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TMI Blog1975 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... sses along with documents mentioned in the application. The summons was inter alia for the following witnesses along with following documents: First the Secretary, General Administration, State of Uttar Pradesh Lucknow or any officer authorised by him was summoned to produce inter alia (a) circulars received from the Home Ministry and the Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi, 'the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 or any general order for security arrangement; and (b) All correspondence between the State Government and the Government of India and between the Chief Minister and the Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses. (a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protection of the Prune Minister when on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister. Saxena was examined by the High Court on 10 September, 1973. On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected. In the application it is stated that during the course of his statement Saxena admitted that certain instructions were. issued by the Central Government for the arrangement of Prime Minister's tour which are secret and hence he is not in a position to file those documents. The witness claimed privilege in respect of that document. It is stated by the election petitioner that no affidavit claiming privilege has been filed by the Head of the Department and that the documents do not relate to the affairs of the State. On 11 September, 1973 there was an order as follows. The application of the election petitioner for rejection of the claim for privilege be put up for disposal. The arguments might take some time and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department did not permit Saxena to file the same. The witness was permitted to show to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14 days of March, 1974 The judgment was delivered on 20 March, 1974. The learned Judge on 20 March, 1974 made an order as follows "No privilege can be claimed in respect of three sets of paper allowed to be produced. The three sets of papers are as follows. The first set consists of the Blue Book, viz., the circulars regarding the security arrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister's Secretariat on the basis of which Police arrangement for constructions of Rostrum, fixation of loudspeakers and other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings of the Prime Minister. The second set also relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not give any reason why the disclosure of the documents would be against public interest, the documents summoned from the Superintendent of Police cannot be privilege documents either. The High Court further said that in view of the decisions. of this Court in State of Punjab v. Sodhi Sukhdev Singh((1961] 2 S.C.R. 371); Amar Chand Butail v. Union of India (A.I.R. 1964 S.C.,1658) and the English decision in Conway v. Rimmer & Anr. ([1968] 1 A.E.R874 : [1968] A C 910) the Court has. power to inspect the document regarding which privilege is claimed. But because the Blue Book is not an unpublished official record, there is no necessity to inspect the Blue Book. The English decisions in Duncan v. Cammell Laird & Co.( [1942] A C642); Conway v. Rimmer & Anr. (supra); and Rogers v. Home Secretary ([1973] AC 388) surveyed the earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In the Cammell Laired case (supra) the respondent objected to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is the fact that the document belongs to a class which on grounds of public interest must as a class be withheld from production. This statement of law in the Cammell Laird case (supra) was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held that although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive it is important to remember that the decision ruling out such document is the decision of the Judge. The reference to 'class' documents in the Cammell Laird case (supra) was said in Conway v. Rimmer & Anr. (supra) to be, obiter. The Minister's claim of privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State. In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.( [1916] 1 K B 830) was adopted that the information cannot be disclosed without injury to the public interest andnot that the documents are confidential or official. With regard to particular clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assert public interest. The public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material. Once the public interest is found to demand that the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the production of which, it sees is contrary to public interest. In short, the position in law in an-is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have sometimes held certain class of documents and information to be entitled in the public interest to be immune from disclosure. Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The expression "Affairs ,of State" in section 123 was explained with reference to section 162 of the Evidence Act. Section 162 is in three limbs. The first limb states that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of an such objection shall decided by the Court. The second limb of section 162 says that 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. 'the third limb speaks of translation of documents which is not relevant here. In Sukhdev Singh's case (supra) this Court said that the first limb of section 162 required a witness to produce a document to bring it to the Court and then raise an objection against its production or its admissibility. The second limb refers to the objection both as to production and admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and it is raised under section 123 (See (1961) 2 S.C.R. at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is said that the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh's case (supra) it has also been. said that if the Court finds that the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department whether to permit its production or not. The concurring views in Sukhdev Singh's case (supra) also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents. In Amar Chand Butail's case (supra) the appellant called upon the respondents the Union and the State to produce certain documents. The respondents claimed privilege. This Court saw the documents and was satisfied that the claim for privilege was not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had become final and could not be opened. This Court on appeal quashed the order of the Sub Divisional Officer whereby the respondent's applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State. On behalf of the election petitioner it was said that the first summons addressed to the Secretary, General Administration required him or an officer authorised by him to give evidence and to produce the documents mentioned therein. The second summons was addressed to the Home Secretary to give evidence on 12 September, 1973. The third summons was addressed to the Chief Secretary to give evidence on 12 September, 1973 and to produce certain documents. The first summons, it is said on behalf of the election petitioner, related to the tour programmes of the Prime Minister. The election petitioner, it is said, wanted the documents for two reasons. First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses. The, election petitioner's case is that rostrum, loudspeakers, decoration would be within the expenditure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence being led till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are summoned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another opportunity. The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should, therefore, be excluded from production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sukhdev Singh's case (supra). In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance. This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases (supra) in England shows that if an affidavit is defective an opportunity can be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so. The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it wassaid that a part of the document was published by the Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documents and objected to produce: (1) A blue book entitled "Rules and Instructions for the Protection of Prime Minister when on tour or in travel; (2) Correspondence exchanged between the two governments viz., the Government of India and the Government of U.P. in regard to the police arrangements for the meetings of the Prime Minister; and (3) Correspondence exchanged between the Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter; without filing an affidavit of the Minister concerned or of the head of the department. Saxena was examined by Court on 10-9-1973. The 1st respondent filed an application on that day praying that as no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-91973 that the application be put up for disposal. As Saxena's examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that in case the claim for privilege was sustained, Saxena