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PETITIONER: R.K. JAIN

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/05/1993

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1993 AIR 1769            1993 SCR  (3) 802  1993 SCC  (4) 119        JT 1993 (3)   297  1993 SCALE  (2)843

ACT: % Customs  Excise and Gold Control Appellate Tribunal  Members (Recruitment  and Conditions of Service) Rules, 1987:  Rules 2c,3,6,  10.-CEGAT-President-Appointment of- Appointment  of senior Vice-President as President-Legality and validity  of -Appointment held valid but need for appointing a sitting or retired  High Court Judge as President  emphasised-Need  for amendment of Rule 10(4) emphasised. CEGAT-Writ in public interest-Allegation of  mal-functioning in  CEGAT-Examination  of allegation by a  high  level  team directed. Indian Evidence Act, 1872: Sections 123, 124 and 162.  State Documents-Right   of  Government  to  claim  immunity   from disclosure-Scope  of-Claimfor immunity, should be  supported by  affidavit by head of department indicating  reasons  for claim-Oath of office secrecy adumberated in Article74(5) and Schedule III of Constitution does not absolve Minister  from stating  reasons in support of immunity-It is dun, of  Court and  not  executive  to  decide  whether  a  document  needs immunity from disclosure. Constitution of India, 1950: Article  75(3) and Schedule III-Cabinet-Role  and  functions of-Cabinet  documents-Need for secrecy-,Extent  of  immunity from disclosure. Article  74  (2)-Scope of-Advice tendered  by  Ministers  to President-Bar of judicial review is to the factum of  advice tendered  by  Council of Ministers to President-but  not  to record ie. material on which advice is founded. Articles  323A and 323B-Tribunals set tip under-Need  for  a study  In, law Commission suggesting measures  for  improved functioning of Tribunals emphasised. 803 Judicial  Review-Is basic feature of Constitution-Cannot  be dispersed  with by creating Tribunals tinder  Articles  323A and  323B of Constitution-Alternative Mechanism devised  for judicial  review should be effective  and  efficient-Court’s anguish over in effectively of alternative mechanism devised for  judicial  review  expressed Appeal to a  Bench  of  two Judges of High Court over orders of Tribunal suggested. Service  Law-Selection-Rule  conferring  power  on   Central Government  to  make appointment-Court cannot sit  over  the

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choice of selection. Service Law-Challenge to legality of offending  action-Only, aggrieved  person  has locus-Third party, has  no  locus  to canvass the legality. of action. Maxim: Salus Popules Cast Suprema Lax-Meaning of

HEADNOTE: By  a letter dated December 26, 1991 addressed to the  Chief Justice of India, the petitioner, Editor, Excise Law  Times, complained  that ever since the retirement of  president  of the  Customs,  Excise and Gold  control  Appellate  Tribunal (CEGAT)  in 1985 no appointment of President was made  as  a result  of  which  the  functioning  of  the  Tribunal   was adversely  affected.  He also alleged malfunctioning in  the CEGAT and sought directions for immediate appointment of the President as well as an enquiry into the mal-functioning  of CEGAT.  The letter was treated as a Writ Petition in  public interest  litigation  and on February  25,1992,  this  Court issued  Rule  Nisi  to  Union of  India  to  make  immediate appointment  of the President of CEGAT, preferably a  senior High Court Judge.  After the directions were issued by  this Court,  Respondent  No. 3, who was  initially  appointed  as judicial Member and subsequently as Senior Vice-President of the Tribunal, was appointed as President. The  petitioner  filed  another  petition  challenging   the appointment of President and sought to quash the same on the grounds  that (1) the appointment was in breach of  judicial order  passed by this Court on February 25, 1992 because  as per  the convention a sitting or retired Judge of  the  High Court   should   have  been  appointed   as   President   in consultation  with the Chief Justice of India;  even  though High Court Judges were available no serious attempt was made to  requisition the services of one of them for  appointment as  President;  (2)  before  the Act  was  made  a  positive commitment was made time and again by the Government on  the floor  of the House that judicial independence of  CEGAT  is sine qua non to sustain the confidence of the 804 litigant  public.  The appointment of any person other  than sitting  or a retired judge of the High Court  as  President would  be  in  its  breach;  and  (3)  the  appointment   of Respondent  No.  3 as a Judge of the Delhi  High  Court  was turned   down  by  Chief  Justice  of  India  doubting   his integrity,  therefore  appointment  (of  such  a  person  as President  of  CEGAT would undermine the confidence  of  the litigant  public in the efficacy of  judicial  adjudication. even though Rules may permit such appointment. The  petitioner also prayed that Rules 10(1)(3) and  (4)  of the  CEGAT Members (Recruitment and Conditions  of  Service) Rules, 1987 should be struck down as violative of Article 43 of the Constitution. the rules were ultra vires of the basic structure  of  the  Constitution,  namely  independence   of Judiciary.  On May 4,1992 this Court issued Rule Nisi and on the next date of bearing the relevant rile on which decision regarding the appointment of President was made produced  in the  Court but on behalf of the Union of India an  objection was  taken  by the Additional Solicitor  General  that  this Court  cannot  inspect  the rile as  he  intended  to  claim privilege‘.   Accordingly, pursuant to the directions  given by this Court that a formal application may be made  setting out  the  grounds  on  which the  claim  for  privilege  was founded, the Finance Secretary and the Minister of State for Finance  filed affidavits claiming privilege under  Sections

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123 and 124 of the Indian Evidence Act and Article 74 (2) of the   Constitution  stating  that  the  Government  had   no (objection  for  the Court to peruse the  rile  but  claimed privilege  to  disclose  the contents of  the  rile  to  the petitioner. On  behalf  of the Union of India it was  contended  that  a Cabinet SubCommittee approved the appointment of  Respondent No.  3  as President of CEGAT and by  operation  of  Article 77(3) and 74(1), the appointment was made by the  President. The  rile constitutes Cabinet documents forming part of  the preparation  (if the documents leading to the  formation  of the  advice tendered to the President.  Section’123  of  the Evidence  Act and Article 74 (2) precluded this  Court  from enquiring  into  the nature of the advice  tendered  to  the President  and  the documents were, therefore,  immune  from disclosure.   The  disclosure  would  cause  public   injury preventing  candid  and frank discussion and  expression  of views  by  the  bureaucrats  at  higher  level  and  by  the Minister/Cabinet  Sub-Committee  causing serious  injury  to public service. On  behalf of Respondent No.3 it was contended that  (1)  he had  an excellent and impeccable record of  service  without any  adverse remarks and dropping of his recommendation  for appointment as a Judge of Delhi High 805 Court  could  not  be construed adverse  ’to  him;  (2)  the Government  had prerogative to appoint any member,  or  Vice Chairman   or  Senior  Vice  President  as   President   and Respondent  No.3  being  the  Senior  Vice  President,   was considered  and  recommended by the  Cabinet  Committee  for appointment.  Hence he was validly appointed as President. Disposing the petitions, this Court, HELD: Per Ramaswamy, J. 1.The  claim  in the affidavits of the  State  Minister  for Finance  and the Secretary for immunity of  state  documents from  disclosure is unsustainable.  However, having  perused the  file and given anxious considerations,the Court  is  of the view that on the facts and circumstances of the case and in  the  light  of the view taken, it is  not  necessary  to disclose  the contents of the records to the  petitioner  or his counsel. 1.1.Section  123  of  the Evidence Act gives  right  to  the Government to claim privilege, in other words immunity  from disclosure  of the unpublished official state  documents  in public  interest.  The initial claim for immunity 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 indicating that the documents  in question  have  been carefully read and considered  and  the deponent has been satisfied, supported by reasons or grounds valid and germance, as to why it is apprehended that  public interest  would  be injured by disclosure  of  the  document summoned or called for.  The claim for immunity should never he  on  administrative  routine nor be a garb  to  avoid  in convenience, embarrassment or adverse to its defence in  the action, the latter themselves a ground for disclosure. 1.2.When a claim for public interest immunity has been  laid for  nondisclosure  of  the  State  documents,  it  is   the Minister’s  due  discharge of duty to state on oath  in  his affidavit the grounds on which and the reasons for which  he has  been persuaded to claim public interest  immunity  from disclosure  of the State papers and produce them.  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 inferences as are  available

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at   law.   Accordingly  the  oath  of  office  of   secrecy adumbrated  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 806 discharge  of  the duty as a Minister to obey rule  nisi  or discovery order nisi and act in aid of the Government. Attorney  General  v.  Jonathan Cape Ltd.,  1976  Q.B.  752; Sankey  v.  Whitlan,  [1979] 53 A.L. R. 11  and  Whitlam  v. Australian Consolidated Press, [1985] 60 A.L.R. 7,  referred to. 1.3. If  the Court is satisfied from the affidavit  and  the reasons  assigned for withholding production or  disclosure, the  Court may pass an appropriate order in that  behalf  If the Court still desired to peruse the record for  satisfying itself  whether the reasons assigned in the affidavit  would justify withholding disclosure, the court would, in  camera, examine  the  record and satisfy itself whether  the  public interest  subserves withholding production or disclosure  or making the documents as part of the record. 1.4. By  operation of Section 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. 1.5. 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 he able to lay before a Court of justice the relevant evidence. In  balancing the competing interests it is the duty of  the court  to  see that there is the public interest  that  harm shall  not  be done to the nation or the public  service  by disclosure  of the document and there is a  public  interest that  the administration of justice shall not be  frustrated by  withholding documents which must he produced if  justice is to be done. 1.6. The basic question to which the court would, therefore, have  to  address  itself for the purpose  of  deciding  the validity  of  the objection would be, whether  the  document relates to affairs of State or 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 to be disclosed. State  of  U.P. v. Raj Narain & Ors., [1975] 2  S.C.R.  333; S.P. Gupta Ors. 807 etc.  etc.  v.  Union of India & Ors. etc.  etc.,  1982  (2) S.C.R. 365; relied on. Conway  v.  Rimmer,  1968 A.C. 910  (H.L);  D.  v.  National Society for the Prevention of Cruelty to Children, 1978 A.C. 171  (H.L.); Burmah Oil Co. Ltd. v. Governor and Company  of the Bank of England, 1980 A.C. 1090 (H.L.); Butters Gas  and Oil  Co.  v.  Hammer, 1982 A.C. 888 (H.L.);  Air  Canada  v. Secretary  of  State for Trade, [1983] 2  A.C.  394  (H.L.); Council  of Civil Service Unions v. Minister for  the  Civil Service,  1985  A.C. 374 (H.L.); United State  v.  Reynolds, (1935)  345 U.S. 1; Environmental Agency, v. Pats), T  Mink, 410  U.S.  73 (35) L. Ed. 2nd 11 9; Newyond Times  v.  U.S.,

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[1971]  403 U.S. 713; U.S. v. Richard M. Nixon,  [1974]  418 U.S.  683  = 41 L.Ed. 2nd 1035; Robindon v. State  of  South Australia,  1931 A.C. 704 (PC); Shankey v.  Whitlan,  [1979] 153  A.L.R.  1; FAI Insurances Ltd. v. The  Hon  Sir,  Henn, Arthur  Winneke and Ors., [1982] 151 C.L.R. 342; Whitlan  v. Australian  Consolidated  Press Ltd., [1985]  60  A.L.R.  7; Minister for Arts Heritage and Environment and Ors. v.  Peko Wallsend Ltd. and Ors. [1987] 75 A.L.R. 218; Commonwealth of Australia  v.  Northern  Land Council and  Anr.  [1991]  103 A.L.R. 267; R. v. Shinder, 1954 S.L.R. 479 Gagnon v.  Ouebec Securities  Commission, 1964 S.C.R. 329; Bruce  v.  Waldron, 1963  V.L.R.  3; Re Tunstall, Ex.P. Brown,  [19661  84  W.N. (Pt2) (N.S.W.); Corbett v. Social Security Commission,  1962 N.Z.L.R. 878; Greednz Inc. v. Governor  General,  [1981]   1 N.L.R.  172.  Apponhamy v. Illangarutute, [1964]  66  C.L.W. 17; Jamaica in Allen v. Byfields (No.2) [1964] 7 W.I.R.69  and Scotland  in  Glasgow  Corporation v.  Central  Land  Board, [1956] Scotland Law Time 4, referred to. Mecormic  on Evidence, 4th Edn. by John w. Strong,  referred to. 1.7.Every communication which proceeded from one of ricer of the  State  to  another or the officers inter  se  does  not necessarily  per-se  relate, to the affairs  of  the  State. Whether they so relate has got to be determined by reference to  the nature of the consideration, the level at  which  it was  considered,  the contents of the document or  class  to which  it  relates to and their indelible impact  on  public administration  or  public  service  and  administration  of justice itself. 2.   The power to issue ’discovery order nisi’ is express as well as inherent as an integral power of judicial review and process in the Court to secure the attendance of any  person or  discovery  or  production of any document  or  to  order investigation  in that behalf.  However, in  an  appropriate case, depend - 808 ing on facts on hand.  Court may adopt such other  procedure as  would be warranted.  The petitioner must make  a  strong prima facie case to order discovery order nisi, etc. and  it must not be a haunting expedition to fish out some facts  or an attempt to cause embarrassment to the respondents nor for publicity.  But on issuance of rule nisi by this Court under Article  32 or a discovery order nisi the Government or  any authority,  constitutional,  civil, judicial,  statutory  or otherwise  or any person, must produce the record  in  their custody  and  disobedience thereof would be at the  pain  of contempt. 3.   The  Cabinet  known as Council of Ministers  headed  by Prime  Minister  under  Article 75 (3) is  the  driving  and steering body responsible for the governance of the country. Collective   responsibility  under  Article  75(3)  of   the Constitution  inheres  maintenance  of  confidentiality   as enjoined  in  oaths of office and of secrecy  set  forth  in Schedule III of the Constitution that the Minister will  not directly  or indirectly communicate or reveal to any  person or  persons  any  matter which shall be  brought  under  his consideration  or  shall  become known to  him  as  Minister except as may be required for the ’due discharge of his duty as   Minister’.   The  base  and  basic  postulate  of   its significance  is  unexceptionable.   But the  need  for  and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by Article 75(3) but also from its pragmatism. Satwant  Singh  Sawhney v. D. Ramarathnam  Asstt.   Passport Officer,  [1967] 3 S.C.R. 525; Magnbhai Ishwarbhai Patel  v.

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Union of India and Anr., [1969] 3 S.C.R. 254; Shamsher Singh v.  State  of Punjab, [1975] 1 S.C.R. 814;  Rai  Sabhib  Ram Jawaya Kapur & Ors. v. State of Punjab, [1955] 2 S.C.R.  225 and  Commonwealth  of Australia v. Northern Land  Council  & Anr., [1991] 103 A.L.R. 267, referred to. Sir  Ivor  Jennings,  Cabinet  Government;  Patrick   Gordon Walker,  The  Cabinet,  1973 Revised Ed.  P.  178;  John  P. Mackintosh,  The  British Cabinet, 2nd Edn. p.1  1;  0  Hood Phillips and Paul Jackson, Constitutional and Administrative Law, 7th Edn.  P. 301; Walker, The Cabinet, p. 183; Halsbury Laws of England, 4th Edn.  Vol. 8 para 820; Bagehot and  The English Constitution, 1964 Edn., referred to. 3.1. The Court would be willing to respond to the  executive public interest immunity to disclose certain documents where national  security  or  high  policy,  high  sensitivity  is involved.    Information  relating  to  national   security, diplomatic   relations,  internal  security   or   sensitive diplomatic corre- 809 spondence  per  se  are  class  documents  and  that  public interest  demands total immunity from disclosure.  Even  the slightest  divulgence  would  endanger  the  lives  of   the personnel  engaged  in the services etc.   The  maxim  Salvs Populs  Cast Suprema Lax which means that regard for  public welfare is the highest law, is the basic postulate for  this immunity.               Asiatic  Petroleum v. Anglo-Persian oil,  1916               K.B.  822; Duncan v. Cammell Laird, 1942  A.C.               624;   Council  of  Civil  Service  Union   v.               Minister for Civil Service, 1985 A.C. 374  and               Mark  Hosemball R. v. Home  Secretary  exparte               Hosenball, [1977] 1 W.L.R. 766, referred to. 3.2. But  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 he produced.               Robinson  v. State of South Australia,  [1931]               A.C. 704 (PC); S.P. Gupta v. Union of India  &               Ors.,  [1982] 2 S.C.R. 365; State of U. P.  v.               Raj Narain & Ors., [1975] 2 S.C.R.333;  Conway               v..Rimmerl968A.C.910 (HL);Burmah Oil Co.  Ltd.               v.  Governor  and  Company  of  the  Bank   of               England,  1980 A.C. 1090 (HL); Reg.  v.  Lewes               Justices, Ex Parte Secretary of State for  the               Home  Department,  1973  A.C. 388  and  D.  V.               National Society for the Prevention of Cruelty               to  Children, [1978] A.C. 171; Air  Canada  v.               Secretary  of State for Trade, [1983]  2  A.C.               394 (HL); Shankey v. Whitlan, [1979] 53 A.L.R.               1;  Harbour  Corp  of  Queensland  v.   Vessey               Chemicals  Pvt.   Ltd., [1986] 67  A.L.R  100;               Manthal  Australia Pvt.  Ltd. v. Minister  for               Industry,  Technology and Commerce, [1987]  71               A.L.R.   109;  Koowarta  v.   Bjelke-Petersen,               [1988] 92 F.L.R. 104; United States v. Richard               M.  Nixon, [1974] 418 U.S. 683=41 Lawyers  Ed.               2nd  Ed.  1039; Attorney General  v.  Jonathan               Cape  Ltd.  1976 Q.B. 752; Minister  for  Arts               Heritage   and   Environment   and   Ors.   v.               Pekowallsend  Ltd. and Ors., (1987) 75  A.L.R.               218;  Commonwealth of Australia,  v.  Northern               Land Council and Anr., [1991] 103 A.L.R.  267;               Australian   Community   Party   &   Ors.   v.               Commonwealth & Ors., [1950-51] 83 C.L.R. 1 and               Queen  v.  Tohey, [1982-83]  151  C.L.R.  170,

