R.K.JAIN v. UNION OF INDIA AND ORS.

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 befote us in the judgment of our esteemed Brother K. Ra- F maswamy, J. But while concurring with the hereinafter mentitincd 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 G R.K. Jain, Editor, Excise Law Times, addressed to then Chief Justice of India, Shri M.H. Kania, J.. complaining that as the Customs, Excise and Gold Control Appellate Tribunal (for short 'the CEGAT') was without a President for the last over six months the functioning of the Tribunal was adversely affected, in that, the Benches sit for hardly two hours or so, the sittings commence late at about 10.50 H

818 SUPREME COURT REPORTS [1993] 3 S.C.R.

)- A a.m., there is a tendency to adjourn cases on one pretext or the other so much so that even passing of interim orders, like stay orders, etc., is postponed and inordinately delayed, and the general tendency is to work for only four days in a week. The work culture is just not there and the environmental degradation that has taken place is reflected in the letter of Shri G. Sankaran dated June 3, 1991 who prematurely resigned as the President of the CEGA T. Lastly, he says that there B were nearly 42,000 appeals and approximately 2000 stay petitions pending in the CEGA Tin vol ving 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; c (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.,..

D This letter was directed to be treated as Public Interest Litigation and notice was issued to the Union of India restricted to relief No. (i) i.e. in regard to the appointment of the President of the CEGAT. On April 29, 1992, the learned Additional Solicitor General informed the Court that the appointment of the President was made. On the next date of hearing the relevant file on which the decision regarding appointment was made was produced in a sealed envelope in E 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 F his competence to hold the post was questioned. It was contended that his appointment was made in violation of the Rules and convention found mentioned in the message of Shri Y. V. Chandrachud, the then Chief Justice of India, dated October 5, 1992 forwarded on the occasion of the inauguration of the CEGA T. 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 appoint- G ment as President of the CEGA T. To put a quietus to the entire matter at an early date we called the file from the Registry on May 4, 1992 but wtien 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,

H 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. --

R.K . .I.'\[.'\ 1-. t·.'\10.'\ OF ISl>IA (AH\1i\DI. II 819 ' Accordingly. rhe then Finance Secretary tiled an affidavitdaiming privilege und1!r A sections I 2.:1 and 124. Evidence Act. and Article 74(2) of the Constitution. The Minister of State in the l::inance Department was also directed to 11le 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 RamaswamyJ. dealt with this question elaborately. B After referring to the provisions of the relevant Statutes and the Const!tution as well as the case-Jaw of ho th foreign and Indian courts. the authoritative text books. etc. he has concluded as under :

"Ha\'ing perused the file and given our anxious consideration we are of the c opinion that on the facts of the case ..... it is not necessary to disclose the contents of the records of the petitioner or his counsel."

We are in respectful agreement with this conclusion recorded by our learned Brother though not entirely for all the reasons which have weighed with him. D On the question of appointment of respondent No. 3 as the President of the CEGAT we must norice a few provisions contained in the CEGAT Members (Recruitment and Conditions of Service). Rules, 1987 (hereinafter called 'the Rules"). Rule 2(i.:) defines a member, to include the President oftheCEGATalso; Ruic 3 prescribes the qualifications forappointment and Rule 6 sets out the method E of recruitment of a member through a Selection Committee consisting of a Judge of the Supreme Cnurt of India nominated by the Chief Justice of India. Rule I0 pm vi des for the appointment of the President. It says that the Central Government shall appoint one of the members w be the President. Sub-rule (2) then provides as under: F '"(2) Notwithstanding anything contained in rule 6, a sitting or retired judge of a High Court may also be appointed by the Central Government as a member and President simultaneously ...

Sub-rule (4) and the proviso thereto bear reproduction :

'"(4) Where a ser\'ing judge of a High Court is appointed as a member am.I President, he shall hold office as President for a period of three years from the date of h1s appointment or till he attains the age of 62 years, whichever is earlier: H

)- . 820 St'PREME cot:RT REPORTS ( 1993] 3 S.C.R.

