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TMI Blog1960 (11) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... then applied for permission to intervene because the same point arose for decision in this appeal as well; that is how this appeal was also placed before us to be heard after the Bombay appeal. After the Bombay appeal was heard for some days parties to the said appeal amicably settled their dispute and a decree by consent was passed. In the result the point of general importance raised by the said appeal fell to be considered in the present appeal; and so the appellant and the respondent in the said appeal asked for permission to intervene in the present appeal, and we directed that the arguments urged by Mr. Viswanatha Sastri and Mr. Seervai, for th appellant and the State of Bombay respectively, should be treated as arguments urged by interveners in the present appeal. Mr. Bindra, who appears for the appellant State of Punjab in the present appeal, and Mr. Gopal Singh who represents the respondent Sodhi Sukhdev Singh, have substantially adopted the arguments urged by Mr. Seervai and Mr. Sastri respectively and have also addressed us on the special facts in their appeal; that is how the point of law in regard to the scope and effect of ss. 123 and 162 of the Act has to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the notice Mr. E. N. Mangat Rai, Chief Secretary of the appellant, made an affidavit claiming privilege under s. 123 of the Act in respect of certain documents whose production had been ordered, and gave reasons in support of the claim. On the same day Mr. Mangat Rai made another affidavit in which he gave reasons for claiming similar privilege in respect of certain other documents. The statements made in these affidavits were challenged by the respondent who submitted a counter affidavit. After the affidavits had thus been filed by the parties the trial court heard their arguments on the question of privilege, and on August 27, 1959, it upheld the claim of privilege made by the appellant for the production of some documents, and accepted the reasons given by Mr. Mangat Rai in support of the said claim of privilege. The respondent then moved the High Court of Punjab under s. 115 of the Code of Civil Procedure and Art. 227 of the Constitution for the quashing of the said order. The petition for revision (C. R. 596 of 1959) first came up for decision before D. K. Mahajan, J., at Chandigarh. The learned judge took the view that the question raised by the petition was of consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced and this request was resisted by the defendant on the ground that the document in question was a privileged communication. This plea was upheld. Dallas, C. J., referred to the precedents relevant to the decision of the point, and observed that the basis of the said precedents was that the disclosure would cause danger to the public good. He then considered the nature of the enquiry which had been directed against H, and observed that in the course of the enquiry a number of persons may be called before the court and may give information as witnesses which they would not choose to have disclosed ; but, if the minutes of the court of enquiry are to be produced on an action brought by the party, they reveal the name of every witness and the evidence given by each. Not only this but they also reveal what has been said and done by each member of the existing court of enquiry; and, according to ,the learned judge, the reception of the said minutes would tend directly to disclose that which is not permitted to be disclosed; and so, independently of the character of the court the production of the report was privileged on the broad rule of public policy and convenience that matters lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff resigned his command. V directed S to inspect and report upon the state of the corps, and referred S for information to the defendant who was a Civil Commissioner. The defendant, in a conversation with S, made a defamatory statement respecting the conduct of the plaintiff. The plaintiff brought an action against the defendant for slander. The defence set up against the plaintiff's claim was that what had passed between the defendant and S was a privileged communication. The jury had found a verdict for the defendant. A new trial was claimed by the plaintiff, inter alia, on the ground that the learned judge had declined to compel the production of certain documents. It appeared that the Secretary for War had been subpoenaed to produce certain letters written by the plaintiff to him and also the minutes of the court of enquiry as to the conduct of S in writing the letter to V. The plea for a new trial was rejected on the ground that the Court was of the opinion that the non-production of the said documents furnished no ground for a new trial. There was a difference of opinion among the members of the Court on the question as to whether Bramwell, J., was justified in up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, the argument is that ss. 123 and 162 are intended to lay down that, when a privilege is claimed by the State in the matter of production of State documents, the total question with regard to the said claim falls within the discretion of the head of the department concerned, and he has to decide in his discretion whether the document belongs to the privileged class and whether its production would cause injury to public interest. It is in the light of this background that Mr. Seervai wants us to construe the relevant sections of the Act. In support of this argument Mr. Seervai has also referred us to the draft prepared by Sir James Fitzjames Stephen at the instance of Lord Coleridge for adoption by the English Parliament, and has relied on Art. 112 in the said draft. Art. 112 provides, inter alia, that no one can be compelled to give evidence relating to any affairs of State, or as to official communications between public officers upon public affairs, unless the officer at the head of the department concerned permits him to do so. It also refers to some other matters with which we are not concerned. This part of Art. 112 as framed by Sir James Fitzjames Stephen seems to includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of