Case: People''s Union for Civil Liberties and Ors Vs. Union of India (UOI) and Ors

WRIT PROCEEDINGS:2. The appellants herein in the said writ petition sought disclosure of information from the respondents relating to purported safety violations and defects in various nuclear installations and power plants across the country including those situated at Trombay and Tarapur. The said demand of information was made purported to be relying on or on the basis of an information that the Atomic Energy Regulatory Board (AERB) prepared a report in November, 1995 documenting therein safety defects and weaknesses citing 130 instances which are said to be matters of concern. The appellants contended that a former Chairman of the AERB, Dr. Gopalkrishnan also expressed serious concern about the safety of nuclear installations in India disclosing that serious accidents had occurred in some of the nuclear facilities including one at Narora Atomic Power Plant in the State of U.P. and Kaiga Atomic Power Plant situated in the State of Karnataka.3. The appellants herein in support of its prayers made in the writ petition mainly relied upon the reports appearing in the newspapers, magazines and editorials and articles.4. In their counter affidavit, the respondents herein inter alia contended that the said Board was constituted in terms of Section 27 of the Atomic Energy Act entrusting the task to develop Safety Codes, Guides and Standards for siting, design construction, commissioning, operating and decommissioning of the different types of plants, keeping in view the international recommendations and local requirements and develop safety policies in both radiation and industrial safety areas; Reviewing health and aspects of modifications in design/ operation involving changes in the technical specification adopted in any of the Department of Atomic Energy (DAE) units; Reviewing operational experience in the light of the radiological and other safety criteria Recommended by the International Commission on Radiological /Protection, International Atomic Energy Agency (IAEA) and such other international bodies and adapted to suit Indian conditions, and thereby evolve major safety policies; Prescribing acceptable limits of radiation exposure to occupational workers and members of the public and approve acceptable limits of environmental releases of radioactive substances; reviewing the emergency preparedness plans for non-DAE installations; Promote, research and development efforts for fulfilling the functions and responsibilities specified; Reviewing the training programme, qualifications and licensing policies for personnel by the project/ plants; Enforcing rules and regulations promulgated under the Atomic Energy Act, 1962 for radiation safety in the country and such other functions as specified therein.5. With the said counter affidavit, the Fourth Report of the Nuclear Plant Safety and Spent Fuel Management prepared by the Standing Committee on Atomic Energy consisting of members of both the Lok Sabha and the Rajya Sabha had also been annexed. The Annual Report for the year 1995-96 prepared by the Government of India had also been annexed therewith. It was further contended that the specific questions were asked in the Parliament in relation to the alleged accidents which had been answered. It had been emphasized that necessary legislative and regulatory framework to ensure a competitive and independent assessment of the safety related requirements and practices in all nuclear installations have come into being. The respondents in their affidavits furthermore stated that there had been constant interaction with the media and the public in nuclear safety related matters to instill an increasing level of confidence in the public that safety is indeed receiving topmost priority in all nuclear activities.6. Dr. A. Gopalkrishanan, a former Chairman of AERB, on whose press statements the writ petition was filed, also in a statement before the reporters of the Economic Times which was published in the said newspaper on 11th February, 1995, stated:Let me emphasize that, Atomic Energy Regulatory Board is able to implement their decisions today without any interference or pressures in its functioning from outside sources. The statement of Pandit Jawaharlal Nehru while adverting to certain amendments moved to the Atomic Energy Bill in the year 1948 has also been relied upon.. One Mr. G.R. Srinivasan, Director, Health Safety in his affidavit disclosed that out of 130 items in the documents of AERB which required attention, 89 issues directly pertain to Nuclear Power Corporation (NPC) while 6 other issues concerned NPC, ABRC AND DAF.8. In the said affidavit it was pointed out:...that the Atomic Energy Commission informed the 5th Respondent on 22nd November, 1995 of the various issues to be tackled by NPC installations for the NEPs response. By 4th December, 1995, the NPC has given its, over 100 page response to the issue to AEC and thereafter NPC constituted a Committee on 11th December, 1995 to interact and discuss with the AERB regarding devolvement of the said issue. A total of 19 meetings were held with AERB staff and mutually agreed time bound action plans have been arrived at for all 95 issues. Final agreed action plans have been issued on 55 issues, because of degree of urgency. It is pointed out that the question of safety issues in NPC is a document which