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                           referred to. 3.3. Undoubtedly,  the  Prime  Minister  is  enjoined  under Article 78 to communicate to the President all decisions  of the  Council of Minister relating to the  administration  of the  affairs of the Union and proposals for legislation  and to  furnish such information relating to the  administration or  reconsideration  by  the  Council  of  Minister  if  the President so requires and submit its 810 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 Article 226). 3.3.1.The  communication of cabinet decisions or  policy  to the  President  under  Article  74(1)  gives  only   limited protection by Article 74(2) of judicial review of the actual tendered  to the President of India.  The rest of  the  file and  all  the records forming part thereof are  open  to  in camera  inspection  by  this  Court.   Each  case  must   be considered  on  its own facts and surrounding  scenario  and decision taken thereon.               Jyoti Prakash Mitter v. Chief Justice Calcutta               High  Court, [1965] 2 S.C.R. 53 and  Union  of               India  v. Jyoti Prakash, [1971] 3 S.C.R.  483,               referred to. 3.3.2.Article 74(2) is not a total bar for production of the records.  Only the actual advice tendered by the Minister or Council  of  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 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. S.P.  Gupta v. Union of India & Ors., [1982] 2  S.C.R.  365, referred to. 4.Judicial  review is concerned with whether  the  incumbent possessed of qualification for appointment and the manner in which the appointment came to made or the procedure  adopted whether  fair,  just and reasonable.  Exercise  of  Judicial Review is to protect the citizen from the abuse of the power etc.  by  an appropriate Government or department  etc.   In Court’s considered view granting the compliance of the above power  of  appointment was conferred on  the  executive  and confided to be exercised wisely.  When a candidate was found qualified and eligible and was accordingly appointed by  the executive to hold an office as a Member or Vice-President or President of Tribunal, this Court 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. Shri  Kumar Padma Prasad v. Union of India & Ors., [1992]  2 S.C.C. 428, 811 distinguished. 5.   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 not locus standi to canvass the legality or correctness of the action. Only  public law declaration would be made at the behest  of the  petitioner, a public spirited person.   Therefore,  the contention  that there was need to evaluate the  comparative

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merits  of  Respondent  and  the  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. 6.   It  is  expedient to have a sitting or  retired  senior Judge  or  retired Chief Justice of a High Court to  be  the President.    The   rules   need   amendment    immediately. Government  had  created a healthy convention  of  providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court This Court to elongate the above objective directed the Government to show whether  the convention is being followed in appointment  of the  President  of CEGAT and further  directed  to  consider appointment of a Senior Judge or a retired Chief Justice  of the  High Court as it President Admittedly Chief Justice  of India was not consulted before appointing Respondent No.3 as President  of  CEGAT  The  solemn  assurance  given  to  the Parliament  that  the Tribunal bears a  judicious  blend  by appointment  of a High Court Judge as President was given  a go-bye. 6.1.While  making statutory rules the executive  appears  to have made the appointment of a sitting or retired High Court Judge as President unattractive and Directly frustrating the legislative animation.  A sitting Judge, when he is entitled to  continue  in  his office upto 62  years,  would  not  he willing to opt to serve as President, if his  superannuation as  President  is co-terminus with 62 years.   He  would  he attracted  only  if he is given extended  three  years  more tenure after his superannuation.  But Rule 10 (3) says  that the total period of the enure of the President by a  sitting or  retired  Judge is ’a period of three years  or  till  he attains the age of 62 years, whichever is earlier’, i.e. co- terminus  with superannuation as a Judge of the High  Court. The,  proviso  is  only discretionary at  the  whim  of  the executive depleting independence and is an exception to  the rule.   Thereby,  practically  the spirit of  the  Act,  the solemn  assurance given by the Government to the  Parliament kindling hope in the litigant public to have a sitting or  a retired  Judge  appointed as President has  been  frustrated deflecting the appointment of a 812 judicially trained judge to exercise judicial review.  Court is constrained to observe that the rules, though  statutory, were so made as to defeat the object of the Act. 7.There  are persistent allegations against  mal-functioning of  the CEGAT and against Respondent No. 3 himself.   Though this Court exercised self restraint to assume the role of an investigator  to charter out the ills surfaced,  suffice  to say that the Union Government cannot turn a blind eve to the persistent  public demands and ’the Court directs  to  swing into  action,  an indepth enquiry made expeditiously  by  an officer or team of officers to control the malfunctioning of the institution.  It is expedient that the Government should immediately take action in the matter and have fresh look. 8.   The  Tribunals set up under Articles 323A and  323B  of the  Constitution  or  under  an  Act  of  legislature   are creatures of the Statute and in no case can claim the status as  Judges  of the High Court or parity or  as  substitutes. However,  the personnel appointed to hold the  office  under the  State are called upon to discharge judicial  or  quasi- judicial  powers.  So they must have judicial  approach  and also  knowledge and expertise in that particular  branch  of constitutional,  administrative  and tax  laws.   The  legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth

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would  definitely impair the efficacy and  effectiveness  of the judicial adjudication.  It is, therefore, necessary that those  who adjudicate upon these matters should  have  legal expertise, judicial experience and modicum of legal training as  on many an occasion different and complex  questions  of law  which  baffle the minds of even trained judges  in  the High Court and Supreme Court would arise for discussion  and decision.               M.B.  Majumdar  v. Union of  India,  [1990]  3               S.C.R. 946; Union of India v. Paras  Laminates               Ltd., [1990] 49 E.L.T. 322 (SC); Krishna Sahai               &  Ors.  v. State of U. P. &  Ors.,  [1990]  2               S.C.C.   673,  and  Rajendra  Singh  Yadav   &               Ors.v.State  of U.P. & Ors.. [1990]  2  S.C.C.               763, referred to. 8.1.Equally  the need for recruitment of members of the  Bar to  man 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 should  make an in-depth study in this behalf including  the desirability of bringing CEGAT under the control of Law  and Justice   Department  in  line  with  Income-tax   Appellate Tribunal and make appropriate urgent recommendations to  the Government of India who should take remedial steps by an 813 appropriate  legislation  to  overcome  the  handicaps   and difficulties and make the Tribunals effective and  efficient instruments   for   making  judicial   review   efficacious, inexpensive and satisfactory. 8.2. For  inspiring  confidence and trust  in  the  litigant public they must have an assurance that the person  deciding their  causes  is  totally  and  completely  free  from  the influence  or  pressure from the  Government.   To  maintain independence 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  injustice Therefore,  functional  fitness, experience at the  Bar  and aptitudinal approach are fundamental for efficient  judicial adjudication.  Then only as repository of the confidence, as its  duty,  the  Tribunal  would  properly  and  efficiently interpret  the  law and apply the law to the  given  set  of facts.  Absence thereof would be repugnant or derogatory  to the Constitution.               Union of India v. Sankal Chand Himatlal  Sheth               & Anr. [1978] 1 S.C.R. 423, referred to. 9.   Judicial  review is the basic and essential feature  of the Indian constitutional scheme entrusted to the judiciary. It  cannot  be  dispensed with by  creating  Tribunal  under Articles   323A   and  323B  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  Ls consistent  with  constitutional scheme.  The faith  of  the people  is  the bed-rock on which the  edifice  of  judicial review  and efficacy of the adjudication are  founded.   The alternative  arrangement must, therefore, be  effective  and efficient.

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             Keshwanand  Bharati v. Union of India,  [1973]               Suppl.  S.C.R. 1; Waman Rao v. Union of India,               [1980] 3 S.C.R. 587; Raghunathrao Ganpatrao v.               Union  of  India [1993] 1 SCALE  363;  Krishna               Swathi v. Union of India, 1199214 S.C.C.  605;               S.P.  Sampat Kumar v. Union of India  &  Ors.,               [1987]  1 S.C.R. 435 and J.B. Chopra v.  Union               of India, [1987] 1 S.C.C. 422, referred to. 814 9.1. It  is necessary tip express Court’s anguish  over  the ineffectivity  of  the  alternative  mechanism  devised  for judicial  review.   The  judicial  review  and  remedy   are fundamental  rights  of the citizens.  The  dispensation  of justice  by the Tribunals is much to be desires.   Court  is not  doubting  the ability of the members  or  Vice-Chairman (non-judges)  who may be experts in their  regular  service. But  judicial  adjudication is a special process  and  would efficiency  be administered by advocate Judges.  The  remedy of  appeal by special leave under Article 136 to this  Court also  proves  to  be costly and  prohibitive  and  far-flung distance too is working as a 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 assuage  a  growing feeling of iNjustice of those who can ill-afford to approach the Supreme Court. 10.  No  one  can suppose that the executive will  never  be guilty of the sins common to all people.  Sometimes they may do  things which they ought not to do or will not do  things they  ought  to  do.   The  Court  must  be  alive  to  that possibility  of the executive committing illegality  in  its process, exercising its powers, reaching a decision which no reasonable  authority would have reached or otherwise  abuse its  powers, etc.  If the proceeding, decision (or order  is influenced   extraneous  considerations which ought  not  to have  been  taken into account, it cannot  stand  and  needs correction, no matter of the nature of the statutory body or status  or stature of the constitutional functionary  though might  have  acted  in good faith.  It  is,  therefore,  the function  of the Court to see that lawful authority  is  not abused. 10.1.     Under modern conditions of responsible Government, Parliament  should  not always be relied on as  a  check  on excess of power by the Council   (of Ministers or  Minister. Though  the Court would not substitute its views to that  of the  executive  on matters of policy, it  is  its  undoubted power and duty to see that the executive exercises its power only  for  the purpose for which it is granted.  It  is  the constitutional, legitimate and lawful power and duty of this Court  to  ensure that powers, constitutional  statutory  or executive are exercised in accordance with the  Constitution and  the  law.   This may demand, though no  doubt  only  in limited   number  of  cases,  Yet  the  in  networkings   of government may be exposed to public gaze. Per Ahmadi J. (For himself and Punchhi J.) (Concurring) 1.   This  Court cannot sit in judgment over the  wisdom  of the Central 815 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.   Respondent No. 3 was a Senior  Vice-President when the question of filling up the vacancy of the President came  up for consideration.  He was fully qualified for  the

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post  under the Rules.  No challenge is made on that  count. Under  Rule 10 (1), the Central Government is conferred  the power  to  appoint one of the Members to be  the  President. Since  the validity of the Rule is not questioned there  can be  no  doubt that the Central Government  was  entitled  to appoint Respondent No. 3 as President. 1.1. This  Court  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. Assuming  that the allegations against Respondent No. 3  are factually  accurate, this Court cannot sit in judgment  over the choice of the person made by the Central Government 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. 2.   However,  to instill the confidence of  the  litigating public  in  the CEGAT, the Government must  make  a  sincere effort  to  appoint a sitting Judge of the High Court  as  a President  of  the  CEGAT in  consultation  with  the  Chief justice of India and if a sitting Judge is not available the choice must fall on a retired Judge as far as possible. 3.   Sub-rule   (4)  of  Rule  10  of  the   CEGAT   Members (Recruitment and Conditions of Service) Rules, 1987 needs  a suitable  change  to  make it  sufficiently  attractive  for sitting  High  Court  judges to accept  appointment  as  the President  of  the  CEGAT.  The rules  empower  the  Central Government  to  appoint any member as the President  of  the CEGAT.   It is true that under subrule (4), a serving  Judge and under the proviso thereto, a retired Judge, can also  be appointed a Member and President simultaneously. In the case of a serving Judge his age of superannuation  is fixed  at 62 years but in the case of the retired  Judge  he may  be appointed for a period of three years at  the  most. Insofar as a service High Court Judge is concerned, he holds office  until he attains the age of 62 years,  vide  Article 217 of Constitution.  It, therefore, beats common sense  why a sifting Judge of tile High Court would opt to serve as the President  of the CEGAT if he is to retire at the  same  age without any benefit.  On the contrary, he would lose certain 816 perks  which  are  attached to the office of  a  High  Court Judge.   Even status-wise he would suffer as  his  decisions would he subject to the writ jurisdiction of the High  Court under Article 226,227 of the Constitution.  He may agree  to accept  the  offer only if he had an extended tenure  of  at least three years. 4.   The  allegations  made by Petitioner in regard  to  the working  the  CEGAT are grave and the authorities  can  ill- aford to turn a Nelson’s eye to those allegations made by  a person  who  is  fairly well conversant  with  the  internal working of the Tribunal.  Refusal to inquire into such grave allegations, some of which are capable of verification,  can only betrays indifference and lack of a sense of urgency  to tone  up the working of the Tribunal.  It is high time  that the administrative machinery which is charged with the  duty to  supervise  the working of the CEGAT  wakes-up  from  its slumber   and  initiates  prompt  action  to   examine   the allegations  by  appointing a high level  team  which  would immediately  inspect the CEGAT, identify the causes for  the crises  and  suggest remedial measures.  This  cannot  brook delay. 5.1. The time is ripe for taking stock of the working of the various Tribunals set up in the country after the  insertion of  Articles  323A and 323B in the  Constitution.   A  sound

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justice delivery system is a sine qua non for the  efficient governance  of  a  country wedded to the rule  of  law.   An independent  and impartial justice delivery system in  which the  litigating  public has faith and confidence  alone  can deliver  the  goods.  After the incorporation of  these  two articles, Acts have been enacted where under Tribunals  have been  constituted for dispensation of  justice.   Sufficient time  has  passed and experience gained in  these  last  few years  for  taking  stock of the situation with  a  view  to finding  out if they have served the purpose and  objectives for which they were constituted. 5.2. Complaints have been heard in regard to the functioning of  other Tribunals as well and it is time that a body  like the Law Commission of India ha, a comprehensive look-in with a   view   to  suggesting  measures   for   their   improved functioning.   That  body can also suggest  changes  in  the different statutes and evolve a model on the basis where  of Tribunals may be constituted or reconstituted with a view to ensuring  greater independence.  An intensive and  extensive study needs to be undertaken by the Law Commission in regard to the constitution of Tribunals under various statutes with a  view  to ensuring their independence so that  the  public confidence in such Tribunals may increase and the quality of their  performance may improve.  It is strongly  recommended to the Commission of India to undertake such an exercise 817 on priority basis. 6. On the facts of the case it is not necessary to  disclose the  contents  of  the  records to  the  petitioner  or  his counsel.

