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17. By reference to various authorities and system of jurisprudence adopted by us we have pointed out above that in order to ensure a fair and just trial and fair administration of justice the trial shall be held in public subject to those well recognised exceptions which we have pointed out above. By the impugned provision a trial for the offence of defamation committed in respect of high dignitaries as President, Vice President, a Minister of the State or public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of public functions can be held in camera at the desire of a party thereto. A party to a trial for such an offence has merely to express a desire that the trial shall be held in camera and the Court is bound to respect the same. There is no option to the Court. Once the desire is expressed by either party to the proceeding, the mandate of the section is that the Court shall direct the trial to be held in camera. A trial in camera is not wholly unknown to law. There are express provisions in certain statutes and as recognised in Mirajkar's case, the Court has inherent power to direct the trial to be held in camera. The Court after considering all the aspects of the matter in its discretion may direct that the trial may be held in camera. Without going so far, as done by Lord Shaw in Szott v. Scott (supra), that the Court has no power to direct that the trial be held in camera, we would say that the exception to general rule may be carved out on an overriding principle on which exception can be based that trial shall be in camera. It is not merely a case of the individual discretion of a Judge in a given case that trial should ordinarily be held in camera but it must be on an overriding principle on which the exception should be based. One such exception recognised in Mirajkar's case was that if the primary object for which the Courts are constituted is to do justice between the parties, if the very object would stand defeated by an open trial, then in order to achieve the object for which the Court exists the trial can be directed to be held in camera. The impugned provision shifts the power from the discretion of the Court to the desire of a party. The mischief enacted by the section can be well gauged by a simple illustration. On a complaint being filed by a public prosecutor as envisaged by Section 198B the Court of Sessions starts to commence the trial. At that time the accused can walk into the Court and tell the presiding judge to ask every one to clear out of Court except of course be Judge, the complainant and his advocate and the accused assisted by his advocate. The Court will have lo direct every one to clear out of the Court not because the Judge thinks that the ends of justice will be defeated by holding the trial in public, but because it is so dictated by the whim, fancy or caprice of a party. On a mere expression of a desire by a party, the procedure for trial can be dictated one way or the other and the party expressing desire need not support it by any cogent or convincing reasons. If public trial is the essence or inalienable facet of rule of law, negation of it by a mere desire of a party would be the very antitheses of rule of law. It was once said that to remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundation of freedom from the rock to sand. The present situation would be almost inconceivable. Here the maintenance of the right is to be remitted not to the judicial discretion but to put it most mildly to the whim, caprice or fancy of a party. When we examine a little later the question of any object sought to be achieved by such a provision, we would like to point out that except in one case the provision is likely to be self defeating. Apart from that, can any one visualise a case in which trial of a judicial proceeding is to be regulated, not according to judicial decorum, not according to prescribed procedure, not according to discretion to be exercised by Judge keeping in view inherent powers of the Court but according to the dictate of a party. Such is the effect of the provision more especially of the words "every trial shall be held in camera if either party thereto so desires". In our opinion this provision confers a very arbitrary privilege undoubtedly on both the parties to the proceedings to claim a trial in camera. If public trial is the rule and exception is to be based on some overriding principle, we fail to see how the provision by which a party at his sweet will can deny general principle of public trial and claim a camera trial can be said to be a reasonable or a just provision founded on some overriding principle. It will not only impose fetter on Court's power but it will undoubtedly put fetter on justice. Such is the effect of the provision contained in Sub-section (5 A). It undoubtedly puts a very serious restriction on the power of the Court to continue to hold a public trial. Even if the presiding Judge was of the opinion considering the facts and circumstances in which trial is held and in a given case such as where there is hostile atmosphere even as against the accused because of a gruesome offence committed by him to direct a camera trial yet it will be judicial discretion which will have to be exercised before a trial in camera is directed and if directed in exercise of the judicial discretion, it can be corrected by superior Court. But if public trial is to be denied just at the expression of a desire of a party only, it cannot be denied or resisted by presiding judge even if he is of the contrary opinion and in our opinion it cannot be even corrected by a superior Court because the discretion vests in the party and not in the Court. The far-reaching consequence of the provision can be gauged by saying that not only the original trial can be in camera with all the implications of a camera trial such as perpetual seal on the record of the case but even the proceeding in appeal which is only a continuation of the trial can be sealed. A provision by which such an arbitrary privilege is conferred upon a party could hardly stand the test of rationality or reasonableness.