A Provided that where a retired judge of a High Court above the age of C12 years is appointed as President. l1e shall hnld office ti.1r such period 1wt exceeding ·three years as may be determined by the Central Government at the time of appointment M re-appoint- ment.··

B It will thus he seen that the rules empower the Central Government to app\)int any member <JS the President of the CEGA T. It is true that under sub-rule (4), a serYing judge and under the prn\"iso thereto, a retired judge, can also be appointed a Member and President simultanelmsly. In the case of a serving judge his ageof superannuatiun is lixed at 62 years but in the case of a retired judge he may be c appointed for a period of three years at the most. Insofar as a ser\'ing High Court Judge is concerned. he holds oflice until he attains the age of 62 years, vide Article 217 of the ConstitutilHl. Ii'. therefore. heats common sense why a sitting Judge of the 1-ligh Court would upt to serve as the President of the CEGA T if he is tn retire at the same age without any benefit. On the contrary he would lose certain perks \vhich are attached tu the uffice of a High Court Judge. Even status-wise he would D suffer as his decisions would he subject to the writ jurisdiction of the High Court under Articles 226/227 of the Constitution. He may agree w accept the offer unly ifhe had an extencleJ tenure or at least three years. We are, therefore, in agreement with uur learned Brother that sub-rule (4 J of Rule 10 of the Rules needs a suitable change to make it sufficiently attractive f1ir sitting High Court Judges to accept ap1x>intment as the President of the CEGAT. We alsll agree with our learned E Brother that to instill the Cllllfidence uf the litigating public in the CEGA T. the Government must make a sincere effort to appoint a sitting Judge \)f the High (\iurt as a President of the CEGA Tin consultation of the Chief Justice 11f India and if a sitting Judge is I)l)t a\'ailable the ch\lice must fall on a retired Judge as far as possible. This would bl:! consistent with the assurance given by the Finance Depanment as is. retlected in the letter nf Shri Chandrachud, extract wherefrom is F repruduccd by our learned Brother in his judgment.

Shri Harish Chandra was a Senior Vice-President when the questi\ln of filling up the vacancy of the President came up for consideratiun. He was fully qualified for the post under the Rules. No challenge is made on that count. Under G Rule I 0( I) the Central Government is conferred the power to appoint 1:ine llf the Members to bl:! the President. Since the validity of the Rule is not questioned there can be no doubt that the Cl·ntral Governinent was entitled to appoint respondent No. 3 as the President. But it was said that the track record ot"respondent No. 3 was 111)\Jr and he was hardly fit to hold the post of the President of the CEGA T. It has been aYerred that respondent No. 3 had heen in the past proposed for app\)intment

l R.K. JAi::-: "· l'1':10'.'J OF INDIA IAH!\1ADI. JI 821 I

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 nver the wisdom of the Central Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. We, therefore, cannot interfere with the appointment of respondent No. 3 on the ground that his track record was poor or because of adverse reports on which account his appointment

- as a High Court Judge had not materialised.

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

CEGAT are grave and the authorities can ill afford to turn a Nelson's eye to those allegatinns made hy a person who is fairly well con\'ersant with the internal working of tl1e Tribunal. D Refusal to inquire inti) such gra\'e allegations. some of which are capable of verification, can 1mly 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 E its slumber and initiates prompt action to examine the allegations by appointing a high le\'el team which would immediately inspect the CEGA T, 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 F 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 11011 for the efficient governance of a country wedded !1) the rule of law. An independent and impartial justice delivery system in which the litigating public has iaith and confidence alone can deliver the goods. After the incorporation of these two articles, Acts have been enacted whcreunder tribunals have been constituted for dispensation of G justice. Sufficient time has passed and experience gained in these last few years for taking stock of the situatil)n 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 othei tribunals as well and it is time that a hnJy like the Law Commission of India has comprehensive look-in with a view l\l II

822 Sl'PRE\·IE COURT REPORTS (1993] 3 S.C.R.

A suggesting measures for their improved functioning. That hody can also suggest changes in the different statutes and evolve a modd on the basis whl!reoftribunals may be constituted or rec1Jnstituted with a view to ensuring greater independence. An intensive and extensive study needs to be undertaken by the Law Conunission in regard to the constitution ol tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality or their performance may improve. We strongly recom-

-- B mend ti' the Law Commission or India tti undertaki.:: such an exercise on priority basis. A copy of this judgml!nt may be forwardl!d by the Registrar of this Court to the Member-Secretary or the Conuuission for immediate action.

