing act are thus in the interest of national security some information which is so secret that it cannot be disclosed except to a very few for instance the state or its own spies or agents just as other counters have
Their very lives may be endangered if there is the slighest hint of what they are doing
In Mark Hosenball
R vs Home Secretary
ex parte Hosenball  in the interest of national security Lord Denning MR did not permit disclosure of the information furnished by the security service to the Home Secretary holding it highly confidence The public interest in the security of the realm was held so great that the sources of the information must not be disclosed nor should the nature of the information itself be disclosed
There is a natural temptation for people in executive position to regard the interest of the department as paramount forgetting that there is yet another Greater interest to be considered namely the interest of justice itself
Inconvenience and justice are often not on speaking terms
No one can suppose that the executive will never be guilty of the sins common to all people
Sometimes they may do things which they on which they on ought not to do or will not do things they ought to do
The court must be alive to that possibility of the executive committing illegality in its process exercising its powers reaching a decision which no reasonable authority would have reached or otherwise abuse its powers etc
If and when such wrongs are suffered or encountered injustice by an individual what would be the remedy Just as shawl is not suitable for winning the cold so also mere remedy of writ of mandamus certiorari etc
or such action as is warranted are not enough unless necessary foundation with factual material in support thereof are laid
Judicial review aims to protect a citizen from such breaches of power non exercise of power or lack of power etc
The functionary must be guided by relevant and germane considerations
If the proceeding decision or order is influenced by extraneous considerations which ought not to have been taken into account it cannot stand and needs correction no matter of the nature of the statutory body or status or stature of the constitutional functionary though might have acted in good faith
Here the court in its judicial review is not concerned with the merits of the decisions but its legality
It is therefore the function of the court to see that lawful authority is not abused
Every communication that passes between different departments of the Govt
or between the members of the same department interse and every order made by a Minister or Head of the Department cannot therefore be deemed to relate to the affairs of the state unless it related to a matter of vital importance the disclosure of which is likely to prejudice the interest of the state
Confidentiality candour and efficient public service often bear common 844 mask
Lord Keath in Burmah Oil s case observed that the notion that any  competent or conscientious public servant would be inhibited in the candour of his writings by consideration of the off chance that they might have to be produced inlitigationisgrotesque
The possibility that it impairs the public service was also nailed
This court in section P Gupta s case also rejected the plea of hampering candid expression of views or opinion by constitutional functionaries and bureaucrats
In Whitlam vs Australian Consolidated Press 1985 60 ALR p 7 the Supreme Court of Australia Capital territory in a suit for damages for defamation the plaintiff the former Prime Minister of Australia was called upon to answer certain interrogatories to disclose discussions and words uttered at the meeting of the Cabinet or of the Executive Council at which the plaintiff had been present
The commonwealth intervened and claimed privilege prohibiting the plaintiff to disclose by answering those interrogatories
The claim was based on two grounds i the oath taken by the plaintiff as a member of the Executive Council and also immunity from disclosing of the Cabinet meetings and both were public policies
It was also contended that it would be in breach of the principle of collective Cabinet responsibility
The court held that the oath taken by the plaintiff did not in itself provide a reason for refusing to answer the interrogatories whether immunity from disclosure would be granted depends upon the balancing of two competing aspects both of public policy on the one hand the need to protect a public interest which might be endangered by disclosure and on the other the need to ensure that the private rights of individual litigants are not unduly restricted
The disclosure of the meeting of the Cabinet or of the Executive Council would not be a breach of the principle of other two responsibilities
Bagehot stated protection from disclosure is not for the purpose of shielding them from criticism but of preventing the attribution to them of personal responsibility
It was stated that I am not required to lay down a precise test of when an individual opinion expressed in Cabinet becomes of merely historical interest
The Cabinet minutes and minutes of discussion are a class
They might in very special circumstances be examined
Public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual and also because of the relative unimportance of these answers to the defendant s case
Answers to interrogatories 87 vii viii and ix were restrained to be disclosed which relates to the members of the Council who expressed doubts as to whether the borrowing was wholly for temporary purpose and to identify such purpose
In Jonathan Cape Ltd case Lord Widgery CJ
held that publication of the Cabinet discussion after certain lapse of time would not inhibit free discussion in the Cabinet of today even though the individuals involved are the same and the national problems have a distressing similarity with those of a decade ago
It is difficult to say at what point the material 845 loses its confidential character
on the ground that publication will no longer undermine the doctrine of joint Cabinet responsibility
The doctrine of  joint Cabinet responsibility is not undermined so long as the publication would not inhibit free discussion in the Cabinet and the court decides the issue 
In Minister for Arts Heritage and Environment and Ors
vs Peko Wallsend Ltd and Ors
11987175 ALR 218 Federal Court of Australia General Division the respondent had mining lease under the existing law
In 1986 the Cabinet decided that portion of the same land covered by KNP Kakadu National Park in the Northern Territory State 2 was earmarked for inclusion in the World Heritage List the List which had been established under the World Heritage Convention the Convention and to submit to Parliament aplan of management for the national park which differed from a previous plan which enabled exploration and mining to take place outside pre existing leases with the approval of the Governor General
