Government Priviliges In Evidences Section 123-124, 162 Indian Evidence Act, ...

[Cites 38, Cited by 0]

Law Commission Report

Government Priviliges In Evidences Section 123-124, 162 Indian Evidence Act, ...

 

LAW COMNIISSION OF INDIA

EIGHTY - EIGHTH REPORT

ON

GOVERNMENTAL PRIVILEGE IN
EVIDENCE: SECTIONS 123-124 AND 162,
INDIAN EVIDENCE ACT, 1872 AND
ARTICLES 74 AND 163 OF THE
CONSTITUTION

7"' January 1933



D. 0. No. F. 2(4)/82--L. C. ' _ January 10, 1983,

My dear Minister,

I send herewith the Eighty-eighth Report of the Law Commission on.

Government Privilege from production of certain documents and disclosurg
of certain communications before the courts.

The subject was taken up for consideration at the request of the Government

_ of India arising out of a communication from the learned Attorney General of

India to consider the implications of a recent judgment of the Supreme Court
in what is popularly known as Judges' Transfer Case.

The Commission wished to express its appreciation to Mr. P. M. Bakshi
Part-time Member of the Commission for the preparation of the"'Report. We
also acknowledge with thanks the help given by Mr. V. V. Vaze, ex-Member.

Secretary.

With regards,

Yours sincerely,
Sd /-
(K. K. MATHEW)

Shri Jagannath Kaushal,
Minister of Law, Justice &
Company Aﬂ'airs,

Shastri Bhavan,

New Delhi-1.

(ii)

1.-.450 LAD/ND/83



iconmmrs t'as¢

CHAPTER 1 . . . Introductory. ' 1
CHAPTER. 2 . . . Present Law. 5
CHAPTER »3 . . . The general ambit of the privilege : "Affairs of State". 8
CHAi"IEl!.  . . . The authority who can claim the privilege. l 10
Cl-TIAPTER 5 . . . The authority which decides the question of privilege. 11
CHAPTER 6 . . . The materials for claiming and deciding the privilege. 13

CHAPTER. 7 . . . The machinery for determination of the privilege as claimed. 15

Cmwren 8 . . . The procedural codes. ' 18
0

CHAPTER. 9 . . . Constitutional provisions. ' 20

CHAPTER 10 . . . Brief comparative survey. _ ' 22

CHAPTER 11 . . . Recommendations. 29



CHAPTER 1
INTRODUCTORY

1.1. This Report deals with an important topic that lies at the frontiers The subject.

of public law and adjective_law--the question _of State privilege. The subject
was earlier known by the title of "Crown Privilege",' but is currently discussed
under the title "public interest privilege" or "Executive privilege". Claims of
privilege under this head generally have constitutional dimensions and, for
that reason, may be said t_o_belong to the _domain of public law. At the same
time, the claim to such privilege is made inscourts and, if successful, excludes
certain species of _material from being effectively admitted in evidence--thus opera-
ting in the adjective ﬁeld. Because of this dual character of the privilege, a dis-
cussion of the subject borders on the realm of constitutional law as also on the
realm of adjective law. -

1.2. The subject has _been taken up by the Law Commission at the request
of the Government of India, who, in_turi_1, had beenrequested by the Attorney.
General of India1 to consider theimplications of a recent judgment" of the Supreme
Court and the need_for_ deﬁning certain matters connected with the privilege, arising
out of the aforesaid Judgment.

1.3. Public law in its procedural aspect is of as much interest as its substantive
law. Although the citizen may sue public bodies and the Government, it does
not necessarily follow that the law 'and procedure applied by the courts to such
suits will be the same as is applied in litigation between private citizens. Special
procedural advantages and protections are enjoyed by the State. One of such
protections operates in the ﬁ_eld of evidence, and_ is in the nature of a privilege regar-
ding the production of certain documents and disclosure of certain communications,

1.4. The term "privilege" as used in Evidence law means a freedom from com-

ulsion to give evidence or to discover-up material, or a right to prevent or bar

information _fro_m other sources dur_ing_or in connection with litigation, but on
grounds extrinsic to the goals of lltlga.tl0D.-3

In the law of evidence, there are many situations where a party to litigation (or
some other person)_ may claim a privilege and thereby resist the production of a
document or the giving of oral evidence on a particular Subject in court,

_For example
incriminating

A 1.5. Most of these_pri_vi_leges are enjoyed_by private persons,
the law confers upon the individual the constitutional «privilege of not

The reference.

Public law in its
procedural aspect.

Privilege.

The State.

himself, it also accoids a privileged status to conﬁdential communications between '

. attorney and client; husband and wife and between certain other yommunicants

in special private rela'tionships.4 But we are concerned here with a situation where
the claim is by the State to withhold a document, or evidence, on the ground that the
disclosure will be prejudicial to the public interest. This is the privilege dealt with
in section 123, Eyidence .Act, which prohibits the giving of evidence derived from
unpublished oﬂicial records relating to affairs of State except with the permission
of the head of the Department.

y 1.6. It may be stated as a matter of interest that sectio 22 f th E 'd
Act (2 of 1855) was as follows :_ ~n ° e V' °"°°

_ - "XXII. A witness /shall not be forced to produce any document relating
to affairs of State the production of which would be contrary to' good policy",

1. AtAI§"tl_-Sy General's letter dated 1st February, 1982 to the Minister of Law, Justice and Company
airs. . V

2. SJ'. Gupta V. Union of India, A.I.R. 1982 S.C. 149.
3. Paul F. Rothstein, Evidence : State and Federal Rules (1981), page 407.
4. Graham C'. Lilly, An Introduction to the Law of Evidence_(l978), page 317.

Section 123
and its
predecessor.



Liability of
the stain.

History and
rationale.

Executive
rivilege--
.S.A.

_English law.
injury to public
interest.

2

1.7. From the point of view of public law, it is possible to view the matter
as one concerning the liability of the State in the adjective sphere. Though the pro-
visionis contained in the Evidence Act, it is obvious that it has important repercus-
sions in administrative law. We are referring to this aspect in order to put thematter
in its proper perspective. '

1.8. In England, Crown privilege is usually dealt with as an  of the = -

general law of State liability. In this connection, it may be noted that the Crown.
Proceedings Act, 1947, while making the Crown liable as a private citizen in many
respects, took care to provide that its provisions should not aﬂ'ect this general law.

In one article, published a few years ago, the history of Crown privibge
was thus dealt witl11e- '

"The source of the Crowifs privilege in relation to production of -

in a suit between subject and subject (whether production is sought from at

party or from some other) can, no doubt, be traced to the preroyiive rightto-g '

prevent the disclosure of State secrets, or even of preventing the esca e -of
inconvenient intelligence regarding Court intrigue. As is pointed out in ollocl:
and Maitland's History of English Law (2nd ed., Vol. 1, page 517), 'the kiighax
power to shield those who do unlawful acts in his name, and can w' '

from the ordinary course of justice cases in which he has any concern. If
the king disseises A and transfers the land to X, then X when he is sued will
say that hecannot answer without the king, and the action will be stayed until
the king orders that it shall proceed'. We ﬁnd similar principles applied to
the non-disclosure of documents in the seventeenth and eighteenth centuries."

"But with the growth of democratic Government, the interest of the Crown
in these matters developed into and became identiﬁed with public interest.

(6

_ . . . . . .In the early days of the nineteenth century, when principles of
'public policy' received broad and generous interpretation . . . . . .we ﬁnd the
privilege of documents recognised on "the ground of public interest". At this
date, public policy and the interest of the public were to all intents synony-
mous." t '

In the report of Layor's case," the Attorney-General claimed that minutes
of the Lords of the Council should not be produced; and Sir John Prate L--O.J.'
supported the claim, adding that "it would.be for the disservice of the King to haw,
these things disclosed".

1.9. In the United States, the corresponding privilege, known as "executive . _

privilege", is deﬁnitely considered as an aspect of "sovereign immunity". Of course
this American version of Crown privilege has never been at par with the British
doctrine as known in some of the earlier cases, but we need not discuss that aspect
of the matter at present. , '

1.10. The general principle now formulated in England is that relevant 
must be excluded if its reception would be contrary to the public interest. It is
this general principle that seems to regulate the disclosure or non disclosure of
communications in the conduct of oﬂicial affairs. There is no separate rule for
official communications in addition to that applicable for oﬁicial papers. In parti-
cular, the Crown is not allowed to object to the giving of any oral evidence by a
witness, even if he be a civil servant. The witness must attend, and objection must
be limited to question relating to matters claimed to be covered by the doctrine
of public po1icy3--whatever be the proper scope of that doctrine.

1. "Documents Privileged in Public Interest" 39 Law Quarterly Rev. 476-477.
2, Layer': case, (1722) 16 How. St. Tr. page 224.

3. Braame V. Broame, (1955) 1 All E.R. 201, 204. For comment,see (1957) Cambridge Law Ioiirnai
II. . , V ~ 4 - .



uo-ramio--'

3

The case of B:-oomel is an illustration: The wiﬁe in that case had sued the
husband for dissolution of the marriage, on the ground of cruelty, alleging, inter
alid, that when she joined the husband in Hong Kong (where the husband was posted
as' a sergeant in the army), the husband took her to a ﬁlthy apartment of a standard
58.!' below his means and failed to provide_her with any assistance and kept her
short of money. For proving this allegation, thewife caused a subpoena (for oral-
evldence and for producing certain documents) to be served on one Mrs. Allsop,
who was, at the material time, the sole representative of the Soldiers' Families
Association in Hong Kong. The Secretary of State for War, by a certiﬁcate,

\ recorded the opinion that it was not in the public interest that "the" document should

be produced or the evidence of Mrs. Allsop given orally". We are, at the moment,
concerned with the latter part of the certiﬁcate relating to oral evidence. Sachs,
J. held that it was wrong on the part of the Minister to adopt a procedure which
would prevent the witness from giving any evidence, whatsoever, of any sort.

The form of the certiﬁcate was not such as to enable the court to ascertain what '

really was the nature of the evidence for which privilege was being claimed. on
the merits also, he was not persuaded that, in the circumstances of the case, there
was a legitimate justiﬁcation for claiming the privilege. Evidence of Mrs. Allsop
as to the way in which the wife was received at the Quay at Hong Kong and the sort
of accommodation available and connected matters was relevant and of assistance
to the court and in none of those matters was there any apparent cause for any
intervention in the name of Crown privilege.

\

. 1.11. So far as could be gathered from the case law on the subject, there is,
in England, no separate privilege of conﬁdential communications made to public
sei'vants--at least according to the modern theory. The principle of injury to the
public interest applies, and it would appear that whatever rule applies to written
records, applies to oralcomiiiunications. However, it is said' that the procedure
which may be appropriately followed in respect of oral evidence may have to be
worked out. '

Lord Simon, in Rogers 'V. Secretary of State,' observed as under :

"I am not, for myself, convinced that there is any general privilege protec-
ting communications given in conﬁdence (see Smith v. East India C9.4. but
Cf. Alfred Cromption Amusement Machines Ltd. v. C. Comrs. of C'ustom,r.~
and Excise)". _

After adverting to the circumstances from which the law mi ht 't ]f ' f
conﬁdentiality, Lord Simon observed : g 1 Se In er

"But this ls.a correct classiﬁcation, it would suggest that the pl-ivijegg
(a true privilege being _waivabIe)1s that of the imparter of the information and
not that of" the recipient".