We have thought it wise to clarify the extent of our concurrence with the c views expressed by our learned Brother in his judgment to avoid possibility of doubts being raised in future. We accordingly agree with our learned Brother that the writ petitions should stand disposed of accordingly with no order as to costs.

K. RAMA SW A MY, .J. : The same facts gave birth to the twin petitions for D disposal by a common judgment. On October 11, 1982, the Customs Central Excise and Gold (Control) Appellate Tribunal for short ·cEGAT came into existence with Justice F.S. Gill as its President. After.he retired in I 985 no Judge was appointed as President. In letter dated December 26. I 991, 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 E as President to revitalise its functioning and to regenerate wanning 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 l)nion · s counsel stated that the matter was .under active consideration of the government. having regard to the urgency, this court hoped that the decision would be taken within two weeks from that date. On April 20, 1992 the karned Addi. Solicitor General reported that the appointment of the President had been made, however. the order was not placed on record. In the meanwhile the petitioner filed writ petition No. 312 of 1992 impugning the appointment 1)f Sri Harish Chander, as President and sought to quash the same being in violation ·of the direction issued by this Court on February 25, I 992 and to strike down RiRes IO(I ), (3) and (4) of the CEGAT Members (Recruitment and Conditions of Service) Rules 1987. ior short the 'Rule' as violative of Art. 43 of the Constitution. Rule nisi was also issued to the respondents in that writ petition on May 4, 1992. The file in a se~tled CO\'er was produced. The first and the third respondents were directed to tile their counters

l R.K. JAIN 1·. UNION OF l:"DIA !RAMASWAMY. J.J 823

- within four weeks. This court also directed the first respondent "to retlect 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 A

procedure was followed at the time of the appointment by first respondent"'; and "whether Chief Justice of India was consulted or whether the first respondent was free to choose a retired or a silting Judge of the High Court as President of the Tribunal with or without consultation of the Chief Justice oflndia". ''It should also B 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 cu.uld be appointed as the President of the Tribunal .. and directed to post the .:a~cs for final disposal on July 21, 1992. At request, to enable to government to me a counter, the file was c returned.

The Solicitor General though brought the file on July 21, 1992. objected to ciur 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 affida- vits and rejoinders were exchanged in the writ petitions. The Attorney General also appeared on behalf of the Union. The government's claim for privilege is founded upon s. 123 of the Indian Evidence Act and Art. 74 (2) of the Constitution of India. Later on the Solicitor General modified the stand that the government have no objection for the court to peruse the file but claimed privilege to disclose the contents of the file to the petitioner. F

Section 123 of the Indian Evidence Act, 1872 postulates that "no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit". Section 124 provides that no public officer shall be compelled to G disclose conununkations made to him in official confidence. ·'when he considers .... that the public interests would suffer by the disclosure''. S. 162 envisages procedure on production of the documents that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the court, notwith- standing any objection which there may be to its production or to its admissibility. 11

824 Sl."PREtvlE COURT REPORTS [1993) 3 S.C.R. J A "The validity of any such objection shall be decided by the court ... The court, if it deems lit, may inspect the documents, unless it refers to matters of State, or take other evidence to enable it to determine on i.ts admissibility.