Under the Convention on listing could be made without the consent of the State party concerned
The respondents laid the proceedings to restrain the appellants from taking further steps to have Stage 2 nominated for inclusion on the list on the basis that Cabinet was bound by tile rules of natural justice to afford the man opportunity to be heard and that it failed to do so
The Single Judge declared the action as void
Thereafter the National Park and Wildlife conservation Amendment Act 1987 came into force adding sub section
IA 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 vs Northern Land Council and Anr
1991 103 ALR p267 in a suit for injunction for Northern Land Council NLC against the Commonwealth sought production of certain documents including 126 Cabinet notebooks
A Judge of the Federal Court ordered the Commonwealth to produce the notebooks for confidential inspection on behalf of NLC
On appeal it was held that information which may either directly or indirectly enable the party requiring them either to advance his own case or to damage the case of his advisory are necessary
The class of Cabinet papers do not afford absolute protection against disclosure and is not a basis for otherwise unqualified immunity from production
The Commonwealth cannot claim any immunity for public interest immunity from production
The court should decide at the threshold balancing of the public interest in the administration of justice
The court does not have to be satisfied that as a matter of likelihood rather than mere speculation the materials would contain evidence for tender at trial
846 In a democracy it is inherently difficult to function at high governmental level without some degree of secrecy
No Minister nor it Senior Officer would effectively discharge his official responsibilities if every document prepared to formulates sensitive policy decisions or to make assessment of character rolls of coordinate officers at that level if they were to be made public
Generally assessment of honesty and integrity is a high responsibility
At high co ordinate level it would be a delegate one which would furthered compounded when it is not backed up with material
Seldom material will be available in sensitive areas
Reputation gathered by an officer around him would form the base
If the reports are made known or if the disclosure is routine public interest grievously would suffer
On the other hand confidentiality would augment honest assessment it improve efficiency and integrity in the officers
The business of the Govt
 when transacted by bureaucrats even in personal level it would be difficult to have equanimity if the inner working of the Govt
machinery is needlessly exposed to the public
On such sensitive issues it would hamper the expression of frank and forthright views or opinions
Therefore it may be that at that level the deliberations and in exceptional cases that class or category of documents get protection in particular on policy matters
Therefore
the court would he willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy high sensitivity is involved
In Asiatic Petroleium vs Anglo Persian Oil  the court refused production of the letter concerning the Govt
plans relating to Middle Estern campaigns of the First World was
as claimed by the Board of Admiralty
Similarly in Duncan vs Cammell Laired   tile House of lords refused disclosure of the design of sub marine
The national defence as a class needs protection in the interest of security of the State
Similarly to keep good diplomatic relations the state documents or official or confidential documents between the Govt
and its agencies need immunity from production
In Council of Civil Service Union vs Minster for Civil Service the Govt
Communications headquarters GCHQ functions were to ensure the security of military and official communications and to provide the Govt
with signals intelligence
They have to handle secret information vital to national security
The staff of CCHQ was permitted to be members of the trade union but litter on instructions were issued without prior consultation amending the Staff rules and directed them to dissociate from tile trade union activities
The Previous practice of prior consultation before amendment was not followed
Judicial review 847 was sought of the amended rules pleading that failure to consult the union before amendment amounts to unfair act and summoned the records relating to it
An affidavit of the cabinet Secretary was filed explaining the disruptive activities the national security and the union actions designed to damage Govt
agencies
Explaining the risk of participation by the members in further disruption the House held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law or prerogative rather than a statutory source and a minister acting under a prerogative power might depending upon its subject matter whether under the same duty to act fairly as in the case of action under a statutory power
But however certain information
on consideration of national security was withheld and the failure of prior consultation of the trade union or its members before issue the amended instruction or amending the rules was held not infracted
In Burmah Oil Co section 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 230 Pounds per unit was unconscionable and inequitable
The oil company sought production of the cabinet decision and 62 documents in possession and control of the bank
The state claimed privilege on the basis of the certificate issued by the Minister
House of Lords per majority directed to disclose certain documents which were necessary to dispose of the case fairly
Lord Scarman laid that they were relevant but their significance was not such a to override the public interest objections to their production
Lords Wilberforce dissented and held that public interest demands protection of them
In The Australian Communist Party  Ors
vs Commonwealth  Ors
1950 51 83 CLR p 1 at p 179 Dixon J while considering the claim of secrecy and non availability of the proclamation or declaration of the Governor General in Council based on the advice tendered by the Minister rejected the privilege and held that the court would go into the question whether the satisfaction reached by the Governor General in Council was justified
The court has one into the question of competence to dissolve a voluntary or corporate association ie Communist Party as unlawful within the meaning of Sec
52 of the Constitutional Law of the Commonwealth
In The Queen vs Toohey   the Northern Territory Self Government Act 1978 provides appointment of an Administrator to exercise and perform the functions conferred under the Act