would be informed so, that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Court said that the privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(AIR 1931 PC 254) where their Lordships of the Privy Council said that it would be contrary to the public interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as, no affidavit, albeit defective, was filed in this case in the first instance. The Court further observed that it was only when a proper affidavit claiming privilege was filed that the Court has to find whether the document related to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that, duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Court then quoted a passage from the decision of this Court in Sodhi Sukhdev Singh's case (supra) to the effect that court has no power to hold an enquiry into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lege is claimed, it is necessary to see the scope of s. 123 and s. 162 of the Evidence Act. The ancient proposition that the public has a right to every man's evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon. This duty and its equal application to the executive has never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairs of state and cannot be disclosed without injury to public interest. The foundation of the so-called privilege is that the information cannot be disclosed without injury to public interest and not that the document is confidential or official which alone is no reason for its non-production((1) gee Asiatic Petroleum Company Ltd. v Anglo Persian Oil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer (1968) 1 All ER 874, at 899). In Durcan v. Cammel Lavid & Co.( [1942] A-C 624) Lord Simon said that withholding of documents on the ground that their publication would be contrary to the public interest is not properly to be regarded as a branch of the law of privilege connected with discovery and that 'Crown privilege' is, for this reason, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rerogative right to prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland's History of English Law (2nd ed., Vol. I, p. 5 17), "the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, then X when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed." We find similar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. In the report of Layer's Case (1722), (16 How St. Tr. p. 294) the Attorney General claimed that minutes of the Lords of the Council should not be produced; and Sir John Pratt L.C.J. supported the claim, additing that "it would be for the disservice of the King to have these things disclosed". We recall Coke's useful principle : Nihil quod inconvenience est licitum. It is true that in the preceding century the privilege was not upheld either in Strafford's case (1640) 3 How, St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, from the statement of Saxena that the document was a 'secret' one and that he was not permitted to produce it in court, it is impossible to infer that the Minister or the head of the department bad permitted the document to be produced in court or evidence derived from it being given. Section 123 enjoins upon the court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to affairs of state unless permitted by the officer at the head of the department. The court, therefore, had a duty, if the Blue Book related to secret affairs of state, not to permit evidence derived from it being given. And, in fact, 'the Court did not allow the production of the document, for, we find a note in the proceedings of the Court on 10-9-1973 stating that the "question about the production of this document in Court shall be decided after argument of the parties on the point is finally heard". And before the arguments were fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered by the court, and they are : (1) the public interest that harm shall not be done to the nation or the public service; and (2) the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the documents probably ought to be produced, it would generally be, best that he should see them before ordering production. Cross says("Evidence" 3rd ed, p. 252) that relevant evidence must be excluded if its reception would be contrary to state interest; but "state interest" is an ominously vague expression and it is necessary to turn to the decided cases in order to ascertain the extent to which this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of state as, exhypothesis a document can relate to affairs of state only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxio s in the sense that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure would be injurious to public interest. The enquiry to be conducted under s. 162 is an enquiry into the validity of the objection that the document is an unpublished official record relaing to affairs of state and therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of state and its disclosure cannot be permitted; for, why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relates to secret affairs of state ? Section 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public interest is the foundation of this so-called privilege, when once the court has enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, it would be a futile exercise for the Minister or the head of the department to consider and decide whether its disclosure should be permitted as be would be making an enquiry into the identical question. It is difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that arrived at by a court as regards the effect of the disclosure of the document on public interest unless he has or can have a different concept of public interest. Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be the proper forum to weigh the matter and that is the reason why a Minister's certificate is taken as conclusive. "Those who are responsible for the national security must be the sole judges of what national security requires"( Lord Parker of Weddington in The Zemora [191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be seen only by a handful of Ministers of officials bound by oath of secrecy. According to Wigmore, the extent to which this privilege has gone beyond "secrets of State" in the military or international sense is by no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logic and policy. According to him, in a community under a system of representative government, there can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice. (see "Evidence", 3rd ed, Vol 8, p 788) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inspect the document for the purpose of coming to the conclusion whether the document relates to affairs of state. In Sodhi Sukhdev Singh's case, this Court has said that the court has no power to inspect the document. In the, subsequent case (Amar Chand Butail v. Union of India and Others(A I R 1964 SC 1658), this Court held that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document. In England, it is now settled by the decision in CO Rimmer ([1968] 1 All E R 874) that there is residual power in court to decide disclosure of a document is in the interest of the public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final. In Robinson's case, (Supra) the Privy Council took the view that the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court has only said that all the instructions contained in the file produced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of the Blue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents. It is difficult to under:stand how the High Court got the idea that the papers brought from the office of the Superintendent of Police contained only instructions or materials taken from the Blue Book. Since the court did not inspect the Blue Book, the statement by the court that the materials contained in the file produced by the Superintendent of Police were taken from the Blue Book was not warranted. I am not satisfied that a mere label given to a document by the cutive is conclusive in respect of the question whether it relates to affairs of state or not. If the disclosure of the contents of the document would not damage public interest, the executive cannot label it in such a manner as to bring 'it within the class of documents which ,are normally entitled to protection. N6 doubt, "the very description-of the documents in the class may suffice sometimes to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a class of documents, like the minutes of the proceedings of the cabinet, which is per se entitled to protection, no further question will arise in respect of that document. In such case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class and that averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind that its disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whether it relates to affairs of state and that its disclosure will injure public interest. In respect of the other documents, the court will be at liberty to inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion that they relate to affairs of state or not. if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to disclose that part and uphold the objection as regards the rest provided that this w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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