Case: A.K. Kaul &amp; Another Vs. Union of India &amp; Another

India, 1982(2) SCR 365, has observed that the following classes of documents are protected from disclosure :- "(i) Cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad. (ii) Papers brought into existence for the purpose of preparing a submission to cabinet. (iii) Documents which relate to the framing of the Government policy at a high level. (iv) Notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached. (v) Documents concerned with policy making within departments including minutes and the like by junior officials and correspondence with outside bodies. 36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter. 37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 428. 38. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 of the Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notification. On behalf of the appellant it was urged that the only material produced at the inquiry does not constitute legal evidence for the purpose in as much as it was, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. On the other hand, on behalf of the respondent it was submitted that the requirement of natural justice in such a situation was satisfied by mere disclosure of information without disclosing the source of the information. This Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest. It was said : "It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest. ..............However, the non-disclosure of sensitive information and evidence to the association and its office-bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. [P. 447] 39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants. 40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the light of the provisions contained in Article 74(2) and Article 163(3) it was submitted before the Court that leaving aside the advice given by the Ministers to the President or the Governor, the Government is bound to disclose at least the materials upon which the advice of Council of Ministers was based so that the court can examine whether the satisfaction of the President or the Governor, as the case may be, was arrived at mala fide or is based on wholly extraneous or irrelevant grounds so that such satisfaction would in law amount to no satisfaction at all and that if the Government does not voluntarily disclose such materials it can be compelled by the Court to do so11. It would thus appear that in Tulsiram Patel (supra) though the question whether the satisfaction of the President or the Governor under Article 311(2) is amenable to judicial review and the Government can be required to disclose the materials upon which the advice of the Council of Ministers was based so as to enable the court to exercise the power of judicial review has been left open, the Court, after considering the said material, has recorded the finding that the satisfaction of the Governor was neither recorded mala fide nor was it based on any extraneous or irrelevant ground12. It is, therefore, necessary to deal with this question in the instant case. We may, in this context, point out that a distinction has to be made between judicial review and justifiability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touch stone of the Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justifiability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciableWe do not think so. Article 19(2) of the Constitution permits the State of impose, by law, reasonable restrictions in the interests of the security of the State on the exercise of the right to freedom of speech and expression conferred by sub-clause (a) of clause (1) of Article 19. The validity of the law imposing such restrictions under Article 19(2) is open to judicial review on the ground that the restrictions are not reasonable or they are not in the interests of the security of the State. The Court is required to adjudicate on the question whether a particular restriction on the right to freedom of speech and expression is reasonable in the interests of the security of the State and for that purpose the Court takes into consideration the interests of the security of the State and the need of the restrictions for protecting those interests. If the Courts are competent to adjudicate on matters relating to the security of the State in respect of restrictions on the right to freedom of speech and expression under Article 19(2) there appears to be no reason why the Courts should not be competent to go into the question whether the satisfaction of the President or the Governor for passing an order under Article 311(2)(c) is based on considerations having a bearing on the interests of the security of the State. While examining the validity of a law imposing restrictions on the right to freedom of speech and expression this Court has emphasised the distinction between security of the State and maintenance of public order and has observed that only serious and aggravated forms of public order which are calculated to en-danger the security of the State would fall within the ambit of clause (2) of Article 19. (See : Romesh Thapper v. The State of Madras, 1950 SCR 594, at p. 601). So also in Tulsiram Patel (supra) the Court has pointed out the distinction between the expressions `security of the State, `public order and `law and order and has stated that situations which affected public order are graver than those which affect law and order and situations which affect security of the State are graver than those which affect public order. The President or the Governor while exercising the power under Article 311(2)(c) has to bear in mind this distinction between situations which affect the security of the State and the situations which affect public order or law and order ran for the purpose of arriving at his satisfaction for the purpose of passing an order under Article 311(2)(c) the President or the Governor can take into consideration only those circumstances which have a bearing on the interests of the security of the State and not on situations having a bearing on law and order of public order. The satisfaction of the President or the Governor would be vitiated if it is based on circumstances having no bearing on the security of the State. If an order passed under Article 311(2)(c) is assailed before a court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State the Court can examine the circumstances on which the satisfaction of the President or the Governor is based and if it finds that the said circumstances have no bearing on the security of the State the court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations31. We are, therefore, of the opinion that an order passed under clause (c) of the second proviso to Article 311(2) is subject to judicial review and its validity can be examined by the court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds within the limits laid down in S.R. Bommai (supra)32. In order that the Court is able to exercise this power of judicial review effectively it must have the necessary material before it to determine whether the satisfaction of the President or the Governor, as the case may be has been arrived at in accordance with the law and is not vitiated by mala fides or extraneous or irrelevant factors. This brings us to the question whether the Government is obligated to place such material before the Court. It is no doubt true that unlike clause (b) of the second proviso to Article 311 (2) which requires