Report No. 69

XIII. National Security

65.99. Cases of National Security.-

We do not propose to exclude, from the proposed provisions for inspection by the court and final determination by the court, cases where National Security is put forth as a ground for claiming privilege. No such exception has been recognised elsewhere. On principle also, it is the courts which should decide questions of privilege. If the Executive can act with discretion, the Judge can also act with discretion. It is rarely that in private matters, documents concerning Security of the State will be in issue. If it is a case of suit for wrongful dismissal of a civil servant and the dismissal is on the ground of National Security, Article 311 of the Constitution will take care of it.

65.100. We are discussing this aspect because a point of view has been put forth that where the Minister gives an affidavit to the effect that the security of the State would be affected by the disclosure, his affidavit should be final. In our view, such a step would be a retrograde one. Even now the decisions of the Supreme Court show that the Courts claim a right of inspection, and decide the question of privilege, whatever be the ground put forth for claiming the privilege. Moreover, in all Commonwealth countries, it is the court which decides the issue, whether the matter claimed to be privileged is alleged to relate to national security or whether the claim is made on any other basis.

65.101. Recent Commonwealth practice.-

We have referred already1 to the wealth of Commonwealth authority which was mentioned in the Judgment of Lord Denning in Conway v. Rimmer in the Court of Appeal. Simply by way of illustrating from recent practice, we would refer to a New Zealand decision.2 In that case, the plaintiffs brought an action alleging breach of contract between themselves and the State. The Minister concerned objected to the production of documents relating to the formation of government policy on the basis that it would be injurious to the public interest to reveal to public scrutiny the inner workings of government at high levels.

It was held that in this particular case, which was a claim for breach of contract, and where there was no question of the security of the country being affected by the disclosure of secret matters, where the Judge feels a doubt about the documents for which privilege is claimed, the citizen is entitled to some scrutiny on his behalf. An order was accordingly made by Beattie J., of the Supreme Court that the documents should be supplied for the inspection of the Judge.

1. Para. 65.84, supra.

2. Meates v. Attorney General (Supreme Court of Wellington) (18th February, 1976); Butterworth's Current Law, (1976) (Case Nos. 191 and 301).

65.101A. Position in Canada.-The Canadian rule was recently changed while the pre-1954 view was similar to that of England the case of Regina v. Snider, (1954) 4 DLR 483, marked a turning point. The Court, it was held, had now the responsibility of determining whether on the basis of "any rational view" the public interest required that the document should not be revealed. If an affirmative finding is made on this point, the court then would defer to the Minister's claim. In the case in which it was announced, the Supreme Court could not find any public interest requiring non-disclosure of income tax returns despite statutory provisions assuring their privacy. Moreover, dicta in the case made it clear that the judiciary was expected to, exercise control of administrative discretion in this area. In 1964, the rule was laid down in Canada practically in the same1 terms as it is in England now.

1. Gognan, 1964 SCR (Canada)

65.101B. In order to allay possible mis-apprehension as to the effect of the proposed amendment in regard to those provisions of the substantive law which create certain special safeguards on the ground of security of State, we should mention here that those safeguards would not be affected by the proposed amendment. This is for the reason that where the substantive law itself takes the case out of the realm of court, there can be no occasion for invoking this or any other evidentiary privilege because the matter would not be litigated at all.

We are making this observation since the apprehension may arise that, in regard, for example to the special provision as to the security of the State made in Article 311 of the Constitution the proposed amendment may have an undesirable effect. Cases under Article 311 are outside the sphere of justiciability, where the dismissal or removal of the civil servant concerned is itself on the ground of security of State. This is by reason of the special provision contained in that behalf in that very Article, ruling out justiciability.

65.102. The clarification which we have recommended is needed from the practical point of view. It may be mentioned that in Amar Chand's case frivolous pleas were raised-the document sought to be withheld was one which completely established the opposite party's case.

65.103. Any system of law in a democratic society must have as one of its primary goals, equality before the Law and the equal protection of the laws. A bureaucracy may become too cumbersome, proceeding by formula on its own rigid lines, and this may not be able to understand the spirit of the law or the fine, subtle and intangible considerations of justice. It is given to the judge to steer the law between the dangers of rigidity on the one hand, and of arbitrariness on the other hand.

There is no sound reason why, when so many important matters are decided by courts in the field of procedure, a departure should be made in regard to the question of state privilege. A Judge is the person entrusted, on behalf of the community, to weigh the various conflicting interests-to weigh, on the one hand, the needs of security of the state and on the other hand, the ultimate interest of the community in justice being done and in a proper investigation being made into facts. If the fudge determines that the government servant must produce the document, then no privilege should avail him to refuse.

65.104. Reasons summarised.- It would be convenient to summarise our reasons for the recommendation:-

(a) The rule of law justifies the course recommended.

(b) Balance of convenience is in favour of the course recommended.

(c) Only the Judge can decide such questions

(d) There is no livelihood of abuse of the power proposed to be conferred on the Judge.

