# PEPOLE'S UNION FOR CIVIL LIBERTIES AND ANR v. UNION OF INDIA AND ORS

- **Citation:** [2004] 1 S.C.R. 232
- **Court:** Supreme Court of India
- **Decided:** 2004-01-06
- **Case number:** Civil Appeal No. 4294 of 1998
- **Bench:** V.N. Khare, S.B. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pepole-s-union-for-civil-liberties-and-anr-v-union-of-india-and-ors-19675
- **Pages:** 34

## Headnote

Atomic Energy Act, 1962:
Section 18-Restriction-On disclosure of information-Power a/Central
C Government-Held: Central Government empowered to restrict disclosure of
certain information to the public-Such power neither uncontrolled nor
unguided.
D
Constitution of India, 1950: Article 19(1) (g).
Right of information-Nature of-Held: ls a facet of 'speech and
e'Cpression' and therefore, a fundamental right.
Right of information-Reasonable restriction on-Imposed by S. 18 of
the Atomic Energy Act, 1962-Permissibility of-Held: The Act dealt with a
E restrictive subject-Hence, prohibition of disclosure of information imposed
by S. 18 a reasonable restrict ion.
Articles 32 and 226-Judiciai revie11~Scope and power of-Order
passed by Central Government regarding non-disclosure of certain information
to the public-Whether amenable to judicial revie11~Held: The Court would
F not normally exercise its power a/judicial review unless the order suffers
from mala fide, dishonesty or cormpt practice-The order passed by Central
Government did not sufjer fi'om such i1?firmities-Hence not inte1fered with.
Evidence Act, 1872:
G
Section 123-Evidence as to affi1irs a/State-Documents-Immunity fi'om
H
disclosure-Claim of privilege-Held: In order to claim such immunity the
documents must relate to affairs of State and that such disclosure must be
against interest of Stale or public interest.
Interpretation of Statutes:.
232
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1.
233
Constitutionality of an Act-Presumption of-Held: Even extends to a A
law, which imposes reasonable restrictions on fundamental right.
How far and to what extent the right to information and the
restrictions that could be imposed should .be balanced is the question
involved in these appeals arising out of the impugned judgment of the High
~u~
B
The appellants contended that the citizens have a right to have access
to the copies of the AERB report, under Article 19(1)(g) of the
Constitution, that Section 18 of the Atomic Energy Act, 1962 was invalid
on the ground that there were no guidelines for the exercise of discretion C
in notifying a document as a secret document. The High Court dismissed
the writ petition. Hence the appeal.
On behalf of the respondents, it was contended that right of
information as contained in Article 19(1) (g) of the Constitution was
subject to reasonable restrictions contained in clause (2) thereof; that if D
the report of AERB was disclosed it would be agai11st the interest of the
State and, therefore, the provisions of Sections 123 and 162 of the Evidence
Act, 1872 were attracted.
Dismiss.ing the appeal, the Court
HELD: I.I. The question as to whether a statute is ultra vires the
Constitution of India having conferred unguided, uncanalised or wide
power cannot be determined in vacuum. It has to be considered having
regard to the text and context of the Statute as also the character thereof.
1252-DI
1.2. The Atomic Energy Act, 1962 deals with a sensitive subject.
Section 18 of the Act has been enacted for the purpose specified therein.
It is well settled that guidelines for enacting the said provision must be
found out• from the subject matter covering the field. For the said purpose,
even the preamble of the Act may be looked into. 1252-El
2.1. A statute carries with it a presumption of constitutionality. Such
a presumption extends also in relation to a law, which has been enacted
for imposing reasonable restrictions on the fundamental rights. 1253-Fl
2.2. A further presumption may also be drawn that the statutory
E
F
G
authority would not exercise the power arbitrarily. (253-F'I
H
234
SUPREME COURT REPORTS
(2004] I S.C.R.
A
3.1. Restrictions as regards disclosure of information as contained
in Section 18 are not vague or wide in nature. It specifies the areas where
such disclosures are prohibited. The powers of the Central Government
to make an order in terms thereof, are thus limited. 1252-F-CJ
3.2. Having regard to the purport and object of the Act, the

## Text

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A
PEPOLE'S UNION FOR CIVIL LIBERTIES AND ANR.
v.
UNION OF INDIA AND ORS.
JANUARY 6, 2004
B
[V.N. KHARE, CJ AND S.B. SINHA, J.]
Atomic Energy Act, 1962:
Section 18-Restriction-On disclosure of information-Power a/Central
C Government-Held: Central Government empowered to restrict disclosure of
certain information to the public-Such power neither uncontrolled nor
unguided.
D
Constitution of India, 1950: Article 19(1) (g).
Right of information-Nature of-Held: ls a facet of 'speech and
e'Cpression' and therefore, a fundamental right.
Right of information-Reasonable restriction on-Imposed by S. 18 of
the Atomic Energy Act, 1962-Permissibility of-Held: The Act dealt with a
E restrictive subject-Hence, prohibition of disclosure of information imposed
by S. 18 a reasonable restrict ion.
