TMI Blog1960 (11) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considerable importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 like those cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upholding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 include the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho 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 this reservation the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilege 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 'is often said, words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment 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 jurisdiction of the Court wider and the field of discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 second clause of s. 162 in terms refers to the objection as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivilege 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 be claimed under s. 123 because it is apprehended that the document if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 the Secretary should be summoned to face crossexamination on the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 injury to public interest. While construing ss. 123 and 162, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atson (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. In W. S. Irwin v. D. J. Reid (7) it appears that the Court was incidentally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply 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 copy and not original) can only be decided by its inspection by the Court, followed, as it must necessarily. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Board observed that it cannot be assumed that documents relating to trading, commercial or contractual activities of the State can ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submarine Thetis which had been built up by the respondents under contract with the Admiralty was undergoing her submergence tests in Liverpool Bay, and, while engaged in the operation of a tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 power to make a claim. It would be noticed that even this decision would not be of material assistance to us because, as we have repeatedly pointed out, our decision must ultimately rest on the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with the relevant law as it is administered in Scotland and commented on the decision in Duncan's case (1) by saying that the observations in the said case, in so far as they relate to the law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vilege 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 an individual dispute in the absence of relevant and material documents. (Vide: Ellis v. Home Office (2)). Before we part with this topic we may also indicate, that it appears that in the long history of reported judicial decisions only on three occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdev 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 definition which was criticised by Aft. Seervai on the ground that it purported to describe the genus, namely, affairs of State, solely by reference to the characteristics of one of its species, namely, documents whose disclosure was likely to cause injury to public interest. Having adopted thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit 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 this provision when it is considered along with s. 162 of the Act ? Before briefly indicating our conclusion on this point we may observe that this contention does not appear to have been raised in any judicial decisions to which our attention was drawn. Indeed it appears generally to have been assumed that in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upon him to produce the documents for inspection. The provisions of rr. 14, 15 and 16 of 0. 11 show that affidavits have to be filed by the parties, and the filing of affidavits which is permitted by 0. 19 is undoubtedly one mode of giving evidence. Order 16, r. 1, provides for the issue of a summons to person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 original as well as secondary evidence of documents whether oral or documentary. The words unpublished official records are not very difficult of interpretation and must depend upon the circumstances of each case. If the record is shown to have already been published, it ceases to be an unpublished record. But the difficulty arises as to the meaning of the words affairs of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice, 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 questions. It is the next part which is relied upon in support of the contention that the court can take other evidence to decide both the questions of production and the question of admissibility. The words are 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 . It was argued that this part of the section empowered the court to take other ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 officer of the department were examined as a witness, we should not get further forward, because the same reasons which induced the department to say that the report itself ought not to be produced might be thought to preclude the department from giving explanation required . If the court cannot inspect the document, if no secondary evidence can be given as to its contents and if the necessary materials and the circumstances which would indicate the injury to the public interests or detriment to the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 value in this case also . It will be helpful to refer to the law on the subject in England as laid down in English cases because the basis of the Indian Law is the law of that country. The question of privilege has been described by Viscount Simon L. C., in Duncan v. Cammell Laird Co., Ltd. (1) as a question of high constitutional importance because it involves a claim by the Executive Government to restrict the material which might otherwise be available for the court trying the case and this description was repeated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 (3) it was held that public officers are not entitled or compellable to produce written communications made by them officially relative to the character and conduct of a party applying for a public office when the production is demanded in an action for damages against the writer. Lord Eldon