TaxTMI 
TaxTMI 
1995 (4) TMI 324
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....ormation of the IBEA was in violation of the Civil Services (Conduct) Rules and that those who take part in the activities of the IBEA will attract disciplinary action. Writ Petitions (Civil) Nos. 1117-1119 were filed in this Court challenging the said circular. This Court, on July 21, 1980, issued an order for issue of rule nisi on the said writ petitions and also passed an interim order directing that during the pendency of the writ petitions in this Court no disciplinary action shall be taken against any member of the IBEA for reasons mentioned in the circular. On December 26, 1980, orders were passed dismissing the appellants from service. One such order regarding the dismissal of appellant. A. K. Kaul, is in the following terms : Shri A. K. Kaul, Deputy Central Intelligence Officer, Intelligence Bureau, New Delhi. Whereas the President is satisfied under Sub-clause (c) of the proviso to Clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry in the case of Shri A. K. Kaul. And whereas the President is satisfied that on the basis of the information available, the activities of Shri A. K. Kaul a....
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....as stated that punitive action was taken on merits of each case and not because of the participation of the appellants in the activities of the IBEA. During the pendency of the applications before the Tribunal the appellants moved Misc. Petitions Nos. 1897/92 in T. A. Nos. 1 and 2/92 and Miscellaneous Petition No. 732/92 in T. A. No. 3/92 whereby they prayed for directions to the respondents to produce the records specified in the said applications for inspection by the Tribunal and/or by the appellants and their counsel. The said applications were opposed by the respondents who claimed privilege invoking Article 74(2) of the Constitution and Sections 123 and 124 of the Evidence Act and for that purpose affidavit of Dr. Madhav Godbole, Secretary to the Government of India, Ministry of Home Affairs, New Delhi (the Head of the Department) was filed before the Tribunal. Without prejudice to the said claim of privilege, the respondents had, however, stated that they had no objection whatsoever to the said documents relating to the dismissal of the appellants and those portions of documents that relate to the said dismissal orders being produced for perusal of the Tribunal in order to s....
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....e nature of the activities on the basis of which the alleged satisfaction has been arrived at and the privilege can only relate to the material which has been relied upon in support of the said activities. 6. The learned Additional Solicitor General, appearing for the respondents, has, however, submitted that an order under Clause (c) of second proviso to Article 311(2) of the Constitution is to be passed by the President or the Governor on the basis of his subjective satisfaction. The material which forms the basis for arriving at the said satisfaction is not required to be disclosed both in view of Article 74(2) as well as under Sections 123 and 124 of the Evidence Act. The learned Additional Solicitor General has, in this context, pointed out that while under Clause (b) of the second proviso to Article 311(2) the competent authority is required to record in writing the reason for its satisfaction that it is not reasonably practicable to hold an inquiry, there is no such requirement for recording the reason in Clause (c), and, therefore, there is no requirement to disclose the reasons for arriving at the satisfaction for taking action under Clause (c) of second proviso to Articl....
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....ant his constitutional right to an inquiry, the first Consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank and once that conclusion is reached and the condition specified in the relevant clause of the second provision is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. (pages 204-205) (of SCR): (at p. 1445 of AIR). While dealing with Clause (c) of the second proviso to Article 311(2) it has been stated:- The question under Clause (c), however, is not whether the security of the State has been affected or not, for the expression used in Clause (c) is "in the interest of the security of the State". The interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place. Further, what is required under Clause (c) is not the satisfaction of the President or the Governor, as the case case may be, that the interest of the security of the State is or will be affected but his satisfaction that in the interest of the security of the State, it is not expedient to hold an inquiry as contemp....
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....an examine whether the satisfaction of the President or the Governor, as the case may be, was arrived at mala fide or is based on wholly extraneous or irrelevant grounds so that such satisfaction would in law amount to no satisfaction at all and that if the Government does not voluntarily disclose such materials it can be compelled by the Court to do so. Dealing with the said submission it was observed (1985)IILLJ206SC : Whether this should be done or not would depend upon whether the documents in question fall within the class of privileged documents and whether in respect of them privilege has been properly claimed or not. It is unnecessary to examine this question any further because in the cases under Clause (c) before us though at first privilege was claimed, at the hearing privilege was waived and the materials as also the advice given by the Ministers to the Governor of Madhya Pradesh who has passed the impugned orders in those cases were disclosed." (p. 280) (of SCR): (at p. 1484 of AIR). 10. It would thus appear in Tulsiram Patel (1985)IILLJ206SC (supra) though the question whether the satisfaction of the President or the Governor under Article 311(2) is amenable to jud....
