Holding

Section 18 of the Atomic Energy Act, 1962 is a constitutionally valid, reasonable restriction on the right to information, and the Central Government's order of secrecy does not warrant judicial interference.

Summary

The petitioners sought disclosure of the Atomic Energy Regulatory Board's (AERB) safety report under the right to information, claiming that Section 18 of the Atomic Energy Act, 1962, which restricts disclosure of nuclear information, was ultra‑vires and lacked guidelines. The Union of India contended that the right to information under Article 19(1)(g) is subject to reasonable restrictions in the interest of national security and that the report was classified as "Secret" under a valid order issued under Section 18. The Supreme Court examined whether Section 18 imposes an unreasonable, unguided restriction and whether the claim of privilege under Sections 123 and 162 of the Evidence Act was valid. It held that the Act’s restriction is a reasonable, constitutionally permissible limitation, that the statutory scheme provides sufficient guidance, and that the order does not suffer from mala‑fide or arbitrary exercise. Consequently, the Court found no ground to interfere with the Central Government’s order and dismissed the appeals. The judgment reaffirmed that the right to information is a facet of free speech but can be curtailed for security and public interest reasons.

Issues considered

The constitutionality of Section 18 of the Atomic Energy Act, 1962 as a restriction on the right to information under Article 19(1)(g).
Whether the Central Government's order classifying the AERB report as "Secret" is a reasonable restriction within the meaning of Article 19(2).
The applicability and scope of Sections 123 and 162 of the Evidence Act, 1872 in claiming privilege over the AERB report.
Whether the court should exercise judicial review over the order absent mala‑fide, dishonesty or corrupt practice.

Legislation cited

Atomic Energy Act, 1962s. 13, s. 14, s. 18, s. 3
Constitution of Indias. Article 19(1)(g), s. Article 19(2), s. Article 226, s. Article 32
Indian Evidence Act, 1872s. 123, s. 162

Subjects

right to informationfreedom of speech and expressionArticle 19reasonable restrictionAtomic Energy ActSection 18privilegeEvidence Actnational securityjudicial review

Judgment

A PEPOLE'S UNION FOR CIVIL LIBERTIES AND ANR.
v.
UNION OF INDIA AND ORS.

JANUARY 6, 2004

B [V.N. KHARE, CJ AND S.B. SINHA, J.]

Atomic Energy Act, 1962:

Section 18-Restriction-On disclosure of information-Power a/Central
C Government-Held: Central Government empowered to restrict disclosure of
certain information to the public-Such power neither uncontrolled nor
unguided.

Constitution of India, 1950: Article 19(1) (g).

D Right of information-Nature of-Held: ls a facet of 'speech and
e'Cpression' and therefore, a fundamental right.

Right of information-Reasonable restriction on-Imposed by S. 18 of
the Atomic Energy Act, 1962-Permissibility of-Held: The Act dealt with a
E restrictive subject-Hence, prohibition of disclosure of information imposed
by S. 18 a reasonable restrict ion.

Articles 32 and 226-Judiciai revie11~Scope and power of-Order
passed by Central Government regarding non-disclosure ofcertain information
to the public-Whether amenable to judicial revie11~Held: The Court would
F not normally exercise its power a/judicial review unless the order suffers
from mala fide, dishonesty or cormpt practice-The order passed by Central
Government did not sufjer fi'om such i1?firmities-Hence not inte1fered with.

Evidence Act, 1872:

G Section 123-Evidence as to affi1irs a/State-Documents-Immunity fi'om
disclosure-Claim of privilege-Held: In order to claim such immunity the
documents must relate to affairs of State and that such disclosure must be
against interest of Stale or public interest.

Interpretation of Statutes:.
H 232
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. 233
Constitutionality of an Act-Presumption of-Held: Even extends to a A
law, which imposes reasonable restrictions on fundamental right.

How far and to what extent the right to information and the
restrictions that could be imposed should .be balanced is the question
involved in these appeals arising out of the impugned judgment of the High
~u~ B
The appellants contended that the citizens have a right to have access
to the copies of the AERB report, under Article 19(1)(g) of the
Constitution, that Section 18 of the Atomic Energy Act, 1962 was invalid
on the ground that there were no guidelines for the exercise of discretion C
in notifying a document as a secret document. The High Court dismissed
the writ petition. Hence the appeal.

On behalf of the respondents, it was contended that right of
information as contained in Article 19(1) (g) of the Constitution was
subject to reasonable restrictions contained in clause (2) thereof; that if D
the report of AERB was disclosed it would be agai11st the interest of the
State and, therefore, the provisions of Sections 123 and 162 of the Evidence
Act, 1872 were attracted.

Dismiss.ing the appeal, the Court
E
HELD: I.I. The question as to whether a statute is ultra vires the
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 Statute as also the character thereof.
1252-DI
F
1.2. The Atomic Energy Act, 1962 deals with a sensitive subject.
Section 18 of the Act has been enacted for the purpose 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. 1252-El
G
2.1. A statute carries with it a presumption of constitutionality. Such
a presumption extends also in relation to a law, which has been enacted
for imposing reasonable restrictions on the fundamental rights. 1253-Fl

2.2. A further presumption may also be drawn that the statutory
authority would not exercise the power arbitrarily. (253-F'I H
234 SUPREME COURT REPORTS (2004] I S.C.R.

A 3.1. Restrictions as regards disclosure of information as contained r
in Section 18 are not vague or wide in nature. It specifies the areas where
such disclosures are prohibited. The powers of the Central Government
to make an order in terms thereof, are thus limited. 1252-F-CJ

3.2. Having regard to the purport and object of the Act, the
B provisions of Section 18 cannot be said to have bestowed unguided and
uncanalised powers on the Central Government. Sections 18 and 3 of the
Act had to be enacted by the Parliament as in wrong hands the information
can pose a danger not only to the security of the State but also to the public
at large. 1253-BI

c 3.3. The statutory scheme contained in the provisions of the Act, the
rules framed thereunder, compositions of the Atomic Energy Commission
and the Atomic Energy Regulatory Board (AERB) leave no manner of
doubt that the effective functions of the nuclear power plants are sensitive
in nature. The functions of the Board are varied and wide. Only out of
D certain functions of the Board, some have been marked as "Secret"which
fufilled statutory criteria laid down under Section 18 of the Act. 1253-EI

State of UP. v. Raj Narain, (197513 SCR 333, S.P. Gupta v. Union of ...,.
India, (19811 Supp. SCC 87, Dinesh Trivedi v. Union of India, 1199714 SCC
308, Hamdard Dawakhana v. Union of India, AIR (1960) SC 554, Krishna
E Mohan (P) ltd. v. Municipal Corporation of Delhi, (20031 7 SCC 151,
Organon (India) ltd. v. CC.£., 119951 Supp. I SCC 53, Harishankar Bag/a
v. State of M.P., (19551 I SCR 380, Delhi Laws Act (19511 SCR 747 and
State of Tamil Nadu v. Hind Stone, 119811 2 SCC 205, referred to.