the person who withholds it. As a result of s. 123 no such inference can be drawn against the State if its privilege is upheld. That shows the nature and the extent of the departure from the ordinary rule which is authorised by s. 123. The principle on which this departure can be and is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under s. 123 proceeds on the basis of the theory that the production of the document in that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non-production of the relevant and material document may feel aggrieved by the result, and the Court, in reaching the said decision, may feel dissatisfied; but that will not .affect the validity of the basic principle that public good and interest must override considerations of private good and private interest. Care has, however, to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provisions of s. 123. Subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the. course of the determination of the said questions of policy. In the efficient admit of public affairs government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented on the ground of possible injury to public interest. In other words, 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. It may be that when the Act was passed the concept of governmental functions and their extent was limited, and so was the concept of the words " affairs of State " correspondingly limited; but,. as & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the exception that the head of the department can give permission for the production of such documents as are innocuous and not noxious. He contends that it is not possible to imagine that the section contemplates that the head of the department G. would give permission to produce a noxious document. It is on this interpretation of s. 123 that Mr. Seervai seeks to build up similarity between s. 123 and the English Law as it was understood in 1872. In other words, according to Mr. Seervai the jurisdiction of the Court in dealing with a claim of privilege under s. 123 is very limited and in most of the cases, if not all, the Court would have to accept the claim without effective scrutiny. On the other hand it has been urged by Mr. Sastri that the expression " documents relating to any affairs of State " should receive a narrow construction; and it should be confined only to the class of noxious documents. Even in regard to this class the argument is that the Court should decide the character of the document and should not hesitate to enquire, incidentally if necessary, whether its disclosure would lead to injury to public interest. This contention seeks to make the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilege provided by the relevant sections of Chapter IX of Part III of the Act. Section 123 is only one of such privileges so that the jurisdiction given to the Court to decide the validity of the objections covers not only the objections raised under s. 123 but all other objections as well. Take for instance the privilege claimed under s. 124 of the Act which provides that no public officer shall be compelled to disclose communications made to him in official confidence when he considers he considers that the public interest would suffer by the disclosure. It is clear, and indeed it is not. disputed, that in dealing with an objection against the production of a document raised under s. 124 the Court would have first to determine whether the communication in question has been made in official confidence. If the answer to the said question is in the negative then the document has to be produced ; if the said answer is in the affirmative then it is for the officer concerned to decide whether the document should be disclosed or not. This illustration brings out the character and the scope of the jurisdiction conferred on the Court dealing with an objection raised under s. 162. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under s. 123. If the privileged document cannot be inspected the Court may well take other collateral evidence to determine its character or class. In other words, the jurisdiction conferred on the Court to deal with the validity of an objection as to the production of a document conferred by the first clause is not illusory or nominal ; it has to be exercised in cases of objections raised under s. 123 also by calling for evidence permissible in that behalf. It is perfectly true that in holding an enquiry into the validity of the objection under s. 123 the Court cannot permit any evidence about the contents of the document. If the document cannot be inspected its contents cannot indirectly be proved ; but that is not to say that other collateral evidence cannot be produced which may assist the Court in determining the validity of the objection. This position would be clear if at this stage we consider the question as to how an objection against the production of document should be raised under S. 123. it is well settled and not disputed that the privilege should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en duly considered by the authority concerned. The affidavit should also indicate briefly within permissible limits the reason why it is apprehended that their disclosure would lead to injury to public interest. This last requirement would be very important when privilege is claimed in regard to documents which prima, facie suggest that they are documents of a commercial character having relation only to commercial activities of the State. If the document clearly falls within the category of privileged documents Do serious dispute generally arises; it is only when Courts are dealing with marginal or border-line documents that difficulties are experienced in deciding whether the privilege should be upheld or not, and it is particularly in respect of such documents that it is expedient and desirable that the affidavit should give some indication about the reasons why it is apprehended that public interest may be injured by their disclosure. It is conceded by Mr. Seervai that if the affidavit produced in support of the claim for privilege is found to be unsatisfactory a further affidavit may be called, and in a proper case the person making the affidavit whether be is a Minister or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a document which came into existence quite some time before its production is called for in litigation; it is not unlikely that the head of the department may feel that though the character of the document may theoretically justify his refusing to permit its production, at the time when its production is claimed no public injury is likely to be caused. It is also possible that the head of the department may feel that the injury to public interest which the disclosure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the direct injury to the cause of justice which may result from its non-production he may decide to permit its production. In exercising his discretion under s. 