Articles 32 and 226-Judiciai revie11~Scope and power of-Order
passed by Central Government regarding non-disclosure of certain information
to the public-Whether amenable to judicial revie11~Held: The Court would
F not normally exercise its power a/judicial review unless the order suffers
from mala fide, dishonesty or cormpt practice-The order passed by Central
Government did not sufjer fi'om such i1?firmities-Hence not inte1fered with.
Evidence Act, 1872:
G
Section 123-Evidence as to affi1irs a/State-Documents-Immunity fi'om
H
disclosure-Claim of privilege-Held: In order to claim such immunity the
documents must relate to affairs of State and that such disclosure must be
against interest of Stale or public interest.
Interpretation of Statutes:.
232
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1.
233
Constitutionality of an Act-Presumption of-Held: Even extends to a A
law, which imposes reasonable restrictions on fundamental right.
How far and to what extent the right to information and the
restrictions that could be imposed should .be balanced is the question
involved in these appeals arising out of the impugned judgment of the High
~u~
B
The appellants contended that the citizens have a right to have access
to the copies of the AERB report, under Article 19(1)(g) of the
Constitution, that Section 18 of the Atomic Energy Act, 1962 was invalid
on the ground that there were no guidelines for the exercise of discretion C
in notifying a document as a secret document. The High Court dismissed
the writ petition. Hence the appeal.
On behalf of the respondents, it was contended that right of
information as contained in Article 19(1) (g) of the Constitution was
subject to reasonable restrictions contained in clause (2) thereof; that if D
the report of AERB was disclosed it would be agai11st the interest of the
State and, therefore, the provisions of Sections 123 and 162 of the Evidence
Act, 1872 were attracted.
Dismiss.ing the appeal, the Court
HELD: I.I. The question as to whether a statute is ultra vires the
Constitution of India having conferred unguided, uncanalised or wide
power cannot be determined in vacuum. It has to be considered having
regard to the text and context of the Statute as also the character thereof.
1252-DI
1.2. The Atomic Energy Act, 1962 deals with a sensitive subject.
Section 18 of the Act has been enacted for the purpose specified therein.
It is well settled that guidelines for enacting the said provision must be
found out• from the subject matter covering the field. For the said purpose,
even the preamble of the Act may be looked into. 1252-El
2.1. A statute carries with it a presumption of constitutionality. Such
a presumption extends also in relation to a law, which has been enacted
for imposing reasonable restrictions on the fundamental rights. 1253-Fl
2.2. A further presumption may also be drawn that the statutory
E
F
G
authority would not exercise the power arbitrarily. (253-F'I
H
234
SUPREME COURT REPORTS
(2004] I S.C.R.
A
3.1. Restrictions as regards disclosure of information as contained
in Section 18 are not vague or wide in nature. It specifies the areas where
such disclosures are prohibited. The powers of the Central Government
to make an order in terms thereof, are thus limited. 1252-F-CJ
3.2. Having regard to the purport and object of the Act, the
B provisions of Section 18 cannot be said to have bestowed unguided and
uncanalised powers on the Central Government. Sections 18 and 3 of the
Act had to be enacted by the Parliament as in wrong hands the information
can pose a danger not only to the security of the State but also to the public
at large. 1253-BI
c
3.3. The statutory scheme contained in the provisions of the Act, the
rules framed thereunder, compositions of the Atomic Energy Commission
and the Atomic Energy Regulatory Board (AERB) leave no manner of
doubt that the effective functions of the nuclear power plants are sensitive
in nature. The functions of the Board are varied and wide. Only out of
D certain functions of the Board, some have been marked as "Secret"which
fufilled statutory criteria laid down under Section 18 of the Act. 1253-EI
r
State of UP. v. Raj Narain, (197513 SCR 333, S.P. Gupta v. Union of
...,.
India, (19811 Supp. SCC 87, Dinesh Trivedi v. Union of India, 1199714 SCC
308, Hamdard Dawakhana v. Union of India, AIR (1960) SC 554, Krishna
E Mohan (P) ltd. v. Municipal Corporation of Delhi, (20031 7 SCC 151,
Organon (India) ltd. v. CC.£., 119951 Supp. I SCC 53, Harishankar Bag/a
v. State of M.P., (19551 I SCR 380, Delhi Laws Act (19511 SCR 747 and
State of Tamil Nadu v. Hind Stone, 119811 2 SCC 205, referred to.
4.1. Right of information is a facet of 'speech and expression' as
F contained in Article 19(1 )(g) of the Constitution of India. Right of
information, thus, indisputably is a fundamental right. 1253-HI
4.2. Article 19(1)(g) of the Constitution of India guarantees to the
citizens, the right to "freedom of speech and expression" as one of the
G fundamental rights listed in Part III of the Constitution. These rights have
been advisedly set out in broad terms leaving scope for their expansion
and adaptation, through interpretation, to the changing needs and evolving
notions of a free society. 1254-DI
State of U.P. v. Raj Narain, 119751 3 SCR 333, Indian Express
H Newspapers (Bombay) Private ltd. v. Union of India. 119851 I SCC 641,
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1.