4.1. Right of information is a facet of 'speech and expression' as
F contained in Article 19(1 )(g) of the Constitution of India. Right of
information, thus, indisputably is a fundamental right. 1253-HI

4.2. Article 19(1)(g) of the Constitution of India guarantees to the
citizens, the right to "freedom of speech and expression" as one of the
G fundamental rights listed in Part III of the Constitution. These rights have
been advisedly set out in broad terms leaving scope for their expansion
and adaptation, through interpretation, to the changing needs and evolving
notions of a free society. 1254-DI

State of U.P. v. Raj Narain, 119751 3 SCR 333, Indian Express
H Newspapers (Bombay) Private ltd. v. Union of India. 119851 I SCC 641,
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. 235
Secretary Ministry of Information and Broadcasting Government of India v. A
Cricket Association ofBengal, 11995] 2 SCC 161 and Dinesh Trivediv. Union
of India, 11997] 4 SCC 308, referred to.

5. Every right-legal or moral-carries with it corresponding
obligation. It is subject to several exemptions/exceptions indicated in broad
terms. Generally, the exemptions/exceptions under those laws entitle the B
Government to withold information relating to the following matters:
~ 1258-G-HI

(i) International relations;

(ii) National Security (including defence) and public safety; C
(iii) Investigation, detection and prevention of crime;

(iv) Internal deliberations of the Government;

(v) Information received in confidence from a source outside the
Government. D
(vi) Information, which, if disclosed, would violate the privacy of
individual;

(vii) Information of an economic nature, (including Trade Secrets)
which, if disclosed, would confer an unfair advantage on some E
person or concern, or subject some person or government to
an unfair disadvantage;

(viii) Information, which is subject to a claim of legal professional
privilege, e.g., communication between a legal adviser and the
client; between a physician and the patient; F
(ix) Information about scientific discoveries. 1259-A-DI

State of UP. v. Raj Narain, 1197513 SCR 333, S.P. Gupta v. Union of
India, 119811 Supp. SCC 87, Zenul v. Rusk, 14 L.Ed. 2d 179, Kleindienst v.
Manda!, 33 Law Ed. 2d 683 and United States v. Richardson, 41 L. Ed. 2d G
678, referred to.

6.1. A reasonable restriction on the exercise of the fundamental right
is always permissible in the interest of the security of the State. 1259-HI

6.2. The operation and functioning of a nuclear plant is sensitive in H
236 SUPREME COURT REPORTS [2004] I S.C.R.

A nature. Any information relating to the training features, processes or
technology _cannot be disclosed, as it may be vulnerable to sabotage.
Knowledge of specific data may enable the enemies of the nation to
estimate and monitor strategic activities. As fissile materials are used in
fuels although the nuclear plants are engaged in commercial activities, the
B contents of the fuel discharged or any other details must be held to be
matters of sensitive character. If a reasonable restriction was 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.
(260-A-B-D[

c unless7.itThe Court will not normally exercise its power of judicial review
is found that formation of belief by the statutory authority suffers
from ma/a fide, dishonesty or corrupt practice. The order can be set aside
it if is held to be beyond the limits for which the power has been conferred
upon the authorities by the Legislature or is based on the grounds
extraneous to the legislation and if there are no grounds at all for passing
D it or if the grounds are such that no one can reasonably arrive at the
opinion or satisfaction required thereunder. (260-E-G[

8.1. When 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
E 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. (261-H; 262-AI

8.2. Section 123 of the Evidence Act, 1872 does not say who is to
F decide the preliminary question, viz., whether the document is one that
relates to any affairs of State, or how it is to be decided. But the clue in
respect thereof can be found in Section 162. Under Section 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
G the court". It further says that "the Court, if it seems fit, may inspect the
document, unless it refers to matter of State, or take other evidence to
enable it to determine on its admissibility." (262-B-C[

9. The order issued by the Central Government under Section 18 of
the Act and its claim of privilege in respect of the Atomic Energy
H Regulatory Board's report do not suffer from any legal infirmity
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 237

warranting interference. A
State of UP. v. Raj Narain, 119751 3 SCR 333 and S.P. Gupta v. Union
of India, l1981f Supp. SCC 87, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4294 of 1998.
B
From the Judgment and Order dated 30.1.1997 of the Bombay High
Court in W.P. Nos. I 785 and 1792 of 1996.
Ji
WITH

C.A. No. 4295 of 1998. c
Prashant Bhushan, Vishal Gupta, Sanjiv Sen, Ms. Nandini Gore, Sanjay
Parikh, Ms. Meghna Satti and Ms. Manik Karanjawala for the Appellants.

Soli J. Sorabjee, Attorney General, Dipankar P. Gupta, Manish Singhvi,
Prateek Jalan, Pritish Kapur, Y.P. Mahajan, S.N. Terdal, D.S. Mahra, (NP), D
Ms. Sushma Suri, (NP), P. Parmeswaran, (NP), P.H. Parekh, Sameer Parekh,
,,.
.
Anil Shrivastav and Jyoti Dutt for the Respond.ents .

The Judgment of the Court was delivered by

S.B. SINHA, .I. INTRODUCTION: E
... Right of information is a fundamental right under Article 19(J)(a) of
the Constitution. The State under Clause (2) of Article 19 of the Constitution,
however, is entitled to impose reasonable restrictions inter a/ia 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 F
__.. dated 30th 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 G
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
H
238 SUPREME COURT REPORTS [2004) I S.C.R.

A report in November, J995 documenting therein safety defects and weaknesses -'r
citing 130 instances which are said to be matters of concern. The appellants
contended that a former Chairman of the AERB, Dr. Gopalkrishnan also
expressed serious concern about the safety of nuclear installations in India
disclosing that serious accidents had occurred in some of the nuclear facilities
B including one at Narora Atomic Power Plant in the State of U.P. and Kaiga
Atomic Power Plant situated in the State of Karnataka.

