# R.K.JAIN v. UNION OF INDIA AND ORS - **Citation:** [1993] 3 S.C.R. 802 - **Court:** Supreme Court of India - **Decided:** 1993-05-14 - **Case number:** Writ Petition Nos. 90 & 312of1992 - **Bench:** A.M. Ahmadi, M.M. Punchhi, K. Ramaswamy - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-k-jain-v-union-of-india-and-ors-11841 - **Pages:** 61 ## Headnote Customs Excise and Gold Control Appellate Tribunal Members (Recmitmen t and Conditions of Sen1ice) Rules, 1987: Rules 1c,3,6, 10.-CEGAT-President-Appointment of-Appointment of senior Vice-President as President-Legality and validity of-Appointment held valid bw need for appointing a silting or retired High Court Judge as President emphasised-Need for aniendment of Rule 10(4) emphasised. CEGAT-Writ in public interest-Allegation of mal-functioning in CEGAT-Eramination of allegation by a high level team directed. Indian Evidence Act, 1871: Sections 113, 114 and 161. State Documents-Right of Government to claim immunity from disclosure-Scope of-Claim for immunity should be supported by affidavit by Head of Department indicating reasonsforclaim-Oatlt of office secrecy adumberated in Article 74 (5) and Schedule 111 of Constitution does not absolve Minister from stating reasons in support of immunity-It is duty of Court and not exec111ive to decide whether a doc11ment needs immiinityfr01ri disclos11re. Constitutipn of India, 1950: F Article 75(3) and Schedule lll-Cabinet-Role and functions of-Cabii1et H documents-Need for secrecy-Extent of imm1111icyfrom disclosure. Article 74 (1)-Scope of-Advice tendered by Ministers to President-Bar of judicial review is to tlzefactwn of advice tendered by Council of Ministers to President-blll not to record i.e. material on which advice is founded. Articles 323A and 3138-Tribunals set up under-Need for a study by law Commission suggesting measures for improved functioning of Ti ibunals emphasised. 802 L ' ... -- -- R.K. JAIN v. UNION OF INDIA 803 Judicial Review-ls basic fearure of Constitution-Cannot be disper,:sed A with by creating Tribunals under Articles 323A and 323B of Cons1itl//ion-Alternative Mechanism devised for judicial review should be effective and efficient-Court's anguish over in effectivity of alternative mechanism devised for judicial review expressed Appeal to a Bench (lf two Judges of High Court over orders of Trib1mal suggested. Sen·ice law-Selection-Rule conferring power on Central Govemme111 to make appoi111111e11t-Co11rt can nor sit over the choice of selection. · Sen·ice 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 S11pre111a Lax-Meaning of B c By a letter dated December 26, 1991 addressed to the Chief Justice of India, the petitioner, Editor, Excise Law Times, complained that ever since D the retirement of President of the Customs, Excise and Gold control Appellate Tribunal (CEGA T) in 1985 no appointment of President was made as a result of which the functioning of th~ Tribunal was adversely affected. He also alleged mal-functioning in the CEGA T 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 E litigation and on February 25, 1992, this Court issued Rule Nisi to Union of India to make immediate appointment of the President of CEGA T, preferably a senior High Court ,Judge. Aller 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. F The petitioner filed another petition challenging the appointment of President and sought to quash the same on·dte grounds that (1) the appointment was in breach of judicial order passed by this Court on FebruarJ 25, 1992 because as per the convention a sitting or retired Judge of the High Court G 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 b~· the Government on the Ooor of the House that judi ## Text _Characters 0–39,928 of 176,952. This is a partial read: ask again with offset=39928 for what follows._ A B c D E R.K.JAIN v. UNION OF INDIA AND ORS. MAY 14, 1993 [A.M. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ] Customs Excise and Gold Control Appellate Tribunal Members (Recmitmen t and Conditions of Sen1ice) Rules, 1987: Rules 1c,3,6, 10.-CEGAT-President-Appointment of-Appointment of senior Vice-President as President-Legality and validity of-Appointment held valid bw need for appointing a silting or retired High Court Judge as President emphasised-Need for aniendment of Rule 10(4) emphasised. CEGAT-Writ in public interest-Allegation of mal-functioning in CEGAT-Eramination of allegation by a high level team directed. Indian Evidence Act, 1871: Sections 113, 114 and 161. State Documents-Right of Government to claim immunity from disclosure-Scope of-Claim for immunity should be supported by affidavit by Head of Department indicating reasonsforclaim-Oatlt of office secrecy adumberated in Article 74 (5) and Schedule 111 of Constitution does not absolve Minister from stating reasons in support of immunity-It is duty of Court and not exec111ive to decide whether a doc11ment needs immiinityfr01ri disclos11re. Constitutipn of India, 1950: F Article 75(3) and Schedule lll-Cabinet-Role and functions of-Cabii1et H documents-Need for secrecy-Extent of imm1111icyfrom disclosure. Article 74 (1)-Scope of-Advice tendered by Ministers to President-Bar of judicial review is to tlzefactwn of advice tendered by Council of Ministers to President-blll not to record i.e. material on which advice is founded. Articles 323A and 3138-Tribunals set up under-Need for a study by law Commission suggesting measures for improved functioning of Ti ibunals emphasised. 