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

"I have stressed that because, as my noble and learned friend Lord Hals bury suggested and the noble Marquis, Lord Salisbury, confirmed, Cabinet conclusions did not exist until 16 years ago. The old practice is set out in a book which bears the name of the noble Earl's father, Halsbury's Laws of F England, with which I have had the honour to be associated in the present ed.ition."

.. Then in column 532 of the speech Lord Hailsham, stated that the oath of secrecy should be maintained. "Upon matters on which it is their shorn duty to express. tht;!ir. opinions. with c_omp~ete ·frankness and to give all information, without any haunting fear that what happens may hereafter by publication create difficulties for themselves or, what is far more grave, may create complications for G

- the king and country that they are trying to serve. For those reasons I hope that the inflexible rule which has hitherto prevailed will be maintained in its integrity, and tharif there has been any relaxation or misunderstanding, of which I say nothing, H

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

.. A the debate in this House will have done something to clarify the position and restate the old rule in all its rigour and all its intlexibmty."

As a Council of Minister, his duty is to maintain the sanctity of oath and to keep discussions and information he had during its course as secret. Lord Widgery after considering the evidence of a former Minister examined in that case who did B not support the view of Lord Hailsham, held thus: "that degree of protection, afforded to cabinet papers and discussions cannot be determined by single rule of thumb. Some secrets require a high standard of protection for short time, other requires protection till a new political generation has taken over. In the Present action against the literary executors, "the perpetual injunction against them restraining from their publication was not proper". It was further held that the c draconian remedy when public interest demands it would be relaxed.

In Sankey v. Whit/an [1979) 53 Australian Law Journal Reports, 11, while considering the same question, Gibbs, A.,C.J., at p.23, held that the fact that members of the Executive Council are required to take a binding oath of secrecy D dors not assist the argument that the production of State papers cannot be compelled. The plea of privilege was negatived and the Cabinet papers were directed to be produced. The contention that the Minister is precluded to disclose in his affidavit the grounds or the reasons as to how he dealt with the matter as a part of the claim for public interest immunity is devoid of substance.

E It is already held that it is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity: He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the court may be constrained to draw such inference as are available at law. Accordingly we hold that the oath of office of F secrecy adumberated in Article 75(4) and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued. On the

- other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the court. G The next limb of the argument is that the Cabinet Sub-committee's decision is a class document and the contents of state documents required to be kept in confidence for efficient functioning of public service including candid and objective expression of the views on the opinion by the Ministers or bureaucrats etc. The prospects of later disclosure at.a at a litigation would hamper and dampen

l R.K. JAIN,._ UNION OFINDIA [RAMASWAMY. J.] 839

candour causing serious incursion into the efficacy of public service and result in deterioration in proper functioning of the public service. This blanket shielding of disclosure was disfavoured right from Robinson v. State of South Australia [1931] Appeal Cases, (P .C.), p. 704 Lord Warrington speaking for the Board held that the privilege is a narrow, one and must sparingly be exercised. This court in Raj Narain 's case considering green book, i.e., guidelines for protecting VVIPs on tour, though held to be confidential document and be wihheld from production, though part of its contents were already revealed, yet it was held that confidenti- ality itself is not a head of privilege.

In S.P. Gupta's case, Bhagwati, J ., speaking per majority, reviewing the case law and the privilege against disclosure of correspondence exchanged between the C Chief Justice of the Delhi High Court, Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addi. Judges of the Delhi High Court, which was not dissented, (but explained by Fazal Ali,J.) held that in a democracy, citizens are to know what their Govt. is doing. No democratic Govt. can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Govt. It is. D only if the people know how the Govt. is functioning and that they can fulfil their own democratic rights given to them and make the democracy a really effective participatory democracy. There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration.

Disclosure of if1formation in regard to the functioning of the Govt. must be E the rule and secrecy can be exceptionally justified only where strict requirement of public information was assumed. The approach of the court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind all the time that the disclosure also serves an important aspect of public interest. In that case the correspondence between the constitu- F tional functionaries was inspected by this court and disclosed to the opposite parties to formulate their contentions.

In Conway's case, tl.1e speech of Lord Reid is the sole votery to support the plea of confidentiality emphasising that, "the business of Govt. is difficult enough as it is no Govt. could contemplate with equanimity the inner workings of the Govt. G machine being exposed to the gazes of those ready to criticise without adequate knowledge of the background. and perhaps with some axe to grind". Other Law . Lords negated it. Lord Morris of Borth-y-Gest referred it as "being doubtful . validity". Lord Hodson thought it "impossible to justify the doctrine in its widest , term''. Lord Pearce considered that "a general blanket protection of wide classes · H

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

A led to a complete lack of common sense". Lord Upjohn found it difficult to justify the doctrine "when those in other walks oflife which give rise to equally important matters of confidence in relation to security and personal matters as in the public service can claim no such privilege". In Burmah Oil Co's. case House of Lords dealing with the cabinet discussion laid that the claim for blanket immunity "must now be treated as having little weight, if any''. It was further stated that the notion B that "any competent and conscientious public servant would be inhibited at all in the candour of his writings by consideration of the off-chance that they might have to be produced in a litigation as grotesque". The plea of impairment of public service was also held not available stating, '·nowadays the state in multifarious manifestations impinges closely upon the lives and activities of individual citizens. Where this was involved a citizen in litigation with the state or one of its c agencies, the candour argument is an u!lerly insubstantial ground for denying his access to relevant document". The candour doctrine stands in a difterent catl!gory from that aspect of public interest which in appropriate circumstances may require that the "sources and nature of information confidentially tendered" should be withheld from disclosure. In Reg v. Lewes Justices, Ex Pa rte Secretary ofStatefor D the Home Department (1973] A.C. 388 and D. V. Natio11al Socie0· for the Preve11tio11ofCrue/0·10 Children (1978] A.C. 171, are cases in point on that matter and needs no reiteration.

It would, therefore, be concluded that it would be going too far to lay down that no document in any particular class or one of the categories of cabinet papers or decisions-Or contents thereof should never, in any circumstances, be ordered to be produced. Lord Keith in Burmah Oil's case considered that it would be going too far to lay down a total protection to cabinet minutes. The learned Law Lord at p. 1134 stated that "something must tum upon the subject matter, the persons who dealt with it, and the manner in which they did so. In so far as a matter of government policy is concerned, it may be relevant to know the ex\ent to which the policy remains unfulfilled, so that its success might be prejudiced by disclosurl! of the considerations which led to it. In that context the time element enters into the equation. Details of an affair which is stale and no longer of topical significance . might be capable of disclosure without risk of damage to the public interest. .... The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level.,. Lord Scarman also objected total immunity to Cabinet documents on the plea of candour. In Air Canada's case, Lord Fraser lifted Cabinet.minutes from the total immunity to disclose, although same were H "entitled to a high degree of protection ..... "

