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Viscount Simonds, L. C., said at p. 10 that Duncan 's case (2) had settled that according to the Law of England an objection validly taken to production of documents on the ground that this would be injurious to the public interest is conclusive but to cite the case of Lords Commissioners of the Admiralty (3 ) as authoritative without regard to the earlier cases and the later case of Henderson vs M 'Gown (4) must give an imperfect view of the law of Scotland. |
But even in Scotland the power had been rarely, very rarely, exercised by the courts; its exercise had been refused even where the result had been the prejudice of the private individual and the paramountcy of the public interest had been recognised and preserved. |
(p. II). |
Lord Normand observed that for a 100 years the uniform track of authority asserted the inherent power of the court to disregard the crown 's objection but the power had been seldom exercised; only the courts had emphatically said that it must be used with the greatest caution and only in special circumstances. |
In this connection Lord Normand said at p. 16: "It was also a firmly established rule that the courts could not dispute the certificate and that the (1) ; (2) ; (3) , 343. |
(4) 427 question whether production would be contrary to public interest was for minister or the department concerned. |
" Lord Radcliffe in his speech said that Duncan 's case ought not to be treated as a decision which affected the law of Scotland. |
Dealing with the case before the court and the power reserved to the court to overrule the crown objection he said at p. 18: "I do not understand that the existence of the power involves that in Scotland, any more than in England, it is open to the court to dispute with the minister his view that production would be contrary to the public interest is well founded or to arrive at a view, contradictory of his that production would not in fact be at all injurious to that interest. |
If weight is given to the argument that the Minister in forming his view may have before him a range of considerations that is not open to the Court and that he is not under any obligation to set out these considerations in public, I think that it must follow that the Minister 's view must be accepted by the Court as incapable of being displaced in by its own opinion". |
The view expressed in Admiralty Commissioners vs Aberdeen(1) was dissented from. |
After referring to another aspect of public interest that impartial justice should be done in the courts of law, not least between citizen and Crown, the Lord Normand observed: "If in the past the power to disregard the objection has hardly ever been exercised, that has been due, I think, to a very proper respect for the Crown 's position and to a confidence that objections of this nature would not be advanced, or at any rate persisted in, unless the case was one in which production would involve material injury to the public welfare". |
Thus, as was said by Lord Normand, there is a difference between the law of England and the law of Scotland on an important constitutional question. |
But in practice the difference was little as the exercise of the inherent power by the Scottish Courts had been rare. |
(1) ; (2) 343. |
428 As the Privy Council judgment in Robinson 's case (1) was from Australia it will be useful to refer to two Australian cases: In Marconi 's Wireless Telegraph Company Limited vs The Commonwealth(2) where inspection was claimed of wireless telegraphic apparatus, Isaacs, J., in his minority judgment at p. 205 enunciated the following propositions which are relevant for the purpose of the present case: "(1) The rule of exclusion of State secrets applies, necessarily without distinction to the facts, documents and other objects. |
This was admitted by Mr. Irvine, and is established by such cases as B. vs Watson ; at p. 148; B. vs Hardy , at col. 753; R. vs Watson , at cols. |
100 101. |
(2)The rule proceeds on the same grounds whether the parties called on to produce the documents, &c., are or are not parties to the suit, that is, on the grounds of the prejudice to the public interests, which production would occasion (per Turner, L. J. in Wadeer 's case section D. M. & G., 1882; Admiralty Commissioners vs Aberdeen Trawling Co. (1909) Sess. |
Ca., 335. |
(3) The right to protection depends upon the "character" of the documents, &c. (ib.). |
(4) If the documents, &c., are prima facie private, as where they are in private hands then in the absence of Ministerial claim for protection, the Court, in case of objection by the private defendant on the ground of public policy, will ascertain their character that is, whether they are really governmental and, if they are, the next succeeding paragraph applies: Smith vs East India Company I Ph. 50. |
(5) If the documents, & are of a political that is, a governmental "character", then even in the absence of any Ministerial claim for protection, it is the duty of the Court, on objection by private person holding them, to ascertain whether public prejudice will or may ensue from production, and, if it appears that public policy requires confidence between the objector and the Government, they are presumed (1) (2) (1913) 16 C.L.R. 178, 201. |
429 prima facie to be confidential: Smith vs East India Company I Ph. 50 and per Wills, J. in Hennessy vs Wright 21 Q.B.D. 509, 518 519. |
(6) If either by proof or undisplaced presumption confidence is required, then it is a rule of law, not of discretion, that the documents shall be excluded: Marks vs Beyfus at pp. |
498 500; Stace v Griffith ; at p. 428. |
(7) If the documents, &c., are in fact "State documents", that is, "in possession of a government department", and the Minister having custody of them assures the Court that public prejudice will or may ensue from production, that, in the absence of what are called extreme cases and are practically negligible, is conclusive evidence of their, character, that is, that they are confidential public documents, and that such prejudice will or may ensue, and the Court must act upon it: Stace vs Griffith L.R. 2 P.C. 420 at p. 428; Beatson vs Skene ; ; The Bellerophon ; Hughes vs Vargas 9 R. 661; Halsbury 's Laws of England, Vol. |