802 L ' ... -- -- R.K. JAIN v. UNION OF INDIA 803 Judicial Review-ls basic fearure of Constitution-Cannot be disper,:sed A with by creating Tribunals under Articles 323A and 323B of Cons1itl//ion-Alternative Mechanism devised for judicial review should be effective and efficient-Court's anguish over in effectivity of alternative mechanism devised for judicial review expressed Appeal to a Bench (lf two Judges of High Court over orders of Trib1mal suggested. Sen·ice law-Selection-Rule conferring power on Central Govemme111 to make appoi111111e11t-Co11rt can nor sit over the choice of selection. · Sen·ice 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 S11pre111a Lax-Meaning of B c By a letter dated December 26, 1991 addressed to the Chief Justice of India, the petitioner, Editor, Excise Law Times, complained that ever since D the retirement of President of the Customs, Excise and Gold control Appellate Tribunal (CEGA T) in 1985 no appointment of President was made as a result of which the functioning of th~ Tribunal was adversely affected. He also alleged mal-functioning in the CEGA T 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 E litigation and on February 25, 1992, this Court issued Rule Nisi to Union of India to make immediate appointment of the President of CEGA T, preferably a senior High Court ,Judge. Aller 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. F The petitioner filed another petition challenging the appointment of President and sought to quash the same on·dte grounds that (1) the appointment was in breach of judicial order passed by this Court on FebruarJ 25, 1992 because as per the convention a sitting or retired Judge of the High Court G 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 b~· the Government on the Ooor of the House that judicial . independence of CEGA T is .fine qua non to sustain the confidence of the H 804 SUPREME COURT REPORTS (1993) 3 s·.c.R. A litigant pu!llic. 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 CEGA T would undermine the B c confidence of the litigant public in the efficaq' of judicial adjudication, even though Rules may permit such appointment. The petitioncy also prayed that Rules 10(1)(3) and (4) of the CEGA T 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, namcl~· independence of ,Judiciary. On l\fay 4, 1992this Court issued Ruic Nisi and on the next date of llearing the relevant file on which decision regarding the appointment of President was made produced in the Court bu ton behalf ot'the Union oflndia an objection was taken by the Additional Solicitor General that this Court cannot inspect the tile as he intended to claim privilege. Accordingly, pursuD ant 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 fm· the Court to peruse the file but claimed privilege to disclose the E contents of the file to the petitioner. F 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 file constitutes Cabinet documents forming part of the preparation of 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 G discussion and expression ofvicws by the bureaucrats at higher level and by the Minister/Cabinet Sub-Committee causing serious idjur~· to public serH vice. On behalf of Respondent No.3 it was contended that .(1) he had an excellent and impeccable record of sen•ice without any adverse remarks and dropping of his recommendatfon for appointment as a Judge of Delhi High ~- R.K. JAI:-1 v. UNION OF INDIA 805 Court could i10t be construed adv~rsc to him; (2) the Government had A 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, llLl.I>: /',.,. 1<111111111111111r I I. 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 necessar~· 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 immunitJ' 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, suppot·ted 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 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. 