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. That is why we think it is not unreasonable to hold that s. 123 gives discretion to the bead of the department to permit the production of a document even though its production may theoretically lead to some kind of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 162 is intended to repel the minority view of Baron Martin in the case of Beatson (1). Nevertheless the effect of the first clause of s. 162 clearly brings out the departure made by the Indian Law in one material particular, and that is the authority given to the Court to hold a preliminary enquiry into the character of the document. That is why we think that the arguments so elaborately and ingeniously built up by Mr. Seervai on the basis of the background of the Indian Evidence Act breaks down in the light of the provisions of s. 162. We may add that in substance and broadly stated the consensus of judicial opinion in this country is in favour of this conclusion. (Vide: e.g., Kaliappa Udayan v. Emperor (2); R. M. D. Chamarbaugwala v. Y. R. Parpia (3); GovernorGeneral in Council v. H. Peer Mohd. Khuda Bux & Ors. (4); The Public Prosecutor, Andhra v. Venkata Narasayya (5); and ljjat Ali Talukdar v. Emperor (6)). Therefore we think it is unnecessary to refer to these decisions in detail or to examine the reasons given by them in support of the conclusion reached by them. There are, however, two decisions which have struck a note of dissent, and so it is necessary to examine them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Judicature at Lahore has held that when a privilege is claimed under s. 123 the Court simply gives effect to the decision of the head of the department by adding its own command to it but the Court. has no power to examine the document in order to verify the correctness of the allegations or the grounds on which the privilege is claimed. Abdur Rahman, J., who delivered the judgment of the Bench in that case, has considered the relevant Indian and English decisions, and has based his conclusion substantially on the judgment of the House of Lords in Duncan v. Cammell Laird & Co. Ltd. (2), to which we will presently refer. The learned judge appears to have construed s. 162 in the manner suggested by Mr. Seervai. In fact Mr. Seervai's argument was that the construction placed by Abdur Rahman, J. on s. 162 had not been considered by the other Indian decisions when they brushed aside his conclusion. "I feel convinced", said Abdur Rahman, J., "that the objection as to the production of the document, apart from its admissibility (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered each of the documents, or indicating the nature of the suggested injury to the interests of the public. The Privy Council, therefore, directed that the Supreme Court of South Australia should exercise its power under O. 31, r. 14, subr. (2), to inspect the documents, because it thought that the said course was less likely to cause delay than an order for a further and better affidavit of documents. The litigation in that case had been preceded by another litigation, and on the facts thus disclosed the Privy Council was satisfied that the action in question was one of a large number which were then pending, and against which a similar relief was claimed, all being alike dependent for success upon the establishment of the same facts. That is how full discovery by the respondent had become "the immediately vital issue between the parties". Dealing with the merits of the privilege the Privy Council cited with approval Taylor's observation that "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"(1). Lord Blanesburgh, who delivered the judgment of the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, "without, it may be, advancing any further the final solution to the question at issue". That is why the Supreme Court was asked to exercise its power under the relevant rule to inspect the documents and then decide whether the privilege should be upheld or not. It is significant that even when giving such a direction their Lordships took the precaution of adding that the judge, in giving his decision as to any document, will be careful to safeguard the interest of the State and will not, in any case of doubt, resolve the doubt against the State without further enquiry from the Minister. It only remains to add that so far as Australia is concerned it does not appear that there is any statutory provision corresponding to s. 162 of the Act, and so, even after this judgment was pronounced by the Privy Council, Courts in India have not given effect to the operative part of the order in regard to the inspection of the document by Courts having regard to the statutory prohibition imposed by s. 162 in that behalf. This pronouncement of the Privy Council was subsequently criticised by the House of Lords in Duncan & Anr. v. Cammell Laird & Co. Ltd. (1). It appears that the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of the several decisions Viscount Simon deduced the principle which has to be applied in such cases in these words: "Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may 'be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be with held from production". In this connection he stated that public interest may be damnified where 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 proper functioning of the public service. Then he proceeded to examine the question as to whether when objection has been duly taken the judge should treat it as conclusive; and