In lonarhan Cape Lid. 's case, it was held that, "it seems that the degree of A protection afforded to Cabinet papers and discussions cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others require protection until new political generation has taken over. Lord Redcliff Committee, appointed pursuant to this decision, recommended time gap of 15 years to. withhold disclosure of the cabinet proceedings and the Govt. accepted the same. Shanfc)"S case ratio too discounted total immunity to the B Cabinet document as a class and the plea of hampering, freedom and candid advice or exchange of vi.ews and opinions was also rejectyd. It was held that the need for protection depends on the facts in each case. The object of the protection is to ensure the proper working of the Goyt. and not to shield the Ministers and servants of the crown from criticism, however, intemperate and unfairly based. Pincus J. in Harbour Corp. ofQueenslandv. Vessey Chemicals Pry Ltd. [1986] 67 ALR 100; c Wilcox J. in Manthal Australia Pty Ltd. v. Minister for indusrry, Technology and commerce [ 1987) 71 ALR 109; Koowarta v. Bjelke-Petersen [1988] and 92 FLR 104 took the same view. In Australia, the recognised rule thus is that the blanket immunity of all Cabinet documents was given a go-bye. In United States v. Richard M. Nixon [1974) 418 US 683 = 41 Lawyers Ed., 2nd Ed., 1039, a grand jury of the Unite·J States District.Court for the District of Columbia indicted named individuals, charging them with various offences, including conspiracy to defraud the United States and to obstruct justice; and Mr Nixon, the President of United States was also named as an unindicted coconspirator. The special prosecutor issued a third party subpoena duces tecum, directing the President to produce at the trial. certain tape recordings and documents relating to his conversations with aides avi advisors known as Watergate rapes. The President's executive privilege against disclosure of confidential communications was negatived holding that the right lO the production of all evidence at a crinlinal trial has constitutional dir~~nsions under sixth amendment. The fifth amendment guarantees that no pLrson shall be deprived of liberty without due process of law. It was, therefore, t,cld that it is the manifest duty of the court to vindicate those guarantees, and to accomplish that, it is essential that all relevant and admissible evidence be produced. Though the court must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibili- ties, it is an inroad on the fair administration of criminal justice. In balancing between the President's generalised interest in confidentiality and the need for relevant evidence in the litigation, civil or criminal and though the interest in preserving confidentiality is weighty indeed "and entitled to great respect."

Allowing privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process oflaw and gravely impair the basic function of the courts. A President's acknowledged need for H

A 842 SUPREME COURT REPORTS. [1993] 3 S.C.R.

confidentiality in the communications of his office is general in nature, whereas J constitutional need for production of relevant evidence in a criminal proceeding is specific, and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a crimipal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of B conversations preliminarily shown to have some bearing on the pending criminal cases. If the privilege is based on! y on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administrati-0n of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. c Exemptions were engrafted only to the evidence ·relating to "the security of the State, diplomatic relations and defence". It was held that "the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well -- temper candor with a concern for appearances and for their own interest to the detriment of the decision-making process. Whatever the nature of the privilege of D confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers, the protection of the· confi.dentiality of Presidential communications has similar constitutional underpinnings. However, neither the doctrine of separation of powers, nor the need for confidentiality of high E -level communications, without more, can sustain an absolute, unqualified Presi- · dential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim ofneed to F protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confiden- tiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. G In a clash of public interest thatharm shall be done to the nation or the public service by disclosure of certain documents and the administration of justice shall not be frustrated by withholding the document which must be produced if justice . is to be done, it is the courts duty to balance the competing interests by weighing I in scales, the effect of disclosure on the public interest or injury to administration

R.K.JAINv. UNION OF INDIA jR,\~1ASWAMY.JJ 843

of justice, ~hich would do greater harm. Some of the important considerations in A the balancing act are thus: "in the interest of national security some information which is so secret that it cannot be disclosed except to a very few for instance the state or its own spies or agents just as other counters have. Their very lives may be endangered if there is the slighest hint of what they are doing. In Mark Hosenball. R. v. Home SecretarJ. ex parte Hosenball [1977] 1 WLR 766, in the interest of national security Lord Denning, M.R. did not permit disclosure of the B

- information furnished by the s~curity service to the Home Secretary holding it highly corifiden9al. The public interest in the security of the realm was held so great that' the sources of the information must not be di.sclosed nor should the nature of the information itself be disclosed. c There is a naturil.l .temptation for people in executive position to regard the interest of the department as paramount forgetting that there is yet another greater interest to be considered, namely, the interest of justice itself. Inconvenience and justice are often not on speaking terms. No one can suppose that the executive will never be guilty of the sins c.ommon to all people. Sometimes they may do things which they ought not to do or will not do things they ought to do. The court must be alive to that possibility of the executive commiting illegality in its process, exercising its powers, reaching a decision which no reasonable authority would have reached or otherwise abuse its powers, etc. If and.when such wrongs are suffered or encountered injustice by an individual what would be the remedy? Just as shawl is not suitable for winning the cold, so also mere remedy of writ of mandamus, certiorari, etc. or such action as is warranted are not enough, unless necess·ary foundation with factual material, in support thereof, are laid. Judicial review aims to protect a citizen from such breaches of power, non-exercise of power or lack of power etc. The functionary must b~ guided by relevant and germane considerations. If the proceeding, decision or order is influenced by extraneous considerations which ought not to have been taken into account, it cannot stand and needs correction, no inatter of the nature of the statutory body or status or stature of the constitutional functionary though might have acted in good faith. Here the court in its judicial review, is not concerned wi.th the merits of the decisions, but its legality. It is, therefore, the function of the court to see that lawful authority is not abused. Every communication that passes between different departments of the Govt. or between the members of the same department inter- G se and. every order made by a Minister or Head of the Department cannot, therefore, be deemed to relate to the affairs of the state, unless it related to a matter of vital importance, the disclosure of which is likely to prejudice the interest of the state.

Confidentiality, candour and efficient public service often bear common H

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

A mask. Lord Keath in Bunnah Oil's case, observed that the notion that any" competent or conscientious public servant would be inhibited in the candour of his writings by consideration of the off-chance that they might have to be_ produced in litigation is grotesque. The possibility that it impairs the public service was also nailed. This court in S.P. Gupta's case also rejected the plea of hampering candid expression of views or opinion by constitutional functionaries and bureaucrats. In B Whit lam v. Australian Consolidated Press [1985} 60 ALR p. 7, the Supreme Court of Australia Capital territory in a suit for damages for defamation, the plaintiff, the former Prime Minister of Australia was called upon to answer certain interroga- tories to disclose discussions and words uttered at the meeting of the Cabinet or 9f the Executive Council at which the plaintiff had been present. The common- wealth intervened and claimed privilege prohibiting the plaintiffto disclose by c answering those interrogatories. The claim was based on two grounds: (i) the oath taken by the plaintiff as a member of the Executive Council; and also immunity from disclosing of the Cabinet meetings and both were public policies. It was also contended that it would be in breach of the principle of collective Cabinet responsibility. The court held that the oath taken by the plaintiff did not in itself provide a reason for refusing to answer the interrogatories whether immunity from diss;losure would be granted depends upon the balancing of two competing aspects, both of public policy, on the one hand the need to protect a public interest which might be endangered by disclosure, and on the other the need to ensure that the private rights of individual litigants are not unduly restricted. The disclosure of the meeting of the Cabinet or of the Executive Council would not be a breach of the principle of other two responsibilities. Bagehot stated, protection from disclosure is not for the purpose of shielding them from criticism, but of preventing the attribution to them of personal responsibility. It was stated that "I am not required to lay down a precise test of when an individual opinion expressed in Cabinet becomes of merely historical interest". The Cabinet minutes and minutes of discussion are a class. They might in very special circumstances be examined. F Public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case, principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual and also because of the relative unimportance of these answers to the defendant's case. Answers to interrogatories 87 (vii); (viii) and (ix) were restrained to be disclosed which relates to the members of the Council who expressed doubts as to whether the borrowing was wholly for temporary purpose and to identify such purpose. In Jonathan Cape Ltd. case, Lord Widgery CJ. held that publication of the Cabinet discussion after certain lapse of time would not inhibit free discussion.in the Cabinet of today, even though the individuals involved are the same, and the national problems have a distressing similarity with those ofa decade ago. It is difficult to say at what point the material

