TaxTMI 
TaxTMI 
2004 (1) TMI 641
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....luding 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 report in November, 1995 documenting therein safety defects and weaknesses 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 including one at Narora Atomic Power Plant in the State of U.P. and Kaiga Atomic Power Plant situated in the State of Karnataka. The appellants herein in support of its prayers made in the writ petition 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 diff....
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....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 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 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) while 6 other issues concerned NPC, ABRC AND DAF. In the said affidavit it was pointed out: "...that the Atomic Energy Commission informed the 5th Respondent on 22^nd November, 1995 of the various issues to be tackled by NPC installations for the NEP's response. By 4th December, 1995, the NPC has given its, over 100 page response to the issue....
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....aised a plea of privilege in relation to the said report, contending that the same had been classified as 'Secret' as it pertains 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 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: The Atomic Energy Act, 1962 ('the Act') was enacted to provide for the development, control and use of atomic energy for the welfare of the people of India and for other peaceful purposes and for matters connected therewith. Section 2(a) of then 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....
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.... 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 or 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) prevent radiation hazards; (ii) secure public safety and safety of persons handling radioactive substances or radiation generating plant; and (iii) ensure safe disposal of radioactive wastes; (f) 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 th....
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....(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 by the Union of India in terms of the provisions of the Act. The Central Government has issued a notification dated 11th July, 2003 reconstituting the Atomic Energy Commission with the following composition: 1. Dr. Anil Kakodkar Secretary, Department of Atomic Energy - Chairman (ex officio) 2. Dr. Raja Ramanna Member, Rajya Sabha & former Chairman, AEC & Secretary, DAE - Member 3. Shri Brajesh Mishra Principal Secretary to the Prime Minister - Member 4. Shri Kamal Pande Cabinet Secretary - Member 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 9. Shri B. Bhattacharjee Director, Bhabha Atomic Research Centre - M....
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....icitor General, this would include the consideration of 130 defects/ irregularities pointed out in the AERB report. This Committee constituted consists of experts in the field; 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 review." As regard the question of vires of certain provisions of the Act and in 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, a citizen has a right to know stating: "...Nuclear Power Plants as a by product generate plutonium which is a radioactive metal used in Nuclea....
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....rities of the plants to disclose 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 receiving radiations beyond the permissible limits by the wormen. The learned counsel would contend that the power plants of the country in the matter of 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 the said plants also had gone unreported. 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 reason as to why the other relevant informations should be withheld only on the spacious plea of likelihood of sabotage as a result whereof an important right of a citizen to know about vital informations like safety of the workers as also the people living near....
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....ogramme 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 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 terms that they are alive 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 not the case the impugned judgment need not be interfered with. The Board: AERB is a statutory body. The 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 in which radiation is used for medi....
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....ibed limits for discharges and ensures that the radiation releases are well within the prescribed limits. The limits prescribed are based on international recommendations, and in all cases are either equal to or more stringent than these. (x) Apart from this standard procedure, AERB can also act suo moto, or on a complaint from a bona fide member of the public. (xi) As part of the Public Information Programme, AERB issues a quarterly Newsletter, and an Annual Report. Based on the continuous evaluation of the safety status of nuclear power plants, extracts of relevant records are published in the Annual Report of the AERB. Press releases on the regulatory activities of AERB are issued periodically. It is not in dispute that the President by a notification dated 15th November, 1983 issued under Section 27 of the Atomic Energy Act constituted the AERB. It being a statutory body has the powers to lay down the safety standards and frame rules and regulations under the Act as regard the regulatory and/or safety aspects of the installations generating electrical energy. Here to before we have noticed the duties and functions of the Board which are of varying nature. The Boa....