"While Lord Simon was cautious enough not to make a categorical statement
the treatment of the subject in some of the recent works on evidences; seems R;
suggest that cases of conﬁdential cornfhunications made for oﬂiciaj purposes or
not separately dealt with, but are subsumed under the general category of pubnc
interest.

In India, the privilege incorporated in section 123 of the Evidence Act was
perhaps, intended to incorporate a policy decision. It is not, however, very clear
whether the f8.l'lIlel'S'Of: the Evidence Act examined the English law in detail. The
available records ielating to that Act do not throw llght on the subject

. Broame V. Browne (1955) 1 All F. R. 201.

. Broorne V. Broome, (1955) Probate 190, 198; (1955) I All ER. 201 (Sachs J.).
. Rage":-3 V'. Secretary of Stafe, (1972) 2 All ER. 1057, 1067 (H.L.).

. Snlith V. East India 130., (1841) 1 Ph. at 54.

, Alfred Cromption Amusement Machines Ltd. V. Camry.
E.R. 353, 380; (1972) 2 W.I.R. 835, 859.

IV

of Customs and Excise', (1972) 2 All

. 6. Cross on Evidence.(l979), Chapter 12, Section 1, Pages 3o5-3j1_
-,_ Phips on, Manual of Evidence (1972). Page 94. f

No separate '

privilege '
in England.]



The signiﬁcance
of privilege.

Thc_ cost of
privilege.

Balancing of
conﬂlcting 1.'
considerations.

Scheme of
discussion.

Previous
report'

4

1.12. In fact, such privileges raise severalimportant issues of policy transcen.
ding mere technical issues. Privileged communications enjoy protection for a unique
reason. The law of evidence generally seeks accuracy in fact ﬁnding by receiving
relevant evidence thought to be "reliable, while rejecting that which is thought to
be» insuﬂiciently probative or _ trustworthy}
which (by usual evidentiary standards) may be highly probative as well as
trustworthy are excluded because their disclosure is inimical to a principle
or relationship (predominately non-evidentiary in nature) that society deems
worthy of preserving and fostering. Quite often, the evidence that could be
derived from these protected sources would be admissible if judged by the
usual standards of probative value and trustworthiness. {Nevertheless, it is
excluded for reasons of policy.

1.13. The cost of evidentiary privilege is apparent, and it should not be borne
with indifference. In the first place, the conferral of a privilege results in the sup-
pression of probative evidence and makes the trier decide factual issues without
beneﬁt of the evidence. In this sense, an evidentiary privilege increases the prohg-
bility that judicial disputes will be decided erroneously. Hence, in short, the
question arises if the privilege iS worth its price. The conferral of a privilege is

grounded upon the assumption that its recognition signiﬁcantly advances an interest ,

relationship, or principle that society considers a prevailing value. Thus, a balan-
cing is necessary.

1.14. It is to be noted that the breadth of the cloak of secrecy accorded by
a privilege is often the amalgam of statutory language and judicial gloss, and
of a tension between certain branches of public policy, on the one hand, and the
need of the public and the. court to be informed, on the other hand. '

1.15. After making these general observations, we would like to indicate
the scheme of discussion adopted in this Report. The rationale and general ambit
of the privilege under discussion will be ﬁrst dealt with. The authorities that can
claim the privilege and the authorities that will decide the claim will next receive
attention--the latter being of comparatively much greater importance. We shall
then address ourselves to the material on which the claim to privilege may be as-
serted and the machinery and procedure for adjudication of the claim Besides
the provisions of the law of evidence, a discussion of certain constitutional provi-.
sions relating to secrecy will also be required. ,A brief discussion of the position
in certain other countries will be offered. The Report will conclude 'yith recommen-
dations for reform -of the law. .

1.16. At this stage, it would be proper to mention that there is a compre-
hensive Report" of the Law Commission on the Indian Evidence Act,
The Report was forwarded to Government' in May, 1977. The Report has,
in an exhaustive and comprehensive manner, dealt with the entire Evidence Act,
including, of course, the sections relevant to the present Report. Not only have
we derived considerable assistance from the material preseﬂted in the Report, but
also we are happy to say that we agree -in substance with the approach shown in
that Report.

1. Graham C. Lilly, An Introduction to the Law of Evidence (1978), page 317.
2. Law Commission of India, 69th-Report (Indian Evidence Act. 1872) (May. 1977).
' 3. One of uswas a party to that Report also. *
. . P _

But privileged communications,'

1872 ._



CHAPTERIZ
PRESENT LAW IN INDIA

2.1; The present law on the subject of State privilege------in so far as it relates
to the production of evidence as such--is principally contained in sections 123,
124 and 162 of the Indian Evidence Act, 1872. The ﬁrst two sections are, on an
analysis, found to overlap each other. The last-mentioned section (section 162)
is not conﬁned to State privilege as such, but concerns itself with the procedure for A
determination of all questions of privilege, whether the privilege is claimed under
the head of State privilege or under any other head.

In the main, these three sections of the Indian Evidence Act, 1872 are mate-
rial to the topic under consideration. In fact, as already stated, that Act has itself
been reported by the Law Commission in an exhaustive and comprehensive Report.'
Certain provisions of the Constitution dealing as they do with the secrecy of certain
material, will also receive attention.

2.2 It should bementioned that this Report is not concerned with the general

- question of secrecy in Government and it is not therefore proposed in the Report

to go. into a detailed discussion of freedom of information, cit_izen's right to know
and allied matters. Those matters----important as they are in any democratic society
--focus on the relations between the Government and the d-tizen in general. It
may also be mentioned that the Oﬁicial Secrets Act is also outside this Report.
That Act deals with a different aspect of Government secrecy---the communication
of oﬂicial secrets and the commission of certain other acts prejudicial to security
which are regarded as, constituting conduct ﬁt for punishment by use of the weapon'
of. criminal law. (Incidentally, this Act also has been reported on by the Law
Commission)!' The present Report deals rather with evidentiary privilege claimed
on behalf of the State on the basis of certain considerations of high policy considera-
tions-rnore appropriately called public interest.

2.3. Governmental privilege in litigation in regard to evidence has attracted
considerable attention in recent times in so many countries, within as well as out-
side the Commonwealth. The developments have been somewhat rapid. Indeed,
at some stage, they have been so rapid as to make it difficult to keep abreast of them.
on some issues relevant to the privilege in question, the law elsewhere can still be
said to be in a state of evolution. While the general direction in which the law
is moving may be said to be fairly well established, new situations- not unexpectedly
---go on arising, and furnish illustrations of an inﬁnite variety of circumstances in
relation to which the privilege comes to be claimed--successfully or otherwise.

It is not our intention to embark oh an exhaustive survey as such of the position
in numerous countries. But material that elucidates points that might otherwise
remain obscure will be referred to wherever appropriate.

2.4. The Indian law on the subject is mainly concerned in three sections of
the Evidence Act, Section'l23 of that Act reads as under :--

"123. No one shall be permitted to give any evidence derived from un-
published oﬁicial records-relating to any affairs of State, except 'with the per-
mission of the oﬂicer at the head of the department concerned, who shall give
or withhold such permission as he thinks ﬁt"? .

Besides section 123, there is yet another section relevant to official matters,
the disclosure A whereof would be injurious to -the public interest. Under section
124 of the Act, no public oﬂicer shall be compelled to disclose communications
made to him in oﬂicial conﬁdencewhen he considers that the publicinterests would
suffer by" the disclosure. ' V . .' '

1. Lalv;7C_!';>mrnission of India, 69th Report (Indian Evidence Act, 1872), Chapters 65, 66, 93 (May,

2, Law Commission of India, 43rd Report (ofﬁcences against the Iilational Security).
3'.'1Péri ruiesm to=disea'very.'"see,0;der .11. Cp,de of ;;Civil..1?_rcce_dure.,1_998._ ,' - .-
5 7
2--450~I:ADINDl83 A

Scope of
the present
Repoit and
egrlier f

e rt 0
thepoLaw
Commission.

Scope of the
openness in
Government.

Comparative
developments.

Indian law-
sections 123
and 124,
Evidence Act.



6

f§§'_'fl"2'4 2.5. To some extent, sections 123 and 124 of the Evidence Act seem to overlap ;

compmd, at the same time, in certain 'respects, they differ from each other. They overlap,
in so far as evidence which is derived from unpublished ofﬁcia-1 records, and which,
consists of communications made to a ptiblic oﬁcer in oﬂicial conﬁdence, falls under

both the sections. They differ, in so far as evidence derived from unpublished . ' '

oﬂicial records, but not consisting of cqmmunicdtibns made_ro _a public oﬁicer in
official conﬁdence, falls only under section 124 and is outside section 123.

Section 123 is not 'conﬁned to a public oﬁcer, while section 124 is so conﬁned.
_0n the other hand, section 123 is conﬁned to a written record, while section 124
is not so conﬁned. Overlapping can therefore arise on their present winding, 1:
already mentioned aeove. We shall 'revert to this aspect when making our concrete
recommendations}

avg;-1app[n3 2.6. In certain cases-_-say, inregard to oral oﬂicial communications-sit is
between _thc enoughtiitomply with section 124. Such cases do not present problems of magni-
tvggsiiliicints tude._ But the overiapping between the two sections (to which we have ref: '
§equen'm' above) may create diﬂiculties, where both the sections apply. In particular, 
under section 123 (as it now stands), it is for the head of the Department to 
permission; under section 124,' it is for the public servant to decide whether the
public interest would suﬁer by the disclosure. It will be necessary to revert to this
aspect later, since it is a matter of crucial importance and does, not constitute a pros

blem of interest merely from the point of view of legislative drafting or of textual"

analysis of the section.

sumo" I 62 2.7. _Connected with the subject is the provision in section 162 of the same Act.
' under which a witness summoned to produce adocument shall, if it 'is. in his passes-
sion or power, bring it to court, notzithstanding any objection which there 
be to its production or to its admissibi TSV. The validity of, any Such obiection Shh
' be decided by the Court, under the section. That section further provides that the
Court, if it seems ﬁt,  inspect the document, unless it (the document) 'refers to
matters of State, or take other evidence, to enableﬂthe' Court to determine on iti
admissibility. (The last paragraph of the section is not material for the present
purpose). ,

Section 162 is not, of course,,conﬁned to documents for which a privilege is
claimed under section 123. The section is the machinery section for the Ilewrnie
nation of all claims to priviiege in respect of documents.

R,ecommenda- 2.8. All these provisions of the Evidence Act received detailed discussion by
tions made the Law Commission in its Repon on the Evidence Act. The recommendation!
'"vi'~°P°" °" made in that Report in So far as they concern sections 123, 124 and 162, may be
E "°"°° A°'° summarised at this stage for convenience of reference.'

The recommendation relating to section 123 was to revise the section on the
following lines :-

(1) No one shall be permitted to give any evidence derived from unpublished
oﬂicial records relating to any affairs of State, unless the oﬁeer at the ii
of the department concerned has given permission fog giving such 
(This proposition was in _ ded to state the position, to start with. It
would operate primarily as between the witness and his superior. There

was no change of substance).

