Government of Bangladesh Vs. Md. Shamsul Huda and others, 60 DLR (AD) (2008) 108

Case No: Civil Appeal No. 50 of 2004

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. M. Amir-Ul Islam,Mr. M. A. Azim Khair ,,

Citation: 60 DLR (AD) (2008) 108

Case Year: 2008

Appellant: Government of Bangladesh

Respondent: Md. Shamsul Huda

Subject: Constitutional Law,

Delivery Date: 2008-02-18

Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin CJ
Md. Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
 
Government of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs
.........................Appellant
Vs.
Md. Shamsul Huda and others
……................Respondents
 
Judgment
March 18, 2008.
 
The Evidence Act, 1872
Sections 123 and 162
Since the Government objects to disclosure of the papers containing the opinion of the Chief Justice on the ground that it is privileged and of possible injury to public interest, the High Court Division is to-
(a) ascertain whether the papers are necessary  for proper adjudication of the issues involved in the writ petition;
(b) if it decides in the affirmative, decide the question of possible injury to public interest which may result from the disclosure of such document;
(c) then call for the opinion of the Chief Justice so far as it relates to the writ petitioners…………………(37)
 
When a party to a proceeding claims that certain documents are privileged and immune from scrutiny by the Court, the Court must give decision on the point. Only if the Court decides in the negative, then it may call for the documents. The Court must decide whether the documents are called for its inspection or for disclosure to the public. If it is called for inspection only, the Court shall ensure adequate safeguard against disclosure…………(39) 
 
Cases Referred To-
SP Gupta vs. President of India AIR 1982 (SC) 149; K Jain vs. Union of India AIR 1993 (SC) 1769; SR Bommai vs. Union of India AIR 1994 (SC) 1918; New York Times Company vs. United States 403 US 713 (1971); Nixon vs. United States 418 US 683 (1974); State of Punjab vs. SS Singh AIR 1961 (SC) 493.
 
Lawyers Involved:
MA Azim Khair, Deputy Attorney-General, instructed by Md. Ferozur Rahman, Advocate-on-Record—For the Appellant.
Amirul Islam, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record—For the Respondents.
 
Civil Appeal No. 50 of 2004.
(From the order dated 27-5-2003 passed by the High Court Division in Writ Petition No.2975 of 2003).
 
JUDGMENT
 
Md. Abdul Matin J.
 
1. This appeal is directed against the order dated 27-5-2003 passed by the High Court Division in Writ Petition No. 2975 of 2003 directing the Secretary, Ministry of Law, Justice and Parliamentary Affairs to produce the rele­vant papers containing the opinion of the learned Chief Justice of Bangladesh about the appointment of concerned six Judges through the Attorney-General at the time of hearing and further directing that all other Rules being Writ Petition Nos. 1543 of d 2003, 2975 of 2003 and 3217 of 2003 should come up in the list for hearing on 16-6-2003.
 
2.The facts, in short, are that the respondents filed the present writ petition impugning the non-appointment of the respondents as Judges of the High Court Division of the Supreme Court of Bangladesh who functioned as Additional Judges of the, High Court Division for 2 years from 22nd February 2001 to 21st February 2003 whereupon Rule was issued calling upon the writ respondent to show cause as to why the non-appointment of aforesaid Additional Judges as permanent Judges should not be declared to have been made without lawful authority and why the writ-respondent should not be directed to appoint the writ-petitioners as the perma­nent Judges of the High Court Division with effect from 22nd February 2003.
 
3. The facts detailed in the petition, inter alia, are that 9 Additional Judges of the High Court Divi­sion were sworn in on 22nd February 2001 upon their appointment as such considering their perfor­mances. Out of said 9 such appointees only two were appointed as the judges of the High Court Division excluding the writ petitioners and others on 21-2-2003. Some learned Advocates including the president of the Bar and others met the learned Chief Justice and expressed concern of the members of the Bar and in course of discussion the learned Chief Justice stated that he had recommended for appointment of all the above mentioned Additional Judges as the Judges of the High Court Division. The Chief Justice as well on 21-2-2003 disclosed to two of the writ-petitioners about the said recom­mendation in their meeting with the Chief Justice and on 23rd February 2003 the fact of recommen­dation by the Chief Justice appeared in the news­paper that they having been found to be fit for appointment as Judges were accordingly recom­mended. But the President did not appoint them without giving or communicating any reason there­of, in manifest disregard of the recommendation of the Chief Justice which is beyond the constitutional framework and, as such, the non-appointment of the writ-petitioners have been done without any lawful authority and the writ-respondents should be directed to appoint the writ-petitioners to be the Judges of the High Court Division with effect from 22nd February 2003.
 