R.K. JAIN 1·. 1·:-;101\ OI' l'.\l>IA IRAMASW;\\1Y . .I.I 845

-=- hises its confidential dmracter. on the ground that publication will no longer undermine the doctrine of joint Cabinet responsibility. The doctrine of joint Cabinet responsibility is nc;' undermined su long as the publication would not A

.. inhibit free discussion in the Cabinet and the court decides the issue·. In Minister for Arts Heritage and Environment and Ors. v. Peko-Wallsend Ltd. and Ors. (1987 J75 ALR 218, Federal Court of Australia - General Division, the respondent had mining lease under the existing law. In I 986 the Cabinet decided that portion n of the same land covered by KNP Kakadu National Park in the Northern Territory (Stage 2) was earmarked for inclusion in the World Heritage List (tne List) which had been established under the World Heritage Convention (the Convention) and to submit to Parliament a plan of management for the national park which differed from a previous plan .. which enabled exploration and mining to take place outside c - pre-existing leases with the approval of the Governor-General''. Under the Convention on listing cuuld be made without the ··consent"' of the State party concerned. The respondents laid the proceedings to restrain the appellants from taking further steps to have Stage 2 nominated for inclusion on the list on the basis that Cabinet was bound by the rules ofnatural justice to afford them an opportunity to be heard and that it failed to de~- The Single Judge declared the action as void. D Thereafter the National Park and Wildlife rnnservation Amendment Act, 1987 came into force adding sub-s. (lA) to s. 10 of that Act which provides that "No operations for the recovery of minerals shall be carried on in Kakadu National Park''. While allowing the appeal. the full court held that the Executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from the prerogative rather than a statutory source. The decision E taken for the prerogative of the Cabinet is subject to judicial review: In Common- wealthof Australia v. Northern Land Council and Anr. [1991] 103 ALR p.267, in a suit for injunction for Northern Land Council (NLC) against the Commonwealth ,., sought production of certain documents including 126 Cabinet notebooks. A Judge of the Federal Court ordered the Commonwealth to produce the notebooks for confidential inspection on behalf of NLC. On appeal it was held that informa- F tion which may either directly or indirectly enable the party requiring them either to advance his own case or to damage the case of his advisory are necessary. The class of Cabinet papers do not afford absolute protection against disclosure and is not a basis for otherwise unqualified immunity from production. The Common- wealth cannot claim any immunity for public interest immunity from production. G The court should decide at the threshold balancing of the public interest in the administration of justice. The court does not have to be. satisfied that. as a matter or likelihood rather than mere speculation. the materials would contain evidence for tender at trial.

846 J l lJ9l J ~ S.C.R.

A In a uemocracy it is inherelllly diflicuh 10 function at high governmemal level with1Jut some degree of se1.:recy. No Minister, n1Jr a Senior Oflicer \vnuld effectively discharge his oflicial responsibilities if every d11cument prepared to formulate sensitive policy decisions or to make assessml!lll of character rolls of co- . ordinate llfficers at that level if they were to be made public. Generally asscssmem of honesty and integrity is a high responsibility. At high co-ordinate level it would 8 be a delegate one which would further get compounded when it is not hacked up with material. Seluom material will be available in sensitive areas. Reputation gathered by an officer around him would form the base. If the reports are maue k11own, or if the disclosure is routine, public interest griernusly woulu suffer. On the other hand, confidentiality would augment honest assessment to impro,·e efficiency and integrity in the officers. c ...... '

The bu.siness of the Govt., when transacted by bureaucrats, even in personal level, it would be difficult to have equanimity if the inner working of the Govt. machinery is needlessly exposed to the public. On such sensitive issues it w1rnld hamper the expression of frank and forthright views or opinions. Therefore, it may D be that at that level the deliberations and in exceptional cases that class or category of documents get protection,,in parricular, on policy matters. Therefore. the court would be willing hJ respond to the executive public interest immunity to disclose certain documents where national security or high policy, high sensitivity is involved.

E In Asiatic Perrole11111 v. An3lo-Persia11Oil19 l~K.B. 822, the court refused production or the letter concerning the Govt. plans relating to Middle Eastern campaigns of the First World was. as claimed by the Board of Admiralty. Similarly, in D1111ca11 v. Cammell Lain~l 942 A.C. 624, the House of Lords refused disclosure of the design of sub-marine. The national defence as a class needs protection in the interest ofsecurity of the State. Similarly to keep good diplomatic - F relations the state documents or l)ftkial or confidential documents between the Govt. and its agencies need immunity from production.

In Co1111cil of Civil Sen•ice Unio11 v. Min~~rerfor Civil Se1i'ici;; 1985 A.C.

374. the Govt. Communications Headquarters (GCHQ) functions were to ensure <; the security of military and official corrununications and to provide the Go\'t. \Vi th ; signals intelligence. They have to handle secret information vital to national security. The staff of GCHQ was permitted to be members of the trade union, but later on instructions were issued, with11ut prior consultation, amending the staff rules and directed them to dissociate from the trade union activities. The previous pra~·tke of pri,1r consultation before amenument was not followed. Judicial review

.-·--- ~- R.K . .li\IN 1·. llNION OF 1:\1 >IA (RAMASWAMY. J.I X47

was sought of tile amended rules ple<H.ling that failure to consull the union before amendment amounts to unfair act and summoned the records relating to it. An affida\'ic of the Cabin1·t Secretary was filed explaining the disruptive activities, the national securicy ~and the union actions designed to damage Govt. agencies. Explaining the risk of participation by the members in further disruption, the House held that e"Xecutive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law. B or prerogative, 1·dther than a statutory source, and a minister acting under a prerogative power might, depending upon its subject matter, whether under the same duty to act fairly as in the case of action under a statutory power. But, however, certain'information, on consideration of national security, was withheld and the failure of prior consultation of the trade union or its members before issue the amended instruction or amending the rules was held not infracted. c

ln Burmah Oil Co's. case. at an action by the Oil Company against the Bank for declaration that the sale of units in British Petroleum held by the company at 2.30 Pounds per unit was unconscionable and inequitable. The oil company sought production of the cabinet decision and 62 documents in possession and control of D the bank. The state claimed privilege on the basis of the certificate issued by the Minister. House of Lords per majority directed to disclose certain documents which were necessary to dispose of the case fairly. Lord Scarman laid .that they were relevant, but their significance was not such as to override the public interest objections to their production. Lords Wilberforce dissented and held that public interest demands protection of them. E

