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Report No. 88

1.8. History and rationale.-

In England, Crown privilege is usually dealt with as an aspect of the general law of State liability. In this connection, it may be noted that the Crown Proceedings Act, 1947, while making the Crown liable as a private citizen in many respects, took care to provide that its provisions should not affect this general law. In one article, published a few years ago, the history of Crown privilege was thus dealt with.-

"The source of the Crown's privilege in relation to production of documents in a suit between subject and subject (whether production is sought from a party or from some other) can, no doubt, be traced to the prerogative right to prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence regarding Court intrigue. As is pointed out in Pollock and Maitland's History of English Law (2nd Edn., Vol. I, page 517), 'the king has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the king disseised A and transfers the land to X, then X when he is sued will say that he cannot answer without the king, and the action will be stayed until the king orders that it shall proceed'.

We find similar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. But with the growth of democratic Government, the interest of the Crown in these matters developed into and became identified with public interest. In the early days of the nineteenth century, when principles of 'public policy' received broad and generous interpretation we find the privilege of documents recognised on "the ground of public interest". At this date, public policy and the interest of the public were to all intents synonymous."

In the report of Layer's case,1 the Attorney-General claimed that minutes of the Lords of the Council should not be produced; and Sir John Prate L.C.J. supported the claim, adding that "it would be for the dis-service of the King to have these things disclosed".

1. Documents Privileged in Public Interest, 39 LQR 476-477.

2. Layer's case, (1722) 16 How ST 224.



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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