Judgment

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REPORTABLE

IN THE SUPREME COURT OF INDIA
STATE OF U.P. …PETITIONER
Vs.
RAJ NARAIN & ORS. …RESPONDENT
DATE OF JUDGMENT: 24/01/1975
BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH UNTWALIA, N.L.
CITATION:
1975 AIR 865 1975 SCR (3) 333
1975 SCC (4) 428
CITATOR INFO :
MV 1982 SC 149 (452,454,1184)
RF 1988 SC 782 (43,44)
RF 1989 SC 144 (4,5)

ACT:
Indian Evidence Act, ss. 123 and 162–Scope of.

HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act is the same as in English Law.It isthat injuryto public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be 23SC/75 334 withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence, the production of which is contrary to public interest. It is in public interestthatconfidentialityshallbe safeguarded. Confidentiality is not a head of privilege. it is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demandprotection.

[348E-H] Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two fold : (1)Evidence of relevantfactsis inadmissible when itsreception offends against public policyor a particular rule of law. A party is sometimes estopped from proving facts and these facts are therefore inadmissible; (2) Relevant facts are, subject to recognised exceptions, inadmissible unless they are proved by thebest or theprescribed evidence.Secrets of State. State papers,confidential official documents and communications betweenthe Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-C] Conwayv. Rimmer & Anr. [1968] UKHL 2; [1968] 1 A.E.R. 874 &[1968]A.C.

910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers v. Home Secretary [1973] A.C. 388, referred to.

(1) It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by theHead of the Department. The Court may also require a Minister to affirman affidavit.Where no affidavit was filed, an affidavit could be directed to be filed later on. [349B] (2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents.

The Court can direct further affidavit in that behalf.If the Court is satisfied with the affidavits, the Courtwill refuse disclosure. If the Court, in spite of the affidavit, wishes to inspect the document the Court may do so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.

(3) Inthe present case it cannot be said that theBlue Book is a published document.Any publication of parts of the Blue Book which may be described as an innocuous part of the document will not render the entire document a published document. [349H] (4) Inthe instant case it is apparent that the affidavit affirmed by the Chief Secretary is an affidavit objecting to the production of the documents. The oral evidence ofthe witnessas well as the aforesaid affidavitshowsthat objection was taken at the first instance. [349D] (5) Ifthe Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there.If the Court would yet like to satisfy itself, the Court may see the document.

Objection asto productionas well as admissibility contemplated in s. 162 of the Evidence Act is decided by the Court in the enquiry. [349B-C] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

Per Mathew, J. (Concurring) :

1(a) The foundation of the so called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official, which alone is no reason for its non-production.

[353C-D] AsiaticPetroleum Company Ltd. v. Anglo Persian OilCo.

[1916]1 K.B. 822 at 830; Conway v. Rimmer [1968] UKHL 2; [1968] 1All, E.R. 874 at 899 and Duncan v. Cammell Lavid &Co. [1942] UKHL 3; [1942] A.C. 624, referred to.

335 (b) A privilege normally belongs to the parties and can be waived.But where a fact is excluded fromevidence by considerations of public policy, there is no power to waive in the parties. [353F-G] Murlidhar Agarwal v. State of U.P. [1974] INSC 128; [1974] 2 S.C.C. 472 at 483, referred to.

In the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons anddid not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record relating to affairs of State had been for ever waived and asno affidavit had been filed it mightbe that a legitimate inference could be made that the Minister orthe Head of the Department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had nobeen permitted by the Head ofthe Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to the Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given.Whatever else the statement might indicate, it does not indicate that the Head ofthe Department had permitted the production or disclosure of the document. [355D-F] (2) Section 123 enjoins upon the Court the duty to see that no oneis permitted to giveany evidence derivedfrom unpublished official records relating to affairs of State unlesspermitted by the officer atthe Head ofthe Department. The Court therefore, had a duty not to permit evidence derived from a secret document being given. Before the arguments were finally concluded and before the Court decidedthe question the Head of the Department filed an affidavit objecting to the production of the documentand statingthat the document in questionrelated to secret affairsof State, and the Court-should have consideredthe validity of that objection under s. 162 of the Evidence Act.

[355G-A; 356A-B] Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B.102 at 134 and Conway v. Rimmar & Anr. [1968] UKHL 2; [1968] A.C. 910, referred to.

(3) There is no substance in the argument that sincethe Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of, State. Ifsome parts ofthe document which are innocuous have been published, itdoes not follow that the whole document has been published.

Since the High Court did not inspect the Blue Book,the statement by the Court that the materials contained inthe file produced by the Superintendent of Policewere taken from the Blue Book was not warranted. [362B-C; E] (4) The mere label given to a document by the executive is not conclusive in respect of the questionwhether it relatesto affairs of State or not. If the disclosure of the contents of the document wouldnot damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally entitled to protection. [362E-F] 5(a) It is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect ofthe disclosure ofthe document upon public interest, that a document is one relating toaffairs of State as, ex hypothesis, a document can relate to affairs of Stateonly if its disclosure will injure public interest.But in cases where the documents do not belong to the noxious classand yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiryinto the validity of the objection that the document is anun- published official record relating to affairs of Stateand.

therefore, permission to give evidence derived from it is declined. [357H; 358A-B] (b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objectionis valid. TheCourt,therefore, has to consider two things : (i) whether the documentrelates to secretaffairsof State; and (ii) whether therefusal to permitevidence derived from it being givenwas in the public interest. [358C] 336 (c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and find out whether, the disclosure ofthe document would be injurious to public interest and the expression “as be thinks fit” in the latter part of s. 123 need not deter the Court from decidingthe question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

(d) When a question of national security is involvedthe Court may not be the proper forum to weigh thematterand that is the reason why a Minister’s certificate is taken as conclusive. As the executive is solely responsiblefor national security, including foreign relations, no other organ could judge so well ofsuch matters.Therefore, documents in relation to these matters might fall into a class which per se might require protection. [359B-C] (e) But the executive is not the organ solelyresponsible for public interest. There are other elements. Onesuch element is the administration of justice. The claim ofthe executive to exclude evidence is more likely to operate to subserve a partial interest, viewedexclusively from a narrowdepartmental angle. It is impossible for it tosee or give equal weight to another matter, namely, that justice shouldbe done and seen to be done. When there aremore aspects of public interest to be considered the Court will, with referenceto the pending litigation, be in a better position to decide where the weightof public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of thepublic interest in the case before it.Oncecon- siderations of national security are left out. there are few matters of _public interest which cannot safely be discussed in public. [139C-D; F-G] Arguments for the Appellant The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section.In cases wherethe document in question obviously relates to affairs of State it is the duty of the Court to prevent the productionand admission of the document in evidence suo motu to safeguard publicinterest Matters of State referred to in the second clauseof s.162 are identical with affairs of State mentioned in s. 123. An objection against the production of document should be raised in the form of an affidavit by the Minister or the Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, requirethe affidavit of the Minister. If theaffidavit is found unsatisfactorya further affidavit may be called, and in a propercase the person making the affidavit should be summoned to face an examination to the relevant point.Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo moru in cases where the documents in question obviously relate to affairsof State. Therefore, the Court cannot hold an inquiryinto the possible injury to public interest.That is a matter for the authority to decide. But the Court is bound to holda preliminaryenquiry and determinethe validity of the objections which necessarilyinvolves an inquiry into the question as to whether the evidence relates to anaffair of State under s. 123. In thisinquirythe Court has todetermine the characterand class ofthe document. The provisions of s. 162 make a departurefrom Englishlaw in one material particular and that isthe authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 ofthe Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretionthe Court will exercise its power only in exceptional circumstances when public interest demands, that is, when thepublic interestservedby the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavitwhereasthe Minister would have done it. This claim of privilege is not rejected on account of this procedural defect.