In The Australian Co11111111nis1 Party & Ors. v. Commonwealth & Ors. [I 950- 51] 83 C .LR. p. l, at p.179, Dixon, J. while considering the claim of secrecy and non-availability of the proclamation or declaration of the Governor General in Council based on the advice tendered hy the Minister rejected the privilege and F held that the court would go into the question whether the satisfaction reached by the Governor General in Council was justified. The court has gone into the question of competence to dissolve a voluntary or corporate association i.e. Communist Party as unlawful within the meaning of Sec. 5(2) of the Constitutional Law of the Commonwealth. In The Queen v. Toohey [ 1982-83] 15 I C.L.R. 170, the Northern Territory (Self-Government) Act, l 978 provides appl1intment of an G Administrator to exercise and perform the functions conferred under the Act. The Town Planning Act, 1979 regulates the area of land to be treated as tl)Wns. The Commissioner exercising powers under the' Act held that part of the peninsula specified in the schedule was not available for town Planning Act. When it was challenged. there was a change in the law and the Minister filed an affidavit H

848 Sl_!PREME COURT REPORTS [1993] 3 S.C.R.

A claiming the pri\'ilcge of certain documents stating that with a view to preserve the land to the original, the Govt. ha\'c decided to treat that the land will continue to be held by or on behalf of the originals. Gibbs, C.J. held that under modem conditions, a responsible Govt., Parliament could not always be relied on to check excesses of power by the Crown or its Ministers. The court could ensure that the statutory power is exercised only for the purpose it is granted. The secrecy of the 8 counsel of the Crown is by no means complete and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to see why it should not be acted upon. It was concluded thus: "In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has . --- been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If the statutory power is granted to the Crown for one c purpose, it is clear that it is not lawfully exercised if it is used for another. The courts ha\'e the power and duty to ensure that statutory powers are exercised only in accordance with law".

The factors.to decide the "public interest immunity would include" (a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, where the public interest immunity for the class is said to protect; (c) the extent to which th.e interests referred to have become attenuated by the passage of time or the occurrence of intervening events since.the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought; (e) the likelihood that production of the documents will affect the outcome of the case; (f) the likelihood of injustice if the documents are not produced. In President Nixon's case, the Supreme Court of the United States held that it is the court's duty to construe and delineate claims arising under express powers, to interpret claims with respect to powers alleged to derive from enumerated powers of the Constitution. In deciding whether the matter has in any measure been committed by the Constitution to another branch of goven-i""ment, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is the responsibility of the court as ultimate interpreter of the Constitution. Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The separation of powers given in the Constitution were not intended to operate with absolute independence when essential criminal statute would upset the constitutional balance of ··a workable government" and gravely impair the role of the courts under Art. Ill. The very H - integrity of the judicial system and public confidence in the system depend on full

R.K. JAIN I'. llN!ON OI' l:-ID!A [RM\'IASWAMY. J.J 849

- disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process he available for the production of needed evidence.

The afore discussion lead to the following conclusions. The President while exercising the Executive power under Art.73 read with Art. 53, discharges such of those powers which arc exclusively conferred to his individual discretion like appointing the Prime Minister under Art. 75 which are not open to judicial review. The President exercises his power with the aid and advice of the Council of Ministers with the Prime Minister at the head under Art. 74 ( 1). They exercise the power not as his delegates but as officers subordinate to him by constitutional mechanism envisaged under Art. 77 and express in the name of President as per c Rules of Business made under Art.77(3). They bear two different facets (i) the President exercise his power on the aid and advice; (ii) the individual minister or Council or Minister with the Prime Minister at the head discharge the functions without reference to the President. Undoubtedly the Prime Minister is enjoined under Art. 78 to communicate to the President all decisions of the Council of Minister relating to the administration of the affairs of the Union and proposals for legislation and to furnish such information relating to the administration or reconsideration by the Council of Ministers if the President so requires and submit its decisions thereafter to the President. That by itself is not conclusive and does not get blanket public interest immunity from disclosure. The Council of Ministers though shall be collectively responsible to the House of the People, their acts are subject to the Constitution; Rule of law and judicial review are parts of the scheme of the Constitution as basic structure and judicial review is entrusted to this Court (High Court under Art.226). When public interest immunity against disclosure of the state documents in the transaction of business by Council of Ministers of the affairs of State is made, in the clash of those interests, it is the right and duty of the court to weigh the balance in the scales that the harm shall not be done to the nation

- or the public service and equally oflhe administfation of justice. Each case must be considered on it~ backdrop. The PresidenJ has no implied authority under the Constitution to withhold the documents. On the other hand it is his solenm constitutional duty to act in aid of the court to effectuate judicial review. The F

.Cabinet as a narrow centre of the national affairs must be in a possession of all relevant information which is secret or confidential. At the cost of repetition it is G reiterated that information relating to national security, diplomatic relations, internal security or sensitive diplomatic correspondence per se are class docu- ments and that public interest demands total immunity from disclosure. Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc. The maxim Salus Popules Cast Supreme Lax which means that regard H

850 Sl.1PREME COURT REPORTS (1993(3S.C.R. ~- A for public we.lfare is the highest Jaw, is the basic postulate for this immunity. Political decisions like declaration of emergency under An. 356 im:: n1Jt open to judicial review but it is for the electorate at the polls to decidi.: thi.: executive wisdom. In other' areas every communication which preceded from one officer of the State to another or the officers inter se does not necessarily per-se relate. to the affairs of the State. Whether they so relate has got to be determined by reference n to the nature of the consideration, the level at which it was considered, the contents of the document or c_lass to which it relates to and their indelihle impact on public administration or public service and administration of justice itself. Article 74(2) is not a total bar for production of the records. Only the actual advice tendered by the Ministeror Council or Ministers to the President and the question whether any, and if so. what advice was tendered by the Minister or Council of Ministers to the c President. shall not be enquired into by the court. In other words the bar of judicial review is confined to the factum of advice. its extent, ambit and scope but not the record i.e. the material on which the advice is founded. In S.P. Gupta's case this court held that only the actual advice tendered to the President is immuncd from enquiry arid the immunity does not extend to other documents or records which form part of the advice tendered to the President.

there is discernible modern trends towards more open government than was prevalent in the past. ln its judicial review the court would adopt in camera procedure to inspect the record and evaluate the balancing act between the competing public interest and administration of justice. It is equally the paramount consideration that justice should not only be done but also would be publicly recognised as having been done. Under m1idern conditions of responsible go\'ern- ment, Parliament should not always be relied on a5 a check on excess of power by

