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If the Court is debarred under the statute from inspecting it, I cannot see how the objection as to its production can otherwise be decided". |
In I. M. Lal vs Secretary of State (1) this privilege was upheld. |
In that case it was held that section 162 divided the privilege of documents into two categories. |
At p. 212 Abdul Rashid, J. (as he then was) observed: "The Court can inspect documents for the purpose of deciding the question of privilege only if those documents do not refer to matters of State. |
In other words an exception is made in respect of documents that refer to matters of State. |
Such documents cannot be inspected by the Court while all other documents for which privilege is claimed are open to inspection by the Court for the purpose of deciding the validity of the objection regarding privilege. |
" The Bombay High Court in re Mantubhai Mehta in construing sections 123, 124 and 162 has held that the officer summoned to produce the document is bound 'to bring it and if he takes objection to its production it is for the court to decide whether the objection is well founded or not but the court is not entitled to inspect it. |
This track of reasoning suffers from the (1) A.I.R. 1944 Lah. |
(2) I.L.R. 439 same difficulty that has been pointed out that without looking at the document and taking into consideration the wide words of section 123 it becomes difficult to hold that the court can decide as to whether the document relates to "affairs of State" and whether it should or should not be produced. |
In that Bombay judgment the learned Judge referred to the observations of Viscount Simon, L.C., in Duncan 's case (1). |
Besides the learned Judge also referred to section 124 the effect of which is not the same as of section 123 of the Evidence Act. |
Bhagwati J. (as a Judge of the Bombay High Court) in R.M.D. Chamarbaghwala vs Y. R. Parpia (2) held that the court cannot inspect the document in order to determine whether they are unpublished official records relating to any affairs of State, but its jurisdiction to determine is not taken away by section 162 and it is for the court to decide the question of production by taking all the circumstances into consideration barring inspection of the document. |
The learned Judge mainly referred to Robinson 's case (3) and it appears that the learned Judge was not satisfied as to the documents being unpublished but the criterion he laid down was that only such documents are privileged which relate to affairs of State and the disclosure of which would be detrimental to public interest. |
The question really is the same as to who is to decide whe ther it is "matters" of "affairs of State". |
The Calcutta High Court in a later judgment in Ijjat Ali Talukdar vs Emperor (4) took a contrary view different from its older view and held that the court is to decide whether conditions precedent to sections 123 & 124 have been established. |
That was a case under the Excise Act and the Excise Commissioner was called upon to produce certain documents. |
The Commissioner claimed privilege under section 123 on the ground that the files contained unpublished official records relating to affairs of State and Das J., as he then was, was of the opinion that the occasion for claiming privilege under section 123 arose when it was sought to give evidence derived from unpublished official records (1) ; (2) A.I.R. 1950 Bom. |
(3) (4) I.L.R. 440 relating to any public affairs which was a condition precedent. |
He then referred to section 124 of the Evidence Act. |
The second part of section 162 provided the method or means to enable the court to decide the question, namely, by inspecting the document or by taking other evidence. |
Although the court was disentitled from inspecting the document, the duty of deciding the question was still on the court. |
At p. 419 the learned Judge observed: "In case of documents relating to affairs of State it may be difficult for the Court to decide the question, yet it need not be necessarily impossible for the Court to do it. |
Ordinarily no difficulty will arise, because heads of departments or public officers are not expected to act capriciously and ordinarily the Court will accept their statement. |
If necessary, the Court will require the officer to claim the privilege in the manner indicated in the Judgment of Lord Blanesburgh in the Australian case. |
If, however, the Court finds that an over zealous officer is capriciously putting forward a claim of privilege, the Court will decide, as best as it can, by the means available to it, whether the claim is well founded." As has already been said above the second part does not afford the means or methods to the Court to decide the question of privilege. |
The only method is inspection and that is denied to the court in cases falling under section 123. |
The second case which is on the other side of the line is the judgment of Bose J., as he then was, in Bhaiya Saheb vs Ramnath Rampratap Bhadupote (1). |
In that case the learned Judge was of the opinion that the insertion of the words "unless it refers to matters of State" in the middle of the paragraph seemed to indicate that the court might not inspect the document in respect of which the privilege was claimed until it had opportunity of determining upon its admissibility and for that purpose it could take other evidence which meant evidence other than the document produced. |
This line of reasoning is similar to that adopted in Ijjat Ali 's (2) case. |
(1) I.L.R. , 247. |
(2) I.L.R. 441 The Andhra Pradesh High Court in Public Prosecutor, Andhra vs Damera Venkata Narsayya (1) was of the opinion that when an objection under section 123 is taken the court has no power to inspect the document but may take other evidence for the purpose of deciding the objection and if it comes to the conclusion that the evidence will be derived from the unpublished records relating to the affairs of the State the objection will have to be upheld and it will be left to the head of the department to give or withhold the permission and the criterion for the head of the department was whether or not the disclosure would cause injury to public interest and he was the sole judge of the matter with which the court cannot interfere. |
