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TMI Blog2011 (3) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded because they are of paramount concern to any citizen and for the economic growth of the country - we perceive that the provision is not arbitrary and unreasonable to invite the wrath of Article 14 of the Constitution of India - Petition is dismissed - W.P. (CIVIL) NO. 1138/2010 - - - Dated:- 8-3-2011 - CHIEF JUSTICE AND SANJIV KHANNA, J. JUDGMENT Dipak Misra, CJ Before we proceed to state the facts, we may profitably refer to a paragraph from the decision rendered in the case of R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Ltd. (1977) 4 SCC 98, wherein Krishna Iyer, J., in his inimitable style expressed thus: "2. A prefactory caveat.- When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois viz., 'that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies'. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Judge made law should not be allowed to stand. 6. Presently to the factual matrix: The essential facts which are imperative to be unfurled are that the petitioner, a limited company, is engaged in the business of welding equipments, building infrastructure, etc. On 15th April, 2008, a notice was issued to the petitioner demanding a sum of Rs. 6,79,28,975 pursuant to a recovery certificate issued by the Special Director of Enforcement Directorate, the first respondent herein. After receipt of the said demand notice, the petitioner came to know that an adjudication order dated 24th February, 2004 imposing the penalty has been passed under section 8(3) and 8(4) of the Foreign Exchange Regulation Act, 1973 (for short, 'FERA'). After coming to know about the ex parte adjudication order, the petitioner preferred an appeal before the Appellate Tribunal for Foreign Exchange and also preferred a writ petition in the High Court of Bombay. The Appellate Tribunal rejected the appeal on the foundation that it has no power to condone the delay regard being had to the statutory provisions incorporated under FERA. The High Court of Bombay allowed the writ petition and set aside the entire adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sanctity and the bar created under the Act is contrary to Article 19(1)(a) of the Constitution of India. That apart, it is urged that the said provision is totally arbitrary and without any guidance and hence, is also hit by Article 14 of the Constitution. 11. A counter affidavit has been filed contending, inter alia, that the petitioner has no locus standi, being a body corporate to ask for any information under the Act and in the absence of any locus, the validity of the provision need not be addressed to. It is also put forth that the orders passed by the authorities below are in accord with the provisions of the Act and, therefore, the challenge on that score in untenable. As far as the validity of the Act is concerned, it is urged that the section 24 of the Act is a complete Code and it does not violate either Article 14 or 19(1)(a) of the Constitution. 12. We have heard Mr. Mathews J. Nedumpara, learned counsel for the petitioner and Mr. Sachin Datta, learned counsel for the Union of India. 13. Learned counsel for the petitioner has raised the following contentions: (a) Right to information is a fundamental and a primary right in a democratic body polity which res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide for setting up the practical regime of right to information for citizens to secure and to have access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. 17. Section 24 occurs in Chapter VI of the Act, which is under the miscellaneous heading. Section 24 of the Act provides for the Act not to apply certain organizations. As the said provision is under assail, we think it apposite to reproduce the same in entirety: "24. Act not to apply in certain organizations.- (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... au 16. Special Branch (CID), Andaman and Nicobar. 17. The Crime Branch-C.I.D.-CB, Dadra and Nagar Haveli. 18. Special Branch, Lakshadweep Police." 19. Regard being had to the basic principles, which we have stated at the very inception, it is to be seen whether the provision under attack really offends the constitutional principles because of right to seek information under the Act in respect of certain institutions is excluded. Learned counsel for the petitioner has drawn immense inspiration from the view expressed in the case of Raj Narain (supra), wherein Mathew J. has held thus : "71. Few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Court may not be the proper forum to weigh the matter and that is the reason why a minister's certificate is taken as conclusive. "Those who are responsible for the national security must be the sole judges of what national security requires." As the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational sense is by no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logic and policy. According to him, in a community under a system of representative Government, there can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice. 74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid paragraphs in the case of Raj Narain (supra). 21. In paragraph 72 of the said decision, it has been ruled that the court has to make an assessment of the relative influence of different aspects of public interest. The interest of Government for which the Minister speaks does not exhaust the whole public interest. In paragraph 74 what has been stated is worthy of reproduction and we have done so. Thus, it can be stated with certitude that a distinction has been drawn with regard to common routine business and the security factor. 22. In Reliance Petrochemicals Limited (supra) it has been opined thus: "34 .Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform." 23. At this juncture, we may think it appropriate to reproduce Article 19(1) and (2) of the Constitution of India. "19. (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so quarterly newsletters. The informations which are not classified as "secret" or do not come within the purview of the aforementioned order dated 4-2-1975 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." 26. A reasonable restriction on the exercise of the right is always permissible in the interest of the security of the State. Thus, in the aforesaid decision the concept of reasonable restriction as well as the functioning of a nuclear plant and its sensitivity, were taken into consideration. 27. In the case at hand, as far as section 24 is concerned, it is evincible that the said provision excludes the intelligence and security organizations specified in the Second Schedule. We have already reproduced the Second Schedule. The petitioner is concerned with the Directorate of Enforcement which comes at serial No. 5 in the Second Schedule. What has been denied in first part of section 24 is the intelligence and security organizations. The first proviso adds a rider by stating that an information pertaining to allegations of corrup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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