F the Council of Ministers or Minister. Though the court would not substitute its views to that of the executive on matters of policy, it is its undoubted power and duty to see that the executive exercises its power only for the purpose for which it is granted. Secrecy of the ad\'iCe or opinion is by no means conclusive. Candour. - frankness and confidentiality though arc integral facets of the conunon genus i.e. efficient governmental fuctioning. per se by no means conclusive but be kept in view in weighing the balancing act. Decided cases show that power often wa<; exercised in excess thereof or for an ulterior purpose etc. Sometimes the public ser\'ice reasons will be decisive of the issue, but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the documents was not to be disclosed, and the like! y injury to the cause of justice must also be assessed and weighed. Its weight will very according to the nature of the proceedings in which disclosure is sought, level at which the matter was c1msidcred; the subject matter of consideration; the

_ R.K . .IAI\ 1·. t\10\ <ll· 1\DIA IRAMAS\\'i\MY . .I.I 851

rclc\·ancc Ill° the cl11cuments ancl the degree oflikelihood that the document will ;~e A pf imp1irtance in the litigation. In striking the halarn.:e. the court may always. if it thinks it necessary. itself inspect the clocuments. It is. therefore the constitutional. legitimate and lawful power and duty of this court to ensure that powers, constitutional, statutory or executive are exercised in accordance with the consti- tutiun and the law. This may demand, though no doubt only in limited numherof

- cases. yet the inner workings of government may be expllsed to public gaze. The B contcnth1ns of Atti>rncy <icneral and Solicitor General that the inner wmkings of the gO\·ernmcnt wlluld he exposed to public gaze. and that some one who would rcga;J this as an nccasion with1rnt sufficient material to ill-informed criticism is nil hmger rclenmt. Criticism calculated to improve the nature of that \>;\)rking as affecting the indi\'idual citizen is welcome. c In so far as unpublished go\'ernmcnt policy is concerned, it may be rele\'ant

- tu knuw the extent to which the policy remains unfulfilled, so that its success might he prejudiced by disclosure Mt he considerations which led to it. ln that context the time clement becomes relernnts, Details of affairs which are stale and no longer M significance might be capable of disclosure without risk of damage to the public 1J interest. But depending on the nature of the litigation and the apparent importance tn it or the dw.;uments in question may in extreme case demand production even llf the most sensitive c11mmunications at the highest level for in camera inspection. Ead1 case must be considered on its backdrop. President has no implied authority to withhold the document. On the other hand it is his solemn constitutilmal duty to act in aid l)f the court to effectuate judicial review. The Cabinet as a narrow E centre of the national affairs must be in possession of all relevant information which is secret ur confidential. Decided cases on comparable jurisdiction referred lll earlier did held th<it the executive has no blanket immunity to withhold cabinet pmcccdings or decisions. We. therefore. hold that the communication decisions 1Jr policy to the President under Art. 74( I) gives only protection by An. 74(2) of F

- Judichtl review of the actual advice tendered to the President of India. The rest 1if the file and all the records funning part thereof are open to in camera inspection by this court. Each case must he considered on its llwn facts and surrounding scenario and decision taken thereon.

In .f)·oti Prakash Mitter,._ Chief.I 11.l'lire Calcutta High Court [ 1965] 2 SCR G

53. the question was whether the President exercised the powers under Art. 217<3) or the Constitutilm was his discretionary one or acts with the aid and ad\'ice of Council or Ministers. The Constitution Bench held that the dispute as he decided by the Presitknt. The satisfaction on the correctness of the age is that of the President. Thcrcli.>re. !he matter has to be placed before the President. The . H

852 Sl'l'Rl.'.\ff COliRT REPORTS {1993] 1 S.C.R.

A President has to give an oppnrlunily to the Judge lo place his version. hcfon: the Piesidelll considers and decides the age or the Judge. Accordingly il wou Id he lhe personal satisfaclilln or the President am! not that llr the Counci I or Ministers. In the latter judgment sequential ll> this judgment in Union cf India v . .fyo1i Prakash 1197I13 SCR 483], it was held that the mere fact that the President was assisted hy the machinery or I 101111: Affairs Ministry in serving notices llr receiving B communications addressed tll lhe learned Judge cannut lead to an inference that he was guided h_Y the Ministry in arriving al his decisilln. Tht.}nrcler thllugh was suhject to judicial review. this C1)Urt upheld the decisinn ur the President. In this c1111lext it was held that the orders or the President, even thuugh made l1nal can he - set aside hy the Cnurt in an apprnpriate case though the Court will nut sit in appeal nver order ancl will nnt suhstitutc its nwn 1>1)ini1rn to that or the President h.v c weighing the evidence placed before the President.

The third categury of case. namely the dedsiL'n taken at the level l)f the Ministery nr hy the auth1>ris(•d Secretary at the Secretarial level though expressed ... in the name or the President is lll't immunecl rrnm judicial scrutiny and arc to he pnidm:cd and inspected hy lhc ci>urt. Ir puhlic interest immunity under Art. 74(2) 11r Sec. 123 of I :vidence Act is claimed. the cuurt would tirst consider il in camera and decide the issue as indicated atiove. The immun~y must 11\1~ be claimed nn aclministrative niutc and it must he fur valid. rell'vant and strnng grounds or reasons stated in the affidavit filecl in that behalf. Having perused the me and given uur anxious considcratinns. we arc 1)f the view that 11n the facts of the case and in the light l)f the view we have taken. it is nut necessary l\l disclnsc the C\llltems of the records to the petitioner or his counsel.

The first schedule 11f the business rules provide constitution llf Cahinet Standing rnmmittces with the function specified therein. Item 2 is ··cahinct Committee on appnintmcnts ... which is empowered Ill consider in item I all recommendations and to take decisiuns on appointments specified in the Annexurc to the First Schedule. Therein underthc residuary heading 'all other appointments" itcm 4 prnvicles that all nther appuintments wl1ich are made by the (ill\"l. of India 11r whkh required the appruval nf the (iuvt. pf India carrying a salary cxl"luding all1 iwances or a maxi mum salary cxclucling allowances. llf rhJt less than Rs.5,3t l( l <_; require the apJml\·;il of tire Cabinet Sutt-Committee. As per item 37 nr the Third Schedule reacl with Ruic x.,Jf the husincss Rules it shall he submitted h> the Prime Minister ror appointment.

