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TMI Blog2004 (1) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 - - - Dated:- 6-1-2004 - KHARE, V.N. (CJI) AND SINHA, S.B., JJ. JUDGMENT S.B. SINHA, J : INTRODUCTION: Right of information is a fundamental right under Article 19(1)(a) of the Constitution. The State under Clause (2) of Article 19 of the Constitution, however, is entitled to impose reasonable restrictions inter alia in the interest of the State. How far and to what extent the same should be balanced is the question involved in these appeals which arise out of judgments and orders dated 30 th January, 1997 passed by the High Court of Judicature at Bombay in Writ Petition Nos. 1785 and 1792 of 1996. WRIT PROCEEDINGS: The appellants herein in the said writ petition sought disclosure of information from the respondents relating to purported safety violations and defects in various nuclear installations and power plants across the country including 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also been annexed. The Annual Report for the year 1995-96 prepared by the Government of India had also been annexed therewith. It was further contended that the specific questions were asked in the Parliament in relation to the alleged accidents which had been answered. It had been emphasized that necessary legislative and regulatory framework to ensure a competitive and independent assessment of the safety related requirements and practices in all nuclear installations have come into being. The respondents in their affidavits furthermore stated that there had been constant interaction with the media and the public in nuclear safety related matters to instill an increasing level of confidence in the public that safety is indeed receiving topmost priority in all nuclear activities. Dr. A. Gopalkrishanan, a former Chairman of AERB, on whose press statements 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 fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, Dr. K.S. Parthasarathy in a press release dated 23rd June, 1996 stated: "In the judgment of the Board, there is at the moment no shortcoming existing which can lead to any nuclear disaster or Chernobyl type catastrophe in any of these installations. The Board would like to assure the public that all the DAE installations are being continuously monitored and that it would not hesitate to initiate restrictive regulatory actions wherever necessary." The respondents, however, relying on or on the basis of a notification dated 4th February, 1975 passed under subsection (1) of Section 18 of the Atomic Energy Act, 1962, raised 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 irrepara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or through any authority or corporation established by it, or a Government company;] (c) to declare as "restricted information" any information not so far published or otherwise made public relating to-- (i) the location, quality and quantity of prescribed substances and transactions for their acquisition, whether by purchase or otherwise, or disposal, whether by sale or otherwise; (ii) the processing of prescribed substances and the extraction or production of fissile materials from them; (iii) the theory, design, construction 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Section 27 of the Act empowers the Central Government to set up Atomic Energy Regulatory Board. Pursuant to or in furtherance of the rule making power contained in Section 30 of the Act, the following rules have been framed: (i) Radiation Protection Rules, 1971 (ii) Atomic Energy (Working of Mines, Minerals and Handling of Prescribed Substances) Rules. (iii) Atomic Energy (Safe Disposal and Radioactive Wastes) Rules, 1987 (iv) Atomic Energy (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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Installations, it would not be proper for this Court to exercise its writ jurisdiction under Article 226 of the Constitution; 2. As stated earlier, the Memorandum dated 7th January, 1997 is issued by the Prime Minister to look into all aspect of the present regulatory process and as pointed out by the learned Additional Solicitor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel would submit that the provisions contained in Section 18 of the Act are not valid law imposing reasonable restriction on such freedom in the interest of the State. Drawing our attention to several Articles, the learned counsel would contend that reluctance on the part of the authorities 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report is disclosed, the knowledge of the datas containing therein pertaining to inventories and contents of spent fuel, reprocessing waste, etc., gathered therefrom could facilitate a reverse calculation about the country s nuclear programme 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 function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adiation dose to workers, and also an Environmental Survey Laboratory which continuously collects thousands of samples of food, water, air and sediment to monitor radioactivity releases to the environment. (ix) AERB has prescribed 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 regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in furtherance of the said provision, the Central Government has issued an order on or about 4th February, 1975 restricting disclosure of certain information mentioned therein except with the prior permission of the Central 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal right. A further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily. We are, therefore, of the opinion that Section 18 is not unconstitutional and a valid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual to attain self-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 social and moral issues. It is the best w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 taken by the Government and the basic thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terms. Generally, the exemptions/ exceptions under those laws entitle the government to withhold information relating to the following matters: (i) International relations; (ii) National Security (including defence) and publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 provides for reasonable restrictions within the meaning of clause (2) of Article 19 of the Constitution of India. EFFECT OF THE ACT: Once provisions of Section 18 of the Act, and the order framed thereunder are held to be intra vires, the only question which arises for consideration is as to whether exercise of such powers should be held to be invalid by this Court. The jurisdiction of this Court in such matter is very limited. The Court will not normally exercise its power of judicial review in such matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 to "bring it into court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court". It further says that "the Court, if it seems fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility." In order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of State and disclosure thereof m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 matter observing: "...The documents in this case, class documents though they may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but as requiring protection on the ground that candour must be ensured." In S.P. Gupta (supra), this Court while upholding the aforementioned principles, however, was of the opinion that there can be a class of documents in respect whereof privilege can be claimed stating: "In other words, if injury to public interest is the foundation of this immunity from disclosure, when once the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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