235
Secretary Ministry of Information and Broadcasting Government of India v. A
Cricket Association of Bengal, 11995] 2 SCC 161 and Dinesh Trivediv. Union
of India, 11997] 4 SCC 308, referred to.
5. Every right-legal or moral-carries with it corresponding
obligation. It is subject to several exemptions/exceptions indicated in broad
terms. Generally, the exemptions/exceptions under those laws entitle the B
Government to withold information relating to the following matters:
~
1258-G-HI
(i)
International relations;
(ii) National Security (including defence) and public safety;
C
(iii) Investigation, detection and prevention of crime;
(iv) Internal deliberations of the Government;
(v) Information received in confidence from a source outside the
Government.
D
(vi) Information, which, if disclosed, would violate the privacy of
individual;
(vii) Information of an economic nature, (including Trade Secrets)
which, if disclosed, would confer an unfair advantage on some E
person or concern, or subject some person or government to
an unfair disadvantage;
(viii) Information, which is subject to a claim of legal professional
privilege, e.g., communication between a legal adviser and the
client; between a physician and the patient;
F
(ix) Information about scientific discoveries. 1259-A-DI
State of UP. v. Raj Narain, 1197513 SCR 333, S.P. Gupta v. Union of
India, 119811 Supp. SCC 87, Zenul v. Rusk, 14 L.Ed. 2d 179, Kleindienst v.
Manda!, 33 Law Ed. 2d 683 and United States v. Richardson, 41 L. Ed. 2d G
678, referred to.
6.1. A reasonable restriction on the exercise of the fundamental right
is always permissible in the interest of the security of the State. 1259-HI
6.2. The operation and functioning of a nuclear plant is sensitive in H
236
SUPREME COURT REPORTS
[2004] I S.C.R.
A nature. Any information relating to the training features, processes or
technology _cannot be disclosed, as it may be vulnerable to sabotage.
Knowledge of specific data may enable the enemies of the nation to
estimate and monitor strategic activities. As fissile materials are used in
fuels although the nuclear plants are engaged in commercial activities, the
B contents of the fuel discharged or any other details must be held to be
matters of sensitive character. If a reasonable restriction was imposed in
the interest of the State by reason of a valid piece of legislation, the Court
normally would respect the legislative policy behind the same.
c
(260-A-B-D[
7. The Court will not normally exercise its power of judicial review
unless it is found that formation of belief by the statutory authority suffers
from ma/a fide, dishonesty or corrupt practice. The order can be set aside
it if is held to be beyond the limits for which the power has been conferred
upon the authorities by the Legislature or is based on the grounds
extraneous to the legislation and if there are no grounds at all for passing
D it or if the grounds are such that no one can reasonably arrive at the
opinion or satisfaction required thereunder. (260-E-G[
E
8.1. When any claim of privilege is made by the State in respect of
any document the question whether the document belongs to the privileged
class has first to be decided by the Court. The Court cannot hold an
enquiry into the possible injury to public interest, which may result from
the disclosure of the document in question. The claim of immunity and
privilege has to be based on public interest. (261-H; 262-AI
8.2. Section 123 of the Evidence Act, 1872 does not say who is to
F decide the preliminary question, viz., whether the document is one that
relates to any affairs of State, or how it is to be decided. But the clue in
respect thereof can be found in Section 162. Under Section 162 a person
summoned to produce a document is bound to "bring it into court
notwithstanding any objection which there may be to its production or to
its admissibility. The validity of any such objection shall be decided on by
G the court". It further says that "the Court, if it seems fit, may inspect the
document, unless it refers to matter of State, or take other evidence to
enable it to determine on its admissibility." (262-B-C[
9. The order issued by the Central Government under Section 18 of
the Act and its claim of privilege in respect of the Atomic Energy
H Regulatory Board's report do not suffer from any legal infirmity
Ji
. ,,.
.
..
__..
)
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 237
warranting interference.
State of UP. v. Raj Narain, 119751 3 SCR 333 and S.P. Gupta v. Union
of India, l1981f Supp. SCC 87, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4294 of 1998.
From the Judgment and Order dated 30.1.1997 of the Bombay High
Court in W.P. Nos. I 785 and 1792 of 1996.
WITH
C.A. No. 4295 of 1998.
Prashant Bhushan, Vishal Gupta, Sanjiv Sen, Ms. Nandini Gore, Sanjay
Parikh, Ms. Meghna Satti and Ms. Manik Karanjawala for the Appellants.
Soli J. Sorabjee, Attorney General, Dipankar P. Gupta, Manish Singhvi,
Prateek Jalan, Pritish Kapur, Y.P. Mahajan, S.N. Terdal, D.S. Mahra, (NP),
Ms. Sushma Suri, (NP), P. Parmeswaran, (NP), P.H. Parekh, Sameer Parekh,
Anil Shrivastav and Jyoti Dutt for the Respond.ents .