Arguments for the Respondent in thepresent case the affidavit was not filed atthe relevant time,nor is it clear that the Secretary orthe Minister of the Department concerned ever applied their mind at the relevant time. The Supreme Court in Sukhdeo Singh’s case held that 337 the objection to the production or admissibility of document of which privilege is claimed, should be taken by himself by means of an affidavit. Section 162 of the EvidenceAct indicates thatthe objection should be filed on thedate which is fixed for the production of document so thatthe Court may decide the validity of such objection.Such objection must be by, means of an affidavit. In A mar Chand Butail v. Union of India the Supreme Court held that asthe affidavit wasnot filed, no privilegecouldbe claimed.

This Court also looked to the document and on merits itwas held that thedocument wasnot such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. Inthe present case the question does not arise as the summonswas issued to the Head of the Department who was asked to appear in person or through some other officer authorised byhim for the purpose of giving-evidenceand for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from non-filing of the affidavitof the. Head of theDepartment that no privilege was claimed.The Court has a right to look to the document itself and take a decisionas towhetherthe document concerned was such which at all related toany affairsof the State.The Court has the power of having a judicial review overthe opinion of the Head ofthe Department.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.

Appealby Special Leave from the Judgment andOrder dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.

Niren De, Attorney General of India, B. D. Agarwala, and 0.

P. Rana, for the appellant.

Shanti Bhushan and J. P. Goyal, for respondent no. 1.

Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2.

The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S.

Sarkaria and N. L. Untwalia, JJ, was delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion.

RAY, C.J.-Thisis an appeal by special leave fromthe judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilegecan be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is describedfor the sake of brevity to be the Blue Book summoned fromthe Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police,Rae Bareli, Uttar Pradesh.

Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad, made an application on 27 July, 1973 for summoning certain witnesses alongwith documents mentioned in the application. Thesummonswas inter alia for the following witnesses along with following documents First the Secretary, General Administration, State of Uttar PradeshLucknow or any officer authorisedby him was summoned to produce inter alia (a) circulars receivedfrom the Home Ministry and the Defence Ministry of the Union Government regarding the security and 338 tour arrangements of Shrimati IndiraNehru Gandhi,’the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 orany generalorderfor securityarrangement; and (b)All correspondencebetween the State Government andthe Government of India and between the Chief Minister andthe Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regardingthe security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government of India and between the Chief Ministerand the Prime Minister, regardingthe arrangement of Police for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.

Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to thetour programof Shkimati Indira Nehru Gandhi of DistrictRae Barelifor 1 and 25 February, 1971; (b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements forconstructions of Rostrum, fixation of loudspeakers andother arrangements through Superintendent of Police, District Rae Bareli.

On 3 September, 1973the summons was issued tothe Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 ofthe affidavit of R. K. Kaul, Commissionerand Secretaryin- charge.On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effectthat the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer.On 6 September,1973 S. S.Saxena,UnderSecretary, Confidential Department, was deputed by R. K.Kaul,Home Secretary as well as Secretary, Confidential Department, to go tothe High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.

In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Courtthe Home Secretary deputed the applicant Saxena to go tothe Court with the documents summoned withclearinstructions that privilegeis to be claimed under section 123 ofthe Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and 339 Instructions for the protection of the Prune Ministerwhen on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and thePrime Ministerin regard tothe Police arrangements for the meetings of the Prime Minister.

Saxena was examined by the High Court on 10 September, 1973.

On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected.In theapplication it is statedthat during the course of his statement Saxena admitted thatcertain instructions were. issued bythe CentralGovernment for the arrangement of Prime Minister’s tour which are secret and hence he is not in a position to file those documents.The witness claimed privilege in respectof that document. It is stated by the election petitioner that no affidavit claiming privilege hasbeen filed by the Head of the Department and that the documents do not relate to the affairs of the State.

On 11 September, 1973 there was an order as follows.The application of the election petitioner for rejection ofthe claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena ina sealed cover in the Court. In casethe objection would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police.

Rae Bareli claimed privilegeunder-section123 ofthe Evidence-Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross exami- nation.The election petitioner filed the objection tothe affidavit claiming privilege by theSuperintendentof Police, Rae Bareli.

On 13September, 1973 the learnedJudge orderedthat arguments on the question of privilege would be heard on 19 September, 1973. S.S. Saxena filed anapplication supported by an affidavit of R. K. Kaul. The deponent R. K.

Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosurewill be prejudicial to public interest for the reasons setout therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister,the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for argumentsfor deciding preliminaryissuesand onthe questionof privilege. on 20 September, 1973 an objection was madethat the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 September, 1973the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of 340 privilege were adjourned until 29 October,1973.23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded.On 30 October,1973 the Advocate Generalappeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted toshow to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14days of March, 1974 The judgment was delivered on 20 March, 1974.

The learned Judge on 20 March, 1974 made an order as follows “No privilege can be claimed inrespect of three sets of paper allowed to be produced.

The three sets of papers are as follows.The first set consists of the Blue Book, viz., the circulars regarding the securityarrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister’s Secretariat on the basis of which Police arrangement forconstructions of Rostrum, fixationofloudspeakersand other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings ofthe Prime Minister.The second set also relates to circulars regarding securityand tour arrangementsof Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regardingthe arrangement of police for the meetings ofthe Prime Minister.The third set summonedfrom the Head Clerk of the Office ofthe Superintendent of Police relates to the same.” The learned Judge expressed the following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavitwas filed atthe first instance. The Court cannot exercise duty under section123 of the Evidence Act suo motu.The court can functiononly after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 ofthe Evidence Act that the Court will decide. Saxena inhis evidence did not claim privilege even after theLaw Department noted in the filethat privilege should be claimedSaxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.

The learned Judge further held as follows. The Blue Book is not anunpublished official record within themeaning of section 123 of the Evidence Act because Rule 71(6) ofthe Blue Book wasquotedby a Member of Parliament.The Minister did not object or deny they correctness of’the quotation. Rule 71(6) of the Blue Book has been 341 filed in the election petition by therespondent tothe election petition Extracts of Rule 71(6) of the BlueBook were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of theBlue Book in support of her defence.When a portion of theBlue Book had been used by her in her defence it cannot besaid that the BlueBook had not been admitted in evidence.

Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examinethe witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not beenadmitted in evidence and Kaul’s affidavit could be takeninto consi- deration, theBlue Book is not an unpublished official record.

With regard to documents summoned from the Superintendent of Policethe High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not giveany reason why the disclosure of the documents would be against publicinterest, the documents summonedfromthe Superintendentof Police cannot beprivilege documents either.

The High Court further said that in view of the decisions.

of this Court in State of Punjab v. Sodhi Sukhdev Singh(1);

Amar Chand Butail v. Union of India(2) andthe English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilegeis claimed. But because the Blue Book is not anunpublished official record, there is no necessity to inspect theBlue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4);

Conwayv. Rimmer & Anr. (supra); and Rogers v.Home Secretary(5) surveyedthe earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In theCammellLairedcase (supra)the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not toproduce the documents.It was stated that ifthe letter was not accepted as sufficient to found a claim,for privilege theFirst Lord ofAdmirality would make an affidavit. Hedid swear an affidavit. On summonsfor inspection ofthe documents it was held thatit isnot uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method theCourtcart request the Minister’s personal attendance.

(1) (1961] 2 S.C.R. 371.(2) A.I.R. 1964 S.C.,1658.

(3) [1968] 1 A.E.R- 874 : [1968] UKHL 2; [1968] A C 910.

(5) [1973] AC 388.

(4) [1942] A C- 642.

342 Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents and an affidavit ofthe respondent, the British Railway Board, objecting to produce certaindocuments. The applicant challenged thatthe objection of the respondent to produce the document wasnot properly made.The applicant asked for leave to cross- examinethe Minister.The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere withthe discretion exercised bythe Chamber Judge.The Ministerfiled a further affidavit.That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. Itwas, held that the affidavit was in compliance withthe order.

The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention ofthe executive, though normally the executive claims it.The matterwas taken up to the Court of Appeal, which heldthe order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.

in the Cammell Laird case (supra) the House ofLordssaid that documents are excluded from production ifthe public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact thatthe document belongs to a class which on grounds of public interest must as a class be withheldfrom production. This statement of law in the Cammell Laird case (supra)was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held thatalthough an objection validly taken to production on thegroundthat this would be injurious to the public interest is conclusive it isimportant to remember that the decisionruling out such document is the decision of the Judge. The reference to ‘class’ documents in the Cammell Laird case (supra)was said in Conway v. Rimmer & Anr. (supra) to be, obiter.The Minister’s claim of privilege in theCammellLairdcase (supra) was at a time of total war when the slightest escape to thepublic of the most innocent details ofthe latest design of submarine founders might be a source of danger to the State.

In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injuryto the public interest and- not that the documents are confidential or official.With regard to particular class of documents for which privilege was claimed itwas said that the Court would weigh in the balance on theone side the public interest to be protected and on the other the interest of the subject who wanted production of some (1) (1963) 3 A E R 426:(1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.

(2) [1916] 1 K B 830.

343 documents which he believed would support his own or defeat his adversary’s case. Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest.

In this background it was held in Conway v. Rimmer &Anr.

(supra)that a claim made by a Minister on thebasisthat the disclosure of the contents would be prejudicial tothe publicinterest must receive the greatest weight; buteven here the Minister should go as far as he properlycan withoutprejudicing the public interest in saying whythe contents require protection.In Conway v. Rimmer &Anr.

(supra)it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the documentitselfand then ordering its production”.As to the “class” cases it was said in Conway v. Rimmer & Anr.(supra) thatsome documents by their Very nature fall into aclass which requires protection.These are Cabinet papers, Foreign Officedispatches, the security of the State,high level interdepartmental minutes and correspondence and documents pertaining tothe general administration ofthe naval, military and air force services. Such documents would be the subject of privilege by reason of their contentsand also by their ‘class’.No catalog can be compiled forthe ‘class’ cases.The reason is that it would be wrongand inimical to the functioning of the public service ifthe publicwere to learn of these high level communications, howeverinnocent of prejudice to the Statethe actual comments of any particular document might be,.

In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of theHome Secretary it was argued that the Court couldof itsown motionstop evidencebeing given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assertpublic interest. The public interest which demands that the evidence be withheld has to be weighed againstthe public interest in the administration of justice that courts shouldhave the fullest possible access to all relevant material. Once the public interest is found to demandthat the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the productionof which, it sees iscontrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the documentshouldbe disclosed. Anaffidavit is necessary. Courts havesome times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.

344 The principalrules of exclusion under which evidence becomesinadmissible are two-fold.First,evidence of relevant facts is inadmissible when its reception offends againstpublicpolicy or a particular rule oflaw.Some mattersare privileged from disclosure. A party is some- times estoppedfrom proving facts and these factsare therefore inadmissible. The exclusion of evidenceof opinionand of extrinsic evidence of the contents ofsome documents is again a rule of law. Second, relevant facts are, subject to recognised exceptionsinadmissible unless they are proved by the best or the prescribed evidence.

A witness, though competent generally to give evidence,may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.Secrets of state,papers, confidential official documentsand communicationsbetween .he Government and its officersor- between such officers are privileged from production onthe groundof public policy or as beingdetrimental tothe public interest or service.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-therethat the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into theloss of the “Thetis’. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policyit would not be defeated by thecircumstancesthat they had beengivena limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal’s sittings might be secret.

In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a document might havebeen disclosed at an earlier enquiry. It was said that ifpart of a documentis innocuous but part of it isof such a naturethat its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh’s case (supra) held thatthe principle behind section 123 of the EvidenceAct isthe overriding and paramount character of public interestand injuryto public interest is the sole foundation ofthe section. Section 123 states that no one shall be permitted to give any evidence derivedfrom unpublished official recordsrelating to_ any affairs of State except withthe permission ofthe Officer at the headof the department concerned, who shall give or withhold such permission as he thinksfit. The expression “Affairs ,of State” in section 123 was explained with reference to section162 ofthe Evidence Act.Section 162 is in three limbs.The first limb states that a witness summoned to producea document shall, if it is in his possession or power, bring it tothe Court,notwithstanding any objection which there may be to its production or to its admissibility.The validity of an such objection shall decided by the Court. The secondlimb of section 162 says that the, Court,, if it sees fit,may ‘inspect the document unless it refers to matters of state, or take other evidence to enable it to determine onits admissibility.’the third limb 345 speaksof translation of documents which is not relevant here. In Sukhdev Singh’s case (supra) this Court saidthat the first limb of section 162 required a witness to produce a document tobring it to the Courtand then raise an objection against its production or its admissibility.The secondlimb refers to the objection both as to production and admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh’scase (supra)to be identical with the expression”affairs of State?’ in section 123.

In Sukhdev Singh’s case (supra) itwas said that an objection against the production of document should bemade in the form Of an affidavit by the Minister orthe Secretary. When an affidavit is made by the Secretary,the Court may, in a proper case, require the affidavit ofthe Minister. Ifthe affidavit is found unsatisfactory, a furtheraffidavit may be called. In a proper case,the personmakingthe affidavit can be summonedto face an examination. In Sukhdev Singh’s case. (supra)this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought tobe excluded from production relates to an affair of State.The Court has todetermine the character and class of documents.