(2) Such oﬂicer should not withhold such permission unless he is satisﬁed that
the giving of such evidence would be injurious to the public interest. _ He
should make an aﬂidavit also in this regard. / The Court may, it' it thinks
ﬁt,~call for a further anidavit from the head of the depariinent. (tins pie.
positlon was intended to aniplify the section. by highly use the test of
"injury to the public interest".-a test diseenrnible from t e case law oiithe
subject--and by coditying the procedure that had already beih iiidiedlli
judicially). ,

._...._._x

l.S¢c chapter 11 iivhis

2. Law Commission of iITIﬂe'.'$tii  ﬁsiﬂms 93130:: 65565 Odie.

4



'7

(3) .Where such oﬂiccr has withheld permission for the giving of such evidence,
and the Court, after inspecting the unpublished oﬂicial records concerned
and after considering the aﬂ"12davit~,is of the opinion that the giving of such
evidence would not be injurious to the public interest, the court should

. record its decision to that effect and thereupon thesection will not apply
to such evidence. [This proposition was intended to modify the existing
section, in so far as the textual law was concerned. The change was an

important one, as the decision as to injury to the public interest would
be with the Court and not with the oﬂicer at the head' of the Department].

' 2.9. Then, as regards section 124, the recommendation was to revise it as
under :-- ' ~

"I24. (I) No public officer shall be compelled to disclose communications .
 to him in. oﬁictal' conﬁdence, other than communications contained in

unpublished oﬂicial records relating to;a¢;y agairs of State, when the court con-.
siders that the public interests would suﬁer by the disclosure.

(2) Where a public oﬂ'icer who is a witness is asked a question which might
require the disclosure of any such communication, and he objects to answering
the question on the groundrthatthe public interestswould surfer by its disclosure,
the court shalt, before lfeﬁcting his objection, ascertain from him, in- chambers,
the nature of , his_ objection and reasons therefor".

2.10. As to section 162, second paragraph, Evidence Act, the recommendation
of the Commission was to delete the words "unlessit refers to matters of ' S_tate".
The object was to remove any restriction on the power of the court to inspect a
d1t!)c11ment' claimed to be relating to "affairs of State" and therefore privileged on
t at account. ' '

2.ll._ The survey otj the Indian law has s_o. ﬁar concentrated on the pro_vigion_s_ comugmmg.
in the Evidence Act- Besidcs.t.he.se... there are:inapor_tant provisions in articles 741. provisions.
and 163 of the Constitution, to which it will be necessary to_ make a feferengel _>
f.°..1'.t1?-.9 P.111'P0S° Of °°IlSid.¢IinS ceﬁain l1¢°d.¢.<1 amend§m¢_!1_t. These "provisions pro-
tect the. Secrecy of advice given by the Cabinet. T ' '

, _2,~12.- Th¢ Slicceﬁdiug Chapters of this Report will deal with several. points Succeeding
arising out 0f,the above ptovislonsw-statutory as..'wel1-.as constitutiona1--in the-lig-ht Chatpersof
of the materials referred' to above. i ' the Report-A

In  91 in/5'0.



Sections 123-
Atfairs of
State.

Routine
documents.

Security of
the State.

Ministerial
advice. '

Obscurity as
to income-tax
papers.

CHAPTER 3
THE (GENERAL! AMBIT on THE PRIVILEGE ; "AFFAIRS or STATE"

3.] . At this stage, it may be convenient to deal in brief with the ambit of the-
privilege conferred by section 123 of the Indian Evidence Act, 1872--- an exercise
which will show concretely how the abstractions that appear in the law have been
applied in practice. The expression "aﬁ'airs of the State" which occurs in the section

is not used in other legislation in force in India. But it is used frequently in text '

books and academic literature. The principal object of the use of the expression
is to indicate the distinction between matters of concern to the State, and matters of
private interest.' This of course, is not the only ingredient of the privilege, since
it is further required that the matters in respect of which privilege is claimed must
be of such a nature that their disclosure would be prejudicial to the public interest.

The principle on which the protection is given is that where a conﬂict-arises between

public and private interest,_private interest must yield to the public interest.

3.2. Every communication from an oﬂicer of the State to another oﬂicer is
not necessarily one relating to "affairs of State". The privilege could not arise,
for example, in respect of a posting register kept by the Customs Preventive Service,
theentryin question being merely a note of the time when particular preventive
oﬂicers were ordered to be at their stations.' , ' -

3 .3 . The expression ."aﬁ'airs of State" may cover the case of documents in
respect of which the practice of keeping them secret is necessary for the proper secu-
rity of the State. Reportsrelating to an individual witha view to taking action under
the Preventive Detention Act is a matter relating to aﬂairs of State." _

3.4. The expression "affairs of State" would also (cover advice given by a'Mini-
ster. Thus, in a Rajasthan case', the plaintilf brought an action for the recovery of
Rs. 1,l9,000 against the State of Rajasthan, on account of a refund of a part. of the
excise duty paid on the stocks of matches produced by the plaintiﬁ' for consumption
in the State territory. This was in pursuance of an agreement with the State Govern-
ment. There was a document which embodied the minutes of the discussion and
indicated the advice given by the Minister. The State claimed privilege in respect _of
this doCument under section 123. 'il'"he'c1aim of privilege was upheld by the trial
court, as well as by the High Court. The High Court held that the document which
embodied the minutes of discussion and which indicated the advice given by the

Minister was certainly protected under section 123, and the Court could not com- 

pel the State to produce it.

On the other hand,documents and lettersrelating to a contract withthe Govern-
ment for the supply of goods do not relate to aﬁ'a1rs of State.' V

3.5. These simple situations may not present much diﬁiculty. But the obscurity
of the expression "affairs of State" is illustrated by the decisions that were rendered
with reference to other matters. Income-tax returns made to income-tax oﬂicers and
assessment orders may be cited as an example. Before the enactment of speciﬁc
statutory provision on the 'subject, it was held that returns submitted to the income-
tax oﬂicer, and statments before him or orders made by him, did notrefer to "alfairs

of State" (section 123), nor were they made in oﬂic_ial conﬁdence (section 124). and -
the olﬁcer concerned was bound to produce them, if summoned to do so.'-" It was .

after these judicial decisions that section 54 of the Income-tax Act, 1922, was enacted.
Section 54 of [the Income-tax Act, 1922 (now section 137 of the Income-tax
Act, 1961) to state only the gist thereof enacted that statements made or
returns, accounts or documents produced for evidence before Income-tax

1. State ofPunjab v. Sod/ti sukhdev smavh, A.I.R. 1951 s.c. 493. and also Lady Diubizi v. vomit}:
of India, A.l'.R. 1951 Born. 72. 7'

2. Rukumali V. R., 22 C.W.N. 1951.

3. Choudhiiry V. C/iangkakati, pA.I.R. 1960 Assam 210.

4. Kotah Match Factory, Kotah V. State of Rajasthan, A.I.R. 1910 Raj. 118.
5. G. G. In Council V. Peer Md. A.I.R. 1950 Punj. 228.

6. Venkatachella V. Sampqtukpgﬁetﬁar, (190?) I.L.R. 32, 62; 19 Mad. LJ. 263.

1.'radabar' "'a'm' v.'3uIIamm, (1399) I.L.R. 26 Cal. 281.

8



. likely to be paramount in India,

9

authorities shall b:_treated as conﬁdential and disclosure thereof by any public
servant was prohibited, and no oﬁicial shall be required to produce any such docu-

ment or to give evidence in respect thereof.

3.6 The diﬂiculty of deciding whether a matter is or is not an".aﬁ'air of State"
is also illustrated by the _case-law. relating to statements made by witnesses in the cases
of a departmental enquiry into the conduct of a public oﬁicer. The question arises
when. after the departmental enquiry, the guilty public servants are prosecuted---
usually for the offence of accepting illegal gratiﬁcation. It was held by the Calcutta
High Court1 that such statements were not privileged under sections 123 to 125,
and the accused was entitled to cross-examine the witnesses under section 153
with reference to the statements made by the witness at the departmental enquiry.
The same view was taken by the Nagpur High Court." On the other hand, statments
by witnesses in a secret and conﬁdential investigation by the C. I. D. for ascertaining
whether there is a prima _facie case for a departmental enquiry against the public
'servant were held to. be privileged by the Lahore and Orissa High Cour-ts.3-4

In a Punjab case,' the respondent Surjit Singh had ﬁled a suit against the

. State of Punjab for a declaration that his retirement from service before he reached the age of superannuation was illegaland was violative of various provisions of the Constitution of India. He requested the trial court to direct the department to pro- duce in Court the character Rolls and conﬁdential reports maintained in the depart- ment, in respect of himself and some other inspectors who were junior to him but were retained in service. The State claimed privilege under section 123, on the ground that 'the documents were unpublished oﬂicial records relating to "aﬁ'airs of State". The trial court disallowed the privilege, holding that these documents did not relate to "affairs of State." The matter came up before the High Court in revision. The High Court allowed the petition ﬁled by the State, and held that the character roll and conﬁdential reports maintained for the purpose of providing an appraisal of the merit of State Servants by their superiors from time to time were in the nature of con- ﬁdential communications from one _oﬂicer to another, and were meant to_ serve as part of the material designed to maintain the eﬂiciency of the public servants. The High Court further held that those documents would relate to "aﬁ'airs of State". It dissented from two earlier cases to the contrary.' Thus, conﬂicting views exist within the same High Court.

3.7. In a Punjab case, Khosla I. attempted to evolve a deﬁnition of the expres- sion "aﬁ'airs of State",' and this deﬁnition was relied on in the same High Court in a later case." However, in appeal before the Supreme Court in the later case," the deﬁnition was not treated as exhaustive. Thus, the expression "affairs of State" is in practice, found to be somewhat imprecise. « 3.8. In fact, it is the concept of injury to the public interest that is in furture as in other countries. '

1. Hazbans V. R., 16 C.W.N. 431.

2. Ibrahim V. Secretary of State, A.I.R. 1936 Nag. 25.

3. Nazir V. R., A.I.R. 1944 Lab. 424. '

4. James Bus/u' V. Collector of Ganjam, A.I.R. 1959 Orissa 152.

5. State of Punjab v. Surjit Singh, A.I.R. 1975 P & H 11.

6. (a) Union of India V. Raj Kumzr, A.I.R. 1967 Punj. 387.

(b) Niranjan Doss V. State of Punjab, A.I.R. 1968 Punj. 255.

. G.G.-in-Coiincil V. Peer Mal¢d., A.I.R. 1960 Punj. 228, 233 (Khosla, 3.). Solar' Szkhdev Singh V. T/ze State, A.I.R. 1961 Punj. 407. _ .. '.,_ , State of Punjab V. Sodlti Sulcltdev Singh. A.I.R. 1961' S.C. 43. (1961) S.C._R. "

'.°?°."

_Depaitmenial inquiries.

Impreeision.

Injury to public interest.

The head of the Department CHAPTER 4 THE AUTHORITY WHO. CAN CLAIM THE P _4.l The authority that canclaim the privilege is speciﬁed in section 123$ the Indian Evidence Act asthe Head of the Department. It is not our intentionto _ V the _nlcet!eS of the precise meaning of this expression with reference to the . _ ' ' _ tratrve setup of Government. What we would like to emphasise is; V t, inconfofﬂlttxi with our» recommendation,' the claim made by the Head of Department p A be ﬁnal. or binding on the Court. The Head of the Department can place all ' before the Court that are relevant for acquainting the court with the )_ .

do ument and for persuading, it about the validity of the claim. The to whether, having regard to the circumstances of the case, the claim _ . 1 in chamvgqlgi' will be with the court. Thecourt will (as at present) have power to take oral for the purpose. However, primarily it will be on an examination the document) that the court will arrive at the decision. 9 .