4. The Rule as aforesaid was issued calling upon the writ-respondents to show cause as to why the non-appointment of Mr. Faruque Ahmed, Mr. Md. Shamsul Huda and Mr. Hasan Foez  Siddique, Additional Judges as Judges of the High Court Division shall not be declared to have been done illegally and without legal authority and to be of no legal effect and why the respondents should not be directed to appoint the   above  named   three Additional Judges to be Judges of the High Court Division in accordance with the recommendation, if any, of the Chief Justice of Bangladesh and/or such other or further order of orders as to that Court may seem fit and proper and also why the respondents shall not be called upon to show cause as to why those portions of the Rules of Business, 1996 which purport to regulate matters relating to the appoint­ment of Additional Judges and Judges of the Sup­reme Court of Bangladesh by the executive organs of the State shall not be declared repugnant to the Constitution, ultra vires and unconstitutional and/or such other or further order or orders as to that Court may seem fit and proper.
 
5. The writ-petitioner-respondents thereafter filed an application for direction to the Secretary, Ministry of Law, Justice and Parliamentary Affairs and the Registrar of the Supreme Court to produce the papers relating to recommendation of the learn­ed Chief Justice and papers relating to summary in connection with the appointment of Mr. Md. Abdul Hye, Mr. Faruque Ahmed, Mr. Md. Marzi-ul-Haque, Mr. Md. Shamsul Huda, Mr. Abdur Razzaque, Mr. Syed Mahmud Hossain, Mr. Md. Iman Ali and Mr. Hasan Foez Siddique under Article 95 of the Consti­tution.  The application was allowed on 27th May, 2003 directing the respondents to produce the rele­vant papers containing the opinion of the Chief Justice at the time of hearing through the Attorney-General.
 
6. At the hearing of the leave petition the learned Attorney-General for Bangladesh submitted with reference to clause (3) of Article 48 of the Cons­titution that under the Constitutional scheme the appointment of a Judge of the Supreme Court lay in the exclusive domain of the President through a process of the Prime Minister, the said recommendation or the opinion of the Chief Justice being a part of the process undergone is protected under the proviso to Article 48(3) of the Constitution and the said advice thereunder is immune from enquiry by any Court.
 
7. Mr. Attorney-General further submitted with reference to the relevant provision of Article 37 of 1956 Constitution of the Islamic Republic of Pakistan and Article 74(2) of the Constitution of India that the amended Article 48(3) of the Bangla­desh Constitution is to be preserved, protected and safeguarded and such mechanism cannot be disturbed.
 
8. Leave was granted to consider the submissions by order dated 17th of June 2003.
 
9. We have heard Mr. MA Azim Khair, learned Deputy Attorney-General appearing for the appellant and Mr. M Amirul Islam, learned Counsel appearing for the respondent and perused the petition and the impugned order of the High Court Division and other papers on record.
 
10. The   learned  Deputy  Attorney-General submits that the appointment of a judge of the Sup­reme Court under Article 95 of the Constitution being made by the President on the advice of the Prime Minister, the question whether the recommen­dation of the Chief Justice for such appointment is at all necessary is the primary question required for determination and the question of looking into the actual recommendation made is dependent on such determination, thus the High Court Division erred in directing the respondent to produce the recommen­dation of the Chief Justice before final determina­tion of the main question.
 
11.  He further submits that as per the relevant clause (3) of Article 48 of the Constitution under the Constitutional scheme the appointment of a Judge of the Supreme Court lay in the exclusive domain of the President through a process of the advice of the Prime Minister, the said recommendation of the opinion of Chief Justice being a part of the process undergone is protected under the proviso to Article 48(3) of the Constitution and the said advice thereunder is immune from enquiry by any Court.
 
12. He submits by referring to the relevant provisions of Article 37 of the 1956 Constitution of the Islamic Republic of Pakistan and Article 74(2) of the Constitution of India that the amended Article 48(3) of the Bangladesh Constitution is to be preser­ved, protected and safeguarded and such mecha­nism cannot be disturbed.
 
13. The learned Deputy Attorney-General submits that the High Court Division in the face of claim of privilege was bound to hold a preliminary enquiry and determine the validity of the objections to the production of the document in question and such an enquiry involves an enquiry into the ques­tion as to whether the document relates to an affair of State under section 123 of the Evidence Act.
 