The remedy under Art. 32 of the Constitution itself is a fundamental right to enforce the guaranteed rights in Part III. This court shall have power to issue writ of haheas-Cl)rpus. mandamus, certiorari, q11owarra1110 or any other appropriate writ or direction or order appropriate to the situation to enforce any of the ; fundamental right (power of High court under Art. 226 is wider). Artlcle 144 enjoins that all authorities, ci vii and judicial, in the territory oflndia shall act in aid of this Court. Article 142 (I) empowers this Court to make such orders as is necessary for doing rnmplete justice in any cause or matter pending before it. Subject to the provisions of any law made in this behalf by the Parliament, by Clause 2 of Art. 142, this Court ''shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt· of itself. .. D When this Court was moved for an appropriate writ under Art. 32, rule nisi would be issued and for doing complete justice in that cause or matter, it has been invested with power to issue directions or orders which includes ad interim orders· appropriate to the cause. All authorities, constitutional, civil judicial, statutory or persons in the territory of India are enjoined to act in aid of this court. This court while exercising its jurisdiction, subject to any law, if any, made by Parliament consistent with the exercise of the said power, has been empowered by CI. 2 of Art. · 142 with all and every power to make any order to secure attendance of any person, to issue ''discovery order nisi" for production of any documents, or to order investigation .... Exercise of this constituent power is paramount to enforce not only the fundamental rights guaranteed in Part III but also to do complete justice in any matter or cause. presented or pending adjudication. The power to issue "discovery order nisi" is thus express as weII as inherent as an integral power of Judicial review and process in the court to secure the attendance of any person or discovery or prnduction of any document or to order investigation in that behalf. However, in an app~opriate 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 llUt some facts or an attempt to cause embarrassment to the respondents nor h>r publicity. But on issuance of rule nisi by this Court under Art. 32 ora discovery order nisi the government or any authority, constitutional. civil, judicial. statutory or otherwise nr any person, must produce the record in their

l R.K. JAIN r. UNIO\' 01: l\'l>IA I RAMASWAMY ..I.I 825

custody and disobedience thereof would be at the pain of contempt. A • 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 docu- ments in public interest. In a democracy, governed by rule of law State is treated at par with a person by Art. 19( 6) in commercial/industrial activities. It possessed of no special privileges. This Court in Slate of U.P. v. Raj f'f_arain & Ors. [1975] 2 SCR 33.3 at 349 held that an objection claiming immuni(y 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 apprnpriate order in that behalf. E 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 whetherthe 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 interesl, for it is also in the public interest that justice should be done between litigating parties by production of all relevant document~ for whi9h public interest immunity has been claimed. They must be weighed onl' 1l

826 Sl1PRE:V1E COt'RT REPORTS [1993] 3 S.C.R. J A competing p·ublic 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 justic;e is to be done. The court also should be satisfied whether, the evidence relates to the U 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 conllict arise between public and private interest, private interest must yield to the public interest. In S.P. Gupta & Ors. etc. ere v. Union of India & Ors. etc. ere. [ 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 c 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 inconve- nience 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 l_ay before a court of justice of the rdevant evidence. In balancing the competing interest it is the duty of the court to II sec that there is the public interest that harm shall not be done to the nation or the

I<" I \I\; 1·. I "NI<)\,, I lf f\;lJl/\ ,l{A\l.\S\\'A,\JY. J.; . 827

public service hy disclosure of the document and there is a publk interest that the administratinn or justice shall not be frustrated by withholding documents which must be produced if justice is to be done. Iris. therefore, the paramount right and duty of the court not of the cxecuti\'c to decide whether a document will be produced or may be withheld. The court must decide which aspect of public interest predominates nr in other words whether the public interest which requires that the documem should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevam evidence. In some cases, therefore. the court must weight one competing aspect uf 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 t.o which the court would. therefore, have to address itself for the purpose c of deciding the validity of the objectinn would be, whether the document relates to affairs of Stale or in other words, is it of such a character that its disclosure would be against Ille interest of the State or the public service and if so, whether the public interest in- its non-disclosure is so strong that it must prevail over the private interest in the administration of justice and on that account, it should not be allowed D 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 inununity claimed in the aflidavit of the State Minister for Finance and the Secretary need privacy and claim for immunity of state documents from disclosure is unsust1inablc. E

·1ne same is the law laid down by the Commonwealth countries, see Conway v. Rimmer.1968 A.C. 910, (H.L.); D. v. Narional Society/or tlze Prevention of Cruelty to Children1 l 978 AC 171. (H.L.); Burmalz Oil Co. ltd. v. Governor and CtMpany of1he Bank of Englwu~l 980 AC 1090 (H.L.); Butters Gas and Oil Co. F \. Hamme5I 982 AC 888 (H.L.);AirCanada v. Secretaryo/Statefor Trade [1983] l AC 394 (H.L.); and Council of Civil Service Unions v. Minister for tile Civil Sen 1ice_,l 985 AC 374 (f-I.L.); Pursuant to the law laid down in Conway's, case the Administration of Justice Act, 1970 was made enabling the court to order disclosure of the documents except where the court, in exercise of the power under sections 31 to 34, considered that compliance of the order would be injurious to G the public interest consistent with the above approach is the principle laid by this .court in S.P. Gupta's case.

