TMI Blog1975 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... atter will end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect the same and pass appropriate orders thereafter,. If the Court will find on inspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a distorted or misleading impression. Where the Court orders disclosure of an innocuous part as aforesaid the Court should seal up the other parts which are said to be noxious because their disclosure would be undesirable - Civil Appeal No. 1596 of 1974 - - - Dated:- 24-1-1975 - RAY, A.N., MATHEW, KUTTYIL KURIEN, ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH AND UNTWALIA, N.L., JJ. For the Appellant : Niren De, Attorney General of India, B. D. Agarwala, and 0. P. Rana, For the Respondent : Shanti Bhushan and J. P. Goyal, for respondent no. 1. Yogeshwar Prasad, S. K. Bagga and S. P. Bagga JUDGMENT RAY, C.J.- This is an appeal by special leave from the judgment dated 20 March, 1974 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli. On 3 September, 1973 the summons was issued to the Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary incharge. On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer. On 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affidavit claiming privilege by the Superintendent of Police, Rae Bareli. On 13 September, 1973 the learned Judge ordered that arguments on the question of privilege would be heard on 19 September, 1973. S. S. Saxena filed an application supported by an affidavit of R. K. Kaul. The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister, the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions. On 20 September 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege. on 20 September, 1973 an objection was made that the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na in his evidence did not claim privilege even after the Law Department noted in the file that privilege should be claimed Saxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance. The learned Judge further held as follows. The Blue Book is not an unpublished official record within the meaning of section 123 of the Evidence Act because Rule 71(6) of the Blue Book was quoted by a Member of Parliament. The Minister did not object or deny they correctness of 'the quotation. Rule 71(6) of the Blue Book has been filed in the election petition by the respondent to the election petition Extracts of Rule 71(6) of the Blue Book were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of the Blue Book in support of her defence. When a portion of the Blue Book had been used by her in her defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his method the Court cart request the Minister's personal attendance. Grosvenor Hotel, London((1963) 3 A E R 426: (1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354) group of cases turned on an order for mutual discovery of documents and an affidavit of the respondent, the British Railway Board, objecting to produce certain documents. The applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for leave to cross-examine the Minister. The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere with the discretion exercised by the Chamber Judge. The Minister filed a further affidavit. That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. It was, held that the affidavit was in compliance with the order. The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention of the executive, though normally the executive claims it. The matter was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Minister should go as far as he properly can without prejudicing the public interest in saying why the contents require protection. In Conway v. Rimmer Anr. (supra) it was said "in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the document itself and then ordering its production". As to the "class" cases it was said in Conway v. Rimmer Anr. (supra) that some documents by their Very nature fall into a class which requires protection. These are Cabinet papers, Foreign Office dispatches, the security of the State, high level interdepartmental minutes and correspondence and documents pertaining to the general administration of the naval, military and air force services. Such documents would be the subject of privilege by reason of their contents and also by their 'class'. No catalog can be compiled for the 'class' cases. The reason is that it would be wrong and inimical to the functioning of the public service if the public were to learn of these high level communications, however innocent of prejudice to the State the actual comments of any particular document might be,. In Rogers v. Homer S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, papers, confidential official documents and communications between the Government and its officers orbetween such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-there that the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into the loss of the "Thetis'. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policy it would not be defeated by the circumstances that they had been given a limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal's sittings might be secret. In Conway v. Rimmer Anr. (supra) it was said that it would not matter that some details of a document might have been disclosed at an earlier enquiry. It was said that if part of a document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an examination. In Sukhdev Singh's case. (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second, the harmonious construction of sections 123 and 162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character of the document. Third, the expression "affairs of State" in section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs'. Fourth, the second limb of section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, it may sometimes be difficult for the Court to determine the character of the document without the court seeing it. The subsequent Constitution Bench decision in Amar Chand Butail's case(supra) recognised the power of inspection by the Court of the document. In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh([1966] 2 SC R970) this Court in a unanimous Constitution Bench decision asked the Compensation Officer to decide in the light of the decisions of this Court whether the claim for privilege raised by the State Government should be sustained or not. This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Government had claimed privilege in certain proceedings. In the Sub-Divisional Officer; Mirzapur case (supra) the respondent filed objections to draft compensation assessment rolls. Compensation was awarded to the respondent. The State applied for reopening of the objection cases. The respondent asked for production of some documents. The State claimed privilege. The District Judge directed that compensation cases should be heard by the Sub-Divisional Officer. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Minister or the Secretary should have affirmed an affidavit. Counsel on behalf of the election petitioner put in the forefront that it was for the Court to decide whether the disclosure and production of documents by the State would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and to the public interest that justice should be done between litigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had to be found out at what stage and it what manner privilege was to be claimed and in what circumstances the Court could look into the document to determine the validity of the claim to privilege raised under section 123. The, other contention on behalf of the election petitioner was that if a part of the document was made public by lawful custodian of the document the question was whether the document could still be regarded a-, an unpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought on the record of the litigation. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v. Home Secretary (supra) at p. 405). To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the State and high level interdepartmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks and Anr. v. Nott Bower Anr.