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Report No. 69

III. Essential Conditions

65.14. Important conditions for application of the section.-

So much by way of introduction. Let us analyse the section proper. In order that the section may apply, it is, in the first place, necessary that the evidence should relate to affairs of state-a requirement expressly mentioned in the section. This expression thus possesses some importance.

Secondly, the evidence must be derived from unpublished official records relating to such affairs.

Thirdly, disclosure of information so derived is not permissible except with the permission of the head of the department concerned. So the question-who is the head of the department-is also of practical importance. Fourthly, it is for the head of the department "to give or withhold such permission as he thinks fit".

65.15. This, taken literally, would exclude judicial determination. These ingredients are explicit in the working of the section. If that were all, the matter would be very simple . But, in the interests of justice, these ingredients had to be elaborated and the prohibition in the section justified on an examination of certain fundamental factors not mentioned in the section. Courts have, therefore, found it necessary to address themselves to tow questions-(i) In giving or withholding permission, what ought to be the guideline to be observed by the head of the department? (ii) Is every document relating to government work privileged, or is there any implicit limitation to be read with the expression "affairs of state"? Broadly, speaking, these queries pertain to the first and the last condition in the above analysis.

65.16. Public interest.-

Answering those queries, judicial decisions have read into the section the test of public interest. The result-to state it very briefly for the purpose of this preliminary discussion-is that in order that a document may be legitimately regarded as privileged under the section, there must be a likelihood of some prejudice to the public interest. Whether the public interest in this context is confined to national security and foreign affairs and the maintenance of public order and the like, or whether it has a larger sweep is a matter the consideration whereof can be conveniently postponed to a later stage. The point to be made is that in order to justify the section, courts have been compelled to read into it a very important ingredient which is not explicitly mentioned in the section, though is may be implicit therein.

65.17. Controversy and obscurity.-

It is the scope and ambit of this aspect of public interest which his proved to be controversial and which, in some respects, appears to be obscure. Because of the fact that "Public interest" is not expressly mentioned, problems arise. Chief amongst them are-(i) who decides the question if the public interests likely to suffer by disclosure of the particular document? (ii) If it is for the head of the department to decide that question, how is the court to satisfy itself about his bona fides-assuming that the court cannot ordinarily go into the merits?

These and related question have furnished the grist for academic and judicial mill in other countries, in also in India, Certain principles on the subject have also emerged, elsewhere as in India-but it would be too much to say that their application is easy. This is evident from the fact that again and again the question whether the particular document is issue is privileged under this head comes up before the highest courts.

65.18. Application of conditions-Sukhdev Singh's case.-

Reverting to the conditions expressed by the section, according to the Supreme Court in Sodhi Sukhdev Singh's case1

(i) it is for the trial court to decide whether the first condition is satisfied (Affairs of State);

(ii) the expression "affairs of State" does not mean the entire public business of the State;

(iii) for such adjudication, the court, while it cannot permit evidence about contents of the document (section 162), can take other collateral evidence which may help the court in determining the validity of the objection;

(iv) it is for the departmental head to give or withhold permission for disclosure, and the court cannot determine whether the disclosure would cause injury to the public interest or not.

1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493: (1961) 2 SCR 371.

65.19. In State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, the subject was discussed and considered at length. The court was concerned in that case with minutes of discussion by the members of the council of Ministers and which the advice tendered by the Public Service Commission to the Council of Ministers. Both were held to be privileged by the majority judgment, on the ground that the disclosure prima facie would lead to injury to the public interest.

But the court took care to review the case law exhaustively and to indicate the proper principles to be followed. The court emphasized that the sole and the only test which determines the decision of the head of the Department was injury to the public interest, and nothing else. The court itself could not hold and enquiry into the possible injury to public interest: "but the court is competent, and indeed is bound. To hold a preliminary inquiry and determine the validity of the objections-to its production, and that necessarily involves an inquiry into the question as to whether the evidence relates to an affair of State under section 123 or not."

65.20. In order to ensure that the privilege was not claimed on extraneous grounds, the court laid down the following guidelines:-

First, the initial claim to the privilege should be made through an affidavit generally by the Minister concerned: if not by him, then by the Secretary of the department. In the latter case, the court may require and affidavit of the Minister himself. The affidavit should indicate that such document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury. The affidavit should also "indicate briefly, within permissible limits, the reason why it is apprehended that public interest would be injured by the disclosure of the document. If the court finds the affidavit unsatisfactory then the person making the affidavit, whether he is the Minister or the Secretary, can be summoned for cross-examination on the relevant points."

Later decisions of the Supreme Court and important cases of the High Courts will be referred to while discussing the topics to which they relate. We do not propose to refer here to all the cases on the section or on "Crown privilege". Important cases are given in the foot-notes1-3, and will be referred to on particular points when necessary.

1. (a) State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371: AIR. 1961 SC 493;

(b) Amar Chand Butail v. Union of India, (1965) 1 SCI 243: AIR 1964 SC 1658;

(c) State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (975).

2. (a) Dinbai v. Dominion of India, AIR 1951 Born 72;

(b) Bhalchandra v. Chanbasappa, AIR 1939 Born 237 (246).

3. (a) Robinson v. State of South Australia, AIR 1931 PC 254;

(b) Duncan v. Cammanwell Laird & Co., 1942 AC 623;

(c) Glasgow Corpn. v. Central Land Board, 1956 SC (HL) (from Scotland);

(d) Conway v. Rimmer, (1968) 1 All ER 874 (HL).

Indian Evidence Act, 1872 Back

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