14.  He submits that the High Court Division ought to have considered sections 123 and 162 of the Evidence Act together and held that it is beyond the scope of the enquiry of the High Court Division or any Court to inquire into the possible injury to public interest which may result from the disclosure of the document in respect of which privilege is claimed under section 123 of the Evidence Act and such a matter is for the authority concerned to decide.
 
15. He submits that even if it is conceded that Article 48(3) of our Constitution does not bar the Court from calling upon the appellant to disclose to the court the materials upon which the President had formed its requisite satisfaction even the appellants are entitled to privilege under section 123 of the Evidence Act and when such a privilege is claimed it must be decided on its own merit in accordance with the provision of section 123 independent of Article 48(3) of the Constitution.
 
16. In support of his contention, the learned Deputy Attorney-General relied upon the cases of SP Gupta vs President of India reported in AIR 1982 (SC) 149, State of Punjab vs SS Singh reported in AIR 1961 (SC) 493, RK Jain vs Union of India reported in AIR 1993 (SC) 1769 and SR Bommai vs Union of India reported in AIR 1994 (SC) 1918.
 
17. On the other hand, Mr. Amir-ul Islam, the learned Counsel appearing for the respondents, it submits that the communication of the Chief Justice with the President is not a privileged communication and not protected under Article 48 clause (3) of  the Constitution and moreso, the High Court Division passed the above direction to produce the relevant papers, containing opinion of the Chief Justice regarding the aforesaid  six Additional Judges of the High Court Division not for adjudi­cation or to make it open to public, rather the same was called for, for its satisfaction, proper adjudi­cation and also for ends of justice.
 
18. He further submits that though the Court cannot compel the Government to produce the advice tendered by the Prime Minster to the Presi­dent or the reasons thereof, there is nothing to pre­vent the Court to compel production of the materials upon which the advice or its reasoning was based, because the materials cannot be said to be a part of the advice.
 
19.  He submits that the bar of judicial review is confined to the factum of advice but not the rea­sons i.e. the materials on which the advice is found­ed. Therefore, the recommendation or opinion of the Chief Justice sent to the President on the basis of which the Prime Minister might have tendered her advice to the President is not protected under Article 48(3) of the Constitution.
 
20. He further submits that Article 48(3) does not bar the Court from calling upon the appellants to disclose to the Court the materials upon which the President has formed the requisite satisfaction.
 
21. In support of his contention the learned Counsel has referred to the case of SP Gupta vs. President of India reported in AIR 1982 (SC) 149 and the case of SR Bommai vs. Union of India reported in AIR 1994 (SC) 1918.
 
22.  The learned Counsel further submits that right to information is a cherished right in a democratic dispensation and it cannot be withheld what­ever be the source for due dispensation of justice. In support of his contention he has referred to the case of New York Times Company vs. United States 403 US 713 (1971). 
                         
23. He further submits that the privilege to withhold evidence i.e. relevant for the dispensation of justice would cut deeply into the guarantee to pi due process of law and gravely impair the basic function of the Court.
 
24. He submits that there may be a generalised interest in confidentiality of the document in question but it cannot prevail over the fundamental demands of the due process of law in the fair administration of justice. The generalised assertion of privilege must yield to the demonstrated specific need for evidence in a pending writ petition.
 
25. In support of his contention he has referred to the case of Nixon vs. United States 418 US 683(1974).
 
26. In such a contentious matter raising issues of great Constitutional importance affecting the independence of judiciary and interpretation of Article 48(3) of the Constitution, sections 123, 124 and 162 of the Evidence Act, the learned Judges of the High Court Division appear to have merely set out their ipse dixit without any reason whatsoever.
 
27.  In the face of the privilege claimed by the State through the Attorney-General the High Court Division simply held—
 
"So, we are of the view that the opinion of the Chief Justice should be before us at the time of hearing and, as such, the Secretary, Ministry of Law, Justice and Parliamentary Affairs is directed to produce the relevant papers con­taining the opinion of the Chief Justice about the appointment of the six Judges, namely, 1. Mr. Justice Md. Abdul Hye, 2 Mr. Justice Faruque Ahmed, 3 Mr. Justice Md Marziul Haque, 4 Mr. Justice Md. Shamsul Huda, 5 Mr. Justice Abdur Razzaque and 6 Mr. Justice Hasan Foyez Siddique."

It is pertinent to mention here that out of the six Judges only Mr. Md Shamsul Huda, Mr. Faruque Ahmed and Mr. Hasan Foyez Siddique are the peti­tioners in Writ Petition No. 2975 of 2003 and other Judges did not seek for any relief before the Court.
 