This case does not support the contention of the respondent. |
The Patna High Court in Lakhuram Hariram vs The Union of India (2) held that the head of the department must first examine the document and he may then raise an objection but he is not absolved from the obligation of appearing in court and satisfying the court that the objection taken is valid and the court may require him to give an affidavit or further questions may be put in regard to the validity of the claim but the court is not entitled to inspect the docu ment. |
A. P. Srivastava, J., in Tilka & Ors. |
vs State, (3) held that under section 162 of the Evidence Act the court may inspect a document unless it relates to affairs of State and in such a case it will have to take other evidence relating to the nature of the document. |
The words of section 123 are very wide; and the discretion to produce or not to produce a document is given to the head of the department and the court is prohibited from permitting any evidence to be given which is derived from any unpublished documents relating to affairs of State. |
Section 162 does not give the power to the court to call for other evidence which will indicate the nature of the document or which will (1) I.L.R. [1957] And. |
Prad. 174. |
(2) A.I.R. 1960 Pat. |
(3) A.I.R. 1960 All. |
56 442 have any reference to the reasons impelling the head of the department to withhold the document or documents. |
In the very nature of things when the original cannot be looked at and no secondary evidence is allowable the court will only be groping in the dark in regard to the nature of the document or the evidence. |
The correct way of looking at the Indian statute, therefore, is to interpret in the manner which is in accord with the English law, i.e., the court has not the power to override ministerial certificate against production. |
It is permissible for the court to determine the collateral facts whether the official claiming the privilege is the person mentioned in section 123, or to require him to file proper affidavit or even to cross examine him on such matters which do not fall within the enquiry as to the nature of the document or nature of the injury but he may be cross examined as to the existence of the practice of the department to keep documents of the class secret but beyond that ministerial discretion should be accepted and it should neither be reviewed nor overruled. |
For these reasons I concur in the decision that this appeal must be allowed. |
SUBBA RAO, J. I have perused the judgments prepared by my learned brethren, Kapur and Gajendragadkar, JJ. |
I agree with them in maintaining the claim of privilege in regard to the three items described as "original orders" passed by the PEPSU Government, but regret my inability to agree with them in regard to the report of the Service Commission. |
This appeal raises the question of the scope and content of the law of privilege attached to affairs of State and the procedure to be followed for ascertaining it. |
The facts are fully stated in the said judgments and I need not restate them; but I would prefer to give my own reasons for my conclusion. |
It would be convenient at the outset to clear the ground. |
The arguments at the Bar have covered a wide field, but we are not concerned here with the law of privilege pertaining to the field of discovery and inspection of documents. |
We are called upon only to decide its 443 scope during the trial of a suit when a witness, who is summoned to produce a document, claims privilege on the ground that the document relates to affairs of State. |
I should not be understood to have expressed any opinion on the difficult question whether when the defendant is a State, the Court is not entitled to inspect the documents under 0. |
XI, rule 19(2), Code of Civil Procedure. |
The question falls to be considered on a true construction of two of the provisions of the (hereinafter called the Act), namely, sections 123 and 162. |
They read: Section 123: "No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. |
" Section 162: "A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. |
The validity of any such objection shall be decided on by the Court. |
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. |
If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1869). |
" The relevant parts of the foregoing sections may be summarized thus . |
Section 123 prohibits the giving of any evidence derived from unpublished official records relating to affairs of State except with the permission of the officer at the head of the department; while section 162 enjoins on a witness summoned to produce a document to bring it to Court and empowers 444 the Court to decide on the validity of any objection raised in respect of its production or admissibility. |
The argument of the Advocate General is that the words "affairs of State" mean "the business of State", and, therefore, evidence derived from any unpublished official document relating to that business cannot be given as evidence except with the permission of the head of the department concerned, and that the Court under section 162 of the Act must automatically accept the affidavit filed by the head of the department claiming such a privilege. |
Learned counsel for the respondent, on the other hand, defines the words "affairs of State" only to take in documents whose production would be against public interest, confines the power of the head of a department to permit or withhold the user of such a document in evidence, and sustains the Court 's power to decide the question of privilege in respect of such a document on relevant materials without inspecting the document. |