XI, p. 85; Taylor on Evidence, 10th ed., pp. 673, 674; Powell on Evidence, 9th ed., p. 273. |
Conclusiveness in such a case is not unique. |
Even a private claim for privilege in an ordinary affidavit of documents is (with certain exceptions immaterial here), taken as conclusive with respect even to the grounds stated for claiming privilege; See Halsbury 's Laws of England, Vol. |
XI, p. 61 and Morris vs Edwards 15 App. |
" The learned Judge dealing with the matter of privilege in public interest and the principles based on prevention of injury to the community observed at p. 203: "Such a doctrine is inherent in all systems of law; for the first requirement of every organised society is to live, and so far as possible to live securely, and the next is to live with the greatest advantage to the community at large ; and to these essentials the strict administration of justice in particular cases amongst members must yield. |
" Thus the principle is that private inconvenience must yield to public ;interest; in other words Fiat justitia 430 ruat coelum is not always the right of a suitor because the proper maxim applicable is salus populi suprema est lex which transcends all other considerations. |
The majority of the Court in that case had held that there was nothing to warrant the conjecture that the inspection could disclose anything that could reasonably be called secret in any sense of the word. |
The matter was taken to the Privy Council but special leave to appeal was refused. |
The Lord Chancellor there said: (See Griffins case; , , 386) "Of course the Minister 's statement or certificate must be conclusive on a particular document. |
How can it be otherwise?. . . . |
If the Minister certifies quite specifically, his certificate is to be taken as conclusive. |
The ground on which special leave to appeal was refused in that case appears to have been that, having regard to the form of the order, which carefully limited the right of inspection and reserved liberty to apply, it was not a convenient case in which to raise a great question of principle. |
" In Griffin vs The State of South Australia (1) objection to the production for inspection of documents was upheld on the ground that the statement of the Attorney General for the State that their production for inspection would be prejudicial to the public interest is conclusive. |
That was a case in which inspection of documents was sought in an action brought in the High Court of Australia by the plaintiff against the State of South Australia to recover damages for negligent storage of wheat. |
Knox, C. J., in the course of his judgment referred to the observations of the Lord Chancellor in Marconi 's case, (2) which have been quoted above. |
Isaacs, J., reiterated his previous opinion. |
Starke, J., was doubtful and he was of the opinion that there was no reason why the courts should not use the power confided in them for discovery. |
If some real doubt was established as to the accuracy of the Minister 's statement there was no reason for refusing the power in a proper case particularly when the commercial activities of the Government were becoming more and more extensive and (1) ; , (2) (1913) 16 C.L.R. 178,201. |
431 the sphere of political and administrative action correspondingly wider. |
He was also of the opinion that the courts should be able to fully protect the public interests and do nothing to imperil them. |
The learned Judge in that particular case was not fully satisfied with the affidavit of the Minister. |
The matter of privilege in Australia was taken to the Privy Council in Robinson vs State of South Australia (1). |
This case arose out of an action similar to Griffin 's case (2) and a similar privilege was claimed. |
The Privy Council was of the opinion that the Minister 's minute was inadequate to support the claim of privilege but it had not been lost by the inefficiency of the form in which it was claimed and the matter was a proper one for the court to exercise its power of inspection for which privilege was sought in order to determine whether their production will be prejudicial to public interest or to the efficient working of the public services. |
Lord Blanesburgh said at p. 714: " As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected, have usually been public official documents of a political or administrative character. |
Yet the rule is not limited to these documents. |
Its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their nonproduction: See Asiatic Petroleum Co. vs Anglo Persian Oil , 829 830 and Smith vs East India Co. 1 Ph. 50." and at p. 715 it was observed: "It must not be assumed from these observations of the Lord Justice that documents relating to the trading, commercial or contractual activities of a State can never be claimed to be protected under this head of privilege. |
It is conceivable that even in connection with the production of such documents there may be "some plain overruling principles of public interest concerned which cannot be disregarded"." (1) (2) ; 432 After referring to various cases that have been set out above the Privy Council was of the opinion that the court was entitled to prescribe in any particular case the manner in which the claim of privilege should be made. |
It may accept unsworn testimony of the Minister in one case but in another where the circumstances seems to be to so require call for an affidavit from him. |
It may be that objection merely on ground of public policy may not be sufficient but it ought to appear that the mind of a responsible Minister had been brought to bear on the question of expediency in the public interest of giving or refusing the information asked for. |
This would be a guarantee that the opinion of the Minister which the court is asked to accept is one which has not been expressed inadvisedly or as a matter of mere departmental routine but is one put forward with the solemnity necessarily attaching to the sworn statements and that the privilege could not be asserted in relation to documents the contents of which had already been published. |