The Town Planning Act 1979 regulates the area of land to be treated as towns
The Commissioner exercising powers under the Act held that part of the peninsula specified in the schedule was not available for town Planning Act
When it was challenged
there was a change in the law and the Minister filed an affidavit 848 claiming the privilege of certain documents stating that with a view to preserve the land to the original the Govt have decided to treat that the land will continue to be held by or on behalf of the originals
Gibbs
held that under modern conditions a responsible Govt Parliament could not always be relied on to check excesses of power by the Crown or its Ministers
The court could ensure that the statutory power is exercised only for the purpose it is granted
The secrecy of the counsel of the Crown is by no means complete and if evidence is available to show that the Crown acted for an ulterior purpose it is difficult to see why it should not be acted upon
It was concluded thus In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review
If the statutory power is granted to the Crown for one purpose it is clear that it is not lawfully exercised if it is used for another
The courts have the power and duty to ensure that statutory powers are exercised only in accordance with law
The factors to decide the public interest immunity would include a where the contents of the documents are relied upon the interests affected by their disclosure b where the class of documents is invoked where the public interest immunity for the class is said to protect c the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence d the seriousness of the issues in relation to which production is sought e the likelihood that production of the documents will affect the outcome of the case f the likelihood of injustice if the documents are not produced
In President Nixon s case the Supreme Court of the United States held that it is the court s duty to construe and delineate claims arising under express powers to interpret claims with respect to powers alleged to derive from enumerated powers of the Constitution
In deciding whether the matter has in any measure been committed by the Constitution to another branch of Government or whether the action of that branch exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation and is the responsibility of the court as ultimate interpreter of the Constitution
Neither the doctrine of separation of powers nor the need for confidentiality of high level communications without more can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances
The separation of powers given in the Constitution were not intended to operate with 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 849 disclosure of all the facts within the framework of the rules of evidence
To ensure that justice is done it is imperative to the function of courts that compulsory process be available for the production of needed evidence
The afore discussion lead to the following conclusions
The President while exercising the Executive power under Art73 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 Art773
They bear two different facets i the President exercise his power on the aid and advice ii the individual minister or Council of Minister with the Prime Minister at the head discharge the functions without reference to the President
Undoubtedly the Prime Minister is enjoined under article 78 to communicate to the President all decisions of the Council of Minister relating to the administration of the affairs of the Union and proposals for legislation and to furnish such information relating to the administration or reconsideration by the Council of 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 Art226
When public interest immunity against disclosure of the state documents in the transaction of business by Council of Ministers of the affairs of State is made in the clash of those interests it is the right and duty of the court to weigh the balance in the scales that the harm shall not be done to the nation or the public service and equally of the administration of justice
Each case must be considered on its backdrop
The President has no implied authority under the Constitution to withhold the documents
On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review
The Cabinet as a narrow centre of the national affairs must be in a possession of all relevant information which is secret or confidential
At the cost of repetition it is reiterated that information relating to national security diplomatic relations
internal security or sensitive diplomatic correspondence per se are class documents and that public interest demands total immunity from disclosure
Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc
The maxim Salus Popules Cast Supreme Lax which means that regard 850 for public welfare is the highest law is the basic postulate for this immunity
Political decisions like declaration of emergency under 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 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 742 is not a total bar for production of the records
Only the actual advice tendered by the Minister or Council or Ministers to the President and the question whether any and if so what ad ice was tendered by the Minister or Council of ministers to the President shall not be enquired into by the court
In other words the bar of judicial review is confined to the factum of advice its extent ambit and scope but not the record ie the material on which the advice is founded
In SP Gupta s case his court held that only the actual advice tendered to the President is immuned from enquiry and the immunity does not extend to other documents or records which form part of the advice tendered to the President
There is discernible modern trends towards more open government than was prevalent in the past
In its judicial review the court would adopt in camera procedure to inspect the record and evaluate the balancing act between the competing public interest and administration of justice
It is equally the paramount consideration that justice should not only be done but also would be publicly recognised as having been done
Under modern conditions of responsible government Parliament should not always he relied on as a check on excess of power by the Council of Ministers or Minister
Though the court would not substitute its views to that of the executive on matters of policy it is its undoubted power and duty to see that the executive exercises its power only for the purpose for which it is granted
Secrecy of the advice or opinion is by no means conclusive
Candour frankness and confidentiality though are integral facets of the common genus ie efficient governmental functioning per se by no means conclusive but be kept in view in weighing the balancing act
