1993 (5) TMI 23 - SC - Central Excise

CEGAT President Appointment Validated; Privilege Claim Upheld; Calls for Tribunal Review

The Court upheld the appointment of the President of the Customs, Excise and Gold Control Appellate Tribunal (CEGAT), emphasizing the need for rule ... Public interest immunity / executive privilege - in camera inspection of State documents - balancing of public interest in disclosure against public interest in secrecy - Article 74(2) limited bar on inquiry into ministerial advice - Section 123, Indian Evidence Act - claim to withhold unpublished official records - court's power under Article 32 / Article 142 to order discovery and inspect documents - validity of appointment of tribunal president where candidate meets statutory qualifications - independence of the judiciary and necessity of judicial experience for tribunal presidium - need for administrative inquiry and institutional reform of tribunalsPublic interest immunity / executive privilege - Section 123, Indian Evidence Act - claim to withhold unpublished official records - in camera inspection of State documents - court's power under Article 32 / Article 142 to order discovery and inspect documents - balancing of public interest in disclosure against public interest in secrecy - The claim of public interest immunity in respect of the appointment file and related records is subject to judicial scrutiny; the Court may inspect records in camera and decide whether non-disclosure is justified, and on the facts it was not necessary to disclose the contents to the petitioner or his counsel. - HELD THAT: - Section 123 and Article 74(2) do not confer an absolute, unreviewable immunity. The Minister (or head of department) must make a specific, reasoned affidavit claiming immunity; the court retains the power to weigh competing public interests and may, if necessary, inspect the documents in camera to determine if disclosure would injure the public interest or whether the public interest in administration of justice overrides non-disclosure. Article 32/142 empowers the Court to issue discovery orders and to secure production for judicial review; however, after in camera consideration of the file in this case the Court concluded that disclosure to the petitioner or his counsel was not necessary. [Paras 56]Claim of privilege is examinable by the Court; on inspection and balancing the record need not be disclosed to the petitioner or his counsel in this case.Validity of appointment of tribunal president where candidate meets statutory qualifications - judicial review of executive choice in appointments - The appointment of Shri Harish Chander as President of CEGAT could not be quashed merely because of alleged past adverse remarks or because a sitting/retired High Court Judge was not chosen; where the person appointed satisfies the Rules, the Court will not substitute its judgment for the executive's choice. - HELD THAT: - Rule 10 and the Rules generally confer on the Central Government the power to appoint one of the members as President. So long as the appointee possesses the prescribed qualifications and the appointment conforms to the statutory procedure, the Court will not interfere with the wisdom of the Government's choice. Allegations about prior adverse reports or comparative claims by other members do not, in the context of a public interest litigation by a third party, suffice to invalidate an appointment; challenges to comparative selection are ordinarily matters for an aggrieved candidate, not third-party public interest writs. [Paras 5, 71]Appointment of respondent No.3 as President is not interfered with on the grounds raised in these petitions.Article 74(2) limited bar on inquiry into ministerial advice - balancing of public interest in disclosure against public interest in secrecy - in camera inspection of State documents - Article 74(2) does not confer blanket immunity on Cabinet or related records; only the fact of advice and what advice was tendered are not to be inquired into, whereas material forming part of the advice may be inspected in camera and is open to judicial scrutiny except where disclosure would clearly prejudice national security, diplomatic relations or similar high-sensitive interests. - HELD THAT: - The Court reviewed comparative jurisprudence and held that Cabinet or high-level documents are not absolutely immune. The protection under Article 74(2) is confined to the actual advice tendered to the President (the fact and content of advice), but does not preclude examination of the records and material on which such advice was founded. Where necessary the Court will inspect records in camera and balance the competing public interests; class immunity is rejected except for matters touching national security, defence or diplomatic relations where non-disclosure may be absolute. [Paras 52, 54]Article 74(2) is a limited bar; the Court may inspect and decide whether records forming part of ministerial advice should be disclosed, subject to protection for genuinely sensitive classes.Independence of the judiciary and necessity of judicial experience for tribunal presidium - need for administrative inquiry and institutional reform of tribunals - need to amend Rule 10(4) to attract sitting High Court Judges - The Court recorded that Rule 10(4) makes appointment of sitting High Court Judges unattractive