1.2. When a claim for public interest immunity has been laid for non· disclosure of the State document-;, 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 amid 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 oftice of secrecy adumbrated in Article 75(4) and Schedule III of the Constitution does not absolve the Minister either to state B c .D E F G 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 H 806 SUPREME COURT REPORTS [1993] 3 S.C.R. A discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Government. B Attorney Genera/v.Jonathan Cape Lid., 1976 Q.B. 752; Sankey v. Whit/an, [1979] 53 A.L. R. 11 and Whirl.am ''·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 a~signcd in the affidavit would justify C withholding disclosure, the court would, in camera, examine the record and satisfy itself whether the public intcrcstsubscrvcs 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 D 123 would always be with the Court. E F G 1.5. The Court is not bound by the statement made by the Minister or the Head of the Departmcntin the affida,·it and it retains the power to balance the injury to the State or the public service against the risk of injustice. The real question which the Court is required to consider is whether public interest is so strong to override the ordinary right and interest of the litigant that he shall be able to lay before a Court of justice the relevant evidence. In balancing the competing interests it is the duty of the court to sec 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 inte1·cst that the administration of justice shall not be frustrated by withholding documents which must be 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. H State of U.P. v. Raj Narain & Ors., [1975] 2 S.C.R. 333; S.P. Gupta& Ors. ... '· ... .... R.K. JAIN v. UNION OF INDIA 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, 1918 A.C.171 (H.L.); Bunnah Oil Co. A 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, .. Secretary of State for Trade, [1983) 2 A.C. 394 (H.L.); Council B 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; EnvironmentalAge.ncy v. PalS)' T Mink, 410 U.S. 73 (35) L. Ed.2nd 119; Newyoud 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); C Shankey v. Wlzitlan, [1979] 53 A.L.R. l; FAilnsurances Ltd. v. The Hon Sir, Henry 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 Environmemand Ors. v. Peko Wal/send 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. Slzinder, 1954 S.L.R. 479 Gagnon v. D Ouebec Securities Commission, 1964 S.C.R. 329; Bruce v. Waldron, 1963 V.L.R. 3; Re Tunstall, fa.P. Brown, [1966] 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. Illangarutllle, [1964] 66 C.L.W.17; Jamaica in Allen v. By.fields (No.2) [1964] 7 W.I.R. 69 and Scotland in Glasgow Corporation v. Central Land Board, [1956] E Scotland Law Time 4, referred to. Mecannic on Evidence, 4th Edn. by John w. Strong, referred to. 1. 7. Every communication which proceeded from one officer of the State F 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. G 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, dependH 808 SUPREME COURT REPORTS [1993] 3 S.C.R. ' A ing on facts on hand, Court may adopt such other procedure as would be B c wan·anted. 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 tty: 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 D 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. E F Satwant Singh Sawlmey v. D. Ramarathnam Asstt. Passport Officer, [1967] 3 S.C.R~ 525; Magnbhai Ishwarbhai Patel v. Union of India and Allr., [1969) 3 S.C.R. 254; Shams her Singh v. State of Punjab, [1975] 1S.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.11; 0 Hood Phillips and Paul Jackson, Constillltional and Administrative Law, 7th Edn. p. 301; Walker, The Cabinet, p. 183; Halsbury's Laws of England, 4th Edn. Vol. 8 para 820; Bagehot, I and The English Constitution, G 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 H security, diplomatic relations, internal '"'curity or sensitive diplomatic corre_ ... - -· -. R.K. JAIN v. UNION OF INDIA 809 spondence per se are <;lass documents and that public interest demands total A immunity from disclosure. Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc. The maxim Salvs Popules Cast Suprema I.Ax 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 MarkHosemballR. v.Home Secreta1yexparte Hosenball, [1977] 1 W.L.R. 766, referred to. B 3.2. But it would be going too far to lay down that no document in any c particular class or one of the categories of Cabinet papers or decisions or contents thereof should never, in any circumstances, be ordered to be produced. 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]2S.C.R.333;Conwayv.Rimmer1968A.