Decided cases how that power often was exercised in excess thereof or for an ulterior purpose etc
Sometimes the public service reasons will be decisive of the issue but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the documents was not to be disclosed and the likely injury to the cause of justice must also be assessed and weighed
Its weight will very according to the nature of the proceedings in which disclosure is sought level at which the matter was considered  the subject matter of  consideration the 851 relevance of the documents and the degree of likelihood that the document will be of importance in the litigation
it striking the balance the court may always if it thinks it necessary itself inspect the documents
It is therefore the constitutional legitimate and lawful power and duty of this court to ensure that powers constitutional statutory or executive are exercised in accordance with the constitution and the law
This may demand though no doubt only in limited number of cases yet the inner workings of government may be exposed to public gaze
The contentions of Attorney General and Solicitor General that the inner workings of the government would be exposed to public gaze and that some one who would regard this as an occasion without sufficient material to ill informed criticism is no longer relevant
Criticism calculated to improve teh nature of that working as affecting the individual citizen is welcome
In so far as unpublished government policy is concerned it may be relevant to know the extent to which the policy remains unfulfilled so that its success might be prejudiced by disclosure of the considerations which led to it
In that context the time element becomes relevant
Details of affairs which are stale and no longer of significance might be capable of disclosure without risk of damage to the public interest But depending on teh nature of he litigation and the apparent importance to it of the documents in question may in extreme case demand production even of the most be considered on its backdrop
President has no implied authority to withhold the document
On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review
The Cabinet as a narrow centre of the national affairs must be in possession of all relevant information which is secret or confidential
Decided cases on comparable jurisdiction referred to earlier did held that executive had no blanket immunity to withhold cabinet proceedings or decisions
We therefore hold that the communication decisions or policy to teh President under article 741 gives only protection by article 742 of judicial review of the actual advice tendered to the president of India
The rest of the file and all the records forming part thereof are open to in camera inspection by this court
Each case must be considered on its own facts and surrounding scenario and decision taken thereon
In Jyoti Prokash Mitter vs Chief Justice Calcutta High Court  the question was whether the President exercised the powers under article 2173 of the Constitution was his discretionary one or acts with the aid and advice of Council of Ministers
The Constitution Bench held that the dispute as be decided by the President
The satisfaction on the correctness of age is that of he President
Therefore the matter has to be placed before the President
The 852 President has to give an opportunity to the judge to place his version before teh President considers and decides the age of the judge
Accordingly it would be the personal satisfaction of the President and not that of the Council of Ministers
In the latter judgement sequential to this judgement in Union of India vs Jyoti Prakash 1971 3SCR 4831 it was held that the mere fact that the President was assisted by teh machinery of Home Affaris Ministry in serving notices or receiving communications addressed to the learned judge cannot lead to an inference that he was guided review this court upheld the decision of the President
In this context it was held that the orders of the president even though made final can be set aside by court in an appropriate case though the Court will not sit in appeal over order and will not substitute its own opinion to that of the president by weighing the evidence placed before the president
The third category of case namely the decision taken at level of the minister or by the authorised Secretary at the Secretary level though expressed in the name of the President is not immured from judicial scrutiny and are to be produced and inspected by the court
If public interest immunity under article 742 or Sec 123 of Evidence ACt is claimed the court would first consider it in camera and decide the issue as indicated above
Teh immunity must not be claimed on administrative route and it must be for valid relevant and strong grounds or reasons stated in the affidavit filed in that behalf
Having perused the file and given our anxious considerations
We are of the view that on th facts of the case and in the light of the view we have taken it is not necessary to disclose the contents of the records to the petitioner or his counsel
The first schedule of the business rules provide constitution of Cabinet Standing committees with function specified therein
Item 2 is Cabinet Committee on appointments
Which is empowered to consider in item 1 all recommendations and to take decisions on appointments specified in the Annexure to the first Schedule
Therein under the residuary heading all other appointments item 4 provides that all other appointments which are made by the Govt
of India or which required the approval of the Govt
of India carrying a salary excluding allowances or a maximum salary excluding allowances of less than Rs 5 300 require the approval of the Cabinet Sub Committee
As per item 37 of the Third Schedule read with Rule 8 of the business Rules it shall be submitted to the Prime Minister for appointment
Mr Harish Chander was appointed as judicial Member on October 29 1982
He was later on appointed on january 15 1991 as Senior Vice President of 853 CEGAT after the direction were issued by this Court he was appinted as the President Mr Jain assailed the validity of his appointment on diverse grounds
It was pleaded and Sri Thakur his learned senior counsel argued that as per the convention a sitting or a retired judge of the High JCourt should have beenappointed as president of the CEGAT in consultation with the Chief Jusftice ofIndia and Harish Chander has been appointed in disregafrd of the express directions of this Court It was therefore contended that it was in breach jof the judicial orderpassed by this Court
It was therefore contended that it was in breach of the judicial orderpassed by this Court under Art 32 Secondly it was contended that before the Actwas made a positive commitment was made time and again by the Govt