JUDGMENT: CIVIL, ORIGINAL JURISDICTION: Writ Petition Nos. 90 & 312 of 1992. Under Article 32 of the Constitution of India. , D.D.  Thakur, Tapash Ray, M.L. Verma, Gauray Jain,  and  Ms. Abha Jain for the Petitioner in W.P. No. 90 of 1992. R.P. Gupta for the Petitioner in W.P. No. 312/92. G.   Ramaswamy,  Attorney  General,  D.P.  Gupta,  Solicitor General, B. Parthasarthy, C.V.S. Rao, A.S. Bhasme and  Chava Badri Nath Babu for the Respondent. R.   K. Jain, and Rajan Mukherjee for the customs, Excise  & Gold (Control) Appellate Tribunal. K.K.  Venugopal, Ms. Pallav Shisodia and C.S.S. Rao for  the Respondent. The Judgments of the Court were delivered by AHMADI,  J.  We  have  had  the  benefit  of  the  industry, erudition   and   exposition  of  the   constitutional   and jurisprudential  aspects  of law on  the  various  questions urged  before us in the judgment of our esteemed Brother  K. Ramaswamy,  J.  But while concurring  with  the  hereinafter mentioned conclusions recorded by him we would like to say a few  words to explain our points of view.  Since  the  facts have been set out in detail by our learned Brother we  would rest content by giving an abridged preface which we consider necessary. It all began with the receipt of a letter dated December 26, 1991,  from  Shri  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

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sit  for hardly two hours or so, the sittings commence  late at about 10.50 818 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 CEGAT.  Lastly, he   says  that  there  were  nearly  42,000   appeals   and approximately  2000  stay  petitions pending  in  the  CEGAT involving revenue worth crores of rupees, which will  remain blocked for long.  Three directions were sought, namely,               "(i)   the   immediate  appointment   of   the               President  to the CEGAT, preferably  a  senior               High Court Judge-,               (ii) order an enquiry into the mal-functioning               of the CEGAT; and               (iii) issue  all  other  directions  as   your               Lordship may deem fit and necessary." This  letter was directed to be treated as  Public  Interest Litigation  and  notice  was issued to the  Union  of  India restricted  to  relief  No.  (i)  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 Court which we directed to be  kept  in safe custody as apprehension was expressed that the file may be  tempered  with.  The focus which was  initially  on  the working  of the CEGAT and in particular against the  conduct and behaviour one of its Members now shifted to the legality and  validity of the appointment of respondent No. 3 as  its President.  Serious allegations were made against respondent No.  3 and his competence to hold the post  was  questioned. It was contended that his appointment was made in  violation of  the Rules and convention found mentioned in the  message of  Shri Y.V. Chandrachud, the then Chief Justice of  India, dated  October  5,  1992 forwarded on the  occasion  of  the inauguration  of the CEGAT.  The further allegation made  is that even though High Court Judges were available no serious attempt was made to requisition the services of one of  them for appointment as President of the CEGAT.  To put a quietus to  the  entire matter at an early date we called  the  file from  the Registry on May 4,1992 but when we were  about  to peruse  the  same the learned Additional  Solicitor  General contended  ’that  the  Court cannot inspect  it  because  he desired to claim privilege’.  We, therefore, directed that a formal  application  may be made in that behalf  before  the next  date  of hearing and returned the file to  enable  the making of such an application. 819 Accordingly,  the then Finance Secretary filed an  affidavit claiming privilege under sections 123 and 124, Evidence Act, and  Article  74(2) of the Constitution.   The  Minister  of State in the Finance Department was also directed to file an affidavit  in  support of the claim for privilege  which  he did.   It is in this context that the question of  privilege arose in the present proceedings. Our  learned Brother Ramaswamy, J. dealt with this  question elaborately.   After  referring  to the  provisions  of  the relevant  Statutes and the Constitution as well as the  case

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law  of  both foreign and Indian courts,  the  authoritative text books. etc. he has concluded as under:               "Having perused the file and given our anxious               consideration  we are of the opinion  that  on               the facts of the case..... it is not necessary               to disclose the contents of the records of the               petitioner or his counsel." We are in respectful agreement with this conclusion recorded by  our  learned  Brother though not  entirely  for  in  the reasons which have weighed with him. On  the question of appointment of respondent No. 3  as  the President  of  the  CEGAT we must notice  a  few  provisions contained in the CEGAT Members (Recruitment anti  Conditions of Service).  Rules, 1997 (hereinafter called ’the  Rules’). Rule 2(c) defines a member, to include the President of  the CEGAT  also;  Rule  3  prescribes  the  qualifications   for appointment and Rule 6sets out the method of recruitment  of ’a  member  through a Selection Committee  consisting  of  a Judge of the Supreme Court of ’India nominated by the  Chief Justice  of India.  Rule 10 provides for the appointment  of the  President.  It says that the Central  Government  shall appoint  one of the members to be the  President.   Sub-rule (2) then provides as under               "(2)  Notwithstanding  anything  contained  in               rule  6. a sitting or retired judge of a  High               Court  may  also he appointed by  the  Central               Government   as   a   member   and   President               simultaneously."               Sub-rule  (4)  and the  proviso  thereto  bear               reproduction               "(4) Where a serving judge of a High Court  is               appointed as a member and President, he  shall               hold office as President for a period of three               years from the date of his appointment or till               he  attains the age of 62 years, whichever  is               earlier:               820               Provided that where a retired judge of a  High               Court  above the age of 62 years is  appointed               its  President. he shall hold office for  such               period  not  exceeding three years as  may  be               determined  by the Central Government  at  the               time of’ appointment or re-appointment." It  will  thus he seen that the rules  empower  the  Central Government  to  appoint any member as the President  of  the CEGAT.  It is true that under sub-rule (4), a serving  judge and under the proviso thereto, a retired judge, can also  be appointed  a  Member and President simultaneously.   In  the case  of a serving judge his age of superannuation is  fixed at  02  years but in the case of a retired judge he  may  be appointed for it period of three years at the most.  Insofar as a serving High Court Judge is concerned, he holds  office until  he attains the age of 62 years, vide Article  217  of the  Constitution.  It therefore, heats common sense  why  a sitting  Judge  of he High Court would opt to serve  as  the President of tile CEGAT if lie is to retire At the same  age without any benefit.  On tile contrary he would lose certain perks  which  are attached to tile office of  a  High  Court Judge.   Even status-wise lie would suffer as his  decisions would he subject to the writ jurisdiction of the High  Court under  Articles 226/227 of tile Constitution.  He may  agree to accept the offer only if he had an extended tenure of  at least three years.  We are, therefore, in agreement with our learned  Brother that sub-rule (4) of Rule 10 of  the  Rules needs  a suitable change to make it sufficiently  attractive

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for  sitting High Court Judges to accept appointment as  the President  of  the CEGAT.  We also agree  with  our  learned brother  that  to instill the confidence of  the  litigating public  in  the CEGAT. the Government must  make  a  sincere effort  to  appoint a sitting Judge of the High Court  is  a President of the CEGAT in consultation of the Chief  Justice of India and it a sitting Judge is not available the  choice must fall on a retired Judge as far as possible.  This would he  consistent  with  the assurance  given  by  the  Finance Department   as   is  reflected  in  the  letter   of   Shri Chandrachud, extract wherefrom is reproduced by our  learned Brother in his judgment. Shri  Harish  Chandra was a Senior Vice-President  when  the question  of’ filling, up the vacancy of the President  came up  for consideration.  He was fully qualified for the  post under the Rules.  No challenge is made on that count.  Under Rule 10(1) the Central (Government is conferred the power to appoint  one of the Members to be the President.  Since  the validity of the Rule is not questioned there can be no doubt that   the  Central  Government  was  entitled  to   appoint respondent No. 3 as the President.  But it was said that the track record of respondent No. 3 was poor and he was  hardly fit to hold the post of the President of the CEGAT.  It  has been  averred  that respondent No. 3 had been  in  the  past proposed for appointment 821 as  a Judge of the Delhi High Court but his appointment  did not  materialise due to certain adverse  reports.   Assuming for  the  sake  of  argument  that  these  allegations   are factually  accurate, this Court cannot sit in judgment  over the choice of the person made by the Central Government  for appointment as a President if the person chosen is qualified and   eligible  for  appointment  under  the   Rules.    We, therefore,  agree with our learned Brother that  this  Court cannot  sit  in  judgment over the  wisdom  of  the  Central Government in the choice of the person to be appointed as  a President  so  long  as  the  person  chosen  possesses  the prescribed  qualification  and  is  otherwise  eligible  for appointment.   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 CEGAT are -rave and the authorities can  ill afford to turn a Nelson’s eve to those allegations made by a person  who  is  fairly well conversant  with  the  internal working of the Tribunal. Refusal  to  inquire into such grave  allegations,  some  of which   are  capable  of  verification,  can   only   betray indifference  and lack of a sense of urgency to tone up  the working  of the tribunal.  Fresh articles have  appeared  in the Excise Law Times which point to the sharp decline in the functioning  of the CEGAT pointing to a  serious  management crises.   It is high time that the administrative  machinery which  is charged with the duty to supervise the working  of the  CEGAT  wakes-up from its slumber and  initiates  prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGAT, identify the causes  for the crises and suggest remedial measures.   This cannot brook delay. Lastly, the time is ripe for taking stock of the working of’ the  various  Tribunals  set up in  the  country  after  the insertion  of  Articles 323A 323B in  the  Constitution.   A sound  justice  delivery system is a sine qua  non  for  the

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efficient governance of a country wedded to the rule of law. An  independent  and impartial justice  delivery  system  in which  the litigating public has faith and confidence  alone can deliver the goods.  After the incorporation of these two articles,Acts  have been enacted whereunder  tribunals  have been  constituted for dispensation of  justice.   Sufficient time  has  passed and experience gained in  these  last  few years  for  taking  stock of the situation with  a  view  to finding  out if they have serve the purpose  and  objectives for which they were constituted.  Complaints have been heard in regard to the functioning, of other tribunals as well and it is time that a body like the Law Commission of India  has comprehensive look-in with a view to 822 suggesting-  measures for their improved functioning.   That body can also suggest changes in the different statutes  and evolve  a  model  on  the basis  whereof  tribunals  may  be constituted or reconstituted with a view to ensuring greater independence.  An intensive and extensive study needs to  be undertaken   by  the  Law  Commission  in  regard   to   the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in  such  tribunals may increase and the  quality  of  their performance  may improve.  We strongly recommend to the  Law Commission  of  India  to  undertake  such  an  exercise  on priority basis.  A copy of this judgment may be forwarded by the  Registrar of this Court to the Member-Secretary of  the Commission for immediate action. We  have  thought  it  wise to clarify  the  extent  of  our concurrence with the views expressed by our learned  Brother in his judgment to avoid possibility of doubts being  raised in  future.  We accordingly agree with our  learned  Brother that the writ petitions should stand disposed of accordingly with no order as to costs. K.RAMASWAMY,  J.:  The  same facts gave birth  to  the  twin petitions  for disposal. by a common judgment.   On  October 11,  1982,  the Customs Central Excise  and  Gold  (Control) Appellate  Tribunal  for short ’CEGAT’ came  into  existence with  Justice F.S. Gill as its President.  After he  retired in  1985  no Judge was appointed as  President.   In  letter dated  December 26, 1991, addressed to the Chief Justice  of India, the petitioner highlighted the mal-functioning of the CEGAT  and  the imperative to appoint a sitting  or  retired judge  of  the  High Court as President  to  revitalise  its functioning and to regenerate warning and withering faith of the  litigant  public of the efficacy of  its  adjudication. Treating it as writ petition on February 25, 1992 this court issued rule nisi to the first respondent, initially to  make immediate appointment of the President of the CEGAT, prefer- ably a senior High Court Judge.  On March 30, 1992 when  the Union’s  counsel  stated that the matter  was  under  active consideration  of  the  government,  having  regard  to  the urgency,  this court hoped that the decision would he  taken within  two  weeks from that date.  On April  20,  1992  the learned   Addl.    Solicitor  General  reported   that   the appointment  of  the President had been made,  however.  the order  was  not  placed on record.   In  the  meanwhile  die petitioner filed writ petition No. 312 of 1992 impugning the appointment  of Sri Harish Chander, as President and  sought to quash the same being in violation of the direction issued by this (’our( on February 25, 1992 and to strike down Rules 10(1),  (3)  and (4) of the CEGAT Members  (Recruitment  and Conditions  of Service) Rules 1987, for 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

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4,  1992.   The tile in a sealed cover  was  produced.   The first and the third respondents were directed to file  their counters 823 within  four  weeks.   This court also  directed  the  first respondent  "to reflect in the counter what was  the  actual understanding in regard to the convention referred to in the letter  of the then Chief Justice of India dated October  5, 1982";  "What  procedure  was followed at the  time  of  the appointment by first respondents" and "whether Chief Justice of  India was consulted or whether the first respondent  was free  to  choose a retired or a sitting Judge  of  the  High Court   as  President  of  the  Tribunal  with  or   without consultation  of  the Chief Justice of India".   "It  should also point out what procedure it had followed since then  in the  appointment  of  the President of  the  Tribunal".   It should also clarify whether "before the third respondent was appointed as the President, "any effort or attempt was  made to  ascertain if any retired or a sitting Judge of the  High Court  could be appointed as the President of the  Tribunal" and  directed to post the cases for final disposal  on  July 21,  1992.   At request, to enable to government to  file  a counter, the rile was returned. The  Solicitor General though brought the file on  July  21, 1992.  objected  to our inspecting the file and  desired  to claim  privilege.  The file was directed to be kept  in  the custody  of the Registrar-General till further orders.   The union  was directed to file written application setting  out the grounds on which the claim for privilege is founded  and directed  the Registry to return the sealed envelop  as  the Solicitor  General expressed handicap to make precise  claim of   the  privilege  for  want  of  file.    Thereafter   an application  was  filed supported by the  affidavit  of  the Secretary,  Finance  and the State Minister also  filed  his affidavit.  Counter affidavits and rejoinders were exchanged in  the writ petitions.  The Attorney General also  appeared on  behalf  of  the  Union.   The  government’s  claim   for privilege is founded upon 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. 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 disclose communications 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. 824 "The validity of any such objection shall be decided by  the court."  The  court,  if  it  deems  fit,  may  inspect  the documents,  unless  it refers to matters of State,  or  take other   evidence   to  enable  it  to   determine   on   its admissibility. The  remedy  under Art. 32 of the Constitution itself  is  a fundamental  right to enforce the guaranteed rights in  Part

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111.   This court shall have power to issue writ of  habeas- corpus,  mandamus,  certiorari,  quowarranto  or  any  other appropriate  writ or direction or order appropriate  to  the situation to enforce any of the fundamental right (power  of High  court under Art. 226 is wider).  Article  144  enjoins that  all authorities, civil and judicial, in the  territory of  India shall act in aid of this Court.  Article  142  (1) empowers this Court to make such orders as is necessary  for doing complete justice in any cause or matter pending before it.   Subject  to  the provisions of any law  made  in  this behalf  by  the Parliament, by Clause 2 of  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." 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 Cl. 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 well as inherent as  an  integral power of Judicial review and process in the court to  secure the  attendance of any person or discovery or production  of any  document  or  to order investigation  in  that  behalf. However. in an appropriate case, depending on facts on hand, court may adopt such other procedure as would be  warranted. The  petitioner must make strong prima facie case  to  order discovery  order  nisi, etc. and it must not  be  a  hunting expedition  to  fish out some facts or an attempt  to  cause embarrassment to the respondents nor for publicity.  But  on issuance  of  rule  nisi by this Court under Art.  32  or  a discovery  order  nisi  the  government  or  any  authority, constitutional,  civil, judicial. statutory or otherwise  or any person, must produce the record in their 825 custody  and  disobedience thereof would be at the  pain  of contempt. Section  123  of  the  Evidence  Act  gives  right  to   the government,  in  other  words, to the  minister  or  in  his absence head of the department, to claim privilege, in other words  immunity from disclosure of the unpublished  official state  documents  in  public  interest.   In  a   democracy, governed  by  rule  of law State is treated at  par  with  a person  by Art. 19(6) in  commercial/industrial  activities. It possessed of no special privileges.  This Court in  State of  U.P. v. Raj Narain & Ors. [1975] 2 SCR 333 at  349  held that  an objection claiming immunity should be raised by  an affidavit affirmed by the head of the department.  The court may  also require a Minister to affirm an  affidavit.   They must state with precision the grounds or reasons in  support of the public interest immunity.  It is now settled law that the  initial claim for public interest immunity  to  produce unpublished  official  records for short  "state  documents"

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should  be  made  through  an  affidavit  generally  by  the Minister  concerned, in his absence by the Secretary of  the department  or head of the Department.  In the  latter  case the  court may require an affidavit of the Minister  himself to  be  filed.   The  affidavit  should  indicate  that  the documents   in  question  have  been  carefully   read   and considered and the deponent has been satisfied, supported by reasons  or  grounds  valid and germane, as  to  why  it  is apprehended  that  public  interest  would  be  injured   by disclosure  of the document summoned or called for.  If  the court   finds   the  affidavit  unsatisfactory   a   further opportunity may be given to file additional affidavit or  be may  be  summoned for cross-examination.  If  the  court  is satisfied  from the affidavit and the reasons  assigned  for withholding production or disclosure, the court may pass  an appropriate  order in that behalf.  The Court  though  would give  utmost consideration and deference to the view of  the Minister, yet it is not conclusive.  The claim for  immunity should  never be on administrative routine nor be a garb  to avoid inconvenience, embarrassment or adverse to its defence in   the  action,  the  latter  themselves  a   ground   for disclosure.  If the court still desires to peruse the record for  satisfying itself whether the reasons assigned  in  the affidavit  would justify withholding disclosure,  the  court would,  in  camera, examine the record  and  satisfy  itself whether the public interest subserves withholding production or disclosure or making the document as part of the record. On  the  one  side  there  is  the  public  interest  to  be protected; on the other side of the scale is the interest of the  litigant  who  legitimately wants  production  of  some documents, which he believes will support his own or  defeat his adversary’s case.  Both are matters of public  interest, for it is also in the public interest that justice should be done  between  litigating  parties  by  production  of   all relevant  documents for which public interest  immunity  has been claimed.  They must be weighed one 826 competing public interest in the balance as against  another equally  competing  public administration of  justice.   The reasons are: there is public interest that harm shall not be done  to the nation or the public service by  disclosure  of the  document in question and there is public interest  that the  administration  of justice shall not be  frustrated  by withholding the document which must be produced, if  justice is to be done.  The court also should be satisfied  whether, the evidence relates to the affairs of the State under  sec. 123   or  not;  evidence  is  relevant  to  the  issue   and admissible.    As  distinct  from  private   interest,   the principle  on  which  protection is given is  that  where  a conflict arise between public and private interest,  private interest must yield to the public interest.  In S.P. Gupta & Ors.  etc. etc v. Union of India & Ors. etc. etc.  [1982]  2 SCR  365,  this court by seven Judges’ bench held  that  the court  would allow the objection to disclosure if  it  finds that  the  document  relates to affairs  of  State  and  its disclosure would be injurious to public interest, but on the other  hand, if it reaches the conclusion that the  document does  not  relate  to affairs of State or  that  the  public interest  does  not compel its non-disclosure  or  that  the public  interest  in the administration of  justice  in  the particular  case  before it overrides all other  aspects  of public  interest, it will overrule the objection  and  order disclosure of the document. When  an  objection  was  raised  against  disclosure  of  a particular document that it belongs to a class which in  the

