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Report No. 88

5.3. Defect in the present section.-

When the matter is viewed in this perspective, it will be perceived that it is a major defect in section 123 of the Evidence Act, that it does not give prominence to the essence of the privilege, namely, the injury to the public interest. According to the modern understanding of the basic objective and rationale of the privilege, it is not enough that the documents relate to "matters of State". The matters must be such that their disclosure would be injurious to the public interest. As early as 1931, the Privy Council stated the position thus in a case very often cited-

"The principle of the rule is the concern for public interest and the rule will accordingly be applied no further than the attainment of that object requires."1-2

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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