Mr. I larish <'hander was app11intcd as .Judicial l'vlcmher1m Oct_oher 2'J. 1982. H I k \\'as. later 1111. app1 1 int~d 1m January I:'. I '>'JI as Seniur Vice President ,,f

l l\"1 >I.\

- R.K. JAIN 1·. UNI01''0I' IRAllL\SWA\IY . .I.I 853

<'EGAT. Arter the uirections were issued hy this Cllurt, he was appointed as the A !'resident. Mr. Jain assailed the ''alidity llf his appointment on diverse grounds. It was pleaued and Sri Thakur, his learned seninr rnunscl, argued that as per the c1Hl\-cnUon, a sitting or a retired judge or the I ligh C1)urt should have heen appointed as President of the CEGAT in consultation with the Chief Justice of India and Barish Chander lrns hcen appoinleu in uisrcgaru oflhe express direction~ or this Court. It was, therefore, C(Jnlended that it was in hreach of the judicial order n passed hy this Court under Art.32. Secondly it was contended that hefore the Act was made. a posili\'C rnmmitment was made lime and again by the Govt. on the lluur tJf the! louse that juuidal indepemlence of CEGAT is sine q11a 11011 to sustain the nmfiucnce u( the litigant puhlic. The appllintment of any person nther than silting or a retired judge llf the High Cnurt as President would be in its hreach. ln its supp1irt it was dteu lhe instance 11f l\'1r. Kalyansunuaram as being the senillr c must memher. his claim should ha\'e heen rnnsiclered hefore Harish Chander was appninted. Sri Thakur further argued that when recommendations of Harish <'hander fl1r appointment as a Judge of the Delhi HighCnurt was turned down by the ( 'hicf Justice of India d.lluhting his integrity, the appointment of such person nf d1rnhtful integrity as President \V1rnld ernde the independence of the judiciary and undermine the cnnlldcnce uf the litigant puhlic in the efficacy of judicial adjudication. cvcn thnugh the rules may permit such an appuintment. The rules arc 11/rra 1·ires of the hash: structure, namely, independence uf the judiciary. Sri Thakur, to elahnrale these conditions. sought permission to peruse the reCt)rd.

Sri Venugopal. the learned Senior Counsel for Harish Chander argued that his client being the senior Vice President was validly appointed as President oflhe CEGET. Harish Chander has an excellent and impeccable record of service without any adverse remarks. His recommendation for appllintment as a judge uf the Delhi I ligh C\1un, was "apparently drupped" which would not be construed to he ad\'erse tu Harish Chanderc On behalf 1)f Central Govt. ii was admitted in the ct1umer affidavit that since rules dl1 11l1t envisage.._ consultation with the Chief F Justice,. c1rnsultatio11 was nut dune. lt was argued that the Govt. have prerogative ( tn appuint any member. 1J1·· Vice Chairman or Senior Vice President as President nf CEGA T. Harish Chander heing the senior Vice-President, his case was cll!lsidcred and was rcrnru1111.·.ndctl.hy llw Cabinet suh Commiltee for appoint- ment. Accordingly he \Vas appointed. G

Under section 129 uf the Customs Act 52 of 1962 for short 'the Act'. the Central G11\'l. shall constitute the CECiAT consisting of as many judicial and technical memhers as it thinks lit to exercise the powers and discharge the functitm~ L'l111ferrcd hy lllL' Act. Subjet.'t t11 making the statement llf the case fllr 11

854 St'PRE~IE COl_'RT REPORTS 11'1'1~( 3 S.C.R. J A dedsion on any question 11r law arising out of 1mlcrs ill' the Cl:( iAT hy the High Court under secthin 130: t11 resol\'e conllicl of uecisions hy this Court unckr section I 30A. the 11rdcrs or t11c <'EGAT. by opcratil1n of sub-secthm (4) of Section I 29B ... shall he linar·. Tile PrcsidentofCEGAT is the c1mtrolling auth1)rity as well as Presiding authority llf the tribunals constituted at different places. Constitution of the CEGA T came to be made pursuant lo the 5th Schedule of the Finance Act B 2 of 1980 with effect rmm Octl ihcr 11. 1982. The President of India exercising the power under prn\'is11 H' Ari. 309 of the Constituli1m made the Rules~ Ruic 2fc) defined .. member.. means a member of the Tribunal and unless the context otherwise requires. includes the President, the Seni11r Vice President. a Vice President. a judidal memher and a technical mcmbt:r: 2f d) ddint:s .. President .. means the President of the Trihunal. Ruh.: 6 prescribes Mcthlld 11f Recruitment. c I Jnder Sub-rule (I) thereof for the purp11se of reauitment to the p11st of member. there shall be a Selectinn Cnmmiuee consisting of - (i) a judge nf the Supreme Court of India as nominated by the Chief Justice uf India to preside over as Chairman; (ii) the Secretary to the G1J\'t. of India in the Ministry 11f finance .... <Department ofRe\'enue); (iii) the Secretary t11 the Go\'t. of India in the Ministry D of Law (Department nf Legal Affairs): (iv) the President: (v) such 11ther persons. not exceeding two. as the Central Govt. may nominate.

Sub-Ruic (4) - Subject Ill the pro\'isions of Section IO, the Central Govt. shall, after taking into considerarion the recommendatim1s of the Selection Committee, make a list of pers1rns selected for appointment as memhl.!rs. Ruic I 0 E provides thus : (I) The Cemra/ Gm·/. shall appoim one cf tile members to be the Pres idem.

(2) Notwithstanding anything contained in rule (1, a sitting or retired judge of a High Cnurt may also he appointed hy the Central Go\'ernment as a memhcr and President simultaneously. F

(3) Where a memher (other than a sitting or retired judge of a High C11urt) is appointed as President, he shall hold the office l)f the President for a perind of three years or till he attains the age of 62 years, whichever is earlier.

G (4) Where a ser\'ing judge of a 1ligh Cl1urt is appointl.!d as a member and President. he shall hold office as President for a period 11f three yl.!ars from the date ,>f his appointment or till he attains thl.! age of 62 years. whichever is earlier.

a Prcwi(1ed that where a retired judge of I ligh Court above the age of 62 years H is appointed as President. he shall h11ld office for such period not exceeding three

R.K. JAi'\; r. 1.'.\"fO:\ 01' l:\llf..\ !RAMASWAMY . .I.I 855

years as may he determined by the Central Govt. At _the time of appointment or re- A / appointment. The Jha Commiuee in its report in para 16(22) recommended to constitute an independent Tribunal for excise or customs taking away the appellate powers from the Board. The Administrative Inquiry Committee in its report 1958- 59 in para 4.15 also recommended that every effort should be made to enhance the prestige of the appellate tribunal in the eyes of the public which could be achieved by the appointment of a High Court Judge as the President. They, therefore, B

--- recommended to appoint the serving or retired High Court Judge as President of the Tribunal for a fixed tenure. In Union of India v. Pares laminates Pvt. Ltd. [1990)49 ELT 322 (Supreme Court), this Court held thatGEGATis a judicial body 0

and functions as court within the limits of its jurisdiction. As a fact the Minister time and again during the debates when the Bill was under discussion assured both ...... the Houses of Parliament that the CEGAT would be a judicial body presided over c by a High Court Judge. In Kesltwanand Bharti v. Union ofIndia [1973) Supp. SCR I, Mathew and Chandrachud, JJ. held that rule of law and judicial review are basic features of the Constitution. It was reiterated in Waman Rao v. Union of India [ 1980) 3 SCC 587, As per directions therein the Constitution Bench reiterated in Sri Ragltunat/Jrao Ganpatrao v. Union of India [1993) I SCALE 363. In Krishna D Swami v. Union ofIndia [1992) 4 SCC 605 at 649 para 66 one ofus (K.R.S.,J .) held that judicial review is the touchstone and repository of the supreme law of the land. Rule oflaw as basic feature permeates .the entire constitutional structure Indepen- dence of Judiciary is sine quo non for the efficacy of the rule of law. This court is the final arbiter of the interpretation of the constitution and the law. E In S.P. Sampat Kumarv. Union o,fIndia & Ors. [1987) l SCR435. this Court held that the primary duty of the judiciary is to interpret the Constitution and the laws and· this would preeminently be a matter fit to be decided by the judiciary, as judiciary alone would be possessed of expertise in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory, }<' if it were left to the executive to determine the legality of its own action. The Constitution ha5, therefore created an independent machinery i.e. judiciary to resolve the disputes which is vested with the powerof judicialreview to determine the legality of the legislative and executive actions and to ensure compliance with the requirements of law on the part of the executive and other authorities. This func;lion is discharged by tl}e juqiciary by exercising the power of judicial review G which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law

