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Report No. 88

5.2. Need to vest power in the court.-

In our view, the statute itself should make it clear that power to decide the question of privilege vests in the court. The foundation for the privilege is injury to the public interest.1 There are two aspects of the public interest-the public interest in the maintenance of secrecy of certain material, and the public interest in the production of all factual material that is relevant to a matter in issue in litigation. The two may often be in conflict. The balancing of the considerations that so come into conflict is a delicate task which should, both in the interests of justice and in the efficient performance of the task of such balancing, be left to the judiciary, rather than to any other agency. Courts are, by training as well as by their orientation properly equipped to deal with such questions. As Salmon, L.J. (as he then was) said, writing extra┬Čjudicially2-

"This is constitutional question of the first importance and it can be settled only in the courts. There is no, indeed, no country in which the common law holds sway whose courts have failed to recognise they have such a power-to be exercised, no doubt, rarely and in the last resort, but nevertheless to be exercised when necessary."

Lord Justice Salmon described the power as "vital to the true administration of justice".

1. Cf. State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865.

2. Lord Justice Salmon Bench: The Last Bulwark of Individual Liberty, (1967) reprinted in (1967) 69 Boni LR (Journal) 123.

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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