Report No. 88
As a result of the discussion contained in the preceding Chapters, certain changes in the present law will be required. These changes concern-(a) the Indian Evidence Act, 1872, (b) the two procedural Codes, and (c) the Constitution.
(a) So far as concerns the Indian Evidence Act, 1872, the recommendations relate to sections 123, 124 and 162.
(i) Section 123 should be revised as under:-
"123. (1) Subject to the provisions of this section, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, unless the officer at the head of the department concerned has given permission for giving such evidence.
(2) Such officer shall not withhold such permission, unless he is satisfied that the giving of such evidence would be injurious to the public interest; and where he withholds such permission, he shall make an affidavit containing a statement to that effect and setting forth his reasons therefor:
"Provided that where the Court is of opinion that the affidavit so made does not state the facts or the reasons fully, the Court may require such officer or, in appropriate cases, the Minister concerned with the subject, to make a further affidavit on the subject.
(3) Where such officer has withheld permission for the giving of such evidence, the court, after considering the affidavit or further affidavit, and if it so thinks fit, after examining such officer or, in appropriate cases, the Minister, orally,-
(a) shall issue a summons for the production of the unpublished official records concerned, if such summons has not already been issued;
(b) shall inspect the records in chambers; and
(c) shall determine the question whether the giving of such evidence would or would not be injurious to the public interest, recording its reasons therefor.
(4) Where, under sub-section (3), the court decides that the giving of such evidence would not be injurious to the public interest, the provisions of sub-section (1) shall not apply to such evidence".
(ii) Section 124 of the Evidence Act should be revised as under:-
"124. (1) No public officer shall be compelled to disclose communications made to him in official confidence, when the court considers that the public interests would suffer by the disclosure.
(2) Where a public officer who is a witness is asked a question which might require the disclosure of any such communication, and he objects to answering the question on the ground that the public interests would suffer by its disclosure, the court shall, before rejecting his objection, ascertain from him, in chambers, the nature of his objection and reasons therefor.
(3) Nothing in this section applies to communications contained in unpublished official records relating to any affairs of State, which shall be dealt with under section 123.1"
(iii) In section 162, second paragraph, evidence Act, the words "unless it refers to matters of State" shall be deleted.
(b) As regards the two procedural Codes, the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973-it will be necessary to insert in both the Codes at the appropriate place a provision somewhat on the following lines2:-
"Any person aggrieved by the decision of any court subordinate to the High Court rejecting a claim for privilege made under section 123 or section 124 of the Indian Evidence Act, 1872 shall have a right of appeal to the High Court against such decision, and such appeal may be .filed notwithstanding the fact that the proceeding in which the decision was pronounced by the court is still pending"
(c) As regards the Constitution, Articles 74 and 163 will need amendment, on the lines recommended in the relevant Chapter of this Report3.
1. As to newly proposed section 124(3), see para. 2.5 supra.
2. Cf. Chapter 8, supra.
3. Para. 9.8, supra.
Dated: 7th January, 1983.