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Report No. 88

Chapter 6

The Materials for Claiming and Deciding The Privilege

6.1. Materials.-

The materials on which a claim to the privilege under discussion may be based generally comprise-

(a) affidavits filed in the first instance,

(b) further affidavits, when required by the court,

(c) the document in original (where produced),

(d) oral evidence (to the extent permissible).

The first two raise no problems, as (a) the parties may be expected to file such affidavits as they may be advised,1 and (b) the Court should continue to have the necessary power to direct them to file affidavits.2 As to the third aspect (the original document), we are recommending that it should be produced for inspection in every case.3

As regards the last aspect-oral evidence-the Court certainly has the power to call for it, even now. If-as is our recommendation-the law should insist that the document (in respect of which privilege is claimed) should be produced for inspection by the Court in camera4 occasions for oral evidence will be reduced to a very large extent.

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

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

3. Chapter 7, infra.

4. Chapter 7, 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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