In United States of America the Primacy to the executive privilege is given only Where the court is satisfied that disclosure of the evidence will expose militan II

828 SUPREME COURT REPORTS ( 1993] 3 S.C.R.

A secrecy or of the document rdating to foreign relations. ln other respects the wurt would reject the assertion of executive pri\'ilege. /11 United States v. Reynolds 119351345 U.S. I; Environmenll// Protection Agency v. Patsy T. Mink l410] U.S. 73 (35) L. Ell. 2nd 11: Newyork Times v. U.S. ll 971] 403 US 731: Pentagan Papers c.1~~ and.". U.S. v. Riclwrd M. N1~ron J l 974]418 US 683 =41L.Ed2nd 1035. What is kn, 1wn as Watergate Tapes case. the Supreme Court 1)flJ .S.A. reject ell the claim U of the President not to disclose the conversation he had with the officials. The Administrative Procellure Act 5, Art 552 was made. Thereunder it was broadly conceded to permit access to official information. Only as stated hereinbcforc 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. c documents are accessible to production. In the latest Commentary hy McCormick on Evidence. 4th Ed. by John W. Strong in Chapter 12, surveyed the development of law nn 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 1'f privilege becomes not only desirable but necessary .............. Where these privileges. are claimed. it is for the judge to lktermine whether the interest in governmental secrecy is outweighed in the particular case by the litigant's interest in obtaining the evidence sought. A satisfactory striking of this balance will, on the one hand, require consideration of the interests giving rise to the privilege and an assessment of the extent to \vhich disclosure will realistically impair those interests. On the other hand, factors which will affect the litigant ·s need will include the significance of the evidence sought for the case, the availability of the desired information from other sources, and in some instances the nature of the right being asserted in the litigation ...

In Robinson v. State of So111h J\11stralia_, I 93 l A.C. 704 PC: Slwnkev ,._ \.Fhitlw~[ 1979] 53 ALR p. l; FJ\J lns11rances Ltd. v. The Hon. Sir, Henry Arth11s F Winneke and Ors, [ 1982] 151CLR342; Whit/an v. A11stra/ian Consolidated Press Ltd:l[l 985] 60.ALR p.7 ;Minister.for Arts Heritage and Enviro11111e111 and Ors. v. Pekoi Wa/lsend Ltd and Ors; [l 987i75 ALR 218 and Co111111onwealth ofA11stralia v. Northern Land Co1111ci/, and Anr. [1991\ 103 ALR 267. Australian Courts consistently rejected the executive privilege and exercise the power to determine G whether the documents need immunity from disclosure in the puhlic interest. The same view was endorsed by the Supreme Court of Canada in R. v. Shinder 1954 SLR 479 and Gagnon v. Quebec Sernrities Commission [1964] SCR 329; The S11pre111e Court of Victoria in Bruce,._ \Valdrun. [1 %3] YLR p.3; The Co11rt of Appeal of New Sowh Wales in Re Tuns rail. £1:. P. Brown. [1966] 84 W .N. (Pt. 2)