( [1964] 1 A E R 717). It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite a Minister to affirm an affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one or these reasons, the judgment of the High Court is set aside. The learned judge will consider the affidavit a firmed by R. K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced by the Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied on the affidavits that the documents require protection from production, the matter will end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect the same and pass appropriate orders thereafter,. If the Court will find on inspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a distorted or misleading impression. Where the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit claiming privilege for the documents. The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege. This appeal, by special leave, is against that order. The first question for consideration is whether the privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilege was filed in the first instance. In State of Punjab v. Sodhi Sukhdev Singh([1961] 2 S C R 371) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge or the head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According to the Court, this was required as a guarantee. that the statement of the Minister or the head of the department which the Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficial record relating to affairs of state. He relied upon three circumstances to show that portions of the Blue Book were published. Firstly, the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court. Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in Parliament. The learned Judge, however, did not consider or decide whether the Blue Book related to any affair of state, perhaps, in view of his conclusion that it was not an unpublished official record. Section 123 of the Evidence Act states 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 be thinks fit." Section 162 of the Evidence Act provides that when a witness brings to court a document in pursuance to summons and raises an objection to its production or admissibility, the Court has todetermine the validity of the objection to the production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act ("see Phipson on Evidence"). A privilege normally belongs to the parties and can be waved. But where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v. State of U.P. ([1974] 2 S7 C C 472, at 483). Lord Reid in Beg v. Lewas ([1973] A C at, 388) said that the expression 'Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to I before a court of justice all relevant evidence. In the same case, Lor Pearson observed that the expression 'Crown privilege' is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case : ".'Crown privilege' is a misnomer and apt to be misleading. 'It refers to the rule that certain evidence is hadmissible on the ground that its addu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy and the interest of the public were to all intents synonymous". (see "Documents Privileged in Public Interests" (supra) The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all. This would show how remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(see : J.K.S. Simon, "Evidence Excluded by Consideration of State Interest", (1955) Cambridge L Journal, 62). So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it might be that a legitimate inteference could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q.B 102, at 134), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it and that the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest. In Copway v. Binger Anther([1968] A.C. 910) it was observed : "I do not doubt that it is proper to prevent the use of any document, wherever it comes from, if disclosure of its contents would really injure the national interest and I do not doubt that it is proper to prevent any witness whoever be may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without the intervention of any Minister, if possible serious injury to the national interest is ,really apparent. "I do not accept that in so important a matter, it could properly play about with formalities or regard itself as entering forbidden territory merely because a door had not been formally locked." The question then arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document is innocent, he can give permission to its production. If, however, he comes to the conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture. The second view is that it is for the court to determine the character of the document and if necessary to enquire into the possible consequence of its disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for, it is not the policy of s. 123 that in the case of every noxious document the head of the department must always withhold permission. The Court seems to have accepted the third view as the correct one and has said "Thus, our conclusion is that reading ss. 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding power in express terms is conferred on the court under s. 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. This conclusion flows from the fact that in the first part of s. 162 of the Evidence Act there is no limitation on the scope of the court's decision, though in the second part, the mode of enquiry is hedged in byconditions. It is, therefore, clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether the disclosure of the document would be injurious to public interest and the expression "as he thinks fit" in the latter part of section 123 need not deter the court from deciding the question afresh as s. 162 authorises the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates. The power reserved to the court is a order production even though public interest is to some 'extent prejudicially affected. This amounts to a recognition that more than one aspects of public interest will have to be surveyed. The interests of government' for which the Minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspect of public interest. While there are overwhelm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Congress. To concede to them a sacrosanct secrecy in a court of justice is to attribute to them a character which for other purposes is never maintained a character which appears to have been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(gee "Wigrnore on Evidence", 3rd ed-, Vol 8, page 790)" To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which has remained or would have remained inviolable but for the compulsory disclosure. In how many transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwise inviolate secrecy, let the necessity. of maintaining it be determined on its merits (4). Lord Blanesburgh said in Robinson v. State of South Australia ([1931] A. C. 704 at 798) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannot be disclosed without injury A, to the public interests and not that the documents are confidentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s([1952] 345 U S 1) : "Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court from all the circumstances of the base, that there is a reasonable danger that compulsion of evidence will expose military matters which, in the interest of national security, should not be divulged When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone in chambers." I do not think that there is much substance in the contention that since, the Blue Book had been published in parts, it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state. If some parts of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging to that class. Lord Upjohn said(ibid at p 915) if privilege is claimed for a document on the ground of 'class' the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call for its production for his private inspection, and to order and limit its production if he thinks fit." In the same case Lord Hodson said(bid at p. 905) : "I do not regard the classification which places all documents under the heading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan's case and documents exemplified by cabinet minutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class without the necessity of the documents being considered individually. The documents in this case, class documents though they may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but, as requiring protection on the ground that 'candour' must be ensured." I would set aside the order of the High Court and direct it to consider the matter afresh. The High Court will have to consider the question whether the documents in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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