28.  In this connection, it is pertinent to men­tion that if the other three Judges do not come to the Court to claim that they should be appointed as permanent Judges of the High Court Division how the High Court Division can be called upon to examine their cases for the purpose of determining whether they were wrongly discontinued as Addi­tional Judges. At least it should have been apparent that they were claiming such relief. Can it be thrust upon them unless they claim it?
 
29. In this connection, it is apposite to quote the relevant portion from the judgment of the Indian Supreme Court in SP Gupta's case which runs as under:
 
"56. So far as O. N. Vohra is concerned, it is apparent that though he was joined as a party respondent to the writ petition filed by VM Tarkunde, he did not choose to appear and take part in the proceedings. He did not even file an appearance, presumably because he was not interested in wrestling back the office of an Additional Judge through a judicial writ. He adopted a commendable attitude consistent with the dignity of the high office which he had the privilege to hold for over two years and scorned to be a party to any litigate adventure for getting back the office of a High Court Judge. He took the view that the office of a High Court Judge is no mean office for which one may canvass, lobby or fight but it is a high position which can only be offered and which one should regard as an honour to be invited to fill and if for any reason, justifiable or not, the Government choose not to offer it to the deserving person, it may result in detriment to public interest for which the Government may have to account to the people through their elected representatives. But the person con­cerned should not litigate his claim to this high office. That would lower the dignity of the office by making it the subject matter of litigate controversy. It was presumably for this reason that O. N. Vohra did not appear in the writ peti­tion or seek any relief from the Court in regard to his continuance as an Additional Judge. In fact, we are told, O. N. Vohra has already started practice in the Delhi High Court. Now, if O. N. Vohra has not come forward to seek any relief from the Court and is not claiming that he should be deemed to have been appointed a per­manent Judge or that he should be reappointed as an Additional Judge for a further term, it is difficult to see how the Court can be called upon to examine his case for the purpose of determining whether he was wrongly discon­tinued as an Additional Judge. We have taken a broad and liberal view in regard to locus standi and held that any public spirited Advocate acting bonafide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging an unconstitutional or illegal action of the Govern­ment or any other constitutional authority prejudicially affecting the administration of justice and, in such writ petition, he may claim relief not for himself personally but for those who are the direct victims of such unconsti­tutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. But the persons for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it. If, in the present case, O. N. Vohra does not seek to go back as an Additional Judge through judicial intervention, the petitioners cannot contend that he must still be continued as an Additional Judge irrespective of his inclination. The relief sought by the petitioners being primarily for the benefit of O. N. Vohra, it is for O. N. Vohra to decide whether he would have it and if he does not want it, it would be a fruitless exercise for the Court to determine whether the decision not to appoint him as an Additional Judge was unconstitutional and he should have been appointed as an Additional Judge for a further term. The Court does not decide issues in the abstract. It undertakes determination of a con­troversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a parti­cular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry, a knight errant roaming at will with a view to destroying evil wherever it is found. It was for this reason that we held that the correspondence exchanged between die Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to non-appoint­ment of O. N. Vohra was not relevant to the issues arising for determination in the writ petition and the Union of India could not be required to disclose it."
 
30. It does not appear that the High Court Divi­sion applied its mind as to what papers are actually necessary for the purpose and concerning whom.
 
31.  In the facts and circumstances of the case, the High Court Division should have held an en­quiry and determined the validity of the objections raised by the learned Attorney-General against the producing of the papers in question, inquiring into the questions as to whether the papers relate to an affair of the State under section 123 of the Evidence Act and then to decide the question if it is permis­sible to inquire about injury to public interest in the event of disclosure of the papers in the light of sec­tion 123 read with section 162 of the Evidence Act.
 
32. In the case of State of Punjab vs. SS Singh AIR 1961 (SC) 493 the question arose, whether the report of the Public Service Commission and the resolution of the Council of Ministers were privi­leged documents and those were held to be privi­leged documents and protection was given under section 123 of the Evidence Act read with section 162 of the Evidence Act.
 
The relevant portion of the judgment runs as under:
 
"25. Thus our conclusion is that reading sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed, is bound to hold a preliminary enquiry and deter­mine the validity of the objections to its pro­duction, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under section 123 or not."
 
It appears that the High Court Division has not considered to ascertain whether there was any material in the form of opinion of the Chief Justice recorded in writing available to be called for. The High Court Division has not ascertained whether the papers containing the opinion of the Chief Justice was a material on the basis of which advice was given by the Prime Minister to the President. The High Court Division has not considered whether the opinion of the Chief Justice was relevant for the purpose of advice.
 
