Report No. 185

Section 123

The discussion in regard to the amendments to Sections 123, 124 and 162 must naturally take into account the developments in law in India and England which have taken place since the 69th Report was submitted in 1977.

One of the crucial issues debated both in India and England was as to how the Court could decide, without looking into the document in respect of which privilege is claimed that it indeed relates to affairs of the State. Should not the Court have power, in case it has doubts whether the document is of that class, to look into the contents and decide whether indeed it relates to affairs of the State.

If the State produces material before the Court, other than the document itself, from which the Court is satisfied that the document relates to sensitive affairs of the State, the problem may not arise. But, where such collateral material is not sufficient to satisfy the Court, should the Court not be the final arbiter or should the opinion of the officer and the head of the department (referred to in Section 123) or of the public officer (referred to Section 124).

If the first part of Section 162 permits the Court to decide upon the validity of the objection for production, is para 2 of Section 162 not an obstacle for inquiry because it prohibits the Court from inspecting the document if it refers to matters of State. Though the last part of the para 2 of Section 162 permits the Court to 'take other evidence to enable it to determine on its admissibility' what is to happen if such other evidence leaves a doubt as to whether the document relates to matters of State?

In some judgments, a distinction is made between a class of specific documents which must be considered invariably to be related to 'affairs of State' precluding any further inquiry whatsoever by the Court, and certain other documents which a department may seek to withhold in 'public interest' though they do not relate to 'affairs of the State' and that the power of the Court to summon and inspect such documents cannot be disputed.

The law which precluded Court inspection was first laid down in Duncan v. Cammell Laird 1942 A.C. 624 and was followed in India. This was disputed in Glasgow Corpn. v. Central Land Board: 1956 S.C. 1(HL). But once that law was reversed in Convay v. Rimmer 1968 A.C. 910, Indian Courts had to consider if the law needed a change, notwithstanding para 2 of Section 162.

In England, there have been further judgments of the House of Lord.- see Rogers v. Home Secretary: 1973 A.C. 388 (HL); D v. NSPCC : 1978 AC. 171 (HL); Science Research Council v. Nasse : 1980 AC 1028; Burmah Oil v. Bank of England: 1980 A.C. 1090; Air Canada v. Secretary of State for Trade (NUL): 1983(2) A.C. 394; the Scott Report (1996) and R v. Chief Constable of the West Midlands, ex P Wiley: 1995(1) A.C. 274. There are also a large number of rulings of the judges in the High Court and the Court of Appeal.

The 69th Report, submitted in 1977, had the benefit of the change in English law in 1968 in Convay v. Rimmer: 1968 AC 910. The Report also referred to State of Punjab v. Sukhdev Singh AIR 1961 SC 493 which followed Duncan's case of 1942, and to State of UP v. Raj Narain: AIR 1975 SC 865 which did refer to the change of law in England in 1968. But, the 69th Report did not have the benefit of the later judgment of the Supreme Court in S.P. Gupta v. Union of India: 1981 Suppl. SCC 87 which overruled State of Punjab v. Sukhdev Singh and laid down the law on par with the changes in England. There are a few later judgments of the Supreme Court but are mainly decisions on facts.

With the above background, we shall also refer briefly to the changes in the law in England from Duncan in 1942 to Exp. Wiley (1995) and to a few later cases.