The appellants herein in support of its prayers made in the writ petition 1'-
mainly relied upon the reports appearing in the newspapers, magazines and
editorials and articles.
c In their counter affidavit, the respondents herein inter alia contended
that the said Board was constituted in terms of Section 27 of the Atomic
Energy Act entrusting the task to develop Safety Codes, Guides and Standards
for siting, design construction, commissioning, operating and decommissioning
of the different types of plants, keeping in view the international
D recommendations and local requirements and develop safety policies in both
radiation and industrial safety areas; Reviewing health and aspects of
modifications in design/ operation involving changes in the technical
specification adopted in any of the Department of Atomic Energy (DAE)
units; Reviewing operational experience in the light of the radiological and
other safety criteria recommended by the International Commission on
E Radiological Protection, International Atomic Energy Agency (IAEA) and
such other international bodies and adapted to suit Indian conditions, and
thereby evolve major safety policies; Prescribing acceptable limits of radiation
exposure to occupational workers and members of the public and approve
acceptable limits of environmental releases of radioactive substances;
p reviewing the emergency preparedness plans for non-DAE installations;
Promote research and development efforts for fulfilling the functions and
responsibilities specified; Reviewing the training programme, qualifications
and licensing policies for personnel by the project/ plants; Enforcing rules
and regulations promulgated under the Atomic Energy Act, 1962 for radiation
safety in the country and such other functions as specified therein.
G
With the said counter affidavit, the Fourth Report of the Nuclear Plant
Safety and Spent Fuel Management prepared by the Standing Committee on
Atomic Energy consisting of members of both the Lok Sabha and the Rajya ,..~
Sabha had also been annexed. The Annual Report for the year 1995-96
H prepared by the Government of India had also been annexed therewith. It was
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 239

.,;. further contended that the specific questions were asked in the Parliament in A
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 B
increasing level of confidence in the public that safety is indeed receiving
fl 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
c
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 functioning from outside sources. The statement of Pandit D
Jawaharlal Nehru while adverting to certain amendments moved to
the Atomic Energy Bill in the year 1948 has also been relied upon."

One Mr. G.R. Srinivasan, Director, Health Safety in his affidavit
disclosed that out of 130 items in the documents of AERB which required
attention, 89 issues directly pertain to Nuclear Power Corporation (NPC) E
while 6 other issues concerned NPC, Al3RC AND DAF.

i' In the said affidavit it was pointed out:

" ... that the Atomic Energy Commission informed the 5th Respondent
on 22nd November, 1995 of the various issues to be tackled by NPC F
installations for the NEP's response. By 4th December, 1995, the
.....
NPC has given its, over l 00 page response to the issue to AEC and
}
thereafter NPC constituted a Committee on I Ith December, 1995 to
interact and discuss with the AERB regarding resolvement of the said
issue. A total of 19 meetings were held with AERB staff and mutually
agreed time bound action plans have been arrived at for all 95 issues. G
Final agreed action plans have been issued on 55 issues, because of
degree of urgency. It is pointed out that the question of safety issues
........ in NPC is a document which is highly technical in nature and it
would neither be in public interest for the same to be disclosed nor
could be it discerned by general public." H
240 SUPREME COURT REPORTS [2004] I S.C.R.

A Yet again Shri Anupam Dasgupta, Joint Secretary in the DAE 'in his.
affidavit by way of sur-rejoinder dated 24th January, 1997 contended that the
aforementiom:d 130 items listed in the AERB report titled "Safety Issues in
DAE installations" are based on the proceedings and recommendations of
various meetings of the Standing Safety Committees -which have been
B constituted by the AERB itself to review the safety nuclear installations on
a regular basis. In the said sur-rejoinder a press release of 26th March, 1996
of Dr. A. Gopalkrishnan was annexed wherein it was stated:

"Fnr each of the items identified, the concerned DAE installation and
AERB are jointly preparing the preliminary details of corrective actions
and a committed time schedule for implementing them. These will be
c reviewed and finalized by the AERB Safety Review Committees and
the Board, for timely implementation thereafter by the DAE. DAE
installations are closely co-operating with the AERB in expediting
the process of safety upgradation."

D Similarly, 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
E assure the public that all the DAE installations arc 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 Februaiy, 1975 passed under sub-section (I) of Section 18 of the
p 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 pettains
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
G 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 irreparable injury to the interest of the
State as also would be prejudicial to the national security. v
STATUTORY PROVISIONS:
H The Atomic Energy Act, 1962 ('the Act') was enacted to provide for
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 241

the development, control and use of atomic energy for the welfare of the A
people of India and for other peaceful purposes and for matters connected
therewith. Section 2(a) of the Act defines "atomic energy" to mean energy
released from atomic ·nuclei as a result of any process, including the fission
and fusion processes. The relevant provisions of the said Act are as under·:

2(b). "Fissile material" means uranium 233, uranium 235, plutonium B
or any material containing these substances or any other material that
';1 may be declared as such by notification by the Central Government;

2(e). "plant" includes machinery, equipment or appliance, whether
~ affixed to land or not;
c
2(h). "radiation" means gamma rays, X-rays and rays consisting of
alpha particles, beta particles, neutrons, protons and other nuclear
and sub-atomic particles; but not sound or radio waves, or visible,
infra-red or ultra-violet light;

2(i). "radioactive substance" or "radioactive material" means any D
substance or material which spontaneously emits radiation in excess
.('
of the levels prescribed by notification by the Central Government."

Section 3 provides for the general powers of the Central Government
which include:
E
(a) to produce, develop, use and dispose of atomic energy either by
itself or through any authority or corporation established by it or a
Government company and carry out research into any matters
connected therewith;

- -'I

>
(b) to manufacture of otherwise produce any prescribed or radioactive F
substance and any articles which in its opinion are, or are likely to be,
required for, or in .connection with, the production, development or
use of atomic energy or such research as aforesaid and to dispose of
such prescribed or radioactive substance or any articles manufactured
or otherwise produced;
G
(bb) (i) to buy or otherwise acquire, store and transport any prescribed
or radioactive substance and any articles which in its opinion are, or
.._., are likely to be, required for, or in connection with, the production,
development or use of atomic energy; and
(ii) to dispose of such prescribed or radioactive substance or any H
242 SUPREME COURT REPORTS [2004] I S.C.R.

A articles bought or otherwise acquired by it,

either by itself 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-
B
(i) the location, quality and quantity of prescribed substances and
transactions for their acquisition, whether by purchase or otherwise, t
or disposal, whether by sale or otherwise;

(ii) the processing of prescribed substances and the extraction or r
c 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
D in or derived from items (i) to (iv);

(d) to declare as "prohibited area" any area 01. 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
(e) to provide for control over radioactive substances or radiation
generating plant in order to- ....
(i) pn:vent radiation hazards;

p (ii) secure public safety and safety of persons handling radioactive
substances or radiation generating plant; and

(iii) ensure safe disposal of radioactive wastes;

(t) to provide for the production and supply of electricity from atomic
energy and for taking measures conducive to such production and
G supply and for all matters incidental thereto either by itself or through
any authority or corporation established by it or a Government
company and

(g) to do all such things (including the erection of buildings and
execution of works and the working of minerals) as the Central ·'
H
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 243

Government considers necessary or expedient for the exercise of the A
foregoing powers."

