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Report No. 69

XII. Points for Amendment

65.81. Points to be borne is mind.-

Should the law in India be changed? That is the question to be considered. Of course, the fact that the law elsewhere is more liberal is not a sufficient consideration-though it may show that if the experience of other countries is any guide, practical difficulties need not be apprehended.

65.82. In taking a decision on the question whether the section requires an amendment, it should not be overlooked that the present section was framed a hundred years ago at a time when the activities of the State were not so wide and all embracing as they are at present. Further, it must be borne in mind that thinking on the subject had not then crystallised as it is today; and several aspects of the privilege-its impact on the administration of justice and its effects on the rights of citizens'-had not been thoroughly discussed at that time. For these reasons, one is entitled to consider the need for substantial modifications or additions and amplifications with greater readiness than one would be in the case of other provisions.

65.83. There is the very important aspect of rule of law. "In a democracy based upon the rule of law, surely the only acceptable repositories of absolute discretion should be the courts."1

1 D.C.M. Yardley Executive Privilege, (1974) New LJ 794, 797.

65.83A. Recommendation to amend section 162.-

We first address ourselves to the present provision, barring the inspection of the document (section 162). This provision1 has caused serious practical difficulties. If the court cannot inspect the document, it is inconvenient for the Court to decide the question whether the document falls within "affairs of State". On principle also, where the admissibility of a document is to be decided, the materials-and more particularly the document itself-ought to be before the Court. The Court would, it is true, ordinarily accept the statement of the Minister or head of the department, if made on oath, as to whether the document is one whose disclosure would be injurious to public interest.

The court may, in a proper case, get him cross-examined at the hands of a party claiming disclosure. The court will treat his objection as sufficiently, provided the objection is validly and properly taken and based on materials which the court considers evidence. But the ultimate power of inspection should always be vested in the court. In the peculiar circumstances of a case, the court may accept the view of the responsible officer, but the decision must be of the court.

1. Section 162.

65.84. It may be noted that the practice elsewhere, has been liberalised. Lord Denning, who gave the dissenting judgment in Conway's case1(in the Court of Appeal), referred to a number of cases from all the dominion countries for holding the view that the documents could be inspected by the court for keeping the balance between the parties even. The following observations of Lord Denning can be read with advantage:2

"I know that in Duncan v. Cammell, Daird & Co. Ltd., (1942) 1 All ER 587: 1942 AC 624, the House of Lords dissented from Robinson's case, 1931 All ER 533: 1931 AC 704; but the courts of the Commonwealth being free to choose have unanimously followed Robinson's case and have endorsed the views of this court in the Grosvenor Hotel case, (1964) 3 All ER 354: 1965 Ch 1210; or in other cases have acted on like principles. Let me recite the cases. They are a veritable roll call. The Supreme Court of Canada in R. v. Shinder, 1954 SLR 479 and Gagnon v. Quebec Securities Commission, 1964 SCR 329.

The Supreme Court of Victoria in Bruce v. Waldron, 1963 VLR 3. The Court of Appeal of New South Wales in Re Tunstall, Ex. P. Brown, 1966 (84) WN (Pt. 2) (NSW) 13. The Court of Appeal of the New Zealand in Corbett v. Social Security Commission, 1962 NZLR 878. The Supreme Court of India in Amar Chand v. Union of India, AIR 1964 SC 1658. The Supreme Court of Ceylon in Apponhamy v. Illangaretue, (1964) 66 CLW 17. The Court of Appeal of Jamaica in Allen v. Byfield (No. 2), (1964) 7 WIR 69 (71). To say nothing of the Court of Session in Scotland backed in this respect by the House of Lords, itself in Glasgow Corporation v. Central Land Board, 1956 SC (HL)."

1. Conway v. Rimmer, (1967) 2 All ER 1260 (1262) (CA), on appeal (1968) 31 All ER 874 (HL).

2. See also para. 65.101, infra.

65.85. Amendment of section 162.-

Our first recommendation, then, is to amend section 162 for the purpose by deleting the words which exclude from inspection a document relating to matters of State.