20. Reverting, now to the discussion whether the provision by which a trial should be regulated according to the behest of a party is-reasonable or not or is so utterly unreasonable and irrational as to be unsustainable, before examining that aspect in detail, we would dispose of one submission of Mr. Shah. Mr. Shah urged that apart from the claim of privilege, camera trial itself is not antagonistic to the, rule of law. The question is not whether camera trial by itself is the antithesis of rule of law, the question is whether the procedure for trial is to be regulated at the instance or at the behest or at the dictate of a party or according to law which must be reasonable. The aspect of privilege we have already examined. We will now examine the Second submission that the public interest will suffer in a given ease where high dignitary or public servant defamed in discharge of public function is the complainant and in an attempt to prove the prosecution case, reliance may have to be placed on documents involving State secrets and if a public trial is held the documents will become public. Conversely, in such a situation the State "may not permit production and cause of justice would suffer. Mr. Shah contended that if privilege is claimed, the State will not be able to lead its evidence and if privilege is not claimed and a camera trial cannot be insisted upon, the Stale would be seriously inconvenienced because it may have either to give up the prosecution oh the pain or disclosure of its State secrets or it will have to permit publication of State secrets. This approach overlooks another statutory provision in the section which provides that the Court has a discretion to hold a trial in camera. Both the inconveniences can be avoided by requesting the Court to hold a camera trial, because times without number we have indicated that there should be a power in the Court to direct camera trial for safeguarding public interest. If the State feels that it must lead evidence of a document containing State secrets and that it should not be published, it would be open to the State to move the Court to direct a camera trial. The latter portion of Sub-section (5 A) certainly provides for it. Mr. Shah is right in his submission that Section 352 of the Criminal Procedure Code does not include in its ambit all the ingredients of a full camera trial. It undoubtedly provides for a public trial. By its proviso it confers power on the Court to exclude certain persons from the Court-room but there ends the Court's power. If the Courts were to exclude certain persons from its precincts such an order would not have the effect of a camera trial because anyone who is entitled to be in the Court can publish the proceeding and the very purpose may be frustrated. In our opinion, it is the Court who alone must have power to decide whether in a given case the trial must be in public or in camera. While deciding the motion the Court must put in balance the public interest achieved by administration of justice in public and disclosure of State secrets which might cause injury to public interest and find out which way the balance tilts and decide accordingly. If the Court can be trusted to do justice between the parties by reaching a conclusion on the evidence placed before it we fail to see how the same Court could not be trusted to decide whether the trial shall or shall not be in camera. We fail to see how public interest is to be achieved by conferring such a privilege on the parties to a proceeding depriving Court of any discretion in the matter.

