Holding

An order of dismissal under clause (c) of Article 311(2) is justiciable and may be reviewed for mala‑fides or extraneous grounds, but the government must disclose the nature of the employee’s activities while respecting a valid claim of privilege.

Summary

The appellants, senior officers of the Intelligence Bureau, were dismissed under clause (c) of the second proviso to Article 311(2) of the Constitution on the President’s satisfaction that an inquiry was not expedient in the interest of State security. They challenged the dismissal, arguing that the President’s satisfaction is subject to judicial review, that the government must disclose the material on which the satisfaction was based, and that any claim of privilege under Articles 74(2) and Sections 123‑124 of the Evidence Act cannot shield the nature of the alleged activities. The Central Administrative Tribunal upheld the government’s claim of privilege and refused to produce the documents, finding that the material related to security‑sensitive matters and was unrelated to the appellants’ trade‑union activities. On appeal, the Supreme Court held that orders under Article 311(2)(c) are indeed justiciable and may be reviewed for mala‑fides or extraneous considerations, but the government must still disclose the nature of the activities while respecting valid privilege claims. Applying this principle, the Court found the Tribunal’s findings credible and concluded that the dismissals were bona‑fide and not vitiated by improper motives. Consequently, the appeals were dismissed.

Issues considered

The power under clause (c) of Article 311(2) is subject to judicial review.
Whether the President’s satisfaction can be examined for mala‑fides or extraneous considerations.
Whether the government must disclose to the court the material on which the President’s satisfaction was based, subject to privilege.
Scope of privilege under Article 74(2) and Sections 123‑124 of the Evidence Act in security‑related dismissals.

Legislation cited

Administrative Tribunals Act, 1985
Civil Services (Conduct) Rules, 1965
Constitution of Indias. 163(3), s. 311(2)(c), s. 74(2)
Indian Evidence Act, 1872s. 123, s. 124
Unlawful Activities (Prevention) Act, 1967s. 3

Subjects

service lawdismissalArticle 311judicial reviewprivilegeEvidence Actnational securityadministrative tribunal

Judgment

A.K. KAUL AND ANR. A
v.
UNION OF INDIA

APRIL 19, 1995

(S.C. AGRAWAL AND FAIZAN .UDDIN, JJ.] B

Service law : Employees of llrtelligence Bureau-Dismissal from ser-
) vic~equirement of holding inquiry dispensed witli-Order passed under
Clause (c) of the second proviso to Article 311(2) of the Constitution-Satis-
faction of the Presidellt-Not practicable and expedieltt in the i1tterest of the C
security of the nation to hold inquiry.

Constitution of India: Art.311(2)(c)-Exercise of powers under Article
311(2) of the Constitution-Satisfaction of Presideltt or Govemoi-Whether
amenable to judicial review-Justiciability of.
D
Constitution of India : Art. 74(2)-Disclosure of documents-Wlrether
obligatory for Govemment lo produce before the Court all the relevant
material from which satisfaction of President or Governor is anived at.

Evidence Act: Sections 123 and 124'-Claims of privi/ege--Wlrerher
extends to disclosure of nature of activities indulged in or only to materials E
relied upon in support of the said activities.

Appellants were employees or Intelligence Bureau, in the Ministry or
Home-Mfairs, or the Government or India and were also important office
bearers of ''The Intelligence Bureau Employees Association' (!BEA).
F
Vlde a circular dated 3..1980, the formation or the IBEA was
declared to be in violation of the Civil Services (Conduct) Rules. Ag-
grieved, the appellants flied in the Supreme Court of India, writ petitions
challenging the said declaration and this court issued Rule Nisi and
passed interim orders forbidding disciplinary action against the appel· G
lants in respect of the reasons mentioned in the circular. ·

In exercise of powers under Art. 311(2)(c) of constitution, the appel-
lants were dismissed from service on the grounds that their activities were
against the interest of the security or the State. Writ petitions were filed
in the Supreme Court, challenging the validity of the said orders of H
469
r

470 SUPREME COURT REPORTS [1995] 3 S.C.R.

A dismissal on the grounds that the said action of the respondents was
malafide and was directed to penalise and victimise the appellants for .A..
promoting and participating in the activities of the IBEA. The said Writ
Petitions were subsequently tra'lsferred to the Central Administrative
Tribunal, under the Administrative Tribunals Act, 1985.

B The appellants also filed, before the Tribunal interim applications,
seeklng the production of official records mentioned therein, for inspection
by the tribunal and/or by the appellants and their counsel. The respon-
dents claimed privilege against disclosure of the said documents invoklng
the provisions of Art. 74(2) of the constitution and Ss. 123 and 124 of the
Evidence Act but at the same time did not oppose the production, before
c
the Tribunal, of such documents or portions thereof relating to the dis-
missal of the appellants as would satisfy the Tribunal, that their claim or
privilege is bonafide and genuine.

Upon perusing the records, the Tribunal upheld the claim of the
D respondents, of privilege against the disclosure of official records. It
further found that the satisfaction of the President had been arrived at
only after application of mind to relevant materials which relate to such
~
activities of the appellants as would prejudicially affect the security of the
>late and hence warranted their dismissal. Accordir.gly the applications of
tht appellants were dismissed.
E
Against the aforesaid orders appeals were filed, in this court by the
appellants, contending therein that (a) Exercise of power under CI (c) of
the second proviso to Art 311(2), is subject to judicial review. (b) It is open
to challenge on the ground that the satisfaction of the President or
F Governor is vitiated by malafide or is based on extraneous considerations
having no relevance to the interest of the security of the state. (c) That
subject to the clam of privilege being justified under the provisions of Sec.
123 and 124 of the Evidence Act, It is obligatory for the concerned govern-
ment to produce 'before the court all relevant material warranting the act
of dismissal, and (d) That the claim of privilege does not extend to the
G disclosure of the nature of activities but can relate only to the material
relied upon in support of the said activities.
.~
The respondents contested the appeals on the ground that an order
under c, (c) of the proviso to Art 311(2) Is passed by the President or
H Governor on the basis of his subjective satisfaction and the materials upon
AK. KAUL v. U.0.1. 471

which the said satisfaction is arrived at is not required to be disclosed A
~ both in view of Art 74(2) as well as sec 123 and 124 of the Evidence Act.