The Judgment of the Court was delivered by
S.B. SINHA, .I. INTRODUCTION:
Right of information is a fundamental right under Article 19(J)(a) of
the Constitution. The State under Clause (2) of Article 19 of the Constitution,
however, is entitled to impose reasonable restrictions inter a/ia in the interest
of the State. How far and to what extent the same should be balanced is the
question involved in these appeals which arise out of judgments and orders
dated 30th January, 1997 passed by the High Court of Judicature at Bombay
in Writ Petition Nos. 1785 and 1792 of 1996.
WRIT PROCEEDINGS:
The appellants herein in the said writ petition sought disclosure of
information from the respondents relating to purported safety violations and
defects in various nuclear installations and power plants across the country
including those situated at Trombay and Tarapur. The said demand of
information was made purported to be relying on or on the basis of an
information that the Atomic Energy Regulatory Board (AERB) prepared a
A
B
c
D
E
F
G
H
238
SUPREME COURT REPORTS
[2004) I S.C.R.
A report in November, J 995 documenting therein safety defects and weaknesses
-'r
citing 130 instances which are said to be matters of concern. The appellants
contended that a former Chairman of the AERB, Dr. Gopalkrishnan also
expressed serious concern about the safety of nuclear installations in India
disclosing that serious accidents had occurred in some of the nuclear facilities
B including one at Narora Atomic Power Plant in the State of U.P. and Kaiga
Atomic Power Plant situated in the State of Karnataka.
c
The appellants herein in support of its prayers made in the writ petition
1'-
mainly relied upon the reports appearing in the newspapers, magazines and
editorials and articles.
In their counter affidavit, the respondents herein inter alia contended
that the said Board was constituted in terms of Section 27 of the Atomic
Energy Act entrusting the task to develop Safety Codes, Guides and Standards
for siting, design construction, commissioning, operating and decommissioning
of the different types of plants, keeping in view the international
D recommendations and local requirements and develop safety policies in both
radiation and industrial safety areas; Reviewing health and aspects of
modifications in design/ operation involving changes in the technical
specification adopted in any of the Department of Atomic Energy (DAE)
units; Reviewing operational experience in the light of the radiological and
other safety criteria recommended by the International Commission on
E Radiological Protection, International Atomic Energy Agency (IAEA) and
such other international bodies and adapted to suit Indian conditions, and
thereby evolve major safety policies; Prescribing acceptable limits of radiation
exposure to occupational workers and members of the public and approve
acceptable limits of environmental releases of radioactive substances;
p reviewing the emergency preparedness plans for non-DAE installations;
Promote research and development efforts for fulfilling the functions and
responsibilities specified; Reviewing the training programme, qualifications
and licensing policies for personnel by the project/ plants; Enforcing rules
and regulations promulgated under the Atomic Energy Act, 1962 for radiation
safety in the country and such other functions as specified therein.
G
With the said counter affidavit, the Fourth Report of the Nuclear Plant
Safety and Spent Fuel Management prepared by the Standing Committee on
Atomic Energy consisting of members of both the Lok Sabha and the Rajya
,..~
Sabha had also been annexed. The Annual Report for the year 1995-96
H prepared by the Government of India had also been annexed therewith. It was
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 239
.,;.
further contended that the specific questions were asked in the Parliament in A
relation to the alleged accidents which had been answered. It had been
emphasized that necessary legislative and regulatory framework to ensure a
competitive and independent assessment of the safety related requirements
and practices in all nuclear installations have come into being. The respondents
in their affidavits furthermore stated that there had been constant interaction B
with the media and the public in nuclear safety related matters to instill an
increasing level of confidence in the public that safety is indeed receiving
fl
topmost priority in all nuclear activities.
Dr. A. Gopalkrishanan, a former Chairman of AERB, on whose press
statements the writ petition was filed, also in a statement before the reporters
of the Economic Times which was published in the said newspaper on 11th c
February, 1995, stated:
"Let me emphasize that, Atomic Energy Regulatory Board is able to
implement their decisions today without any interference or pressures
in its functioning from outside sources. The statement of Pandit D
Jawaharlal Nehru while adverting to certain amendments moved to
the Atomic Energy Bill in the year 1948 has also been relied upon."
One Mr. G.R. Srinivasan, Director, Health Safety in his affidavit
disclosed that out of 130 items in the documents of AERB which required
attention, 89 issues directly pertain to Nuclear Power Corporation (NPC) E
while 6 other issues concerned NPC, Al3RC AND DAF.
i'
In the said affidavit it was pointed out:
" ... that the Atomic Energy Commission informed the 5th Respondent
on 22nd November, 1995 of the various issues to be tackled by NPC F
.....
installations for the NEP's response. By 4th December, 1995, the
NPC has given its, over l 00 page response to the issue to AEC and
}
thereafter NPC constituted a Committee on I Ith December, 1995 to
interact and discuss with the AERB regarding resolvement of the said
issue. A total of 19 meetings were held with AERB staff and mutually G
agreed time bound action plans have been arrived at for all 95 issues.