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public interest ought not to be disclosed, whether or not it would  be  harmful to disclose that class  document  or  the contents  of  that particular document forming part  of  the class would be injurious to the interest of the state or the public  service, it would be difficult to decide  in  vacuum the claim because it would almost invariably be supported by an  affidavit  made either by the Minister or  head  of  the department  and if he asserts that to disclose the  contents of  the  document  would or might do to the  nation  or  the public  service a grave injury, the court out  of  deference will  be  slow  to  question his opinion  or  to  allow  any interest,  even that of justice, to prevail over  it  unless there  can be shown to exist some factors suggesting  either lack  of good faith or an error of judgment on the  part  of the minister or the head of the department or the claim  was made in administrative routine without due consideration  or to avoid inconvenience or injury to their defence.  However, it  is well-settled law that the court is not bound  by  the statement made by the minister or the head of the department in  the  affidavit and it retains the power to  balance  the injury  to the State or the public service against the  risk of injustice.  The real question which the court is required to  consider  is  whether public interest is  so  strong  to override  the  ordinary right and interest of  the  litigant that  he shall be able to lay before a court of  justice  of the relevant evidence.  In balancing the competing  interest it is the duty of the court to see that there is the  public interest that harm shall not be done to the nation or the 827 public service by disclosure of the document and there is  a public interest that the administration of justice shall not be  frustrated  by  withholding  documents  which  must   be produced  if justice is to he done.  It is,  therefore,  the paramount  right and duty of the court not of the  executive to  decide  whether a document will be produced  or  may  he withheld.   The  court must decide which  aspect  of  public interest  predominates or in other words whether the  public interest  which  requires that the document  should  not  be produced  out  weighs the public interest that  a  court  of justice  in  performing its functions should not  be  denied access to relevant evidence.  In some cases, therefore,  the court  must  weight  one  competing  aspect  of  the  public interest  against  the other, and decide where  the  balance lies.  If the nature of the injury to the public interest is so grave a character then even private interest or any other interest  cannot be allowed to prevail over it.   The  basic question  to  which  the court  would.  therefore,  have  to address  itself for the purpose of deciding the validity  of the  objection  would be, whether the  document  relates  to affairs  of  State  or  in other words,  is  it  of  such  a character that its disclosure would be against the  interest of  the State or the public service and if so,  whether  the public interest in- it-; non-disclosure is so strong that it must prevail over the private interesting the administration of justice and on that account, it should not be allowed  to be disclosed.  By operation of Sec. 162 of Evidence Act  the final  decision  in regard to the validity of  an  objection against disclosure raised under section 123 would always  be with  the court.  The contention, therefore, that the  claim of public interest immunity claimed in the affidavit of  the State  Minister for Finance and the Secretary  need  privacy and claim for immunity of state documents from disclosure is unsustainable. The same is the law laid down by the Commonwealth countries, see Conway v. Rimmer. 1968 A.C. 910, (H.L.); D. v.  National

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Society  for the Prevention of Cruelty to Children  1978  AC 171. (H.L.); Burmah Oil Co. Ltd. v. Governor and Company  of the  Bank of England, 1980 AC 1090 (H.L.); Butters  Gas  and Oil Co. v.Hammer 1982 AC 888 (H.L.); Air Canada v. Secretary of  State for Trade [1983] 2 AC 394 (H.L.); and  Council  of Civil Service Unions v. Minister for the Civil  service,1985 AC  374 (H.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 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 military 828 secrecy  or of the document relating to  foreign  relations. In  other respects the Court would reject the  assertion  of executive  privilege. hi United States v. Reynolds [1935]  1 345  U.S. 1, Environment Protection Agency v. Patsy T.  Mink [410]  U.S.  73 (35) L.Ed. 2nd 11; Newyork Times v.   U.  S. [1971] 403 US 731; Pentagan Papers case and U. S. v. Richard M.  Nixon  [1974] 418 US 683 = 41 L.Ed 2nd  1035.   What  is known  as Watergate Tapes case, the Supreme Court of  U.S.A. rejected  the  claim of the President not  to  disclose  the conversation he had with the officials.  The  Administrative Procedure  Act  5,  Art 552 was  made.   Thereunder  it  was broadly  conceded to permit access to official  information. Only is stated hereinbefore the President is to withhold top secret   documents  pursuant  to  executive  order   to   be classified and stamped as "highly sensitive matters vital to our  national  defence  and  foreign  policies".   In  other respects under the Freedom of Information Act, documents are accessible  to  production.   In the  latest  Commentary  by McCormick on Evidence, 4th Ed. by John W. Strong in  Chapter 12,  surveyed  the  development  of  law  on  the  executive privilege and stated that at p. 155, that "once we leave the restricted  area  of  military  and  diplomatic  secrets,  a greater  role  for  the judiciary in  the  determination  of governmental claims of privilege becomes not only  desirable but  necessary..............  Where  these  privileges.  are claimed,  it  is  for the judge  to  determine  whether  the interest  in  governmental  secrecy is out  weighed  in  the particular case by the   litigant’s  interest  in  obtaining the evidence sought.    A  satisfactory striking of    this balance will, on the one hand, require consideration of  the interests giving rise to the privilege and an assessment  of the  extent  to which disclosure will  realistically  impair those  interests.   On the other hand,  factors  which  will affect the litigant’s need will include the significance  of the  evidence sought for the case. the availability  of  the desired   information  from  other  sources,  and  in   some instances  the  nature of the right being, asserted  in  the litigation." In  Robinson v. State of South Australia, 1931 A.C. 704  PC, Shankey v. Whitlan [1979] 53 ALR p.1; FAI Insurances Ltd. v. The Hon.  Sir, Henry Arthus Winneke and ors, [1982] 151  CLR 342, whitlan v. Australian Consolidated Press Ltd.,[1985] 60 ALR p.7; Minister for Arts Heritage and Environment and Ors. v.  Pekoi  Wallsend  Ltd  and Ors. [1987]  75  ALR  218  and Commonwealth of Australia v. Northern Land Council, and Anr. [1991] 103 ALR 267, Australian Courts consistently  rejected the executive privilege and exercise the power to  determine

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whether  the documents need immunity from disclosure in  the public interest.  The same view was endorsed by the  Supreme Court of ’Canada in R. v. Shinder 1954 SLR 479 and Gagnon v. Quebec,  Securities  Commission 1964 SCR  329;  The  Supreme Court  of Victoria in Bruce v. Waldron. [1963] VLR p.3;  The Court of Appeal of New south Wales in Re Tunstall.  Ex.   P. Brown, [1966] 84 W.N. (Pt. 2) 829 [N.S.W.]  13.   The Court of Appeal of the  New  Zealand  in Corbett  v.Social Security Commission [1962]  N.Z.L.R.  878, Creednz Inc v. Governor General [1981] 1 N.L.R. p. 172;  The Supreme  Court  of  Ceylon in  Apponhamy  v.  Illangaretute, [1964]  66  C.L.W. 17.  The Court of Appeal  of  Jamaica  in Allen  v. By field [No.2] [1964] 7 W.I.R. 69 at page 71  and The  Court of Session in Scotland in Glasqow Corporation  v. Central Land Board, [1956] Scotland Law Time p.4. The learned Solicitor General contended that a Cabinet  sub- committee  constituted under Rules of Business approved  the appointment  of Harish Chander as President of  CEGAT.   The President  accordingly appointed him.  By operation of  Art. 77 (3) and 74(1), the appointment was made by the President. The  file constitutes Cabinet documents forming part of  the Preparation of the documents leading to the formation of the advice  tendered to the President.  Noting of the  officials which lead to the Cabinet note and Cabinet decision and  all papers  brought into existence to prepare Cabinet  note  are also its part.  Section 123 of the Evidence Act and  Article 74(2) precludes this court from inquiring into the nature of the advice tendered to the President and the documents  are, therefore,  immuned from disclosure.  The  disclosure  would cause  public injury preventing candid and frank  discussion and  expression of views by the bureaucrats at higher  level and  by the 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  all  papers  concerned  with  the   government policies  belong  to a class documents which in  the  public interest they or contents thereof must be protected  against disclosure. The executive power of the Union vested in the President  by Operation  of  Art. 53(1) shall be exercised by  him  either directly   or  through  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.  Article 74(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 830 advice.   The  proviso thereto added by section  11  of  the Constitution 44th Amendment Act, 1978 which came into effect

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from  June  20,  1979  envisages  that  "provided  that  the President may require the Council of Ministers to reconsider such   advice,  either  generally  or  otherwise,  and   the President  shall act in accordance with the advice  tendered after  such reconsideration." Clause (2) declares that  "the question whether any, and if so what, advice was tendered by Minister to the President shall not be inquired into in  any court." In Satwant Singh Sawhney v. D. Ramarathnam.   Asstt. Passport  Officer  [1967]  3  SCR  525,  and  in   Maganbhai Ishwarbhai  Patel  v. Union of India and anr. [1969]  3  SCR 254,  this  Court  held  that  the  Ministers  are  officers subordinate  to  the  President under Art. 53  (1)  or  ’the Governor under Art. 154 (1),. as the case may be. The  President exercises his executive power under  Art:  74 (1) through the Council of Ministers with the Prime Minister as  its  head who shall be collectively responsible  to  the House of People.  The exercise of the power would be as  per the  rules  of business for convenient  transaction  of  the Govt. administration made under Art. 77(3), viz., the  Govt. of India (Transaction of Business) Rules, 1961 for short the ’Business  Rules’.  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 India shall be expressed to be taken in the name of the  President and  shall be authenticated in the manner specified  in  the Rules made by the President.  The President issued  business rules and has allocated diverse functions to the Council  of Ministers,  its committees and the officers  subordinate  to them. In  Shamsher  Singh v. State of Punjab [1975] 1 SCR  814,  a Bench of seven Judges, speaking through Ray, C.J., held that the  executive power is generally described as  the  residue which does not fall within legislative or judical power  but executive  power also partakes of legislative  or  judicial, actions.  All powers and functions of the President,  except his  legislative powers, are executive powers of  the  Union vested  in  the President under Art. 53(1).   The  President exercises  his  functions,  except conferred on  him  to  be exercised in his discretion, with the aid and advice of  the Council  of  Ministers as per the business  rules  allocated among   his   Ministers   or   Committees.    Wherever   the constitution requires the satisfaction of the President, the satisfaction required of him by the Constitution is not  the personal  satisfaction  of  the President,  but  is  of  the Cabinet  System  of  Govt.   The  Minister  lays  down   the policies.   The  Council  of  Ministers  settle  the   major policies.  The civil servant does it on behalf of the  Govt. as  limb  of  the Govt.  The decision  of  any  Minister  or officer under the rules is the decision of the President. 831 Cabinet is a constitutional mechanism to ensure that  before important  decisions are reached many sides of the  question are  weighed and considered which would mean that much  work must be done beforehand in interdepartmental discussions and in  the  preparation  of  papers  for  Cabinet   Committees. Political  decisions  of  importance  are  in  their  nature complies  and need sufficient time and considerate  thought. Equally,  the  decisions  relating to  public  service  need probity  and diverse consideration.  The Cabinet  system  is extremely  well adapted to making considered decisions  with all due speed and expedition.  The principle of  ministerial responsibility   has  a  verity  of  meanings  precise   and

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imprecise, authentic and vague.  Parliament rarely exercises direct  control  over Ministers.  Though the  floor  of  the House is the forum for correcting excesses of the government but rarely a place where a Minister can be expected to  keep the   information  secret.   Therefore,  the   Minister   is answerable for his decision to the Parliament is fanciful. Sir Ivor Jennings,in his Cabinet Government, stated that the Cabinet  is the supreme directing authority.  It  integrates what  would  otherwise  be  a  heterogeneous  collection  of authorities exercising a vast variety of functions.  Neither the  Cabinet  nor  the Prime Minister, as  such,  claims  to exercise  any  powers  conferred  by  law.   They  take  the decision, but the acts which have legal effect are taken  by others    the  Privy  Council,  a  Minister,   a   statutory commission and the like.  At page 81, it is stated, that the existence  and  activities of these  coordinating  ministers does not impair or diminish the responsibility to Parliament of  the  departmental  ministers  whose  policies  they  co- ordinate.  The ministers are fully accountable to Parliament for  any  act  of  policy  or  administration  within  their departmental  jurisdiction.   It does not  follow  that  the coordinating  ministers  are  non-responsible.   Having   no statutory powers as coordinating ministers, they perform  in that  capacity  no  formal  acts.  But  they  share  in  the collective  responsibility of the Govt. as a whole, and,  as Minister  they are accountable to Parliament.  At page  233, he  stated  that the Cabinet has to decide  policy  matters. Cabinet is policy formulating body.  When it has  determined on  a  policy, the appropriate department  carries  it  out, either  by  administrative  action  within  the  law  or  by drafting  a  bill  to be submitted to Parliament  so  as  to change the law.  The Cabinet is a general, controlling body. It  neither  desires,  nor  is able to  deal  with  all  the numerous details of the Govt.  It expects a minister to take all  decisions which are not of real  political  importance. Every Minister must, therefore, exercise his own  discretion as  to  what  matters arising in  his  department  ought  to receive  cabinet  sanction.  At page 35 1,  he  stated  that civil  servants  prepare  memorandum  for  their  Ministers. Ministers discuss in Cabinet.  Proposals are debated in  the House  of  Commons.  At the, persons involved  are  peculiar people  and  nobody knows what the man in  the  back  street thinks  of  it all, though the politician  often  thinks  he does.  On the Cabinet 832 Minister’s  responsibility at page 449, he stated that  when it is said that a Minister is responsible to Parliament,  it is meant that the House of Commons (in our constitution  Lok Sabha)  may demand an explanation.  If that  explanation  is not  considered  satisfactory  and  the  responsibility is collective,  the  House will vote against the Govt.  and  so compel   a   resignation   or   a   dissolution.    If   the responsibility is not collective, but the act or advice  was due  to  the negligence of or to an error of judgment  by  a Minister  and  the  House  disapproves,  the  Minister  will resign. In Halsbury’s Laws of England, Fourth Ed., Vol. 8, para 820, it  is  stated that the Cabinet control of  legislative  and executive   functions,   the  "modern  English   system   of government  is  the  concentration of the  control  of  both legislative and executive functions in a small body of  men, presided  over  by  the Prime Minister, who  are  agreed  on fundamentals  and  decide the most  important  questions  of policy secretly in the Cabinet.  The most important check on their  power  is the existence of a powerful  and  organised

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parliamentary opposition, and the possibility that  measures proposed  or carried by the government may subject  them  to popular disapproval and enable the Opposition to defeat them at  the  next general election and supplant  them  in  their control of the executive.  In Great Britain, Cabinet  system is based on conventions.  Patrick Gordon Walker in his  ’The Cabinet’  1973 Revised Ed. at p. 178 stated  that  basically Cabinet is a constitutional mechanism to ensure that  before important  decisions are reached many sides of the  question are weighed and considered.  This means that much work  must be  done beforehand in interdepartmental discussions and  in the  preparation  of papers for Cabinet Committees  and  the Cabinet.  Cabinet that acts without briefs or over  hastily’ think  for  themselves’  usually,  in  my  experience,  make mistaken  decisions.  Political decisions of importance  are in their nature complex and need some time and thought.  The cabinet   system  is  extremely  well  adapted   to   making considered   decisions   with  all   due   speed.    Cabinet discussions  as distinct from Cabinet decisions  must,  from their  nature,  be kept secret.  At page 184  he  maintained that the main effective change towards less secrecy would be for the Cabinet to share with Parliament and public more  of the  factual information on which the government makes  some of  their decisions.  Moves in this direction have begun  to be taken.  In his "the British Cabinet" John P.  Mackintosh, 2nd  Edn.  at  p.  11 stated that  if  there  is  dissension between  Ministers, matters may be thrashed out  in  private and  the contestants plead in turn with the Prime  Minister, but it is in the Cabinet that the conflict must be  formally solved,  the  minority  either accepting  the  decision  and assuming  joint responsibility or, if they  cannot  tolerate it,  tender  their resignations.  At p.529, he  stated  that some  decisions are taken by the Prime Minister alone,  some in consultation between him and the senior Ministers,  while others  are  left  to  heads of  departments,  to  the  full Cabinet, to the concerned Cabinet Committee, or to the 833 permanent officials.  Of these bodies the Cabinet holds  the central  position because, thou oh it does not often  govern in  that sense, it is the place where disputes are  settled, where  major policies are endorsed and where the balance  of the  forces  emerge if there is disagreement.  In  the  end, most  decisions  have  to be reported  to  the  Cabinet  and Cabinet  Minister  are the only ones who have the  right  to complain,  if they have not been informed or  consulted.  0. Hood  Phillips and Paul Jackson in their Constitutional  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 "committee  system has  increased the efficiency of the Cabinet, and enables  a great deal more work to be done by Ministers".  The  Cabinet itself is left free to discuss controversial matters and  to make  more important decisions, and its business  is  better prepared.  The system also enables non-Cabinet Ministers  to

