Report No. 185

Section 124: "Official communications"

Section 124 deals with 'official communications' and reads as follows:

"124. Official Communications: No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure".

In Bhalchandra v. Chandbasappa AIR 1939 Bom 237, it was stated that where the document relates to affairs of State, the more detailed procedure in sec.123 of obtaining certificate from the head of the department alone should apply and not the procedure in sec.124 of obtaining opinion of the officer. The court should finally decide on injury to public interest. The 69th Report referred (see para 66.10) to an archives document, with reference to which Mr. P S Melville, Officiating Judicial Commissioner, Central Provinces said, to the following effect:

"It might be well to add to this Section the words 'unless with the permission of the Court'. It is sometimes very necessary for the ends of justice that the source whence information was derived, especially by the police, should be known."

The following observations of Viscount Dilhorne in Norwitch Pharmacol Co. v. Customs Commissioner 1973 (2) All ER 943 (HL) (quoted in para 66.21 of the 69th Report) are relevant:

"I do not accept the proposition that all information given to a government department is to be treated as confidential and protected from disclosure but I agree that information of a personal character obtained in the exercise of statutory powers, information of such a character that the giver of it could not expect it to be used for any purpose other than that for which it is given, or discloses to any 347 person not concerned with the purpose, is to be regarded as protected from disclosure, even though there is no statutory prohibition for its disclosure."

(a) We have, while dealing with sec.123, referred to the differences in sec.123 and in sec.124, as they now stand. When a document refers both to and contains 'affairs of State', 'communications in confidence', both the procedures in secs. 123 and 124 overlap and today both procedures have to be followed. Instead, it is proposed to recommend that sec.124 be confined to communications in confidence made to a public officer where 'affairs of State' are not involved.

(b) In our discussion under sec.123, we differed from para 69.13 of the 69th Report which stated that sec.124 deals only with oral communications and that sec.123 deals with 'records'. We have pointed out that both Sections deal with documentary and oral evidence. We added an Explanation below sec.123 (1). We propose to add a separate provision in sec.124(2) on this aspect.

On the basis of the above discussion, we agree in principle with the 69th Report.

(c) In the 88th Report, it was, in addition, recommended that question arising under Section 124, when they are decided in a pending case, whether in a civil or criminal proceeding, there should be an appeal to the High Court. Amendment of the Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973 was recommended to provide for an appeal both for purposes of Section 123 and 124. (In the 69th Report, no such procedure was recommended for deciding the objection under Section 123 or under Section 124.)

While we agree with the 88th Report that the Courts subordinate to the High Court should not be allowed to decide issues as to 'affairs of State' under Section 123 and we provided a procedure for reference to the High Court, we do not think an appeal or reference is necessary in case the objection under Section 124 is rejected for disclosure of official communications made in confidence.

Now that Section 124 cannot apply if issues of 'affairs of State' arise which will be dealt with under clause (b) of subSection (1) of Section 123, therefore, we do not think that there should be any appeal or reference. All these years, there has been neither an immediate appeal nor reference under Section 124 if the objection is negatived by a Court subordinate to the High Court. Hence, we differ from the 88th Report and are not proposing an appeal or reference, if the objection is raised in a Court subordinate to the High Court.

We recommend that sec.124 be revised as follows:

"124. Official Communications.- (1) Subject to the provisions of Section 123, no public officer shall be compelled to disclose any oral, written or electronic communication made to him in official confidence, when the Court considers that public interest would suffer by such disclosure.

(2) Where a public officer who is a witness is asked a question which might require the disclosure of any such communication, and he objects to answering the question on the ground that public interest would suffer by its disclosure, the Court shall, before rejecting his objection, ascertain from him, in chambers, the nature of his objection and reasons therefor."