his answer was that an objection validly taken to production on the ground that this would be injurious to public interest is conclusive; but, of course, he proceeded to make pertinent observations for the guidance of those who are entrusted with the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Crown's prerogative is, however, subject to the proviso that the said section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to public interest. It would be noticed that s. 28 read with the proviso confers on the Courts specified by it powers which are much narrower than *For a graphic account of the aftermath of the enquiry held by the Supreme Court of South Australia, pursuant to the Privy Council's decision in Robinsons's case (i), see "Law and Orders" by Sir C. K. Allen, 2nd Ed.,P. 374, foot-note 5a. those which are conferred on the Indian Courts under cl. 1 of s. 162 of the Act. In the decision in Duncan's case (1) Viscount Simon had assumed that the law as laid down by the said decision was equally applicable to Scotland. This assumption has been seriously challenged by another decision of the House of Lords in Glasgow Corporation v. Central Land Board (2). In that case Viscount Simonds has referred to a large number of earlier decisions dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper functioning of the public service" is a familiar one, and I have a misgiving that it may become all too familiar in the future". The result of this decision appears to be that in Scotland, where the common law doctrine of the Crown Privilege is not strictly enforced, a privilege can be claimed by the Minister on grounds set forth by him in his affidavit. The certificate would be treated as very strong presumptive evidence of the claim made but the Court would nevertheless have inherent power to override the said certificate. It is unnecessary for us to consider the true nature and effect of this power because in India in this particular matter we are governed by the provisions of s. 162 which confer power on Courts to determine the validity of the objection raised under s. 123, and so there would be no occasion or justification to exercise any inherent power. Though we do not propose to refer to the other decisions to which our attention was invited, we may incidentally observe that the decision in Duncan's case (1) has been followed by English Courts, but sometimes the learned judges have expressed a sense of dissatisfaction when they are called upon to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Pepsu Government in their cabinet Meeting dated August 11, 1956, revising their previous order on the representation of Sodhi Sukhdev Singh dated May 18, 1955; and (4) Report of the Public Service Commission on the representation of Sodhi Sukhdev Singh dated May 18, 1955, after the Pepsu Government's decision on September 28, 1955. In dealing with this question and in reversing the order passed by the trial court by which the privilege had been upheld, the High Court has purported to apply the definition of the expression "affairs of State" evolved by Khosla, J., as he then was, in the case of Governor-General in Council v. H. Peer Mohd. Khuda Bux & Ors. (1): "It is, therefore, sufficiently clear", said the learned judge, "that the expression "affairs of State" as used in s. 123 has a restricted meaning, and on the weight of authority, both in England and in this country, I would define "affairs of State" as matters of a public nature in which the State is concerned, and the disclosure of which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations". It is this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussions that took place amongst the members of the Council of Ministers and the provisional conclusions reached by them in regard to the respondent's representation from time to time. Without knowing more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody the minutes of the meetings of the Council of Ministers and would indicate the advice which the Council ultimately gave to the Rajpramukh. It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Art. 163, sub-art. (3), of the Constitution; and in the case of such advice no further question need to be considered. The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers. Indeed it is very difficult to imagine how advice thus tendered by the Public Service Commission can be excluded from the protection afforded by s. 123 of the Act. Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmoned to produce a document and a privilege is claimed by him in respect of it. According to him the said provisions cannot be invoked where the Court is called upon to decide the validity of the claim of privilege at the stage of inspection of the documents. In other words, where the State is a party to the suit and an application for inspection of documents is made against it by its opponent, and a claim for privilege is put forward by the State, the Court is entitled under 0. 11, r. 19, suba. (2), to inspect the documents for the purpose of deciding as to the validity of the claim of privilege. That is the clear provision of 0. 11, r. 19, sub-r. (2), and the power conferred on the Court by the said provision is not subject to s. 162 of the Act. This position is seriously disputed by Mr. Seervai. The procedural law in regard to discovery, production and inspection of documents is contained in 0. 11, rr. 12, 21. It is true that 0. 11, r. 19, sub-r. (2) provides that in dealing with a claim of privilege "it shall be lawful for the Court to inspect the document for the purpose of deciding the validity of the claim of privilege". The question is, what is the effect of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an only act through its agent duly appointed in that behalf. The Minister who is the political head of the department or the Secretary who is its administrative head is not the government; and so whenever the government sues or is sued and makes its pleadings it always acts through its duly authorised agents. The scheme of the relevant rules of 0. 