on the floor of the House that judicial independence of CEGAT is sifne qua non to sustain the confidence of the litigant public
The appointment of any person other thansitting or a retired judge of the High Court as President would be in its breach
Inits support it was cited the instance of Mr Kalyansundaram as being the seniormost member his claim should have been considered before Harish Chander was appointed
Sri Thakur further argued that when recommendations of HarishChander for appointment as a Judge of the Delhi High Court was turned down by the Chief Justice of India doubting his integrity the appointment of such personof doubtful integrity as President would erode the independence of the judiciary and undermine the confidence of the litigant public in the efficacy of judicial adjudication even though the rules may permit such an appointment
The rules are ultra vires of the basic structure namely independence of judiciary Sri Thakur to elaborate these conditions sought permission to peruse the record
Sri Venugopal  the learned Senior Counsel for Harish Chander argued that his client being the senior Vice President was fvalidly appointed as President of the CEGET
Harish Chander has an excellent and impeccable record of service without any adverse remarks
His recommendation for appointment as a judge of the Delhi High Court was apparently dropped which would not be construed to be adverse to Harish Chander
On behalf ofCentral Govt
it was admitted in thecounter affidavit that since rules do not envisage consultation with the Chidf Justice consultation was not done
It was argued that the Govt
have prerogative to appoint any member or Vice Chairman or Senior Vice President as President of CEGAT
Harish Chander being the senior Vice President his case was considered and was recommended by the cabinet sub Committee for appointment
Accordingly he was appointed
Under section 129 of the Customs Act 52 of 1962 for short the Act
The Central Govt
shall constitute the CEGAT consisfting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred by the Act
Subject to making the statement of the case for 854 decision on any question of law arising out of orders of the CEGAT by the High Court under section 130 it resolve conflict of decisions by this Court under section 130A the orders of the CEGAT by operation of sub sectiton 4 of Section 129B shall be final
The President of CEGAT is the controlling authority as well as Presiding authority of the tribunals constituted at different places
Constitution of the CEGAT came to be made pursuant to the 5th Schedule of the Finance Act 2 of 1980 with effect from October 11 1982
The President of India exercising the power under proviso it article 309 of the Constitution made the Rules
Rule 2c defined member means a member of the Tribunal and unless the context otherwise requires includes the President the Senior Vice President a Vice President a judicial member and a technical member
2d defines President means the President of the Tribunal
Rule 6 prescribes Method of Recruitment
Under Sub rule 1 thereof for the purpose of recruitment to the Post of member there shall be a Selection Committee consisting of i a judge of the Supreme Court of India as nominated by the Chief Justice of India to preside over as Chairman ii the Secretary to the Govt
of India in the Ministry of Finance Department of Revenue iii the Secretary to the Govt
of India in the Ministry of Law Department of legal Affairs iv the President v such other persons not exceeding two as the Central Govt
may nominate
Sub Rule 4 Subject to the provisions of Section 10 the Central Govt
shall after taking into consideration the recommendations of the Selection Committee
make a list of persons selected for appointment as members
Rule 10 provides thus 1 The Central Govt
shall appoint one of the member to be the President
2 Notwithstanding anything contained in rule 6 a sitting or retired judge of a High Court may also be appointed by the Central Government use member and President simultaneously
3 Where a member other than a sitting or retired judge of a High Court is appointed as President he shall hold the office of the President for a period of three years or till he attains the age of 67 years whichever is earlier
4 Where a serving judge of a High Court is appointed as a member and President he shall hold office as President for a period of three years from the date of his appointment or till he attains the age of 62 years
whichever is earlier
Provided that where a retired judge of a High Court above the age of 62 years is appointed as President
he shall hold office for such period not exceeding three 855 years as may he determined by the Central Govt
At the time of appointment or reappointment
The Jha Committee in its report in para 1622 recommended to constitute an independent Tribunal for excise or customs taking away the appellate powers from the Board
The Administrative Inquiry Committee in its report 1958 59 in para 415 also recommended that every effort should be made to enhance the prestige of the appellate tribunal in the eyes of the public which could be achieved by the appointment of a High Court Judge as the President
They therefore recommended to appoint the serving or retired High Court Judge as President of the Tribunal for a fixed tenure
In Union of India vs Pares Laminates Pvt
Ltd Court this Court held that GEGAT is a judicial body and functions as court within the limits of its jurisdiction
As a fact the Minister time and again during the debates when the Bill was under discussion assured both the Houses of Parliament that the CEGAT would be a judicial body presided over by a High Court Judge
In Keshwa nand Bharti vs Union of India 1973 Supp
SCR 1 Mathew and Chandrachud JJ
held that rule of law and judicial review are basic features of the Constitution
It was reiterated in Waman Rao vs Union of India   As per directions therein the Constitution Bench reiterated in Sri Raghunathrao Ganpatrao vs Union of India  In Krishna Swami vs Union of India at 649 para 66 one of us KRSJ held that judicial review is the touchstone and repository of the supreme law of the land
Rule of law as basic feature permeates the entire constitutional structure Independence of Judiciary is sine quo non for the efficacy of the rule of law
This court is the final arbiter of the interpretation of the constitution and the law
In SP Sampat Kumar vs Union of India  Ors1987 1 SCR 435
this Court held that the primary duty of the judiciary is to interpret the Constitution and the laws and this would preeminently be a matter fit to be decided by the judiciary as judiciary alone would be possessed of expertise in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory if it were left to the executive to determine the legality of its own action