Second, the harmonious construction of sections 123 and162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character ofthe document. Third, the expression “affairs of State” in section123 is not capable ofdefinition.Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document orsuch class of documents may also claim the status of documents relating to public affairs’.Fourth, the second limb of section162 refers to the objection both as tothe production andthe admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannothold an enquiry into the possible injury to public interest which may result from the disclosure of document in question.

That is a matter for the authority concerned to decide.But the Court is competent and is bound to hold apreliminary enquiry and determine the validity of the objection toits production. That necessarily involves an enquiry intothe question as to whether the evidence relates to an affairs of State under section 123 or not.

in Sukhdev Singh’s case (supra) this Court said thatthe power to inspect the documents cannot be exercised where the objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R.at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection.The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is saidthat the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh’scase (supra) it has also been. said that if the Court 346 finds that the document belongs to what is said to bethe noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

The concurring views in Sukhdev Singh’s case (supra)also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail’s case (supra) the appellant called upon the respondents the Union and the Stateto produce certain documents. The respondents claimed privilege.This Court saw the documents and was satisfied that the claim for privilege was not justified.

In Sukhdev Singh’s case (supra) the majorityopinionwas given by Gajendragadkar, J. In Amar Chand Butail’scase (supra)Gagendragadkar, C.J.spoke for theCourt in a unanimous decision. In the later case this Court sawthe document. In Sukhdev Singh’s case (supra) this Courtsaid that an enquiry would be made by the ‘Court as to objections to produce document. It is said thatcollateral evidence could be taken. No oral evidence can be given of thecon- tents of documents. In finding out whether the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State, itmay sometimes be difficult for the Court to determinethe character of the document without the court seeing it.The subsequent Constitution Bench decision inAmar Chand Butail’s case- (supra) recognised the power of inspection by the Court of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision askedthe Compensation Officer to decide inthe light of the decisions of this Court whether the claimfor privilege raised by the State Government should be sustained or not.This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Governmenthad claimed privilege in certain proceedings. Inthe Sub-Divisional Officer; Mirzapur case (supra) therespondent filed objections todraftcompensationassessment rolls.

Compensation was awarded to the respondent.The State appliedfor reopening of the objection cases.The respondent asked for production of some documents.The State claimed privilege. The District Judge directedthat compensation cases should be heard bythe Sub-Divisional Officer. Therespondent’s application for discoveryand production was rejected by the Compensation Officer.The District Judge thereafter directed that compensation cases shouldbe heard bythe Sub-Divisional Officer.The respondent again filed applicationsfor discoveryand inspection of these documents.The State Government again claimedprivilege. The respondent’sapplicationswere rejected. Therespondent then filed a petition under Article 226 of theConstitution for a mandamusto Compensation Officer to bear and determine the applications.

The High Court said (1) [1966] 2 SC R- 970, 347 that the assessment rolls had become final and could not be opened.This Court on appeal quashed the order of theSub Divisional Officer whereby the respondent’s applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said thatthe firstsummonsaddressed totheSecretary, General Administration required him or an officer authorised byhim to give evidence and to produce the documents mentioned therein. Thesecondsummons was addressed to theHome Secretary to give evidence on 12 September, 1973. The third summonswas addressed to the Chief Secretary to giveevi- dence on 12September, 1973 and to produce certain documents. The first summons, it is said on behalf ofthe election petitioner, related to the tour programmes ofthe Prime Minister.The election petitioner, it is said, wanted the documents for two reasons.First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses.

The, electionpetitioner’scaseis that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for furthering the prospects ofthe candidate’s election.

On behalf ofthe election petitioners it is saidthat objection was taken with regard to certain documents inthe first summons on the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is thatthe Superintendentof Police is not the head of the department and either the Minister orthe Secretary shouldhave affirmed an affidavit.

Counselon behalf of the election petitionerput inthe forefront that it was for the Court to decidewhetherthe disclosure and production of documents by theState would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and tothe public interest that justice should bedone betweenlitigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had tobe found out at what stage and itwhat manner privilege was to be claimed and in what circumstancesthe Court could look into the document to determine the validity of the claim to privilege raised under section123.The, other contention on behalf of the election petitionerwas that if a part of the document was made public by lawful custodian of the document the question waswhetherthe document could stillbe regarded a-, anunpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought onthe record of the litigation.

348 Counselfor the election petitioner leaned heavily onthe decision in Conway v. Rimmer & Anr. (supra) that the Court is tobalance the rival interests of disclosure andnon- disclosure.

the first question which falls for decision is whetherthe learnedJudge was right in holding that privilege wasnot claimed by filing an affidavit at the first instance.

Counsel on behalf of the election petitioner submittedthat in a case in which evidence is sought to be led in respect of matters derived from unpublished recordsrelating to affairsof State at a stage, of the proceedings whenthe head of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence beingled till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned,it is said by counsel for the electionpetitioner, the opportunity of claiming privilege in a legal mannerhas already been furnished when summons is received by thehead of thedepartment and if he does not claim privilegethe court is under no legal duty to ask him or to givehim another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules andinstructions for the protection of the Prime Minister when on tour and in travel.Saxena came to court and gave evidence thatthe blue book was a document relating to the affairs of State and was not to be disclosed. TheSecretary filed an affidavit on 20 September, 1973 and claimed privilege in respectof the blue book by submitting that the document relatedto affairs of Stateand should, therefore, be excluded from production.

The several decisions to which reference has alreadybeen made establishthat the foundationof thelaw behind sections 123 and 162 of the Evidence Act is the same as in Englishlaw. It is that injury to public interest isthe reason for the exclusion from disclosure of documents whose contents if disclosedwould injure public and national interest. Public interest which demands thatevidence be withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials.When publicinterest outweigh’s the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest.It is inpublicinterest thatconfidentiality shallbe safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentialityis not a head of privilege. It is a consideration to bear in mind.It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v.Home Secretary (supra) at p. 405).To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the Stateand high level interdepartmentalminutes. In the ultimate analysis the contents of the 349 document are so described that it could be seen at once that in thepublic interest the documents are to be withheld.

(See Merricks and Anr. v. Nott Bower & Anr.(1).

It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite aMinister to affirman affidavit. That will arise in the course ofthe enquiryby the Court as to whether the document should be withheld from disclosure. If the Court is satisfiedwith the affidavitevidence, that the documentshouldbe protected in public interest from production the matter ends there.If the Court would yet like to satisfy itselfthe Court may see the document. This will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in section 162 ofthe Evidence Act is decided by the Court in theenquiry as explained by this Court in Sukhdev Singh’s case (supra).

In thefacts and circumstances of the present case it is apparent that the affidavit affirmed by R. K.Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the productionof the documents. The oralevidence of Saxenaas well as the aforesaid affidavitshowsthat objection was taken at the first instance.

