TMI Blog1993 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaining that as the Customs, Excise and Gold Control Appellate Tribunal (for short the CEGAT) was without a President for the last over six months the functioning of the Tribunal was adversely affected, in that, the Benches sit for hardly two hours or so, the sittings commence late at about 10.50 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 malfunctioning of the CEGAT; and (iii) issue all other directions as your L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution as well as the case 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 all the reasons which have weighed with him. 4. 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 and Conditions of Service) Rules, 1987 (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 6 sets 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice of India and if a sitting Judge is not available the choice must fall on a retired Judge as far as possible. This would be 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. 5. 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 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 alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the situation with a view to finding out if they have served 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 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 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. 8. We have thought it wise to clarify the extent of our concurrence with the views expressed by our learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure was followed at the time of the appointment by first respondent"; and "whether Chief Justice of India was consulted or whether the first respondent was free to choose a retired or a 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 the government to file a counter, the file was returned. 10. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or matter pending before it. Subject to the provisions of any law made in this behalf by the Parliament, by Clause 2 of Article 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". 13. When this Court was moved for an appropriate writ under Article 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 Clause 2 of Article 142 with all and every power to make any order to secure attendance of any person, "discovery order nisi" for production of any documents, or to order investigation.... Exercise of this constituent power is paramount to enforce not only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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. 15. On the one side there is the public interest to be protected; on the other side of the scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nister 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. 17-A. 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 secrecy or of the document relating to foreign relations. In other respects the court would reject the assertion of executive privilege. In United States v. Reynolds [1935 (345) U.S. I], Environmental Protection Agency v. Patsy I. Mink [410 U.S. 73 (35) L.Ed. 2nd 119], Newyork Times v. U.S. [(1971) 403 US 713] (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 Admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Appeal of New South Wales in Re Tunstall, Ex. P. Brown, (1966) 84 W.N. (Pt. 2) (N.S.W.) 13. The Court of Appeal of the New Sealand in Corbett v. Social Security Commission (1962) N.Z.L.R. 878, Creednz Inc v. Governor Generfil (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 Alien v. Byfield (No. 2), (1964) 7 W.I.R. 69 at page 71. The Court of Session in Scotland in Glasgow Corporation v. Central Land Board, (1956) Scotland Law Time p. 4. 19. 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 Articles 77(3) and 74(1), the appointment was made by the President. The file constitutes Cabinet documents formed part of the preparation of the documents leading to the formation of the advice tendered to the President. Notings 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) pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 53(1) or the Governor under Article 154(1), as the case may be. 21. The President exercises his executive power under Article 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 tile rules of business for convenient transaction of the Govt. administration made under Article 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 Article 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 Government of India shall be expressed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s answerable for his .decision to the Parliament is fenciful. 24. 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 co-ordinating 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 co-ordinating ministers are non-responsible. Having no statutory powers as co-ordinating ministers, they perform in that capacity no formal acts. But they share in the collective responsibility of the Govt. as a whole, and, as Minister they are accountable to Parliament. At p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trick Gordon Walker in his "The Cabinet' 1973 Revised Ed. at p. 178 stated that basically the 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 overhastily '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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 26. 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, ___ 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 be 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 to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imperatives of collective responsibility envisaged by Art. 75(3) but also from its pragmatism. 29. 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 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. 30. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 32. 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 by 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 Cab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 describ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 36. 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 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 discharge of die duty as a Minister to obey rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39. In Conway's case, the speech of Lord Reid is the sole votary to support the plea of confidentiality emphasising that, "the business of Government is difficult enough as it is no Government could contemplate with equanimity the inner workings of the Government machine being exposed to the gazes of those ready to criticise without adequate knowledge of the back- ground 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 led to a complete 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest.... The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level. "Lord Scarman also objected total immunity to Cabinet documents on the plea of candour. In Air Canada's case. Lord Fraser lifted Cabinet minutes from the total immunity to disclose, although same were "entitled to a high degree of protection....." 41. In Jonathan Cape Ltd. 