Final agreed action plans have been issued on 55 issues, because of
degree of urgency. It is pointed out that the question of safety issues
........
in NPC is a document which is highly technical in nature and it
would neither be in public interest for the same to be disclosed nor
could be it discerned by general public."
H
240
SUPREME COURT REPORTS
[2004] I S.C.R.
A
Yet again Shri Anupam Dasgupta, Joint Secretary in the DAE 'in his.
affidavit by way of sur-rejoinder dated 24th January, 1997 contended that the
aforementiom:d 130 items listed in the AERB report titled "Safety Issues in
DAE installations" are based on the proceedings and recommendations of
various meetings of the Standing Safety Committees -which have been
B constituted by the AERB itself to review the safety nuclear installations on
a regular basis. In the said sur-rejoinder a press release of 26th March, 1996
of Dr. A. Gopalkrishnan was annexed wherein it was stated:
c
"Fnr each of the items identified, the concerned DAE installation and
AERB are jointly preparing the preliminary details of corrective actions
and a committed time schedule for implementing them. These will be
reviewed and finalized by the AERB Safety Review Committees and
the Board, for timely implementation thereafter by the DAE. DAE
installations are closely co-operating with the AERB in expediting
the process of safety upgradation."
D
Similarly, Dr. K.S. Parthasarathy in a press release dated 23rd June,
1996 stated:
"In the judgment of the Board, there is at the moment no shortcoming
existing which can lead to any nuclear disaster or Chernobyl type
catastrophe in any of these installations. The Board would like to
E
assure the public that all the DAE installations arc being continuously
monitored and that it would not hesitate to initiate restrictive regulatory
actions wherever necessary."
The respondents, however, relying on or on the basis of a notification
dated 4th Februaiy, 1975 passed under sub-section (I) of Section 18 of the
p Atomic Energy Act, 1962, raised a plea of privilege in relation to the said
report, contending that the same had been classified as 'Secret' as it pettains
to the nuclear installations in the country which includes several sensitive
facilities carried out therein involving activities of highly classified nature.
In the said affidavit, it was averred that the deponent had applied his
G mind and found that the documents satisfy the requirements of the Order
dated 4th February, 1975 read with Section 18 of the Act as if the same is
directed to be published would cause irreparable injury to the interest of the
State as also would be prejudicial to the national security.
STATUTORY PROVISIONS:
H
The Atomic Energy Act, 1962 ('the Act') was enacted to provide for
,_
v
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 241
the development, control and use of atomic energy for the welfare of the A
people of India and for other peaceful purposes and for matters connected
therewith. Section 2(a) of the Act defines "atomic energy" to mean energy
released from atomic ·nuclei as a result of any process, including the fission
and fusion processes. The relevant provisions of the said Act are as under·:
2(b). "Fissile material" means uranium 233, uranium 235, plutonium B
or any material containing these substances or any other material that
';1
may be declared as such by notification by the Central Government;
~
2(e). "plant" includes machinery, equipment or appliance, whether
affixed to land or not;
c
2(h). "radiation" means gamma rays, X-rays and rays consisting of
alpha particles, beta particles, neutrons, protons and other nuclear
and sub-atomic particles; but not sound or radio waves, or visible,
infra-red or ultra-violet light;
2(i). "radioactive substance" or "radioactive material" means any D
substance or material which spontaneously emits radiation in excess
.('
of the levels prescribed by notification by the Central Government."
Section 3 provides for the general powers of the Central Government
which include:
E
(a) to produce, develop, use and dispose of atomic energy either by
itself or through any authority or corporation established by it or a
Government company and carry out research into any matters
connected therewith;
(b) to manufacture of otherwise produce any prescribed or radioactive F
-
-'I
substance and any articles which in its opinion are, or are likely to be,
>
required for, or in .connection with, the production, development or
use of atomic energy or such research as aforesaid and to dispose of
such prescribed or radioactive substance or any articles manufactured
or otherwise produced;
G
(bb) (i) to buy or otherwise acquire, store and transport any prescribed
or radioactive substance and any articles which in its opinion are, or
.._.,
are likely to be, required for, or in connection with, the production,
development or use of atomic energy; and
(ii) to dispose of such prescribed or radioactive substance or any H
242
SUPREME COURT REPORTS
[2004] I S.C.R.
