1. At the instance of the complainant, Shri Pradhan, Chief Secretary to the Government of Maharashtra, was summoned to produce documents regarding the Government decision said to have been taken on October 6, 1980, to set up Indira Gandhi Pratibha Pratishthan. The learned Advocate General has appeared for the State Government and has claimed immunity for the Government from producing these documents. Shri Shivajirao Bapusaheb Deshmukh, Minister for State for General Administration and other departments, had filed his affidavit Exh. 93 on April 23, 1984. The complainant filed his affidavit in reply Exh. 103 on April 27, 1984. Arguments were heard on April 30 and May 2. After the arguments were over, the learned Advocate General filed a further affidavit of Shri Deshmukh.
2. In his affidavits, Shri Deshmukh has affirmed that the following three documents are in custody of the Government: -
(i) The note dated October 4, 1980 circulated by the GAD to the Cabinet for the purpose of discussion of the subject;
(ii) The minutes of the decision recorded after discussion of the subject by the Cabinet on October 6, 1980; and
(iii) Proceedings of the meeting of the Cabinet dated October 13, 1980 in which minutes of the meeting dated 6th were confirmed.
3. The learned Advocate General's claim for immunity is based on the following three provisions;-
A. Article 163(3) of the Constitution which provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.
B. Instruction No. 30 of the instructions issued by the Governor of Maharashtra under Rule 15 of the Rules of Business made by him under Clauses (2) and (3) of Article 166 of the Constitution of India.
G. Under Section 123 of the Indian Evidence Act, which enacts that no one shall be permitted to give any evidence derived from unpublished official record's relating to any affairs of State, except with the permission of the Officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
I proceed to consider the objections of the learned Advocate General under the three heads seriatim.
A. UNDER Article 163(3)
4. On the subject of disclosure of documents, both in relation to the Constitutional provisions contained in Article 74(2) [or Article 163(3)] and Section 123 I.E. Act, the Supreme Court decision in the Judges' case (S. P. Gupta v. President of India : 2SCR365 ) is the last word. The majority decision of 6 to 1 in this case lays down the following as the correct legal position obtaining under Article 74(2) which corresponds to Article 163(3): -
(i) The advice tendered by the Council of Ministers to the President or the Governor, as the case may be, is protected against judicial scrutiny.
(ii) The reasons which have weighed with the Council of Ministers in giving the advice will form part of the advice and, therefore, protected against judicial scrutiny.
(iii) The materials on which the reasoning of Council of Ministers is based and the advice is given, cannot be said to form part of the advice. Accordingly these materials will not attract the bar under Article 74(2) or 163(3).
(iv) Proposition (iii) supra holds good, even though the materials are referred to in the advice tendered by the Council of Ministers to the President/ Governor.
5. It follows that if the note of October 4, is held to constitute the reasons for the Cabinet decision of 6th (as is contended by the learned Advocate General and Shri Ovalekar for the accused), then that note is not open to disclosure. On the other hand, if the note furnishes only the data or the materials for the advice given to the Governor, then it will not attract the bar under Article 163(3), even if these materials or data may have been referred to in the final advice. On going through the two affidavits of the Minister of State, no doubt is left that the note of October 4, was only a sort of working paper prepared by the Officers of GAD. In the precise language of instruction 24 this document is 'a memorandum indicating with sufficient precision the salient facts of the case and the points for decision' to be circulated to all Ministers at least two days before the Cabinet meeting, in order to enable them to dispose of the subject before them. I am clear that the departmental note of 4th October provides only the materials on which the Cabinet decision dated October 6, is based and as such it cannot be termed as 'advice' or 'reasons for the advice' allegedly tendered by the Cabinet to the Governor. I proceed to give my reasons for this conclusion.
6. The reasons which are entitled to protection, under Article 163(3) must be the reasons that eventually weigh with the Cabinet or Council of Ministers in tendering the particular advice to the Governor. Obviously the reasons cannot come into being even before the Cabinet initiate their mental process for considering the subject in question. In our case the Cabinet took this question for consideration for the first time on October 6. The only conclusion that will be consistent with logic and the course of nature, will be that Ministers could not have applied their mind collectively or individually to the subject before they received the departmental note. The corollary is that the contents of the note can under no circumstances become reasons for the advice, which they may have formulated for the first time on 6th after necessary mutual deliberations and thereafter conveyed to the Governor. This conclusion is further fortified by the averment in the second affidavit of the Minister of State that the note of 4th had already reached the Governor on the 5th, i.e. a day in, advance the Ministers started their deliberations. On these facts it will be absolutely illogical to suggest that the note of the 4th is nothing but the reasons for the advice the Ministers subsequently formulated on the 6th.