the authority to record in writing the reason for its satisfaction that it is not reasonably practicable to hold such inquiry, clause (c) of the second proviso does not prescribe for the recording of reasons for the satisfaction. But the absence of such a requirement to record reason for the satisfaction does not dispense with the obligation on the part of the concerned government to satisfy the court or the Tribunal if an order passed under clause (c) of the second proviso to Article 311(2) is challenged before such court or tribunal that the satisfaction was arrived at after taking into account relevant facts and circumstances and was not vitiated by mala fides and was not based on extraneous or irrelevant considerations. In the absence of the said circumstances being placed before the court or the Tribunal it may be possible for the concerned employee to establish his case that the satisfaction was vitiated by mala fides or was based on extraneous or irrelevant considerations. While exercising the power under Article 311 (2)(c) the President or the Governor acts in accordance with the advice tendered by the Council of MinistersArticle 74(2) and Article 163(3) which preclude the court from inquiring into the question whether any, and if so, what advice was tendered by the Ministers to the President or the Governor enable the concerned Government to withhold from the court the advice that was tendered by the Ministers to the President or the Governor. But, as laid down in S.R. Bommai (supra), the said provisions do not permit the Government to withhold production in the Court of the material on which the advice of the Ministers was based. This is, however, subject to the claim of privilege under Sections 123 and 124 of the Evidence Act in respect of a particular document or record. The said claim of privilege will have to be considered by the court or tribunal on its own merit. But the upholding of such claim for privilege would not stand in the way of the concerned Government being required to disclose the nature of the activities of the employee on the basis of which the satisfaction of the President or the Governor was arrived at for the purpose of passing an order under clause (c) of the second proviso to Article 311(2) so that the court or tribunal may be able to determine whether the said activities could be regarded as having a reasonable nexus with the interest of the security of the State. In the absence of any indication about the nature of the activities it would not be possible for the court of tribunal to determine whether the satisfaction was arrived at on the basis of relevant considerations. The nature of activities in which employee is said to have indulged in must be distinguished from the material which supports his having indulged in such activities. The non-disclosure of such material would be permissible if the claim of privilege is upheld. The said claim of privilege would not extend to the disclosure of the nature of the activities because such disclosure would not involve disclosure of any information connecting the employee with such activities or the source of such information33. In our opinion, therefore, in a case where the validity of an order passed under clause (c) of the second proviso to Article 311(2) is assailed before a court or a Tribunal it is open to the court or the Tribunal to examine whether the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds and for that purpose the Government is obliged to place before the court or tribunal the relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under Sections 123 and 124 of the Evidence Act to withhold production of a particular document or record. Even in cases where such a privilege is claimed the Government concerned must disclose before the Court or Tribunal the nature of the activities in which the Government employee is said to have indulged in36. The Tribunal, after examining the records produced before it, has observed that the records contained cabinet minutes, papers brought into existence for the purpose of preparing submission to the cabinet, notes made by the respective officers, information expressed and the gist of official decisions. Having regard to the fact that the appellants were working in a highly sensitive organisation entrusted with the delicate job of gathering, collecting and analysing intelligence necessary to maintain the unity, integrity and sovereignty of the country and that secrecy is the essence of the organisation and exposure may tend to demolish the organisation and aggravate the hazards in gathering information and dry up the sources that provide essential and sensitive information needed to protect public interest, the Tribunal has held that it will not be in public interest to permit disclosure of such documents. The Tribunal has, therefore, upheld the claim of privilege. We do not find any ground to take a different view in the matter37. After looking into the records the Tribunal has recorded the finding that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the materials relied upon for the satisfaction of the President have nothing to do with the activities of the appellants in relation to IBEA and that the impugned orders have not been passed in violation of the interim order passed by this Court in W.P.O. No.s 1119 of 1980 and that there is no substance in the appellants case that the orders of dismissal are not bona fide and had been passed to victimise the appellants for promoting and participating in the activities of IBEA. The learned Additional Solicitor General has submitted that the Tribunal has not committed any error in adopting this course and has placed reliance on the decision of the Court in Jamaat-e-Islamdi Hind v. Union of India, 1995(1) SCC 42838. In Jumaat-e-Islamdi Hind (supra) a notification had been issued by the Government of India under Section 3 ofthe Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islamdi Hind was an unlawful Association. The said notification was referred for adjudication to the Tribunal constituted under the said Act. Before the Tribunal the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notificationThis Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always out weigh every lesser interest39. These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view that in a case where the material is of such a nature that it requires continued confidentiality in public interest it would be permissible for the court or tribunal to look into the same while permitting the non-disclosure to the other party to the adjudication. It cannot, therefore, be said that the Tribunal, in the present case, was in error in looking into the record for the purpose of determining whether the satisfaction has been vitiated for any of the reasons mentioned by the appellants40. The learned counsel for the appellants have invited our attention to the averments contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P. No. 1117-19 of 1980 in this Court in support of their submission that the impugned orders of dismissal have been passed on the basis of the activities referred to in para 6 of the said application. This submission has to be rejected in view of the finding recorded by the Tribunal that the materials considered by the President relate to the activities of the appellants which would prejudicially affect the security of the State and that the said materials have nothing to do with the activities of the appellant in relation to IBEA.