27 is consistent with this position. Section 30 of the Code empowers the Court either on its own motion or on an application of a party to issue summonses to persons whose attendance is required either to give evidence or produce document, and to order that any fact may be proved by an affidavit. Order 4, r. 5, contemplates that, at the time of issuing the summons, the Court has to determine whether the summons should be for the settlement of issues only or for the final disposal of the suit; and the relevant form of the summons (No. 1 in First Schedule, Appendix B) shows that in the case of a suit against the government of a State a summons can be issued to compel the attendance of any witness and the production of any document. This shows that where the State is a party a summons may have to be issued to its appropriate officer calling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a legal adviser. In s. 123 the opening words are "no one shall be permitted " and in the latter "no barrister etc., shall at any time be permitted In the other sections dealing with privilege the opening words are "no person shall be compelled This difference in language indicates that the legislature intended to place the privilege of the State in regard to official documents on a different footing than-the other forms of privileges mentioned in the Act in so far as it put a ban on the court permitting any evidence of the kind mentioned in. s. 123 from being given, so that if, unwittingly any evidence mentioned therein was sought to be given, the court would not permit it unless the other conditions were satisfied. In s. 123 the provision is against the giving of evidence which is derived from unpublished official records relating to any affairs of State except when the head of the department concerned in his discretion gives permission for the evidence to be given. The important words are "derived", "unpublished" and "affairs of State". The word "derived" means coming out of the source and therefore refers to origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument belongs to the class comprised in the expression "affairs of State" and then the official concerned may give or withhold his consent. It was also submitted that in order to enable the court to determine the validity of the claim of privilege the official concerned, when making the claim, may have to state the nature of the document or at least the nature of the injury to the public interests or to the efficient working of the public service, as the case may be, which the disclosure of the document or evidence derived therefrom would result in. Section 162 of the Evidence Act was relied upon in support of the above contention. That section applies to all documents in regard to which claim of privilege of any kind may be claimable including that falling under s. 123 and therefore the language of s. 162 had necessarily to be wide. It has been described as not being clear by Bose, J., as he then was, in Bhaiya Saheb v. Ram Nath Bampratap Bhadupote (1). The section requires a witness summoned to produce a document to bring it to the court in spite of any objection which he may take to it& production or to its admissibility and the court is empowered to decide both the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words "or to take...... its admissibility" on their plain language do not apply to production and consequently the taking of evidence must have reference to the admissibility of the document. All the High Courts in India are in accord that the Supreme court will not inspect the document if it relates to matters of State. If that is so it would be difficult to sustain the contention that it can decide the question whether the matter relates or does not relate to affairs of State. If the original cannot be inspected, no other evidence can be produced as to its contents. The effect of this prohibition is not only as if the document had been destroyed, but as if it never existed. If that is the position, then it becomes difficult to see how the question of its production can be decided by the court by taking other evidence or how the court can decide whether a particular document falls within the prohibition imposed by s. 123 of the Evidence Act. In this connection the words of Lord Kinnear in The Lord Commissioner of the Admiralty v. Aberdeen Steam Trawling & Fishing Co., Ltd. (1) are quite apposite. It was there said: "I think it is not improbable that even if an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s. 123. That part does not entitle the court to determine the nature of the document or the adequacy of the reasons which impelled the proper official to claim privilege. It would be relevant Co quote the observations of Isaacs, J., in Marconi's Wireless Telegraph, Co. v. The Common. wealth "I distinctly adverted to the necessary fact that: the right of discovery given, to the litigant for the furtherance of public justice must be subject to the still higher consideration of the general welfare that the order to make proper discovery does not destroy the privilege of public interest, and, that the ground of, public policy may intervene and', prevent the injury, to the community which coercive 'disclosure might produce. If that were not so, every gun in every fort and every safe in the Treasury would be open through the medium of the Court to the observation of any ,plaintiff of any nationality who could make a prima facie case of the infringement to which it was relevant. One of the authorities to which I referred in that connection was the judgment of Turner, L. J. in Wadeer v. East India Co., 8 D.M. & G., 182 at p. 191 and that, judgment is, I think, of great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept in cases where the public interest would otherwise be damnified e.g. where 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 proper functioning of the public service." Thus the documents, which are protected from production, are those the production of which would be prejudicial to the public interests or those which belong to that class which as a matter of practice, are kept secret for the proper maintenance of the efficient working of the public service. Objection has been taken to the authority of this rule enunciated by Viscount Simon L. C., on the ground that it is in serious conflict with another principle that the proper administration of justice is also a matter of public interest, i. e., "fiat justitia ruat