Report No. 185

Section 123

After considering the recommendations in the 69th and the 88th reports and development of case law, we recommend that section 123 should be substituted as follows:

"123. Evidence as to Affairs of State.- (1) Save as otherwise provided in this section, ,-

(a) no person shall give evidence derived from unpublished official records relating to any affairs of State; or

(b) no public officer shall be compelled to disclose any oral, written or electronic communication relating to any affairs of the State made to him in official confidence, unless the officer at the head of the department concerned, has given permission for giving such evidence.

Explanation:- For the purposes of clause (a), the expression 'evidence derived from unpublished official records' includes the oral evidence derived from such records and the record itself.

(2) The officer at the head of the department concerned referred to in sub-section (1), shall not withhold such permission, unless he is satisfied that the giving of such evidence would be injurious to the public interest; and where he withholds such permission, he shall file an affidavit in the Court, raising an objection and such objection shall contain a statement to that effect and his reasons therefor.

(3) Where the objection referred to in sub-section (2) is raised in a Court subordinate to the High Court, whether in a civil or criminal proceeding, the said Court, notwithstanding anything in any other law for the time being in force, shall have power and shall refer the question as to the validity of such objection to the High Court for its decision.

(4) The High Court, on a reference under sub-section (3), shall decide upon the validity of the said objection, in accordance with the provisions of sub sections (5) to (7) and transmit a copy of the judgment to the Court which made the reference to enable the said Court to proceed further in accordance with the Judgment.

(5) Where the High Court, on a reference under sub-section (3) is of the opinion that the affidavit filed under sub section (2) does not state the facts or the reasons fully, the High Court may require such officers or, in appropriate cases, the Minister concerned with the subject, to file a further affidavit on the subject.

(6) The High Court, after considering the affidavit or further affidavit as the case may be, and if it thinks fit, after examining such officer or, in appropriate cases, the Minister, orally, shall

(a) issue summons for the production of the unpublished records in chambers; and

(b) inspect the records in chambers, and

(c) determine the question whether the giving of such evidence would or would not be injurious to the public interest, recording its reasons therefor.

(7) Where the High Court determines under clause (c) of subsection (6) that the giving of such evidence would not be injurious to the public interest and rejects the objection raised under sub-section (2), the provisions of sub section (1) shall not apply to such evidence and such evidence shall be received.

(8) Where the objection referred to in sub section (2) is raised in the High Court or in the Supreme Court, whether in a civil or criminal proceeding, the said Court shall decide the validity of such objection in accordance with the procedure in sub sections (5) to (7), as if the validity of the said objection had been referred to it."

Section 162

In paras 65.85 and 65.92 and para 93.109 of the 69th Report and in the 88th Report, it was recommended that the words "matters of State" in the second para of section 162 be deleted. Following the same, we recommend that in the second para of sec.162, the words, 'unless it refers to matter of State' be deleted.