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 Pa rte 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. Whit/an, [1979] 53 A.L.R. 1; Harbour Corp of Queensland v. Vessey Chemicals Pvt. Ltd., [1986] 67 A.L.R 100; ManthalAustralia Pvt. Ltd. v. Minister/or Indus ti)', Technology and Commerce, [1987] 71 A.L.R.109; Koowarta v .Bjelke-Petersen, [1988] 92F.L.R.104; United States v.RichardM. Nixon, [1974] 418 U.S.683=41 Lawyers Ed. 2nd Ed.1039;Attorney Generalv.Jonathan Cape Ltd.1916 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. Tohe)', [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 D E F G and to furnish such information relating to the administration or reconsideration by the Council of Minister if the President so requires and submit its H 810 SUPREME COURT REPORTS (1993) 3 S.C.R. A 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 oflaw and judicial review are parts or"the scheme of the Constitution as basic structure and judicial review is entrusted to this Court (High court under Article 226). B c D E F G 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 Presidentoflndia. The rest of the me 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. H Shri Kumar Padma Prasad v. Union of India & Ors., [1992] 2 S.C.C. 428, ', - •. R.K. JAIN y,. UNION OF INDIA 811 distinguished. S. 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 expedientto 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 Governmentto show whether the convention is being followed in appointment of the President of CEGA T and further directed to .consider appointment of a Senior Judge or a retired Chief Justice of the High Court as it President. Adnj.ittedly Chief Justice of India was not consulted before appointing Respondent No.3 as President of CEGA T The solemn assurance given to the Parliament that the Tribunal bears a judicious blend by appointment ofa High Court Judge as President was given a go-bye. 6.J. \Vhile making statutory rules the executive appears to hal'e made A B c D E the .appuintment of a sitting or retired High Court Judge as President unaUnictive and Directly frustrating the legislative animation. A sitting Judgf:, when he is entitled to continue in his office upto 62 years, would not he· F wilUng to opt to serve as President, if his superannuation as President is cote·.minus with 62 years. He would be attracted only if he is given extended t':aree 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. G ·· 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 H A B D E F G H 812 SUPREME COURT REPORTS [1993) 3 S.C.R: 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 persistentallegations again.'it mal-functioning of the CEGA T and against Respondent No. 3 himself. Though this Court exercised sclfrestraint to assume the role of an investigator to charter out the ills surfaced, suffice to say that the Union Government cannot turn a blind eye to the persistent public demands and the Court directs to swing into action, an indcpth enquiry made expeditiously by an officer or team of officers to control the mal-functioning 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 oflegislature 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 arc 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 wcightage 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 oflegal 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, .. Paras Laminates Ltd., [1990] 49 E.L.T. 322 (SC); Krishna Sahai & Ors. v. State of UP. & Ors., [1990]2S.C.C.673,andRajendraSingh 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 CEGA T under the control of Law and Justice Departm~nt in line with Income-tax Appellate Tribunal and make appropriate urgent recommendations to the Government oflndia who should take remedial steps by an R.K. JAIN ,._ UNION OF INDIA 813 appropriate legislation to overcome the handicaps and ditliculties and make A the Tribunals effective and etlicient 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 oflegal 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 adminis· tr-ation 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 arc fundamental for efficient judicial adjudication. Then only as repository of the confidence, as its duty, B c the Tribunal would properly and efficiently interpret the law and appl~· the D law to the given set of facts. Absence thereof would be repugnant or deroga· tory 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 3238 of the Constitution. Any institutional mechanism or authority in negation of Judicial review is destrucE tive of basic structure, So long as the alternative institutional mechanism or F authority set up by an Act is not less effective than the High Court, it is consistent with constitutional scheme. The faith of the people is the bed-rock on which the edifice of judicial review and efficaq of the adjudication arc founded. The alternative arrangement must, therefore, be eflcctive and efficient. Keshwanand Bharativ. Union of