65.86. Decision of privileg.- section 123.-

In addition, power to decide the question of privilege should also in our view, be vested in the Court. In practice, the Court will pay due regard to the Ministerial Certificate. But it seems to us that the legislative provision must not be rigid as at present. The ultimate decision as to whether disclosure should or should not be allowed, should, in every case under section 123, be with the Court. It is to be pointed out, in this context, that the foundation for the privilege is injury to the public interest.1

The expression "affairs of State" is of very wide amplitude; literally, it will cover every activity of the State so as to take in even day to day routine administration and not merely highly confidential matters pertaining to defence, foreign affairs, Cabinet minutes or advice tendered by the Ministers to the Governor under Article 163(3). The crucial test should be whether there is injury to the interest of the public, and a determination of that question should be left to the Court.

1. State' of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865.

65.87. According to Wigmore,1 the extent to which this privilege has gone beyond "secrets of State" in the military or international sense is by no means clearly defined, and therefore its scope and bearing are open to careful examination in the light of logic and policy. According to him, in a community under a system of representative government, there can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice.

"This is a constitutional question of first importance and it can be settled only in the courts. The law relating to crown privilege is entirely judge-made law. No statute is concerned. If the courts lack the will, it would be unrealistic to expect of any government that it should find the parliamentary time to introduce legislation for the purpose of conferring upon the courts a power which they have shown that they are unwilling to acknowledge, let alone exercise. The courts in Scotland have held that they have this power. So have the courts of Canada, Australia, New Zealand and India.

These decisions have been upheld in the House of Lords; Glasgow Corporation v. Central Land Board, (1956) SC (H.L.), and the Privy Council; Robinson v. State of South Australia, (1931) AC 704. The Grosvenor Hotel case laid down that a similar rule of the common law prevails in England. There is, indeed, no country in which the common law holds sway, whose courts have failed to recognise that they have such a power-to be exercised no doubt rarely and in the last resort, but nevertheless to be exercised when necessary. It would be said indeed if the courts of this country, which is the fount of the common law, should alone, and contrary to its whole spirit and all its principles, wholly abdicate a power which is vital to the true administration of justice."

1. Wigmore Evidence, 3rd Edn., Vol. 8, p. 788, referred to by Mathew, J. in AIR 1975 SC 865 (884), para. 73.

65.88. We may also quote the views of Salmon L.J. Addressing the members of Justice in July, 1967, Salmon L.J. (as he then was)1 observed, after referring to the case law on the subject, as follows:-

1. Lord Justice Salmon, Bench The Last Bulwark of individual Liberty, (1967), reprinted in (1967), 69 Born LR Journal 123.

65.89. Affairs of State and public interes.- Comparative importance.-

The question why the determination of the question of public interest should be by the court may be viewed from another angle. For this purpose, it is necessary to discuss in detail the expression "affairs of State". These words have not been defined, nor has the expression "matters of State",1 which is used in section 162 been defined in the Act. The shorter Oxford Dictionary explains "matter" as a "thing, affair, concern". Therefore, one may presume that there is, for all practical purposes, no difference between the scope of section 123 and section 162 so far as this particular ingredient is concerned.

1. Section 162.

65.90. Dictionary meaning of "affairs of State".-

In the absence of a statutory definition of the expression "affairs of State"', one is driven to consulting the Dictionary. The shorter Oxford Dictionary explains "affairs of State" as "public business". Now, such a meaning cannot be attributed to this expression in the context of section 123, because that will mean that all public business would be excluded from the purview of the law of evidence, unless the head of the department consents. This is not the usual understanding of the section. Such a view, though sometimes put forth on behalf of the government, has never been accepted judicially. It may be noted that the expression "affairs of State" does not possess much importance in English common law. The emphasis is on "public interest". In Robinson's case1 for example, the Privy Council said:

"The principle of the rule is the concern for public interest and the rule will accordingly be applied no further "than the attainment of that object requires."

Injury to the public interest was the test adopted by the House of Lords in Duncans case also, and in Conway v. Rimmer. It has been emphasised in India by the Supreme Court and High Courts on numerous occasions.