Dismissing the appeals, Ibis Court

HELD : 1. There is a distinction between judicial review and jus.
ticiability of a particular action. The power of judicial review, although is B
available in respect of exercise of powers under any provision of t&ie
Constitution, justiciability relates to a particular field falling within the
purview of the· power of judicial review and therefore sometimes, certain
aspects of the exercise of that power, for want of judicially manageable
standards may not be justiciable. [480·B, E, Fl
c
2.1. Provisions contained in Art 311(2)(c) are more akin to those
contained In Art. 356(1) and are not immune to judicial review or jus·
ticiability, but justiciability of the satisfaction of the President or the
Governor, must be done within the limits of the principles laid down in
S.R Bommai. [486·D, El D
2.Z. 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 malafides or is based on wholly extraneous factors, but within
the four corners of the principles evolved In S.R. Bommai. [490·G] E
S.R. Bommai v. Union of India, [1994] 3 SCC 1, followed.

Barium Chemicals Limited v. Company Law Board, [1966] Supp.
SCR 311, distinguished.
F
Union of India v. Tulsiram Patel and Others, [1985] 2 SCR 131 and
State of Rajasthan and Others v. Union of India, [1978] 1 SCR 1, refe~d
to.

3. The Government Is obliged to place before the Court the relevant
material on the basis of which the satisfaction of the concerned authority G
was arrived at, subject to a claim of privilege under Ss. 123 and 124 of the
Evidence Act. Even In case where such a privilege Is claimed the .Govern.
ment must disclose before the Court the nature of the activities In which
the Government employee Is alleged to have Indulged In. Bar to an Inquiry
by the Court Imposed under Article 74(2) does not extend to the produc· H
472 SUPREME COURT REPORTS [1995] 3 S.C.R.

A lion of material on which the satisfaction is based. This however is subject
to the right to claim privilege against production or the said material. A_
(492-D, 485-C, DJ
S.R. Bommai v. Union of India, (1994] 3 SCC 1, followed.

4.1. Just as the Courts are competent to adJudlcate on matters rela, •
B
Ing to security or State in respect or restrictions on the right or freedom or
speech and expression under Article 19(2), llkewlse they are competent to go
into the question, whether the satisfaction or the President for passing an (
order under Article 311 (2)(c) is based on extraneous considerations having
no bearing on the interest ofsecurity of the State. (487-B]
c
4.2. If satisfaction or the President or Governor Is based on cir·
cumstances having no bearing on security or State, the same can be held
to have been vitiated by extraneous and irrelevant considerations.
[487·8, 488·A]

D Ramesh Thapar v. State of Madras, (1950) SCR 594 and Counsel of
Civil Service Union v. Minister of Civil Services, (1985) 1 AC 374, referred to.
~
5. Where material relied upon by the President or the Governor, to
arrive at the said satisfaction is of a nature that it requires continued
confidentiality in public interest, It would be permissible for the Court to
E look into the same while permitting the non-disclosure to the other party
to the adjudication. [490-H, 495-H]

Jammat-e-ls/amdi Hind v. Union of India, [1995 1 SCC 428, followed.

6. In the present case the material on record indicates that the ac-
F tivities of the appellant were such as would prejudicially affect the security
of the State and the materials relied upon for the satisfaction of the Presi·
dent have nothing to rto with the activities of the appellant in relation to the
IDEA. Hence the Tribunal was correct in upholding the impugned order of
dismissal as bonafide and in dismissing the applications of the appellant
G for inspection and production of documents. [475-G, HJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4495-96 .~
& 4497 of 1995.

From the Judgment and Order dated 18.2.1993 of the Central Ad-
H ministrative Tribunal, New Delhi in T.A. Nos. 1 & 2 of 1992.
/
AK. KAl)L v. U.0.L [S.C. AGRAWAL, J.) -· ~473
. '·-/
Soli J. Sorabj~ B.B. Raval, E.R. Kumar, Ms. Lucy S. Faz! and P.H. A -
Parekh for the Appellant in C.A NoS. 4495-96195. •

. R.K. Kamal and P.H. J.;.,.ekh for the Appellant in CA. No~ 4497/95.
Altaf Ahmad, Additional Solicitor General, A.S. Nambiar, B. Par-
thasarthy, Krishan Lal Mahajan and Ms. A. Subhashini for the Respon- B
dents. . . ·· ·

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. Leave granted. _/

The appellants were employed as Deputy Central Intelligence of-
c
. ficers in the Intelligence Bureau in the Ministry of Home Affairs of the
Government of India. On July 23, 1979, the employees of the Intelligence
Bureau formed an Association called 'the Intelligence Bureau Employees
Association' (IBEA) for the purpose of ventilating their grievances. Ap-
pellants, A.K. Kaul and Verghese Joseph, were elected as the General D .. ··
. Secretaries of IBEA and appellant, B.B. Raval, was elected as the Presi-
dent. On May 3; 1980, the Joint Director oLthe Intelligenee Bureau issued
a Circular Memorandum declaring that the formation 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 E.
. 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 men-
tioned in the circular. On December 26, 1980, orders were passed dismiss- F
ing the appellants from service. One such order regarding the dismissal of
appellant, A.K. Kaul, is iD. the following terms :

'Shri A.K. Kaul,
Deputy Central Intelligence Officer,
G
Intelligence Bureau,
New Delhi..

Whereas the P~esidentis 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
. '
H
•
474 SUPREME COURT REPORTS (1995}3 S.C.R.
A 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 are such as
to warrant his dismissal from service.

B Accordingly, the President hereby dismisses Shri A.K. Kaul
from service with immediate effect.

(By order and in the name of the President)

Sd/·
c (R.Mahadevan)
Under Secretary to the Govt. of India
Ministry of Home Affairs"

The orders for dismissal of appellants, Verghese Joseph and B.B.
D Raval are in the same terms. The appellants filed separate writ petitions
[Nos. 205-207/81] in this Court under Article 32 of the Constitution to
challenge the said orders of dismissal. After the constitution of the Central
Administrative Tribunal under the Administrative Tribunals Act, 1985,
(hereinafter referred to as 'the Tribunal') the said writ petitions were
transferred to the Tribunal for adjudication and they were registered as
E TA. Nos. 1, 2 and 3 of 1992.