caelum" but as was said by Viscount Simonds in Glasgow Corporation v. Central Land Board (1), "The paramountcy of the public interest has been recognized and preserved". This principle, which was reenunciated by Viscount Simon, L. C., had been the law of England for over a century before Duncan's case (2). In Earl v. Vass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beford Lord Campbell (reported in Foster and Finla son's N. P. Rep., p. 425), where a subordinate was sent with the document with instructions to object but nothing more, the case may be different." Martin B. did not entirely agree with the view of the other three learned Barons and he was of the opinion that if the document could be produced without prejudice to public service he ought to compel its production notwithstanding the reluctance of the head of the department to produce it. It was pointed out by Pollock, C. B., that this might apply to extreme cases and "extreme cases throw little light on the practical rules of life". In Smith v. East India Company (1) which related to a commercial transaction as to the liability to pay freight a similar privilege was upheld. It was argued that communications between officials and communications between Directors and Board of Control were official correspondence and were privileged. On appeal the Lord Chancellor held that in order that superintendence and control should be exercised effectively and for the benefit of the public it was necessary that unreserved communication should take place between the East India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained confidential information from the Board of Admiralty. The Scottish cases have also upheld the privilege of. the Crown in regard to production although it has been stated that the inherent power of the court to itself see the document and to override but not to review the certificate of the official of the department concerned has always existed in Scottish courts. In Duncan's case (1) Viscount Simon, L. C., quoted with approval the observation of Lord Dunedin, the Lord President in the Lord Commissioners of the Admiralty v. The Aberdeen Steam Trawling & Fishing Co., Ltd. (2). That was a case where a Government department objected to the production of the document on the ground that the production would be prejudicial to public services and it was held that the view of the government department was final and the court will refuse production even in action in which the Government department was a party. The objection there was taken on an affidavit. At p. 340, the Lord President (Dunedin) said:"It seems to me that if a public department comes forward and says that the production of a document is detrimental to the public service,, it is a very strong step indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohnston said at p. 826: "That is not to say that the court never can and never will overrule such a statement but merely that it would be a very strong step, and therefore a step for which the Court would require very grave justification. The Admiralty and the War Office are charged with the duty of providing for the safety of the realm, and, if either say that the production of a document in their hands would be prejudicial to the public interest, I think that we should naturally implicitly accept the statement. But there are distinctions between public departments. The interest of such a department as the Inland Revenue is that the public should be able to rely on all returns to them and communications made to them being treated as confidential. This also is the public interest." The latest Scottish case relied upon is a decision of the House of Lords in Glasgow Corporation v. Central Land Board (1). In that case privilege was claimed by the Central Land Board on the ground that its production would adversely affect the public interests. The question for decision was whether Scottish courts were bound to give effect to the certificate of the Secretary of State or whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister 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 v. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -500; Stace v Griffith L.R. 2 P. C., 420 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 v. Griffith L.R. 2 P.C. 420 at p. 428; Beatson v. Skene 5 H. & N. 838; The Bellerophon 44 L. J. Adm. 5; Hughes v. 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 v. Edwards 15 App. Cas. 309." The learned Judge dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 v. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivilege 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 v. 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 v. Rayner & Ors. (4) it was pointed out at page 572 that the sole concern of the Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secret; (5) the minister's objection may be conveyed by a letter or by the official who attends at a trial but 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not taken away by s. 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 whether it is "matters" of "affairs of State". The Calcutta High Court in a later judgment in Ijjat Ali Talukdar v. Emperor (4) took a contrary view different from its older view and held that the court is to decide whether conditions precedent to ss. 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 s. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 document. A. P. Srivastava, J., in Tilka & Ors. v. State, (3) held that under s. 162 of the Evidence Act the court may inspect a document unless it relates to affairs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 Indian Evidence Act, 1872 (hereinafter called the Act), namely, ss. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; have not been defined. Though in s. 123 the words used are &'affairs of State", in s. 