- would become a teasing illusion and a promise of unreality. The judicial review, therefore. is a basic and essential feature of the Constitution and it cannot be H

856 SUPREME COURT REPORTS [1993J 3 S.C.R.

A abrogated without affecting the basic structure of the Constitution. The basic and essential feature ofjudicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution and to provide alternative institutional mechanism or arrangement for judicial review. provided it is no less efficacious than the High Court. It must, therefore, be read as implicit in the constitutional scheme that the law excluding the jurisdiction of the High Court B under Arts. 226 and 227 permissible under it, must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective apd efficacious in exercising the power of judicial review. The Tribunal set up under the Administrative - Tribunal Act, 1985 was required to interpret and apply Arts. 14, 15, 16 and 311 in quite an large number of cases. Therefore, the personnel manning the administra- c tive tribunal in their determinations not only require judicial approach but.also knowledge and expertise in that particular branch of constitutional and adminis- trative law. The eflicacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the D Administrative Tribunal. Therefore. it was held that the appropriate rule should be made tu recruit the members; and consult the Chief Justice of India in recommend- . / ing appointment of the Chairman, Vice-Chairman and Members of the Tribunal and to constitute a committee presided over by judge of the Supreme Court to recruit the members for appointment. In M.B. Majwndar v. Union of India [ l 990] 3 SCR 946, when the members of CAT claimed parity of pay and superannuation E as is available lo the Judges of the High Court. this court held that they are not on par with the judges but a separate mechanism created for their appointment pursuant to Art. 323-A of the Constitution. Therefore, what wa'i meant by this court in Sampath Kum!lf·s ration is that the Tribunals when exercise the power and function, the Act created institutional alternative mechanism or authority to adjudicate the service disputations. It must be effective and efficacious to exercise 1< the power of judicial review. This court did not appear to have meant that the Tribunals are substitutes of the High Court under Arts. 226 and 227 of the Constitution. J.B. dwpra v. Union ofIndia [1987] l SCC 422. merely followed the ratio of Sampath Kumar.

G The Tribunals set up under Arts. 323A and 3238 of the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the High Court or parity or as substitutes. However, the personnel

- appointed to hold those offices under the State are called upon to discharge judicial H or quasi-judicial powers. So they must have judicial approach and also knowledge

.._ R.K . .IA!."' 1·. I INION OF INDIA !RAMASWAMY . .I.)

and expertise in thal particular branch of constitutional, administrative and tax 857

A laws. The legal input would undcniabl y be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions oflaw which baffle the minds of even trained judges in the High B Court and Supreme Court would arise for discussion and decision.

In Union of India v. Sankal Chand Himatlal Sheth & Anr. [I 978] I SCR 423 at 442, this court at p. 463 laid emphasis that, "independence of the judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great judges in the past. In England too, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise.'' At page 47 I it was further held that if the beacon of the judiciary is to remain bright, court must be above reproach, free from coercion and from political influence. At page 491 it was held that the independence of the judiciary is itself a necessitous desiderat11111 of public interest and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as not to militate seriously against the free flow of public justice. Such a balanced blend is the happy solution of a delicate, complex, subtle, yet challenging issue which bears on human rights and human justice. The nature of the judicial process is such that under coercive winds the flame of justice flickers, faints and fades. The true judge is one who should be beyond purchase by threat or temptation, popularity or prospects. To float with the tide is easy. to counter the counterfeit current is uneasy and yet the Judge must be ready for it. By ordinary obligation for written reasoning, by the moral fibre of hi~ peers and elevating tradition of his profession, the judge develops a stream of tendency to function 'without fear or favour, affection or ill-will', taking care, of course, to outgrow his prejudices and weaknesses, to read the eternal verities and enduring values and to project and promote the economic, political and social philosophy of the Constitution to uphold which his oath enjoins him. In Krislmaswami's case in para67 at p. 650, it was observed that "to keep the stream G of justice clean and pure the judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of rule of law and the working of the constitution itself.

In Krishna Sahai & Ors. v. Stateof U.P. & Ors. [1990] 2 SCC 673, this court H

858 St'PRE~1E COl 'RT REPORTS 1199~13 S.C.R.

A emphasised its need in constituting the U.P. Service Tribunal that... it would he appropriate for the State of I.1ttar Pradesh to change it manning and a suflicient number of people qualified in law should be on the Tribunal to ensurl! adequate dispensation of justice and to maintain judicial temper in the functioning of the Tri~unal''. In Rajendra Singh Yadav & Ors v. State of U.P. & Ors. [ 19901 2 SCC 7<'3, it was further reiterated that the Services Tribunal mostly consist of Admin- . n istrati\"C Officers and the judicial element in the manning part of the Tribunal is very small. The disputes require juuicial handling and the adjudication being essentially judicial in character it is necessary that adequate numbcrofjudges of the appropriate level should man the Ser\"ices Tribunals. This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunals and the institution as well would command the requisite confidence of c the di~putants. In S/Jri Kumar Padma Prasad v. Union of India & Ors. 11992.1 2 SCC 428. this court emphasised that, "Needless to say that the independence. efficiency and integrity of the judiciary can only he maintained by sclec.ting thi:: best persons in accordance with the procedure provided under the Constitution. The objectives enshrined in the constitution cannot be achieved unless the functionaries accountable for making appl)intments act with meticulous care and utmost responsibility".

In a democracy governed by rule oflaw surely the only acceptable repository of absolute discretion should he the couns. Judicial is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. It cannot be dispensed with by creating tribunal under An.323Aand323B of the Constitution. Any institutional mechanism or authority in negation of judicial review is destructive of basic structure. So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High court, it is consistent \Vith constitutional scheme. The faith of the people is the bed-rock on which the edifice of judicial review and efl1cacy of the adjudication are founded. The F alternative arrangement must, therefore, be effective and efficient. For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the intluence or pressure from the Govt. To maintain independence and imperativity it is necessary that the personnel should have at least modicum of legal training. learning and experience. Selection of competent and proper people instill people's faith and trust in the office and help to build up reputation and acceptability. Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured. Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustil:c. Therefore. functional fitness,

;~ ~< J,\I'.\ '"I \10\ Ol l'llL\ IR.-\\1.-\S\\'A\IY ..I.I_ 859

experience at thl! Bar and aptiludinal ~1pproach lift! lundamcntal for eflicient judicial adjuJil:ati1111. Tht!n 1mly as a repL1silory of thl! c1mfidence. as its duty. the tribunal w1ll1ld properly and eflicil!ntly interpret the law and apply the law to the . given set of facts. Absence thereof would be repugnant or derogatory to the constitution.