4.2-. Another important question relates 'to the authority which will the claim of privilege. This will be discussed in the next Chapters'

1. chapters.s.._6 and 7. irifm.~ 20 5' 10% CHAPTER 5 Inn" AUTHORITY wmt " CH iincinns Inn Qunsﬁou or PRIVILEGE 5.1. The question which authority will determine the existence or otherwise of Indian and Government privilege in relation to a particular document is one on wliichwe ma. Enslish 13""

coilsi/derable disparity between the Indian statutory law on the one hand and the ' Eliigiish law on the otherslf we are to take literally what is stated in section 123 of tlie Evidence -Act, it is for the head of the department concerned to _determiue whether or not the document should be disclosed. In England, on the other hand, an objection on the score of "Crown priiﬁlege" is made as to the production are document, it is for the court to decide wheth er the objection should be upheid} Toilette extent, this disparity between Indian Iaw and English law has been reduced Ky judicial decisions in India.' 5.2. In our view, the statute itself should make it clear that power to decide the Ne"! *9 W5' question of privilege vests in the court.The foundation for the privilege is injury to 3.33;" "' m' the public interest." There are two aspects of the puplic interest----the puplic interest ' in the maintenance of secrecy of certain material, and the public interest in the pro- duction of all factual material that is relavent to a matter in issue in litigation. The two may often be in conﬂict. The balancing of the considerations that so come into conﬂict is a delicate task which should, both in the interests of justice and in the ~ei'ﬁcient performance of the task of such balancing, be left to the judiciary, rather than to any other agency. Courts are, by training as well as by their orientation properly equipped to deal with such questions. As Salmon, L. J. (as he then was) said, writing extra-judicially4--

"This is constitutional question of the ﬁrst importance and it can be set- tled only in the courts. . . .There is no, indeed, no country in which the com- mon law holds sway whose courts have failed to recognise they have such a power-to be exercised, no doubt, rarely and in the last resort, but nevertheless 'to be exercised when necessary."

Lord Justice Salmon described the power as "vital to the true administration of justice". ' 5.3. When the matter is viewed in this perspective, it will be perceived that it Defect is a major defect in section 123 of the Evidence Act, that it does not give prominence in the _ to the essence of the privilege, namely, the injury to the public interest. According to W°5°"' s°°"°"~ the modern understanding of the basic objective and rationale of the privilege, it is not enough that the documents relate to "matters of State". The matters must be such that their disclosure would be injurious to the public interest. As early as 1931, the Privy Council stated the position thus in a case very often cited-

"The principle of the rule is the concern for public interest and the rule will accordingly be applied no further than the attainment of that object requires."5-' 5.4. The case law on the subject has been reviewed by Ray, C. I.' who observed: su 1-em com "In the ultimate analysis the contents of the documents are so described that it 3 geinent.

1. Conway V. Rimmer, (1968) 1 All E.R. 874 (H.L.). See particularly the speech of Lord Mom, of Borth-Y-guest.

See the case law on section 162, Evidence Act.

[Also paragraph 7.8, infra]. ' Cf. State of U. P. V. Raj Narain, A.I.R. 1975 SC. 865.

Lord Justice Salmon, "Bench : The Last Bulwark of Individual Lib'erty" (1967) reptlnted in (1967) 69 Bom. L. R. (Journal) 123.

Robinson v. State of South Australia, A.1.R. 1931 P.C. 704. 719. Cf: Sankey v. Wiiitlam, (1973) 21 A.L.R. 505 (High Court -of Aiistraiia). State" of U.P. v. Ra)' Narain. A.I.R. 1975 s.c. 865, 815, 876 , 1'ia£:'i4i.

E' $99 F?

could be seen at once that in public interest the documents are to be withheld." Most of the commonwealth decisionsl onthe subject emphasise the aspectof balanc- ing-- an aspect recently re-emphasised in America also." The touchstone by which the doctrine of Crown privilege operates, was felicitously expressed by Lord Rad. cliifein the Scottish--appeal." His Lordship said: "The power reserved to the Court is therefore a power to order production even though the public interestis to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between parties is not to be available to the party engaged in a suit with the Crown. The interests of Govern- ment, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect thslt the court would be better qualiﬁed than the minister to measure the importance of such principles in application to the particular case that is before it."

1. (a) Rogers V. Home Secy., (1973) A.C. 388, 406, 412.

(b) Kania V. Marley, (1976) 1 N.Z.L.R. 455.

(c) Glasgow Carp. V. Central Land Board, (1956) S.C. l, 18, 19 (H.L.). ((1) Re Grasvenor Hotel London N0. 2, (1965) Ch. 1218. 1246.

2. U.S. V. Nixon, (1974) 418 U.S. 683.

3. Glasgow Corp. V. Ceniral Land Board, (1956) S.C. 1, 18, 19 (H.L.).

a CHAPTER 6 THE MATERIALS FOR CLAIMING AND DECIDING THE PRIVILEGE 6.1. The materials on which a claim to the privilege under discussion may be Materials- based generally comprise-

(a) aﬂidavits ﬁled in the first instance,

(b) further affidavits, when required by the court,

(d) oral evidence (to the extent permissible).

The ﬁrst two raise no problems, as (a) the parties may be expected to ﬁle such affidavits as they may be advised} and (b) the Court should continue to have the necessary power to direct them to ﬁle aﬂidavits? As to the third aspect (the original docugnent), we are recommending that it should be produced for inspection in every case.

, As regards the last aspect --oral evidence--.the Court certainly has the power to callfor it, even now. If---as is our recommendation ------the law should insist that the document (in respect of which privilege is claimed) should be produced for inspection by the Court in camera," occasions for oral evidence will be reduced to a very large extent.

6.2 In regard to production, section 123 speaks ofthe permission ofthe head of position the department. It was held5 by a majority judgment of the Supreme Court in 1961 regarding that the Court is competent, and indeed bound, to hold a preliminary inquiry and Df0dl1°'i0n- determine the 'validity of an objection to_ the production of the document, when privilege is claimed under section 123. This necessarily involves an inquiry into the question whether the ¢Vld€nC6 relates to "affairs of State" or not.

The head of the Department claiming privilege under section 123 must apply his mind. In Amarclrand v. Union of India (a)" judgement of the Supreme Court of India referred to by the Court of Appeal in the English case of Conway v. Rimmer7 this aspect became important. In that case, the Supreme Court rejected the claim for privilege on the ground that the statement of the Home Minister did not show that he had seriously applied his mind to the contents of the document, or that he had examined the question whether their disclosure would injure the public inter- est. The Supreme Court observed as follows :--

"In view of the fact that section 123 confers wide powers on the head of the department, the heads of departments should act with scrupulous care in exer- cising their right under section 123 and should never claim privilege only or even mainly on the ground that the disclosure of the document in question may defeat the defence raised by the State. Consideration which are relevant in clai- ming privilege on the ground that the affairs ofthe State may be prejudiced by disclosure must always be distinguished from considerations of expendiency".

State of U.P. V. Raj Narain, A.l.R. 1975 SC. 865.

State of (LP. V. Raj Narain, A.I.R. 1975 S.C. 865.

Chapter 7, infra.

State 0fPu1jab V. bar!/ii" Silk/zdev Si"/igh, A.I.R. J96] S.C. 493; (1961) 2 S.C.R. 372. Amzrc/aaml V. Milo/1 of India, A.I.R. I964 S.C. 1958, 196] (not reported in the S.C.R.). CJ.'lW.Iy V. Rimnzr (in th: C.)urt of Appeal).

?'i".M4=ws~»:-

3-450 LADIND/83 Practice in India as to aﬁidavrts.

Andhra Case.

6.3. It is well-known that the practice in India is for the head of the department to make an aiﬁdavit, setting out the objection on behalf of the State and relevant factors. The present practice was thus described by the Supreme Court in another ~ casel-

"It is now the well-settled practice in our country that an objection is raised by an affidavit afﬁrmed by the head of the department. The Court may also require a Minister to aﬂirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the documents should be withheld from disclosure. If the Court is satisﬁed with the affidavit evidence that the document should be protected in public interest from production, the matter ends there. If the Court would yet like to satisfy itself, the Court may see the document. This will be the inspection of the document by the Court. Objection as to pro- duction as well as admissibility contemplated in section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singlfs case. i This Court has said that where no affidavit was ﬁled, an aﬂidavit could be directed to be ﬁled later on. The Grosvenor hotel, London Group of cases; (1963) 2 All E. R. 426; (1964) 1 All E. R. 92; (1964) 2 All E. R. 674'and (1964) 3 All E. R.354 (supra) in England shows that if an alﬁdavit is defective, an oppor-

tunity can be given to ﬁle a better affidavit. It is forathe Court to decide whether the aﬂidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisﬁed with the affidavits, the Court will refuse disclosure. If the Court in spite of the aﬁdavit wishes to inspect the document, the Court may do so."

6.4. It was agrued in an Andhra case" that the notes and minutes made on the ﬁles were within the privileged class and were exempt from production. The privilege claimed by the Additional Chief Secretarycould not be_ questioned in view of section 123. It was held that there was nothing in the afﬁdavrt to "suggest that the notes made, relate to expression of an opinion in the determination and execution of public policies", a test suggested in Sukhdev Singh's case."

1. State of U.P. V. Raj Varain, A.I.R. 1975 S.C. 865, 876, para 42,

2. R. Ramanmz V. Govt. of A.P., AJR. 1971 A.P. 196.

3. Sukhdev Singlfs case A.I.R. 1961 S.C. 493, 502.-

CHAPTER 7 MACHINERY FOR DETERMINATION OF THE PRIVILEGE .7.l. It is now possible to examine section 162 in the light of the above points. 5°°t]'"°ﬂ d162 Section 162 comprises four matters:-- ""3 5'" '

(a) the duty of a person who is summoned to produce a document, to bring it into court;

(b) the power of the court to decide objections to its production (in evidence) or admissibility;

(d) the translation of the document.

7.2. As regards the first topic (duty to produce), it should be noted that there (a) Production. is a distinction between bringing the document in court and its production in evi- dence. When a person is summoned to "produce" a document~--the expression f'production" is also used in the two procedural Codes------that person must bring it into court. This simple and elementary provision really gives rise to the important implication that even if a person has an objection to handing over the document for use in evidence, he must bring it into court. The physical production of the document is obligatory. Whether the objection to its legal production is on the ground that the document has no relevance to the suit or proceeding or whether it is on the ground that the document, though relevant, is inadmissible by virtue of astatutory bar, it is not for the person summoned to determine that objection for himself. Only the Court will decide the objection to "production" in this sense. Production in the physical sense is mandatory on the person called upon to do so by the Court.