L. C., at p. 230 observed: I apprehend, in all cases in which it has been held, upon the principle of public policy, that you shall not be compellable to give evidence of, or produce s such instruments-that is, wherever it is held you are not on grounds of public policy, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Company and the Board of Control. In Homer v. Ashford (2) which was of the year 1825,Best, C. J., said: The first object of the law is to promote public interest; the second to preserve the rights of individuals . In this connection it may not be out of place to recall the striking language of Knight Bruce, V. C., quoted at p. 401 of Macintosh v. Dun (3) in the judgment of Lord Macnaughten: Truth like other good things, may be loved unwisely-may be pursued too keenly-may cost too much . And then he points out that the meanness and the mischief of prying into things which are rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for the Court to overrule that statement by the department. The Lord Ordinary has thought that it is better that he should determine the question. I do not there agree with him, because the question of whether the publication of a document is or is not detrimental to the public service depends so much upon the various points of view from which it may be regarded, and I do not think that the Court is in possession of these various points of view. In other words, I think that, sitting as Judges without other assistance, we might think that something was innocuous, which the better informed officials of the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 whether the court had an inherent jurisdiction not to review the certificate but to override it. The House of Lords was of the opinion that Duncan's case (2) did not affect the Law of Scotland and the Scottish courts possessed the inherent power to override the objections of the Minister and it did not exclude the court from making an order of production but in that case the power was not exercised. Viscount Simonds, L. C., said at p. 10 that Duncan's case (2) had settled that according to the Law of England an objection validly taken to production of documents on the ground that this would be injurious to the public interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 by the Scottish Courts had been rare. As the Privy Council judgment in Robinson's case (1) was from Australia it will be useful to refer to two Australian cases: In Marconi's Wireless Telegraph Company Limited v. The Commonwealth(2) where inspection was claimed of wireless telegraphic apparatus, Isaacs, J., in his minority judgment at p. 205 enunciated the following propositions which are relevant for the purpose of the present case: (1) The rule of exclusion of State secrets applies, necessarily without distinction to the facts, documents and other objects. This was admitted by Mr. Irvine, and is established by such cases as B. v. Wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the matter of privilege in public interest and the principles based on prevention of injury to the community observed at p. 203: Such a doctrine is inherent in all systems of law; for the first requirement of every organised society is to live, and so far as possible to live securely, and the next is to live with the greatest advantage to the community at large ; and to these essentials the strict administration of justice in particular cases amongst members must yield. Thus the principle is that private inconvenience must yield to public ;interest; in other words Fiat justitia ruat coelum is not always the right of a suitor because the proper maxim applicable is salus populi supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 determine whether their production will be prejudicial to public interest or to the efficient working of the public services. Lord Blanesburgh said at p. 714: As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected, have usually been public official documents of a political or administrative character. Yet the rule is not limited to these documents. Its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their nonproduction: See Asiatic Petroleum Co. v. Anglo-Persian Oil (1916) 1 K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 power of inspecting documents. The Privy Council was careful to add that the Judge in giving his decision as to, any document would safeguard the interests of the State and would not resolve the doubt against the State without further enquiring from the Minister. In that case also the paramountcy of the consideration of public interest was recognized but as the privilege was not properly claimed and the document related to commercial activities of the State and it would have involved unnecessary prolongation of the action the Privy Council remitted the case for the court to exercise its power of inspection under the Rules and Orders of the court but with the further direction of safeguarding the interest of the State. In Dunc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation 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 Minister was whether the interests of the State in the sphere for which he was responsible would be affected and therefore the documents or evidence should be withheld from the court. It was added that the Minister should accept and recognize that the proper administration of justice would be impeded or may be unattainable if any document or any evidence was withheld. In that case an action was brought against the defendants, one of whom was a Police Officer, charging them with conspiracy to injure and defraud him, false imprisonment and malicious prosecution. The documents required by the plaintiff were reports made by the Police Officer to his superior officers and the communication which passed between the Metropolitan Police F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection 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 if the former suffers the interest of the litigant also suffers and therefore public interest transcends the individual interest of a citizen. In Duncan's case (1) it was emphasised that the Minister in deciding whether it was his duty to object should bear in mind the considerations which justify withholding production, i.e., the public interest would otherwise be damnified, i.e., the 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 pro-per functioning of the public service. And that is