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 Indian Evidence Act 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied only to the question of admissibility and in that event, on the hypothesis suggested by the learned counsel, the Court will be entitled to look into a document even if it relates to a matter of State if the objection is only to its production and not to its admissibility. The more reasonable construction of the section is to give a wider meaning to the word "admissibility" so as to comprehend both production as well as admissibility, for the question of admissibility arises only after the document is produced and a party seeks to get it admitted in evidence. In this view, the second part of s. 162 can only mean that when an objection is raised either to the production or to the admissibility of a document, a Court can inspect the document and if it thinks necessary other evidence may be taken to decide on the objection raised. By the express terms of the section the Court is precluded from inspecting a document if it refers to matters of State. But in other respects the jurisdiction of the Court to decide on the objection raised is not different from that it possesses in respect of other privileged documents. If so understood there cannot be any ambiguity in the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other hand, in Scotland the inherent right of courts to override official discretion is recognized. The House of Lords in Glasgow Corporation v. Land Board (2) gave a clear exposition of the law of that country. Viscount Simonds derives the principle of the court's power from the fact that the fair administration of justice between subject and subject and the Crown is a public interest of higher order and the protection is the care of the courts. Lord Radcliffe finds it on the doctrine that the interest of the Government for which the minister should speak with authority does not exhaust the public interest, for another aspect of that interest is seen in the need that impartial justice should be done in courts of law. These judgments of the high authority also recognized the fact that it is the court that has to decide an objection raised by the State on the ground of privilege. There is a strong current of Indian decisions taking the same view: see Khawja Nazir Ahmad v. Emperor (1), re Mantubhai Mehta (2), B. M. D. Chamarbaugwala v.Y. R. Parpia (3 ), Lijat Ali Talukdar v. Emperor Bhaiya Saheb v. Ramnath Rampratap Bhadupote Public Prosecutor, Andhra v. Damera Venkata Narasayy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is trained to decide cases objectively not only between individuals inter se but also between the State and individuals. He can, therefore, be trusted to decide impartially on the question whether the production of a document in a case will affect the public interest. State documents in a secretariat, I presume, will be' looked into by many officers dealing with the said documents, sometimes from the lowest to the highest in the department. It would be unrealistic to suggest that the disclosure of a State document to any one of those officers would not affect the public interest whereas the decision of its character by a judge would do so. It is, therefore, the duty of the court, whenever an objection is raised on the ground of State privilege to decide on relevant evidence whether the document relates to affairs of State. Even if the wide construction of the words "affairs of State", namely, business of State, be accepted, the result will not be different. The section says that no one shall be permitted to give any evidence derived from unpublished official records relating to affairs of State, except with the permission of the officer at the head of the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no limitation on the scope of the court's decision, though in the second part the mode of enquiry is hedged in by conditions. In England, in the absence of a provision or a rule of common law similar to that of s. 162, there was room for conflict of views on the scope of the court's power. On the other hand, in Scotland the common law corresponding to s. 162 was invoked and the House of Lords recognized the inherent power of the Court to reject a claim of Privilege if the Court comes to a conclusion that the paramount interest of the administration of justice demands or compels such a disclosure. Section 162 of the Act in terms confers a similar power on courts and though it may have to be used with circumspection, it is a real and effective power. There is no conflict between s. 123 and s. 162 of the Act: the former confers a power on a head of a department to withhold permission from the standpoint of State administration, whereas s. 162 recognizes the overriding power of a court in the interest of higher public interest to overrule the objection of privilege. The next point is, what is the procedure to be followed by a judge for deciding on the said objection? Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the opposite view, particularly in cases where a claim against the State seems to him to be harsh or unfair, while the latter, being the political head subject to parliamentary control, may be expected, if he carefully scrutinizes a particular document, not to take such objection which obstructs the cause of justice unless absolutely necessary. I would, therefore, hold that the affidavit which states that a particular document relates to affairs of State must be sworn to only by a minister in charge of the department wherefrom the document or documents are summoned. The next point is, what are the well established rules which help the court to decide whether a particular document pertains to affairs of State or not? The following relevant rules may be extracted from the decision of the Judicial Committee in Robinson's case (1): (1) the privilege is a narrow one most sparingly to be exercised; (2) 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; (3) as the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based upon an apprehension, which in my view is unfounded, that the court may always refuse the affidavit of a minister and insist on his personal attendance. 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 justified. The aforesaid discussion yields the following propositions: (1) under s. 162 of the Evidence Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cabinet discussions. Under Art. 163(3) of the Constitution, the question 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 Art. 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 fut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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