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Report No. 88

Chapter 5

The Authority which Decides The Question of Privilege

5.1. Indian and English law.-

The question which authority will determine the existence or otherwise of Government privilege in relation to a particular document is one on which we find, considerable disparity between the Indian statutory law on the one hand and the English law on the other. If we are to take literally what is stated in section 123 of the Indian Evidence Act, it is for the head of the department concerned to determine whether or not the document should be disclosed. In England, on the other hand, where an objection on the score of "Crown privilege" is made as to the production of a document, it is for the court to decide whether the objection should be upheld.1 To a large extent, this disparity between Indian law and English law has been reduced by judicial decisions in India.2

1. Conway v. Rimmer, (1968) 1 All ER 874 (HL). See particularly the speech of Lord Morris of Borth-Y-guest.

2. See the case law on section 162, Evidence Act (Also para. 7.8, 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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