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....cle 356(1) of the Constitution is amenable to judicial review. At the relevant time when the impugned Proclamations were made there was an express provision in Clause (5) of Article 356 which prescribed that "the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground." In spite of such an express provision P. N. Bhagwati J. (as the learned Chief Justice then was) speaking for himself and A. C. Gupta J., has held that "if the satisfaction is mala fides or is based on wholly extraneous or irrelevant grounds, the Court would have the jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter which he is required to be satisfied," (p. 82) (of SCR) : (at p. 1414 of AIR). Other learned Judges, with some variance, have adopted a similar approach. Beg CJ. has held that if it is revealed "that a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved by a proclamation under Article 356 of the Constitution, this Court will not shirk its duty to act in the manner in which the law may then oblige it to act.....
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....): (at p. 3027 of AIR). Referring to the expression "if the President...is satisfied" in Article 356(1) the learned Judge has said : Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de hors the materials but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to judicial review." (p. 103) (of SCC) (at p. 3018 of AIR). 15. According to the learned Judge, "Many of the parameters of judicial review developed in the field of administrative law are not antithetical to the field of constitutional law and they can equally apply to the domain covered by the constitutional law." (p. 94 of SCC): (at p. 3009 of AIR). The learned Judge has applied the tests laid down by this Court in Barium Chemicals Ltd. v. C....
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....s conclusive." (pp. 268-269) (of SCC): (at p. 3188 of AIR). Pandian J. has expressed his agreement with the judgment of Jeevan Reddy J. 17. Ahmadi, J. (as the learned Chief Justice then was), while expressing his agreement with the view expressed in the State of Rajasthan, [1978]1SCR1 (supra) has held that a Proclamation issued under Article 356(1) of the Constitution can be challenged on the limited ground that the action is mala fide or ultra vires Article 356 itself and has held that the test laid down in Barium Chemicals, [1967]1SCR898 (supra) and subsequent decisions for adjudging the validity of administrative action can have no application for testing the satisfaction of the President under Article 356. (p. 82) (of SCC): (at p. 2997 of AIR). 18. Verma, J., speaking for himself and Yogeshwar Dayal, J.. has taken the same view. The learned Judge has held that though the Proclamation under Article 356 is subject to judicial review the area of justiciability is narrow. While holding that the test for adjudging the validity of an administrative action and the grounds of its invalidity indicated in Barium Chemicals, [1967]1SCR898 (supra) and other cases of that category have no ....
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....is sometimes called fraud on power; (vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgment in the matter: and (vii) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive. 21. As to the bar to an inquiry by the Court imposed under Article 74(2) of the Constitution, all the Judges in S.R. Bommai [1994]2SCR644 (supra) have held that the said bar under Article 74(2) is confined to the advice tendered by the Council of Ministers to the President and it does not extend to the material on the basis of which the advice was tendered and, therefore Article 74(2) does not bar the production of the material on which the advice of the Council of Ministers is based. This is, however, subject to the right to claim privilege against the production of the said material under Section 123 of the Evidence Act. 22. Is there anything in the provisions of Clause (....
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....) is immune from judicial review and is not justiciable. It only means that the provisions contained in Clause (c) are more akin to those contained in Article 356(1) which also does not contain any requirement to record the reasons for the satisfaction of the President, Since the satisfaction of the President in the matter of making a proclamation under Article 356(1) is justiciable within the limits indicated in S.R. Bommai, 1994 AIR SCW 2946 (supra), the satisfaction of the President or the Governor, which forms the basis for passing an order under Clause (c) of the second proviso to Article 311(2), can also be justiciable within the same limits. 24. Under Clause (c) of the second proviso to Article 311(2) the President or the Governor has to satisfy himself about the expediency in the interests of the security of the State to hold an enquiry as prescribed under Article 311(2). Are the considerations involving the interests of the security of the State of such a nature as to exclude the satisfaction arrived at by the President or the Governor in respect of the matters from the field of justiciability'? We do not think so. Article 19(2) of the Constitution permits the State t....