1. Robinson v. State of South Australia, AIR 1931 PC 704.

65.91. Having regard to the fact that the expression "affairs of State" is not defined in the Act, and that judicial decisions in India also do not give a precise definition, it is legitimate to consider the question whether the scope of the privilege should be defined in some other terms. Judicial decisions, on the whole, seem to suggest that these words have acquired a secondary meaning, namely, those matters of State whose disclosure would cause injury to the public interest1 Such a reading would, in fact, be inescapable if the foundation of the privilege is injury to the public interest.

1. See discussion in the concurring judgment of Subba Rao, J. in State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 Punj 493 (567), para. 94.

65.92. The whole difficulty arises because, under the section as is now stands, prominence is given to the expression "affairs of State"-a prominence really not deserved by that expression if the matter is viewed on the basis of principle and unhampered by the fact that section already happens to use the expression. The crucial test ought to be injury to the public; interest. In fact, this has been described as the foundation of the privilege, as already stated. The difficulty arises because the test which is really crucial does not find a place in the section while an expression which is really not crucial is used in the section-and that too without a definition. It would, therefore, be appropriate if the real test is incorporated in the section. After that is done, application of the test to each case should be with the court as is the case now with "affairs of State".

65.93. The result, in substance, would be that "relevant evidence must be excluded if its reception would be contrary to the public interest"-which is the formulation by Cross and Wilkins1 of the rule in England. This is also in accordance with what Lord Morris said in Conway's case2 namely,-

"Whenever objection is made to the production of a relevant document, it is for the court to decide whether to uphold the objection the power of the court must also include a power to examine the documents privately."

In this connection, reference may be made to the observations of Mathew J. in State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 882 (883), para. 69, which were as follows:-

"As it was held in that case3 that the Court has no power to inspect the document, it is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the documents upon public interest, that a document is one relating to affairs of State as, exhypothesi, a document can relate to affairs of State only if its disclosure will injure public interest.4 It might be that there are certain classes of documents which are per se noxious in the sense that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other document which do not belong to the noxious class and yet their disclosure would be injurious to public interest.

The enquiry to be conducted under section 162 is an enquiry into the validity of the objection that the document is an unpublished official record relating to affairs of State and therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of State and its disclosure cannot be permitted, for, why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relates to secret affairs of State? Section 162 visualizes an enquiry into that objection and empowers the court to take evidence for deciding whether the objection is valid. The court therefore, has to consider two things; whether the documents relate to secret affairs of State; and whether the refusal to permit evidence derived from it being given was in the public interest.

No doubt, the words used in section 123 'as he thinks fit' confer an absolute discretion on the head of the department to give or withhold such permission. As I said, it is only if the officer refuses to permit the disclosure of a document that any question can arise in a court and then section 162 of the Evidence Act will govern the situation. An overriding power in express terms is conferred on the court under section 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest.

This conclusion flows from the fact that in the first part of section 162 of the Evidence Act, there is no limitation on the scope of the court's decision, though in the second part, the mode of enquiry is hedged in by conditions. It is, therefore, clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether the disclosure of the document would be injurious to public interest and the expression 'as he thinks fit' in the latter part of section 123 need not deter the court from deciding the question afresh as section 162 authorises the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh's case)."

1. Cross and Wilkins Outlines of the Law of Evidence, (1975), p. 187, Article 68(i).

2. Conway v. Rimmer, (1968) 1 All ER 874 (880) (HL).

3. State of Punjab v. Sodhi Suklidev Singh, AIR 1961 Punj 493 (567), para. 94.

4 Emphasis added.

65.94. We should also mention that on the whole, the attitude of the courts in India has also been towards liberalising the interpretation of the law, though gradually. For example, in Sukhdev Singh's case, inspection of the original documents was regarded as totally barred by virtue of section 162. But, in Amar Chand's case, a further step was taken, and to do justice to the parties, it became necessary for the Court to call for the documents. Similarly, in Sukhdev Singh's case, an examination of the merits of the privilege claimed was out of question, while, in Amar Chand's case, the court, after seeing the document, was satisfied that the claim of privilege was not justified1.

