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Report No. 88

Chapter 4

The Authority who Can Claim The Privilege

4.1. The head of the Department.-

The authority that can claim the privilege is specified in section 123 of the Indian Evidence Act as the Head of the Department. It is not our intention to go into the niceties of the precise meaning of this expression with reference to the administrative set up of Government. What we would like to emphasise is that, in conformity with our recommendation,1 the claim made by the Head of Department should not be final or binding on the Court. The Head of the Department can place all materials before the Court that ace relevant for acquainting the court with the nature of the document and for persuading it about the validity of the claim. The final decision as to whether, having regard to the circumstances of the case, the claim is justified, will be with the court. The court will (as at present) have power to take oral evidence for the purpose. However, primarily it will be on an examination in chambers (of the document) that the court will arrive at the decision.

1. Chapter 5, 6 and 7, infra.

4.2. Another important question relates to the authority which will decide the claim of privilege. This will be discussed in the next Chapter.1

1. Chapter 5, infra.

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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