The Constitution has therefore created an independent machinery ie judiciary to resolve the disputes which is vested with the power of judicial review to determine the legality of the legislative and executive actions and to ensure compliance with the requirements of law on the part of the executive and other authorities
This function is discharged by the judiciary by exercising the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law
The power of judicial review is an integral part of our constitutional system and without it there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality
The judicial review therefore is a basic and essential feature of the Constitution and it cannot be 856 abrogated without affecting the basic structure of the Constitution
The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution and to provide alternative institutional mechanism or arrangement forjudicial review provided it is no less efficacious than the High Court
It must therefore be read as implicit in the constitutional scheme that the law excluding the jurisdiction of the High Court under articles 226 and 227 perrmissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective and efficacious in exercising the power of judicial review
The Tribunal set up under the Administrative Tribunal Act 1985 was required to interpret and apply articles 14 15 16 and 311 in quite an large number of cases
Therefore the personnel manning the administra tive tribunal in their determinations not only require judicial approach but also knowledge and expertise in that particular branch of constitutional and administrative law
The efficacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not givino it sufficient weityhtage would definitely impair the efficacy and effectiveness of the Administrative Tribunal
Therefore it was held that the appropriate rule should be made to recruit the members and consult the Chief Justice of India in recommending appointment of the Chairman Vice Chairman and Members of the Tribunal and to constitute a committee presided over by judge of the Supreme Court to recruit the members for appointment
In MB Majiundar vs Union of lndia   when the members of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court this court held that they are not on par with the judges but a separate mechanism created for their appointment pursuant to article 323 A of the Constitution
Therefore whatwas meant by this court in Sampath Kumar s ration is that the Tribunals when exercise the power and function the Act created institutional alternative mechanism or authority to adjudicate the service disputations
It must be effective and efficacious to exercise the power of judicial review
This court did not appear to have meant that the Tribunals are substitutes of  the High Court under articles 226 and 227 of the Constitution
JB chopra vs Union of lndia  merely followed the ratio of Sampath Kumar
The Tribunals set up under articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the High Court or parity or as substitutes
However the personnel appointed to hold those oft7ices under the State are called upon to dischargee judicial or quasi judicial power
So they must have judicial approach and also knowledge 857 and expertise in that particular branch of constitutional administrative and tax laws
The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication
It is therefore necessary that those who adjudicate upon these matters should have legal expertise judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision
In Union of India vs Sankal Chand Himatlal Sheth  Anr  at 442 this court at p 463 laid emphasis that independence 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 reorded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise
 At page 471 it was further held that if the beacon of the judiciary is to remain bright court must be above reproach free from coercion and from political influence
At page 491 it was held that the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so strong and so exercised as not to militate seriously against the free flow of public justice
Such a balanced blend is the happy solution of a delicate complex subtle yet challenging issue which bears on human rights and human justice
The nature of the judicial process is such that under coercive winds the flame of justice flickers faints and fades
The true judge is one who should be beyond purchase by threat or temptation popularity or prospects
To float with the tide is easy to counter the counterfeit current is uneasy and yet the Judge must be ready for it
By ordinary obligation for written reasoning by the moral fibre of his peers and elevating tradition of his profession the judge develops a stream of tendency to function without fear or favour affection or ill will  taking care of course to outgrow his prejudices and weaknesses to read the eternal verities and enduring values and to project and promote the economic political and social philosophy of the Constitution to uphold which his oath enjoins him
In Krishnaswaini s case in para 67 at p 650 it was observed that to keep the stream of justice clean and pure the judge must be endowed with sterling character impeccable integrity and upright behaviour
Erosion thereof would undermine the efficacy of rule of law and the working of the constitution itself
In Krishna Sahai  Orsv
State of UP  Ors1990 2 SCC 673 this court 858 emphasised its need in constitution the UP Service Tribunal that it would he appropriate for the State of Uttar Pradesh to change it manning and a sufficient number of people qualified in law should he on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribunal
In Rajendra Singh Yadav  Ors vs State of UP  Ors
1990 2 SCC 763 it was further reiterated that the Services Tribunal mostly consist of Administrative Officers and the judicial element in the manning part of the Tribunal is very small
The disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that adequate number of judges of the appropriate level should man the Services Tribunals
This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunals and the institution as well would command the requisite confidence of the disputants
In Shri Kumar Padma Prasad vs Union of India  Ors  this court emphasised that Needless to say that the independence efficiency and integrity of the judiciary can only he maintained by selecting the best persons in accordance with the procedure provided under the Constitution
The objectives enshrined in the constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility
In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts
Judicial is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary
It cannot he dispensed with by creating tribunal under article 323A and 323B of the Constitution
Any institutional mechanism or authority in negation of judicial review is destructive of basic structure
So long as a the alternative institutional mechanism or authority set up by an Act is not less effective than the High court it is consistent with constitutional scheme
The faith of the people is the bed rock on which the edifice of judicial review and efficacy of the adjudication are founded
The alternative arrangement must therefore be effective and efficient
For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Govt
To maintain independence and imperativity itis necessary that the personnel should have at least modicum of legal training learning and experience
Selection of competent and proper people instill people s faith and trust in the office and help to build up reputation and acceptability
Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured
Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustice
Therefore functional fitness 859 experience at the liar and aptitudinal approach are fundamental for efficient judicial adjudication
Then only as a repository of the confidence
as its duty the tribunal would properly and efficiently interpret the law and apply the law to the given set of facts
Absence thereof would be repugnant or derogatory to the constitution
The daily practice in the courts not only gives training to Advocates to interrect the rules but also adopt the conventions of courts
In built experience would play vital role in the administration of justice and strengthen and develop the qualities of intellect and character forbearance and patience temper and resilience which are very important in the practice of law
Practising Advocates from the Bar generally do endow with those qualities to discharge judicial functions
Specialised nature of work gives them added advantage and gives benefit to broaden the perspectives
Judges  by David Pannick 1987 Edition at page 50 stated that we would not allow a man to perform a surgical operation without a thorough training and certification of fitness
Why not require as much of a trial judge who daily operates on the lives and fortunes of others
This could be secured with the initial training given at the Bar and later experience in judicial adjudication
No one should expect expertise in such a vast range of subjects but famliarity with the basic terminology and concept coupled with knowledge of trends is essential
A premature approach would hinder the effective performance of judicial functions
Law is a serious matter to be left exclusively to the judges because judges necessarily have an important role to play in making and applying the law There is every reason for ensuring that their selection training and working practice facilitate them to render their ability to decide the cases wisely on behalf of the community
If judges acts in injudicious manner it would often lead to miscarriage of justice and a brooding sense of injustice rankles in an agrieved person
The CEGAT is a creature of the statute
yet intended to have all the flavour of judicial dispensation by independent members and President
Sri Justice YV Chandrachud Chief Justice of India in his letter dated October 5 1982 stated that Govt had Created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court
Added to that is the fact that selection of the members of the Tribunal is made by a Committee headed by a judge of the Supreme Court
I am sure that the Tribunal will acquire higher reputation in the matter of its decision and that the litigants would look upon it as an independent forum to which they can turn in trust and confidence
This court to elongate the above objective directed the Govt
to show whether the convention is being followed in appointment of the President of 860 CEGAT and further directed to consider appointment of a Sr Judge or a retired Chief Justice of the High Court as its President
Admittedly Chief justice of India was not consulted before appointing Sri harish Chander as President
Several affidavits filed on behalf of the Govt
do not also bear out whether the directions issued by this court were even brought to the notice of the Hon ble Prime Minister before finalising the appointment of Sri Harish Chander
The solemn assurance given to the Parliament that the Tribunal bears a judicious blend by appointment of a High Court Judge as President was given a go bye
While making statutory rules the executive appears to have made the appointment of it sitting or retired High Court Judge as President unattractive and directory frustrating the legislature animation
A sitting Judge when is entitled to continue in his office upto 62 years would he he willing to opt to serve as President if his superannuation as President is conterminous with 62 years
He would be attracted only it he is given extended three years more tenure after his superannuation
But Rule 103 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 ie coterminus with superannuation as a Judge of the High Court
The proviso is only discretionary at the whim of the executive depleting independence and as an exception to the rule
Thereby practically tile spirit of the Act the solemn assurance given by the Govt
to the Parliament kindling hope in the litigant public to have a sitting or a retired judge appointed as President has been frustrated deflecting the appointment of a judicially trained judge to exercise judicial review
We are constrained to observe that the rules though statutory were so made as to defeat the object of the Act
The question then is can and if yes whether this court would interfere with the appointment made of Flarish Chander as President following the existing rules
Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair just and reasonable
Exercise of judicial review is to protect the citizen from the abuse of the power etc
by an appropriate Govt
or department etc
In our considered view granitic the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely
When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice President or President of a tribunal
we cannot sit over the choice of the selection but it be left to tile executive to select the personnel as per law or procedure in this behalf
In Sri Kumar Prasad case KN Srivastava MJS Legal Remembrance Secretary to law and Justice
of Mozoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art217 of the Constitution namely that he was not a District Judge for 10 years in State Higher Judicial Service which is a mandatory 861 requirement for a valid appointment
Therefore this Court declared that he was not qualified to be appointed as a judge of the High Court and quashed his appointment accordingly