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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 done either by himself or in his department". In ’the Cabinet Walker, at page 183 stated that the  feeling is  widespread that the Cabinet shrouds its affairs  in  too much secrecy and that Parliament, Press and public should be able  to participate to a greater degree in  formulation  of policy.   With few exceptions Cabinet decisions have  to  be made public in order to he made effective, although a  small number that do not need to be executed, do not become known, for instance talks with a foreign country or a decision  not to  take  some  action.  All  other  cabinet  decisions  are necessarily  disclosed and are subject to  public  scrutiny. Cabinet discussions as distinct from Cabinet decisions must, from  their  nature, be kept  secret.   Cabinet  discussions often depend upon confidential advice from civil servants or reports  from Ambassadors.  If those are disclosed and  thus become  subject  to  public attack, it  would  be  extremely difficult for the cabinet 834 to  secure free and frank advice.  In Rai Sahib  Ram  Jawaya Kapur & Ors. v. The State of Punjab [1955] 2 SCR 225 at 236, this  Court  held  that the existence of the law  is  not  a condition precedent for the exercise of the executive power. The   executive  power  connotes  the  residual   government function   that  remain  after  legislative   and   judicial functions  are taken away, subject to the provisions of  the Constitution or the law. It  would thus be held that the Cabinet known as Council  of Ministers  headed by Prime Minister under 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  initiation  of legislation,  the  maintenance of order,  the  promotion  of social  and economic welfare, direction of  foreign  policy. In  short  the  carrying on or supervision  of  the  general administration  of  the  affairs of  Union  of  India  which includes  political  activity and carrying  on  all  trading activities,   the  acquisition,  holding  and  disposal   of property  and the making of contracts for any  purpose.   In short  the primary function of the Cabinet is  to  formulate the  policies of the Govt. in confirmity with the  directive principles  of  the Constitution for the Governance  of  the nation; place before the Parliament for acceptance and would carry  on  the executive function of the State  as  per  the provisions of the Constitution and the laws. Collective   responsibility   under  Art.   75(3)   of   the Constitution  inheres  maintenance  of  confidentiality   as enjoined  in  oaths of office and of secrecy  set  forth  in Schedule III of the Constitution that the Minister will  not directly  or indirectly communicate or reveal to any  person or  persons any matter which shall be brought under  his/her consideration  or shall become known to him/her as  Minister

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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 collective responsibility envisaged by Art. 75(3) but also from its pragmatism.  Bagehot in  his ’The  English  Constitution’, 1964 Edition at p.  68  stated that  the  most curious point about the Cabinet is  that  so very  little is known about it.  The meetings are  not  only secret  in  theory, but secret in reality.  By  the  present practice,  no official minute in all ordinary cases is  kept of   them.    Even  a  private  note  is   discouraged   and disliked..........  But a Cabinet, though it is a  committee of  the  legislative assembly,is a committee  with  a  power which no assembly would-unless 835 for  historical accidents, and after  happy  experience-have been  persuaded  to  entrust  to any  committee.   It  is  a committee  which can dissolve the assembly  which  appointed it;  it  is a committee with a suspensive  veto-a  committee with a power of appeal. In Commonwealth of Australia v. Northern Land Council & Anr. [1991] 103 Australian Law Reports, p. 267, the Federal Court of Australia  General Division, was to consider the scope of confidentiality   of   the   cabinet   papers,    collective responsibility of the Council of Ministers and the need  for discovery  of  the  Cabinet note-books and  dealt  with  the question  thus  : "The conventional wisdom  of  contemporary constitutional  practice  present  secrecy  as  a  necessary incident of collective responsibility.  But historically  it seems  to have derived from the 17th century origins of  the cabinet  as an inner circle of Privy Councillors,  sometimes called  the  Cabinet Council who acted as  advisors  to  the monarch............ However, that basis for  confidentiality has   to  be  assessed  in  the  light  of  the   political, imperatives  of collective responsibility."  Confidentiality has been described as’ the natural correlative of collective responsibility.  It is said to be difficult for Ministers to make an effective defence in public of decisions with  which it  is  known  that they have disagreed  in  the  course  of Cabinet discussions.  The Cabinet as a whole is  responsible for  the advice and conduct of each of its members.  If  any member  of the Cabinet seriously dissents from  the  opinion and policy approved’ by the majority of his colleagues it is his  duty as a man of honour to resign.  Cabinet secrecy  is an  essential  part  of the structure  of  government  which centers of political experience have created.  To impair  it without  a very strong reason would be vandalism the  wanton rejection of the fruits of civilisation. By  operation  of  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 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

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Constitution  and the laws.  Political promises or  aims  as per manifesto of the political party are necessarily  broad; in  their particular applications, when voted to power,  may be  the  subject of disagreement among the  members  of  the Cabinet. 836 Each  member of the Cabinet has personal  responsibility  to his  conscience and also responsibility to  the  Government. Discussion  and persuasion may diminish disagreement,  reach unanimity,  or leave it unaltered.  Despite  persistence  of disagreement, it is a decision, though some members like  it less   than  others.   Both  practical  politics  and   good Government  require that those who like it less  must  still publicly support it.  If such support is too great a  strain on  a  Minister’s  conscience  or  incompatible  to  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 was to the making of the decision,  whether favourable or unfavourable, every other member will keep  it secret.    Maintenance   of  secrecy  of   an   individual’s contribution   to  discussion,  or  vote  in   the   Cabinet guarantees  most  favourable  and  conducive  atmosphere  to express  views formally.  To reveal the view, or vote, of  a member of the Cabinet, expressed or given in Cabinet, is not only  to disappoint an expectation on which that member  was entitled  to  rely, but also to reduce the security  of  the continuing  guarantee,  and  above  all,  to  undermine  the principle     of    Collective    responsibility.  Joint responsibility   supersede  individual  responsibility;   in accepting responsibility for joint decision, each member  is entitled  to an assurance that he will be  held  responsible not  only  for  his own, but also as  member  if  the  whole Cabinet which made it; that he will be held responsible  for maintaining  secrecy of any different view which the  others may  have expressed.  The obvious and basic fact is that  as part of the machinery of the Government, Cabinet secrecy  is an  essential  part  of the  structure  of  the  government. Confidentiality   and  collective  responsibility  in   that scenario  are  twins to effectuate the object of  frank  and open  debate  to  augment efficiency of  public  service  or effectivity  of  collective  decision  to  elongate   public interest.  To hamper and impair them without any  compelling or  at  least strong reasons, would be  detrimental  to  the efficacy  of public administration.  It would tantamount  to wanton rejection of the fruits of democratic governance, and abdication of an office of responsibility and dependability. Maintaining  of  top secrecy of new taxation policies  is  a must but leaking budget proposals a day before  presentation of  the  budget  may  be an  exceptional  occurrence  as  an instance. Above compulsive constraints would give rise to an immediate question whether the minister is required to disclose in the affidavit  the  reasons  or  grounds  for  public   interest immunity  of disclosure and the oath of secrecy  is  thereby whether  breached or whether it would be a shield  for  non- production of unpub- 837 lished state documents or an escape route to- acts  impugned as fondly pleaded and fervently argued by Attorney  General. It  is  already  held  that on  issuance  of  rule  nisi  or discovery  order  nisi" every or,-,an of the  State  or  the

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authority  or  a person is enjoined to act in  aid  of  this court and pursuant thereto shall be required to produce  the summoned  documents.  But when a claim for  public  interest immunity  has  been  laid for non-disclosure  of  the  state documents,  it is the Minister’s "due discharge of duty"  to state on oath in his affidavit the grounds on which and  the reasons  for  which he has been persuaded  to  claim  public interest  immunity from disclosure of the state  papers  and produce  them.  The oath of secrecy the Minister  had  taken does  not absolve him from filing the affidavit.  It is  his due  discharge  of  constitutional  duty  to  state  in  the affidavit  of  the grounds or reasons in support  of  public interest immunity from producing the state documents  before the Court, In Attorney General v. Jonathan Cape Ltd.  [1976] Queen’s  Bench,  752,  Lord  Widgery,  C.J.,  repelled   the contention that publication of the diaries maintained by the Minister would be in breach of oath of secrecy.  In  support of the plea of secrecy reliance was placed on the debates on cabinet secrecy, that took place on December 1, 1932 in  the House  of  Lords.  An extract from the  official  report  of House  of  Lords,  at  Column  520  Lord  Hailsham’s  speech emphasised  the  imperative  to  maintain  secrecy  and  the limitation  which  rigidly hedged around the position  of  a Cabinet  Minister  thus: "having heard that oath  read  your Lordships  will appreciate what a complete misconception  it is.  to  suppose, as some people seem inclined  to  suppose, that the only obligation that rests upon a Cabinet  Minister is  not  to  disclose what are described  as  the  Cabinet’s minutes.   He is sworn to keep secret all matters  committed and revealed unto him or that shall be treated secretrly  in council".  He went on to point out that:-               "I have stressed that because, as my noble and               learned friend Lord Halsbury suggested and the               noble  Marquis,  Lord  Salisbury,   confirmed,               Cabinet  conclusions  did not exist  until  16               years  ago.  The old practice is set out in  a               book which bears the name of the noble  Earl’s               father, Halsbury’s Laws of England, with which               I have had the honour to be associated in  the               present edition." Then in column 532 of the speech Lord Hailsham, stated  that the oath of secrecy should be maintained.  "Upon matters  on which  it is their shorn duty to express,  their.  opinions. with complete frankness and to give all information, without any  haunting  fear  that  what  happens  may  hereafter  by publication  create difficulties for themselves or, what  is far  more grave, may create complications for the  king  and country that they are trying to serve.  For those reasons  I hope  that the inflexible rule which has hitherto  prevailed will  be maintained in its integrity, and that if there  has been  any  relaxation or misunderstanding, of  which  I  say nothing, 838 the debate in this House will have done something to clarify the position and restate the old rule in all its rigour  and all its inflexibility." As  a  Council  of Minister, his duty  is  to  maintain  the sanctity of oath and to keep discussions and information  he had  during  its  course  as  secret.   Lord  Widgery  after considering  the evidence of a former Minister  examined  in that  case  who did not support the view of  Lord  Hailsham, held  thus: "that degree of protection, afforded to  cabinet papers  and discussions cannot be determined by single  rule of   thumb.   Some  secrets  require  a  high  standard   of protection for short time, other requires protection till  a

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new  political  generation has taken over.  In  the  Present action  against  the  literary  executors,  "the   perpetual injunction  against them restraining from their  publication was  not  proper".  It was further held that  the  draconian remedy when public interest demands it would be relaxed. In  Sankey  v.  Whitlan  1979  153  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 does not assist the argument that the production  of State papers cannot be compelled.  The plea of privilege was negatived  and  the  Cabinet  papers  were  directed  to  be produced.  The contention that the Minister is precluded  to disclose  in his affidavit the grounds or the reasons as  to how  he  dealt with the matter as a part of  the  claim  for public interest immunity is devoid of substance. It  is already held that it is the duty of the  Minister  to file  an  affidavit stating the grounds or  the  reasons  in support  of  the claim from public  interest  immunity.   He takes  grave risk on insistence of oath of secrecy to  avoid filing an affidavit or production of State documents and the court  may  be  constrained to draw such  inference  as  are available  at  law.  Accordingly we hold that  the  oath  of office of secrecy adumberated in Article 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. The  next  limb  of the argument is that  the  Cabinet  Sub- committee’s decision is a class document and the contents of state  documents  required  to be  kept  in  confidence  for efficient functioning of public service including candid and objective  expression  of the views on the  opinion  by  the Ministers  or  bureaucrats  etc.   The  prospects  of  later disclosure at a at a litigation would hamper and dampen 839 candour  causing  serious  incursion into  the  efficacy  of public  service  and  result  in  deterioration  in   proper functioning  of the public service.  This blanket  shielding of  disclosure was disfavoured right from Robinson 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 confidentiality 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 Chief Justice of the Delhi  High  Court,  Chief  Justice of  India  and  the  Law Minister  of  the  Union concerning  extension  of  term  or appointment of Addl.  Judges of the Delhi High Court,  which was not dissented, (but explained by Fazal 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 only if the people know  how the Govt. is functioning and that they can fulfill their own democratic  rights  given to them and make the  democracy  a

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really  effective  participatory democracy.   There  can  be little doubt that exposure to public scrutiny is one of  the surest means of running a clean and healthy administration. Disclosure  of information in regard to the  functioning  of the Govt. must be the rule and secrecy can be  exceptionally justified   only   where  strict  requirements   of   public information was assumed.  The approach of the court must  be to  alleviate  the  area  of secrecy  as  much  as  possible constantly  with the requirement of public interest  bearing in  mind  all the time that the disclosure  also  serves  an important’  aspect  of public interest.  In  that  case  the correspondence between the constitutional functionaries  was inspected  by  this  court and  disclosed  to  the  opposite parties to formulate their contentions. In Conway’s case, the speech of Lord Reid is the sole votery to  support  the plea of confidentiality  emphasising  that, "the business of Govt. is difficult enough as it is no Govt. could contemplate with equanimity the inner workings of  the Govt.  machine being exposed to the gazes of those ready  to criticise  without adequate knowledge of the background  and perhaps  with some axe to grind".  Other Law  Lords  negated it.   Lord  Morris  of Borth-y-Gest referred  it  as  "being doubtful  validity".  Lord Hodson thought it "impossible  to justify  the  doctrine  in its  widest  term.   Lord  Pearce considered  that  "a  general  blanket  protection  of  wide classes 840 led to a 0complete lack of common sense".  Lord Upjohn found it  difficult to justify the doctrine "when those  in  other walks  of life which give rise to equally important  matters of  confidence in relation to security and personal  matters as  in the public service can claim no such privilege".   In Burmah  Oil  Co’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 that "any competent  and conscientious  public servant would be inhibited at  all  in the  candour  of his writings by consideration of  the  off- chance  that they might have to be produced in a  litigation as grotesque".  The plea of impairment of public service was also  held  not available stating "now a days the  state  in multifarious manifestations impinges closely upon the  lives and  activities  of  individual citizens.   Where  this  was involved  a citizen in litigation with the state or  one  of its   agencies,   the  candour  argument   is   an   utterly insubstantial  ground  for denying his  access  to  relevant document".   The  candour  doctrine stands  in  a  different category  from  that  aspect of  public  interest  which  in appropriate circumstances may require that the "Sources  and nature  of  information confidentially tendered"  should  be with  held from disclosure.  In Reg v., Lewes  Justices,  Ex Parte Secretary of state for the Home Department [1973] A.C. 388 and D.V National Society ,for the Prevention of  Cruelty to  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 Burnnah  Oil’s  case considered  that  it would be going too far to  lay  down  a total  protection to cabinet minutes.  The learned Law  Lord at p. 1134 stated that "something must turn upon the subject matter,  the  persons who dealt with it, and the  manner  in which  they  did so.  In so far as a  matter  of  government

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policy  is concerned, it may be relevant to know the  extent to which the policy remains unfulfilled, so that its success might  be  prejudiced by disclosure  of  the  considerations which  led to it.  In that context the time  element  enters into the equation.  Details of an affair which is stale  and no  longer  of  topical significance  might  be  capable  of disclosure   without   risk   of  damage   to   the   public interest..... The nature of the litigation and the  apparent importance to it of the documents in question may in extreme cases   demand  production  even  of  the   most   sensitive communications  to  the highest level."  Lord  Scarman  also objected total immunity to Cabinet documents on the plea  of candour.   In Air Canada’s case, Lord Fraser lifted  Cabinet minutes front the total immunity to disclose, although  same were entitled to a hi oh degree of protection ......." 841 In Jonathan Cape Ltd.’s case, it was held that, "it  seen-is that the degree of protection afforded to Cabinet papers and discussions cannot be determined by a single rule of  thumb. Some  secrets  require a high standard of protection  for  a short  time.  Others require protection until new  political generation   has  taken  over.   Lord  Redcliff   Committee, appointed pursuant to this decision, recommended time gap of 15  years to withhold disclosure of the cabinet  proceedings and  the Govt. accepted the same.  Shanky’s case  ratio  too discounted total immunity to the Cabinet document as a class and  the  plea of hampering, freedom and  candid  advice  or exchange  of views and opinions was also rejected.   It  was held  that the need for protection depends on the  facts  in each  case.  The object of the protection is to  ensure  the proper working of the Govt. and not to shield the  Ministers and   servants   of  the  crown  from   criticism   however, intemperate and unfairly based.  Pincus J. in Harbour  Corp. of  Queensland  v. Vessey Chemicals Ply Ltd. [1986]  67  ALR 100; Wilcox J. in Manthal Australia Pty Ltd. v. Minister for industry, Technology and commerce 11987171 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  United States District Court for the District of Columbia  indicted named  individuals,  charging them  with  various  offences, including  conspiracy  to defraud the United States  and  to obstruct  justice;  and Mr Nixon, the  President  of  United States  was also named as an unindicted coconspirator.   The special prosecutor issued a third party subpoena duces tecum directing the President to produce at the trial certain tape recordings and documents relating to his conversations  with aides   and   advisors  known  as  Watergate   rapes.    The President’s  executive  privilege  again  st  disclosure  of confidential  communications was negatived holding that  the right to the production of all evidence at a criminal  trial has  constitutional dimensions under sixth  amendment.   The fifth amendment guarantees that no person shall be  deprived of  liberty without due process of law.  It was,  therefore, held that it is the manifest duty of the court to  vindicate those  guarantees, and to accomplish that, it  is  essential that  all  relevant  and admissible  evidence  be  produced. Though  the court must weigh the importance of  the  general privilege of confidentiality of Presidential  communications in  performance of his responsibilities, it is an inroad  on the  fair administration of criminal justice.  In  balancing between    the   President’s   generalised    interest    in confidentiality  and the need for relevant evidence  in  the

