Report No. 69
IV. Affairs of State
65.21. Affairs of State.-
The expression "Affairs of State" does not seem to have been used in any legislative formulation in other context, but it is used frequently in text books and academic literature on the subject. The principal object of the expression is to indicate the distinction between matters of concern to the State, as distinct from matters of private interest.
65.22. This, of course, is not the only ingredient of the privilege, since it is further required that the matters must be of such a nature that their disclosure would be prejudicial to the public interest. The principle on which the protection is given is that where a conflict arises between public and private interest, private interest must yield to the public interest.1
1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; and also Lady Dinbai v. Dominion of India, AIR 1951 Born 72.
65.23. Scope of "affairs of State".-
Every communication from an officer of the State to another officer is not necessarily relating to affairs of State.1 The privilege could not arise, for example, in respect of the posting register kept by the Customs Preventive Service, the entry in question being merely a note of the times when particular preventive officers were ordered to be at their stations.2 The particular entry did not refer to matters of Slate in sections 123 and 162, though there may be other privileged entries in that book.
1. Chamarbaghwalla v. Parpia, AIR 1950 Born 230.
2. Rukumali v. R., 22 CWN 451.
65.24. "Affairs of State" may cover the case of documents in respect of which the practice of keeping them secret is necessary for the proper security of the State. Reports relating to an individual with a view to taking action under the Preventive Detention Act is a matter relating to affairs of State.1
1. Choudhury v. Changkakati, AIR 1960 Assam 210.
65.25. The expression "affairs of State" would also cover the advice given by a Minister. Thus, in a Rajasthan case,1 the plaintiff brought an action for the recovery of Rs. 1,19,000 against the State of Rajasthan, on account of a refund of a part of the excise duty paid on the stocks of matches produced by the plaintiff for consumption in the State territory. This was in pursuance of an agreement with the State Government. There was a document which embodied the minutes of the discussion and indicated the advice given by the Minister. The State claimed privilege in respect of this document under section 123.
The claim of privilege was upheld by the trial court as well as by the High Court. The High Court held that the document which embodied the minutes of discussion and which indicated the advice given by the Minister is certainly protected under section 123, and the Court cannot compel the State to produce it. On the other hand, documents and letters relating to a contract with the Government for the supply of goods do not relate to affairs of State.2
1. Kotah Match Factory, Kotah v. State of Rajasthan, AIR 1970 Raj 118.
2. G.G.-in-Council v. Peer Md., AIR 1950 I'unj 228.
65.26. Illustrative cases as to "affairs of State"-Income-tax Papers.-
These simple situations may not present much difficulty. But the obscurity of the expression "affairs of State" is illustrated by the decisions that were rendered With reference to other matters. Returns made to income-tax officers and assessment orders may be cited as an example.
65.27. Before the enactment of a specific statutory provision on the subject, it was held that returns submitted to the Income-tax officer, and statements before him or orders made by him, did not refer to "affairs of State" (section 123), nor were they made in official confidence (section 124), and the officer concerned was bound to produce them if summoned to do so.1-2
It was after these judicial decisions that section 54 of the Income-tax Act, 1922, was enacted.
1. Venkatachella v. Sampatu Chettiar, 1909 ILR 32 (62): 19 Mad p 263.
2. Jadabaram v. Bulloram, 1899 ILR 26 Cal 281.
65.28. Section 54 of the Income-tax Act, 1922 (now section 137 of the Income-tax Act, 1961)-to state only the gist thereof-enacted that statements made or returns, accounts or documents produced for evidence before Income-tax authorities shall be treated as confidential and disclosure thereof by any public servant was prohibited, and no official shall be required to produce any such document or to give evidence in respect thereof.
