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Report No. 69

III. Points for Amendment

66.8. Questions for consideration arising from co-existence of two sections.-

11 would, thus, appear that in England a separate rule is not considered necessary on the topic forming the subject of section 124. If this view is correct, then it can be said that the developments that have taken place in England as to Crown privilege in relation to the production of documents will effect the law relating to oral communications also. We may now revert to the survey of the two sections in our Act, and the overlapping to which we have already referred. A question arises for consideration whether, in so far as the two sections overlap, it is not desirable that the overlapping should be removed.

66.9. Recommendation-section 124 to be confined to oral communications.-

Dealing with this question, we are, in the first place, of the opinion that, in the interest of clarity, overlapping between the two sections should be avoided, and the only possible method of doing this is to confine section 124 to matters which are not in the form of unpublished official records. For brevity, we may call them "oral communications"-though that expression does not very accurately indicate the scope of section 124 as it now stands. We use the expression "oral" simply as a convenient label to exclude unpublished official records. These are dealt with in section 123 and we do not see the need for any additional protection for unpublished official records consisting of "communications in official confidence".

All unpublished official records-whether made in "official confidence" or otherwise-should be governed by section 123. The privilege as provided in that section-subject to the amendment which we have recommended in that section-should be adequate for the purpose. There is no reason why evidence derived from un-published official records relating to affairs of State should, besides enjoying the protection conferred by section 123, also be subject to a special protection under section 124.

At present, not only the permission of the head of the department must be obtained, but also the willingness of the public servant must be secured. Since such a double safeguard is hardly called for, we recommend that whatever falls within section 123 should be excluded from section 124. In the result, section 124 will be needed only for the residuary category- briefly, oral official communications made in official confidence whose disclosure may injure the public interest.

66.10. Test of injury to public interest to be retained.-

Secondly, as regards this residuary category of oral official communications, the proper test should be injury to the public interest. Section 124 already so provides,-by the words "the public interests would suffer by its disclosure". The test is sound. As to the authority which should apply this test, we deal with the question below.

66.11. Determination of injury to public interest-by whom.-

The third question to be considered is whether the application of this test-i.e. whether the decision of injury to the public interest likely to be caused by disclosure of the communication-should be left to-(i) the public servant concerned, as at present, or (ii) the head of the department, as in section 123 (as it now stands); or (iii) the court, as it our recommendation relating to section 123.1

1. See Chapter 65, supra.

66.12. According to section 124, as it now stands, the question as to whether a communication was made in official confidence, is a matter subject solely to judicial decision. But, if the Court comes to the conclusion that the communication was made in official confidence, then it is for the officer alone to whom the communication has been made to decide whether the disclosure should be made. This is laid down in the case law1 under section 124 which-though the cases actually related to documents-were decided with reference to section 124 also.

1. (a) Mantubhai Mehta (in re:), AIR 1945 Born 122: IQB 126 (N.J. Wadia & Weston, JJ.).

(b) Makky Moithu (in re:), AIR 1943 Mad 278 (279) (Horwill, J.).

(c) lijatali Talukdar v. Emperor, AIR 1943 Cal 539.

(d) Nagaraja v. Secretary of State, ILR 39 Mad 204.

(e) Collector of Jaunpur v. Jamna, AIR 1922 All 37 (40).

66.13. It appears to us that this position cannot be allowed to continue. In this case also, the Court should be the judge of the likelihood of injury to the public interests. No doubt, this can be ensured only if the materials available to the public servant are made available to the court also. On this latter score, however, no difficulty should arise, because the public servant concerned can, without disclosing all the materials to the parties, disclose them to the judge in chambers-a course which could be expressly provided for in the section.1

1. See para. 66.17, infra.

66.14. Decision to be with the court.-

It is after careful consideration that we have come to the conclusion that the decision should be with the court. It is too much to leave the question of injury to the public interest to the decision of the public servant who may happen to be deposing in the particular case. He may be a petty public servant, while the judge may be a person with a much higher official rank. Apart from that, however, there does not seem to be any serious probability of grave injury to the public interests if the decision is left to the court, instead of to the public servant. If necessary, the court can ascertain in chambers the nature of the evidence to be given and the objections likely to be made by the public servant concerned. But it would be more in consonance with the general scheme of the Act to give to the court the power to decide the objection in question. We recommend that the section should be so amended.

66.15. It is to be noted that even now, the question whether the communication is to be regarded as one made in official confidence is primarily to be decided by the court in which the privilege is claimed.1 The only change of substance recommended by us is that while, at present, the public officer has to decide the question of injury to the public interest, our recommendation is to transfer the power to the Court This will avoid arbitrary or capricious decision by the public servant-a situation which not infrequently arises.2

It may be pointed out that the approach suggested above, namely, that the decision should be with the court, will bring uniformity between sections 123 and 124. In this connection it is pertinent to observe that the fact that these two sections really should be based on the same consideration does not represent anything very radical. In the leading Bombay case3 in which the matter was considered fully by a Division Bench, Wassodew, J. observed-

"This section (124) as well section 123 protects the discovery of documents referring to matters of State. That is based on the general rule4 that no person can be compelled to give evidence of matters which are State secrets including communications between public officers in the discharge of their public duties. (Halsbury, Volume 22, paragraph 597, at page 427)."