Before the Tribunal the case put forward by the appellants was that
they have been picked and chosen for pi:nitive action for dismissal from
service for the reason that they were important members of the !BEA,
F being office bearers as General Secretaries and the President, and that the
real motive to pass the orders of dismissal was to penalise them for the
active part they had taken in ventilating the grievances of the employees
through the !BEA. The appellants, also pleaded that they .had an excellent
record of service and that they had not conducted themselves in such a
manner as to warrant their dismissal from service. It was submitted that
G they were recipients of commendation certificates, appreciation letters and
cash awards from time to time. It was also stated in the applications that
they had not acted contrary to the interest of national security at any time.
The said applications were contested by the respondents who pleaded that
the orders of dismissal had been passed by the President on being satisfied
H on the basis of the material available that the activities of the appellants
-1:.
\
AK KAULv. U.O.L [S.C.AGRAWAL,J.] 475

were such as to warrant their dismissal from service by dispensing with the A
requirements of Article 311(2) of the Constitution in the interest of security
of the State. It was also pleaded on behalf of the respondents that the
details of the material on the basis of which the satisfaction had been
reached cannot be disclosed without detriment to public interest. It was
denied that the authorities of the Intelligence Bureau have a hostile attitude B
towards IBEA and it was 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 !BEA. During the pendency of the applications before the
Tribunal the appellants moved Misc. Peti!ions Nos. 1897/92 in TA Nos. 1
and 2/92 and Miscellaneous Petition No. 73'2/92 in T.A. No. 3/92 whereby
they prayed for directions to the respondents to produce the records C
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 Con-
stitution and Sections 123 and 124 of the Evidence Act and for that purpose
affidavit of Dr. Madhav Godbole, Secretary to the Government of India, D
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 what-
soever 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 satisfy it that the claim of E
privilege against disclosure of the said official records is bona fide and
genuine.

By judgment dated December 18, 1993 the Tribunal, after perusing
the records that were placed for perusal of the Tribunal, upheld the claim F
of privilege and disT'lissed the applications filed by the appellants for
inspection and production of the documents. On the basis of the said
records the Tribunal has further found that the material considered by the
President relate to the activities of the appellants which would prejudicially
affect the security of the State and that the materials relied upon for the.
satisfaction of the President have nothing to do with the appellants' ac- G
tivities In relation to the !BEA. The Tribunal has held that there is no
substance in the case of the appellants that the orders of dismissal were
not bona fide and they have been passed to victimise the appellants for
promoting and participating in the activities oi the !BEA. The Tribunal
was of the view that the satisfaction -had been arrived at after application H
476 SUPREME COURT RJ;'PORTS [1995) 3 S.C.R.
1
A of mipd to th". relevant materials without taking into consideration ir-
relevant factor~ anc:I that the impugned orders of dismissal from service
dated December 26,, 1980 are 11ot liable for interference. The Tribunal,
therefore, dismissed the applications of the appellants. Hence these ap-
peals. ·•

B
On behalf of the appellants it has been urged that the exercise of
power under clause (c) of the second proviso to Article 311(2) of the
Constitution is .subject to judicial review and that an order passed under
the said provisions is open to challenge before the courts on the ground
that the satisfaction of the President or the Governor is vitiated by
C malafide5 or is based on considerations which have no relevance to the
interest of the security ·Of the State. In this connection, Shri Sorabjee has
submitted that in a case where the employee assails the action taken against
him under Article 311(2)(c) it is obligatory on the part of the concerned
Government to place before the court the relevant material on the basis of
D which the action was taken and such. material can only. be withheld from
the court in cases where the claim of privilegeis found to be.justified under
the provisions. of Sections 123 and 124 of the Evidence Act. Shri Sorabjee '..A
bas urged that the said claim of privilege does not extend to the disclosure
of the 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
E bas been relied upon in support of the said activities.

The learned Additional Solicitor General,. appearing for the respon-
dents, has, ho\\'.ever, submitted that an order under clause (c) of second
F provi~p to ArtiCle ~11(2) cf the Constitution is to be passed by the Presi- "'·
dent or the dovernor 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 an~ 124 of the Evidence Act. The learned Additional Solicitor
General has, iri this context, poil)ted out that while under clause (b) of the
G .second provi50 to Article 311(2) th.e competent authority is required to
record in writing the reason for itk satisfaction that it is not reasonable (
pr~cticable tq4otd"al) inquiry, tbe"re is no such requirement for recording '\..
the reason iq c\ause (c) and; therefore, there is no requirement to disclose
the reasons tor arriving at the satisfaction for taking action under clause
H (c) of second proviso to Article 311(2).
;
);

A.K. KAULv. U.O.L (S.C.AGMWAL,J.)
..
Article 311(2), as amended by the Constitution (Fifteenth Amend-·· A·<
ment) Act, 1963, provides as follows : i .
·1'

"(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except ·after an inquiry in which he has been
informed of the charges against him and given a reasonable op- ·
portunity of being he'."d in respect of those charges: B
Provided that where it is proposed after such inquiry; to impose
upon him any such penalty, such penalty' may be imposed on the
basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making re~ C
resentation on the penalty proposed: ·

Provided further that this clause shall not apply -
. ·-
---- -

(a) where a person is dismissed or removed or reduced in
rank on the ground of conduct which has led to his D
conviction on a criminal charge; or

(b} .where the authority empowered to dismiss or remove 'a
· person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is
not reasonably practicable to hold such inquiry; or E

. (c) where the President or Governor; as the case may be, is ·
satisfied that in the interest of the security of the State it
is not expedient to hold such inquiry."

The provisions of the second proviso came up for consideration F
before the Constitution Bench of this Court in Union of India & Anr. v.
Tulsiram Patel & Ors., (1985] Supp. 2 SCR 131. Madon, J., speaking for the·
majority, has observed that clause (2) of Article 311 gives a constitutional
. mandate to the principles of natural justice and audi alteram partem rule
by providing that a person employed in a civil capacity under the Union G
or a State shall not be dismissed or removed from service or reduced in
rank until after an inquiry in which he has been informed of the charges
against him and has been given a reasonable opportunity of being heard in
respect of those charges and that this safeguard provided for a government
servant by clause (2) of Article 311(2) is, however, taken away when the
second proviso to that clause becomes applicable. (Page 202). The Court H
478 SUPREME COURT REPORTS [1995) 3 S.C.R.