65.29. Departmental proceedings.-
The difficulty of deciding whether a matter is or is not an affair of State, is also illustrated by the case-law relating to statements made by witnesses in the cases of a departmental enquiry into the conduct of a public officer. The question arises when, after the departmental enquiry, the guilty public servants are prosecuted-usually for the offence of accepting illegal gratification, it was held by the Calcutta High Court1 that such statements were not privileged under sections 123 to 125, and the accused was entitled to cross-examine the witnesses under section 153 with reference to the statements made by the witness at the departmental enquiry. The same view was taken by the Nagpur High Court.2 On the other hand, statements by witnesses in a secret and confidential investigation by the C.I.D. for ascertaining whether there is a prima facie case for a departmental enquiry against the public servant were held to be privileged by the Lahore3 and Orissa4 High Courts.
1. Harbans v. R., 16 CWN 431.
2. Ibrahim v. Secretary of State, AIR 1936 Nag 25.
3. Nazir v. R., AIR 1944 Lah 424.
4. James Bushi v. Collector of Ganjam, AIR 1959 On 152.
65.30. Service papers.-
In a Punjab case,1 the respondent Surjit Singh had filed a suit against the State of Punjab for a declaration that his retirement from service before he reached the age of superannuation was illegal and violative of various provisions of the Constitution of India. He requested the trial Court to direct the department to produce in Court the Character Rolls and confidential reports maintained in the department, in respect of himself and some other inspectors who were junior to him but were retained in service. The State claimed privilege under section 123, on the ground that the documents were unpublished official records relating to "affairs of State". The trial court disallowed the privilege, holding that these documents did not relate to "affairs of State".
1. State of Punjab v. Surjit Singh, AIR 1975 P&H 11.
65.31. The matter came up before the High Court under section 115 of the Code of Civil Procedure, 1908. The High Court allowed the petition filed by the State, and held that the character Rolls and confidential reports maintained for the purpose of providing an appraisal of the merit of State servants by their superiors from time to time, are in the nature of confidential communications from one officer to another, and are meant to serve as part of the material designed to maintain the efficiency of the public servants. The High Court further held that hole documents would relate to "affairs of State". The High Court dissented from two earlier cases1 to the contrary. Thus, conflicting views within the same High Court exist.
1. (a) Union of India v. Raj Kumar, AIR 1967 Punj 387. (b) Niranjan Dass v. State of Punjab, AIR 1968 Punj 255.
65.32. Definition not possible.-
In a Punjab case,1 Khosla, J. attempted to evolve a definition of affairs of State. This definition was relied on in the same High Court in a later case,3 but, in appeal before the Supreme Court,2 this definition was treated as not exhaustive. We are referring to these cases, to show how the expression "affairs of State", without further guidelines, is found to be imprecise.
1. G.G.-in-Council v. Peer Mohd., AIR 1950 Punj 228 (233) (Khosla, J.).
2. Sodhi Sukhdev Singh v. State, AIR 1961 Punj 407.
3. State v. Sodhi Sukhdev Singh, AIR 1961 SC 493: (1961) 2 SCR 379.
65.33. Public interest.-
The next important concept is that of public interest. The scope and ambit of public interest is, as we have pointed out earlier, a matter of uncertainty and obscurity. It would be convenient to examine it under its principal heads. In the first place, where the security of the State is involved, the claim of privilege would be reasonable and well-founded, provided it is properly substantiated by adequate material. These were the circumstances of Duncan's case.1 It was obviously a matter of State security at the time of the war that plans for new submarines that had been pressed in service should not be disclosed to the enemy.
Secondl.-and this is a much wider ground than security of the State-the claim of privilege has been sought to be justified in circumstances where a report has been made from one public servant to another in course of his duty, the argument being that the report should be treated as confidential if it was prepared in conditions under which the official making it expected it to be so treated. The rationale in this situation, as suggested, is that if its confidentiality is destroyed, then the civil servant would not be prepared to write full and frank reports if these reports are subsequently to be produced in the litigation so as to cause prejudice to the Crown.