This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on.The Grosvenor Hotel, London group of cases (supra)in England shows that if an affidavit is defective an opportunitycan be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfiedwith the affidavitsthe Court will refuse disclosure. Ifthe Court in spite of the affidavit wishes toinspectthe document the Court may do so.

The next question is whether the learned Judge was right in holdingthat the blue book is not an unpublished official record. On behalf of the election petitioner, it was-said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Canmell Laird case, it was said that though some of the papershad been producedbefore the Tribunal ofEnquiryand though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given.One is that special precaution may have been taken to avoid publicinjuryand the otheris that portions ofthe Tribunal’s sittings may have been secret. Inthe present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one.

(1) [1964] 1 A E R 717 8-423SCI/75 350 For these reasons, the judgment of the High Court isset aside.The learned judge will consider theaffidavit a firmedby R.K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced bythe Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require protectionfrom production, the matter will end there.If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature ofthe documents, the learned Judge will be pleased to inspectthe same and pass appropriate orders thereafter,. If the Court will find oninspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided thatwould not give a distorted or misleading impression. Where the Courtordersdisclosure ofan innocuous partas aforesaid the Court should seal upthe other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay andbear their own costs.

MATHEW,J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No.

1 applied to the Court for summons to the Secretary, General Administrationand the Chief Secretary, Government ofU.P.

and the Head Clerk, Office of the Superintendent of Police, Rai Bareily, for productionof certain documents.In pursuance to summonsissuedto theSecretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documentsand objected to produce:

(1) Ablue book entitled”Rulesand Instructions forthe Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of Indiaand the Government of U.P. in regard to the police arrangements forthe meetings of the Prime Minister; and (3) Correspondence exchanged betweenthe Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxenawas examined by Court on 10-9-1973. The 1stres- pondent filed an application on that day praying that as 351 no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that theapplication be put upfor disposal.As Saxena’s examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that incase the claim forprivilege was sustained, Saxena would be informed so, that hecouldtake back the documents.

Examination of Saxena was over on 12-9-1973. On thatday, the, Superintendent of Police, RaiBareily, filedan affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heardthe next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed inCourtan application and the Home Secretary tothe Government of U.P., Shri R,K. Kaul, the head ofthe department in question an affidavit claiming privilege for the documents.

The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege.

This appeal, by special leave, is against that order.

The first question for consideration is whetherthe privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilegewas filed in the first instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge orthe head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According tothe Court, this was required as a guarantee. that the statement of theMinister or the head of the department whichthe Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental routine, but isone put forward withthe solemnitynecessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned tothe Court and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and ashe wasnot permitted by the Home Secretary to produce it in Court.As no affidavit of theMinister or of the Head ofthe Department was filed claiming Privilege under s. 123 ofthe Evidence Act in the first instance, the Court said thatthe privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lordships ofthe Privy Council said that it would be contrary to the public (1) [1960] INSC 196; [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

352 interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as,no affidavit, albeit defective, was filed in this case inthe first instance.The Court further observed that it was only when a proper affidavit claiming privilege wasfiledthat the Court hasto find whether the documentrelated to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that,duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Courtthen quoted a passage fromthe decision of this Court in Sodhi Sukhdev Singh’s case (supra) to theeffect that court has no power to holdan enquiry into the possible injury to the public interest whichmay resultfrom the disclosure of the document asthat is a matterfor the authority concerned to decide but thatthe court is competent and indeed bound to hold apreliminary enquiry and determine the validity of the objection and that necessarily involves an enquiry into ‘the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Bookwas that since portions of it had in fact been published, it was not an unpublished official record relating toaffairs of state.He relied upon three circumstances to showthat portions of the Blue Book were published. Firstly,the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court.Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) andhad produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred tothis particular rulein Parliament.

The learned Judge, however, did notconsider or decide whetherthe Blue Book related to any affair of state, perhaps, in view of his conclusion that itwas not an unpublished official record.

Section 123 of the Evidence Act states from unpublished official records relating to any affairs ofstate,except withthe permission of the Officer at the head ofthe department concerned, who shall giveor withhold such permission as be thinks fit.” Section 162 of the Evidence Act provides that when a witness bringsto court a document in pursuance tosummonsand raises an objection to its production or admissibility,the Court has to- determine the validity of the objection to the production or admissibility and, for so doing, the court can inspectthe documentexcept in the case ofa document relating to affairs of state or, take such other evidence as may be necessary to determine its admissibility.

353 Having regard to the view of the High Court that since the’.

privilege wasnot claimed in the first instance by an affidavit of the Minister or of the head of the department concerned, the privilege could not thereafterbe asserted and that no inquiry into the question whether the disclosure of thedocument would injure public interest can becon- ductedby thecourtwhen privilegeis claimed, it is necessary to see the scope of s. 123 and s.162 ofthe Evidence Act.

The ancient proposition that the public has a right to every man’s evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon.

This duty and its equal application to the executivehas never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairsof state and cannot be disclosed without injury to public interest.

The foundationof the so-called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official which alone is no reason for its non-production(1).

In Durcan v. Cammel Lavid & Co.(2) Lord Simon saidthat withholding ofdocuments on the ground thattheirpub- lication wouldbe contrary to the public interest isnot properly to be regarded as a branch of the law of privilege connected with discovery and that ‘Crown privilege’ is,for this reason, not a happy expression.

Dealingwith the topics of exclusion of evidence onthe groundof estate interest, Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown.(3) Phipsondealswith the topic under the general category “Evidence excluded by public policy”.He then lists as an entirely separate category: “Facts excluded byprivilege,” and deals there with the subject oflegalprofessional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act(4).

A privilege normallybelongs to the partiesand can be waved.But where a fact isexcluded fromevidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v.

State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression ‘Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense ofthe word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override (1) gee Asiatic Petroleum Company Ltd. v Anglo PersianOil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer [1968] UKHL 2; (1968) 1 All ER 874, at 899.

(2) [1942] A– C 624.(3) “Evidence”, 3rd ed p 251.

(4) “see Phipson on Evidence” (5) [1974] 2 S7 C C 472, at 483.

(6) [1973] A C at, 388.

354 the ordinary right and interest of a litigant that he shall be able to Ibefore a court of justice all relevant evidence. In the same case, Lor Pearson observed thatthe expression ‘Crown privilege’ is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case :

“…. .’Crown privilege’ is a misnomer and apt to be misleading.’It refers to the rule that certain evidence is hadmissible on the ground that its adduction would be contrary tothe public interest.It is not a privilege which may be waived by the Crown (see Marks v.

Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown hasprerogatives,not previlege.” I am not quite sure whether, in this area, there wasany antithesi between prerogatives and privilege.I thinkthe source of this privilege was the prerogatives of the Crown.

“The source ofthe Crown’& privilegein relation to production of documents in asuit betweensubject andsubject (whether production is sought from a party or from some other) can, nodoubt,be traced tothe prerogative right to prevent the disclosure of State secrets, or evenof preventingthe escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland’s History of English Law(2nd ed., Vol. I, p. 5 17), “the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, thenX when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed.”We findsimilar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries.In the report of Layer’s Case (1722), (16 How St.