The facts therein are clearly glaring and so the ratio is distinguishable
Sri Harish Chander admittedly was the Sr Vice President at the relevant time
The contention of Sri Thakur of the need to evaluate the comparative merits of Mr Harish Chander and Mr Kalyansundaram a senior most Member for appointment as President would not be one into in a public interest litigation
Only in a proceedings initiated by an aggrieved person it may be open to be considered
This writ petition is also not a writ of quo warranto
In service jurisprudence it is settled law that it is for the aggrieved person ie non appointee it assail the legality of the offending action
Third party has no locus stand it to canvass the legality or correctness of the action
Only public law declaration would be made at the behest of the petitioner a public spirited person
But this conclusion does not give quietus at the journey s end
There are persistent allegations against malfunctioning of the CEGAT and against Harish Chander himself
Though we exercised self restraint to assume the role of an Investigator to charter out the ills surfaced suffice to say that the union Govt
cannot turn a blind eye to the persistent public demands and we direct to swing into action an indepth enquiry made expeditiously by an officer or team of officers to control the mal functioning of the institution
It is expedient that the Govt
should immediately take action in the matter and have fresh look
It is also expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be the President
The rules need amendment immediately
A report on the actions taken in this behalf be submitted to this court
Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial reviews
The Judicial review and remedy are fundamental rights of the citizens
The dispensation of justice by the tribunals is much to be desired
We are not doubting the ability of the members or Vice Chairmen non Judges who may be experts in their regular service
But judicial adjudication is a special process and would efficiently be administered by advocate Judges
The remedy of appeal by special leave under 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 as usage a growing feeling of injustice of those who can ill effort to approach the Supreme Court
Equally the need for recruitment of members of the Bar to man 862 the Tribunals as well as the working system by the tribunals need fresh look and regular monitoring is necessary
An expert body like the Law Commission of India would make an indepth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income tax Appellate Tribunal and to make appropriate urgent recommendations to the Govt
of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious inexpensive and satisfactory
The writ petitions are disposed of with the above direction but in the circumstances with no order as to costs
TNA Petitions disposed of


Summary:
The appellants as the Mahants of the respective maths or asthals were served with notices under section 59 of the Bihar Hindu Religious Trusts Act 195o by the President Bihar State Board of Religious Trusts asking them to furnish statements and accounts of the properties in their possession
They challenged the constitutional validity of the Act by proceedings taken in the High Court on the grounds 1 that sections 2 5 6 7 and 8 of the Act infringe article 14 Of the Constitution inasmuch as there was inequality of treatment as between Hindu religious trusts on one hand and Sikh religious trusts on the other the latter having been excluded from the purview of the Act and that there was inequality of treatment even as between Hindu religious trusts and Jain religious trusts though both came under the Act 2 that the provisions of ch
V of the Act and in particular sections 28 and 32 violate article 191f of the Constitution as under those provisions the mahant or Shebait practically loses his right of management and is reduced to the position of a mere servant of the Board 3 that the provisions of the Act contravene articles 25 and 26 of the Constitution as the power to alter or modify the budget relating to a religious trust or the power to give directions to a trustee may be exercised by the Board in such a way as to affect the due observance of religious practices in the math or temple 4 that section 70 imposes an unauthorised tax and 5 that section 552 contravenes article I33 of the Constitution
Held 1 that in view of the fact that in the matter of religious trusts in the State of Bihar there are differences between Sikhs Hindus and jains and that the needs of jains and Hindus are not the same in the matter of the administration of 564 their respective religious trusts it is open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and jains
Accordingly SS 2 5 6 7 and 8 of the Act do not infringe article 14 Of the Constitution
It is well settled that while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and in order to pass the test of permissible classification two conditions must be fulfilled namely 1 that the classification must be founded on an intelligible differentia which distinguished persons or things that are grouped together from others left out of the group and 2 that that differentia must have a rational relation to the object sought to be achieved by the statute in question
Shri Ram Krishna Dalmia vs Shri Justice section R Tcndollkar   relied on
2 that having regard to the position of a trustee in respect of the trust property which he holds and the object or purpose of the Act the restrictions imposed in Ch
V of the Act are really for the purpose of carrying out the objects of the trust and for the better administration protection and preservation of the trust properties and are reasonable restrictions in the interests of the general public within the meaning Of cl
5 Of article 19 of the Constitution
3 that the Act does not contravene articles 25 and 26 of the Constitution as the provisions of the Act relating to the power of the Board to alter the budget and to give directions to the trustee are subject to restrictions namely that they must be for the proper administration of the religious trust  and further none of the provisions interfere with  matters of religion  including practices which a religious denomination regards as part of its religion
4 that section 70 Of the Act is a valid provision as it only provides for the levy of a fee for the purpose of defraying the expenses incurred or to be incurred in the administration of the Act and is not a tax
Mahant Sri jagannath Ramanuj Das vs The State of Orissa   followed
5 that section 552 Of the Act does not contravene article I33 Of the Constitution as it does not override or is not intended to override article 133 or any other Article of the Constitution relating to appeals to the Supreme Court