Various High Courts transferred to the Supreme Court writs “of great constitutional importance affecting the independence of the judiciary,” concerning, generally, the appointment of judges (paras. 1-11).
The relevant portion of this case concerns the disclosure of certain correspondence between the Law Minister, Chief Justice of Delhi and Chief Justice of India, and the relevant notes made by them in regard to the non-appointment of a judge for a further term and the transfer of a High Court Judge. Petitioners, and one of the judges in question, sought the disclosure of these documents (para. 55).
The government argued that the documents were privileged from disclosure on two grounds: first, as advice from the Council of Ministers to the President, relying on Article 74(2) of the Constitution, which reads “The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court.” (para. 58); and second, on the ground that their disclosure would “injure public interest, ” according to Section 123 of the Indian Evidence Act (para. 55). Section 123 reads: “No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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” (para. 67). The Court cited Section 162 as necessary for the interpretation of Secion 123: “A witness summoned to produce a document shall, if it is in his possession or power, bring it to 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” (para. 67).
The Court identified the issue as “an extremely important  question in the area of public law particularly in the context of the open society” as it “involved a clash between two competing aspects of public interest”—public access to documents and the need for protection of certain confidential documents (para. 57).
First, the Court rejected the government’s assertion that the documents were protected from disclosure on the grounds that they were advice from the Council of Ministers to the President (para. 60).The Court recognized that it does not have the constitutional authority to inquire into the justifications for decisions of the Council of Ministers (para. 58). However, in this case the advice that the Council of Ministers ultimately tendered to the President was formed after consultation with the Chief Justice of the High Court and the Chief Justice of India (para. 60). The Court opined that the fact that the opinions of the Chief Justice of the High Court and the Chief Justice of India ultimately contributed to the Council of Ministers’ advice, does not actually render them part of the advice that is protected from disclosure by section 74(2) (para. 60).
Second, the Court addressed why the information in question cannot be protected from disclosure based on section 123. Based on the language of section 162, the Court indicated that when the admissibility of a document is contested, the Court may inspect the document, take other evidence into account, and determine its admissibility (para. 67). In a prior case, State of Punjab v. Sodhi Sukhdev Singh, the Court identified that the principle behind the section 123 exclusionary rule is public interest, and asserted that this must thus be addressed (para. 67). The Court indicated that when there is an objection to disclosure, the Court must consider whether the document related to the affairs of state, and whether its disclosure would be injurious to the public interest. The injury that should be avoided is a potential disruption of the proper functioning of the government as a result of disclosure. The Court opined that the Chief Justice of a High Court and the Chief Justice of India would not have been deterred from performing their constitutional duty of expressing their views had they been aware that these views might be disclosed to the public. Thus, there is no public interest justification for non-disclosure (paras. 80-81).
The Court recognized that a democratic society cannot keep the activities of the government hidden from the public in order to avoid accountability and criticism. Recognizing a “right to know which seems implicit in the right of free speech and expression,” para.66, the Court reasoned that: “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy” (para. 63).
The Court also defined open government deriving from the right to know implicit in free speech and expression rights guaranteed under Article 19(1)(a) of the Constitution (para. 66).
The Court identified a presumption of disclosure: “[D]isclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistent with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest" (para. 66).
Judgment of the Court