7.3 The question really should not have presented any serious difﬁculty. Once Inspection by it is established that the claim to privilege must be decided by the court, the logical the °°"F' and course should have been to allow the court to examine all the materials. The docu- f;gd&':;',:'$e':lt; ment itself would, of course, be the best evidence and (if in existence) the best evi- for inspec,io,,_ dence ought to be before the court. The matter has been unnecessarily complicated by section 162 of the Evidence Act, which seems to exclude from inspection by the ~ court a document relating to "matters of State". The anomalous position was dis- cussed at length by the Law Commission in its Report on the Evidence Act, and we would like to record here that we whole-heartedly agree with the approach adopted in that Report and the recommendation made by the Commission for amendment of the law. Since that Report was written, developments in other countries have re-inforced the desirability of inspection by the Court of the document claimed to be privileged. Of course, the inspection must be in chambers--as was emphasised by the Law Commission in speciﬁc terms. Subject to this safeguard----which, in this case, is of paramount importance----the court must have power to inspect the docu- ment. To this, there should be no exception and on this reasoning section 162, Evi- dence Act, will certainly require amendment.

7.4. Even as regards physical production (in the sense explained above), diffi- Documents not cult questions could sometimes arise, where a witness who is summoned to produce in P0SS¢SSi0H a document raises the objection that the document is not in his power. In this context, °" P°"'°"' the crucial words are----"Possession or power". Where the witness is exclusively in control of the document and some one else claims control over it, no difﬁculty could arise by reason of the first part of section 162. But difﬁculty may arise when the wit- ness is in joint possession with somebody else, who is not before the court. In such a case, in deciding whether the witness ought to be compelled to "produce" the docu- ment, normally the court will act on what is considered to be just in the circumstances.

This aspect came up for consideration in a Bombay case} On a review of English cases. it was observed that this matter would depend on whether the defendant, physically speaking, could produce this document and, legally speaking, ought to Iéroduce it, there being 110 Other Person having an interest distinct from the de- en ant.

1. Haji Jaharia Kassim V. Haji Casim, (1876) I.L.R. 1 Born. 496, 499.

15 16

But one having the actual custody of documents-ma b .2 them even though the document is owned by others. y - 3 Comp "ed to produce Under the ﬁrstypart of section 161, then, the document must be brought into court. The production of the document in evidence will, under the second part be excused where the document is privileged from disclos ure.

(b) _Decision of 7.5_ It is expressly laid down in the second part of the section that only the court obyzction. can decide the validity of the object. There is, however, a disharmony between section 123 and section 162 Section 123 . _ , in the last part, gives power to the head of the Department to give or withhold permission "as he thinks ﬁt". But section 162 gives the power to the Court. It is necessary to remove this dishai'mony------which can be achieved by deleting the offending part of section 123.'

(c) Machinery. _ 7.6. For implementing the second part of section I62 (ad issue of privilege), some machinery is obvioulsy needed. This i section 162. It compresses, in c set, two different topics. :

judication upon the the third part of

(i) inspection of the document--the court i 5 given this power, unless the docu-

ment relates to "matters of State", 4

(ii) taking of other evidence by the court to enable it to decide the objection.

Anomaly. 7.7. In so far as section 123 excludes the court's power to inspect documents relating to "matters of State". it presents a provision that is anomalous as well as productive of serious disharmony;-not to speak of injustice. It is anomalous, because the inspection of a document would ordinarily be the best method of judging its nature and essential character. To deprive the court of this indispensable machi-

nery is to render its role futile. Other evidence cannot be a substitute for the original.

The provision is also out of harmony with that part of section 162 which assumes that the court shall decide the question of privilege. Finally, the provision could be productive of injustice, because, on rather insufﬁcient evidence, a useful document may come to be excluded. It is this aspect that requires urgent attention. The only satisfactory way is to remove the exception. As Lord Morris said} "Whenever objection is made to the production of a_rclevant document, it is for the court to decide whether to uphold the objection. . . .the power of the court must also include a power to examine the documents privately."

7.8. In this connection, reference may be made to the observations in State Supreme of U. P. V. Raj Narain,' which were as follows :--

Court case. .

"As it was held in that case} that the Court has no power to inspect the document, it is difﬁcult to see how the Court can ﬁnd, without conducting an enquiry as regards the possible effect of the disclosure of the documents upon public interest,tl1at a document is one relating to affairs of State as, ex-hypothesis, a document can relate to affairs of State only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxious in the sense that, without, conducting an 'enquiry, it might be possible to saythat by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure would be ln]l1l'_lOl1S to public interest. The enquiry to be conducted under section 162-----_is an enquiry into the validity of the objectionthat the document is an. unpublished oﬁicial record rclating to affairs of State and therefore permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of State and its disclosure cannot be permitted, for, whv should the OfﬁC€T at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure _even_ though it ielates to secret affairs of State? Section 162 visualizes an _ enquiry into that objection and empoweisthe court to take evidence for deciding whether the

1. Conway \-'. Rimmer, (1964) 1 All ER. 874, 880 (ELL).

2_ State of UP. V. Raj Naraiii, A.I.R. 1975 SC. 882, 883, para 69 (per Mathew, 1.).

3. State of Punjab V. Sodhi Sukhdev Singli, A.I.R. 1961 Punj. 493, 56?, para 94.

objection is valid. The court therefore has to consider two things; whether the documents relate to secret affairs of State; and whether the refusal to permit evidence derived from it being given was in the public interest. No doubt. the words used in section 123 'as he thinks ﬁt' confer an 'absolute discretion', on the head of the department to give or withold such permission. As I said, it is only if the cfﬁcer refuses to permit the disclosure of a document that any question car' arise in a court and then section 162 of the Evidence Act will govern the situation. An overriding power in express terms is conferred on the court under section 162 to decide ﬁnally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the do- cument does not relate to affairs of State or that the public interest does not com- pel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. This conclusion ﬂows from the fact that in the ﬁrst part of section 162 of the Evidence Act, there is no limitation on the scope of the court's decision though in the second part the mode of inquiry is hedged in by conditions. It is therefore clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and ﬁnd out whether the disclosure of the document would be injurious to public interest and the expression "as he thinks ﬁt" in the latter part of section 123 need not deter the Court from deciding the question afresh, as section 162 authorises the court to determine the validity of the objection ﬁnally (see the concurring judgment of Subba Rao, J. in Sukhdev Sirtgh's case").

It may be noted that, at present, inspection of a document which relates to "matters of State" is prohibited by section 162. In Amar Chand's case,' the appellant called upon the respondents, the Union and the State to produce certain documents. The respondents claimed privilege. The Supreme Court saw the documents and was satisﬁed that the claim for privilege was not justiﬁed. The case illustrates _how inspection may become necessary to determine whether the claim to privilege is justiﬁed.

We may also refer to an Andhra case" on the same point.

7.9. The last part of section 162 (translation) creates no problem.'

1. Amar Chand V. Union of India, A.I.R. 1964 S.C. 1958.

2. R. Ramzmna V. Govt. of A.P., A.I.R. 1971 AJ'. 196.

(d) Translation.

Right of appeal-

need for.

Forum of appeal.

Lord Reid's views as to appeal.

Wigmore's view.

CHAPTER 8 THE PROCEDURAL CODES _ 8.1. An important question relating to procedure that deserves to be con- sidered may now be mentioned. Where a document is claimed to be privileged under Section 123 and the Court deter mines the question one way or the other, the question naturally arises whether there should be a right of appeal against a ruling so determining the question, and if so, in what cases, and to which forum. In considering that issue, a distinction can be made between a ruling upholding the privilege so claimed and a ruling denying it, in the particular case. A ruling upholding the privilege can be challenged in appeal on ﬁnal determination in the case, whether it be a decree or other ﬁnal order in a civil case and a judgment of conviction or acquittal or other ﬁnal order in a criminal case. A separate right of appeal is not required, and the absence of such a right would not seriously pre- judice the interests of the private litigant, whose request for admission in evidence of the particular document is rejected by upholding the privilege. But the case of a denial of the privilege stands on a different footing. The document would then straightaway go into evidence. If, ultimately, on appeal, the document is held to be privileged, an anomalous situation might arise. The harm that the privilege is intended to prevent (injury to the public interest) would then have been already done. Any ruling of the Appellate Court (even if it upholds the privilege) would then have only an academic value, so far as that particular litigation is con- cerned. In view of this, an immediate and separate right of appeal to the ap- propriate forum would appear to be necessary in the interests of justice. Such a course, we think, should be adopted whether the proceedings are civil or criminal In nature.

8.2. Next, as regards the forum, we are of the opinion that irrespective of the * status ofthe trial court or of the nature of the proceedings, the appeal against the order denying the claim of privilage should be to the High Court.

Two reasons have weighed with us in coming to this conclusion. First, the question is of such a nature that the procedural law should enable the matter to be decided by the highest court in the State without delay. Secondly, a straight appeal to the High Court would cut short the intermediate stages and enable the rendering of a prompt decision. Usually, controversies involving such claim are of a sensitive character and it is desirable that the resolution of su ch controverses within the legal framework is not unduly prolonged. We would, therefore, re- commend that both the Codes of procedure--. Civil and Criminal--should be amended by inserting a suitable provision on the subject, incorporating the points' t' iscussed above.

8.3. It may be mentioned that the suggestion for giving a right of appeal to the Government was made by Lord Reid in Conway's casel.

"It is important, however, that the Minister should have a right to appeal before the document is produced. The matter was not fully investigated in the argument before Your Lordships, but it does appear that in one way or another there can be an appeal if the document is in the custody of a 'servant ofthe Crown or of a person who is willing to co-operate with the Minister. There may be diﬂiculty ifit is in the hands ofa person who wishes to produce it. That diﬂiculty, however, could occur today, if a witness wishes to give some evidence which the Minister unsuccessfully urges the Court to prevent from being given. It may be that this is a matter which "deserves further investigation by the Crown authorities".

8.4. Afterexamining the scope of the privilegeinthe light oflogicand policy, Wigmore concludes as follows? -

"(l) Any executive or administrative regulation 'purporting in general terms to authorise refusal to disclose oﬁicial records in a particular depart-

ment when duly requested as evidence in a court of _]u stice should be deemed void.

-4 Conway V. Rimmer, (1968,) 1 All E.R. 874. For later stages, see (1968) 2 All ER. 304._

2. Wig. S. 379. cited in Sarkar, Evidence (1971). page 1165.

18 19

(2) Any statute declaring in general terms that oﬂicial records are con- ﬁdential should be liberally construftd to have an implied exception for disclosure when needed in a court of justice.

(3) The procedure in such cases should be : A letter of request from the head of the Court to the head of the Department (accompanying the subpoena to the actual custodian), stating the circumstances of the litigation creating the 'need for the document ; followed (in case of refusal) by a reply from the Depart mental head stating the circumstances deemmed to justify the refusal ; and then a ruling by the Court, this ruling to be appealable and determinate of the privilege".

8.5. In the light of the above, it will be necessary to insert a suitable pro- vision in both the Codes at the appropriate place, somewhat on the following lines :-

"Any person aggrieved by the decision of any court subordinate to the High Court rejecting a claim for privilege made under section 123 or section 124 of the Indian Evidence Act, 1872 shall have a right of appeal to the High Court against such decision and such appeal may be ﬁled notwithstanding therfoct that the proceeding in which the decision was pronounced by the Court is still pending."

Suggested provision.

Article 74- Advice given by Ministers to the President.

Need for protection regarding material s constituting the reasons.

Supreme court case.

Another View possible.