A has also pointed out that the paramount thing to bear in mind is that the
second proviso will apply only where the conduct of a government servant
is such as he deserves the punishment of dismissal, removal or reduction
in rank and that before denying a government servant 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
B dismissal, removal or reduction in rank and once that conclusion is reached
and the condition specified in the relevant clause of the second proviso is
satisfied, that proviso becomes applicable and the government servant is
not entitled to an inquiry. (Pages 204- 205). While dealing with clause (c)
of the second proviso to Article 311(2) it has been stated:
c
"The question under clause (c), however, is not whether the
security of the State bas 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
D is required under clause (c) is not the satisfaction of the President
or the Governor, as the 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 contemplated by Article 311(2). The satisfaction of the
E President or Governor must, therefore, be with respect to the
expediency or in expediency of holding an inquiry in the interest
of the security of the State." [p.277)

"The satisfaction so reached by the President or the Governor must
F necessarily be a subjective satisfactio~. Expediency involves mat-
ters of policy. Satisfaction may be arrived at as a result of secret
information received by the Government about the brewing danger
to the interest of the security of the State and like matters. There
may be other factors which may be required to be considered,
weighed and balanced in order to reach the requisite satisfaction
G whether holding an inquiry would be expedient or not. If the
requisite satisfaction has been reached as a result of secret infor-
mation received by the Government, making, known such informa-
.. '
tion may very often result in disclosure of the source of such
information. Once known, the particular source from which the
H information was received would no more be available to the
A.K.KAULv. U.0.1. (S.C.AGRAWAL,J.] 479

Government. The reasons for the satisfaction reached by the Presi- A
/
dent or the Governor under clause (c) cannot, therefore, be
required to be recorded in the order of dismissa~ removal or
reduction in rank nor can they be made public.' [p.278]

The learned judge did not consider it necessary to deal with the
contention that the power of judicial review is not excluded where the B
satisfaction of the President or the Governor has been reached mala fide
or is basi:d on wholly extraneous or irrelevant grounds and that in such a
case, in law there would be no satisfaction of the President or the Governor
at all for the reason that in the matters under consideration before this cllrt
all the materials, including the advice tendered by the Council of Ministers, c
had been produced and they clearly showed that the satisfaction of the
Governor was neither reached malafide or was it based on any extraneous
or irrelevant ground. (Page 279). In the light of the provisions contained
in Article 74(2) and Article 163(3) it was submitted before the Court that
leaving aside the advice given by the Ministers to the President or the
Governor, the Government is bound to disclose at least the materials upon D
~-~ which the advice of the Council of Minister was based so that the court
can 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 ncit voluntarily disclose E
such materials it can be compelled by the Court to do so. Dealing with the
said submission it was observed:

"Whether this should be done or not would depend upon whether
the documents in question fall within the class of privileged docu- F
ments 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 G
in those cases were disclosed." [p.280]
.-'~'
It would be thus appear that in Tulsiram Patel (supra) though the
question whether the satisfaction of the President or the Governor under
Article 311(2) is amenable to judicial review and the Government can be H
480 SUPREME COURT REPORTS [1995] 3 S.C.R.

A required to disclose the materials upon which the' advice of the Council of
Ministers was based so as to enable the court to exercise the power of
judicial review has been left open, the Court, after considering the said
material, has recorded the finding that the satisfaction of the Governor was
neither recorded malafide nor was it based on any extraneous or irrelevant
B ground.

It is, therefore, necessary to deal with this question in this instant
case. We may, in this context, point out that a distinction has to be made
between judicial review and justiciability of a particular action. In a written
constitution the powers of the various organs of the State are limited by
C the provisions of the Constitution. The extent of those limitations on the
powers has to be determined on an interpretation of the relevant provisions
of the constitution. Since the task of interpreting the provisions of the
constitution is entrusted to the Judiciary; it is vested with the power to test
the validity of an action of every authority functioning under the Constitu-
D tion on the touch stone of the constitution in order to ensure that the
authority exercising the power conferred by the constitution does not
transgress the limitations placed by the Constitution on exercise of that
power. This power of judicial review is, therefore, implicit in a written
constitution artd unless expressly excluded by a provision of the Constitu-
tion, the power of judicial review is available in respect of exercise of
E powers under any of the provisions of the constitution. Justiciability relates
to a particular field falling within the purview of the power of judicial
review. On account of want of judicially manageable standards, there may
be matters which are not susceptible to the judicial process. Such matters
are regarded as n.on-justiciable. In other words, during the course of
F exercise of the power of judicial review it may be found that there are
certain aspects of the exercise of that power which are not susceptible to
judicial process on account of want of judicially manageable standards and
are, therefore, not justiciable.

In the State of Rajasthan & Ors. v. Union of India Etc. Etc., [1978] 1
G SCR 1, one of the questions falling for consideration was whether satisfac-
tion of the President in the matter of exercise of the power to make a
Proclamation conferred under Article 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
H Article 356 which prescribed that "the satisfaction of the President men-
I . ~· ·
A.K.KAULv. U.0.1.[S.C.AGRAWAL,J.]
i ·
.. : I '\. ' / - -

tioned in clause (1) shall be final and conclusive and shall not be ques· A
tioned 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 !ides
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 B
satisfaction of the President in regard to the matter which he is required
to be satisfied.' (p.82). 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 Constitu-
tion, this Court will not shirk its duty to act in the manner in which the law C
may then obllge it to act." (p.46). Chandrachud J. (as the learned Chief
Justice then was) has observed that if 'the reasons given are wholly ex-
traneous to the formation of the satisfaction, the Proclamation would be
open to the attack that it is vitiated by legal mala !ides.' (p.60). Goswami
J. has held that the Court 'would not refuse to consider when there may D
be sufficient materials to establish that the Proclamation under Article
356(1} is tainted with mala !ides.' (p.92). Untwalia J. has said that the Court
is not powerless to interfere with an order that is ultra vires, wholly illegal ·
or"passed mala fide. (p.95). Fazal Ali J. has held that 'on the reasons given
by the President in his order if the Courts find that they. are absolutely
· extraneous and irrelevant and based on personal and illegal considerations E
the Courts are not powerless to strike down the order on the ground of
mala fide if proved.' (p.120}.

Clause (5) of Article 356 was deleted by the Constitution (Forty •
Fourth Amendment) Act; 1978. In S.R. Bommai (supra) Sawant J. after F
noticing the observations in A.JG Roy v. Union of India, (1982) 2 SCR 272,
· has observed that after the deletion of clause (5) the judicial review of the
· · Proclamation issued under Article 356 has become wider than indicated in
the State of Ra}aithan (supra). Similarly, Jeevan Reddy J. has said: 'Surely
the deletion of clause (5) has not restricted the scope ,of judicial review..
Indeed, it has removed the cloud east on the said power. The Court should, G
if anything, be. more inclined to examine the constitutionality 'of the
. Proclamation after such deletion.' (p.255).