RX. JAIN v. 11'.'!!0N OF INDIA [RAMASWAMY. J.f . 829

[N.S.W.] 13. The Court of Appeal of the New Zealand in Corbettv. Social S~curity A Commission [1962] N.Z.L.R. 878, Creednz Inc v. Governor General [1981] 1 N.L.R. p. 172; The Supren:e Court of Ceylon in Apponhamy v. lllangd.retute, [1964] 66 C.L.W. ·17. The Court of Appeal of Jamaica in Allen v. Byfield [No.21 [ 1964] 7 W .LR. 69 at page 71 and The Court of Session in Scotland in Glasqow C01poration v. Central Land Board, [1956) Scotland Law Time p.4. B The learned Solicitor General contended that a Cabinet sub-committee constituted under Rules of Business approved the appointment ofHarish Chander as President of CEGAT. The President accordingly appointed him. By operation of Art. 77 (3) and 74(1), the appointment was made by the President. The file constitµtes Cabinet documents forming part of the Preparation of the documents c leading to the formation of the advice tendered to the President. Noting of the officials which lead to the Cabinet note and Cabinet decision and all papers brought into existence to prepare Cabinet note are also its part. Section 123 of the Evidence Act and Article 74(2) precludes this court from enquiring 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 I') frank discussion and expression of views by the bureaucrats at higher level and by the Minister/Cabinet Sub-committee causing serious injury to public service. Therefore, Cabinet papers, Minutes of discussion by heads of departments; high level documents relating to the inner working of the government machine and ail papers concerned with the governmentpolicies belong to a class doc.uments which . in the public interest they or contents thereof must be protected against disclosure. E

The executive power of the Union vested in the President by Operation of Art. 53( 1) shall be exercised by him either directly orthrough officers subordinate to him in accordance with the Constitution. By operation of Art. 73( 1), subject to the provisions of the constitution, the executive power of the Union shall extend to the matters. with respect _to which Parliament has power to make laws. Article 75(1) provides that the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister; Art. 75(3) posits that the Council of Ministers shall be collectively responsible to the House of the People; Art. 75(4) enjoins that before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule to the Constitution. Article74(1) as amended by section 11 of the Constitution 42nd Amendment Act, 1976 with effect from January 3, 1977 postulates that there shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such .H

830 SUPREME'. COURT REPORTS [1993] 3 S.C.R.

A advice. The proviso thereto added by section 11 of the Constitution 44t\1 Amend- ment 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 accor- dance with the advice tendered after such reconsideration." Clause (2) declares that "the question whether any, and if so what, advice was tendered by Minister B to the President shall not be inquired into in any court." In Satwant Singh Sawhney v. D. Ramarathnam. Asstt. Passport Officer [1967] 3 SCR 525, and in Maganbhai IshwarbhaiPatelv. Union oflndiaandAnr. (1969] 3 SCR 254, this Court held that the Ministers are officels subordinate to the President under Art.·53 (1) or the ·Governor under Art. .154 (l),_ as the case may be.

c The President exercises his executive power under Art: 74 (1) through the Council of Ministers with the Prime fy1inister as its head who shall be collectively . responsible to the House of People. T~e exercise of the power would be as per the rules of business· for convenient transaction of the Govt. administration made under Art. 77(3), viz .. the Govt. oflndia (Transaction of Business) Rules, 1961 for D ~hort the 'Business R'Ules'. The Prime Minister shall be duty bound under Art. 78 to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation etc. · The details whereof are not material. Article 77(1) prescribes that "all executive actions of the Govt. of lndi3: shall be expressed to be taken in the name of the President and shall be authenucated in the manner specified in the Rules made by the President". The President issued business rules and has allocated diverse functions to the Council of Ministers, its committees and the officers subordinate to them.

In Shamsher Singh v. State of Punjab (1975] 1 SCR 814, a Bench of seven Judges, speaking through Ray, CJ., held that the executive power is generally described as the residue which does not fall within legislative or judical i:>ower but executive power also partakes of legislative or judici~ actions. All powers and functions of the President, except his legislative powers, are executive powers of the Union vested in the President under Art. 53(1). The President exercises his functions, except conferred on him to be exercised in his discretion, with the aid_ G 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 P.resident, 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 t]Je policies. The Council of Ministers settle the maiornolicies. The civil servant does it on behalf of the Govt. as limb of the Govt._:The dedsi~ H of any Minister or officer under the rules is the decision of the President.

