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Report No. 88

6.2. Position regarding production.-

In regard to production, section 123 speaks of the permission of the head of the department. It was held1 by a majority judgment of the Supreme Court in 1961 that the Court is competent, and indeed bound, to hold a preliminary inquiry and determine the validity of an objection to the production of the document, when privilege is claimed under section 123. This necessarily involves an inquiry into the question whether the evidence relates to "affairs of State" or not.

The head of the Department claiming privilege under section 123 must apply his mind. In Amarchand v. Union of India,2 a judgment of the Supreme Court of India referred to by the Court of Appeal in the English case of Conway v. Rimmer,3 this aspect became important. In that case, the Supreme Court rejected the claim for privilege on the ground that the statement of the Home Minister did not show that he had seriously applied his mind to the contents of the document, or that he had examined the question whether their disclosure would injure the public interest. The Supreme Court observed as follows:-

"In view of the fact that section 123 confers wide powers on the head of the department, the heads of departments should act with scrupulous care in exercising their right under section 123 and should never claim privilege only or even mainly on the ground that the disclosure of the document in question may defeat the defence raised by the State. Consideration which are relevant in claiming privilege on the ground that the affairs of the State may be prejudiced by disclosure must always be distinguished from considerations of expendiency".

1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493: (1961) 2 SCR 372.

2. Amarchand v. Union of India, AIR 1964 SC 1958 (1961) (not reported in the SCR).

3. Conway v. Rimmer, (in the Court of Appeal).

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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