In S.R. Bommai (supra} differing views wer~ expresse<l_ by the
learned Judges on the scope and ei<tent of the judicial review and jus- : H
- . '. ' ' _, .

I
482 SUPREME COURT REPORTS (1995) 3 S.C.R.
A ticiability of the action taken by the President in exercise of power con-
ferred under Article 356(1). Sawant J., speaking for himself and Kuldip .
Singh J., has held that the material on the basis of which the advice is given
by the Council of Ministers and the President forms his satisfaction has to
be scrutinised by Court within the acknowledged parameters of judicial
B review, viz., illegality, irrationality and mala tides. (p.112). 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 dehors the material but a legitimate
c 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
D cannot be questioned, the legitimacy of inference drawn from such
material is certainly open to judicial review." (p.lOj) -
,_

According to the learned Judge, "Many of the parameters of judicial
review developed in the field of administrative law are not antithetical to
E the field of constitutional law and they can equally apply to the domain
covered by the constitutional law." (p.94). The learned Judge has applied
the tests laid down by this Court in Barium Chemicals Ltd. v. Company
Law Board, (1966) Supp. SCR 311.

F Jeevan Reddy J., speaking for himself and one of us (Agarwal J.),
did not, however, give such a wide scope to the power of judicial review in
respect of a proclamation made under Article 356(1). After pointing out
that Barium Chemicals (supra) is a decision concerning subjective satisfac-
tion of an authority created by a statute, the learned Judge has held that
the principles enshrined in that case "cannot ipse facto be extended to the
G exercise of constitutional power under Article 356 of the Constitution' and ~
that "having regard to the fact that this is a high constitutional power
exercised by the highest constitutional functionary in the Nation, it may not ,'
be appropriate to adopt the tests applicable in the case of action taken by
statutory in or administrative authorities nor, at any rate, in their entirety."
H (p.267). He preferred to adopt the formulation that "if a Proclamation is
AK.KAULv. U.0.1.[S.C.i\GRAWAL,J.] 483

found to be mala fide or is found to. be based wholly on extraneous or A
A irrelevant grounds, it is liable to be struck down." (p.268). The learned
Judge has observed: "The truth or correctness of the material cannot be
questioned by the court nor wi11 it go into the adequacy of the material. It
will also not substitute its opinion for that of the President. Even if some
of the material on which the action is taken is found to be irrelevant, the
B
court would still not interfere so long as there is some relevant material
sustaining the action. The ground of mala tides takes in inter alia situations
where the Proclamation is found to be a clear case of abuse of power, or
what is sometimes called fraud on power • cases where this power is
invoked for achieving oblique ends." (p.268). The learned Judge has further
stated : "The court will not lightly presume abuse or misuse. The court c
would, as it should, tread wearily, making all~wance for the fact that the
.• President and the Union Council of Ministers are the best judges of the
situation, that they alone are in possession of information and material •
sensitive in nature sometimes - and that the Constitution has trusted their
judgment in the matter. But all this does not mean that the President and
D
Union Council of Ministers are the final arbiters in the matter or that that
their opinion is conclusive." (pp. 268-269). Pandian J. has expressed his
agreement with the judgment of Jeevan Reddy J.

Ahmadi J. (as the learned Chief Justice then was), while expressing
his agreement with the view expressed in the State of Rajasthan (supra) has E
held that a Proclamation issued under Article 356(1) of the Constitution
can be challenged on the limited ground that the action is maJa fide or
ultra vires Article 356 itself and has held that the test laid down in Barnim
_,,.' Chemicals (supra) and subsequent decisions for adjudging the validity of
administrative action can have no application for testing the satisfaction of F
the President under Article 356. (p.82)

Verma J., speaking for himself and Yogeshwar Dayal J., has taken
the same view. The learned i udge has held that though the Proclamation
under Article 356 is subject to judicial review the area of justiciability is G
narrow. While holding that the test for adjudging the validity of an ad-
ministrative action and the grounds of its invalidity indicated in Barium
Chemicals (supra) and other cases of that category have no application for
testing and invalidating a Proclamation issued under Article 356, the
learned judge has said that the grounds of invalidity are those mentioned H
484 SUPREME COURT REPORTS [1995) 3 S.C.R.

A in State of Rajasthan (supra). (p.85)

K. Ramaswamy J. has held: "The decision can be tested on the
ground of legal mala fides, or high irrationality in the exercise of the
discretion to issue Presidential Proclamation and the traditional
parameters of judicial review, therefore, cannot be extended to the area of
B exceptional· and extraordinary power exercised under Article 356." The
learned Judge has also held that the doctrine of proportionality cannot be
extended.to the power exercised under Article 356." (p.209)

It would• thus appear that in S.R Bommai (supra) though all the
C learned JudgeS have held that the exercise of power under Article 356(1)
is subject to judicial review but in the matter of justiciability of the satis-
faction of the President, the view of the majority (Pandian, Ahmadi,
Verma, Agrawal, Yogeshwar Day-.! and Jeevan Reddy, JJ.) is that the
principles. evolved in Banum Chemicals (supra) for adjudging the validity
of an action based on the subjective satisfaction of the authority createµ by
D statute do not, in their entirety, apply to the exercise of .a constitutional
power under Article 356. On the basis of the judgment of Jeevan Reddy
J., which takes a narrower view than that taken by Sawant J., it can be said
that the view of the majority (Pandian, Kuldip Singh, Sawant, Agrawal and
Jeevan Reddy JJ.) is that :
E
(i) the, satisfaction of the President while making a Proclamation
under Article 356(1) is justiciable;

(ii) i.t would be open to challenge on the ground of mala fides or
being based wholly on extraneous and/or irrelevant grounds;
F
(tii) even if some of the materials on which the action is taken is
found to be irrlevant, the court would still not interfere so long as
there is some relevant material sustaining the action;

(iv) the truth or correctness of the material cannot be questioned
G by the Court nor will it go into the adequacy of the material and
it wi)l also not substitute its opinion for that of the President;

(v) the ground of mala fides takes in inter alia situations where the
Proclamation is found to be a clear case of abuse of power or what
H is s6metimes called fraud on power;
••J,
• AK. KAULv. U.0.1. [S.C.AGRAWAL,J.] 485.
. '
(\i) the court \\ill not lightly presume abuse or misuse of power A
. and will make all~wance for the fact that the President and the
. Union Council of Minister.s 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 B
Ministers are the final arbiters in the matter or that their opinion
is conclusive.

