R.K. Jain Vs. Union of India & Ors [1993] INSC 297 (14 May 1993)
Ahmadi, A.M. (J) 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 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
HEAD NOTE:
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 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 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., [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. 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, 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 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 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.
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 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 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.
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 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 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 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 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 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 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" 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 d