Section 16 provides for control over radioactive substances. Section 17
provides for the rule making power of the Central Government by making
special provisions as to safety. Section 18 of the Act reads as under:
B
"18. Restriction on disclosure of information.-

(I) The Central Government may by order restrict the disclosure of
information, whether contained in a document, drawing photograph,
plan, model, or in any other form whatsoever, which relates to,
represents or illustrates- C
(a) an existing or proposed plant used or proposed to be used for the
purpose of producing, developing or using atomic energy, or

(b) the purpose or method of operation of any such existing or proposed
plant, or
D
(c) any process operated or proposed to be operated in any such
existing or proposed plant.

(2) No person shall-

(a) disclose, or obtain or attempt to obtain any information restricted E
under sub-section (I}, or

(b) disclose, without the authority of the Central Government, any
information obtained in the discharge of any functions under this Act
or in the performance of his official duties.
F
(3) Nothing in this section shall apply-

(i) to the disclosure of information with respect to any plant of a type
in use for purposes other than the production, development or use of
atomic energy, unless thi: information discloses that plant of that type
is used or proposed to be used for the production, development or use G
of atomic energy or research into any matters connected therewith; or

(ii) where any inforn1ation has been made available to the general
public otherwise than in contravention of this section, to any
subsequent disclosure of that information.

Section 27 of the Act empowers the Central Government to set up H
244 SUPREME COURT REPORTS [2004] I S.C.R.

A 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
B (ii) Atomic Energy (Working of Mines, Minerals and Handling of
Prescribed Substances) Rules.
(iii) Atomic Energy (Safe Disposal and Radioactive Wastes) Rules,
1987
C (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
D by the Union of India in terms of the provisions of the Act. The Central
Government has issued a notification dated I Ith July, 2003 reconstituting the
Atomic Energy Commission with the following composition:

I. Dr. Anil Kakodkar Secretary, Department of Atomic Energy-
Chairman (ex officio)
E 2. Dr. Raja Ramanna Member, Rajya Sabha & former Chairman,
AEC & Secretary, DAE-Member
3. Shri Brajesh Mishra Principal Secretary to the Prime Minister-
Member
F 4. Shri Kamal Pande Cabinet Secretary-Member
5. Shri D.C. Gupta Finance Secretary & Secretary, Dept. of ;.
Expenditure, Ministry of Finance-Member
6. Dr. S.S. Meenakshisundaram Ex officio Secretary to the
Government of India-Member for Finance
G
7. Prof. C.N.R. Rao Honorary President, Jawaharlal Nehru Centre
for Advanced Scientific Research, Bangalore-Member
8. Dr. V.K. Chaturvedi Chairman & Managing Director Nuclear ~
Power Corporation of India Ltd.-Member
H 9. Shri B. Bhattachaijee Director, Bhabha Atomic Research Centre-
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. (SINHA, J.] 245
Member A
It is also not in dispute that the Central Government in exercise of its
power conferred upon it under Section 27 of the Act, had set up the Board
to enforce certain regulatory and safety measures envisaged under Sections
16, 17 and 23 of the Act. The composition of the Board include:
B
I. Prof. S.P. Sukhatme -Chairman

;"i 2. Shri S.K. Sharma Vice-
Chairman, AERB -Ex-officio Member
3. Dr. M.V.S. Valiathan
Honorary Advisor Manipal c
Academy of Higher Education,
Manipal -Member

4. Dr. K.V. Raghavan Director
Indian Institute of Chemical
Technology, Hyderabad -Member D

5. Prof. J.B. Joshi Professor and
Director University Institute of
Chemical Technology (UICT) -Member
E
6. Dr. K.S. Parthasarathy Director
Infonnation and Technical Services
Division, AERB -Secretary
HIGH COURT JUDGMENT:

Before the High Court the following three contentions were raised by F
the appellants:
> (i) the citizens have a right to have access to the copies of the
AERB report;
(ii) Section 18 of the Atomic Energy Act is invalid on the ground G
that there are no guidelines for the exercise of discretion in
notifying a document as a Secret document; and
(iii) ·an Independent regulatory Body to replace AERB should be
appointed to monitor the safety measures taken in the nuclear
power plants. H
,..
246 SUPREME COURT REPORTS [200-1] I S.C.R.

A The High Court although took notice of 'the horror of the nuclear -l"
holocaust which the world first felt when the America Bomber, Enola Gay
descended from the clouds and emptied its bowels on the city of Hiroshima'
but refused to look in to the AERB Report itself upon arriving at a satisfaction
that the respondents had been acting in public interest as also the interest of
B the nuclear installations in the country stating:

"I. Admittedly, these questions are repeatedly considered by the
Parliament, it is discussed in the Parliament and once the Parliament r.
is taking appropriate decision on the safety and other aspects of the
Nuclear Installations, it would not be proper for this Court to exercise
its writ jurisdiction under Article 226 of the Constitution;
c
2. As stated earlier, the Memorandum dated 7th January, I 997 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/
D 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
E 4. Further, the steps taken for reviewing 130 safety issues in the DAE
Installation by the Committee cannot be subject matter of judicial
revie\v."

As regard the question of vires of certain provisions of the Act and in
F 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 State but to the public at large. It also rejected the contention
that only because the nuclear plants are carrying out commercial activities,
G a citizen has a right to know stating:

" ... Nuclear Power Plants as a by product generate plutonium which
is a radioactive metal used in Nuclear Research amongst others for
preparation of Atom Bomb. If the defects and the remedies to cure
the defects in the Nuclear Power Plants fall in the wrong hands it can
H pose danger to the security of the nation itself. The challenge, therefore, .~
PE POLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 247
-f on that count must fail." A
The High Court opined that the very fact that AERB has prepared the
report is suggestive of the fact that it is alive to its duties.