(e) Past experience shows that having regard to the unsatisfactory grounds on which privilege was claimed, courts had to reject the claim. This shows how the proposed amendment is in the interests of justice.

XIV. Case Law Disallowing Claim

65.105. At this stage, we may refer to a few decided cases where the claim of privilege was rejected. Though security of the State was not put forth specifically in those cases, they are relevant to show how a claim is made sometimes on unsubstantial grounds.

65.106. In a Bombay case,1 the Collector of Bombay refused to renew the licence granted to the petitioner-R.M.D. Chamarbaghwalla-to run a prize competition. In support of the refusal, the Collector stated in his affidavit, "I say that Government decided and laid its general policy and confidentially circulated it for the guidance of its officers". At the time of hearing, the Advocate-General raised a preliminary objection that the circular issued by Government was privileged from production under section 123, Evidence Act. This objection of the Advocate-General was over-ruled by the High Court.

1. R.M.D. Chamarbaghwalla v. Y.R. Parpia, AIR 1950 Born 230.

65.107. In a Madras case,1 the writ petition was filed by A. Ramachandran against the appointment of the respondent as Government Pleader by the State of Madras on.-7-1960. One of the allegations made by the petitioner in his affidavit was that he believed that in 1959 the name of the respondent was sent up for appointment as a High Court Judge but had been rejected on the ground that he lacked judicial experience. To this allegation, the then Law Minister of the State replied in his affidavit as under:-

"I am not in a position to disclose any matter relating to the proposals or consultations for appointment of a High Court Judge. Under Article 217(1) of the Indian Constitution, the President makes such appointments in consultation with the Chief Justice of the High Court. Their consultations are confidential and no Minister or other officer can disclose details thereof.

1. A. Ramachandran v. A. Alagiriswami, AIR 1961 Mad 450.

65.108. Dealing with this aspect of the matter, the High Court observed that there is no duty on Government to claim privilege in a case of this kind. But they have a duty to speak the truth and the whole truth whether in a case of this kind or different-and affidavits are not excepted from the scope of the rule.

65.109. An Allahabad case1 was a civil case between two private parties regarding the demolition of a wall in a property dispute. The plaintiff summoned , the case diary of a criminal case investigated by the Police to show the existence of some windows at an earlier period. A clerk from the police department who brought the case diary to the Court claimed privilege and this was allowed by the Court, with the result that the evidence could not come on record and the suit was dismissed. On appeal by the plaintiff, the lower appellate Court held that the privilege was not claimed in a proper form, nor by the head of the department and consequently remanded the case to the trial Court.

Against this order, the defendant came up in the High Court. It was contend that the case diary maintained by a Police Officer during the investigation of a crime was a confidential document with regard to which privilege could be claimed and no evidence could be allowed to come on the record. The High Court held that a part of the case diary containing the confidential communications or reports are privileged but not the statements of witnesses or other allied matters contained therein.

1. Mahabirji Birajman Mandir v. Prem Narain Shukla, AIR 1965 All 494.

65.110. The High Court further held that the same inference can be drawn on a consideration of section 123. The term "affairs of State" is a general one but if cannot include all that is contained in the record. Where an open enquiry is made, statements recorded during the open enquiry cannot be deemed to be confidential and, similarly, any application or complaint made by a person, cannot be held to relate to the "affairs of State".

65.111. In an Andhra case,1 the revision petitions were fled by the Public Prosecutor in the High Court against the orders of a Magistrate, over-ruling a claim of privilege under sections 123 and 124 in respect of some documents summoned for by the respondent.

1. Public Prosecutor v. Damera Venkata Narasayya, AIR 1957 Al' 486.

65.112. The respondent who was the President of a Co-operative Society was prosecuted for criminal breach of trust in respect of a sum or Rs. 4807 belonging to the Society. The respondent applied to the Magistrate for summoning the records of enquiries made by the Sub-Registrar of the Co-operative Societies and the Audit reports for the years 1953-54. The Deputy Registrar who was summoned to produced those documents did not produce the same, and, instead, field an affidavit of the Registrar of the Co-operative Societies and claimed privilege on the ground that these are unpublished official records relating to "affairs of State" and their disclosure will be prejudicial to public interest.

65.113. The Magistrate, after considering this claim of privilege under section 123 passed an order negativing it on the ground that the documents related to the conduct of co-operative Societies and had nothing to do with the "affairs of State" in any manner.

65.114. The Public Prosecutor, Andhra filed a revision petition against the said order. The High Court held that the magistrate was right in over-ruling the claim of privilege. The revision petition was dismissed.

XV. Recommendation

65.115. Recommendation.-

In the light of the above discussion, we recommend that section 123 should be revised on the following lines:-

"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. 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.1

1. Amendment of section 162, second paragraph, by deleting the words "unless it refers to matters of State", to be carried out separately.

65.116. Recommendation.-

The above recommendation is subject to reservation by two members-Shri Dhavan, and Shri Sen Verma- who have written a separate note.1

1. Note by Shri Dhavan and Shri Sen-Varma.