CHAPTER 9 CONSTITUTIONAL PROVISIONS ;.t11ére\'i\»7e have so far considered the position under the Evidence Act. s an important constitutional p_r0VISl0n to which reference shculd now be made. Article 74 of the Constitution reads as under :-

"74- (1) Them 511311136 a Council of Ministers with the Prime Minister at the head to Siid and advise the President' who shall, in the exercise of his fu nctlons, act in accordance with such advice : ' Pljovided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the Ifresident shall act in accordance with the advice tendered after such re-consideration.

, (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court,"

S Similar provision is contained in article 163 of the Constitution in regard to tates.

9:2: Article 74, while preserving the conﬁdentiality of the advice tendered by Ministers, makes no speciﬁc provision in relation to the connected matters, that is to say, papers preceding the advice and forming the materials that constitute the reasons for the advice. _On this point a clariﬁcation becomes necessary in view of the discussion contained in a recent decision of the Supreme Court} 9.3. In the Supreme Court decision referred to above, the question at issue (so far as is relevant for the present report) was the ambit of the protection against disclosure under article 74(2) of the Constitution. It was held that wlhile the reasons which had weighed with the Council of Ministers would certainly form part of the advice, the material on which the reasoning is based and the advice is given cannot be said to form part ofthe advice. On this basis, the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice oflndia which constituted the material forming the basis of the decision of the Central Government in that particular case was held to be outside the exclusionary rule enacted in article 74(2) of the Constitution. In arriving at this conclusion,' one of the judgments adopts the analogy of a judgment given by a court of law. The relevant passage reads as under :----_ "The point we are making may be illustrated by taking the analogy of a judgment given by a Court of law. The judgment would undoubtedly be based onthe evidence led before the Court and it would refer to such evidence and discuss it but on that account can it be said that the evidence forms part of the judgment -? The judgment would Consist only of the decision and the reasons in support of it and the evidence on which the reasoning and the decision are based would not be part of the judgement. Similarly, the mateiial on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the materialforming the basis of the decisionof the Central Govern-

ment must accodingly be held to be outside the exclusionary rule enacted in clause (2) of article 74."

9 .4 We have given anxious co nsidcration to the reasoning and the conclusion ' in the judge merit of the Supra me Court referred to _above. Ho wevef, Wlthrespect, it appears to us that itis possible to takeadifferent viewiu the matter. It is evidence that supplies the reasons or grounds for the conclusions on Vafiplls Q1'-5590115 of fact at issue. It is because of the evidence that factual conclusions of! matters at issue are reached. To put it differently, in litigation, evidence constitutes the

1. s.r. Gupta v. Union oflndia. A.l.R. 1982 s.c. 149 (February issue) H1981) Suppl 5-013- 87, 246 to 266, paras S9-74. ' 20 _ for an Explanation to be added to-article 74 of the Constitution 21 factual grounds or reasons for the decision. Similarly, in regard to the advice tendered by Ministers to the President, the materials that support the Ministerial advice represent the factual grounds or reasons for the advice. We lhcltfclt' consider it proper to regard the materials forming the basis of the advice as part of the grounds or reasons for the advice.

9.5. The matter could be viewed from a pragmatic angle also. Under article 74(1), proviso of the Constitution} the President has the right to require the Ministers to reconsider the advice tendered by them. Now, the President cm dischirgc this cmstitutionalresponsibilityonlyif he has before him the materials that had weighed with the Ministers in tendering their advice. It is only on the basis of these materials that he can satisfy himself about the propriety oftheadvice tendered and of the extent to which the advice is warranted bythe materials. What "reasons" seeks to express is the mental process of those who give the advice. This mental process does not operate in a vacuum ; it operates in a particular setting, from which it ought not to be separated. It is common practice that the back- ground information and documents which are operative in the minds of those whose business it is to advise on high matters of State are referred to (though not set outindetail in so many words)in their advice. Itis impossible to view the advice in isolation from such materials, relevant to and referred to in the advice, thereby constituting the very foundation of the advice.

9.6. When the matter is viewed in this light, it becomes desirable to remove the doubts created in this respect by the Supreme Court judgment.2-- The impli- cations of article 74(2) of the Constitution should, in our opinion, be articulated more expressly and clearly than has been done at present. Such an amendment becomes necessary in order to re-state the position more clearly in the interest of harmonious working of the Constitution and in the interest of a faithful imple- mentation of the constitutional policy as we understand it.

9.7 At the same time, we ' are not unaware that in regard to any head of evidentiary privilege, there are dangers in framing the relevant provision toowidely. The interest ofthe litigants, on the one hand, and the interest of societyin the main- tenance of' a certain constitutional policy, on the other hand, are both important. The operative rules on the su bjeet should seek to strike a happy balance between the two. We think that such a balance could be maintained and considerable va- gueness and unintended width of the privilege could be guarded against, by provi- ding that materials to be privileged under article 74(2) of the Constitution as constituting the reasons mu st have been referred to in the advice mentioned in that article.

9.8. This postulates an amend ment of the relevant constitutional provisions. It may bediﬂicult to give a precise draft, but the following is a very rough suggestion _ to carry out the above object :-

"Explatwtiorz.--Materials that constitute the gI'0l(ll(/.3' or rmsons for the advice rendered by the Ministers to the President shall, for the purposes of this article, be deemed to be part of such (ttlvice, where such nzaterinls are referred to in such advice."

A similar Explanation_(wi_th necessary adaptation) should be added to article 163 of the Constitution, which is an analogous provision relating to the advice ten- dered by Ministers to the Governor.

We recommend that the Constitution be amended on the lines indicated above.

3. Para 9.], supra.

2. Para 9.3, supra.

4--45() L. A. D. /N.D./83 Material for reconsidera-

tion_ of the advice. .

Need for amendment.

Materials referred to in the advice tendered by Members.

Recommendations as to articles 74 and 163 of the Constitu-

gion.

General trends witnessed in England and other oounti-ies.|

3. ndo The process of evolution.

CHAPTER 10 BRIEF COMPARATIVE SURVEY I. General observations.

10.1. A study of the comparable position in many other countries, particullrly England, Australia, Canada and the United States, shows that by and large the law on the subject of State privilege is moving from rigidity to elasticity, from a formal approach to a liberal one and from the earlier position of control by the executive to the later position of the discretion being left increasingly to the judiciary. No doubt, extreme cases and unprecedented situations might provoke an extreme ' re-action in this or that direction. In general, as stated above, two broad develop- ments are witnessed; in the first place, the paramount test now recognised is that of injury to the public interest; in the second place, it is also now recognised that the ultimate authority to determine the availability of privilege in a particular case is the judiciary, and not the executive. This trend is illustrated in England by the leading decision in Conway V. Rimmer ; in Australia by the leading decision in Sankey V. W/zitlam ; in Canada by the relevant case law : and in New Zeland also by the relevant case law. Some areas in Australia and [in regard to the Federal Court) Canada have adopted a different approach--but these might be regarded as aberrations. ' 10.2. The position in England deﬁnitely bears out the general trend. mentioned above.

I 1. English Law.

10.3. The English cases on the subject of Crown privilege (now known as.

'State interest' or 'public interest') have undergone a long__proces_s of evolution.' The case law upto _Crmway V. Rz'm2_rner2 was reviewed, in detail, in the Report of the Law Commission on the Evidence Act.3 Some subsequent cases were also noted in the Report on the Evidence -Act.' Thereal'te_r, several cases have arisen on the subject. _ They do not lay down any new principle, but seem to show that the general trend is towards less of a rigid approach and more of an eleastic one.

In some ofthe cases, the claim of privilege was upheld. i'-6 In one of the cases, the claim was ove r-ruled and discovery of documents ordered. The House of Lords stressed the need to balance the public interest in non-disclosure against the 'public interest, in seeing that justice is done to the parties.' 10.4. The decision of the House of Lords in Norwich Pharmacal Ltd. V4, Customs and Excise Commissionerss is of a particular interest. The appellants were owners and licensees of a patent; information concerning imports published by the Commissioners showed that some importations must have been made by persons infringing the patent. The appellants sought an order that the Commissioner should disclose the name of the importers of the goods which were the subject of the patent. Though_of the opinion that the Commissioners had rightly refused to make a disclosure without an order of the court, the House of Lords made the

1. C15 Cross, Evidence (1979), pages 306, 307.

2. Conway V. Rimmer, (i968) I All E.R. 874 (1-l.L.).

3. Law Commission of India, 69th Report (Evidence Act).

4. For a brief survey, see D.C.M. Yardley, "Executive Privilege"(l974) New Law Journal 794,196

5. R. V. Lewes J. J. ex-.Pzzr!e Home Secretary, (1972) W.L.R. 279 (H.L.). ~

6. Allied Crompton Am.vis_ement Alachihes Ltd., (1973) All E.R. 169 (H.L.).

1. N"%riIi:i¢).'h Plzarmacal Co. Ltd. V. Commissioners of Customs & Excise, (1973) 2 All ER. 943. i

8. lbrivici Pharmacal Co. Ltd._V.' \Custams & Excise Commissioner. (1973) 2 A1lE.R. 943 (HJ.

22 23

order. The most relevant consideration was that the persons whose names were to be disclosed were almost certainly wrongdoers} Other relevant considerations were said to be the relations between the wrongdoers and the Commissioner, whe-

ther the information could be obtained from another source, and whether giving it ' would involve the Commissioners in trouble which could not be compensated by an order for costs? .

10.5. Lord Edmund Davies's observations in another case are also pertinent.

"The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be' determined is whether it is clearly demonstrated that in the particular case the public interest would never- theless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered"3.

10.6. The principle as emerging from various judicial decisions in England has been stated thus in the leading English book on Evidence4 :-

"Relevant evidence must be excluded on the ground of public policy when it concerns certain matters of public interest considered to be more important than the full disclosure _of facts to the court and when it relates to _misce1laneous matters connected with litigation". 9 10.7. The rule speciﬁcally relating to public interest has been simply stated as followS5 :--

"Relevant evidence must be excluded if its reception would be contrary to State interest, but 'State interest' is an ominously vague expression and it is necessary to turn to the decided cases in order to ascertain the extent to which this objection to the reception of relevant evidence has been taken".

Some illustrative cases may be mentioned.

10.8. Discussion of Englishiaw in the text books genemlly appears under various categories, national security, public service and the like In one of the cases" involving national security, the defendants, acting under the direction of the Board of.Admiral_ty, refused to produce a letter to their agent on the ground that it contained information concerning the G _overnnent's plans with regard to one of the Middle Eastern canipa=gns of the First World War. The information had, of course, been given to the defendants by the Board of Admiralty under the sea] of strictest secrecy, but as Swinfen-Eldy, L. J. observed :--

"The foundation ofthe rule is that the information cannot be disclosed without injury to the Dll_bl'C1n'3'3i'€9*«S, and not that the documents are conﬁdential or oﬂicial. which alone is no reason for their non-production : the general pnbhc interest is paramount to the interests of the suitor".

Where the security Of til'? State is involved, the claim of privilege (if substantiated by adequate material) may be more readily upheld7.

10.9. Many national interests other than that of national security have been protected by_the rule under consideration." One of the cases may be cited.9 Internal communications between the Customs and Excise Commissioners and their staff and communications of the Commissioners with third parties, all of which were brought into existence to enable the Commissioners to fulﬁll their statutory obh- gntion of forming an opinion concerning the basis on which purchase tax should be payable by the company, were held to be proper subjects of a claim to withhold them from production in the public interest.

The only innocent importers would have been re-importers.

01 the last two cases, see a note by GP. Tapper, 37 M.L.R. 92.

