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Report No. 88

10.33. Practice in U.S.A.-

As regards the actual procedure to be followed, the formulation proposed in the U.S. draft Federal Rules is of interest as showing the general approach. Rule 509(c) of those rules1 proposed as under:-

"(c) Procedure.- The privilege for secrets of State may be claimed only by the chief officer of the Government agency or department administering the subject-matter which the secret information sought concerns, but the privilege for official information may be asserted by any attorney representing the Government. The required showing may be made in whole or in part in the form of a written statement. The judge may hear the matter in chambers but all counsel are entitled to inspect the claim and showing and to be heard thereon, except that, in the case of secrets of State, the judge, upon motion of the Government, may permit the Government to make the required showing in the above form in camera.

If the judge sustains the privilege upon a showing in camera, the entire text of the Government's statements shall be sealed and preserved in the court's records in the event of appeal. In the case of privilege claimed for official information the court may require examination in camera of the information itself. The judge may take any protective measure which the interests of the Government and the furtherance of justice may require".

1. Rules 509(c), Federal Rules of Evidence (proposed).

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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