33. It appears that in the case of SP Gupta, AIR 1982 (SC) Justice Bhagwati, J speaking for the majority, did not follow the conclusion of the judg­ment delivered in the case of State of Punjab vs. SS Singh but on a close reading of the case of RK Jain vs. Union of India and SR Bommai vs. Union of India as mentioned earlier, it is apparent that the judgment of AIR 1961 (SC) 493 is still holding the field, inasmuch as in Bommai Case Ahmadi, J held :
 
"Of course, the privilege available under the Evidence Act, sections 123 and 124, would stand on a different footing and can be claimed dehors Article 74(2) of the Constitution" and majority view summarised in para 365(6) of the same judgment runs as under :
 
"Article 74(2) and section 123 of the Evi­dence Act cover different fields. It may happen that while defending the proclamation, the minister or the concerned official may claim the privilege under section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of section 123."
 
Even in SP Gupta's case, Justice Bhagwati, J had to conclude as under:

 
"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."
 
34. This Division does not hear original mat­ters under Article 103 of the Constitution. It hears appeals and only on matters of reference by the Pre­sident may give opinion with regard to question of law which is of public importance under Article 106 of the Constitution. When a matter is still pending before the High Court Division it is not prudent for this Division to give final decision on matters not decided by the High Court Division under Article 102 of the Constitution.
 
35.  In this case, the writ petition is still pend­ing before the High Court Division. The hearing has not commenced. It was fixed on 16th of June 2003, but before the commencement of the hearing on an application by the respondent and even before the filing of the-affidavit-in-opposition by the appellant the order was passed asking for the papers. Since the writ petition is still pending where great issues of Constitutional interpretations are awaited, it is not desirable to give any decision on the interpretation of Article 48(3), sections 123 and 162 of the Evi­dence Act and other important issues raised before us. While hearing this appeal against an inter­locutory order any opinion or interpretation may prejudice the parties in the writ petition. Therefore, we have refrained from giving our interpretation as to the extent of the privilege that can be claimed under Article 48(3) of the Constitution or section 123 or 162 of the Evidence Act. Since the impugned order was passed without holding any preliminary enquiry under section 123 of the Evidence Act read with section 162 of the Evidence Act and without any application of mind, the order is set aside and the High Court Division is directed to dispose of the application for calling for the papers and the privilege sought by the Attorney-General as per law and in the light of following guidelines:
 
36. The High Court Division shall hold a pre­liminary enquiry and determine the validity of the objections raised by the Attorney-General to the production of the paper containing opinion or recommendation of the Chief Justice and to hold enquiry into questions as to whether the papers relate to an affair of the State under section 123 or not. The High Court Division may require the appellants who are respondents in the writ petition to file affidavit-in-opposition pinpointing whether any such opinion or recommendation of the Chief Justice in writing is available and, if so, under which grounds the appellants are seeking for the privilege.
 
37. The High Court Division is further directed to ascertain whether the papers in questions are rele­vant on the basis of which the Prime Minister advised the President and to ascertain whether such advice was relevant for the appointment. The High Court Division is further directed to ascertain whether the papers are necessary for the proper adju­dication of the issues involved in the Writ Petition.
 
The High Court Division is to ascertain whe­ther it can hold an enquiry into the possible injury to public interest which may result from disclosure of the document in question of which privilege has been claimed and if it decides in the affirmative, then to decide the question of possible injury to public interest which may result from the disclosure and lastly, the High Court Division is to decide what papers and relating to whom are to be called for and then to limit the enquiry as to the opinion of the Chief Justice only so far as it relates to the persons who are really seeking relief before the Court.
 
38. In all cases whenever a privilege is sought on the ground of immunity under law, the objection must be inquired into and if the Court decides that there is no immunity available then only may call for the documents, but in so calling the Court must decide whether it is calling for inspection of the Court or for disclosure to the public and if it is called for inspection only, it shall ensure adequate safeguard against disclosure.
 
39. This matter relates to the claim and counter-claim of privilege under the Constitution and the law and we have abstained from giving our interpretation as the writ petition is pending before the High Court Division and, we have dealt with the matter with much trepidation but any observation or reference even if made may not prejudice the parties and the High Court Division shall be at liberty to give their own interpretation and decide all matters treating that no interpretation as to provisions in Article 48(3) sections 123 and 162 of the Evidence Act has at all been given on the question of immunity.
 
With the above directions and guidelines, the appeal is allowed and the order of the High Court Division appealed against is set aside.
 
Ed.