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Report No. 88

9.3. Supreme Court case.-

In the Supreme Court decision referred to above, the question at issue (so tar as is relevant for the present report) was the ambit of the protection against disclosure under Article 74(2) of the Constitution. It was held that while the reasons which had weighed with the Council of Ministers would certainly form part of the advice, the material on which the reasoning is based and the advice is given cannot be said to form part of the advice. On this basis, the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government in that particular case was held to be outside the exclusionary rule enacted in Article 74(2) of the Constitution. In arriving at this conclusion, one of the judgments adopts the analogy of a judgment given by a court of law. The relevant passage reads as under:-

"The point we are making may be illustrated by taking the analogy of a judgment given by a Court of Law. The judgment would undoubtedly be based on the evidence led before the Court and it would refer to such evidence and discuss it but on that account can it be said that the evidence forms part of the judgment? The judgment would consist only of the decision and the reasons in support of it and the evidence on which the reasoning and the decision are based would not be part of the judgment. Similarly, the material on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly be held to be outside the exclusionary rule enacted in clause (2) of Article 74."



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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