Court: Supreme Court of India.
Case Type: Writ Petition in a P.I.L.
Citation: 1993 S.C.C. 4 (119).
Petitioner: R.K. Jain.
Respondent: Union of India And Ors.
Date of Judgement: 14/05/1993.
Bench:
Justice A.M. Ahmadi.
Justice M.M. Punchhi.
Justice K. Ramaswamy.
Cases referred:
Attorney General v. Jonathan Cape Ltd., 1976 Q.B. 752.
Sankey v. Whitlan, [1979] 53 A.L. R. 11.
Whitlam v. Australian Consolidated Press, [1985] 60 A.L.R. 7.
State of U.P. v. Raj Narain & Ors., [1975] 2 S.C.R. 333.
S.P. Gupta & Ors. V. Union of India & Ors. 1982 2 S.C.R. 365.
Satwant Singh Sawhney v. D. Ramarathnam Asstt. Passport Officer, [1967] 3 S.C.R. 525.
Statutes referred:
Customs, Excise and Gold Control Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 (referred to as ‘The Rules’) – Rules 2c, 3, 6, 10.
Indian Evidence Act, 1872- Sections 123, 124 and 162.
Constitution of India, 1950- Articles 74 (2), 75 (3), 323 (A), 323 (B) and Schedule III.
Facts:
The petitioner was he Editor of Excise Law Times.
On 26th December 1991, the petitioner informed the Chief Justice of India via a letter that ever since the retirement of the President of Customs, Excise and Gold Appellate Tribunal (CEGAT) in 1985, no new president had been appointed.
On 25th February 1992, The Court issued a Rule Nisi to the Union of India to immediately appoint a President of the CEGAT, preferably a senior High Court Judge.
After the directions were issued, respondent no. 3, who was initially appointed as Judicial Member and subsequently appointed as the Vice-President of the Tribunal, was appointed as the President.
The petitioner filed another petition challenging the appointment of the President on certain grounds.
On 4th May 1992, The Court issued a rule nisi and the next date bearing the relevant rule based on which the appointment was made to be produced in court.
The Finance Secretary and the Minister of State for Finance filed affidavits in The Court claiming privilege under Sections 123 and 124 of the Indian Evidence Act and Article 74(2) of the Constitution of Indian stating that the Government had no objection with The Court pursuing the rule but claimed privilege to disclose contents of the rule to the petitioner.
Issue:
Whether the appointment of respondent no.3 (Harish Chander) as the President of CEGAT valid?
Contention by Parties:
Petitioner’s Contentions-
The absence of a President adversely affected the functioning of the CEGAT.
Sought directions for the immediate appointment of a President of the CEGAT.
Challenged the appointment of respondent no. 3 as the President of the Tribunal on the following grounds:
(1) The appointment was in breach of the direction passed by The Court on 25th February 1992, because as per convention, a sitting or retired judge of a High Court should have been appointed as President, after consulting with the Chief Justice of India.
(2) Before the act was made, the Government time and again made positive commitments on the Floor of the House that the judicial independence of the CEGAT is sine qua non to sustain the confidence of the litigant public and the appointment of any person other than a sitting or retired High Court Judge as the President of the tribunal was in breach of those commitments.
(3) The appointment of respondent no.3 as a Judge to the Delhi High Court was turned down by the Chief Justice of India on the grounds of doubts regarding the integrity of respondent no. 3. Therefore, the appointment of such an individual as the President of the CEGAT would undermine the confidence of the litigant public in the efficacy of the judicial adjudication.
Rules 10 (1), (3) and (4) of CEGAT Members (Recruitment and Conditions of Service) Rules 1987 should be struck down as violative to Article 43 of the Constitution of India.
Respondent’s Contentions-
On behalf of the Union of India-
The Court cannot inspect the relevant rule used to appoint the President as the respondent planned to claim privilege.
A Cabinet Subcommittee approved the appointment of respondent no. 3 as the President of the CEGAT and operation of Article 77(3) and 74(1), the appointment was made by the president of India.
The rule contained documents consisting advice tendered to the President regarding the appointment of respondent no.3. as the President of CEGAT.
Section 123 of the Indian Evidence Act and Article 72(2) precluded The Court from enquiring about the nature of advice tendered to the President, and therefore, the documents were immune from disclosure.
On behalf of respondent no.3 –
He had an impeccable and exceptional record of service without any adverse remarks and dropping of his recommendation as a judge to the Delhi High Court should not be held against him.
The Government had the entitlement to appoint any member, or Vice Chairman or Senior President as President, and since respondent no. 3 was a Senior Vice President, he was validly appointed as the President.
Obiter Dicta:
Per Justice K. Ramaswamy-
When a claim for public interest has been made for non-disclosure of State Documents, it is the Ministers’ responsibility to state on oath in his affidavit the grounds on which and the reasons why the immunity is being claimed.
Article 75(4) and Schedule III of the Constitution does not absolve the Minister from disclosing the reasons why immunity is being claimed from producing State documents, how the matter was dealt with or from producing the documents when a discovery order nisi or rule nisi is issued. Instead, it is the responsibility of the Minister the follow the orders and aid the Government.
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.
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.
Collective Responsibility under Article 75(3) of the Constitution, the Cabinet, also known as the Council of Ministers, is afforded the privilege of maintenance of confidentiality.
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.
“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.
The tenure of the President of the CEGAT is up to the age of 62 years or a period of 3 years, whichever comes first. Therefore, a sitting High Court Judge has very little incentive to serve as the President of CEGAT for his term as High Court Judge also lasts till the age of 62 years.
If he accepts the post of the President of CEGAT, he will lose the privileges that come along with the office of a High Court Judge. Furthermore, his decisions will be subject to writ jurisdiction of the High Courts under article 226/227 of the Constitution.
Respondent No.3 was fully qualified for the post of the President of the CEGAT under The Rules. No challenge was made in this regard.
Per Justice A.M. Ahmadi (For himself and Justice M.M. Punchhi) (Concurring)-
To instill the confidence of the litigant public in the CEGAT, the Government must make a sincere effort to appoint a sitting High Court judge as the President of CEGAT.
The administrative machinery which is charged with the responsibility of supervising the working of the CEGAT must initiate a prompt inquiry into the allegations made regarding the mal-functioning of the CEGAT.
A body like the Law Commission of India must take a comprehensive look and suggest necessary measures to improve the functioning of various tribunals in India.
Judgement:
The petition was dismissed.
It was not necessary to disclose the contents of the documents to the petitioner or his counsel.
The Government should investigate the numerous allegations made regarding the malfunctioning of the Tribunal and against respondent no. 3.
Sub-rule (4) of Rule 10 of The Rules must be changed to make the post of the President of CEGAT sufficiently attractive to the sitting High Court Judges.
Rationale:
The Court is not bound by the affidavits filed by the Ministers or Head of Departments and retains the power to balance injury to the State or public against the risk of injustice.
The legal maxim ‘Salus Populi Suprema Lax Esto’ which means that regard for public welfare is the highest law is the basic postulate for immunity from disclosure.
Information related to the national security, diplomatic relations, internal security, sensitive diplomatic concern, etc. are per se class documents and the public interest demands total immunity from disclosure of such information. Even the slightest divulgence would endanger the lives of the personnel engaged in service.
The Court cannot sit in judgement over the wisdom of the Central Government in the choice of the person while appointing the President of CEGAT if the person was qualified under The Rules.
Conclusion:
A sound justice system is extremely important for the efficient governance of the country. An independent and impartial justice delivery system which has he faith of the litigant public can alone deliver the desired results.
Prepared by Mihir Poojary.