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Report No. 88

7.8. Supreme Court case.-

In this connection, reference may be made to the observations in State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 882 (883), para. 69 (per Mathew, J.)., which were as follows:-

"As it was held in that case,1 that the Court has no power to inspect the document, it is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the documents upon public interest, that a document is one relating to affairs of State as, ex-hypothesis, a document can relate to affairs of State only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxious in the sense that, without, conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure would be injurious to public interest.

The enquiry to be conducted under section 162-is an enquiry into the validity of the objection that the document is an unpublished official record relating to affairs of State and therefore permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of State and its disclosure cannot be permitted, for, why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relates to secret affairs of State? Section 162 visualizes an enquiry into that objection and empowers the court to take evidence for deciding whether the objection is valid. The court therefore has to consider two things; whether the documents relate to secret affairs of State; and whether the refusal to permit evidence derived from it being given was in the public interest.

No doubt, the words used in section 123 'as he thinks fit' confer an 'absolute discretion', on the head of the department to give or withhold such permission. As I said, it is only if the officer refuses to permit the disclosure of a document that any question can arise in a court and then section 162 of the Evidence Act will govern the situation. An overriding power in express terms is conferred on the court under section 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest.

This conclusion flows from the fact that in the first part of section 162 of the Evidence Act, there is no limitation on the scope of the court's decision though in the second part the mode of inquiry is hedged in by conditions. It is therefore clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether the disclosure of the document would be injurious to public interest and the expression "as he thinks fit" in the latter part of section 123 need not deter the Court from deciding the question afresh, as section 162 authorises the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh's case)".

It may be noted that, at present, inspection of a document which relates to "matters of State" is prohibited by section 162. In Amar Chand's case, AIR 1964 SC 1958, the appellant called upon the respondents, the Union and the State to produce certain documents. The respondents claimed privilege. The Supreme Court saw the documents and was satisfied that the claim for privilege was not justified. The case illustrates how inspection may become necessary to determine whether the claim to privilege is justified. We may also refer to an Andhra case2 on the same point.

1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 Punj 493 (567), para. 94.

2. R.Ramanna v Government of Andhra Pradesh, AIR 1971 AP 196.

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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