Case Summary and Outcome

The Indian Supreme Court rejected the central government’s claim for protection against disclosure and directed the Union of India to disclose the requested documents. The petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India on the appointment and transfer of judges. The Court reasoned that a particular document regarding the affairs of the state is only immune from disclosure when disclosure is clearly contrary to public interest and in this case the appointment and transfer of judges is of immense public interest.

Facts

The foregoing case dealt with a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.

However, the state claimed privilege against disclosure of these documents under article 74(2) of the Indian Constitution, which provides that the advice tendered by the Council of Ministers to the President cannot be inquired into in any court, and section 123 of the Indian Evidence Act, which provides that evidence derived from unpublished official records on state affairs cannot be given without the permission of the head of the concerned department. Section 162 of the Evidence Act provides that a witness summoned to produce a document before a court must do so, and the court will decide upon any objection to this.

Decision Overview

In a case decided by Justice Bhagwati, the Supreme Court of India rejected the government’s claim for protection against disclosure and directed the Union of India to disclose the documents containing the correspondence. An open and effective participatory democracy requires accountability and access to information by the public about the functioning of the government. Exposure to the public gaze in an open government will ensure a clean and healthy administration and is a powerful check against oppression, corruption, and misuse or abuse of authority. The concept of an open government is the direct emanation from the right to know, which is implicit in the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. Therefore, the disclosure of information in regard to government functioning must be the rule and secrecy the exception, justified only where the strictest requirement of public interest demands it.

With respect to the contention involving Article 74(2), the Court held that while the advice by the Council of Ministers to the President would be protected against judicial scrutiny, the correspondence in this case between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected merely because it was referred to in the advice.

There are only two grounds on the basis of which the Central Government’s decision regarding appointment and transfer can be challenged: (1) there was no full and effective consultation between the Central Government and the appropriate authorities, and (2) the decision was based on irrelevant grounds. The correspondence in question would be relevant qua both these grounds, which necessitates its disclosure. Public interest lies at the foundation of the claim for protection under the Evidence Act. Under these considerations, the Court must decide whether disclosure of a particular document will be contrary to public interest. It must balance the public interest in fair administration of justice through disclosure with the public interest sought to be protected by nondisclosure, and then decide if the document should be protected.

The correspondence in the present case was found not to be protected. It dealt with appointment and transfer of judges, a matter of great public interest, and its disclosure would not have been detrimental to public interest. The apprehension of an ill-informed or captious public or of political criticism were not enough to justify the protection of the correspondence. After examining the correspondence, the Court decided that the Central Government order regarding non-appointment was justified.