is highly technical in nature and it would neither be in public interest for the same to be disclosed nor could be it discerned by general public.. Yet again Shri Anupam Dasgupta, Joint Secretary in the DAE in his affidavit by way of sub-rejoinder dated 24th January, 1997 contended that the aforementioned 130 items listed in the AERB report titled Safety Issues in DAE installations are based on the proceedings and recommendations of various meetings of the Standing Safety Committees which have been constituted by the AERB itself to review the safety nuclear installations on a regular basis. In the said sub-rejoinder a press release of 26th March, 1996 of Dr. A. Gopalkrishnan was annexed wherein it was stated:For each of the items identified, the concerned DAE installation and AERB are jointly preparing the preliminary details of corrective actions and a committed time schedule for implementing them. These will be reviewed and finalized by the AERB Safety Review Committees and the Board, for timely implementation thereafter by the DAE. DAE installations are closely co operating with the AERB in expediting the process of safety upgradation.. Similarly, Dr. K.S. Parthasarathy in a press release dated 23rd June, 1996 stated:In the judgment of the Board, there is at the moment no shortcoming existing which can lead to any nuclear disaster or Chernobyl type catastrophe in any of these installations. The Board would like to assure the public that all the DAE installations are being continuously monitored and that it would not hesitate to initiate restrictive regulatory actions wherever necessary.. The respondents, however, relying on or on the basis of a notification dated 4th February, 1975 passed under Sub-section (1) of Section 18 of the Atomic Energy Act, 1962, raised a plea of privilege in relation to the said report, contending that the same had been classified as Secret as it pertains to the nuclear installations in the country which includes several sensitive facilities carried out therein involving activities of highly classified nature.12. In the said affidavit, it was averred that the deponent had applied his mind and found that the documents satisfy the requirements of the Order dated 4th February, 1975 read with Section 18 of the Act as if the same is directed to be published would cause irreparable injury to the interest of the State as also would be prejudicial to the national security.HIGH COURT JUDGMENT:20. Before the High Court the following three contentions were raised by the appellants:(i) the citizens have a right to have access to the copies of the AERB report;(ii) Section 18 of the Atomic Energy Act is invalid on the ground that there are no guidelines for the exercise of discretion in notifying a document as a Secret document; and(iii) an Independent regulatory Body to replace AERB should be appointed to monitor the safety measures taken in the nuclear power plants.21. The High Court although took notice of the horror of the nuclear holocaust which the world first felt when the America Bomber, Enola Gay descended from the clouds and emptied its bowels on the city of Hiroshima but refused to look in to the AERB Report itself upon arriving at a satisfaction that the respondents had been acting in public interest as also the interest of the nuclear installations in the country stating:1. Admittedly, these questions are repeatedly considered by the Parliament, it is discussed in the Parliament and once the Parliament is taking appropriate decision on the safety and other aspects of the Nuclear Installations, it would not be proper for this Court to exercise its writ jurisdiction under Article 226 of the Constitution;2. As stated earlier, the Memorandum dated 7th January, 1997 is issued by the Prime Minister to look into all aspect of the present regulatory process and as pointed out by the learned Additional Solicitor General, this would include the consideration of 130 defects/ irregularities pointed out in the AERB report. This Committee constituted consists of experts in the field;3. It has been pointed out that the hierarchy in the Department of Atomic Energy monitors the running of the Plants and Nuclear Installations; and4. Further, the steps taken for reviewing 130 safety issues in the DAE Installation by the Committee cannot be subject matter of judicial review..22. As regard the question of vires of certain provisions of the Act and in particular Sections 13 and 18 thereof, the High Court held that there are guidelines both in Sections 18 and 3 of the Atomic Energy Act in terms whereof the Central Government has been conferred with the power to restrict information as in wrong hands the same can pose a danger not only to the security of the State but to the public at large. It also rejected the contention that only because the nuclear plants are carrying out commercial activities, a citizen has a right to know stating:...Nuclear Power Plants as a by product generate plutonium which is a radioactive metal used in Nuclear Research amongst others for preparation of Atom Bomb. If the defects and the remedies to cure the defects in the Nuclear Power Plants fall in the wrong hands it can pose danger to the security of the nation itself. The challenge, therefore, on that count must fail.. The High Court opined that the very fact that AERB has prepared the report is suggestive of the fact that it is alive to its duties.