Tr. p. 294) the Attorney General claimedthat minutes of the Lords of the Council should not be produced; and Sir John PrattL.C.J.sup- ported the claim, additing that “it would be for the disservice of the King to have these things disclosed”. We recall Coke’s useful principle: Nihil quodinconvenienceest licitum. It is true that in the preceding century the privilege was not upheld either in Strafford’s case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How.

St. Tr. 183, but these decisions were made in peculiar circumstances.” [see “Documents Privilegedin Public Interest”(1)] But, with the growth of democratic government, the interest of theCrown in these matters developed intoand became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

355 In the early days of the nineteenth century, when principles of ‘public policy’ received broad and generous interpretation we findthe privilegeof documentsrecognized onthe ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous”.

(see “Documents Privilegedin Public Interests” (supra) The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all.This would showhow remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1).

So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it mightbe that a legitimate inteference could be made that theMinister or the head ofthe departmentconcerned permittedthe production of the document or evidence being given derived from it, if there was no other circumstance.But, Saxena statedthat the Blue Book was a secret document and hehad not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it wasan intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, fromthe statement of Saxena that the document was a ‘secret’ one and that he was not permitted to produce it in court, it is impossible toinfer that the Minister or the head ofthe department badpermitted the document to beproduced in court or evidence derived from it being given.Section123 enjoinsupon the court the duty to see thatno one is permitted to give any evidence derived fromunpublished official records relating toaffairs of state unless permitted by the officer at the head of the department.The court, therefore, had a duty, if the Blue Bookrelated to secret affairs of state, not to permit evidence derived from it being given.And, in fact, ‘the Court did not allowthe production ofthe document, for, we find a note inthe proceedings ofthe Court on 10-9-1973 stating thatthe “question about the production of this document in Court shall be decided after argument of the parties on the point is finally (1)see: J.K.S. Simon, “Evidence Excluded by Consideration of State Interest”, (1955) Cambridge L Journal, 62.

356 heard”.And before the arguments werefinally concluded, Kaul, the officer at the head of the department, filed an affidavit claiming privilege.As the privilege couldnot have been waived, and as, before the objection tothe production of the document raised by Saxena-whether tenable in lawor not-was decided by the Court, an affidavitwas filed by Kaul objecting to the production of the document and stating that the document in question related to secret affairsof state, the Court should have consideredthe validity of that objection under S. 162 of the Evidence Act.

In Crompton Ltd. v. Customs & Excise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it andthat the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest. In Copway v. Binger & Anther(2) itwas observed :

“I do not doubt that it is proper to prevent the useof any document, wherever it comes from, ifdisclosure ofits contents would really injure the national interest and I do not doubt that it is proper topreventany witness whoeverbe may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without theintervention of any Minister, if possible serious injury to the national interest is ,really apparent.

“I do not accept thatin soimportant a matter, it could properly playaboutwith formalities or regard itself as entering forbidden territory merely because a doorhad not been formally locked.” The question then arises as to what exactly is the meaning of the expression “affairs of state”.

According to Phipson(3), witnesses may not beasked,and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confinedto official communicationsor documents, but extends toall others likely to prejudice the public interest, even when relating to commercial matters.He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered bythe court, and they are : (1)the public interest that harm shall not be done to the nation orthe public service; and (2) thepublicinterest thatthe administrationof justice shall not be frustrated bythe withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1) [1972] 2 Q.B 102, at 134.

(3) “Phipson on Evidence”, 11th ed. p. 240.

(2) [1968] UKHL 2; [1968] A.C. 910.

357 documents probably ought to be produced, it would generally be, best that he should see them before ordering production.

Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest;but “state interest” is an ominously vague expressionand it is necessary to turn to the decided cases in order to ascertain the extent towhich this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded becauseits receptionwould be injurious tosome other national interest andthat although the first group of decisions has not excited much comment, some of the cases included in the second may be thought toindicate an excessive concern for unnecessary secrecy.

In Sodhi Sukhdev Singh’s case (supra) this Court heldthat there are three views possible on the matter.The first view is that it is the head of the department who decides to which class the document belongs. If he comes tothe conclusion that the document is innocent, he cangive permission to its production. If, however, he comes tothe conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture.The second view is that it isfor the court to determine the character of the document and if necessary to enquire into the possible consequence ofits disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of thetwo extreme positions would be that the courtcan determine the character of the document and if it comes to the conclusion that the document belongs tothe noxious class,it may leave it to the head ofthe department to decidewhether its production should be permitted ornot, for, it is not the policy of s. 123 that in the case of every noxiousdocument the head of the departmentmust alwayswithhold permission.The Court seems tohave accepted the third view as the correct one and has said “Thus, our conclusion is that reading ss.123 and 162together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determinethe validity of the objections to itsproduction, and that necessarily involves an enquiryinto the question asto whether the evidence relates to an affairs of State under s. 123 or not.” As it was held in that case that the Court has no power to inspectthe document, it is difficult to see how the Court can find, without conducting an enquiry asregardsthe possible effect of the disclosure ofthe documentupon public interest, that a document is one relating to affairs of state as, ex- hypothesis a document can relate to affairs of state only if its disclosure will injure public interest.

It might be that there are certain classes of documents which are per se noxio s in the sense (1) “Evidence” 3rd ed, p. 252.

358 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 documents which do not belong to the noxious class andyet their disclosure would be injurious to public interest.The enquiry to be conducted under s. 162 is an enquiry intothe validity of the objection that the document isan unpublished official record relaing to affairs of stateand 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 ofthe department raise an objection to the production of a document if he is prepared to permit its disclosureeven thoughit relates to secret affairs of state ? Section162 visualises an enquiry into that objection and empowersthe court to take evidence for deciding whether the objection is valid.The court, therefore, has to considertwo things;

whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest. Nodoubt,the, words used-ins. 123 “as he thinks fit” conferan absolute discretion on the head of the department to give or withhold such permission. AsI said, it is only ifthe officer refusesto permit the disclosure of adocument thatany question can arise in a court and then s. 162 of theEvi- dence Act will govern the situation. An overriding power in expresstermsis conferred on the court unders. 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 publicinterest. This conclusion flows from the factthat in the first part of s. 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 enquiryis hedged inby- conditions. It is, therefore, clear that eventhoughthe 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 thedisclosure ofthe document wouldbe injurious to public interest andthe expression “as he thinks fit” in the latter part of section 123 need not deter the court from deciding the question afreshas s.162 authorises the court to determinethe validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh’s case).

It israther difficult to understand, after a courthas inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question already decided by the court.In other words, if injury to public interest is the foundation of this so-called privilege,when once the courthas enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, itwould be a futile exercise for the Minister or the head ofthe department toconsider and decide whether its disclosure should be permitted as be would be making an 359 enquiryinto the identical question.It is difficult to imaginethat a headof thedepartment would takethe responsibilityto come to a conclusion different fromthat arrivedat by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a different concept of public interest.

Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be theproper forum to weigh the matter and that isthe reason why a Minister’s certificate is taken asconclusive.

“Those who are responsible for the national security must be the sole judges of what national security requires”(1).As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these mattersmight fall into a class which per se might requireprotection. But the executive is not the organ solely responsible for public interest.It representsonly an important element in it; but there are other elements, One such element is the administration of justice.The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knowswhat is best for the citizen. C The claim of the executive to excludeevidence is more likely to operate tosubserve a partialinterest, viewed exclusively froma narrow departmental angle. It is impossible for it to see orgive equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of publicinterest to be considered, the courtwill,with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.

The power reserved to the court is a order productioneven thoughpublicinterest is tosome ‘extent prejudicially affected. This amounts to a recognition that more thanone aspectsof public interest will have to be surveyed.The interests of government’ for which the Minister speaks do not exhaust the whole public interest.Another aspect of that interestis seen in the needfor impartialad- ministration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance ofthe public interest in the casebeforeit.

The court has to make an assessment of the relative claims of these different aspect of public interest.While there are overwhelming arguments for giving to the executivethe power to determine what matters may prejudice public security, those arguments give no sanction togivingthe executive an exclusive power to determine what mattersmay affectpublicinterest. Once considerations of national security are left out, there are fewmatters of public interest which cannot safely be discussed in public. The administrationitselfknows of many classesof security documents ranging from those merely reserved for official use tothosewhich can be seen only by ahandful of Ministers of officials bound by oath of secrecy.

According to Wigmore, the extent to which this privilege has gone beyond “secretsof State” inthe militaryor international sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2A C 77, at 107.

360 no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logicand policy. According to him, in a community under a system of representative government, there can be only few facts which requireto be kept secret with that solidity which defies even the inquiry of courts of justice. (1) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, therecan but few secrets. The people ofthis countryhave a right to know every public act,everything, that is done in a public way, by their public functionaries.

They are entitled to know the particulars of every public transaction in all its bearing.The right to know, which is derived from the concept of freedom of speech,thoughnot absolute, is a factor which should make onewary,when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) . To coverwith veil secrecy the common routine business, isnot inthe interest of the public.Such secrecy can seldom be legiti- mately desired.It is generally desired for the purpose of partiesandpolitics or personalself-interestor bureaucratic routine.The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

“Whetherit is the relations of the Treasury to the Stock Exchange, or the dealings of ;the InteriorDepartment with publiclands,the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a sacrosanct secrecy in a court ofjustice is to attribute to them a characterwhich for other purposes is never maintained a character which appears tohave been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(3)” To justify a privilege, secrecy must be indispensable to inducefreedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which hasremained or would have remained inviolable but for the compulsory disclosure.In howmany transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwiseinviolate secrecy, letthe necessity. of maintaining it be determined on its merits (4).

Lord Blanesburgh saidin Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannotbe disclosed withoutinjuryA, to the public interests andnot that the documents are confidential or ,official which alone is no reason for their non-production.

He further said that in view of the increasing extension of state activities intospheres of trading, businessand commerce, and of the claim of privilege in (1) see “Evidence”, 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, [1971] USSC 145; 29 L Ed822, 403 U S 713.

(3) gee “Wigrnore on Evidence”, 3rd ed-, Vol 8, page 790.

(4) [1931] A. C. 704 at 798.

361 relation to liabilities arising therefrom, the courtsmust duly safeguard genuine public interests and that theymust see to it that the scope of the admitted privilege isnot extended in such litigation.

There was some controversy as to whether the courtcan inspectthe documentfor the purposeof coming tothe conclusion whether the document relates to affairs of state.

In Sodhi Sukhdev Singh’s case, this Court has said thatthe court has nopower to inspect thedocument. Inthe, subsequent case (Amar Chand Butail v. Union of Indiaand Others(1), this Courtheld that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected.But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residualpower in court to decide disclosure of a document is in the interest ofthe public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final.

In Robinson’s case, (Supra) the Privy Council took theview that the court has power to inspect the (document in order to decide the question whether it belongs to one category or the other.

It isalso noteworthy that Lord Denning, M.R, inhis dissenting judgment in the Court of Appeal in Conway v.

Rimmer has referred to the decision in Amar Chand Butail v.

Union of India and Others’ (supra) and said that the Supreme Court of India also has come round to the view that there is a residual power in the court to inspect adocument to decidewhether its production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court willnot insiston inspectionof the document is that stated by Vinson, C. J. in United States v. Revenolds(3) :

“Regardless of how it is articulated,some like formula of compromise mustbe applied here. Judicial control over evidence in a case cannot be abdicated to thecaprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possibleto satisfy the court from all the circumstances ofthe base, that there is a reasonable dangerthat compulsion of evidence will expose military matters which, in the interestof national security, should not be divulged When this is the case, the occasion for the privilege (1) A I R 1964 SC 1658.

(2) [1968] UKHL 2; [1968] 1 All E R 874.

(3) [1953] USSC 31; [1952] 345 U S 1.

362 is appropriate,and the courtshouldnot jeopardize the security which the privilege is meant to protect by insisting uponan examination of the evidence, even by the judge alone in chambers.” I do not think thatthereis much substance inthe contention that since, the Blue Book had been published in parts,it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state.

If some parts of the document which are innocuous havebeen published, it does not follow that the whole documenthas been published. No authority has been cited forthe proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.

In regard tothe claim of privilege for the document summoned from the office of the Superintendentof Police, Rai Bareily, the High Court has only said that allthe instructions contained in the fileproduced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of theBlue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents.It is difficult to under:stand how the High Court got theidea that the papers brought from the office ofthe Superintendentof Police contained only instructions or materials taken from the Blue Book. Since the court did not inspectthe Blue Book, the statement by the court thatthe materials containedin the fileproduced bythe Superintendent of Police were ,taken from the Blue Bookwas not warranted.

I am not satisfied that a mere label given to a document by the .executiveis conclusive in respect of the question whether it relates to affairs of state or not. Ifthe disclosure of the contents of the document would not damage publicinterest, the executive cannot label it in such a manneras to bring ‘it within the class of documents which ,are normally entitled to protection.N6 doubt, “thevery description-ofthe documentsin theclassmay suffice sometimes to show that they should not be produced such as Cabinetpapers” (seeper Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J. said(2) in that case : “the appellants’ real point isthat since Duncan’s Case(3) there has grown up a practice tolump documents together and treat them as a class for which privilege is claimedand that thisdepends on dicta pronounced onwhat is reallya different subject-matter which are not binding on the court and are wrong.” In Conway v. Rimmer(4) Lord Reid said : “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be” andreferred to cabinetminutes as belonging to that class.Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C– 624.

(4) [1968] UKHL 2; [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

363 claimedfor a document on the ground of ‘class’ the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call forits production forhis private inspection, and to orderand limit its production if he thinks fit.” In the samecase Lord Hodson said(1) : “I do not regardthe classification which places all documents under theheading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan’s case and documents exemplified by cabinetminutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class withoutthe necessity of thedocuments being considered individually.The documents in this case, class documents thoughthey may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as requiring protection on the groundthat ‘candour’ must be ensured.” I would set aside the order of the High Court and direct it to consider the matter afresh.The High Court will have to consider the question whether the documents inrespect of which privilege had been claimed by Mr. R. K.Kaul,Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would beinjuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits.