A
articles bought or otherwise acquired by it,
B
c
D
E
either by itself or through any authority or corporation established by
it, or a Government company;] (c) to declare as ·~restricted information"
any information not so far published or otherwise made public relating
to-
(i) the location, quality and quantity of prescribed substances and
transactions for their acquisition, whether by purchase or otherwise,
t
or disposal, whether by sale or otherwise;
(ii) the processing of prescribed substances and the extraction or
production of fissile materials from them; (iii) the theory, design,
construction and operation of plants for the treatment and production
of any of the prescribed substances and for the separation of isotopes;
(iv) the theory, design, construction and operation of nuclear reactors;
(v) research and technological work on materials and process involved
in or derived from items (i) to (iv);
( d) to declare as "prohibited area" any area 01. premises where work
including research, design or development is carried on in respect of
the production, treatment, use, application or disposal of atomic energy
or of any prescribed substance;
( e) to provide for control over radioactive substances or radiation
generating plant in order to-
(i) pn:vent radiation hazards;
p
(ii) secure public safety and safety of persons handling radioactive
substances or radiation generating plant; and
G
H
(iii) ensure safe disposal of radioactive wastes;
(t) to provide for the production and supply of electricity from atomic
energy and for taking measures conducive to such production and
supply and for all matters incidental thereto either by itself or through
any authority or corporation established by it or a Government
company and
(g) to do all such things (including the erection of buildings and
execution of works and the working of minerals) as the Central ·'
r
....
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 243
Government considers necessary or expedient for the exercise of the A
foregoing powers."
Section 16 provides for control over radioactive substances. Section 17
provides for the rule making power of the Central Government by making
special provisions as to safety. Section 18 of the Act reads as under:
"18. Restriction on disclosure of information.-
(I) The Central Government may by order restrict the disclosure of
information, whether contained in a document, drawing photograph,
plan, model, or in any other form whatsoever, which relates to,
B
represents or illustratesC
(a) an existing or proposed plant used or proposed to be used for the
purpose of producing, developing or using atomic energy, or
(b) the purpose or method of operation of any such existing or proposed
plant, or
( c) any process operated or proposed to be operated in any such
existing or proposed plant.
(2) No person shallD
(a) disclose, or obtain or attempt to obtain any information restricted E
under sub-section (I}, or
(b) disclose, without the authority of the Central Government, any
information obtained in the discharge of any functions under this Act
or in the performance of his official duties.
(3) Nothing in this section shall apply-
(i) to the disclosure of information with respect to any plant of a type
in use for purposes other than the production, development or use of
atomic energy, unless thi: information discloses that plant of that type
F
is used or proposed to be used for the production, development or use G
of atomic energy or research into any matters connected therewith; or
(ii) where any inforn1ation has been made available to the general
public otherwise than in contravention of this section, to any
subsequent disclosure of that information.
Section 27 of the Act empowers the Central Government to set up H
244
SUPREME COURT REPORTS
[2004] I S.C.R.
A Atomic Energy Regulatory Board.
B
Pursuant to or in furtherance of the rule making power contained in
Section 30 of the Act, the following rules have been framed:
(i)
Radiation Protection Rules, 1971
(ii) Atomic Energy (Working of Mines, Minerals and Handling of
Prescribed Substances) Rules.
(iii) Atomic Energy (Safe Disposal and Radioactive Wastes) Rules,
1987
C
(iv) Atomic Energy (Factories) Rules, 1996
. (v) Atomic Energy (Control of Irradiation of Food) Rules, 1996.
STATUTORY BODIES:
It is not in dispute that the Atomic Energy Commission is constituted
D by the Union of India in terms of the provisions of the Act. The Central
Government has issued a notification dated I Ith July, 2003 reconstituting the
Atomic Energy Commission with the following composition:
E
I.
Dr. Anil Kakodkar Secretary, Department of Atomic EnergyChairman (ex officio)
2.
Dr. Raja Ramanna Member, Rajya Sabha & former Chairman,
AEC & Secretary, DAE-Member
3.
Shri Brajesh Mishra Principal Secretary to the Prime MinisterMember
F
4.
Shri Kamal Pande Cabinet Secretary-Member
G
5.
Shri D.C. Gupta Finance Secretary & Secretary, Dept. of
;.
Expenditure, Ministry of Finance-Member
6.
Dr. S.S. Meenakshisundaram Ex officio Secretary to the
Government of India-Member for Finance
7.
Prof. C.N.R. Rao Honorary President, Jawaharlal Nehru Centre
for Advanced Scientific Research, Bangalore-Member
8.
Dr. V.K. Chaturvedi Chairman & Managing Director Nuclear
~
Power Corporation of India Ltd.-Member
H
9.
Shri B. Bhattachaijee Director, Bhabha Atomic Research Centre-
;"i
>
,..
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. (SINHA, J.] 245
Member
It is also not in dispute that the Central Government in exercise of its
power conferred upon it under Section 27 of the Act, had set up the Board
to enforce certain regulatory and safety measures envisaged under Sections
16, 17 and 23 of the Act. The composition of the Board include:
I.
Prof. S.P. Sukhatme
2.
Shri S.K. Sharma ViceChairman, AERB
3.
Dr. M.V.S. Valiathan
Honorary Advisor Manipal
Academy of Higher Education,
Manipal
4.