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 (supra) have held that C
• 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 D .
the Evidence Act.
·'
Is there anything in the provisions of clause (c) of the second proviso
·to Article 311(2) which compels a departure from the principles laid down
in S.R. Bommai (supra) governing justiciability 'of the satisfaction of the. E
President in the matter of exercise of power under Article 356? We hiive
not been able to discern any reasori for making a departure. As ~ompared
·to clause (c) of the second proviso to Article 311(2), which deals with an
individual employee, the power· conferred by Article 356, resulting in
displacement of the elected government of a .State .and imposition of
President's rule in the State, is of much greater significance affecting large F
number of persons. We may, in this context, refer to clause (b) of the
second proviso to· Article 311(2) whereunder it is permissible to dispense
with the requirements of Article 311(2) if the authority empowered to
" dismiss or remove a person or to reduce him in rank is satisfied that for
some reaso to be recorded by that authority in writing, it is not reasonably
G
prac · le to hold such inquiry. Clause (3) of Article 311 niakes the said
,.,<lecision of the authority final. Inspite of the said provision attaching fmality
to the decision this Court, in Tulsiram Patel (supra), has held : " -.

"The finality given by clause (3) of Article 311 to the disciplinary
authority's decision that it was not reasonably practicable to hold H
486 SUPREME COURT REPORTS (1995] 3 S.C.R..
)
A the inquiry is not binding upon the court. The court will also
examine the charge of ma/a jides, if any, made in the writ petition.
In examining the relevancy of the reasons, the court will consider
the situation which according to the disciplinary authority made it
come to the conclusion that it was not reasonably practicable to
hold the inquiry. If the court finds that the reasons are irrelevant,
B then the recording of its satisfaction by the disciplinary authority
would be an abuse of power conferred upon it by clause (b) and
would take the case out of the purview of that clause and the
impugned order of penalty would stand invalidated." (p. 274)

C Clause (b) differs from clause (c) in as much as under clause (b) the
competent authority is required to record in writing the reasons for its
satisfaction and there is no such requirement in clause (c). This difference,
in our opinion, does not mean that the satisfaction of the President or the
Governor under clause (c). is immune from judicial review and is not
D 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 rr.aking a proclama-
tion under Article 356(1) is justiciable within the limits indicated in S.R.
Bommai (supra) the satisfaction of the President or the Governor, which
E 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.

Under clause (c) of the second proviso to Article 311(2) the Presi-
dent or the Governor has to satisfy himself about the expediency in the
F interest of the security of the State to liold 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 to impose, by law, reasonable restrictions in the interests of the
G security of the State on the exercise of the right to freedom of speech and
expression conferred by sub-clause (a) of clause (1) of Article 19. The
validity of the law imposing such restrictions under Artide 19(2) is open
to judicial review on the ground that the restrictions are not reasonable 0r
they are not in the interests of the security of the State. The Court is
H required to adjudicate on the question whether a particular restriction on
AK.KAULv. U.0.1.(S.C.AGRAWAL,J.] 487

the right to freedom of speech and expression is reasonable in the interests A
of the security of the State and for that purpose the Court takes into
_,;., consideration the interests of the security of the State and the need of the
restrictions for protecting those interests. If the Courts are competent to
adjudicate on matters relating to the security of the State in respect of
restrictions on the right to freedom of speech and expression under Article
19(2) there appears to be no reason why the Courts should not be com-
B
petent to go into the question whether the satisfaction of the President or
the Governor for passing an order under Article 311(2)(c) is based on
considerations having a bearing on the interests of the security of the State.
While examining the validity of a law imposing restrictions on the right to
freedom of speech and expression this Court has emphasised the distinc- c
tion between security of the State and maintenance of public order and has
observed that only serious and aggravated forms of public order which are
calculated to endanger the security of the State would fall within the ambit
of clause (2) of Article 19. (See: Ramesh Thappar v. The State of Madras,
(1950) SCR 594, at p.601). So also in Tulsiram Patel (supra) the Court has
D
pointed out the distinction between the expressions 'security of the State',
'public order' and 'law and order' and has stated that situations which
~ affect public order are graver than those which affect law and order and
situations which affect security of the State are graver than those which
affect public order. The President or the Governor while exercising the
power under Article 311(2)(c) has to bear in mind this distinction between E
• situations which affect the security of the State and the situations which
affect public order or law and order and for the purpose of arriving at his.
satisfaction for the purpose of passing an order under Article 311(2)(c) the
President or the Governor can take into consideration only those cir-
cumstances which have a bearing on the interests of the seciirity of the
/'
F
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 G
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 re-
H
r

488 SUPREME COURT REPORTS [1995] 3 S.C.R.

A quired for passing such an order has been vitiated by wholly extraneous or
irrelevant considerations.

It would be useful, in this context, to take not of the decision of the
House of Lord's in Cowtci/ of Civil Service Unions v. Minister for the Ci¥i/
B Se1vice, (1985) 1 AC 374, which related to the Government Communica-
tions Head Quarters (GCHQ). The main functions of GCHQ were to
ensure the setur\ty of military and official communications and to provide
the government with signals intelligence which involved the handling of
secret information viral to the national security. Since 1947 staff employed
at GCHQ had been permitted to belong to national trade unions and most
C had done so. There was a well-established practice of consultation between
the' official and trade union sides about important alterations in the terms
and conditions of service of the staff. On December 22, 1983 the Minister
for the Civil Service gave an instruction for the immediate variati<l11 of the
terms and conditions of service of the staff with the effect that they would
D no longer be permitted to belong to national trade unions. There had been
no consultation with the trade unions or with the staff at GCHQ prior to
·the issuing of that instruction. The said instruction was challenged by a
trade union and six individuals who sought judicial review of the said
instruction. Imtnunity from judicial review was claimed on the ground that
the said instruction had been issued in exercise of the prerogative power
E of the Crown. The House of Lords held that executive action was not
immune from judicial review merely because it was carried out in pur-
suance of the power derived from a common law or prerogative, rather
than a statutory source, and a minister acting. under a prerogative power
might, depending upon its subject matter, be under the same duty to act
fairly as in the case of action under a statutory p()wer. On behaif of the
F
Minister it' was submitted that prior consultatioo would inmlve a real risk
that it would ·occasion the very kind of disruption that was threat to national
security and which it Y/as intended to avoid. While recognising thal the
· decision on· whether the requirements of national security outweigh the
duty of fairness iii any particular case, is for the Government and not for
G the courts, Lord Fraser of Tullybelton said:

"But if the decision is successfully challenged on the ground that
it has been reached by a process which is unfair then the Govern-
ment is under an obligation to produce evidence that the decision
H was, in fact, based on grounds of national security." (p.402)
1'
AK. KAUL v. U.0.1. [S.C. AGRAWAL, J.] 489

According to Lord Scarman : A

"The point of 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
B
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 common sense which the court must
c
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, D
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 :
E
"The courts have long shown themselves sensitive to the assertion
by the executive that considerations of nationai security must
preclude judicial investigation of a particular individual grievance.
But even in that field the courts will not act on a mere assertion
/ . that questions of national security were involved. Evidence is
required that the decision under challenge was in fact founded on
F

those grounds. That·that principle exists is I think beyond doubt."
[p.420]

On the basis of the evidence that was adduced in that case it was
held that the evidence established that the minister had considered, with G
reason, that prior consultation about her instruction would have involved
a risk of precipitating disruption at GCHQ and revealing vulnerable areas
of operation, and, accordingly, she had shown that her decision had in fact
been based on considerations of national security that outweighed the
applicants' legitimate expectation of prior consultation. H
490 SUPREME COURT REPORTS [1995) 3 S.C.R.
A In Bakshi Sardari Lal (Dead) through LRs and Ors. v. Union of India
and Anr., [1987) 4 SCC 114, in a challenge to orders of dismissal passed
under de.use (c) of the second proviso to Article 311 (2) it was contended ·"'-
on behalf of the appellants that the High Court was wrong in holding that
the sufficiency of satisfaction of the President was not justiciable. While
B dealing with the said contention, the court, after referring to the decision
in Tulsiram Patel (supra), has observed :

"The record of the case produced before us clearly indicates that
the reason has been recorded though not communicated. That
would satisfy the requirements of the law as indicated in Tulsiram
C Patel case. The plea of mala tides as had been contended before
the High Court and casually reiterated before us arises out of the
fact that typed orders dated June 3, 1971, were already on record
in the file when the papers were placed before the President; such
a contention is without any substance." [p.121]

D This would show that the court did go into the question whether the
impugned orders were vitiated by mala tides. As noticed earlier in Tulsiram
Patel (supra) also the Court, while dealing with the Madhya Pradesh Police
Forces matters, did examine the question whether the impugned orders of
dismissal passed under Article 311(2)(c) were vitiated by mala tides or
E were based irrelevant considerations after after considering all the
materials that were produced before the Court by the State Government,
the CdUrt recorded the finding 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 interests of the security of the State.
F
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 tides or is based on
G wholly extraneous or irrelevant grounds within the limits laid down in S.R.
Bommai (supra).
(
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
H be, has been arrived at in accordance with the law and is not vitiated by
A.K.KAULv. U.0.1.(S.C.AGRAWAL,J.) 491

ma/a fides or extraneous or irrelevant factors. This brings us to the question A
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} which requires the authority to record in writing the reason for its
satisfaction that it is not reasonably practicable to hold such inquiry, clause
(c) of the second proviso does not prescribe for the recording of reasons
for the satisfaction. But the absence of such a requirement to record reason B
for the satisfaction does not dispense with the obligation on the part of the
concerned Government to satisfy the court or the Tribunal if an order
passed under clause (c) of the second proviso to Article 311(2} is chal-

- lenged before such court or tribunal that the satisfaction was arrived at
after taking into account relevant facts and circumstances and was not
vitiated by mala tides and was not based on extraneous or irrelevant
C

considerations. In the absence of the said circumstances being placed
before the court or the Tribunal it may not be possible for the concerned
employee to establish his case that the satisfaction was vitiated by mala
tides or was based on extraneous or irrelevant considerations. While exer-
cising the power under Article 311(2)(c) the President or the Governor D
acts in accordance with the advice tendered by .the Council of Ministers.
(See : Samsher Si11gh v. State of Pu11jab, [1975] 1 SCR 814. Article 74(2)
and Article 163(3) which preclude the court from inquiring into the ques-
tion whether any, and if so, what advice was tendered by the Ministers to
the President or the Governor enable the concerned Government to with- E
held from the court the advice that was tendered by the Ministers to the
President or the Governor. But, as laid down in S.R. Bommai (supra}, the
said provisions do not permit the Government to withhold production in
the Court of the material on which the advice of the Ministers was based.
This is, however, subject to the claim of privilege under Sections 123 and
124 of the Evidence Act in respect of a particular document or rocord. The F
said claim of privilege will have to be considered by the court or tribunal
on its own merit. But the upholding of such claim for privilege would not
stand in the way of the concerned Government being required to disclose
the nature of the activities of the employee on the basis of which the
satisfaction of the President or the Governor was arrived at for the purpose G
of passing an order under clause (c) of the second proviso to Article 311(2)
so that the court or tribunal may be able 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 H
492 SUPREME COURT REPORTS [1995] 3 S.C.R.

A 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
B connecting the employee with such activities or the source of such infor-
mation.
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
C examine whether the satisfaction of the President or the Governor is
vitiated by mala fides or is based on wholly extraneous or irrelevant
grounds and for that purpose the Government is obliged to place before
the court or tribunal the relevant material on the basis of whieh the
satisfaction was arrived at subject to a claim of privilege under Sections
D 123 and 124 of the Evidence Act to withhold production of a particular
document or record. Even in cases where such a privilege is claimed the
Government concerned must disclose before the Court or tribunal the )--
nature of the activities in which the Government employee is said to have
indulged in.
E In the present case the appellants had scught production and inspec-
tion of the following documents :

(a) The records and files containing the "information" on the basis
of which the President was "satisfied" for the puq:ose of
exercising his powers under clause (c) of the second proviso
F
to Article 311(2).

(b) The records and files containing the description of "activities
of the petitioners which warranted their 'dismissal' from ser-
vice11.
G
(c) The records and files containing the details of "misconduct"
attributed to the petitioners, as covered in CCS (Conduct)
Rules, 1965.