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litigation,  civil  or criminal and though the  interest  in preserving  confidentiality is weighty indeed "and  entitled to great respect." Allowing privilege to withhold evidence that is demonstrably relevant  in  a  criminal trial would cut  deeply  into  the guarantee of due process of law and gravely impair the basic function of the courts.  A President’s acknowledged need for 842 confidentiality  in  the  communications of  his  office  is general   in   nature,  whereas  constitutional   need   for production of relevant evidence in a criminal proceeding  is specific,  and  central  to  the  fair  adjudication  of   a particular  criminal case in the administration of  justice. Without access to specific facts a criminal prosecution  may be  totally frustrated.  The President’s broad  interest  in confidentiality  of communications will not be  vitiated  by disclosure   of   a   limited   number   of    conversations preliminarily  shown  to have some bearing  on  the  pending criminal  cases.   If  the privilege is based  only  on  the generalized  interest in confidentiality, it cannot  prevail over  the fundamental demands of due process of law  in  the fair  administration of criminal justice.   The  generalized assertion  of  privilege  must yield  to  the  demonstrated, specific  need  for evidence in a  pending  criminal  trial. Exemptions  were engrafted only to the evidence relating  to "the  security  of  the  State,  diplomatic  relations   and defence".   It  was  held  that  "the  importance  of   this confidentiality is too plain to require further  discussion. Human  experience  teaches  that  those  who  expect  public dissemination of their remarks may well temper candor with a concern  for appearances and for their own interest  to  the detriment  of  the decision-making  process.   Whatever  the nature  of the privilege of confidentiality of  Presidential communications  in  the  exercise of  Art.  11  powers,  the privilege  can be said to derive from the supremacy of  each branch  within  its  own  assigned  area  of  constitutional duties.  Certain powers and privileges flow from the  nature of enumerated powers, the protection of the  confidentiality of  Presidential communications has  similar  constitutional underpinnings.  However, neither the doctrine of  separation of  powers, nor the need for confidentiality of  high  level communications,  without  more,  can  sustain  an  absolute, unqualified Presidential privilege of immunity from judicial process  under all circumstances.  The President’s need  for complete  candor  and objectivity from  advisers  calls  for great   deference  from  the  courts.   However,  when   the privilege  depends  solely on  the  broad,  undifferentiated claim  of  public interest in the  confidentiality  of  such conversations,  a  confrontation with other  values  arises. Absent  a claim of need to protect military, diplomatic,  or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality    of   Presidential    communications is significantly diminished by production of such material  for in camera inspection with all the protection that a district court will be obliged to provide. In a clash of public interest that harm shall be done to the nation  or  the  public service  by  disclosure  of  certain documents  and  the administration of justice shall  not  be frustrated  by  withholding  the  document  which  must   be produced if justice is to be done, it is the courts duty  to balance  the competing interests by weighing in scales,  the effect  of  disclosure on the public interest or  injury  to administration 843

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of  justice,  which  would do greater  harm.   Some  of  the important considerations in the balancing act are thus:  "in the interest of national security some information which  is so  secret that it cannot be disclosed except to a very  few for  instance the state or its own spies or agents  just  as other counters have.  Their very lives may be endangered  if there is the slighest hint of what they are doing.  In  Mark Hosenball.  R. v. Home Secretary. ex parte Hosenball  [1977] 1  WLR  766,  in  the interest  of  national  security  Lord Denning,  M.R. did not permit disclosure of the  information furnished  by  the security service to  the  Home  Secretary holding  it  highly confidence The public  interest  in  the security of the realm was held so great that the sources  of the information must not be disclosed nor should the  nature of the information itself be disclosed. There  is  a  natural temptation  for  people  in  executive position  to  regard  the  interest  of  the  department  as paramount  forgetting  that  there is  yet  another  Greater interest  to be considered, namely, the interest of  justice itself.  Inconvenience and justice are often not on speaking terms.  No one can suppose that the executive will never  be guilty of the sins common to all people.  Sometimes they may do  things  which they on which they on ought not to  do  or will  not  do things they ought to do.  The  court  must  be alive  to  that  possibility  of  the  executive  committing illegality in its process, exercising its powers, reaching a decision which no reasonable authority would have reached or otherwise  abuse its powers, etc.  If and when  such  wrongs are suffered or encountered injustice by an individual  what would  be  the remedy?  Just as shawl is  not  suitable  for winning  the cold, so also mere remedy of writ of  mandamus, certiorari,  etc.  or such action as is  warranted  are  not enough,  unless necessary foundation with factual  material, in  support  thereof,  are laid.  Judicial  review  aims  to protect a citizen from such breaches of power,  non-exercise of  power  or lack of power etc.  The  functionary  must  be guided  by  relevant  and germane  considerations.   If  the proceeding,  decision or order is influenced  by  extraneous considerations  which  ought  not to have  been  taken  into account, it cannot stand and needs correction, no matter  of the nature of the statutory body or status or stature of the constitutional  functionary though might have acted in  good faith.   Here  the  court in its  judicial  review,  is  not concerned  with  the  merits  of  the  decisions,  but   its legality.   It is, therefore, the function of the  court  to see   that   lawful   authority  is   not   abused.    Every communication  that passes between different departments  of the  Govt.  or between the members of  the  same  department interse  and every order made by a Minister or Head  of  the Department  cannot,  therefore, be deemed to relate  to  the affairs of the-state, unless it related to a matter of vital importance,  the disclosure of which is likely to  prejudice the interest of the state. Confidentiality, candour and efficient public service  often bear common 844 mask.   Lord Keath in Burmah Oil’s case, observed  that  the notion  that any’ competent or conscientious public  servant would  be  inhibited  in  the candour  of  his  writings  by consideration  of the off-chance that they might have to  be produced  inlitigationisgrotesque.  The possibility that  it impairs  the public service was also nailed.  This court  in S.  P.  Gupta’s  case also rejected the  plea  of  hampering candid  expression  of views or  opinion  by  constitutional functionaries  and  bureaucrats.  In Whitlam  v.  Australian

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Consolidated Press [1985] 60 ALR p. 7, the Supreme Court  of Australia  Capital  territory  in a  suit  for  damages  for defamation,  the  plaintiff, the former  Prime  Minister  of Australia was called upon to answer certain  interrogatories to disclose discussions and words uttered at the meeting  of the  Cabinet  or  of  the Executive  Council  at  which  the plaintiff had been present.  The commonwealth intervened and claimed  privilege prohibiting the plaintiff to disclose  by answering those interrogatories.  The claim was based on two grounds: (i) the oath taken by the plaintiff as a member  of the Executive Council; and also immunity from disclosing  of the Cabinet meetings and both were public policies.  It  was also  contended that it would be in breach of the  principle of  collective Cabinet responsibility.  The court held  that the oath taken by the plaintiff did not in itself provide  a reason  for refusing to answer the  interrogatories  whether immunity  from disclosure would be granted depends upon  the balancing  of two competing aspects, both of public  policy, on the one hand the need to protect a public interest  which might be endangered by disclosure, and on the other the need to  ensure that the private rights of  individual  litigants are not unduly restricted.  The disclosure of the meeting of the  Cabinet  or  of the Executive Council would  not  be  a breach  of  the  principle of  other  two  responsibilities. Bagehot  stated, protection from disclosure is not  for  the purpose of shielding them from criticism, but of  preventing the attribution to them of personal responsibility.  It  was stated that "I am not required to lay down a precise test of when  an individual opinion expressed in Cabinet becomes  of merely  historical  interest".   The  Cabinet  minutes   and minutes  of  discussion  are a class.  They  might  in  very special  circumstances  be  examined.   Public  interest  in maintaining  Cabinet secrecy easily outweighs  the  contrary public  interest in ensuring that the defendant  has  proper facilities  for conducting its case, principally because  of the  enormous  importance of Cabinet secrecy  by  comparison with the private rights of an individual and also because of the   relative   unimportance  of  these  answers   to   the defendant’s  case.   Answers to  interrogatories  87  (vii), (viii)  and  (ix)  were restrained  to  be  disclosed  which relates  to the members of the Council who expressed  doubts as to whether the borrowing was wholly for temporary purpose and  to identify such purpose.  In Jonathan Cape Ltd.  case, Lord  Widgery  CJ.  held that  publication  of  the  Cabinet discussion  after  certain lapse of time would  not  inhibit free  discussion  in the Cabinet of today, even  though  the individuals involved are the same, and the national problems have  a distressing similarity with those of a  decade  ago. It is difficult to say at what point the material 845 loses  its  confidential  character.  on  the  ground   that publication  will no longer undermine the doctrine of  joint Cabinet  responsibility.   The doctrine  of’  joint  Cabinet responsibility is not undermined so long as the  publication would  not "inhibit free discussion in the Cabinet  and  the court decides the issue’.  In Minister for Arts Heritage and Environment and Ors. v. Peko-Wallsend Ltd. and Ors. 11987175 ALR  218, Federal Court of Australia  General Division,  the respondent had mining lease under the existing law.  In 1986 the Cabinet decided that portion of the same land covered by KNP Kakadu National Park in the Northern Territory (State 2) was earmarked for inclusion in the World Heritage List  (the List)  which had been established under the  World  Heritage Convention  (the  Convention) and to  submit  to  Parliament aplan  of  management for the national park  which  differed

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from  a previous plan "which enabled exploration and  mining to take place outside pre-existing leases with the  approval of the Governor-General".  Under the Convention on  listing, could  be  made  without the "consent" of  the  State  party concerned.  The respondents laid the proceedings to restrain the  appellants  from taking further steps to have  Stage  2 nominated  for  inclusion  on the list  on  the  basis  that Cabinet was bound by tile rules of natural justice to afford the man opportunity to be heard and that it failed to do so. The  Single Judge declared the action as  void.   Thereafter the  National Park and Wildlife conservation Amendment  Act, 1987 came into force adding sub-s. (IA) 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 taken for the prerogative of the Cabinet is subject to  judicial  review.   In  Commonwealth  of  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  information  which  may  either   directly   or indirectly enable the party requiring them either to advance his  own  case  or to damage the case of  his  advisory  are necessary.  The  class  of  Cabinet  papers  do  not  afford absolute  protection against disclosure and is not  a  basis for  otherwise  unqualified immunity from  production.   The Commonwealth  cannot claim any immunity for public  interest immunity  from production.  The court should decide  at  the threshold   balancing   of  the  public  interest   in   the administration  of justice.  The court does not have  to  be satisfied  that, as a matter of likelihood rather than  mere speculation, the materials would contain evidence for tender at trial. 846 In  a  democracy it is inherently difficult to  function  at high governmental level without some degree of secrecy.   No Minister, nor it Senior Officer would effectively  discharge his official responsibilities if every document prepared  to formulates sensitive policy decisions or to make  assessment of  character rolls of coordinate officers at that level  if they  were  to  be made  public.   Generally  assessment  of honesty and integrity is a high responsibility.  At high co- ordinate  level  it  would be a  delegate  one  which  would furthered compounded when it is not backed up with material. Seldom  material  will  be  available  in  sensitive  areas. Reputation gathered by an officer around him would form  the base.   If the reports are made known, or if the  disclosure is routine, public interest grievously would suffer.  On the other hand, confidentiality would augment honest  assessment it) improve efficiency and integrity in the officers. The  business of the Govt., when transacted by  bureaucrats, even  in  personal  level, it would  be  difficult  to  have equanimity  if the inner working of the Govt.  machinery  is needlessly exposed to the public.  On such sensitive  issues it would hamper the expression of frank and forthright views or  opinions.  Therefore, it may be that at that  level  the deliberations  and  in  exceptional  cases  that  class   or category  of  documents  get protection  in  particular,  on policy  matters.  Therefore. the court would he  willing  to

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respond  to  the  executive  public  interest  immunity   to disclose  certain documents where national security or  high policy, high sensitivity is involved. In  Asiatic Petroleium v. Anglo-Persian Oil 1916  K.B.  822, the  court refused production of the letter  concerning  the Govt. plans relating to Middle Estern campaigns of the First World was. as claimed by the Board of Admiralty.  Similarly, in  Duncan v. Cammell Laired, 1942 A.C. 624, tile  House  of lords  refused disclosure of the design of sub-marine.   The national defence as a class needs protection in the interest of security of the State.  Similarly to keep good diplomatic relations  the state documents or official  or  confidential documents  between the Govt. and its agencies need  immunity from production. In  Council  of  Civil Service Union v.  Minster  for  Civil Service   1985   A.C.   374.   the   Govt.    Communications headquarters (GCHQ) functions were to ensure the security of military  and  official communications and  to  provide  the Govt. with signals intelligence.  They have to handle secret information  vital to national security.  The staff of  CCHQ was  permitted to be members of the trade union, but  litter on  instructions  were issued, without  prior  consultation, amending  the  Staff rules and directed them  to  dissociate from tile trade union activities.  The Previous practice  of prior  consultation  before  amendment  was  not   followed. Judicial review 847 was  sought  of the amended rules pleading that  failure  to consult the union before amendment amounts to unfair act and summoned  the records relating to it.  An affidavit  of  the cabinet  Secretary  was  filed  explaining  the   disruptive activities,  the  national security, and the  union  actions designed  to damage Govt. agencies.  Explaining the risk  of participation  by  the members in  further  disruption,  the House  held  that  executive  action  was  not  immune  from judicial  review  merely  because  it  was  carried  out  in pursuance  of  a  power  derived  from  a  common  law,   or prerogative,  rather than a statutory source and a  minister acting  under a prerogative power might, depending upon  its subject matter, whether under the same duty to act fairly as in  the  case  of  action under  a  statutory  power.   But, however,  certain information. on consideration of  national security, was withheld and the failure of prior consultation of  the trade union or its members before issue the  amended instruction or amending the rules was held not infracted. In  Burmah Oil Co’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 the bank.  The  state  claimed privilege  on  the basis of the certificate  issued  by  the Minister.  House of Lords per majority directed to  disclose certain  documents  which were necessary to dispose  of  the case fairly.  Lord Scarman laid that they were relevant, but their  significance was not such a:, to override the  public interest objections to their production.  Lords  Wilberforce dissented  and held that public interest demands  protection of them. In  The Australian Communist Party & Ors. v. Commonwealth  & Ors.  [1950-51] 83 C.L.R. p. 1, at p. 179, Dixon,  J.  while considering the claim of secrecy and non-availability of the proclamation  or  declaration  of the  Governor  General  in Council  based  on  the  advice  tendered  by  the  Minister rejected the privilege and held that the court would go into