Reasoning: 18. It is not in dispute that the Atomic Energy Commission is constituted by the Union, of India in terms of the provisions of the Act. The Central Government has issued a notification dated 11th July, 2003 reconstituting the Atomic Energy Commission with the following composition:19. It is also not in dispute that the Central Government In exercise of its power conferred upon it under Section 27 of the Act, had set up the Board to enforce certain regulatory and safety measures envisaged under Sections 16, 17 and 23 of the Act. The composition of the Board include:33. It is not in dispute that the President by a notification dated 15th November, 1983 issued under Section 27 of the Atomic Energy Act constituted the AERB. It being a statutory body has the powers to lay down the safety standards and frame rules and regulations under the Act as regard the regulatory and/or safety aspects of the installations generating electrical energy. Here to before we have noticed the duties and functions of the Board which are of varying nature. The Board is an independent, body and out of the present composition thereof except one Mr. Sharma, nobody is an employee of the Central Government. The Board is responsible to the Atomic Energy Commission which has been reconstituted by reason of a notification dated 11th July, 2003. The executive function of the Board is vested in its Chairman. From a perusal of the powers and functions of the Board, it is neither in doubt nor in dispute that the Board except for Bhabha Atomic Research center monitors and reviews the working of all nuclear installations in India inter alia with reference to safety aspects. It upgrades and amends the safety standards and procedures and prescribes, and supervises implementation of such standards and procedures by the management of the nuclear installations. It is also not in dispute that safety issues in DAE installations has been prepared by the Board based on the recommendations of various Safety Review Committees. They had all along been classified as Secret. The report pertains to the nuclear installations in the country which, according to the respondents, include several sensitive facilities carrying out the activities of highly classified nature. The Board, make periodic assessment of the safety status of the installations and its suggestions as regard modifications and improvements to upgrade their safety status to the maximum extent are implemented.35. The contentions raised by the parties as regard non-disclosure of the report are required to be determined in the aforementioned context. Section 18 of the Act contains an enabling provision. Pursuant to or in furtherance of the said provision, the Central Government has issued an order on or about 4th February, 1975 restricting disclosure of certain information mentioned therein except with the prior permission of the Central Government.36. The question as to whether a statute is ultra vires Constitution of India having conferred unguided, uncanalised or wide power cannot be determined in vacuum. It has to be considered having regard to the text and context of the State as also the character thereof. It deals with a sensitive subject.37. Section 18 has been enacted for the purposes specified therein. It is well-settled that guidelines for enacting the said provision must be found out from the subject matter covering the field. For the said purpose even the preamble of the Act may be looked into.38. The notification of discovery of uranium or thorium, control over mining operations, the disposal of uranium, power to obtain information are within the scope and ambit of the said Act. Section 13 provides for informations as regard, contracts. Section 14 postulates control over production and use of atomic energy. Restrictions as regard disclosure of information as contained in Section 18 are not vague or wide in nature. It specifies the areas where such disclosures are prohibited. The powers of the Central Government to make an order in terms thereof are, thus, limited.39. It is not a case where as in Hamdard Dawakhana and Anr. v. Union of India and Ors. 1960CriLJ671 or Krishna Mohan (P) Ltd. v. Municipal Corporation of Delhi AIR2003SC2935 the Central Government has been conferred with a wide uncanalised and unguided power. It is also not a case where the words employed in the provision provide for no criteria nor can it be said that no standard has been laid down by the Parliament therefore. It is furthermore not a case where principles on which the power of the Central Government are to be exercised have not been disclosed. By reason of the Act, essential legislative functions have also not been delegated.40. We do not think that having regard to the purport and object of the said Act, the provisions of Section 18 have bestowed unguided and uncanalised powers on the Central Government. Sections 18 and 3 of the Atomic Energy Act had to be enacted by the Parliament as in wrong hands the information can pose a danger not only to the security of the State but to the public at large.41. Reference, in this connection, may be made to a decision of this Court in Organon (India) Ltd. (now known as Infar (India) Ltd. and Anr. v. Collector of Excise and Ors. AIR1994SC2489 wherein this Court relying on Harishankar Bagla v. State of M.P. 1954CriLJ1322 , Delhi Laws Act case [1951]2SCR747 and State of Tamil Nadu v. Hind Stone [1981]2SCR742 , wherein this held that the provisions of Opium Act furnished sufficient guidance in the matter of making rules under Section 5 thereof.42. The statutory scheme contained in the provisions of the Act, the rules framed thereunder, composition of the Atomic Energy Commission and AERB leave no manner of doubt that the effective functions of the nuclear power plants are sensitive in nature. The functions of the Board are varied and wide. Only out of certain functions of the Board, some have been marked as Secret which fulfilled the statutory criteria laid down under Section 18 of the Act. A statute carries with it a presumption of constitutionality. Such a presumption extends also in relation to a law which has been enacted for imposing reasonable restrictions in the fundamental right.43. A further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily.44. We are, therefore, of the opinion that Section 18 is not unconstitutional and a valid piece of legislation.49. In Raj Narain (supra), the Constitution Bench considered a question-whether privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what has been described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The Court observed as under:-In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing..... In Indian Express Newspapers (Bombay) Private Ltd. and Ors. etc. v. Union of India and Ors. : [1986]159ITR856(SC) , this Court dealt with the validity of customs duty on the newsprint in context of Article 19(1)(a). The Court observed (in para 32) thus:The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments...e Court further observed:...The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves. (Per Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd. (1973) 3 All ER 54. Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the peoples right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration....58. The Atomic Energy Act is not an antiquated statute. There exists a relationship between the right to know and freedom of speech. Right to speech and publish does not carry with it an unrestricted right to gather information. (See Zenul v. Rusk, 14 L.Ed. 2d 179 at 190)59. The U.S. Supreme Court in Kleindienst v. Mandal, 33 Law. Ed. 2d 683 held that the First Amendment guarantees no independent and enforceable right against the governments bona fide exercise of discretion in the exclusion of aliens.60. Both in Raj Narain (supra) and S.P. Gupta (supra) this Court was silent on the relationship between the restrictions which should be placed on the right to know and the restrictions existing under Article 19(1)(a) of the Constitution.63. It has not been contended nor could it be contended that the operation and functioning of a nuclear plant is not sensitive in nature. Any information relating to the training features processes or technology cannot be disclosed as it may be vulnerable to sabotage. As rightly pointed out by the learned Attorney General, knowledge of specific data may enable the enemies of the nation to estimate and monitor strategic activities. As fissile materials are used in fuels although the nuclear plants are engaged in commercial activities, the contents of the fuel discharged or any other details must be held to be matters of sensitive character.64. Before the High Court, as noticed hereinbefore, several affidavits have been filed showing the extent of disclosures made. The Board also publishes annual reports as also quarterly newsletters. The informations which are not classified as secrets or do not come within the purview of the aforementioned order dated 4th February, 1975 are published. If a reasonable restriction is imposed in the interest of the State by reason of a valid piece of legislation the Court normally would respect the legislative policy behind the same.The jurisdiction of this Court in such matter is very limited. The Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. The order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the Legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required there under.No such case has been made out by the appellant.70. When any claim of privilege is made by the State in respect of any document the question whether the document belongs to the privileged class has first to be decided by the court. The Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. The claim of immunity and privilege has to be based on public interest.71. The section does not say who is to decide the preliminary question, viz. whether the document is one that relates to any affairs to State, or how is it to be decided, but the clue in respect thereof can be found in Section 162. Under Section 162 a person summoned to produce a document is bound to bring it into court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. It further says that the Court, if it seems fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.72. In order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of State and disclosure thereof must be against interest of the State or public interest.73. In Raj Narain (supra), the question was as to whether a Blue Book, being rules and instructions for the protection of the Prime Minister when on tour or in travel, providing for mode and manner in which the security is to be provided to the Prime Minister is beyond the purview of Section 123 of the Indian Evidence Act or not. The High Court held that no privilege can be claimed in relation thereto.74. Ray, CJ. referring to a large number of decisions opined that even in an election petition privilege can be claimed. It was, however, held:The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection.. Mathew, J., however, in his concurring- opinion opined that the question of national importance vis-a-vis administration of justice should be the criteria for determining the claim of privilege stating:...But the Executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements. One such element is the administration of justice. The claim of the Executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the Executive alone knows what is best for the citizen. The claim of the Executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow department angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the Court will, with reference to the pending litigation, be in a better position to decide whether the weight of public interest predominates.. It was opined that merely label given to an executive is not conclusive in the matter observing:...The documents in this case, class documents though they may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but as requiring protection on the ground that candour must be ensured.. In S.P. Gupta (supra), this Court while upholding the aforementioned principles, however, was of the opinion that there can be a class of documents in respect whereof privilege can be claimed stating:In other words, if injury to public interest is the foundation of this immunity from disclosure, when once the court has inquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of State, it would in most cases be a futile exercise for the head of the department to consider and decide whether its disclosures should be permitted as he would be making an enquiry into the identical question.. Bhagwati, J. (as the learned Chief Justice then was) observed: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, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the court by reason of Section 162.. Analysing the provisions of Sections 123 and 162 of the Indian Evidence Act, it was opined:The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.