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The unpublished documents relating to defence, foreign relations and other documents of great public importance rarely come before municipal courts.

Occasionally documents of day to day administration of the State may be relevant evidence, but very often documents pertaining to mercantile or welfare activities of the State would be summoned to establish a particular claim.

In the case of documents of undoubted public importance, when the minister swears to an affidavit that in his discretion their production is against public interest, it may reasonably be expected that the judge would accept the statement.

But the real difficulty is in the case of other documents, where the interests of private individuals and the State come into conflict, the judge should be in a position to examine the minister and others to ascertain by evidence collateral to the contents of the documents whether the assertion of the minister is justi fied.

The aforesaid discussion yields the following propositions: (1) under section 162 of the Evidence Act the court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State; but in its discretion, the court will exercise its power only in exceptional circumstances when public interest demands, that is, when the public interest served by the 457 disclosure clearly outweighs that served by the non disclosure.

One of such instances is where the public interest served by the administration of justice in a particular case overrides all other aspects of public interest.

(2) The said claim shall be made by an affidavit filed by the minister in charge of the department concerned describing the nature of the document in general and broadly the category of public interest its non disclosure purports to serve.

(3) Ordinarily the court shall accept the affidavit of a minister, but in exceptional circumstances, when it has reason to believe that there is more than what meets the eye, it can examine the minister and take other evidence to decide the question of privilege.

(4) Under no circumstances can a court inspect such a document or permit giving of secondary evidence of its contents.

(5) Subject to the overriding power of the court to disallow the claim of privilege in exceptional cases, the following provide working rules of guidance for the courts in the matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State: (a) "records relating to affairs of State" mean documents of State whose production would endanger the public interest; (b) documents pertaining to public security, defence and foreign relations are documents relating to affairs of State; (e) unpublished documents relating to trading, commercial or contractual activities of the State are not, ordinarily, to be considered as documents relating to affairs of State; but in special circumstances they may partake of that character; (d) in cases of documents mentioned in (c) supra, it is a question of fact in each case whether they relate to affairs of State or not in the sense that if they are disclosed public interest would suffer.

Bearing the aforesaid principles in mind, I shall construe the nature of the documents in respect of which privilege is claimed in the present appeal.

The so called order of the PEPSU Government is really the minutes recorded in the course of cabinet discussions.

Under article 163(3) of the Constitution, the question 58 458 whether any, and if so what, advice was tendered by ministers to the Governor shall not be inquired into in any court.

In view of the constitutional protection, and the reason underlying such protection, I hold that in the present case the district court was right in sustaining the claim of privilege in regard to the said document.

In regard to the report of the Service Commission, on the assumption that it is a relevant document, I cannot see how public interest suffers by its disclosure.

Service Commission is a statutory body constituted with definite powers conferred on it under the Constitution.

Under article 320(3)(c) of the Constitution the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of a State.

This is one of the constitutional protections conferred on public servants.

I cannot visualize how public interest would suffer if the report submitted by the Service Commission to the Government is disclosed, and how the disclosure of such a report prevents the Service Commission from expressing its views on any other case in future passes my comprehension.

It may expose the Government if it ignores a good advice; but such ' an exposure is certainly in public interest.

The Constitution does not put a seal of secrecy on the document; nor, in my view, public interest demands such secrecy.

In a conflict between the administration of justice and the claim of privilege by the State, I have no hesitation to overrule the claim of privilege.

Before closing, I must notice one fact.

In this case, the Chief Secretary filed an affidavit.

But, in my view, the minister should have done it.

The respondent did not object to this either in the district court or in the High Court.

In the circumstances, I would not reject the claim of privilege on the basis of this procedural defect.

In the result, I would allow the appeal in respect of the minutes of the cabinet and dismiss it in other respects.

As the parties have succeeded and failed in part, I direct them to bear their own costs throughout.

459 BY COURT: In accordance with the opinion of the majority, this appeal is allowed, the order passed by the High Court is set aside and that of the trial court restored with costs throughout.

Appeal allowed.