1. Bhalchandra v. Chandbassapa, 41 Born LR 391: AIR 1939 Born 234.

2. Excelsior Films v. Union of India, (1966) 69 Born LR 878.

3. Bhalchandra v. Chandbassappa, AIR 1939 Born 237.

4. Emphasis supplied.

66.16. Suggestion made on the original Bill1.-

We find that a substantially similar suggestion was made by a Judicial Commissioner in his comment on the Evidence Bill2 (under draft section 112- which is now section 124). The suggestion was as follows:-

"Section 112. It might be well to add to this section the words 'unless with the permission of the Court'. It is sometimes very necessary for the ends of justice, that the source whence information was derived, especially by the Police, should be known."

1. Mr. P.S. Melvill, Officiating Judicial Commissioner C.P. in Paper No. 69, p. 72, under section 112 (papers regarding Evidence Act, 1872) (National Archives).

2. See para. 66.13, supra.

66.17. Recommendation to give power to the Court and to provide for examination in Chambers.-

Having regard to all these considerations, we recommend that the power to determine the question of public interest should be in the Court. An examination of the public servant in camera for ascertaining the nature of the objection and the reasons therefor should be provided for, as a safeguard.

IV. Meaning of Official Confidence

66.17A. Meaning of "official confidence".-

A few other points not calling for amendment may now be dealt with. We may note that there is some obscurity as to the expression "official confidence" as used in the section. According to the view of Oldfield J. in a Madras case.1 the dominant intention in section 124 is to prevent disclosure to the detriment of the public interest and nothing special turns upon the word "confidential". On this view, the expression "communication in official confidence" imports no special degree of secrecy, but includes generally matters communicated by one officer to another in the performance of their duties, where detriment to the public interest may result. It has been said2 that an easier and more probable explanation of the phrase "official" is evolved by comparison with the expression "professional confidence" in section 126.

1. Nagaraja v. Secretary of State, ILR 39 Mad 304 (310-312) (Oldfield, J.), (Tyabji, J. did not go so far).

2. Nagaraja v. Secretary of State, ILR 39 Mad 304 (310, 312).

66.18. According to the Bombay view,1 however, the communication contemplated by section 124, necessarily involves the wilful confiding of secrets with a view to avoiding publicity by reason of the official position of the person in whom trust is reposed. The Bombay view could not include within the section all communications to public officers, but would leave the court free to examine the nature of the communication-broadly on a determination of the question whether the need for secrecy was expressed or can be implied.

1. Bhalchandra v. Chandbassappa, AIR 1939 Born 237 (245, 247) (Sen & Wassoodew, JJ.).

66.19. We are of the opinion that the Bombay view is to be preferred. The wider view taken in Madras would make the section all-embracing, and we do not think that the section was intended to be so. However, since injury to the public interest is a vital ingredient of the section, this controversy does not have much practical importance.

66.20. Test of legal process not satisfactory.-

In some of the judicial decisions,1 the test applied is whether the document was prepared in pursuance of a legal process, or whether it was prepared otherwise than under a legal process. With great respect, however, it appears to us that this would not be a universal test suitable for every case. It may be true to state that if the document is prepared under a legal process, then it cannot ordinarily be a confidential one, because it has to be submitted to some judicial or quasi-judicial authority. That does not, however, imply that all other documents would be regarded as made in official confidence.

For example, every routine paper of a trivial nature sent to a public office and not made under a legal process-such as an application for leave can hardly be contemplated as falling within section 124 under the category of a communication made in official confidence. Therefore, the test referred to above would create anomalies in practice, and theoretically also it is not sound, there being no logical basis for an assumption that the absence of the element of judicial process implies the presence of the element of confidence.

1. Suryanarayana (in re:), AIR 1954 Mad 278 (reviews cases).

66.21. In this connection, we may quote what viscount Dilhome observed in Norwich Pharmacal Co. v. Customs Commissioner1-

"I do not accept the proposition that all information given to a government department is to be treated as confidential and protected from disclosure, but I agree that information of a personal character obtained in the exercise of statutory powers, information of such a character that the giver of it would not expect it to be used for any purpose other than that for which it is given, or disclosed to any person not concerned with that purpose, is to be regarded as protected from disclosure, even though there is no statutory prohibition of its disclosure".

1. Norwich Pharmacal Co. v. Customs Commissioner, (1973) 2 All ER 943 (HL).

V. Recommendation

66.22. Recommendation.-

In the light of the changes needed in the section as discussed in this chapter,1 we recommend that section 124 should be revised as under:-

"124. (1) No public officer shall be compelled to disclose communications made to him in official confidence, other than communications contained in unpublished official records relating to any affairs of State, 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 therefore."

1 Paras. 66.9, 66.10 and 66.17, supra.

66.23. We should note that this recommendation is subject to reservation by two Members-Shri Dhavan and Shri Sen-Varma. The reservation made by them in regard to section 123 applies to section 124 also, since both the sections are concerned with injury to the public interest.



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