SUBMISSIONS:
B
Mr. Prashant Bhushan, the learned counsel appearing on behalf of the
appellants would submit that the right of information is a part of the
7\ fundamental right in terms of Article 19(1 )(a) of the Constitution of India,
and, thus, the citizens of India could not be denied the requisite informations
sought for. He would urge· that for the purpose of ensuring that appropriate
safety standards are maintained by the nuclear plants and the radiations which c
occurred in normal course and/ or duty accidents as well as nuclear wastes,
it is important that the guidelines/ norms/ safeguards taken by the nuclear
plants towards not only the workers employed therein but also the general
public should be disclosed. Such informations, Mr. Prashant Bhushan would
contend, to a section ot: citizens and particularly those who are experts in the
D
field would enable them to highlight the safety deficiencies obtaining in such
plants and, if necessary, to get a public opinion formed against such
)(' installations. In a democracy, it is fundamental, according to Mr. Prashant
Bhushan, that all vital informations relating to the governance of the country
be disclosed so as to enable the citizenry of India to ascertain their right of
information as to whether the international standards relating to safety are E
being maintained or not.

Relying upon or on the basis of the decisions of this Com1 in State of
UP. v. Raj Narain and Ors., [1975] 3 SCR 333, S.P. Gupta v. Union of India
and Anr., [1981] (Supp.) SCC 87, Dinesh Trivedi, M.P. and Ors. v. Union
of India and Ors., [1997] 4 SCC 306 and Union of India v. Association for F
_. Democratic Reforms and Anr., [2002] 5 SCC 294, t~e learned 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 G
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 women. The learned H
248 SUPREME COURT REPORTS [2004] I S.C.R.

A counsel' wou Id contend that the power plants of the country in the matter of 1"
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 th~\aid plants also had gone unreported.

Mr. Bhushan would submit that the information as regard design and
B other details of the plants are available on Internet and, thus, there does not
exist any re.!\son as to why the other relevant informations should be withheld
only on the spacious plea of likelihood of sabotage as a result whereof an r
important right ofa citizen to know about vital informations like safety of the
workers as also the people living nearby has been denied. It was urged that
c in any event those parts of the report which do not satisfy the secrecy of the
State test should be disclosed.

Drawing our attention to Section 18 of the said Act, the learned counsel
would submit that as thereby unguided, unbriddled and wide power had been
conferred upon the Central Government, the same must be held to be ultra
D vires the Constitution of India.

Mr. Soli Sorabjee, learned Attorney General appearing on behalf of the
Union of India, on the other hand, would urge that from the affidavits filed
.,.
before the High Court it would appear that hardly any accident of serious
nature had taken place in India. Mr. Sorabjee would submit that right of
E information as contained in Clause (a) of Clause (I) of Article 19 is subject
to reasonable restrictions contained in Clause (2) thereof. The right of
information, it was contended, cannot be exercised in abstract and must be
considered in the context in which such right is being claimed. A matter
which is sensitive by its very character, the learned Attorney General would
argue, cannot be subject matter of a right of information. Drawing our attention
F to a chart, the learned counsel would submit that the Central Government as ._
also the AERB are aware of the safety measures required to be taken. The
AERB. Mr. Sorabjee would submit, being consisting of eminent persons who
are generally independent not only monitor the working of the plants but also
take strict measures as Tegards safety operations thereof.
G
The learned Attorney General, citing the following example;

"A single pump could handle the cooling operations for a reactor.
Normally, there are two pumps, so that even if one fails the other
could do the job. However, in view of the fact that this is a safety-
H critical component, a safety recommendation could bt to have a third .
PEPOLE"S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 249

pump. Or replacement of Inlet Manifold, or replacement of Emergency A
Condenser Tube," contended that the repo11 of the A.E.R.B. contains
such suggestion which cannot be termed as deficiencies.

The learned Attorney General would argue that ifthe report is disclosed,
the knowledge of the datas containing therein pertaining to inventories and
contents of spent fuel, reprocessing waste, etc., gathered therefrom could B
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 C
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 te1ms that they are alive D
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
X' not the case the impugned judgment need not be interfered with.

The Board:
E
AERB is a statutory body. TI1e following are its functions :

(i) The jurisdiction of AERB. covers installations such as nuclear
power stations, nuclear fuel fabrication, heavy water plants,
uranium mines, thorium processing units etc. and all installations
in which radiation is used for medical, industrial or research F
purposes (except Bhabha Atomic Research Centre and its
facilities, due to their special nature).
(ii) AERB is manned by some of the nation's top experts in the
relevant fields. It is also supported by various expe11s belonging
to reputed academic institutions and other government agencies. G
AERB thus draws on th~ expertise and knowledge-base available
all over the country.
(iii) The Board issues different authorizations at each stage such as
siting, construction, commissioning operating and
decommissioning of nuclear plants and installations. The AERB H
250 SUPREME COURT REPORTS f2004) I S.C.R.

A licenses nuclear engineers at different levels, such as Reactor ( t"
Operator, Shift Charge Engineers, Control Engineers, etc. Units
are permitted to function only ifthe stipulated number of licensed
personnel are available in every shift.
(iv) Apart from the Safety Committees of the units concerned, AERB
B has evolved a multi-disciplinary 3-tier safety review procedure
to enforce safety stipulations in nuclear installations. The first
tier is at the plant level; the next at the Specialists' Committees
r
level; and the third at the Board level.
(v) The Board has set up 2 Specialists' Committees: the Safety
c Review Committee for Operating Plants (SARCOP) and the Safety
Review Committee for Applications of Radiation (SARCAR).
These consist of scientists and technologists from different
disciplines SARCOP deals with operating plants of the
Department, and SARCAR deals with radiation installations for
medical, industrial and research purposes. The specialists'
D committees meet regularly to review the safety status.
(vi) The AERB itself has 7 Technical Divisions, with over a hundred
full-time scientists, engineers and technologists with wide
experience and expertise in their reolevant fields. AERB has also
set up its own Safety Research Institute at Kalpakkam.
·E (vii) AERB uses many inputs to assess the safety status of the plants/
installations. These include reports of inspection by AERB staff.
radiation dose records and environmental monitoring reports.
(viii)Each nuclear installation has an independent Health Physics set-
up to constantly monitor the radiation dose to workers, and also
F
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
G 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.

H (xi) As part of the Public Information Programme, AERB issues a ,,
PEPOLc·s UNION FOR CIVIL LIBERTIES v. U.0.l. [SINHA. J.) 251

quarterly Newsletter, and an Annual Report. Based on the A
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 B
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 regulations under the Act as regard the regulatory
and/or safety aspects of the installations generating electrical energy. Here to
before we have noticed the duties and functions of the Board which are of C
varying nature. The Board is an independent body and out of the present
composition thereof except one Mr. Sharma, nobody is an employee of the
Central Government. The Board is responsible to the Atomic Energy
Commission which has been reconstituted by reason of a notification dated
1lth July, 2003. The executive function of the Board is vested in its Chairman.
From a perusal of the powers and functions of the Board, it is neither in D
doubt nor in dispute that the Board except for Bhabha Atomic Research
Centre monitors and reviews the working of all nuclear installations in India
~ inter alia with reference to safety aspects. It upgrades and amends ihe safety
standards and procedures and prescribes, and supervises implementation of
such standards and procedures by the management of the nuclear installations. E
It is also not in disp11te that safety issues in DAE installations has been
prepared by the Board based on the recommendations of various Safety Review
Committees. They had all along been classified as "Secret". The report pertains
to the nuclear installations in the country which, according to the respondents,
include several sensitive facilities call"ying out the activities of highly classified
nature. The Board, make periodic assessment of the safety status of the F
installations and its suggestions as regard modifications and improvements to
upgrade their safety status to the maximum extent are implemented.