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the  question  whether  the  satisfaction  reached  by   the Governor  General in Council was justified.  The  court  has ,one into the question of competence to dissolve a voluntary or  corporate association 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]  151 C.L.R.  170, the Northern Territory  (Self-Government)  Act, 1978  provides appointment of an Administrator  to  exercise and perform the functions conferred under the Act.  The Town Planning Act, 1979 regulates the area of land to be  treated as towns.  The Commissioner exercising powers under the  Act held  that part of the peninsula specified in  the  schedule was  not  available  for town Planning  Act.   When  it  was challenged.  there was a change in the law and the  Minister filed an affidavit 848 claiming  the  privilege of certain documents  stating  that with a view to preserve the land to the original, the  Govt. have decided to treat that the land will continue to be held by  or on behalf of the originals.  Gibbs,.  CJ.  held  that under  modern  conditions, a responsible  Govt.,  Parliament could not always be relied on to check excesses of power  by the Crown or its Ministers.  The court could ensure that the statutory  power  is exercised only for the  purpose  it  is granted.   The secrecy of the counsel of the Crown is by  no means complete and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to  see why it should not be acted upon.  It was concluded thus: "In my  opinion  no  convincing  reason  can  be  suggested  for limiting the ordinary power of the courts to inquire whether there  has  been a proper exercise of a statutory  power  by giving to the Crown a special immunity from review.  If  the statutory power is granted to the Crown for one purpose,  it is clear that it is not lawfully exercised if it is used for another.  The courts have the power and duty to ensure  that statutory powers are exercised only in accordance with law". The  factors-to decide the "public interest  immunity  would include" (a) where the contents of the documents are  relied upon, the interests affected by their disclosure; (b)  where the class of documents is invoked, where the public interest immunity for the class is said to protect; (c) the extent to which  the interests referred to have become  attenuated  by the passage of time or the occurrence of intervening  events since the matters contained in the documents themselves came into  existence;  (d)  the  seriousness  of  the  issues  in relation  to which production is sought; (e) the  likelihood that production of the documents will affect the outcome  of the  case; (f) the likelihood of injustice if the  documents are  not produced.  In President Nixon’s case,  the  Supreme Court of the United States held that it is the court’s  duty to  construe  and  delineate claims  arising  under  express powers,  to interpret claims with respect to powers  alleged to  derive from enumerated powers of the  Constitution.   In deciding  whether  the  matter  has  in  any  measure   been committed   by  the  Constitution  to  another   branch   of Government,  or  whether the action of that  branch  exceeds whatever authority has been committed, is itself a  delicate exercise  in  constitutional  interpretation,  and  is   the responsibility  of the court as ultimate interpreter of  the Constitution.  Neither the doctrine of separation of powers, nor   the   need   for   confidentiality   of   high   level communications,  without  more,  can  sustain  an  absolute, unqualified Presidential privilege of immunity from judicial process  under all circumstances.  The separation of  powers given in the Constitution were not intended to operate  with

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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.   III. The  very  integrity  of  the  judicial  system  and  public confidence in the system depend on full 849 disclosure  of  all the facts, within the framework  of  the rules  of evidence.  To ensure that justice is done,  it  is imperative to the function of courts that compulsory process be available for the production of needed evidence. The afore discussion lead to the following conclusions.  The President while exercising the Executive power under  Art.73 read with Art. 53, discharges such of those Powers which are 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  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 of  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 of  the administration of justice.  Each case must be considered  on its backdrop.  The President has no implied authority  under the  Constitution to withhold the documents.  On  the  other hand  it is his solemn constitutional duty to act in aid  of the  court to effectuate judicial review.  The Cabinet as  a narrow  centre  of  the  national  affairs  must  be  in   a possession  of all relevant information which is  secret  or confidential.   At the cost of repetition it  is  reiterated that  information relating to national security,  diplomatic relations.   internal  security  or   sensitive   diplomatic correspondence  per se are class documents and  that  public interest  demands total immunity from disclosure.  Even  the slightest  divulgence  would  endanger  the  lives  of   the personnel  engaged  in the services etc.   The  maxim  Salus Popules Cast Supreme Lax which means that regard 850 for  public  welfare  is  the  highest  law,  is  the  basic postulate  for  this  immunity.   Political  decisions  like declaration  of  emergency under Art. 356 are  not  open  to

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judicial review but it is for the electorate at the polls to decide   the  executive  wisdom.   In  other   areas   every communication  which preceded from one officer of the  State to  another  or the officers inter se does  not  necessarily per-se relate, to the affairs of the State.  Whether they so relate  has got to be determined by reference to the  nature of the consideration, the level at which it was  considered, the contents of the document or class to which it relates to and  their  indelible  impact on  public  administration  or public   service  and  administration  of  justice   itself. Article  74(2)  is  not a total bar for  production  of  the records.  Only the actual advice tendered by the Minister or Council  or  Ministers  to the President  and  the  question whether  any,  and if so, what ad\-ice was tendered  by  the Minister or Council of ministers to the President, shall not be  enquired into by the court.  In other words the  bar  of judicial  review  is confined to the factum of  advice,  its extent, ambit and scope but not the record i.e. the material on  which the advice is founded.  In S.P. Gupta’s case  (his court  held  that  only the actual advice  tendered  to  the President is immuned from enquiry and the immunity does  not extend to other documents or records which form part of  the advice tendered to the President. There  is  discernible  modern  trends  towards  more   open government than was prevalent in the past.  In its  judicial review the court would adopt in camera procedure to  inspect the  record  and  evaluate the  balancing  act  between  the competing  public interest and administration of  justice.It is  equally the paramount consideration that justice  should not  only be done but also would be publicly  recognised  as having  been done.  Under modern conditions  of  responsible government,  Parliament should not always he relied on as  a check  on  excess of power by the Council  of  Ministers  or Minister.   Though the court would not substitute its  views to  that  of the executive on matters of policy, it  is  its undoubted power and duty to see that the executive exercises its  power  only for the purpose for which  it  is  granted. Secrecy of the advice or opinion is by no means  conclusive. Candour,  frankness and confidentiality though are  integral facets  of  the  common genus  i.e.  efficient  governmental functioning,  per se by no means conclusive but be  kept  in view in weighing the balancing act.  Decided cases how  that power  often  was  exercised in excess  thereof  or  for  an ulterior purpose etc.  Sometimes the public service  reasons will be decisive of the issue, but they should never prevent the court from weighing them against the injury which  would be  suffered  in  the  administration  of  justice  if   the documents was not to be disclosed, and the likely injury  to the cause of justice must also be assessed and weighed.  Its weight will very according to the nature of the  proceedings in which disclosure is sought, level at which the matter was considered-, the subject matter of’ consideration, the 851 relevance of the documents and the degree of likelihood that the  document  will be of importance in the  litigation.  it striking the balance, the court may always, if it thinks  it necessary, itself inspect the documents. It is therefore the constitutional,  legitimate and  lawful power  and  duty  of this  court to ensure  that powers constitutional  statutory or   executive  are  exercised   in  accordance   with   the constitution   and the law. This may demand though no  doubt only  in limited  number of cases yet the inner workings  of government    may   be   exposed   to  public    gaze.   The contentions  of Attorney  General and Solicitor General that the  inner  workings of the government would be  exposed  to

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public   gaze, and that some  one who would  regard this  as an  occasion without  sufficient  material  to  ill-informed criticism is no longer  relevant. Criticism, calculated   to improve   teh  nature  of that  working  as  affecting   the individual citizen is welcome. In so far as unpublished government policy is concerned,  it may  be  relevant  to know the extent to  which  the  policy remains   unfulfilled,   so  that  its  success  might    be prejudiced by disclosure of the considerations which  led to it.   In    that   context  the   time    element    becomes relevant.Details of affairs  which are  stale and no  longer of  significance might be capable of disclosure      without risk of damage to the  public  interest .But  depending   on teh  nature  of he litigation  and the apparent   importance to  it  of the documents in question may in  extreme    case demand  production  even of the most  be considered  on  its backdrop.  President  has no implied authority  to  withhold the   document.  On  the  other  hand  it  is   his   solemn constitutional   duty  to  act  in  aid  of  the  court   to effectuate judicial review. The Cabinet as a narrow   centre of  the  national   affairs  must be in  possession  of  all relevant  information  which  is  secret  or   confidential. Decided   cases  on comparable  jurisdiction   referred   to earlier  did held that  executive  had no blanket   immunity to   withhold  cabinet   proceedings   or    decisions.   We therefore  hold that the communication decisions  or  policy to teh President  under Art. 74(1)  gives only protection by Art. 74(2) of judicial review of the actual advice  tendered to  the president  of India. The rest  of the file  and  all the  records  forming part  thereof  are open  to in  camera inspection  by this court. Each case must be considered   on its  own facts  and surrounding scenario       and  decision taken thereon. In  Jyoti Prokash Mitter v. Chief  Justice          Calcutta High  Court  [1965] 2 SCR  53 the question was  whether  the President  exercised  the powers  under Art. 217(3)  of  the Constitution was his discretionary  one or acts with the aid and advice of Council of Ministers. The Constitution   Bench held  that the dispute as be decided  by  the  President.The satisfaction  on  the  correctness  of age  is  that  of  he President. Therefore the matter has to be placed before  the President. The 852 President has to give an  opportunity to the judge to  place his version, before teh President considers and decides  the age   of  the judge. Accordingly  it would be  the  personal satisfaction of the President and not that of the Council of Ministers.In  the  latter  judgement   sequential  to   this judgement   in  Union  of India  v.  Jyoti  Prakash   [1971] 3SCR  4831,  it  was  held  that  the  mere  fact  that  the President  was  assisted by teh machinery  of  Home  Affaris Ministry  in  serving notices or  receiving   communications addressed to the learned  judge cannot lead to an  inference that    he  was  guided    review, this  court  upheld   the decision   of the President. In  this  context  it was  held that   the orders of the president, even though  made  final can be set aside  by court  in an  appropriate  case  though the  Court will not sit in appeal  over order and  will  not substitute  its  own opinion  to that of  the  president  by weighing the evidence placed  before the president. The  third  category of case namely the  decision  taken  at level  of the minister  or by the  authorised Secretary   at the  Secretary  level though expressed in the  name  of  the President is not immured from judicial scrutiny and  are  to be   produced  and  inspected   by  the  court.  If   public

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interest   immunity    under  Art.  74(2)   or  Sec  123  of Evidence  ACt is claimed, the court would  first consider it in  camera  and decide  the issue as  indicated  above.  Teh immunity must not be claimed  on administrative  route   and it  must   be  for valid, relevant  and  strong  grounds  or reasons stated in the affidavit filed in that behalf. Having perused  the file and given our anxious  considerations.  We are  of the  view that on th facts of the case and  in   the light   of  the view we have taken, it is not  necessary  to disclose   the contents of the records to the petitioner  or his counsel. The   first   schedule  of  the   business   rules   provide constitution  of Cabinet Standing committees  with  function specified   therein.  Item  2  is  "Cabinet   Committee   on appointments".  Which  is empowered  to consider in  item  1 all  recommendations and to take decisions  on  appointments specified  in  the Annexure to the first  Schedule.  Therein under  the  residuary heading all other appointments item  4 provides  that all other appointments which are made by  the Govt. of India  or which required  the approval of the Govt. of India carrying a salary excluding allowances or a maximum salary excluding allowances of less than Rs. 5, 300  require the   approval of the Cabinet Sub-Committee. As per item  37 of  the   Third  Schedule read with Rule 8 of  the  business Rules  it  shall  be submitted to  the  Prime  Minister  for appointment. Mr.  Harish  Chander  was appointed as  judicial  Member  on October  29, 1982. He was later on appointed on january  15, 1991 as Senior Vice President of 853 CEGAT after the direction were issued by this Court, he  was appinted as the President Mr. Jain assailed the validity  of his  appointment on diverse grounds. It was pleaded and  Sri Thakur,  his learned senior counsel, argued that as per  the convention, a sitting or a retired judge of the High  JCourt should  have  beenappointed  as president of  the  CEGAT  in consultation  with  the Chief Jusftice  ofIndia  and  Harish Chander  has  been appointed in disregafrd  of  the  express directions of this Court, It was, therefore, contended  that it was in breach jof the judicial orderpassed by this Court. It  was  therefore, contended that it was in breach  of  the judicial orderpassed by this Court under Art, 32 Secondly it was  contended  that  before  the  Actwas  made  a  positive commitment was made time and again by the Govt. on the floor of  the House that judicial independence of CEGAT  is  sifne qua  non to sustain the confidence of the  litigant  public. The appointment of any person other thansitting or a retired judge of the High Court as President would be in its breach. Inits   support   it   was  cited  the   instance   of   Mr. Kalyansundaram  as  being the seniormost member,  his  claim should  have  been  considered  before  Harish  Chander  was appointed.    Sri   Thakur   further   argued   that    when recommendations of HarishChander for appointment as a  Judge of the Delhi High Court was turned down by the Chief Justice of  India  doubting his integrity, the appointment  of  such personof  doubtful  integrity as President would  erode  the independence  of the judiciary and undermine the  confidence of   the  litigant  public  in  the  efficacy  of   judicial adjudication,  even  though  the rules may  permit  such  an appointment.  The  rules  are  ultra  vires  of  the   basic structure, namely, independence of judiciary, Sri Thakur, to elaborate these conditions, sought permission to peruse  the record.    Sri  Venugopal  , the learned Senior Counsel  for  Harish Chander  argued  that  his  client  being  the  senior  Vice

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President was fvalidly appointed as President of the  CEGET. Harish  Chander  has an excellent and impeccable  record  of service without any adverse remarks. His recommendation  for appointment  as  a  judge  of  the  Delhi  High  Court,  was "apparently  dropped"  which would not be  construed  to  be adverse to Harish Chander. On behalf ofCentral Govt. it  was admitted  in  thecounter affidavit that since rules  do  not envisage  consultation with the Chidf  Justice  consultation was not done. It was argued that the Govt. have  prerogative to  appoint  any  member or Vice  Chairman  or  Senior  Vice President  as President of CEGAT. Harish Chander  being  the senior  Vice  President,  his case was  considered  and  was recommended  by the cabinet sub Committee  for  appointment. Accordingly he was appointed.     Under  section  129 of the Customs Act 52  of  1962  for short the Act. The Central Govt. shall constitute the  CEGAT consisfting of as many judicial and technical members as  it thinks  fit  to  exercise  the  powers  and  discharge   the functions  conferred  by  the Act.  Subject  to  making  the statement of the case for 854 decision on any question of law arising out of orders of the CEGAT  by  the  High Court under section  130:  it)  resolve conflict of decisions by this Court under section 130A,  the orders  of the CEGAT   by operation of sub-sectiton  (4)  of Section 129B.  "shall be final".  The President of CEGAT  is the controlling authority as well as Presiding authority  of the tribunals constituted at different places.  Constitution of the CEGAT came to be made pursuant to the 5th Schedule of the Finance Act 2 of 1980 with effect from October 11, 1982. The  President of India exercising the power  under  proviso it) Art. 309 of the Constitution made the Rules.  Rule  2(c) defined  "member" means a member of the Tribunal and  unless the context otherwise requires, includes the President,  the Senior  Vice President, a Vice President, a judicial  member and  a technical member. 2(d) defines "President" means  the President  of  the Tribunal.  Rule 6  prescribes  Method  of Recruitment.  Under Sub-rule (1) thereof for the purpose  of recruitment  to  the  Post  of  member,  there  shall  be  a Selection  Committee  consisting  of - (i) a  judge  of  the Supreme Court of India as nominated by the Chief Justice  of India to preside over as Chairman; (ii) the Secretary to the Govt.  of India in the Ministry of Finance,  (Department  of Revenue);  (iii) the Secretary to the Govt. of India in  the Ministry  of  Law (Department of legal  Affairs);  (iv)  the President; (v) such other persons, not exceeding two, as the Central Govt. may nominate. Sub-Rule (4) - Subject to the provisions of Section 10,  the Central  Govt.  shall, after taking into  consideration  the recommendations  of the Selection Committee. make a list  of persons  selected  for  appointment  as  members.   Rule  10 provides  thus: (1) The Central Govt. shall appoint  one  of the member to be the President. (2)   Notwithstanding  anything  contained  in  rule   6   a sitting,  or  retired  judge of a High  Court  may  also  be appointed by the Central Government use member and President simultaneously. (3)  Where  a member (other than a sitting or retired  judge of a High Court is appointed as President, he shall hold the office of the President for a period of three years or  till he attains the age of 67 years, whichever is earlier. (4)  Where a serving judge of a High Court is appointed as a member and President, he shall hold office as President  for a period of three years from the date of his appointment  or till he attains the age of 62 years. whichever is earlier.