(d) A copy of the charge of misconduct and the statement of
H allegation in support there9f framed by the Competent
AK. KAULv. U.O.L [S.C.AGRAWAL,J.) 493

Authority against the petitioners before coming to the con- A
---"'. clusion that "it is not expedient to hold an inquiry in the case
of Shri A.K. Kaul, Shri V. Joseph and Shri B.B. Raval
(petitioners)".

(e) A copy of the original order passed by the President of India
under Article 311(2)(c) on the basis of which Shri R. B
Mahadevan, Under Secretary to the Government of Ir.dia,
Ministry of Home Affairs issued the impugned order dated
26th December, 1980 "By order and in the name of the
President".

(I) A copy of the order· of delegation of powers of the President
c
of India authorising Shri R. Mahadevan, Under Secretary to
authenticate the order of the President and issue the same in
his name.

(g) Records and files containing the deliberations, recommenda- D
lions and findings of the Committee of Advisors (as envisaged
in O.M. dated 26th July, 1980) advising the President of India
to exercise powers under Article 311(2)(c) of the Constitu-
tion.

(hi Copies of any 0ther records, files, notifica•ion or recommen- E
dations relevant to the issue of the impugned order, that the
Hon'ble Tribunal may direct the respondents to produce for
rendering full and effective assistance to the Hon'ble Tribunal
:" the interest of justice and for adjudication of this case.
/''
Dr. Ma.dh w Godbole in his affidavit claimed privilege under Article F
74(2) as w~ll as nnder Sections 123 and 124 of the Evidence Act. The
Tribunal after referring the decision of this Court in S.P. Gupta and Ors.
Etc.Etc. v. Union of India & Ors. Etc.Etc., [1982) 2 SCR 365, has observed
that the following classes of documents are protected from disclosure.
G
"(i) Cabinet minutes, minutes of discussions between heads of
departments, high level inter-departmental communications and
dispatches from ambassadors abroad.

(ii) Papers brought into existence for the purpose of preparing a
submission to cabinet. H
494 SUPREME COURT REPORTS [1995] 3 S.C.R.

A (iii) Documents which relate to the framing of the Government
policy at a high level.

(vi) Notes and minutes made by the respective officers on the
relevant files, information expressed or reports made and gist of
official decisions reached.
B
(v) Documents concerned with policy-making within departments
including minutes and the like by junior officials and correspon-
dence with outside bodies."

The Tribunal, after examining the records produced before it, has
C observed that the records contain cabinet minutes, papers brought into
existence for the purpose of preparing submission to the cabinet, notes and
minutes made by the respective officers, information expressed and the gist
of official decisions. Having regard to the fact that the appellants were
working in a highly sensitive organisation entrusted with the delicate job of
D gathering, collecting and analysing intelligence necessary t'J maintain the
unity, integrity and sovereignty of the country and that secrecy is the
essence of the organisation and exposure may tend to demolish the or-
ganisation and aggravate the hazards in gathering information and dry up
the source; that provide essential and sensitive information needed to
protect public interest, the Tribunal has held that it will not be in public
E interest to permit disclosure of such documents. The Tribunal has, there-
fore, upheld the claim of privilege. We do not find any ground to take a
different view in the matter.

After looking into the records the Tribunal has recorded the finding
that the materials considered by the President relate to the activities of the ,
..I
F appellants which would prejudicially affect the security of the State and
that the material relied upon for the satisfaction of the President have
nothing to do with the activities of the appellants in relation to !BEA and
that the impugned orders have not been passed in violation of the interim
order passed by this Court in W.P.() Nos. 1117 to 1119 of 1980 and that
G there is no substance in the appellants case that the orders of dismissal are
not bonafide and had not been passed to victimise the appellants for
promoting and participating in the activities of !BEA. The learned Addi-
tional Solicitor General has submitted that the Tribunal has no committed
any error in adopting this course and has placed reliance on the decision
of this Court in Jammat-e-lslamdi Hind v. Union of India, (1995] 1 SCC
H 428.
~
'\

AK. KAUL v. U.0.1. [S.C. AGRAWAL, J.] 495
In Jammat-e-Islamdi Hind(supra) a notification had been issued by A
the Government of India under Section 3 of the Unlawful Activities
(Prevention) Act,1967 declaring that the Jarnmat-e- Islamdi Hind was an
unlawful Association. The said ·notification was referred for adjudication
to the Tribunal constituted under the said Act. Before the Tribunal the
only material produced by the Central Government was a resume prepared B
on the basis of some intelligence reports and 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 C
best, hearsay and that too without disclosing the source from which it
emall!ltes 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. D
This Court, while hoiding 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 out-weigh every lesser
interest. It was said :
E
"It is obvious that the unlawful activities of an association may quite
often be clandestine in nature and, therefore, the source of.
evidence of the unlawful activities may require continued confi.den-
tiality in public interest. In. such a situation, disclosure of the source
of such information, and, may be, also full particulars thereof; is p
likely to be against the public interest.· .... However, the non-dis-
closure of sensitive information and evidence to the association
and its office- bearers, whenever justified in public interest, does
not necessarily imply its non-disclosure to the Tribunal as well.'
[p.447)
G
These observations in Jammat-e-Islamdi Hind (supra) lend support
to the view that in a case where the material is of such a nature that it
requires continued confidentiality in public interest it would be permissible
for the court or tribunal to look into the same while permitting the
non-disclosure to the other party to the adjudication. It cannot, thertfore, H
496 SUPREME COURT REPORTS (1995] 3 S.C.R.

A be said that the Tribunal, in the present case, was in error in looking into
the record for the purpose of determining whether the satisfaction has been
vitiated for any of the reasons mentioned by the appellants.

The learned counsel for the appellants have invited our attention to
the averments contained in C.M.P.No. 8494 of 1980 filed on behalf of the
B respondent in W.P.No. 1117-19 of 1980 in this Court in support of their
submission that the impugned orders of dismissal have been passed on the
basis of the activities referred to in para 6 of the said application. This
submission has to be rejected in view of the finding recorded by the
Tribunal that the materials considered by the President relate to the
C activities of the appellants which would prejudicially affect the security of
the State and that the said materials have nothing to do with the activities
of the appellant in relation to !BEA.

Having regard to the facts and circumstances of the case we are
unable to hold that the impugned orders for the dismissal of the appellants
D are vitiated by malafides or are based on wholly extraneous or irrelevant
grounds and we do not fmd any ground to interfere with the decision of
the Tribunal. The appeals are, therefore, dismissed. But in the circumstan-
ces without any order as to costs.

T.W. Appeals dismissed.