The daily practice in the courts not only gives training to Advocates to H iiMITT!'<'t the rules hut alsn ad11pt the conventions of courts. In built experience wnuld play vital n1le in the administration of justice arid strengthen and develop the qualities, or intellect and character, f1)rbearance and patience, temper and resilience which life very important in the practicl! of law. Practising Advocates from the Bar generally do endow with those qualities to discharge judicial functions. Spedalised nature of work gives them added advantage and gives benefit to broaden the perspectives. "Juclges" by David Pannick ( 1987 Edition), at page 50. stated that...we would not allow a man to perform a surgical operation without a thomugh training and certitication of fitness. Why not require as much of a trial judge who daily operates on the lives and fortunes of others". This could b-.:o sccureu with the initial training given at the Bar and later experience in judicial adjudication. Nn-one should expect expertise in such a vast range of subjects. but familiarity with the basic terminology and concept coupled with knowledge of trends is essential. A premature approach would hinder the effective performance of judicial functions. Law is a serious matter to be left exclusivt!ly to the judges. because judges necessarily have an important role tu play in making and applying the law There is every reason fi:>r ensuring that their selection, training and workir..'! practice facilitate them to render their ability to decide the cases wisely on behalf of the community. If judges acts in injudicious manner. it would often lead ~v miscarriage of justice and a brooding sense of injustice rankles in an agr,~1eved person.

• F The CEGA Tis a creature of the statute. yet intendco to have all the !lavour ofjudktial dispensation hy independent members and President. Sri Justice Y.V. Chandrachud. Chief Justice of India. in his letter dated October 5. 1982 stated that "Govt. had Created a healthy convention of providing that the Tribunals will be headed by a President who will be a silting or a retired judge of the High Court. Added to that is the fact that selection of the members of the Tribunal is made by G a Committee headed by a Judge of the Supreme Court... I am sure that the Tribunal will acquire higher reputation in the matter of its decision and that the litigants would look upon it as an independent forum to which they can turn in trust and confidence". This coun to chmgatc the above objective directed the Govt. to show whl.!ther the convention is heing followed in appointment of the President of H

860 Sl.'PRBIE cot:1rr REPORTS I 1993] 1 S.C.R. j A CEGAT and further directed to consider appointment of a. Sr. Judge or a retired Chid.lustil:e llf thc l ligh <'ourt as its !'resident. Admittedly. Chief Justice of India was not consulted before appointing Sri Barish Chander as President. Several affidavits tiled on behalf of the Govt. do not also hear out whether the directions issued hy this court were eYen brought to the notice of the Hon 'ble Prime Minister before finalising the appointment or Sri Barish Cham1er. The solemn assurance B given to the Parliament that the Tribunal bears a judicious hlcnd hy appointrnent 01· a High Court Judge as President was given a go-bye. While making statutllry rules the executive appears to ha\'e made the appoilllment of a sitting or retired High CourtJudge as President unattractive arid directory frustrating the legislative animation. A sitting Judge when is entitled to continut; in his office upto 62 years would he be willing to llpt to serve as President, if his superannuation as President c is conterminous with 62 years. He would he attracted only if he is given extended three years more tenure after his superannuation. But Rule I 0(3) says that the total period of the tenure of the President by a sitting orretired judge is .. a period of three years or ti II he attains the age of 62 years, whichever is earl id', i.e. coterminus with superannuation as a Judge uf the High Court. The proviso is only discretionary at D the whim of the executive depleting independence and as an exception to the rul_e. Thereby practically the spirit of the Act, the solemn assurance given by the Govt. to the Parliament kindling hupe in the litigant public to have a sitting or a retired judge appointed as President has been frustrated deflecting the appointment of a judicially trained judge to exercise judicial review. We are constrained lo observe that the rules, though statutory, were so made as to defeat the object of the Act. The E question then is: can and if yes, whether this court would interfere with the appointment made of Harish Chander as President following the existing rules.

Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to he made or the procedure adopted whether fair, just and reasonable. Exercise of F judicial review is to protect the citizen from the abuse of the power etc. by an appropriate Govt. or department etc. In our considered view granitic the compli- ance of the above power or appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office ~s a G Memberor Vice-President or President of a Tribunal. we cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf. In Sri Kumar .l'rtt\<11/\ casl' K.N. Srivastava, M.J.S., Legal Remembrance. Secretary to Law and Justice. Ciovt. of Mozoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art. 217 or the Constitution, namely, that he was not a District H Judge for 10 years in State Higher Judicial Service. which is a mandatory

R.K. JAIN v. UNION OF INDIA [RAMASWAMY . .I.] 861

requirement for a valid appointment. Therefore, this Court declared that he was not A qualified to be appointed as aJ udge of the High Court and quashed his appointment according! y. The facts therein are clearly glaring and so the ratio is distinguishable.

Sri Harish Chander, admittedly was the Sr. Vice President at the relevant time. The contention of Sri Thakur of the need to evaluate the comparative merits uf Mr. Harish Chander and Mr. Kalyansundaram a senior most Member for appointment as President would not be gone into in a public interest litigation. Only in a proceedings initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo-warranto. In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus stand ii to c canvass the legalityorcorrectnessoftheaction. Only public law declaration would be made at the behest of the petitioner. a public spirited person.

But this conclusion does not give quietus at the journey's end. There are persistent allegations against mal-functioning of the CEGA T and against Harish Chander himself. Though we exercised self-restraint to assume the role of an D Investigator to charter out the ills surfaced, suffice to say that the union Govt. cannot turn a blind eye to the persistent public demands and we direct to swing into action, an indepth enquiry made expeditiously by an officer or team of officers to control the mal-functioning of the institution. It is expedient that the Govt. should immediately take action in the matter and have fresh look. It is also expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be E the President. The rules need amendment immediately. A report on tbe actions taken in this behalf be submitted to this court.

Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial reviews. The F Judicial review and remedy are fundamental rights of the citizens. The dispensa- tion of justice by the tribunals is much to be desired. We are not doubting the ability of the members or Vice-Chairmen (non-Judges) who may be experts in their regular service. But judicial adjudication is a special process and would efficiently be administered by advocate Judges. The remedy of appeal by special leave under Art. 136 to this Court also proves to be costly and prohibitive and far-flung distance G too is working as constant constraint to litigant public who could ill afford to reach this court. An appeal to a Bench of two Judges of the respective High Courts over the orders of the tribunals within its territorial jurisdiction on questions of law would as usage a growing feeling ofinjustice of those who can ill effort to approach the Supreme Court. Equally the need for recruitment of members of the Bar to man H

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

A the Tribunals as well as the working system by the tribunals need fresh look and regular monitoring is necessary. An expert body like the Law Commission of India would make an in depth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income-tax Appellate Tribunal and to make appropriate urgent recotrim.endations to the Govt. oflndia who shq__uld take remedial steps by an appropriate legislation to overcome B the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious, inexpensive and satisfactory.

The writ petitions are disposed of with the above direction, but in the circumstances with no order as to costs.

T.N.A. Petitions disposed of.