In that particular case the Minister had merely stated that he had considered this mass of documents and not that he had read them and considered each one of them. |
Lord Blanesburgh said at p. 722: "In view specially of the fact that the documents are primarily commercial documents he should have condescended upon some explanation of the particular and far from obvious danger or detriment to which the State would be exposed by their production. |
Above all, and especially in view of the last paragraph of the minute, the claim was one which should have been put forward under the sanction of an oath by some responsible Minister or State official. |
" Continuing it was observed that there may be some among the scheduled documents to which privilege may be genuinely attached and to give inspection of which without more would destroy the protection of the privilege and therefore it would or might be contrary to public interest to deprive the State of opportunity of regularising its claim to protection. |
The Board would have given this advice had it not been for the fact that it would have involved serious delay 433 without advancing further the final solution of the question. |
The case was therefore remitted to the Supreme Court with a direction that it was a proper one for the exercise by that court of the power of inspecting documents. |
The Privy Council was careful to add that the Judge in giving his decision as to, any document would safeguard the interests of the State and would not resolve the doubt against the State without further enquiring from the Minister. |
In that case also the paramountcy of the consideration of public interest was recognized but as the privilege was not properly claimed and the document related to commercial activities of the State and it would have involved unnecessary prolongation of the action the Privy Council remitted the case for the court to exercise its power of inspection under the Rules and Orders of the court but with the further direction of safeguarding the interest of the State. |
In Duncan vs Cammell Laird & Co. (1), the Court of Appeal held that the affidavit of the First Lord of Admiralty was conclusive if it stated that such production would be contrary to public interest, and the order for production was therefore refused. |
Du Parcq, L. J., pointed out that the Privy Council case (Robinson 's case (2)) was not the final word on the subject in regard to production. |
The House of Lords in appeal did not agree with the judgment of the Privy Council and it is significant that two of the seven Law Lords in the House of Lords were parties to the Privy Council judgment. |
The House of Lords held that the affidavit of the Minister was conclusive and that inspection of a document by a court in private would be communicating with one party to the exclusion of the other and it accepted the principle that if it was prejudicial to the public interests or the document belonged to that class of documents which are kept secret for the proper functioning of the public services the production of the document would be refused. |
It was recognized in that case that it is the Judge who is in control of the trial and not the executive but the proper ruling for the judge to give (1) ; (2) 55 434 would be that an objection validly taken to the production on the ground of its being injurious to public interest is conclusive. |
The English cases which were decided after the pronouncement of the House of Lords in Duncan 's case (1) naturally followed the decision of the House of Lords. |
In Ellis vs Home Office (2) where a prisoner who had been attacked in jail by another prisoner who was a mental case asked for certain reports and privilege was claimed, the privilege was upheld but it was said that although it was essential that Government department should be entitled to claim privilege against disclosure of documents on the ground of public interest the ambit of privileges should be carefully scrutinized and each document should be examined. |
It may be mentioned that in that case Devlin, J., felt grave concern about the claim of this privilege because the result was that documents were to be treated as destroyed and no secondary evidence could be led and this concern of the trial judge was shared by the Court of Appeal. |
In Broome vs Broome (3) which was a defended suit for divorce, the wife wanted certain documents of the Soldiers ', Sailors ' and Airmen 's Families Association but the Secretary of State issued a certificate in which he stated that the production would not be in public interest. |
It was held that Crown privilege from disclosure attached to all documents irrespective of where they originated or in whose custody they reposed provided that they had emanated from or came into the possession of some servant of the Crown. |
In Auton vs Rayner & Ors. |
(4) it was pointed out at page 572 that the sole concern of the Minister was whether the interests of the State in the sphere for which he was responsible would be affected and therefore the documents or evidence should be withheld from the court. |
It was added that the Minister should accept and recognize that the proper administration of justice would be impeded or may be unattainable if any document or any evidence was withheld. |
In that case an action was brought against the (1) ; (2) (3) (4) 435 defendants, one of whom was a Police Officer, charging them with conspiracy to injure and defraud him, false imprisonment and malicious prosecution. |
The documents required by the plaintiff were reports made by the Police Officer to his superior officers and the communication which passed between the Metropolitan Police Force and other police force and the Secretary of State swore an affidavit indicating that the document should be withheld from production and that he had formed an impartial judgment that in the public interest and for the proper functioning of the public services the document should be withheld. 'The Court of Appeal held that the determination of the Secretary of State ought reasonably to be accepted and that the affidavit was, in the circumstances, conclusive. |