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Provided  that where a retired judge of a High  Court  above the age of 62 years is appointed as President. he shall hold office for such period not exceeding, three 855 years as may he determined by the Central Govt.  At the time of  appointment or reappointment.  The Jha Committee in  its report   in  para  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,  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 that GEGAT is a judicial  body  and functions  as court within the limits of  its  jurisdiction. As  a  fact the Minister time and again during  the  debates when  the Bill was under discussion assured both the  Houses of  Parliament  that  the CEGAT would  be  a  judicial  body presided over by a High Court Judge.  In Keshwa nand  Bharti v.   Union  of  India  [1973]  Supp.   SCR  1,  Mathew   and Chandrachud,  JJ. held that rule of law and judicial  review are  basic features of the Constitution.  It was  reiterated in  Waman  Rao v. Union of India [1980] 3 SCC  587,  As  per directions therein the Constitution Bench reiterated in  Sri Raghunathrao Ganpatrao v. Union of India [1993] 1 SCALE 363. In  Krishna Swami v. Union of India [1992] 4 SCC 605 at  649 para  66 one of us (K.R.S.J.) held that judicial  review  is the  touchstone  and repository of the supreme  law  of  the land.   Rule  of law as basic feature permeates  the  entire constitutional  structure Independence of Judiciary is  sine quo non for the efficacy, of the rule of law.  This court is the final arbiter of the interpretation of the  constitution and the law. In  S.P. Sampat Kumar v. Union of India & Ors.[1987]  1  SCR 435. this Court held that the primary duty of the  judiciary is to interpret the Constitution and the laws and this would preeminently be a matter fit to be decided by the judiciary, as  judiciary alone would be possessed of expertise in  this field  and secondly the constitutional and legal  protection afforded  to the citizen would become illusory, if  it  were left  to the executive to determine the legality of its  own action.    The  Constitution  has,  therefore   created   an independent machinery i.e. judiciary to resolve the disputes which  is  vested  with  the power  of  judicial  review  to determine  the  legality of the  legislative  and  executive actions  and to ensure compliance with the  requirements  of law  on  the part of the executive  and  other  authorities. This  function is discharged by the judiciary by  exercising the  power of judicial review which is a most potent  weapon in the hands of the judiciary for maintenance of the rule of law.   The power of judicial review is an integral  part  of our  constitutional system and without it, there will be  no government  of  laws  and the rule of  law  would  become  a teasing  illusion and a promise of unreality.  The  judicial review,  therefore, is a basic and essential feature of  the Constitution and it cannot be 856 abrogated  without  affecting  the basic  structure  of  the Constitution.   The basic and essential feature of  judicial review  cannot be dispensed with but it would be within  the competence  of Parliament to amend the Constitution  and  to

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provide  alternative institutional mechanism or  arrangement forjudicial review, provided it is no less efficacious  than the High Court.  It must, therefore, be read as implicit  in the  constitutional  scheme  that  the  law  excluding   the jurisdiction  of  the  High Court under Arts.  226  and  227 perrmissible under it, must not leave a void but it must set up  another effective institutional mechanism  or  authority and  vest the power of judicial review in it which  must  be equally effective and efficacious in exercising the power of judicial   review.    The   Tribunal  set   up   under   the Administrative Tribunal Act, 1985 was required to  interpret and apply Arts. 14, 15, 16 and 311 in quite an large  number of cases.  Therefore, the personnel manning the  administra- tive  tribunal  in  their determinations  not  only  require judicial  approach but also knowledge and expertise in  that particular branch of constitutional and administrative  law. The  efficacy of the administrative tribunal and  the  legal input would undeniably be more important and sacrificing the legal  input and not givino it sufficient  weityhtage  would definitely  impair  the efficacy and  effectiveness  of  the Administrative  Tribunal.  Therefore, it was held  that  the appropriate rule should be made to recruit the members;  and consult   the  Chief  Justice  of  India   in   recommending appointment  of the Chairman, Vice-Chairman and  Members  of the Tribunal and to constitute a committee presided over  by judge  of  the  Supreme Court to  recruit  the  members  for appointment.   In M.B. Majiundar v. Union of lndia [1990]  3 SCR  946, when the members of CAT claimed parity of pay  and superannuation  as  is available to the Judges of  the  High Court,  this  court held that they are not on par  with  the judges   but   a  separate  mechanism  created   for   their appointment  pursuant  to Art. 323-A  of  the  Constitution. Therefore,  whatwas meant by this court in  Sampath  Kumar’s ration  is  that the Tribunals when exercise the  power  and function,   the   Act  created   institutional   alternative mechanism   or   authority   to   adjudicate   the   service disputations.   It  must  be effective  and  efficacious  to exercise  the power of judicial review.  This court did  not appear to have meant that the Tribunals are substitutes  of’ the High Court under Arts. 226 and 227 of the  Constitution. J.B.  chopra  v.  Union of lndia [1987] 1  SCC  422,  merely followed the ratio of Sampath Kumar. The  Tribunals  set  up under Arts. 323A  and  323B  of  the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the  High Court or parity or as substitutes.   However,  the personnel  appointed to hold those oft7ices under the  State are  called  upon to dischargee judicial  or  quasi-judicial power.   So  they  must  have  judicial  approach  and  also knowledge 857 and  expertise in that particular branch of  constitutional, administrative and tax laws.The legal input would undeniably be  more important and sacrificing the legal input  and  not giving  it sufficient weightage and teeth  would  definitely impair  the  efficacy  and  effectiveness  of  the  judicial adjudication.   It is, therefore, necessary that  those  who adjudicate  upon these matters should have legal  expertise, judicial experience and modicum of legal training as on many an  occasion  different and complex questions of  law  which baffle  the minds of even trained judges in the  High  Court and Supreme Court would arise for discussion and decision. In  Union  of India v. Sankal Chand Himatlal  Sheth  &  Anr. [1978] 1 SCR 423 at 442, this court at p. 463 laid  emphasis that, "independence of the judiciary is a fighting faith  of

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our Constitution.  Fearless justice is the cardinal creed of our  founding document.  It is indeed a part of our  ancient tradition  which has produced great judges in the past.   In England  too,  judicial independence is prized  as  a  basic value  and  so  natural and inevitable it  has  come  to  be reorded  and  so  ingrained it has become in  the  life  and thought  of the people that it would be regarded an  act  of insanity for any one to think otherwise." At page 471 it was further  held  that  if the beacon of the  judiciary  is  to remain  bright,  court  must be above  reproach,  free  from coercion  and from political influence.  At page 491 it  was held  that  the independence of the judiciary  is  itself  a necessitous   desideratum   of  public   interest   and   so interference  with  it is impermissible except  where  other considerations  of  public interest are so  strong,  and  so exercised as not to militate seriously against the free flow of  public  justice.   Such a balanced blend  is  the  happy solution  of  a delicate, complex, subtle,  yet  challenging issue  which  bears on human rights  and  human  justice.The nature  of the judicial process is such that under  coercive winds the flame of justice flickers, faints and fades.   The true judge is one who should be beyond purchase by threat or temptation, popularity or prospects.  To float with the tide is  easy, to counter the counterfeit current is  uneasy  and yet the Judge must be ready for it.  By ordinary  obligation for  written reasoning, by the moral fibre of his peers  and elevating tradition of his profession, the judge develops  a stream  of  tendency to function ’without  fear  or  favour, affection  or ill-will’, taking care, of course, to  outgrow his prejudices and weaknesses, to read the eternal  verities and enduring values and to project and promote the economic, political  and  social  philosophy of  the  Constitution  to uphold which his oath enjoins him.  In Krishnaswaini’s  case in  para  67 at p. 650, it was observed that  "to  keep  the stream  of justice clean and pure the judge must be  endowed with  sterling character, impeccable integrity  and  upright behaviour.  Erosion thereof would undermine the efficacy  of rule of law and the working of the constitution itself. In  Krishna Sahai & Ors.v.State of U.P. & Ors.[1990]  2  SCC 673, this court 858 emphasised  its  need  in  constitution  the  U.P.   Service Tribunal that it would he appropriate for the State of Uttar Pradesh  to  change it manning and a  sufficient  number  of people qualified in law should he on the Tribunal to  ensure adequate  dispensation of justice and to  maintain  judicial temper  in  the functioning of the Tribunal".   In  Rajendra Singh Yadav & Ors v. State of U.P. & Ors. [1990] 2 SCC  763, it was further reiterated that the Services Tribunal  mostly consist of Administrative Officers and the judicial  element in  the  manning part of the Tribunal is  very  small.   The disputes  require  judicial handling  and  the  adjudication being,  essentially  judicial in character it  is  necessary that  adequate  number of judges of  the  appropriate  level should  man  the  Services  Tribunals.   This  would  create appropriate  temper and generate the atmosphere suitable  in an adjudicatory Tribunals and the institution as well  would command the requisite confidence of the disputants.  In Shri Kumar  Padma  Prasad v. Union of India & Ors. [1992]  2  SCC 428,  this court emphasised that, "Needless to say that  the independence, efficiency and integrity of the judiciary  can only  he  maintained  by  selecting  the  best  persons   in accordance   with   the   procedure   provided   under   the Constitution.  The objectives enshrined in the  constitution cannot be achieved unless the functionaries accountable  for

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making  appointments  act with meticulous  care  and  utmost responsibility". In  a  democracy  governed by rule of law  surely  the  only acceptable  repository of absolute discretion should be  the courts.  Judicial is the basic and essential feature of  the Indian constitutional scheme entrusted to the judiciary.  It cannot  he  dispensed with by creating tribunal  under  Art. 323A  and  323B  of  the  Constitution.   Any  institutional mechanism  or  authority in negation of judicial  review  is destructive   of  basic  structure.   So  long  as   a   the alternative  institutional mechanism or authority set up  by an  Act  is not less effective than the High  court,  it  is consistent  with  constitutional scheme.  The faith  of  the people  is  the bed-rock on which the  edifice  of  judicial review  and efficacy of the adjudication are  founded.   The alternative  arrangement must, therefore, be  effective  and efficient.   For  inspiring  confidence  and  trust  in  the litigant public they must have an assurance that the  person deciding  their causes is totally and completely  free  from the  influence  or  pressure from  the  Govt.   To  maintain independence  and  imperativity  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  injustice. Therefore, functional fitness, 859 experience   at  the  liar  and  aptitudinal  approach   are fundamental for efficient judicial adjudication.  Then  only as a repository of the confidence. as its duty, the tribunal would  properly and efficiently interpret the law and  apply the law to the given set of facts.  Absence thereof would be repugnant or derogatory to the constitution. The daily practice in the courts not only gives training  to Advocates  to  interrect  the  rules  but  also  adopt   the conventions of courts.  In built experience would play vital role  in  the administration of justice and  strengthen  and develop   the   qualities,  of  intellect   and   character, forbearance  and patience, temper and resilience  which  are very important in the practice of law.  Practising Advocates from  the  Bar generally do endow with  those  qualities  to discharge  judicial functions.  Specialised nature  of  work gives them added advantage and gives benefit to broaden  the perspectives.  "Judges " by David Pannick (1987 Edition), at page 50, stated that, "we would not allow a man to perform a surgical   operation   without  a  thorough   training   and certification  of  fitness.  Why not require as  much  of  a trial judge who daily operates on the lives and fortunes  of others".   This could be secured with the  initial  training given   at  the  Bar  and  later  experience   in   judicial adjudication.  No-one should expect expertise in such a vast range of subjects, but famliarity with the basic terminology and  concept coupled with knowledge of trends is  essential. A premature approach would hinder the effective  performance of  judicial functions.  Law is a serious matter to be  left exclusively  to the judges, because judges necessarily  have an  important  role to play in making and applying  the  law There  is  every reason for ensuring that  their  selection, training  and  working practice facilitate  them  to  render their  ability to decide the cases wisely on behalf  of  the

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community.   If judges acts in injudicious manner, it  would often lead to miscarriage of justice and a brooding sense of injustice rankles in an agrieved person. The CEGAT is a creature of the statute. yet intended to have all  the  flavour of judicial  dispensation  by  independent members and President.  Sri Justice 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  sitting or a retired judge of the High Court.   Added  to that  is  the  fact that selection of  the  members  of  the Tribunal  is  made by a Committee headed by a judge  of  the Supreme  Court... I am sure that the Tribunal  will  acquire higher reputation in the matter of its decision and that the litigants  would  look upon it as an  independent  forum  to which they can turn in trust and confidence".  This court to elongate  the  above objective directed the  Govt.  to  show whether  the convention is being followed in appointment  of the President of 860 CEGAT and further directed to consider appointment of a  Sr. Judge  or a retired Chief Justice of the High Court  as  its President.   Admittedly  Chief  justice  of  India  was  not consulted before appointing Sri harish Chander as President. Several affidavits filed on behalf of the Govt. do not  also bear  out whether the directions issued by this  court  were even  brought  to the notice of the Hon’ble  Prime  Minister before  finalising  the appointment of Sri  Harish  Chander. The  solemn  assurance  given to  the  Parliament  that  the Tribunal  bears a judicious blend by appointment of  a  High Court  Judge as President was given a go-bye.  While  making statutory  rules  the  executive appears to  have  made  the appointment  of  it sitting or retired High Court  Judge  as President   unattractive  and  directory   frustrating   the legislature animation.  A sitting Judge when is entitled  to continue in his office upto 62 years would he he willing  to opt  to  serve  as  President,  if  his  superannuation   as President  is  conterminous  with 62  years.   He  would  be attracted  only  it he is given extended  three  years  more tenure  after his superannuation.  But Rule 10(3) says  that the  total  period  of  the tenure of  the  President  by  a sitting,  or  retired judge is "a period of three  years  or till he attains the age of 62 years, whichever is  earlier", i.e.  coterminus with superannuation as a Judge of the  High Court.  The proviso is only discretionary at the whim of the executive depleting independence and as an exception to  the rule.   Thereby  practically  tile spirit of  the  Act,  the solemn  assurance  given  by the  Govt.  to  the  Parliament kindling hope in the litigant public to have a sitting or  a retired  judge  appointed as President has  been  frustrated deflecting the appointment of a judicially trained judge  to exercise  judicial  review.  We are constrained  to  observe that the rules, though statutory, were so made as to  defeat the  object  of the Act.  The question then is: can  and  if yes, whether this court would interfere with the appointment made of Flarish Chander as President following the existing, rules. Judicial  review  is concerned with  whether  the  incumbent possessed of qualification for appointment and the manner in which  the  appointment  came to be made  or  the  procedure adopted  whether  fair, just and  reasonable.   Exercise  of judicial review is to protect the citizen from the abuse  of the  power etc. by an appropriate Govt. or  department  etc. In our considered view granitic the compliance of the  above power  of  appointment was conferred on  the  executive  and

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confided to be exercised wisely.  When a candidate was found qualified and eligible and was accordingly appointed by  the executive to hold an office as a Member or Vice-President or President  of a tribunal. we cannot sit over the  choice  of the  selection, but it be left to tile executive  to  select the  personnel as per law or procedure in this  behalf.   In Sri  Kumar  Prasad  case K.N.    Srivastava,  M.J.S.,  Legal Remembrance, Secretary to law and Justice.  Govt. of Mozoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art.217 of the Constitution, namely, that he was not a District  Judge  for 10  years  in  State Higher Judicial  Service,  which  is  a mandatory 861 requirement for a valid appointment.  Therefore, this  Court declared  that  he was not qualified to be  appointed  as  a judge  of  the  High  Court  and  quashed  his   appointment accordingly.   The facts therein are clearly glaring and  so the ratio is distinguishable. Sri  Harish Chander, admittedly was the Sr.  Vice  President at  the relevant time.  The contention of Sri Thakur of  the need  to  evaluate  the comparative  merits  of  Mr.  Harish Chander  and  Mr. Kalyansundaram a senior  most  Member  for appointment  as President would not be one into in a  public interest litigation.  Only in a proceedings initiated by  an aggrieved person it may be open to be considered.  This writ petition  is  also not a writ of quo-warranto.   In  service jurisprudence it is settled law that it is for the aggrieved person  i.e.  non-appointee it) assail the legality  of  the offending  action.   Third party has no locus  stand  it  to canvass  the  legality or correctness of the  action.   Only public  law declaration would be made at the behest  of  the petitioner, a public spirited person. But  this conclusion does not give quietus at the  journey’s end.     There    are   persistent    allegations    against malfunctioning  of  the  CEGAT and  against  Harish  Chander himself.   Though we exercised self-restraint to assume  the role  of an Investigator to charter out the  ills  surfaced, suffice to say that the union Govt. cannot turn a blind  eye to the persistent public demands and we direct to swing into action, an indepth enquiry made expeditiously by an  officer or  team of officers to control the mal-functioning  of  the institution.    It  is  expedient  that  the  Govt.   should immediately  take action in the matter and have fresh  look. It  is  also expedient to have a sitting or  retired  senior Judge  or  retired Chief Justice of a High Court to  be  the President.  The rules need amendment immediately.  A  report on  the  actions taken in this behalf be submitted  to  this court. Before parting with the case it is necessary to express  our anguish over the ineffectivity of the alternative  mechanism devised  for  judicial  reviews.  The  Judicial  review  and remedy   are  fundamental  rights  of  the  citizens.    The dispensation  of  justice  by the tribunals is  much  to  be desired.  We are not doubting the ability of the members  or Vice-Chairmen  (non-Judges)  who  may be  experts  in  their regular  service.   But judicial adjudication is  a  special process  and would efficiently be administered  by  advocate Judges.   The remedy of appeal by special leave  under  Art. 136  to this Court also proves to be costly and  prohibitive and far-flung distance too is working as constant constraint to litigant public who could ill afford to reach this court. An  appeal to a Bench of two Judges of the  respective  High Courts   over  the  orders  of  the  tribunals  within   its territorial jurisdiction on questions of law would as  usage

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a  growing feeling of injustice of those who can ill  effort to  approach  the  Supreme  Court.   Equally  the  need  for recruitment of members of the Bar to man 862 the Tribunals as well as the working system by the tribunals need  fresh  look and regular monitoring is  necessary.   An expert  body like the Law Commission of India would make  an indepth  study in this behalf including the desirability  to bring CEGAT under the control of Law and Justice  Department in  line  with  Income-tax Appellate Tribunal  and  to  make appropriate urgent recommendations to the Govt. of India who should take remedial steps by an appropriate legislation  to overcome  the  handicaps  and  difficulties  and  make   the tribunals  effective  and efficient instruments  for  making Judicial review efficacious, inexpensive and satisfactory. The writ petitions are disposed of with the above direction, but in the circumstances with no order as to costs. T.N.A.                                Petitions disposed of. 863