7. The same conclusion has to be reached when the admitted facts are viewed from a different angle. It is not in dispute that as contemplated by instruction No. 24, the note of 4th October was prepared by the officers of GAD. The mind that worked to produce the note was of these officers. It is not suggested that the, Ministers or any of them shared their mind with these officers in producing the said note. Similarly, the Ministers reached their particular decision on 6th by independently applying their mind to the subject, may be. after going through the materials furnished by the Officers, including the note of the 4th. The note of 4th is thus the product of the department; while the Cabinet decision of the 6th (and the-ad vice for the Governor, if any) was the product of the deliberations of the Cabinet. In other words the note of 4th was the 'efficient cause for setting into motion the decision making process of the Cabinet; the decision/advice (along with the reasons) therefore was the end product or the result or the effect of this process. The cause and the effect cannot be identical. In other words the note of 4th cannot be said to be the reasons for the advice formulated by the Council of Ministers on 6th.
8. Even a plain reading of instruction 24 leaves no doubt that the purpose of preparing the departmental note (which 4th October note verily is) is to feed the Ministers with the materials and data to dispose of the case before them. This instruction is reproduced below for ready reference.
When it has been decided to bring a case before the Council or, as the case may be the Cabinet, the Department to which the case belongs shall, unless the Chief Minister otherwise directs prepare a memorandum indicating with sufficient precision the salient facts of the case and the points for decision. Such memorandum and such other papers as are necessary to enable the case to be disposed of shall be circulated to the Ministers. Copies of the memorandum and other papers shall at the same time be sent to the Governor.
9. The first two sentences clearly show that the object of preparing the note is to furnish the Ministers with the requisite materials and data to enable them to reach their own decision, by their own reasoning process. The contents of the note of 4th cannot therefore be equated with the reasons for the Cabinet decision/ advice of 6th.
10. The learned Advocate General stated from the Bar that the Cabinet decision/ advice dated October 6, is just a one line decision and that it does not make any sense, unless it is read in conjunction with the note of 4th. He developed his point further by saying that these two papers are integrally connected with each other and as such go together to form the advice and will therefore both enjoy immunity under Article 163(3). I cannot persuade myself to agree with this submission. In the first place although the Government has filed two affidavits, there is no direct or indirect averment in it to suggest that the formal decision/ advice is unintelligible by itself. Even if the facts now stated by the learned Advocate General from the Bar are assumed in favour of the Government, I fail to see how a possible deficiency in expressing the decision/advice of the Cabinet meaningfully, will alter the real nature of the note of 4th. If originally this note only constituted the materials to be fed to the Cabinet, it will retain its character, even though subsequently it appears that the note has to be read in conjunction with the Cabinet decision, to make the latter intelligible. The learned Advocate General's submission is without any merit.
11. Shri Ovalekar for the accused adopted all the submissions of the learned Advocate General. He further added that even if originally the note of 4th October constituted only the materials, the subsequent amalgamation thereof with the decision/advice of the Cabinet will make it integral part of the decision and as such the amalgam of the two will become immune. For the same reasons for which I have rejected the learned Advocate General's submissions in the foregoing paragraph, I reject this particular submission of Shri Ovalekar also.
12. Here I pause a little to take note of one submission of Shri Jaisinghani for the complainant. He submits that Article 163(3) postulates only that class of cases where Governor is to make the order himself, as distinct from the cases where an individual Minister or the Cabinet as a whole takes the final decision at their own level, without reference to the Governor. Article 163(3), Shri Jaisinghani adds, contemplates the tendering of 'actual advice' to the Governor and not merely 'fictional' or 'deemed advice'. He relies on a Division Bench decision of Patna High Court in Ram Nagina Singh v. S.V. Soni : AIR1976Pat36 . According to him the present is a case, which under the Government's Business Rules is finally decided by the Cabinet for good at their own level and the copies of papers including the note of 4th October, that were sent to the Governor, were by way of compliance with the requirement of Article 167(a) and not by way of tendering advice to the Governor under Article 163(3).
