Section 50 in Conduct of the Government Litigation, Rules, 2000
50. Procedure for production of documents from the Government records in the file.
(1)The law relating to the production of unpublished official records as evidence in the Court is contained in sections 123, 124 and 162 of the Indian Evidence Act, 1872 (Act of 1872).(2)For the purpose of section 123 of the Indian Evidence Act. only the Minister in-Charge or the Secretary of the department concerned should be treated as the authority to withhold or give the necessary permission for the production of official documents in evidence.(3)When a document is called for from a Government Officer, who is not the head of the department, he should refer the matter for orders to the Secretary of his department. The Secretary of the department should then carefully consider whether the production of he documents should not be objected to;(b)In respect of document emanating-(c)From a higher authority, viz, the Government of India, or the State Government or which have formed the subject of correspondence with such higher authority; or(d)From other Governments, whether foreign of Indian States, the head of the department should obtain the orders of Government before agreeing to produce the documents in the Court, or allowing evidence based on them, unless the papers are intended for publication, or are of a purely formal or routine nature, when a reference to Government may be dispensed with.(5)In the case of documents other than those specified in sub-rule (4) above, the production of documents should be withheld only when the public interest would, by their disclosure be injured, or where disclosure would be injurious to national defence, or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. Broadly speaking, privilege should be claimed under section 123 in respect of the following documents:-(a)Administrative instructions and guidance notes secretly given to various departments of Government;(b)Documents embodying the minutes of the Council of Ministers and the advice given to the Governor;(c)Advice tendered by the Public Service Commission to the Council of Ministers and its report;(d)Documents embodying the minutes of the discussion between private party and a State Minister and indicating the advice given by the Minister.(6)For claiming privilege under section 123 read with section 162 of the Indian Evidence Act, the following points should be noted:-(a)Section 162 makes it clear that when the State or a Government Officer is summoned to produce a document in respect of which he desires to claim privilege on the ground that it relates to any affairs of the State, he is bound in the first instance to appear and bring it in a sealed cover to the Court under section 162 notwithstanding any objection that he may have as to its production or advisability and then claim privilege for it in the proper way of an affidavit;(b)The head of the department should have document before him and give careful attention before claiming privilege and his affidavit should contain an indication as to the nature of the documents as to why privilege is claimed, what injury to public interests is apprehended or what affairs of the State are involved. The sole and the only test which should determine the decision of the head of the department is injury to public interest;(c)The privilege should be claimed generally in the form of an affidavit by the Minister-in-Charge, if not, the Secretary of the department concerned;(d)In every affidavit made for claiming privilege in respect of any document it must be emphasized that the document called in evidence is derived from unpublished official records relating to the affairs of the State, the disclosure of which would lead to injury to public interest.(7)The foregoing provisions apply to all cases irrespective of the fact whether the State or its officers are parties or not to any suit or other proceeding, in cases in which the State or its officers are parties, a reference to the Legal Remembrancer shall be made, when necessary.(8)A Government Officer other than the head of the department who is summoned to produce an official document, should first determine whether the document is in custody and he is in a position to produce it. Generally, all official records are supposed to be in the custody of the head of the department and it is only under special circumstances that an official document can be said to be in the custody of an individual Government Officer. If the document is in the custody of any Government officer summoned, he should first determine whether the document is an unpublished official record relating to affairs of the State and privilege under section 123 should be claimed or if he has any doubt about the correct position, in both the cases he should refer the matter to the Secretary of his administrative department, who shall then issue necessary instructions and shall also furnish the affidavit in suitable cases. If the document is such that privilege under section 123 cannot be claimed but if the Government Officer considers that the document is a communication made to him in official confidence and that the public interest would suffer by its disclosure, he should claim the privilege under section 124. In doubtful cases, he should seek the advice of the Secretary of his administrative department.(9)The Government officer, who is to attend a Court as a witness with official documents should where permission under section 123 has been withheld, be given an affidavit duly signed by the Secretary of his administrative department. He should produce it when he is called upon to give evidence and should explain that he is not at liberty to produce the document before the Court or to give any evidence derived from the documents. He should, however, take with him the papers in a sealed cover which he has been summoned to produce.(10)The Secretary of the administrative department should abstain from entering into correspondence with the Presiding Officer of the Court concerned in regard to the grounds on which the documents have been called for.