India, [1973]Suppl. S.C.R.1; Waman Rao v. Union of India, [1980) 3 S.C.R. 587; Ragl111nathrao Ganparrao v. Union G of India [1993] 1SCALE363; Krishna Sw~i v. Union of India, [1992] 4 S.C.C. 605; S.P. Sampat Kumar v. Union of India & Ors., [1987] l S.C.R. 435 and J.B. Chopra v. Union of India. f1987 J l S.C.C. 422, referred to. 11 " 814 SUPREME COURT REPORTS Jl'J'J~l 1 S.C.R. A 9 .1. It is necessary U1 express Court's anguish over the ineffectiv it~· ofthe B c alternative mechanism devised for judicial review. The _judicial review and remcd~· arc fundamental right'> of the citizens. The dispensation of.justice by the Tribunals is much to be desires. Court is not doubting the abilit,y of the members or Vice-Chairman (non-Judges) who ma~' be expert-; in their regular scn•icc. But judicial adjudication is a special process and would etlicientl~· be adm'inistered by advocate Judges. The 1·emcd~· of appeal by special leave under A1·ticle 136 to this Court also proves to he costl~· and prohibitive and f'ar-tlung 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 Court-; over the orders of the Tribunals within its teri-itorial jurisdiction on questions oflaw would assuage a growing t'ccling of'injustice of those who can ill-afford to approach the Supreme Court. I 0. No one can suppose that the executive will never be guilt~· of the sins common to all people. Sometimes the~· may do things which they ought not to do or will not do things the~· ought to do. The Court must he alive to that D possibility of the executive committing illegality in it-; process, exercising it-; 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 hy 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 con~titutional functionE ary though might have acted in good faith. It is, therefore, the function of the Court to see that lawful autho1·ity is not abused. F l 0 . .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 it-; views to that of the executive on matters of policy, it is its undoubted power and duty to sec that the executive exercises its p~wer 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, G though no doubt only in limited number of cases, Yet the inner workings of government may be exposed to public gaze. Per Ahmadi J. (For himself and Punchhi, 1.) (Concurring) If t. This Court cannot sit in judgment over the wisdom of the Central R.K. JAIN v. UNION OF INDIA 815 ~ Government in the choice of the person to be appointed as a President so long A 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 Governm.ent is conferred the power to appoint one of the Members to be the President. Since the validity of the Ruic is not questioned there can be no doubt that the Central Government was entitled to appoint Respondent No. 3 as President. ·I.I. This Court cannot interfere with the appointment of Respondent B No. 3 on the ground that his trlick record was poor or because of adverse C 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 ofthe· 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. D 2. However, to instill the confidence of the litigating public in the CEGA T, the Government must make a sincere effort to appoint a sitting Judge of the High Court as a President of the CEGA Tin consultation with the Chief Justice oflndia 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 I 0 of the CEGA T Members (Recruitment and Conditions of Service) Rules, 1987 needs a suitable ·change to make it sufficiently attracth·e for sitting High Court Judges to accept appointment as E the President of the CEGA T. The rules empower the Central Government to F. appoint any member as the President of the CEGAT. It is true that under subrulc (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 G 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 sitting Judge of the 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 H 816 SUPREME CQURT REPORTS [1993] 3 S.C.R. A perks which are attached to the office of a High Court.I udge. El·cn status-wise he would suffer as his decisions would be 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. B c D E 4. The allegations made by Petitioner in regard to the working the CEGA T arc 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 arc capable of verification, can only betrays indifference and lack ofa 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 CEGA T wakes-up from it'> slumber and initiates prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGA T, 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 3238 in the Constitution. A sound justice delivery system is a sine qua non for the eflicicnt governance ofa countr~· wedded to the rule oflaw. An independent and impartial justice delivery system in which the litigating pu~"lic 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 constitute