13. I find considerable force in Shri Jaisinghani's submission. Article 167(a) provides that it shall be the duty of the Chief Minister inter alia to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State. A perusal of instruction No. 15 will reveal that in a number of situations the departments are required to send copies of papers to the Governor, It is not as if the copies are so sent only where advice is tendered to him under Article 163(3). By way of example, we may refer to instructions Nos. 4, 13, 14, 15, 19, -21, 24, 26 and 29. The Government Business Rules further provide for final disposal of cases without reference to the Governor, not only at the level of the Council of Ministers, the Cabinet or an individual Minister, but also at the level of Secretary and his other junior officers. In such cases it is not necessary for them to tender any actual advice to the Governor. I agree with the view of the learned Judges of the Patna High Court -and I say so with respect - that Article 163(3) must be confined to the cases of actual advice, and has no application to a deemed advice. Article 163(3) postulates that class of cases only where the Governor is to make an order as distinct from that class of cases where orders have been passed by a Minister or a Council of Ministers or by an Officer of the department in accordance with the Rules of the Business.
14. The learned Advocate General does not suggest, and rightly so that the present case is one in which the formal orders of the Governor were necessary under Rules of Business or any other statutory provision, before the Cabinet decision could become operative. Indeed, the learned Advocate General candidly admits that the decision of the 6th itself was the final act in the process. It is true that the Minister in charge of GAD has stated in his affidavit, Ex. 94 that 'the reasons which have weighed with the Cabinet in giving the advice would form part of the advice. I say that the note circulated to the Cabinet and the minutes of decision form part and parcel of the advice given by the Cabinet.' Curiously enough, he has verified this averment on the basis of legal advice. This particular averment finds place in his second affidavit of May 2, 1984 also. However, this affidavit is not verified at all, The resultant position is that there is no basis in fact to accept the Government's claim that the note of 4th constitutes -reasons for the advice.
15. Regarding the question of actual tendering of advice to the Governor, the second affidavit of the Minister states that the Governor received the note of 4th October on 5th, i.e. a day before the Cabinet took the decision and allegedly formulated the advice. The minutes of the meeting of 6th and the meeting of 13th at which the earlier minutes were confirmed, were received together by the Governor on 13th. The sequence of the receipt of the different papers by the Governor reinforces the conclusion that copies of those papers were sent to the Governor in compliance of Article 167(a) and do not amount to tendering of any actual advice to the Governor within the meaning of Article 163(3). In other words, the very foundation of claiming immunity under Article 163(3) is conspicuously absent in the present case. All the same I have preferred to dispose of the learned Advocate General's principal submission on the assumption that such foundation exists. I leave the point here.
16. As a result of the above discussion, I hold that the Government's claim for immunity under Article 163(3) is not sound in respect of any of the three documents.
B. IMMUNITY UNDER INSTRUCTION 30
17. The second submission of the learned Advocate General can be disposed of without any difficulty. Governor's power under Article 166(3) to make rules is 'for the more convenient transaction of the business of the Government of the State.' So also instructions under Rule 15 are issued by the Governor for the same purpose. Instruction 30 provides that the discussion and recorded proceedings of the Council or of the Cabinet shall be secret and that no proceedings before the Council or Cabinet, or extracts therefrom or information relating thereto shall be supplied or disclosed to any person. Obviously the Court's power to compel production of documents, constraints on these powers, if any, will be regulated by provisions in the Constitution or any other validly enacted law. Such constraints cannot be imposed on Courts by any Rule made or instruction issued by the Governor 'for the more convenient transaction of the business of the Government of the State.' It is not necessary to dilate further on this point. The learned Advocate General's second contention also cannot be accepted.
C. PRIVILEGE UNDER SECTION 123 I. E. ACT
18. The majority view of the Supreme Court in the Judges' case (supra) lays down the latest law on this subject also. The learned Advocate General did refer to some English cases (Duncan's case (1942) 1 All. E.R. 587 , Conway's case (1968) 1 All. E.R. 874 of 1968 and Air Canada's case (1983) 1 All. E.R. 910 and a few Supreme Court cases preceding the Judges' case. I do not deem it necessary to refer to any of these decisions, except Sodhi Sukhdev Singh : 2SCR371 , since all the aspects falling for consideration before me are squarely covered by the Judges' case (supra). Bhagwati J. has given the main judgment in the Judges' case (supra).