One may conveniently label such claims as claims arising under the head of public service. It is difficult to say how far the privilege under this head is recognised in England. The argument that a confidential report will not be made frankly if there is a probability of public scrutiny has been criticised more than once by academic writers.2 Garner3 has suggested that it really does not stand up to close examination, because "a civil servant should not be prepared to write a report that may be open to criticism or one that he does not wish to be examined in court (save on State security grounds)."
1. Ducan Adminisrative Law, (1997), p. 252-a view repated in his (1972) Edn.
2. for example, Ingris Bell in (1957) Public law.
3. Garner Administrative Law, (1967), p. 252-a view repeated in his (1972) Edn.
65.34. Dealing with the argument that candor of communication between civil servants might be prejudiced, if a privilege is not recognised, the House of Lords in Conway's case1 (per Lord Hodson) observed:
"It is strange that civil servants alone are supposed to be unable to be candid in their statement, made in the course of duty without the protection of an absolute privilege denied to their other fellow subjects."
1. Conway v. Rimmer, (1968) 1 All ER 874 (HL),
65.35. Apart from public security and public service-the two heads mentioned above-we have to consider a third variety of circumstances in which privilege is claimed. This is the residual category under "public interest". It seems, that in England this category is defined by reference to specific heads, such as, the prevention of specific crimes and the maintaining of the morale of the armed force of the Crown. Even these specific heads have not escaped criticism, judicially1 and otherwise.2
1. Crosvenor Hotel (London) Ltd. (in re:) (No. 1), (1963) 3 All ER 426; on appeal (1964) 1 All ER 92.
2. Article in-
(a) 79 LQR 37 (153, 487);
(b) 80 LQR 24 (158);
(c) 1963 Public Law 405.
65.36. After Conway v. Rimmer, three subsequent cases also reached the House of Lords. In R. v. Lewes, ff. ex. p. Home Secretary, 1972 WLR 279, and in Alfred Crompton Amusement Machines Ltd., (1972) 2 All ER 1169: (1973) 3 WLR 268, (No. 2) claims to privilege were upheld. In Norwich Pharmacal Co. v. Commissioners of Customs & Excise, (1973) 2 All ER 943: 1974 AC 133 of Customs and Excise, the claim was overruled, and discovery of documents ordered.
65.37. In the Norwich Pharmamcal case, the House of Lords stressed the need to balance the public interest in non-disclosure against the public interest in seeing that justice is done to the parties. None of these cases takes us much further forward, but what they do achieve is to show that the Judges will consider each case of a claim of privilege (or whatever else it may now be called) on its merits.1
As to criminal cases, in England, it is stated not to be the practice to claim privilege on the ground of state interest.2
1. D.C.M. Yardley Executive Privilege, (1974) New Lj 794, 796.
2. Cross Evidence, (1974), p. 274.
65.38. The matters in respect of which the discretion of the court should be exercised as to inspection are not as such, denned by statute. Suggestions have appeared that legislative action should be taken to particularise the species of public interest which should be taken into account.1 But no such restrictive legislation seems to have been enacted in the Commonwealth.
1. Clark The Last Word on the Last Word, (1969) 32 Modern Law Review 142, 148.
V. Authority Competent
65.39. The question which authority will determine the existence or otherwise of the privilege in relation to a particular document is one on which we find considerable disparity between the Indian law on the one hand and the English law on the other. According to Indian law-if we are to take literally what is stated in section 123-it is for the head of the department concerned to determine whether or not the document should be disclosed. On the other hand, in England, at least after the decision in Conway v. Rimmer, (1968) I All ER 874, it is definitely held that whenever an objection is made as to the production of a document, it is for the court to decide whether the objection should be upheld.1 To a large extent, this disparity between Indian law and English law has been reduced by judicial decisions in India. We shall also consider section 162 in due course.
1. See particularly, the speech of Lord Morris of Borth-Y-Gest and the comments in 84 LQR 172: 46 Can Bar Rev 452.