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Report No. 88

Chapter 3

The General Ambit of The Privilege: "Affairs of State"

3.1. Sections 123-Affairs of State.-

At this stage, it may be convenient to deal in brief with the ambit of the privilege conferred by section 123 of the Indian Evidence Act, 1872-an exercise which will show concretely how the abstractions that appear in the law have been applied in practice. The expression "affairs of the State" which occurs in the section is not used in other legislation in force in India. But it is used frequently in text books and academic literature. The principal object of the use of the expression is to indicate the distinction between matters of concern to the State, and matters of private interest.1

This of course, is not the only ingredient of the privilege, since it is further required that the matters in respect of which privilege is claimed must be of such a nature that their disclosure would be prejudicial to the public interest. The principle on which the protection is given is that where a conflict arises between public and private interest, private interest must yield to the public interest.

1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, and also Lady Dinbai v. Dominion of India, AIR 1951 Born 72.

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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