· .. ~ R.K. JAIN"· UNION OF INDIA [RAMASWAM)'.."J.] 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, authen- tic 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 answerablf? for his decision to the Parliament is fanciful. c

Sir Ivor Jennings, in hi8 'Cahiner (i11rem111e11. , stated that the Cabinet is the supreme directing authority.'. It mtegrates what would otherwise be a heteroge- neous collection of authorities exercising a Val?t 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 Pdvy Council, a Minister, a statutory commission and the like. At page 81, it is stated, that the existence and activities of these co-ordinating ministers does not impair or diminish the responsibility to Parliament of the qepartmental ministers whose policies they co-ordinate. The ministers are fully accountable to , Parliament for any act of policy or administration within their departmental jurisdiction. It does not follow that the co-ordinating ministers are non-respon- sible. Having no statutory powers as co-ordinating ministers, they perform in that capacity no formal acts.But they share in the collective responsibility of the 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 submitt('.d 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 351, he stated that civil servants prepare memorandum for their Ministers. Ministers discuss in Cabinet. Proposals are qebated in the House of Commons. All the .

- persons.involved are peculiar people and nobody knows what the man in the back . street thinks of it ~ll, though the politician ?ften thinks he cioes. On the Cabinet H

832 SUPREME COURT REPORTS [1993] 3 S.C.R.

A 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 B 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 "modem 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, c 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 D 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 ~eans that much work must be done beforehand in interdepartmental discussions and in the preparation of papers for Cabinet E 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 · qecisions 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 govern- ment makes some of their decisions. Moves in this direction have begun to be taken. In his "the British Cabinet" John P. Mackintoslt, 2nd Edn. atp. 11 stated that if there is. dissension between Ministers, matters may be thrashed out in private and the contestants pleaa in tum with the Prime Minister, but it is in the Cabinet that the confli~t must be formally sol v.ed, the minority either accepting the decision and assumingjointresponsibility or, if the)'. cannot tolerate it, tender their resignations. At p.529, he stated that some decisions are taken by the PrimeMinisteralone, 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

"K.JAIK 1·. llNIONOFINDIA [RAMASWAMY.J.] 833

permanent officials. Of these bodies the Cabinet holds the central position because, though it does not often govern in that sense, it is the place where disputes are settled, where major policies are endorsed and where the balance of the forces emerge if there is disagreement. In the end, most decisions have to be reported to the Cabinet and Cabinet Minister are the only ones who have the right to complain, if they have not been informed or consulted. 0. Hood Phillips and Paul Jackson in their Constitwional and Administrative Law, 7th Ed. at p.301 stated that the duties of Cabinets are:

"(a) the final determination of the policy to be submitted to Parliament; (b) the supreme control of the national executive in accordance with the policy prescribed by the Parliament; and (c) the continuous coordination and delimitation in the interests of the several departments of State." The Cabinet, giving collective ·'advice'' to the Sovereign through the Prime Minister, was said to exercise under Parliament, supreme control over all departments of State, and to be the body which coordinate the work on the one hand of the executive and the legislature, and on the other hand of the organs of the executive among themselves .... At p.307, they stated that "conunittee system has increased theefficiency of the Cabinet, and enables a great deal more work to be done by Ministers". The Cabinet itself is left free to discuss controversial matters and to make more important decisions, and its business is better prepared. The system also enables non-Cabinet Ministers to be brought into discussions. At p.309 it is stated that "the responsibility of Ministers is both individual and collective". The individual responsibility of a Minister for the performance of his official duties is both legal and conventional: it is owed legally to the sovereign and also by convention to Parliament. Responsibility is accountability or answerability. The responsible Minister is the one under whose authority an act was done, or "who must take the constitutional consequences of what has been J, 111c either by himself or in his department".

F 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 formula,tion of p111icy. 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 hecome known, for instance talks with a foreign country or a decision not to take some G 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 forthe cabinet H

834 SUPREME COURT REPORTS [1993] 3 S.C.R.

A to secure free and frank advice. In Rai Sahib Ram Jawa~·a Kap11r & Ors. v. The State of Punjab (1955] 2 SCR 225 at 236, this Court held that the existence of the !aw 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. B It would thus be held that the Cabinet known as Council of Ministers headed by Prime Minister under Art. 75(3) is the driving and steering body responsible for the governance of the country. They enjoy the confidence of the Parliament and remain_in office so long as they maintain the confidence of the majority. They are answerable to the Parliament and accountable to people. They bear collective responsibility and shall be bound to maintain secrecy. Their executive function comprises of both the determination of the policy as well as carrying it into execution, the in,itiation of legislation, the maintenance of order, the promotion of social arid economic welfare, direction of foreign policy. In short the carrying on or s·upervision 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 t)f contracts for any purpose. In short the primary function of the Cabinet is to formulate the policies of the Govt. in confirmity with the directive principles of the Constitution for the governance of the nation; place before the Parliament for acceptance and would carry on the executive function of the State as per the provisions of the Constitution and the laws.

