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Report No. 88

5.4. Supreme Court judgment.-

The case law on the subject has been reviewed by Ray, C.J.1 who observed: "In the ultimate analysis the contents of the documents are so described that it could be seen at once that in public interest the documents are to be withheld." Most of the commonwealth decisions2 on the subject emphasise the aspect of balancing-an aspect recently re-emphasised in America also.3 The touchstone by which the doctrine of Crown privilege operates, was felicitously expressed by Lord Radcliffe in the Scottish appeal.4 His Lordship said: "The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially.

This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between parties is not to be available to the party engaged in a suit with the Crown. The interests of Government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the court would be better qualified than the minister to measure the importance of such principles in application to the particular case that is before it."

1. State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (875, 876), para. 41.

2. (a) Rogers v. Home Secy., (1973) AC 388 (406, 412);

(b) Konia v. Morley, (1976) 1 NZLR 455;

(c) Glasgow Corp. v. Central Land Board, (1956) SC 1 (18, 19) (HL);

(d) Grosvenor Hotel London (in re:) No. 2, (1965) Ch 1218 (1246).

3. United State v. Nixon, (1974) 418 US 683.

4. Glasgow Corp. v. Central Land Board, (1956) SC 1 (18, 19) (HL).

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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