Dr. K.V. Raghavan Director
Indian Institute of Chemical
Technology, Hyderabad
5.
Prof. J.B. Joshi Professor and
Director University Institute of
Chemical Technology (UICT)
6.
Dr. K.S. Parthasarathy Director
Infonnation and Technical Services
-Chairman
-Ex-officio Member
-Member
-Member
-Member
Division, AERB
-Secretary
HIGH COURT JUDGMENT:
A
B
c
D
E
Before the High Court the following three contentions were raised by F
the appellants:
(i)
the citizens have a right to have access to the copies of the
AERB report;
(ii) Section 18 of the Atomic Energy Act is invalid on the ground G
that there are no guidelines for the exercise of discretion in
notifying a document as a Secret document; and
(iii) ·an Independent regulatory Body to replace AERB should be
appointed to monitor the safety measures taken in the nuclear
power plants.
H
246
SUPREME COURT REPORTS
[200-1] I S.C.R.
A
The High Court although took notice of 'the horror of the nuclear
-l"
holocaust which the world first felt when the America Bomber, Enola Gay
descended from the clouds and emptied its bowels on the city of Hiroshima'
but refused to look in to the AERB Report itself upon arriving at a satisfaction
that the respondents had been acting in public interest as also the interest of
B the nuclear installations in the country stating:
c
"I. Admittedly, these questions are repeatedly considered by the
Parliament, it is discussed in the Parliament and once the Parliament
r.
is taking appropriate decision on the safety and other aspects of the
Nuclear Installations, it would not be proper for this Court to exercise
its writ jurisdiction under Article 226 of the Constitution;
2. As stated earlier, the Memorandum dated 7th January, I 997 is
issued by the Prime Minister to look into all aspect of the present
regulatory process and as pointed out by the learned Additional
Solicitor General, this would include the consideration of 130 defects/
D
irregularities pointed out in the AERB report. This Committee
constituted consists of experts in the field;
E
3. It has been pointed out that the hierarchy in the Department of
Atomic Energy monitors the running of the Plants and Nuclear
Installations; and
4. Further, the steps taken for reviewing 130 safety issues in the DAE
Installation by the Committee cannot be subject matter of judicial
revie\v."
As regard the question of vires of certain provisions of the Act and in
F particular Sections 13 and 18 thereof, the High Court held that there are
guidelines both in Sections 18 and 3 of the Atomic Energy Act in terms
whereof the Central Government has been conferred with the power to restrict
information as in wrong hands the same can pose a danger not only to the
security of the State but to the public at large. It also rejected the contention
that only because the nuclear plants are carrying out commercial activities,
G a citizen has a right to know stating:
H
" ... Nuclear Power Plants as a by product generate plutonium which
is a radioactive metal used in Nuclear Research amongst others for
preparation of Atom Bomb. If the defects and the remedies to cure
the defects in the Nuclear Power Plants fall in the wrong hands it can
pose danger to the security of the nation itself. The challenge, therefore,
.~
PE POLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 247
-f
on that count must fail."
A
The High Court opined that the very fact that AERB has prepared the
report is suggestive of the fact that it is alive to its duties.
SUBMISSIONS:
B
Mr. Prashant Bhushan, the learned counsel appearing on behalf of the
7\
appellants would submit that the right of information is a part of the
fundamental right in terms of Article 19(1 )(a) of the Constitution of India,
and, thus, the citizens of India could not be denied the requisite informations
sought for. He would urge· that for the purpose of ensuring that appropriate
safety standards are maintained by the nuclear plants and the radiations which c
occurred in normal course and/ or duty accidents as well as nuclear wastes,
it is important that the guidelines/ norms/ safeguards taken by the nuclear
plants towards not only the workers employed therein but also the general
public should be disclosed. Such informations, Mr. Prashant Bhushan would
contend, to a section ot: citizens and particularly those who are experts in the D
field would enable them to highlight the safety deficiencies obtaining in such
plants and, if necessary, to get a public opinion formed against such
)('
installations. In a democracy, it is fundamental, according to Mr. Prashant
Bhushan, that all vital informations relating to the governance of the country
be disclosed so as to enable the citizenry of India to ascertain their right of
information as to whether the international standards relating to safety are E
being maintained or not.
Relying upon or on the basis of the decisions of this Com1 in State of
UP. v. Raj Narain and Ors., [1975] 3 SCR 333, S.P. Gupta v. Union of India
and Anr., [1981] (Supp.) SCC 87, Dinesh Trivedi, M.P. and Ors. v. Union
F
of India and Ors., [1997] 4 SCC 306 and Union of India v. Association for
_.