Collective responsibility under Art. 75(3) of the Constitution inheres main- tenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitu,tion that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his/her consideration or shall become known to him/her as Minister except as may be required for the "due discharge of his/her duty as Minister"'. The base and basic postulate of its significance is unexceptionable. But the need for and effect.of confidentiality has to be nurtured not merely from political .imperatives of c.ollective responsibility envisaged by Art. 75(3) but also from its pragmatism. G 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 ..d 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 1 discouraged and disliked .......... But a Cabinet, though it is a committee of the H legislative assembly, is a committee with a power which no assembly would-unless

R.K. JAIN v. UNJON OF INDIA !RAMASWAMY. J.] 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 A

appointed it; it is a committee with a suspensive v~to-a committee with a power of appeal.

In Commonwealth ofAustralia v. Northern Land Council & Anr. [1991] 103 Australian Law Reports, p. 267, the Federal Court of Australia - General Division, B 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 q11estion 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 c century origins of the cabinet as an inner circle of Privy Councillors, sometimes called the Ca~inetCouncil 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 defe~ce 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 aman of honour to resign. Cabinet secrecy is an essential part of the structure of government which centres of political experience have created: To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation.

By operation of Art. 75 (3) and oaths of office and of secrecy taken, the individual Minister and the Council of Ministers with the Prime Minister as its head, as executive head of the State as a unit, body or committee are individually and collectively responsible to their decisions or acts or policies and they should work in unison and harmony. They individually and collectively maintain secrecy of the deliberations both of administration and of formulating executive or legislative policies. Advice tendered by the Cabinet to the President should be unanimous. The Cabinet should stand or fall together. Therefore, the Cabinet as a whole is collectively responsible for the advice tendered to the President and for G " the conduct of business of each of his/her department. They require to maintain secrecy and confidentiality in the performance of that duty of office entrusted by the Constitution and the laws. Political promises or aims as per manifesto of the political party are necessarily broad; in their particular applications, when votec to power, may be the subject of disagreement amo_ng the members oJ the Cabinet. H.

836 SUPREME COURT REPORTS. [1993] 3 S.C.R.

A 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 oth~rs. 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 B or incompatible to his/her perceptions of commitment and find it difficult to support the decision, it would be open to him/her to resign. So the price of the acceptance of Cabinet office is the assumption of the responsibility to support Cabinet decisions. The burden of that responsibility is shared by all.

Equally every member is entitled to insist that whatever his own contribution c 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 of the whole Cabinet which made it; that he will be held responsible for maintaining secrecy of any different view which the others may have expressed. The obvious and basic fact is that as part of the machinery of the government, Cabinet secrecy is an essential part of the structure of the government. Confiden- tiality ·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 9f 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 in.terest immunity of disclosure and the oath of secrecy is thereby whether breached or whether it would be a shield for non-production of unpub-

I I R.K. JAIN"· UNION OF INDIA [RAMASWAMY. J.] 837

lished state documents or an escape rout<l to· acts impugned as fondly pleaded and A -- fervently argued by Attorney General. It is already held that on issuance of rule nisi or "discovery order nisi" every organ of the State or the authority or a person is enjoined to act in aid of this court and pursuant thereto shall be required to produce the summoned documents. But when a claim for public interest immunity has been laid for non-disclosure of the state documents, it is the Minister's "due discharge of duty" to state on oath in his affidavit the grounds on which and the reasons for B which he has been persuaded to claim public interest immunity from disclosure of the state papers and produce them. The oath of secrecy the Minister had taken does not absolve him from filing the affidavit. It is his due discharge of constitutional duty to state in the affidavit of the grounds or reasons in support of public interest immunity from producing the state documents before the Court, In Attorney General v. Jonathan Cape Ltd. [1976] Queen's Bench, 752, Lord Widgery, CJ., c 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 irl 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 secrecx 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 we~t on to point out that:-