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Report No. 88

6.3. Practice in India as to affidavits.-

It is well-known that the practice in India is for the head of the department to make an affidavit, setting out the objection on behalf of the State and relevant factors. The present practice was thus described by the Supreme Court in another case.-

"It is now the well-settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the documents should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production, the matter ends there. If the Court would yet like to satisfy itself, the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh's case.

This Court has said that where no affidavit was filed, an affidavit could be directed to be filed later on. The Grosvenor Hotel, London Group of cases, (1963) 2 All ER 426: (1964) 1 All ER 92: (1964) 2 All ER 674 and (1964) 3 All ER 354 (supra) in England shows that if an affidavit is defective, an opportunity can be given to file a better affidavit. It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits, the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document, the Court may do so."

1. State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (876), para. 42.

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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