The law in England may thus be summed up: (1) That a document need not be produced for inspection either on discovery or at the trial when objection is taken by the Minister that disclosure of the document would be contrary to public policy or detrimental to public interest or services. |
This privilege attaches irrespective of where the document originates or in whose custody it is provided it emanated from or came into possession of some servant of the crown; (2) the privilege can be claimed or waived by the authority of the Minister or the head of the department; (3) secondary evidence may not be given of a document for which privilege is established; (4) official correspondence per se is not privileged on the ground of its being confidential or official nor is it a valid ground that production would involve the Government in criticism or expose 'want of efficiency in the administration or open up claims to compensation but the ground for privilege is that the production would be detrimental to the interest of the public or interfere with the efficient working of the public service or it belongs to class of documents which it is the practice of the department to keep secret; (5) the minister 's objection may be conveyed by a letter or by the official who attends at a trial but 436 the court may require an affidavit by or the attendance of the Minister; (6) before a privilege is claimed it is desirable that each document should be examined by the department concerned and inspection permitted of all documents which cannot harm the public interest; (7) if a minister claims privilege the court will accept his statement and ought not to examine the document to see if the objection is well founded; (8) public interest must not be put in jeopardy by the production of a document which could injure it and the court should, if necessary, prohibit the production even though no objection has been taken by the Government department. |
It may be pointed out that the privilege was expressly reserved when by the Civil Proceedings Act, 1947, the Crown was made liable to. |
give discovery in civil proceedings. |
It is no doubt true and it must be recognized that the administration of public justice is also a part of public interest but as was pointed out by Viscount Simon L. C. in Duncan 's case (1) the interest of the State is the interest of the citizen and if the former suffers the interest of the litigant also suffers and therefore public interest transcends the individual interest of a citizen. |
In Duncan 's case (1) it was emphasised that the Minister in deciding whether it was his duty to object should bear in mind the considerations which justify withholding production, i.e., the public interest would otherwise be damnified, i.e., the 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 pro per functioning of the public service. |
And that is the safeguard which both in England and India the law seems to have found sufficient for the protection of an individual 's rights. |
Even in Scotland where the inherent right of the courts to override official discretion has been recognized the occasions for the exercise of that power have indeed been rare and even in the (1) [1942) A.C. 624. |
437 latest case Glasgow Corporation vs Land Board (1) that position was reiterated. |
Although the consensus of opinion in India is that under the second part of section 162 the court will not inspect the document if it relates to matters of State yet there is a track of decision which has taken the view that it is not for the head of the department claiming the privilege but for the court to decide whether the document falls within the category mentioned in section 123. |
But in some other cases a different view has been taken. |
A reference to cases which fall on both sides of the line will be helpful. |
In Irwin vs Reid (2) Mukherjea, A. C. J., held that the language of section 123 showed that the court cannot be invited to discuss the nature of the document and the public official concerned and not the court is to decide whether the evidence referred to shall be given or withheld. |
"If any other view were taken, the mischief intended to be averted would take place, as the judge could not determine the question without ascertaining the contents of the document, and such inquiry, if it did take place must, for obvious reasons, take place in public: Beatson vs Skene (3), Hennessy vs Wright (4), Jehangir vs Secretary of State (5). |
The result practically is, that if the objection is raised by a proper authority the court cannot compel disclosure by primary or by secondary evidence." The Lahore High Court in Khawja Nazir Ahmad vs Emperor (6) held that the head of the department who is in possession of the documents is the sole judge of the fact whether the documents should be protected from production on the ground of their being related to affairs of State and therefore though the decision would be that of the court, it would have to rule in favour of the privilege claimed by the head of the department. |
It was also held that the interests of the State must not be put in jeopardy by production of documents which would injure them and that was a principle to be observed in administering justice and (1) ; L.) (2) Cal. |
(3) ; ; (4) (5) , 160. |
(6) I.L.R. 438 indeed a rule on which the judge should insist even though no objection is taken at all. |
In that case there were certain confidential files of the Special Enquiry Agency containing notes, correspondence etc., relating to the case and containing a record of statements of various persons and a proper affidavit had been filed by the head of the department stating that the production would be injurious to public interests. |
Abdul Rahman, J., said "I feel convinced in my mind that the objection as to its production apart from its admissibility (e.g., for want of registration or contravening the rule as to when secondary evidence of a document can be admitted if the document is merely a copy and not original) can only be decided by its inspection by the Court followed as it must necessarily have been by an order for its production, although not in the sense of its contents having been disclosed to the party summoning the document at any rate at that stage. |