the safeguard which both in England and India the law seems to have found sufficient for the protection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining 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 document can be admitted-if the document is merely a copy and not original) can only be decided by its inspection by the Court followed as it must necessarily have been by an order for its production, although not in the sense of its contents having been disclosed to the party summoning the document at any rate at that stage. If the Court is debarred under the statute from inspecting it, I cannot see how the objection as to its production can otherwise be decided . In I. M. Lal v. Secretary of State (1) this privilege was upheld. In that case it was held that s. 162 divided the privilege of documents into two categories. At p. 212 Abdul Rashid, J. (as he then was) observed: The Court can inspect documents for the purpose of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 privilege under s. 123 arose when it was sought to give evidence derived from unpublished official records relating to any public affairs which was a condition precedent. He then referred to s. 124 of the Evidence Act. The second part of s. 162 provided the method or means to enable the court to decide the question, namely, by inspecting the document or by taking other evidence. Although the court was disentitled from inspecting the document, the duty of deciding the question was still on the court. At p. 419 the learned Judge observed: In case of documents relating to affairs of State it may be difficult for the Court to decide the question, yet it need not be necessarily impossible for the Court to do it. Ordinarily no difficulty will arise, because heads of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of State and in such a case it will have to take other evidence relating to the nature of the document. The words of s. 123 are very wide; and the discretion to produce or not to produce a document is given to the head of the department and the court is prohibited from permitting any evidence to be given which is derived from any unpublished documents relating to affairs of State. Section 162 does not give the power to the court to call for other evidence which will indicate the nature of the document or which will have any reference to the reasons impelling the head of the department to withhold the document or documents. In the very nature of things when the original cannot be looked at and no secondary evidence is allowable the court will only be groping in the dark in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. They read: Section 123: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. Section 162: A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1869). The relevant parts of the foregoing sections may be summarized thus-. Section 123 prohibits the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not appear. The basis of the doctrine of Crown privilege is the injury to the public interests. The Judicial Committee in Robinson v. State of South Australia (1) says at p. 714, The principle of the rule is concern for public interest, and the rule will accordingly be applied no further than the attainment of that object requires. The House of Lords in Duncan v. Cammell Laird Co. (2) restated the same idea when it observed that the State should not withhold the production of documents except in cases where the public interest would otherwise be damnified. The earlier decisions of the English courts indicate that the Crown privilege was sustained only in regard to documents pertaining to matters of administration, defence, and foreign relations whose disclosure would be against the public interest: see Home v. Lord F. C. Bentinck (3), Smith v. The East India Company (4) and Beatson v. Skene, (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his discretion permits the giving of evidence derived therefrom. Nor can I accept the construction that an absolute privilege is attached to every noxious document, i.e., to every State document the disclosure of which may cause injury to the public interest. This is giving too narrow a meaning to the words public interest . If the non-disclosure of a particular State document is in public interest, the impartial and uneven dispensation of justice by Courts is also in public interest. They are indeed two aspects of public interest. There is no conflict or dichotomy between the two. In particular circumstances one aspect may be paramount and in a different set of circumstances the other may be given precedence. In the last analysis, it is the question of balancing of the two aspects having regard to the circumstances of a particular case. The head of a department may as well permit the disclosure of a document even if ordinarily its disclosure affects public interest, if in his opinion the counter-balancing circumstances are in favour of disclosure rather than non-disclosure. I cannot, therefore, give a wide meaning to the words records relating to affairs of State so as to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espects 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 scope of s. 162 of the Act. It says in express terms that when an objection is raised to the production of a document or to its admissibility, the validity of any such objection shall be decided by the court. The second part of the section states the material on the basis of which such an objection can be decided. It can either inspect the document or take other evidence to enable it to decide the validity of any objection raised. The only limitation in the case of a document referring to matters of State is that the court cannot inspect it. It is implicit in the limitation that in the case of documents pertaining to matters of State the court is precluded not only from inspecting the documents but also from permitting parties to adduce secondary evidence of their contents. The other evidence must necessarily be de hors the contents of the documents. Even in England there is no divergence of view on the question who has to decide, when an objection to the production of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antubhai 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 Narasayya Lakhuram Hariram v. The Union of India Tilka v. State (8). In a few cases a different view is expressed. It may, therefore, be stated without contradiction