The crucial words in section 123 are, "unpublished official records relating to any affairs of State". |
Under that section no one shall be permitted to give any evidence derived from such records except with the permission of the officer at the head of the department concerned. |
The words "affairs of State" have not been defined. |
Though in section 123 the words used are & 'affairs of State", in section 162 the words used are "matters of State". |
There does not appear to be any practical difference between the two sets of words. |
In Shorter Oxford Dictionary, III edition (1956), "matter" has been defined as "a thing, affair, concern" and "affairs of State" as "public business". |
These Dictionary meanings do not help to decide the content of the said words. |
The content of the said words, therefore, can be gathered only from the history of the provision. |
It has been acknowledged generally, with some exceptions, that the was intended to and did in fact consolidate the English Law of Evidence. |
It has also often been stated with justification that Sir James Stephen has attempted to crystallize the principles contained in Taylor 's work into substantive propositions. |
In case of doubt or 445 ambiguity over the interpretation of any of the sections of the Evidence Act we can with profit look to the relevant English common law for ascertaining their true meaning. |
In English common law the words "affairs of. |
State" do not appear. |
The basis of the doctrine of Crown privilege is the injury to the public interests. |
The Judicial Committee in Robinson vs State of South Australia (1) says at p. 714, "The principle of the rule is concern for public interest, and the rule will accordingly be applied no further than the attainment of that object requires. |
" The House of Lords in Duncan vs Cammell Laird & Co. (2) restated the same idea when it observed that the State should not withhold the production of documents except in cases where the public interest would otherwise be damnified. |
The earlier decisions of the English courts indicate that the Crown privilege was sustained only in regard to documents pertaining to matters of administration, defence, and foreign relations whose disclosure would be against the public interest: see Home vs Lord F. C. Bentinck (3), Smith vs The East India Company (4) and Beatson vs Skene, (5). |
The decisions of the High Courts in India over a long period of time consistently gave the same meaning to the said words. |
It may also be stated that in and about the time when the Evidence Act was passed, the concept of a welfare State had not evolved in India and as such the words "affairs of State" could not have been, at that time, intended to take in the commercial or the welfare activities of the State. |
But when the words are elastic there is no reason why they should not :be so construed as to include such activities also, provided the condition of public injury is also satisfied. |
It is, therefore, clear that the words "affairs of State" have acquired a secondary meaning, namely, those matters of State whose disclosure would cause injury to the public interest. |
(1) (2) ; (3) ; (4) (1841) 1 Ph. 50; 41 E.R. (Chancery) 550. |
(5) ; 446 The learned Advocate General contends that this construction, if accepted, would give a meaning to the provisions of section 123 of the Act which would be contrary to its tenor. |
He classifies documents relating to "affairs of State" into noxious and innocuous documents, and contends that documents, whose disclosure would affect the public interest, are noxious documents and that if the records which relate to the affairs of State mean only noxious documents, the said construction would bring out a result directly opposite to that contemplated by the section. |
When the section intends to prohibit the disclosure of noxious documents, the argument proceeds, the construction enables their disclosure if the head of the department permits it. |
Shortly stated, his contention is that the expression "affairs of State", that is, business of State, is the genus and the document, the disclosure of which is against the public interest, is the species, and that the head of the department is only empowered to permit the disclosure of documents falling outside the said species. |
This argument is apparently logical and rather attractive, but it is an oversimplification of the problem and is based upon a disregard of the legislative history and the long track of decisions of this country. |
If accepted, it enlarges the scope of the said privilege to such an extent that in effect and substance the control of the admissibility of documents shifts from the Court to the State or its subordinate officers, for every document relating to the business of State would be a privileged document unless the head of the department in his discretion permits the giving of evidence derived therefrom. |
Nor can I accept the construction that an absolute privilege is attached to every noxious document, i.e., to every State document the disclosure of which may cause injury to the public interest. |
This is giving too narrow a meaning to the words "public interest". |
If the non disclosure of a particular State document is in public interest, the impartial and uneven dispensation of justice by Courts is also in public interest. |
They are indeed two aspects of public interest. |
There is no conflict or dichotomy between the two. |
In particular 447 circumstances one aspect may be paramount and in a different set of circumstances the other may be given precedence. |
In the last analysis, it is the question of balancing of the two aspects having regard to the circumstances of a particular case. |
The head of a department may as well permit the disclosure of a document even if ordinarily its disclosure affects public interest, if in his opinion the counter balancing circumstances are in favour of disclosure rather than non disclosure. |