A.E.R.B. REPORT :

As regards, the Annual Report 1995-96 of AERB which was the subject G
matter of the writ petition it has been stated in the counter affidavit that they
can be classified in four categories:

Category I: Hardware related issues leading to replacement of defective
.components;
H
252 SUPREME COURT REPORTS [2004) I S.C.R.

A Category 2: Ageing relating issues;

Category 3: Confidence building exercises involving some analytical
studies;

Category 4: Upgradation of safety standards in plants that have been
B built to earlier safety standards.

VIRES OF SECTION 18 OF THE ACT :

The contentions raised by the parties as regard non-<lisclosure of the
repo1t are required to be determined in the aforementioned context. Section
C 18 of the Act contains an enabling provision. Pursuant to or 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
D 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
E 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
F 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 are not vague or wide in nature. It specifies the areas where
such disclosures are prohibited. The powers of the Central Government to
make an order in terms thereof are, thus, limited.
G
It is not a case where as in Hamdard Dmmkhana and Anr. v. Union
of India and Ors., AIR (1960) SC 554 or Krishna Mohan (P) Ltd. v. Municipal
Corporation of Delhi., [2003) 7 SCC 151 the Central Government has been r·-'
conferred with a wide uncanalised and unguided power. It is also not a case
where the words employed in the provision provide for no criteria nor can
H it be said that no standard has been laid down by the Parliament therefor. It
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, L) 253
·-+ is furthermore not a case where principles on which the power of the Central A
Government are to be exercised have not been disclosed. By reason of the
Act, essential legislative functions have also not been delegated.

We do not think that having regard to the purport and object of the said
Act, the provisions of Section 18 have bestowed unguided and uncanalised
powers on the Central Government. Sections 18 and 3 of the Atomic Energy B
Act had to be enacted by the Parliament as in wrong hands the information
Ii can pose a danger not only to the security of the State but to the public at
large.

Reference, in this connection, may be made to a decision of this Court C
in Organon (India) ltd. (now known as lnfar (India) ltd. and Anr. v. Collector
of Excise and Ors., [1995] Supp. l SCC 53 wherein this Comt relying on
!Jarishankar Bag/av. State of MP., [1955] I SCR 380, Delhi Laws Act case
(1972] [1951] SCR 747 and State of Tamil Nadu v. Hind Stone, [1981] 2
SCC 205, wherein this held that the provisions of Opium Act furnished
sufficient guidance in the matter of making rules under Section 5 thereof D
The statutory scheme contained in the provisions of the Act, the rules
framed thereunder, composition of the Atomic Energy Commission and AERB
leave no manner of doubt that the effective functions of the nuclear power
plants are sensitive in nature. The functions of the Board are varied and wide. E
Only out of certain functions of the Board, som~ have been marked as "Secret"
which fulfilled the statutory criteria laid down under Section 18 of the Act.
A statute carries with it a presumption of constitutionality. Such a presumption
extends also in relation to a law which has been enacted for imposing
reasonable restrictions in the fundamental right.
F
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.
G
RIGHT OF INFORMATION:

Right of information is a facet of 'speech and expression' as contained
in Article 19(l)(a) of the Constitution of India. Right of information, thus,
indisputably is a fundamental right.
H
254 SUPREME COURT REPORTS (20041 I S.C.R.

A 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
B 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 t.
European Convention of Human Rights (1950). Article 10 of that declaration
gt:arantees inter alia, "not only the freedom of the Press to inform the public
C but also the right of the public to be informed."

In keeping with the spirit of the Universal Declaration of 1948, the
Preamble of the Constitution oflndia embodies a solemn resolve of its people
to secure, inter alia, to its citizens, liberty of thought and expression. In
pursuance of this supreme objective, Article 19(l)(a) guarantees to the citizens,
D the right to "freedom of speech and expression" as one of the fundamental
rights listed in Part III of the Constitution. These rights have been advisedly
set out in broad terms leaving scope for their expansion and adaptation,
through interpretation, to the changing needs and evolving notions of a free
society.
E
In Raj Narain (supra), the Constitution Bench considered a question-
whether privilege can be claimed by the Government of Uttar Pradesh under
Section I 23 of the Evidence Act in respect of what has been described for
the sake of brevity to be the Blue Book summoned from the Government of
Uttar Pradesh and certain documents summoned from the Superintendent of
F Police, Rae Bareli, Uttar Pradesh? The Court observed as under:-

"In a government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can 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
G
functionaries. They are entitled to know the particulars of every public
transaction in all its bearing .... "

In Indian Express Newspapers (Bomba;~ Private ltd. and Ors. etc. v. ~--'
Union of India and Ors.. [I 985] I SCC 64 I, this Court dealt with the validity
H of customs duty on the newsprint in context of Article I9( I )(a). The Court
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, .I.] 255

observed (in para 32) thus: A
"The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate
cannot make responsible judgments ..."

The Court further observed: B

;\ " ... The public interest in freedom of discussion (of which the freedom
of the press is one aspect) stems from the requirement that members
of a democratic society should be sufficiently informed that they may
influence intelligently the decisions which may affect themselves."
(Per lord Simon of Glaisdale in Attorney-General v. Times C
Newspapers ltd., (1973) 3 All ER 54). Freedom of expression, as
learned writers have observed, has four broad social purposes to serve:
(i) it helps an individual to attain self-fulfilment, (ii) it assists in the
discovery of truth, (iii) it strengthens the capacity of an individual in
paiiicipating in decision-making and (iv) it provides a mechanism by D
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 E
people in the administration .... "

In SecrelGIJ', Minisll)' of Information and Broadcasting, Government of
India and Ors. v. Crickel Association of Bengal and Ors., (1995] 2 SCC
161 ], this Court summarised the law on the freedom of speech and expression F
under A11icle 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 self-fulfilment. It enables people to contribute to
debate on social ·and moral issues. It is the best way to find a truest G
model of anything, since it is only through it that the widest possible
range of ideas can circulate. It is the only vehicle of political discourse
so essential to democracy. Equally important is the role it plays in
facilitating artistic and scholarly endeavours of all sorts"

H
256 SUPREME COURT REPORTS [2004] I S.C.R.