that the preponderance of authority is in favour of a court deciding the question of State privilege. Some objections are raised in decided cases in England and restated in Duncan's case (9) against conferring such a power on courts. Apart from the fact that the statute expressly confers such a power, there are no merits in the objections raised. The objections are: (i) the judges are not well qualified to appreciate the highly technical matters which may arise with regard to some kinds of State secrets; (ii) if a judge is allowed to decide on evidence the question of privilege, it may prejudice a fair trial; and (iii) it is a first principle of justice that the judge should have no dealings on the matter in hand with one litigant save in the presence of and to the equal knowledge of the other. The objections raised have no substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 department concerned. The expression affairs of State in its ordinary significance is of the widest amplitude and will mean the entire business of State. It takes in the routine day-to-day administration and also highly confidential acts involving defence and foreign relations, and also in modern times the multifarious activities of a welfare State. The object of the section is simply to prohibit the use of undisclosed documents of State in evidence by persons who in the course of their duties deal with or look into those documents, without the permission of the officer at the head of the department concerned. The words used in the section as he thinks fit confer an absolute discretion on the head of the department to give or withhold such permission. The section does not lay down that the head of the department concerned should refuse permission only if the disclosure injures public interests, though ordinarily he may refuse permission on such matters affecting the State. One can visualize a situation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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? When an officer of the State is summoned as a witness to produce a document, if the State seeks to take a plea of privilege then it is the duty of the minister in charge of the department concerned to file an affidavit at the first instance. The affidavit so filed shall ex facie show that the minister concerned has read and considered each of the documents in respect of which the privilege is claimed. It shall also contain the general nature of the document and the particular danger to which the State would be exposed by its production. If the court is not satisfied with the contents of the affidavit, to enable it to decide whether the document in question refers to the affairs of State, it can summon the minister to appear as a witness. In effect and substance the said procedure has been suggested in Robinson's case (1) at p. 722. The same procedure is also indicated in Duncan's case (2) at p. 638. In the second case above referred, Viscount Simon L.C. says at p. 638 thus: If the question arises on subpoena a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inment 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 have been expected, have usually been public official documents of a political or administrative character; (4) its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their non-production; (5) even in the case of documents relating to the trading, commercial or contractual activities of a State, it is conceivable that there may be some plain overruling principle of public interest. concerned which cannot be disregarded; though in times of peace such cases must be very rare. The House of Lords in Duncan's case (2) has laid down the following negative and positive tests for deciding the question of privilege of the State. The negative tests are: (1) it is not a sufficient ground that the documents are State documents or official or marked confidential ; (2) it would not be a good ground that, if they were produced, the consequences might involve the department or the government in parliamentary di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assertion of the minister is justified. The aforesaid discussion yields the following propositions: (1) under s. 162 of the Evidence Act the court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State; but in its discretion, the court will exercise its power only in exceptional circumstances when public interest demands, that is, when the public interest served by the disclosure clearly outweighs that served by the nondisclosure. One of such instances is where the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. (2) The said claim shall be made by an affidavit filed by the minister in charge of the department concerned describing the nature of the document in general and broadly the category of public interest its non-disclosure purports to serve. (3) Ordinarily the court shall accept the affidavit of a minister, but in exceptional circumstances, when it has reason to believe that there is more than what meets the eye, it can examine the minister and take other evidence to decide the question of privilege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is disclosed, and how the disclosure of such a report prevents the Service Commission from expressing its views on any other case in future passes my comprehension. It may expose the Government if it ignores a good advice; but such' an exposure is certainly in public interest. The Constitution does not put a seal of secrecy on the document; nor, in my view, public interest demands such secrecy. In a conflict between the administration of justice and the claim of privilege by the State, I have no hesitation to overrule the claim of privilege. Before closing, I must notice one fact. In this case, the Chief Secretary filed an affidavit. But, in my view, the minister should have done it. The respondent did not object to this either in the district court or in the High Court. In the circumstances, I would not reject the claim of privilege on the basis of this procedural defect. In the result, I would allow the appeal in respect of the minutes of the cabinet and dismiss it in other respects. As the parties have succeeded and failed in part, I direct them to bear their own costs throughout. BY COURT: In accordance with the opinion of the majority, this appeal is allowed, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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