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....s satisfaction for the purpose of passing an order under Article 311(2)(c) the President or the Governor can take into consideration only those circumstances which have a bearing on the interests of the security of the State and not on situations having a bearing on law and order or public order. The satisfaction of the President or the Governor would be vitiated if it is based on circumstances having no bearing on the security of the State. If an order passed under Article 311(2)(c) is assailed before a Court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State the Court can examine the circumstances on which the satisfaction of the President or the Governor is based and if it finds that the said circumstances have no bearing on the security of the State the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations. 25. It would be useful, in this context, to take note of the decision of the House of Lords in Council of Civil Service Unions v. Minister for ....
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....f principle in the appeal is as to the duty of the Court when in proceedings properly brought before it a question arises as to what is required in the interest of national security. The question may arise in ordinary litigation between private persons as to their private rights and obligations : and it can arise, as in this case, in proceedings for judicial review of a decision by a public authority. But, however it arises, it is a matter to be considered by the Court in the circumstances and context of the case. Though there are limits dictated by law and commonsense which the Court must observe in dealing with the question, the Court does not abdicate its judicial functions. If the question arises as a matter of fact, the Court requires evidence to be given. If it arises as a factor to be considered in reviewing the exercise of a discretionary power, evidence is also needed so that the Court may determine whether it should intervene to correct excess or abuse of the power." (p. 404) Similarly Lord Roskill has said : The Courts have long shown themselves sensitive to the assertion by the executive that considerations of national security must preclude judicial investigation ....
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.... that the facts leave no doubt that the situation was such that prompt and urgent action was necessary and the holding of inquiry into the conduct of each of the petitioners would not have been expedient in the interest of the security of the State. 29. We are, therefore, of the opinion that an order passed under Clause (c) of the second proviso to Article 311(2) is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds within the limits laid down in S.R. Bommai, 1994 AIR SCW 2946 (supra). 30. In order that the Court is able to exercise this power of judicial review effectively it must have the necessary material before it to determine whether the satisfaction of the President or the Governor, as the case may be, has been arrived at in accordance with the law and is not vitiated by mala fides or extraneous or irrelevant factors. This brings us to the question whether the Government is obliged to place such material before the Court. It is no doubt true that unlike Clause (b) of the second proviso to Article 311(2) ....
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....le to determine whether the said activities could be regarded as having ;a reasonable nexus with the interest of the security of the State. In the absence of any indication about the nature of the activities it would not be possible for the Court or tribunal to determine whether the satisfaction was arrived at on the basis of relevant considerations. The nature of activities in which employee is said to have indulged in must be distinguished from the material which supports his having indulged in such activities. The non-disclosure of such material would be permissible if the claim of privilege is upheld. The said claim of privilege would not extend to the disclosure of the nature of the activities because such disclosure would not involve disclosure of any information connecting the employee with such activities or the source of such information. 31. In our opinion, therefore, in a case where the validity of an order passed under Clause (c) of the second proviso to Article 311(2) is assailed before a Court or a Tribunal it is open to the Court or the Tribunal to examine whether the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extra....
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....d effective assistance to the Hon'ble Tribunal in the interest of justice and for adjudication of this case. 33. Dr. Madhav Godbole in his affidavit claimed privilege under Article 74(2) as well as under Sections 123 and 124 of the Evidence Act. The Tribunal after referring the decision of this Court in S. P. Gupta v. Union of India [1982]2SCR365, has observed that the following classes of documents are protected from disclosure : (i) Cabinet minutes, minutes of discussions between heads of departments, high level interdepartmental communications and dispatches from ambassadors abroad. (ii) Papers brought into existence for the purpose of preparing a submission to cabinet. (iii) Documents which relate to the framing of the Government policy at a high level. (iv) Notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached. (v) Documents concerned with policy-making within departments including minutes and the like by junior officials and correspondence with outside bodies. 34. The Tribunal, after examining the records produced before it, has observed that the records contain cab....
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....the affidavits of two officers who spoke only on the basis of the records and not from personal knowledge. The Tribunal held that there was sufficient cause for declaring the Association to be unlawful and confirmed the notification. On behalf of the appellant it was urged that the only material produced at the inquiry does not constitute legal evidence for the purpose in as much as it was, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. On the other hand, on behalf of the respondent it was submitted that the requirement of natural justice in such a situation was satisfied by mere disclosure of information without disclosing the source of the information. This Court, while holding that the minimum requirement of natural justice must be satisfied to make the adjudication meaningful, observed that the said requirement of natural justice in a case of this kind had to be tailored to safeguard public interest which must always outweigh every lesser interest. It was said : It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, the....