A This Court further dealt with the right of telecast holding:-

"In a team event such as cricket, football, hockey etc., there is both
individual and collective expression. It may be true that what is
protected by Article 19(l)(a) is an expression of thought and feeling
'and not of the physical or intellectual prowess or skill. It is also true
B that a person desiring to telecast sports events when he is not himself
a participant in the game, does not seek to exercise his right of self-
expression. However, the right to freedom of speech and expression r.
also includes the right to educate, to inform and to entertain and also
the right to be educated, informed and entertained. The former is the
c right of the telecaster and the latter that of the vi~wers. The right to
telecast sporting event will therefore also include the right to educate
and inform the present and the prospective sportsmen interested in
the particular game and also to inform and entertain the lovers of the
game. Hence, when a telecaster desires to telecast a sporting event,
it is incorrect to say that the free-speech element is absent from his
D right."

In Dinesh Trivedi (supra), this Court held:

"18. The case of S.P. Gupta v. Union of India, (1981] Supp SCC 87,
decided by a seven-Judge Constitution Bench of this Court, is generall.'f.
E

..
considered as having broken new ground and having added a fresh,
liberal dimension to the need for increased disclosure in matters relating
to public affairs, In that case, the consensus that emerged amongst
the Judges was that in regard to the functioning of Government,
disclosure of information must be the ordinary rule while secrecy
F must be an exception, justifiable only when it is demanded by the
requirement of public interest. The Court held that the disclosure of
documents relating to the affairs of State involves two competing
dimensions of public interest, namely, the right of the citizen to obtain
disclosure of information, which competes with the right of the State
to protect the information relating to its crucial affairs. It was further
G held 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
H
PEPOl.E"S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 257
,-t concerning the nationar safety, documents which affect diplomatic A
relations or relate to some State secrets of the .highest importance,
and the like in respect of whkh the Comt 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 B
and 74 at pp. 284-286)
,<' I
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
c
of a free society. Sunlight is the best disinfectant. But it is equally
important to be alive to the dangers that lie ahead. It is important to
realise that undue popular pressure brought to bear on decision-makers
in Goverpment can have frightening side-effects. If every action taken
by the political or executive functionary is transforn1ed into a public D
controversy and made subject to an enquiry to soothe popular
sentiments, it will undoubtedly have a chilling effect on the
)"'
independence of the decision-maker who may find it safer not to take
any decision. It will paralyse the entire system and bring it to grinding
halt. So we have two conflicting situations almost enigmatic and we
E
think the answer is to maintain a fine balance which would serve
public interest."
.A

The aforementioned decisions came up for consideration before this
Court in Association for Democratic Reforn1s and Another (supra)
wherein the question which arose for consideration was as to the F
... _,,__ candidates contesting election to Parliament and to the State
Legislatures and the parties they represent
~
"l. Whether the candidate is aLcuscd of any offence(s) punishable
with imprisonment? If so, the details th·ereof.
G
2. Assets possessed by a candidate, his or her spouse and dependant
relations?
~"I
3. Facts giving insight to candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including details
of his/her educational qualifications; H
258 SUPREME COURT REPORTS [2004] I S.C.R.

A 4. Information which the election commission considers necessary
for judging the capacity and capability of the political party fielding
the candidate for election to Parliament or the State Legislature."

The Court opined that having regard to the right of information obtaining
in Article 19(l)(a) of Constitution of India, the election petitioner can ask for
B such directions.

It was held that the right to get information in a democracy is recognized r.
all throughout and it is a natural right flowing from the concept of democracy.
A reference to Articles 19 (I) and (2) of the International Convention on
Civil and Political Rights can be made in this regard. Moreover Article 19 (l)
c (a) of the Indian Constitution provides for freedom of speech and expression.
Voters' speech or expression in the case of election would include casting of
votes, that is to say, that the voter speaks out or expresses by casting a voce.
For this purpose, information about the candidate to be selected is a must.
(See Paras 46 (5), 7 and 23).
D
Un like 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:
""
E "Nothing in sub-clause (a) of clause (l) 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
F
contempt of coun, defamation or incitement to an offence." ,,__
A

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
G information relating to the following matters:
(i) International relations;

(ii) National Security (including defence) and public safety;
,.,....

(iii) Investigation, detection and prevention of crime;
I-I
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 259
(iv) Internal deliberations of the government; A
(v) Information received in confidence from a source outside the
government;

(vi) Information, which, if disclosed, would violate the privacy of
individual; B
(vii) Information of an economic nature, (including Trade Secrets)
which, if disclosed, would confer an unfair advance on some
person or concern, or, subject some person or government to an
unfair disadvantage;

(viii)lnfonnation which is subject to a claim of legal professional
c
privilege, e.g., communication between a legal adviser and the
client; between a physician and the patient;

(ix) Information about scientific discoveries.

The Atomic Energy Act is not an antiquated statute. There exists a
D
relationship between the right to know and freedom of speech. "Right to
/ speech and publish does not carry with it an unrestricted right to gather
information". (See Zenul v. Rusk, 14 L.Ed. 2d I 79 at 190)

The U.S. Supreme Court in Kleindienst v. Manda/, 33 Law. Ed. 2d 683 E
held that the First Amendment guarantees no independent and enforceable
right against the government's bona fide exercise of discretion in the exclusion
of aliens.

Both in Raj Narain (supra) and S.P. Gupta (supra) this Court was silent
on the relationship between the restrictions which should be placed on the F
right to know and the restrictions existing under Article 19(1)(a) of the
Constitution.

In United States v. Richardson, 41 L. Ed. 2d 678, the respondent, a
taxpayer sought to obtain from the government infonnation concerning detailed G
expenditure of the Central Intelligence Agency but the same was denied on
the ground of 'lack of standing'.

A reasonable restriction on the exercise of the right is always permissible
in the interest of the security of the State.
H
260 SUPREME COURT REPORTS (2004] 1 S.C.R.

A It has llot been contended nor could it be contended that the operation -ti
and functioning of a nuclear plant is not sensitive in nature. Any information ~-

relating to the training features processes or technology cannot be disclosed
as it may be vulnerable to sabotage. As rightly pointed out by the learned
Attorney General, knowledge of specific data may enable the enemies of the
nation to estimate and monitor strategic activities. As fissile materials are
B used in fuels although the nuclear plants are engaged in commercial activities,
the contents of the fuel discharged or any other details must be held to be
T.
matters of sensitive character.