and recommended amendment; it directed the Union to investigate the alleged malfunctioning of CEGAT and to consider appointment of a sitting or retired senior High Court Judge as President, and further recommended that the Law Commission examine tribunal constitutions and functioning. - HELD THAT: - While the appointment challenged was held valid, the Court emphasised that to inspire public confidence tribunals like CEGAT should, as far as possible, be headed by sitting or retired High Court Judges. Sub-rule (4) which ties a sitting judge's tenure to the age of superannuation without an assured extended term was criticised as counterproductive; the Court urged amendment to make judicial incumbency more attractive. In view of grave allegations regarding CEGAT's functioning, the Court directed prompt administrative inquiry by a high-level team and called upon the Law Commission to undertake a comprehensive study for structural reforms to ensure independence, legal expertise and effective functioning of tribunals. [Paras 4, 6, 7, 72]Rules should be amended to make appointment of sitting High Court Judges attractive; Union directed to conduct an inquiry into CEGAT's functioning and to consider appointing a judicially experienced President; Law Commission asked to study tribunal reforms.Final Conclusion: The writ petitions are disposed of. The Court (i) held that executive claims of public interest immunity are subject to judicial balancing and in camera scrutiny and, on the facts, refused disclosure to the petitioner; (ii) declined to quash the appointment of the President of CEGAT where the appointee met statutory qualifications; and (iii) directed the Union to institute an expeditious inquiry into the CEGAT's functioning, recommended amendment of the Rules to encourage appointment of sitting/retired High Court Judges as Presidents, and requested the Law Commission to undertake comprehensive study for improving tribunal independence and performance. No order as to costs. Issues Involved:1. Legality and validity of the appointment of the President of the Customs, Excise and Gold Control Appellate Tribunal (CEGAT).2. The claim of privilege over certain documents by the Union of India.3. Allegations of malfunctioning within the CEGAT.4. The necessity to reassess the functioning of various tribunals in India.Detailed Analysis:1. Legality and Validity of the Appointment of the President of the CEGAT:The judgment addresses the appointment of respondent No. 3 as the President of the CEGAT, which was challenged on the grounds of competence and adherence to established rules. The CEGAT Members (Recruitment and Conditions of Service) Rules, 1987, particularly Rule 10, allow the Central Government to appoint any member as the President. The Court noted that while the rules permit the appointment of a sitting or retired High Court judge as President, the current rules are not attractive enough for sitting judges due to the lack of extended tenure benefits. The Court recommended amending Rule 10(4) to make the position more appealing to sitting High Court judges. Despite allegations against respondent No. 3, the Court concluded that as long as the appointee meets the qualifications and eligibility criteria, the Court cannot interfere with the Central Government's choice.2. Claim of Privilege Over Certain Documents:The Union of India claimed privilege over certain documents related to the appointment process of the CEGAT President, invoking Sections 123 and 124 of the Evidence Act and Article 74(2) of the Constitution. The Court examined the claim of privilege, emphasizing that while the government has the right to claim privilege to protect public interest, the Court has the ultimate authority to decide on the matter. The Court agreed with the conclusion that it was unnecessary to disclose the contents of the records to the petitioner or his counsel, thus upholding the claim of privilege.3. Allegations of Malfunctioning Within the CEGAT:The Court addressed serious allegations of malfunctioning within the CEGAT, including delayed sittings, tendency to adjourn cases, and a general lack of work culture. The Court emphasized the need for the administrative machinery to take prompt action to investigate these allegations. It recommended appointing a high-level team to inspect the CEGAT, identify the causes of the crisis, and suggest remedial measures.4. Necessity to Reassess the Functioning of Various Tribunals:The Court highlighted the need to reassess the functioning of various tribunals established under Articles 323A and 323B of the Constitution. It stressed the importance of an independent and impartial justice delivery system and recommended that the Law Commission of India undertake a comprehensive study to suggest measures for improving the functioning of these tribunals. The Court also suggested that the CEGAT be brought under the control of the Law and Justice Department to ensure greater independence and efficiency.Conclusion:The writ petitions were disposed of with no order as to costs. The Court directed the Union Government to take immediate action to address the malfunctioning within the CEGAT and recommended amendments to the rules governing the appointment of its President. The Court also emphasized the need for a comprehensive review of the functioning of various tribunals by the Law Commission of India.