19. While agreeing with the view of Gajendragadkar J. (as he then was) who was speaking for the majority in Sukhdev Singh's case (supra) that the public interest lies at the foundation of the claim for protection under Section 123 I. E. Act, Bhagwati J. in the Judges' case (supra) points out that the further view taken by Gajendragadkar J. that the interest which comes into conflict with the claim for nondisclosure is the private interest of the litigant in disclosure, is not correct. Bhagwati J. while explaining the correct position observes, (Para 67, p. 235).
It is rather the public interest m fair administration of justice that comes into clash with the public interest sought to be protected by non-disclosure, and the Court is called upon to balance these two aspects of public interest and decide which aspect predominates....
20. Sukhdev Singh's case, (supra) has been substantially overruled by the Supreme Court in Judges' case (supra).
21. As regards 'class documents', after taking note of the present position that Cabinet papers, minutes of decisions of Heads of Departments and high level documents relating to the inner working of the Government machine or concerned with the framing of the Government policies, belong to a class which :in the public interest must be regarded as protected against disclosure, Bhagwati J. proceeds to elaborate in para 71 of his judgement that the immunity even in case of such class documents* is not absolute. This is what the learned Judge propounds in this regard (at pp 239 and 240 at para 71): -.The object of granting immunity to documents of this kind is to ensure the proper working of the government and not to protect the ministers and other government servants from criticism however intemperate and unfairly based. Moreover, this reason can have little validity in a democratic society which believes in an open government. It is only through exposure of its functioning that a democratic government can hope to win the trust of the people. If full information is made available to the people and every action of the government is 'bona fide and actuated only by public interest, there need be no fear of 'ill-informed or captious public or political criticism'. But at the same time it must be conceded that even in a democracy, government at a high level cannot function without some degree of secrecy. No minister or senior public servant can effectively discharge the responsibility of his office if every document prepared 'to enable policies to be formulated was liable to be made public. It is therefore in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. What is the measure of this protection is a matter which we shall immediately proceed to discuss.
22. At the end of para. 72 of his judgment, (p. 241) second column the learned Judge further reiterates the correct legal position in these words:.There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.
23. Finally we get the ultimate acid test applicable to the class documents as well as other documents on page 240, column 2 of the report:.The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding. Vide the observations of Lord Pearson in Reg. v. Lewes JJ, Ex-parte Home Secy. 1973 AC 388 of the report. The Court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the documents would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.
24. Having recapitulated the relevant law on the question, it will be seen that its application to the facts before me is absolutely free from any difficulty. Here although the papers in question are class documents, there is not even a whisper in the two affidavits filed on behalf of the Government, that their disclosure will in any way adversely affect the public interest in public service. The affidavit merely states that the three documents are
secret documents which are unpublished official records relating to the affects of the State. I consider that their disclosure could be against public interest and as such they cannot be permitted to be produced in Court by (sic)viue of Section 123 of Evidence Act.
Apart from this bald averment which again is based on legal advice there are no other particulars forthcoming from the Government to show how the disclosure of the documents will adversely affect the functioning of the public service. It is obvious that the Government has no substantial grounds in this regard to advance. Indeed, as accompaniments to the complainant's affidavit in reply show, the accused himself in his capacity as the Chief Minister had announced the particulars of the Cabinet decision of October 6 in his press conference on the next day. I am conscious that in a fit case it is the duty of the court to call upon the Government to file additional affidavit in a case where they claim privilege under Section 123 Evidence Act. However, I did not ask them to do so in the present case, because no useful purpose would have been served thereby.
25. The balance of public interest heavily tilts in favour of the disclosure of the documents. Here is an Ex-Chief Minister, who is facing a trial on serious charges which I need not recapitulate in this interlocutory order. The relevance of the three documents for the purposes of this trial is not disputed by any side, and rightly. These documents will afford materially relevant evidence for the case. Whatever be the effect of the disclosure of documents on the individuals involved in the case, it is clear that such disclosure will clearly further the cause of justice. Without dilating further I hold that between the two competing public interests, the one of the administration of justice clearly outweighs the other. The Government's plea based on Section 123 of the Indian Evidence Act also fails.
26. In the result the Government's objection to the production of the documents on the ground of public interest immunity is hereby rejected. Chief Secretary Pradhan is directed, to cause production of the three documents in question in court on June 12, 1984.