Before the High Court, as noticed hereinbefore, several affidavits have
c 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.
D
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
E 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 matters unless it is found that formation of belief by the statutory authority
suffers from mala fide, dishonesty or corrupt practice. The order can be set
-
F aside if it is held to be beyond the limits for which the power has been
conferred upon the authorities by the Legislature or is based on the grounds ,...
extraneous to the legislation and if there are no grounds at all for passing it
or if the grounds are such that no one can reasonably arrive at the opinion
or satisfaction required thereunder. No such case has been made out by the
appellant.
G
CRITERIA FOR DETERMINING THE QUESTION OF PRIVILEGE:

Sections 123 and 162 of the Evidence Act read as follows: )''
"123. EVIDENCE AS TO AFFAIRS OF STATE.
H
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 261

No one shall be permitted to give any evidence derived from A
unpublished official records relating to any affairs of State, except
with the. permission of the officer at the head of the department
concerned, who shall give or withhold such permission as he thinks
fit.

162. PRODUCTION OF DOCUMENTS. B
Ji. witness summoned to produce a document shall, if it is in his
possession or power, bring it to Cou11, 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.
c
The Court, if it sees, fit, may inspect the document, unless it refers
to matters of State, or take other evidence to enable it to determine
on its admissibility.

Translation of documents.-If for such a purpose 1t 1s necessary to
cause any document to be translated, the Court may, if it thinks fit, D
direct the translator to keep the contents secret, unless the document
is to be given in evidence : and, if the interpreter disobeys such
direction, he shall be held to have committed an offence under section
166 of the mdian Penal Code, (45 of 1860)."
E
The legislative policy behind the aforementioned provisions is no longer
res integra. The State must have the prerogative of preventing evidence
being given on matters that would be contrary to public interest.

For determining a question when a claim of privilege is made, the
Court is required to pose the following questions: F
(I) Whether the document in respect of which privilege is claimed,
is really a document (unpublished) relating to any affairs of State?;
and

(2) Whether disclosure of the contents of the document would be G
against public interest?

When 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 H
262 SUPREME COURT REPORTS [200.+] I S.C.R.

A 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
B 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
C 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
must be against interest of the State or public interest.

D In Raj Narain (supra), the question was as to whether a Blue Book,
being rules and instructions for the protection of the Prime Minister when on
tour or in travel, providing for mode and manner in which the security is to
be provided to rhe Prime Minister is beyond the purview of Section 123 of
the Indian Evidence Act or not. The High Court held that no privilege can
be claimed in relation thereto.
E
Ray, CJ. referring to a large number of decisions opined that even in
an election petition privilege can be claimed. It was, however, held:

"The several decisions to which reference has already been made
establish that the foundation of the law behind Sections 123 and 162
F of the Evidence Act is the same as in English law. lt is that injury to
public interest is the reason for the exclusion from disclosure of
documents whose contents if disclosed would injure public and national
interest. Public interest which demands that evidence be withheld is
to be wc,ighed against the public interest in the administration of
G justice that cou11s should have the fullest possible access to all relevant
materials. When public interest outweighs the latter, the evidence
cannot be admitted. The Court will proprio motu exclude evidence
the production of which is contrary to public interest. It is in public
interest that confidentiality shall be safeguarded. The reason is that
such documents become subject to privilege by reason of their contents.
H
PEPOLE'S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA, J.] 263

Confidentiality is not a head of privilege. It is consideration to .bear A
in mind. It is not that the contents contain material which it would be
damaging to the national interest to divulge but rather that the
documents would be of class which demand protection."

Mathew, J., however, in his concurring opinion opined that the question
of national importance vis-a-vis administration of justice should be the criteria B
for determining the claim of privilege stating:

" ... But the Executive is not the organ solely responsible for public
interest. It represents only an important element in it; but there are
other elements. One such element is the administration of justice. The C
claim of the Executive to have exclusive and conclusive power to
determine what is in public interest is a claim based on the assumption
that the Executive alone knows what is best for the 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 D
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 ·E
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.-"
F

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:
G
"In other words, if injury to public interest is the foundation of this
immunity from disclosure, when once the court has inquired into the
question and found that the disclosure of the document will injure
public interest and therefore it is a document relating to affairs of
State, it would in most cases be a futile exercise for the head of the
department to consider and decide whether its disclosure should be H
264 SUPREME COURT REPORTS [2004) I S.C.R.

A permitted as he would be making an enquiry into the identical
question."

Bhagwati, J. (as the learned Chief Justice then was) observed:

"The basic question to which the court would therefore have to address
B itself for the purpose of deciding the validity of the objection would
be whether the document relates to affairs of State or in other words,
it is of such a character that its disclosure would be against the interest -r·.
of the State or the public service and if so, whether the public interest
in its non-disclosure is so strong that it must prevail over the public
interest in the administration of justice and on that account, it should
c not be allowed to be disclosed. The final decision in regard to the
validity of an objection against disclosure raised under Section 123
would always be with the court by reason of Section 162."

Analysing 1he provisions of Sections 123 and 162 of the Indian Evidence
D Act, it was opined:

"The court has thus to perform a balancing exercise and after weighing
the one competing aspect of public interest against the other, decide where ......
the balance lies. If the court comes to the conclusion that, on the balance, the
disclosure of the document would cause greater injury to public interest than
E its non-disclosure, the court would uphold the objection and not allow the
document to be disclosed but if, on the other hand, the court finds that the
balance between competing public interests lies the other way, the court
would order the disclosure of the document. This balancing between two
competing aspects of public interest has to be performed by the court even
where an objection to the disclosure of the document is taken on the ground
F
!hat it belongs to a class of documents which are protected irrespective of
+
their contents, because there is no absolute immunity for documents belonging
to such class."

CONCLUSION :
G
Keeping in view the purport and object for which the disclosure of the
Report of the Board has been withheld, we are of the opinion that it is not
a fit case where this Court should exercise its discretionary jurisdiction under y I
Article 136 of the Constitution of India. We ·may record that the learned
Attorney General had made an offer to place the Report before us in a sealed
H cover. We do not think that in this case, perusal of the report by the Court
PEPOLE"S UNION FOR CIVIL LIBERTIES v. U.0.1. [SINHA. J.] 265

is necessary. We are also satisfied that the order issued by the Central A
Government under Section 18 of the Act and its claim of privilege do not
suffer from any legal infirmity warranting interference with the High Court
judgment by us.

For the reasons aforementioned, there is no merit in these appeals which
are accordingly dismissed. No costs. B
v.s.s. Appeals dismissed.