Democratic Reforms and Anr., [2002] 5 SCC 294, t~e learned counsel would
)
submit that the provisions contained in Section 18 of the Act are not valid
law imposing reasonable restriction on such freedom in the interest of the
.State. Drawing our attention to several Articles, the learned counsel would
contend that reluctance on the part of the authorities of the plants to disclose G
any information purported to be in terms of the order made under Section 18
of the Act do not sub-serve any public interest. Mr. Prashant Bhushan would
argue that from a perusal of the aforementioned articles, it would appear that
various irregularities have been committed as regard strict enforcement and/
or compliance of safety regulations not only resulting in accidents but also
H
'.
receiving radiations beyond the permissible limits by the women. The learned
248
SUPREME COURT REPORTS
[2004] I S.C.R.
A counsel' wou Id contend that the power plants of the country in the matter of
1"
discharge of nuclear radiations do not fulfill the requirements of the IAEA
Standards. A large number of accidents, Mr. Prashant Bhushan would urge,
occurring in th~\aid plants also had gone unreported.
B
Mr. Bhushan would submit that the information as regard design and
other details of the plants are available on Internet and, thus, there does not
exist any re.!\son as to why the other relevant informations should be withheld
r
only on the spacious plea of likelihood of sabotage as a result whereof an
important right ofa citizen to know about vital informations like safety of the
workers as also the people living nearby has been denied. It was urged that
c in any event those parts of the report which do not satisfy the secrecy of the
State test should be disclosed.
Drawing our attention to Section 18 of the said Act, the learned counsel
would submit that as thereby unguided, unbriddled and wide power had been
conferred upon the Central Government, the same must be held to be ultra
D vires the Constitution of India.
Mr. Soli Sorabjee, learned Attorney General appearing on behalf of the
Union of India, on the other hand, would urge that from the affidavits filed
.,.
before the High Court it would appear that hardly any accident of serious
nature had taken place in India. Mr. Sorabjee would submit that right of
E information as contained in Clause (a) of Clause (I) of Article 19 is subject
to reasonable restrictions contained in Clause (2) thereof. The right of
information, it was contended, cannot be exercised in abstract and must be
considered in the context in which such right is being claimed. A matter
which is sensitive by its very character, the learned Attorney General would
F argue, cannot be subject matter of a right of information. Drawing our attention
to a chart, the learned counsel would submit that the Central Government as
._
also the AERB are aware of the safety measures required to be taken. The
AERB. Mr. Sorabjee would submit, being consisting of eminent persons who
are generally independent not only monitor the working of the plants but also
take strict measures as Tegards safety operations thereof.
G
The learned Attorney General, citing the following example;
"A single pump could handle the cooling operations for a reactor.
Normally, there are two pumps, so that even if one fails the other
could do the job. However, in view of the fact that this is a safetyH
critical component, a safety recommendation could bt to have a third
..
PEPOLE"S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 249
pump. Or replacement of Inlet Manifold, or replacement of Emergency A
Condenser Tube," contended that the repo11 of the A.E.R.B. contains
such suggestion which cannot be termed as deficiencies.
The learned Attorney General would argue that ifthe report is disclosed,
the knowledge of the datas containing therein pertaining to inventories and
contents of spent fuel, reprocessing waste, etc., gathered therefrom could B
facilitate a reverse calculation about the country's nuclear programme potential
in furtherance whereof the enemies of the nation would be able to estimate
and monitor the strategic activities of the plants. It was urged that no
radioactive waste is disposed of and the same is recycled.
Mr. Dipankar Gupta, the learned senior counsel appearing on behalf of C
the 5th respondent drew our attention to various affidavits affirmed by the
High Court and submitted that from a perusal thereof it would appear that the
necessary disclosures of information have already been made. The learned
counsel would submit that if the AERB itself has brought the report into
existence the same would show in no unmistakable te1ms that they are alive D
to the realities. The Courts, Mr. Dipankar Gupta would urge, would intervene
only in a case where the statutory bodies are not active and the same being
X'
not the case the impugned judgment need not be interfered with.
The Board:
AERB is a statutory body. TI1e following are its functions :
(i)
The jurisdiction of AERB. covers installations such as nuclear
power stations, nuclear fuel fabrication, heavy water plants,
uranium mines, thorium processing units etc. and all installations
E
in which radiation is used for medical, industrial or research F
purposes (except Bhabha Atomic Research Centre and its
facilities, due to their special nature).
(ii) AERB is manned by some of the nation's top experts in the
relevant fields. It is also supported by various expe11s belonging
to reputed academic institutions and other government agencies. G
AERB thus draws on th~ expertise and knowledge-base available
all over the country.
(iii) The Board issues different authorizations at each stage such as
siting,
construction,
commissioning
operating
and
decommissioning of nuclear plants and installations. The AERB H
250
SUPREME COURT REPORTS
f2004) I S.C.R.
A
licenses nuclear engineers at different levels, such as Reactor
(
t"
Operator, Shift Charge Engineers, Control Engineers, etc. Units
are permitted to function only ifthe stipulated number of licensed
personnel are available in every shift.
(iv) Apart from the Safety Committees of the units concerned, AERB
B
has evolved a multi-disciplinary 3-tier safety review procedure
to enforce safety stipulations in nuclear installations.