D. V. N. 5'. P. C. C. (1978) A.C. I71, 174, 246; (1977) 1 All E.R. 589.

Cross, Evidence (1979), page 304.

Cross, Evidence (1979), page 306.

Asiatic Petroleum Co. Ltd. V. Arzglo-Persian Oil Co. Ltd., (1916) 1 KB. 822, 830. 0/2 Duncan V. C/1m'?'l'l Laird & Co. Lrd., (1942) 1 All E.R. 857.

Cross, Evidence (1979), page ")7.

A'fp-ed Crompton Am-isement M zc/zines V.' Customs Commr., (1973) 2 All E.R. 1]59_ \D°°"?""4":*'?"."

The priniciple National security.

Other national interest.

Communications in public service.

Residual categories.

Cabinet minutes.

Police in-

formation.

Criminal C.lS'?S. Public interest -

suggestion for catego-

risation.

, .1010. The claim of privilege has been occasionally sought to be justiﬁed in circumstances where a report has been made from one public servant to another in course of his duty. The argument here is, that the report should be treated as conﬁdential if it was prepared in conditions under which the oﬂicials making it expected it to be so treated. If conﬁdentiality is destroyed, then 'the civil servant would not (it is stated) he prepared to write full and frank reports. The category can be conveniently labelled 'as a claim arising under the head of "public service". It would, however, appear that at the present day the privilege under this head is not recognised in England separately. The agrument that a conﬁdential report will not be made frankly (if there is a probability of public scrutiny) has been criti- cised more than once by English academic writers} Garner suggested' long ago that itrreally does not stand up to close examination, because "a civil servant shouid not be prepared to write a report that may be open to criticism or one that he does not wish to be examined in court (save on state security grounds)".

The House of Lords, dealing with the argument that the candour oficommu. nication between civil servants might be prejudiced if a privilege is not recognised observed in Com:/ay's case3 as under :-- ' "It is strange that civil servants alone are supposed to be unable to be candid in their statements made in the course of duty without the protection of an absolute privilege denied to their other fellow subjects".

10.11. There are other residual circumstances in which privilege is claimed This is the residual category under "public interest". It seems, that in Eng1and' this category is deﬁned by reference to speciﬁc heads, such as, the prevention of speciﬁc crimes and the maintaining of the morale of the armed forces of the Crown However, even these speciﬁc heads have not escaped criticism, judicianyi and' otherwise5 According to Cross"---

"It is diﬂicult to believe that all the cases mentioned (by him .1 head of other national interests would be followed today". ) un er the Cross cites the following observations of Lord Hailsham of St. Marylebonet ;_ "The categories of public interest are not closed, and must alter from time to time, whether by restriction or extentron, as social conditions and social legis- lation develop".

10.12. As to'Cabinet minutes, communications with ambassadors and some cases of communications between heads of departments, it was conceded in the speeches in Conway V. Rimmers that no court would order the production of such documents.

10.13. Sources of police information are a judicially recognised class of evi-

dence, excluded on the ground of _public_ policy unless their production -is required to establish innocence in a criminal trral9.

10.14. As to criminal cases, in England, it is stated not to be the practice to A claim privilege on the ground of State interest").

10.15. Suggestions have appeared in England that legislative action should be taken to particularise the species of public interest which should be taken into account". But no such restrictive legislation seems to have beenenacted so far in Eng'and. '

1. For example, Ingris Bell in (1957) Public Law.

2. Garner, Administrative Law (1967), page 252----a view repeated in later edition.

3. Comvay V. RfIIl'}l3V, ([958) 1 All E.R. 874, 919, 967 (H.L.).

4. Regrossnor Hobe (No. 1) (1963) 3 All E.R. 426, on appeal (1964) 1 All ER. 92.

5. Articles in (a) 79 L.Q.R. 37, 153, 487.

(b) so L.Q.R. 24, 158.

6. Cross, Evidence (1979), page 309.

7. D. V. N. S. P. C. C. , (1978) AC. 71, 230.

8. Conway V. Rimmer, (1968) All ER. 910, 971.

9. Rogers V. Secretary of State for the Home Department. (1972) 2 All E.R. 1057.

10. Cross, Evidence (1979), -page 310. .

11. Clark, "The Last Word on the Last Word" (1969) , 32 Mpdern Law Rev. 142, I48.

10.16. According to some of the earlier English cases, the production 07 3 document may be withheld in public interest either on account of its contents or else because it belongs to a class which, on grounds of public policy_must, as a class, be withheld from production. The latter ground of production Is usually raised when some ground other than the national securityis at stake} However, the trend in modern times, so far as the privilege claimed on the ground of affairs of State or public interest is concerned, is to apply one uniform test, the governing consideration being the simple (though abstract) one of injury to public interest. Relevant evidence must be excluded if the reception would be contrary to State interestz.

10.17. There is probably no category of documents such that courts will never order a document failing within it to be disclosed?-4 It may be that, in practice, the fact that the d subject may induce the court to accord' to that document a higher sanctity than to otherdocuments of a more routine character. In this way, the nature of the document may be one of the relevant considerations in coming to a conclusion as to how far it deserves protection on the ground of injury to the public interest. But the formu- lation of the rule in abstract terms is not affected by this aspect, though it may be useful in spelling out, in more concrete and visible form, that which is indicated in abstract terms by a general rule. If one were to prepare a digest of reported cases, such a classiﬁcation would perhaps be convenient as furnishing a label undei which to ariange the discussion. Beyond that, classes may not necessazily furnish a basis for devising legal categoiies. \ ocument relates to a particular I 10.18. As to procedural aspects, in Conway V. Rimmer5, it was speciﬁcally and positively laid down that whenever an objection is made to the production of a relevant document, it is for the court to decide whether to uphold the objection. It was also held that the inherent power of the court must include a power to ask for a clariﬁcation or ampliﬁcation of an objection to production, though the court will careful not to impose (at that stage) a requirement which could only be met by divulging the very matters to which the objection related. Further, the power of the court must 'also include a power to examine documents privately though that POW" 5110"" 'I1 Practice be Spafingly exercised. Finally, as Lord Morris of B0I'th'Y'g¢5t 0bS€1'V€d 2 "I See no difference in principle between the consideration which should govern what have been called the contents cases and the class cases.""

10.19. No distinction is made in England between cases . . , in which Crow ' party and those in which the proceedings are between private citi I1 Is a zens or corporations'.

III. Austraila and Canada 10.20. In Australia, two important develo e t The _well known decision of the High Court pm n S have taken speciﬁcally holds that it is the responsibility of the court to decide whether a docu_ . _ m disclosure in the public interest. The court must balance the public interest in non-disclosure against the public interest in pro e J'uSiiC€- The nature Of the Public interest involved will vary from case to case P5,:

that the protection afforded to documents of a class concerned with high 1eve15' of G0VeI'I1mel1t Cannot be absolute, nor enjoyed for ever. According to the above _ _ Place recently.

of Australia in Sankey V. Whirlgmﬁ . Cross on Evidence (1979), page 307, Cross on Evidence (1979), page 306, Lord Fraser in Science Research Council V, Nasse, See also para 10.18, infra.

Conway V. Rimmer, (1968) A.C. 919, 971 (Lord Morris of Bon}, Cf. para 10.16, supra.

Cross, Evidence (1979), page 389, Smkey V. Whitlam, (1978) A.L.R. 505, 535-546 (High Court of Australia).

(1979) 3 W.L.R. 784.

I 2

4. g' 'Y-gest).

8. Class-

content distinction.

Categori-

sation not favoured in England-

Procedural aspects.

Arranging of parties _ not material.

Australia and Canada.

Legislative reaction in , Australia.

New South Wales Amendment.

'i6 ruling, the fact that a document belongs to a class of documents that would ordi- narily be regarded as protected from disclosure in the public interest is not neces- sarily determinative of the issue. Factors other than the document's membership of the class might be relevant to the balancing of the public interest.

10.21. The case mentioned above was a private prosecution brought against the former Prime Minister and two members of the Labour Ministry in Australia, alleging a conspiracy arising out of the so-called "Loans Affair". The documents summoned included documents 1 comprising cabinet papers and communications between Ministers and senior oﬁicials of the Government in relation to matters of Government policy. Some of the documents had already been published in The Bulletin magazine and also in a book; some had even been tabled in Parliament in the course of a debate on the "Loans affair". The magistrate before whom pri- vilege was claimed upheld the claim of privilege by the Commissioners for all the documents summoned in respect of which theprivilege had _been claimed. The matter came up-before the High Court on the informant seeking a writ of mandamus and declaration for pi'_o:luction of the documents originally summoned. The High Court declared that (with one exception) all the documents ought to be produced. As regards the excepted document, a part of thevsaid document was also to be made available. It was clearly laid down by the High Court that there was no particular class of documents exempt,--not even cabinet papers. The nub of the decision is to be found in the statement of Stephen, J."-

"The judge-made law relating to Crown privilege is no code, it erects no immutable classes of documents to which a so-called_absolute privilege is to be accorded. On the contrary its essence is a_r-ecognition of the existence of the competing aspects of the public interest, their respective weightsand hence the resultant balance varying from case to case".

10_22, This is the first development in Australia on the judicial side, But this is countered by the second noteworthy development in Australia, being a legis- lative reaction to the above decision in Sankey V. W/zitlanji. An example of this is the Evidence Amendment Act, 1982 passed for the_Australian Northern Territory. This Act allows the Attorney-General to make a claim of privilege, if he considers that in the public interest certain documents or communications should not be released. If such a claim is made the court cannot admit those documents or communications in evidence. The Act covers relates to documents involving Ministers, Cabinet or the Executive Council, and communications between Federal and State Ministers.

The above legislation was _vehementl_y criticised by the opposition, in the course of discussion of the Bill in the legislature".

10.23. Incidentally, it may be of interest to men_i.i_on that the Australian judg- ment in Sankey V. W/zitlam has been cited in a decision of the House of Lords,' apparently expressing agreement with its broad approach.

10,24. It appears that as a reaction to the decision in _Sankey V. W/zitlam, the New South Wales State Government also amend ed the Evidence Act to provide in section 61(1) as under :----

"61. (1) When the Attorney General certiﬁes in writingjthat in his opinion-- « (3) any communication described in the certiﬁcate or any communi-

cation relating to a matter so described, is a government communication and is conﬁdential; and

(b) the disclosure of the communication in any legal proceedings described in the certiﬁcate is not in the public interest, the communication shall not be disclosed in or in relation to those legal proceedings or be admissible in evidence in those legal proceedings".

1 Dennis Pearce, "Of Ministers, Referies and Infcrmers---Evidence Inadmissible in the Public ' Interest" (1980), 54 Aust. L.J. 127, 128. .

2. Sarikey V. Wlu'tIam, (1978) 54 A.L.J.R. 1], 31 (High Court of Australia).

1. Evidence Amendment Act,l982 foriheAuslraliaii Northern Territory. See(Julyl982) 8 Com- . monwealth Legal Bllllﬁiin 890- 4 Burmah Oil V. Bank of England, (1979) 3 W.L.R. 722, 760 (Lord Scarman).

2'?

