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Report No. 88

8.4. Wigmore's view.-

After examining the scope of the privilege in the light of logic and policy, Wigmore concludes as follows'-

"(1) Any executive or administrative regulation purporting in general terms to authorise refusal to disclose official records in a particular department when duly requested as evidence in a court of justice should be deemed void.

(2) Any statute declaring in general terms that official records are confidential should be liberally construed to have an implied exception for disclosure when needed in a court of justice.

(3) The procedure in such cases should be: A letter of request from the head of the Court to the head of the Department (accompanying the subpoena to the actual custodian), stating the circumstances of the litigation creating the need for the document; followed (in case of refusal) by a reply from the Departmental head stating the circumstances deemed to justify the refusal; and then a ruling by the Court, this ruling to be appealable and determinate of the privilege".

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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