1. This aspect was noticed by Ray, C.J. in State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (973), para. 32.

65.95. Ray, C.J., in State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (875, 976), para. 41, after examining several decisions and observing that it is injury to the public interest which is the reason for exclusion from disclosure of the documents in question, and after giving certain illustrations of documents which would be privileged, pointed out1- "In the ultimate analysis, the contents of the documents are so described that it could be seen at once that in the public interest the documents are to be withheld2".

1. Merriks v. Nottbower, (1964) 1 All ER 717 was referred to.

2. Emphasis supplied.

65.96. View of Mr. Justice Boulnois on the Evidence Bill quoted.-

In this context, the following comment of a Judge of the erstwhile Punjab Chief Court on draft section 110 of the Indian Evidence Bill (present section 123) is also of interest1-

"Upon section 110 of the Bill it may be said that there is no corresponding provision with reference to documents, and, assuming that a corresponding section will form part of Part II. Chapter VII that the words of section 22 of Act 2 of 1855 are preferable to those which would be so substituted for them, though much difficulty often arises in practice upon the law as it stands at present. If the head of the department is to be the Judge whether the 'document shall be produced or not,' some such words as section XXII of Act II of 1855 contains, are necessary for his guidance.

It can be well understood that to obtain production of a document from the Indian Foreign Department is not the same as to put in evidence a contingent bill out of the Department of Public Accounts, or a contract obtained from that of Public Works. The pecuniary interests of Government might require the non-production of the latter as much as the general interests of public policy might require the withholding of the former, but documents should only be privileged on the ground of such general interests as are understood by the words 'public policy'. Provision should be made for documentary as well as for oral evidence on this subject in the Bill."

1. Justice Boulnois (Punjab Chief Court). Proceedings regarding the Evidence Bill (National Archives), Paper No. 82 (4th September, 1871), p. 129.

65.97. Section 22, Act of 1855.- It may be stated that section 22 of the Evidence Act, 2 of 1855, was as follows:

"XXII. A witness shall not be forced to produce any document relating to affairs of State the production of which would be contrary to good policy". That section did not provide that the decision rests with the head of the department. Under our recommendation,1 the decision as to the validity of the claim will be by the Court. Of course, the court will pay adequate regard to the view of the highest officer as to whether the public interest would be prejudiced by disclosure, the more so when national security is put forth as the basis.

1. See infra.

65.98. Lines of revision of section 123.-

We consider it desirable that section 123 should be amended so as to incorporate a few proposition which are of fundamental importance, or are otherwise of such a nature that the gist thereof should find a place in the section and should not be left to be deduced from judicial decisions on the subject or otherwise left in a state of obscurity. We have in the course of the preceding discussion, referred to most of them. By way of summarising the points made so far and completing the discussion, we may state the propositions that should find legislative expression in section 123.

(1) 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.

[This proposition does not make any substantial change in the existing provision. It operates primarily as between the witness and his superior].

(2) Such officer should not withhold such permission unless he is satisfied that the giving of such evidence would be injurious to the public interest. He should make an affidavit also in this regard. The Court may, if it thinks fit, call for a further affidavit from the head of the department.

[This proposition amplifies the section by highlighting the test of injury to the public interest-a test discernible from the case law-and by codifying the procedure already indicated judicially].

(3) Where such officer has withheld permission for the giving of such evidence, and the court, after inspecting the unpublished official records concerned1 and after considering the affidavit, is of the opinion that the giving of such evidence would not be injurious to the public interest, the court should record its decision to that effect and thereupon the section will not apply to such evidence.

[This proposition modifies the existing section, for reasons already given. The change is an important one, as the decision as to injury to the public interest will be with the court].

1 Section 162 to be amended also.

65.98A. Section 162 to be amended.-

Amendment of section 162, second paragraph, by removing the words "unless it refers to matters of State", should also be carried out1 separately.

1. To be carried out under section 162.



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