_ 10.25. In Canada, the rule (apart from a speciﬁc statute, to be presently 111611- tioned)1 as laid down by the case law? seems to be a liberal one. Most Canadian courts have followed the English decision in Conway V. Rimmer in regard to the subject of State interest, although occasionally a different approach is visible. From a survey of the judicial decisions in Canada, it Wbuld appear that at least in cases ' where there is no question of national security or international relations or cabinet conﬁdence, the claim of privilege on the basis of State interest will be reviewable by the courts in Canada''-''. .

10.26. However, there is one speciﬁc statutory provision--section 41 of the Federal Court Act, 1970 (an Act dealing primarily with the structure, jurisdiction and procedure of the new Federal Court of Canada)--which adopts a somewhat, different line of approach. The section reads as under5 :

"4l. (1) Subject to the provisions of any other Act and to sub-section (2) when a Minister of the Crown certiﬁes to any court by afﬁdavit that a document belongs to a class or contains information which on grounds of a. public interest speciﬁed in the affidavit should be withheld from production and discovery. the court may examine the document and order its production and discovery to the parties, subject to such restrictions or conditions as it deems appropriate if it concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest speciﬁed in the affidavit.

(2) Wh_en a Minister of the Crown certiﬁes to any court by affidavit that theprocluction of discovery of a document or its contents would be injurious to international relations, national defence or security, or to federal-provincial Canada.

Legislative reactions in Canada---

Federal Court Act.

relations, or that it would disclose a conﬁdence of the Queen's Privy Council .

for Canada, discovery and production shall be refused without any examina- tion of the document by the court."

IV. U. S. A. 10.27. The case law on Governmental privilege in the U.S.A. has not been so rich and profuse as in Commonwealth jurisdictions. But at least two judicial decisions are noteworthy. The first is U. S. V. Reynolds,' which established the proposition that it is the judiciary that decides whether the privilege claimed on a particular occasion is justiﬁed or not.

10.28. The trend is conﬁrmed by the famous case of United States V. Nixon,' which suggests that the privilege in the areas of "State" secrets and "oﬂicial infor- mation" is qualiﬁed and gives way upon a judicial assessment-that there are more important interests to be served by disclosure in a particular _.case. To some extent, the decision in United States V. Nixon may be regarded as going further in the direction of liberality than the earlier decision in U.S. V. Reynolds", inasmuch as judicial weighing of the conﬂicting considerations is now given a place of pride, 10.29. Literature on the above decision is abundant. The entire bunch of papers involved in the litigation has been brought out conveniently in one publi- cation". Soon after the judgment, there appeared several articles, of which it is enough to mention two which (taken together) cover almost all aspects of the deci-

sion 10-1'.

Paragraph 10.26 infra.

See case; cited in Stanley Schiﬁ', Evidence in the page 1069.

Litigation Process 1978, Vol.2,

3. Barshnall, "Crown Privilege" (1973) 51 Canadian Bar Rev. 551.

.4. Nate, "Executive Privilege" (I975) 33 Univ. of Toronto Faculty Law Rev. 181.

5. S:ction 41, Federal Court Act, 1970 (Canada).

6. U.S. V. Reynolds, (1954) 345 US: 1.

7. U.S. V. Nixon, (1974) 418 U.S. 683.

8. U. S. V. Reynolds. (1954) 345 U.S. 1.

9. Leon Freedmm (Ed.), U.S. V. Nixon : President before the Supreme Court (1974).

10. Symposium, U.S. V. Nixon, (1974) 22 UCLA Law Rev. 1-140.

. Paul A. Freuricls, "On Presidential Privilege" (I974) 88 Harvard "Law Rev. 13.

POSlIi0n in U.S The --

decision of 195 3. .

The decision of 1974.

Draft Federal Rules.

Obscurity of position-

Draft Federal Rules of Evidence.

"Secrets of State" and "Oll'icial_ information".

Practice in U.S.A. Secrecy in Government and U3.

Developments.

10.30. No doubt, some of the obiter dicta in the judgment in U. S. V. Nixon (obse rvai ions relating to national security etc.) create the impression that the Court would go back upon its liberal approach earlier shown in U.S. V. Reynolds. How- ever, that itself is a matter of some controversy.

Perhaps because of the obscurity of the position arising from the paucity of case law, one eminent writer on American constitutional law' has stressed the need for laying down some deﬁnite rules.

10.31. Before the decision in US. V. Nixon was pronounced, there had been formulated in 1972, the draft federal rules of evidence', and it is desirable to quote the relevant provision as proposed therein, so as to show the thinking even at that time. This is how the rule as to governmental privilege was formulated in those rules----

"The Government has a privilege to refuse to give evidence and to prevent any person from giving evidence upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of State or official information as deﬁned in this rule."

10.32. In the same formulation, the documentswere divided into two cate- gories, namely secrets of State and official information, respectively. A "Secret of State" is a governmental secret relatingto the national defence or the international relations of the United States. "Official information" is information within the custody or control of a department or agency of the Government, the disclosure of which is shown to be contrary to the public interest. Although the category of secrets of State (danger to national defence or international relations) separately mentioned in this formulation was probably derived from the decision in _U.S. V. Reynolds, it should be mentioned that under that decision the judge" must in every case determine whether the circumstances are appropriate for the claim of the pri- vilege. Further (as already mentioned above), the later decision in U. S. V. Nixon shows a more liberal approach. That decision held that the interest of accused Watergate conspirators in rriaishalling evidence in their defence outwieghed the President's claim' of privilege. Although the decision in U. S. V. Nixon related to protection claimed in high level communications in the executive department and did not relate, as such, to national defence, it would_appear that the courts in United States wouldnot now leave the question of privilege entirely to the dis- cretion of the executive.

10.33. As regards the actual procedure to be followed, the formulation pro- posed in the U.S. draft Federal Rules is of interest as showing the general approach. Rule 509 (c) of those rules" proposed as under :--

"(c) Procedure. The privilege for secrets of State may be claimed only by the chief officer of the Government agency or department administering the subject matter which the secret information sought concerns, but the privilege for ofﬁcial information _may be asserted by any attorney representing the Government. The required showing may be made in whole or in Phrt in the form of a written statement. The judge may hear thematter in chambers but all counsel are entitled to inspect the claim and showing and to be heard thereon,' except that, in the case of secrets of State, the judge, upon motion of the Government, may permit the Government to make the required showing in the above form in camera. If the judge sustains the privilege upon a showing in camera, the entire text of the Government's statements shall be sealed and preserved in the court's records in the event of appeal. In the case of privilege claimed for oiﬁcial information the court may require examination in camera of the information itself. The judge may take any protective measure which the interests of the Government and the furtherance of justice may require".

10.34. It may also be mentioned that the general approach to "secrecy in Government" has been afi'ected<by' the passage of the Freedom of Information Act, although that Act does not directly deal with evidentiary privilege.

'The subject of cabinet papers as such does not seem to have received much speciﬁc discussion in the United States.

1. Philip Kurlaﬂd, In Los Angeles Times (22 June, 197 5) referred to by Pritchett,Amei-icau Consii. tution (1977), page 250, fir. 19.-

2. Rule 509, Federal Rules of Evidence (1972) (proposed).

3. Rules 509(0); Fedclal Rules of Evidence (proposed).

CHAPTER 11 RECOMMENDATIONS As a result of the discussion contained in the preceding Chapters, certain changes in the present law will be required. These changes concern (a) the Indian Evidence Act. l872, (b) the two procedural Codes, and (c) the Constitution.

(a) So far as concerns the Indian Evidence Act, 1772, the recommendations relate to sections 123. 124 and 162.

(i) Section 123 should be revised as under :-

"l23. (1) Subject to the provisions of this section, no one shall be permitted to give any evidence derived from unpublished ofﬁcial records relating to any affairs of State, unless the officer at the head of the depart-

' ment concerned has given permission for giving such evidence.

(2) Such officer shall not withhold such permission, unless he is satis-

ﬁed that the giving of such evidence would be injurious to the public interest; and where he withholds such permission, he shall make an afﬁdavit contain- ing a statement to that effect and setting forth his reasons therefor:

"Provided that where the Court is of opinion that the affidavit so made does not state the facts or the reasons fully, the Court may require such officer or, in appropriate cases, the Minister concerned with the subject, to make a further atﬁdavit on the subject.

(3) Where such ofﬁcer has withheld permission for the giving of such evidence, the court, after considering the aﬂidavit or further aﬂidavit, and ifit so thinks ﬁt, after examining such ofﬁcer or, in appropriate cases, the Minister, orally,----

(a) shall_issue a summons for the production of the unpublished official records concerned, if such summons has not already been issued; .

(b) shall inspect the records in chambers; and

(c) shall determine the question whether the giving of such evidence ivould or would not be injurious to the public interest, recording its reasons therefor.

(4)_ Where, under sub-section (3), the court decides that the giving of such evidence would not be injurious to the public interest, the provisions of sub-section (1) shall not apply to such evidence".

(ii) Section l24 of the Evidence Act should be revised as under :--

_ '.'l24. (1) No public officer shall be compelled to disclose commu- nications made _to him in oﬂ'icial conﬁdence, when the court considers that the public interests would suffer by the disclosure.

_ (2) Where a public oﬂicer who is a witness is asked a question which might require the disclosure of any such communication, and he objects to answering the question on the ground that the public interests would suffer by its disclosure, the court shall, before rejecting his objection, ascertain from him, in chanibers, the nature of his objection and reasons therefor.

(3) Nothing in this section applies to communications contained in un-

published oﬂictal records relating to any affairs of State, which shall be dealt with under section 123.1"

1'.

As to newly proposed section 124(3), seepara 2.5 supra.

29 30

(iii) In section 162, second paragraph, evidence Act, the words "unless it refers to matters of State" shall be deleted.

(I3) As regards the two procedural Codes, the Code of Civil Procedure,_1908 » and the Code of Criminal Procedure, 1973--it.will be necessary to insert in both the Codes at the appropriate place a provision somewhat on the following lines':----- .

"Any person aggrieved by the decision of any court subordinate to the High Court rejecting a claim for privilege made under section 123 or section 124 of the Indian Evidence Act, 1872 shall have a right of appeal to the High Court against such decision, and such appeal may be ﬁled notwithstanding the fact that the proceeding in which the decision was pronounced by the court is still pena'z'ng." '

(c) As regards the Consititution, articles 74 and 163 will need amendment, on the lines recommended in the relevant Chapter of thls Report".

K.K. MATHEW C. ; .. . . Chairman NASIRULLAH mac . . . - . Member 1.9. CHATURVEDI . . . . . Member _ P.M._BAKSHI . . . - . - Member (Part-time) M.B. RAO Q Lo . . . . Member-Secretary.

Dated : 7th January, 1983.

1. Cf. Chapter 8, supra.

2. Paragraph 9.8, supra.

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7. ll

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12. 22

13. 29 Para 1.11 Footnote I Footnote 7 Footnote 8 4.1 5.2 5.2 5.2 8.2 8.2 9.4 Footnote 8 ERRATA Line ._ :-A \DLpt.ng;<»OO,_.»--,_.

Top line 1 Sub-Para (a) of 1st Para I G1PN~Sec. 3-450 L.A. D. (N._D.)]83----2-5-86--625.

v. C. Comrs.

All F. R. 201 Phips on Sodni do ument pupﬁc puplic relavent privilage controverses factual Commissioner 1 772 Redd v. Comrs.

All E. R. 20l Phipson Sodhi document public pubﬁc relevant privilege controversies-

factual C ammissioners 1872

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