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Report No. 88

1.11. No separate privilege in England.-

So far as could be gathered from the case law on the subject, there is, in England, no separate privilege of confidential communications made to public servants-at least according to the modern theory. The principle of injury to the public interest applies, and it would appear that whatever rule applies to written records, applies to oral communications. However, it is said1 that the procedure which may be appropriately followed in respect of oral evidence may have to be worked out. Lord Simon, in Rogers v. Secretary of State, (1972) 2 All ER 1057 (1067) (HL), observed as under:

"I am not, for myself, convinced that there is any general privilege protecting communications given in confidence (see Smith v. East India Co., (1841) 1 Ph 54, but Cf. Alfred Cromption Amusement Machines Ltd. v. Comrs. of Customs and Excise),(1972) 2 All ER 353 (380): (1972) 2 WIR 835 (839).". After adverting to the circumstances from which the law might itself in infer confidentiality, Lord Simon observed:

"But if this is a correct classification, it would suggest that the privilege (a true privilege being waivable) is that of the importer of the information and not that of the recipient". While Lord Simon was cautious enough not to make a categorical statement, the treatment of the subject in some of the recent works on evidence2-3 seems to suggest that cases of confidential communications made for official purposes or not separately dealt with, but are subsumed under the general category of public interest. In India, the privilege incorporated in section 123 of the Evidence Act was, perhaps, intended to incorporate a policy decision. It is not, however, very clear whether the farmers of the Evidence Act examined the English law in detail. The available records relating to that Act do not throw light on the subject.

1. Broome v. Broome, 1955 Probate 190 (198): (1955) 1 All ER 201 (Sachs, J.).

2. Cross on Evidence, (1979), Chapter 12, section 1, pp. 305-317.

3. Phipson Manual of Evidence, (1972), p. 94.



Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back




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