's case, it was held that, "it seems 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 Government 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 depe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the 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 generalised interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalised 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 confidential. 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. 44. 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 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rain the appellants from taking further steps to have Stage 2 nominated for inclusion on the list on the basis that Cabinet was bound by the rules of natural justice to afford them an opportunity to be heard and that it failed to do so. The Single Judge declared the action as void. Thereafter the National Parks and Wildlife Conservation Amendment Act, 1987 came into force adding sub-s. (1A) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the letter concerning the Government plans relating to Middle Eastern campaigns of the First World War, as claimed by the Board of Admirality. Similarly, in Duncan v. Cammell Laird [1942 A.C. 624], the House of Lords refused disclosure of the design of sub-marine. The national defence as a class needs protection in the interest of security of the State. Similarly to keep good diplomatic relations the State documents or official or confidential documents between the Government and its agencies need immunity from production. 49. In Council of Civil Service Union v. Minister for Civil Service [1985 A.C. 374], the Government Communications Headquarters (GCHQ) functions were to ensure the security of military and official communications and to provide the Government with signals intelligence. They have to handle secret information vital to national security. The staff of GCHQ was permitted to be members of the trade union, but later on instructions were issued, without prior consultation, amending the staff rules and directed them to dissociate from the trade union activities. The previous practice of prior consultation before amendment was not followed. Judicial review was sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 penninsula 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 claiming the privilege of certain documents stating that with a view to preserve the land to the original, the Government have decided to treat that the land will continue to be held by or on behalf of the originals. Gibbs, C.J. held that under modem conditions, a responsible Government, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts under Art. III. The very integrity of the judicial system and public confidence in the system depend on full 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. 52. 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 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 ex- press in the name of President as per Rules of Business made under Art. 77(3). They bear two different facets (i) the President exercises his power on the aid and advice; (ii) the individual Minister or Council of Ministers with the Prime Minister at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer 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 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. In S.P. Gupta's case this 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. 53. There is discernible modern trend towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient material to ill-informed criticism is no longer relevant. Criticism calculated to improve the nature of that working as affecting the individual citizen is welcome. 54. 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 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 at the highest level for in camera inspection. Each case must 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be produced and inspected by the court. If public 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. The 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 the 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. 57. The first schedule of the business rules provide constitution of Cabinet Standing Committees with the functions 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 allowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord 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 of Central Govt. it was admitted in the counter-affidavit that since rules do not envisage consultation with the Chief 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. 60. Under Section 129 of the Customs Act 52 of 1962 for short 'the Act', the Central Govt. shall constitute the CEGAT consisting 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 decision on any question of law arising out of orders of the CEGAT by the High Court under Section 130; to resolve conflict of decisions by this Court under Section 130A, the orders of the CEGAT, by operation of sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such period not exceeding three years as may be determined by the Central Govt. at the time of appointment or re-appointment. 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. Paras Laminates Pvt. Ltd. [1990 (49) E.L.T. 322 (Supreme Court)], this Court held that CEGAT 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 Keshwanand Bharti v. Union of India [(1973) Supp. SCR I], Mathew and Chandrachud, JJ. hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 permissible under it, must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective 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 a large number of cases. Therefore, the personnel manning the administrative tribunal in their determination 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 giving it sufficient weightage 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 to appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of our ancient tradition which has produced great judges in the past. In England too, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise." At page 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 fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are and utmost responsibility". 67. In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts. 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 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 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. Sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would often lead to miscarriage of justice and a brooding sense of injustice rankles in an aggrieved person, 69. The CEGAT is a creature of the statute, yet intended to have all the flavour of judicial dispensation by independent members and President. Shri 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 tine 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 be left to the executive to select the personnel as per law or procedure in this behalf. In Srikumar Prasad's case, K.N. Srivastava, M.J.S., Legal Rememberance, Secretary to Law and Justice, Govt. of Mizoram 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 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. 71. Shri 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 seniormost Member for appointment as President would not be gone into in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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