25. While reacting Criminal Procedure Code, the Legislature was conscious of the fact that there may be a class of persons brought before the Court in whose cases to attain higher objective for which the Courts were constituted, namely, to do justice, it would be reasonable to keep out certain persons from the Court. While, therefore, enacting Section 352 first a provision was made for assuring fair administration of justice, namely, that a trial shall be held in public. Therefore, the Court shall be deemed to be an open Court by first part of Section 352. A proviso was incorporated in it by which power was conferred upon the Presiding Judge that at any stage of any inquiry into, or trial of, any particular case, if he thinks fit that the public generally, or any particular person, shall not have access to or be or remain in the room or building used by the Court he may make an order accordingly. This power was limited to exclude certain persons from the Court during the course of the hearing of the case. This power conferred by the proviso would not enable the Court to direct a camera trial with all its implications. Therefore, it can be said that for the trial of offence concerning high dignitaries and public officials wherein in a given case the evidence as to matters considered secret by the State may have to be given that a camera trial may itself become necessary for achieving higher object for which the Courts are constituted. But in that case, the power shall be in the Court and it shall not be the privilege of a party. Therefore, in enacting a portion of Sub-section (5 A) by which power was conferred upon the Court to direct a camera trial, the provision would be proper and legitimate. The Legislature far exceeded the requirement by conferring privilege upon a party to claim camera trial at its mere desire. As between the individuals who are defamed and who have to initiate proceedings under Section 198 and the high dignitaries and public officials who are defamed and in whose case a prosecution can be launched by public prosecutor under Section 198D, there is discrimination. However, the classification is founded on intelligible differentia and even if the differentia had reasonable relation to the object sought to be achieved, the Legislature far exceeded its requirement by enacting latter portion of Sub-section (5A) by which party to the proceedings can compel the Court to hold a trial in camera. In our opinion, the provision, therefore, is far in excess of the requirement and/or the object sought to be achieved by introducing Section 198B. This particular provision cannot be said to further the object sought to be achieved. Even in the class of persons covered by Sections 198 and 198B there is discrimination and even the still narrower one which Mr. Mehta urged was that as between some persons on whose behalf prosecution is initiated under Section 198B a request for camera trial may be made while in other case it may not be made. The distinction is rather too fine and subtle. But for two valid reasons that the provision made is far in excess of the requirement of the object sought to be achieved and for the further reason that in a given case the very provision may become self-defeating, in our opinion, the provision does not stand the rationality test and only that part of Sub-section (5A) of Section 198B must be struck down as unconstitutional. That portion of Sub-section (5A) of Section 198B "if either party thereto so desires or" is unconstitutional and must be struck down and cannot be given any effect to. 26. Before parting with this judgement, we may notice one submission of Mr. B.R Shah. It was urged that the Court should not take upon itself to decide constitutional validity of the impugned provision but rather interpret the word 'shall' as 'may' in Sub-section (5A) or in the alternative read 'and' in place of 'or' and the whole difficulty would be solved. It was urged that if Sub-section (5A) be read as:

Every trial under this section may beheld in camera if either party thereto so desires, or if the Court so thinks fit to do,

26. The Court would not be compelled to direct a camera trial at the instance of a party, and the matter will be left to the discretion of the Court. Alternatively, it was urged that Sub-section (5A) may be read as: "Every trial under this section shall be held in camera if either party thereto so desires, and if the Court so thinks fit to do." This construction is suggested with the end in view that in every case the insistence on camera trial shall not be at the desire of a party but the discretion of the Court shall be interposed therein. If the Legislature enacted the provision so as to take away discretion from the Court where a party desires camera trial or so as to invest power in the party to a proceeding under Section 198B to insist upon a camera trial it would not be open to us to read 'shall' as 'may'. That would defeat the purpose for which the provision is enacted and again that would render the words "if either party thereto so desires" superfluous. If the mandate of the section is removed and if section is read to mean that the Court may direct camera trial, it would mean that the matter is left to the discretion of the Court and not to the desire of a party. That would mutilate the section beyond repair and a part of it would be rendered superfluous. But it was urged that the Court may exercise its discretion one way or the other on its own motion or at the desire of the party. It is too well recognised to bear repetition that whenever a matter is left to the discretion of the Court, the Court can exercise its discretion on being moved by a party. If camera trial was left to the discretion of the Court on necessary facts brought to its notice, it is immaterial whether the Court would do on its own or the Court is moved by a party. In the circumstances, the words "if either party thereto so desires" are rendered superfluous or useless. It is not open to us to mutilate the section in this fashion so as to render superfluous a portion of the section. Similarly, the other construction suggested is, in our opinion, still more unacceptable. It is suggested that the word 'or' which is disjunctive should be interpreted as 'and' as conjunctive which will have the effect of transferring privilege of a party to ask for a camera Trial 10 the discretion of the Court. In other words, if the section were to be read as suggested, the Court could not on its own direct a camera trial even if it is so satisfied unless one or the other party moves the Court for such a trial. That would be whittling down the power of the Court from what it has been even at this stage. Therefore, it is not open to us to rewrite the section as suggested and both the suggestions would mutilate the section beyond repair. Therefore, we are unable to accept either of the two constructions so as to avoid a discussion of constitutional issue raised in this case.