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....entral Government. The question as to whether a statute is ultra vires 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 State as also the character thereof. It deals with a sensitive subject. Section 18 has been enacted for the purposes 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. The notification of discovery of uranium or thorium, control over mining operations, the disposal of uranium, power to obtain information are within the scope and ambit of the said Act. Section 13 provides for informations as regard, contracts. Section 14 postulates control over production and use of atomic energy. Restrictions as regard 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. It is not a case where as i....
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....id piece of legislation. RIGHT OF INFORMATION: Right of information is a facet of 'speech and expression' as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right. In 1948, the United Nations proclaimed a Universal Declaration of Human Rights. It was followed by the International Covenant on Civil and Political Rights (ratified in 1978). Article 19 of the Covenant declares that "everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinion without interference, and to seek, and receive and impart information and ideas through any media and regardless of frontiers." A similar enunciation is to be found in the declaration made by the European Convention of Human Rights (1950). Article 10 of that declaration guarantees inter alia, "not only the freedom of the Press to inform the public but also the right of the public to be informed." In keeping with the spirit of the Universal Declaration of 1948, the Preamble of the Constitution of India embodies a solemn resolve of its people to secure, inter alia, to its citizens, liberty of thought and expression. In p....
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....f-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration...." In Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others [(1995) 2 SCC 161], this Court summarized the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2) thus:- "The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for selffulfilment. It enables people to contribute to debate on soci....
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....ure of information, which competes with the right of the State to protect the information relating to its crucial affairs. It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved in each individual case. It is important to note that it was conceded that there are certain classes of documents which are necessarily required to be protected, e.g. Cabinet Minutes, documents concerning the national safety, documents which affect diplomatic relations or relate to some State secrets of the highest importance, and the like in respect of which the Court would ordinarily uphold Government's claim of privilege. However, even these documents have to be tested against the basic guiding principle which is that wherever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from disclosure. (paras 73 and 74 at pp. 284-286) 19. What then is the test ? To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions tak....
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....ssion. Voters' speech or expression in the case of election would include casting of votes, that is to say, that the voter speaks out or expresses by casting a vote. For this purpose, information about the candidate to be selected is a must. (See Paras 46 (5), 7 and 23). Unlike Constitutions of some other developed countries, however, no fundamental right in India is absolute in nature. Reasonable restrictions can be imposed on such fundamental rights. Clause (2) of Article 19 of the Constitution reads thus: "Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." Every right - legal or moral - carries with it a corresponding obligation. It is subject to several exemptions/ exceptions indicated in broad....
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.... It has not been contended nor could it be contended that the operation and functioning of a nuclear plant is not sensitive in nature. Any information relating to the training features processes or technology cannot be disclosed as it may be vulnerable to sabotage. As rightly pointed out by the learned Attorney General, 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 contents of the fuel discharged or any other details must be held to be matters of sensitive character. Before the High Court, as noticed hereinbefore, several affidavits have been filed showing the extent of disclosures made. The Board also publishes annual reports as also quarterly newsletters. The informations which are not classified as 'secrets' or do not come within the purview of the aforementioned order dated 4th February, 1975 are published. If a reasonable restriction is 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. The Act provide....
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....visions is no longer res integra. The State must have the prerogative of preventing evidence being given on matters that would be contrary to public interest. For determining a question when a claim of privilege is made, the Court is required to pose the following questions: (1) Whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State?; and (2) Whether disclosure of the contents of the document would be against public interest? 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. The section does not say who is to decide the preliminary question, viz. whether the document is one that relates to any affairs to State, or how is it to be decided, but the clue in respect thereof can be found in S. 162. Under S. 162 a person summoned to produce a document is bound....
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....opinion opined that the question of national importance vis-'-vis administration of justice should be the criteria for determining the claim of privilege stating: "...But the Executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements. One such element is the administration of justice. The claim of the Executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the Executive alone knows what is best for the citizen. The claim of the Executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow department angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the Court will, with reference to the pending litigation, be in a better position to decide whether the weight of public interest predominates." It was opined that merely label given to an executive is not conclusive in the ....