If, onthe basis of the averments in the affidavits,the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of theproceedings ofthe cabinet, which is per se entitled to protection, no further question will arise in respect of that document. Insuch case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class andthat averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind thatits disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whetherit relates to affairs of state and thatits disclosure will injure public interest. In respect ofthe other documents, the court will be at libertyto inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion thatthey relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to (1) bid at p. 905.

364 disclose that part and uphold the objection as regardsthe rest providedthat this will notgive amisleading impression. Lord Pearce said in Conway v. Rimmer(1) “if part of a document is innocuous butpart is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this willnot give a distortedor misleading impression.” The principleof the rule ofnon-disclosureof records relating to affairs of state is theconcernfor public interest and the rule will be applied no further thanthe attainment of that objective requires(2).

I would allow the appeal.

P.B.R.

Appeal allowed.

(1) [1968] UKHL 2; [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.STATE OF U.P. V. RAJ NARAIN & ORS [1975] INSC 16; AIR 1975 SC 865; 1975 (3) SCR 333; 1975 (4) SCC 428 (24 January 1975)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

SARKARIA, RANJIT SINGH UNTWALIA, N.L.

CITATION: 1975 AIR 8651975 SCR (3) 333 1975 SCC (4) 428

CITATOR INFO :

MV1982 SC 149(452,454, 1184) RF1988 SC 782(43, 44) RF1989 SC 144(4,5)

ACT:

Indian Evidence Act, ss. 123 and 162–Scope of.

HEADNOTE:

Section 123 of the Evidence Act states that no one shall be permitted to give any evidence derived fromunpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold such permission as he thinks fit. Section 162 provides that when a witness brings to Court a document in pursuance, of summons and then raises an objection to its production or admissibility the Court has todetermine the validity of the objection tothe production or admissibility and for so doing the Courtcan inspectthe document except in the cage of a document re- latingto the affairs of State or take such other evidence as may be necessary to determine its admissibility.

In connection with his election petition the respondent made an applicationbeforethe High Courtfor summoningthe Secretary, General Administration and Chief Secretary of the State Government and the head clerk of the office ofthe Superintendent of Police of the District for the production of the Blue Book entitled “rules and instructions forthe protection ofthe Prime Minister when on tour orin.

travel”, and certain other correspondence exchanged between the Governmentof India and the State Government inthat connection. The Home Secretary deputed one of his officers to go to the court alongwith the documents butwith clear instructions that he should claim privilege inrespect of those documents under s. 123 of Evidence Act. No affidavit of the Minister concerned or the Head of the Department was, however, filed, at that time. In the course ofexamination the witness claimed privilege in respect of the documents.

The election petitioner thereupon contended that the Head of the Department had not filed an affidavit claiming privilege and that the documents did not relate to the affairs ofthe State.The documents in respect of which privilegewas claimedwere seated and kept in the custody ofthe Court.

When the matter came up for hearing,however, theHome Secretary to the State Government,filed an affidavit claiming privilege for the documents.In respect ofthe documents summoned from the office of the Superintendent of Policean affidavit claiming privilege under s. 123 ofthe Evidence Act was filed by the Superintendent of Police.

The High Court held that (i) under s. 123 of the Evidence Act the Minister or the, Head of the Department concerned must file an affidavit in the first instance and since no such affidavithad been filed in thefirst instancethe privilege was lost and the affidavit filed later claiming privilege wasof no avail, (ii) that it woulddecidethe question of privilege only when permission to produce a document had been withheld under s. 123; (iii) that the Blue Book in respect of which privilege was claimed was not an unpublished official record relating to the affairs ofthe State because the Union Government had referred to a portion of it in one of its affidavits and a member of Parliament had referred to a particular rule ofthe Blue Book in Parliament; (iv) thatno reasons were given whythe disclosure ofthe documentswouldbe against public interest; and (v) that it had power to inspect the documents in respect of which privilege was claimed.

Allowing the appeal to this Court, (per A. N. Ray, C.J., A.

Alagiriswami, R..S. Sarkaria and N. L. Untwalia, JJ) :

HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act is the same as in English Law.It isthat injuryto public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be 23SC/75 334 withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence, the production of which is contrary to public interest. It is in public interestthatconfidentialityshallbe safeguarded. Confidentiality is not a head of privilege. it is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demandprotection.

[348E-H] Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two fold : (1)Evidence of relevantfactsis inadmissible when itsreception offends against public policyor a particular rule of law. A party is sometimes estopped from proving facts and these facts are therefore inadmissible; (2) Relevant facts are, subject to recognised exceptions, inadmissible unless they are proved by thebest or theprescribed evidence.Secrets of State. State papers,confidential official documents and communications betweenthe Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-C] Conwayv. Rimmer & Anr. [1968] UKHL 2; [1968] 1 A.E.R. 874 &[1968]A.C.

910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers v. Home Secretary [1973] A.C. 388, referred to.

(1) It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by theHead of the Department. The Court may also require a Minister to affirman affidavit.Where no affidavit was filed, an affidavit could be directed to be filed later on. [349B] (2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents.

The Court can direct further affidavit in that behalf.If the Court is satisfied with the affidavits, the Courtwill refuse disclosure. If the Court, in spite of the affidavit, wishes to inspect the document the Court may do so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.

(3) Inthe present case it cannot be said that theBlue Book is a published document.Any publication of parts of the Blue Book which may be described as an innocuous part of the document will not render the entire document a published document. [349H] (4) Inthe instant case it is apparent that the affidavit affirmed by the Chief Secretary is an affidavit objecting to the production of the documents. The oral evidence ofthe witnessas well as the aforesaid affidavitshowsthat objection was taken at the first instance. [349D] (5) Ifthe Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there.If the Court would yet like to satisfy itself, the Court may see the document.

Objection asto productionas well as admissibility contemplated in s. 162 of the Evidence Act is decided by the Court in the enquiry. [349B-C] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

Per Mathew, J. (Concurring) :

1(a) The foundation of the so called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official, which alone is no reason for its non-production.

[353C-D] AsiaticPetroleum Company Ltd. v. Anglo Persian OilCo.

[1916]1 K.B. 822 at 830; Conway v. Rimmer [1968] UKHL 2; [1968] 1All, E.R. 874 at 899 and Duncan v. Cammell Lavid &Co. [1942] UKHL 3; [1942] A.C. 624, referred to.

335 (b) A privilege normally belongs to the parties and can be waived.But where a fact is excluded fromevidence by considerations of public policy, there is no power to waive in the parties. [353F-G] Murlidhar Agarwal v. State of U.P. [1974] INSC 128; [1974] 2 S.C.C. 472 at 483, referred to.

In the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons anddid not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record relating to affairs of State had been for ever waived and asno affidavit had been filed it mightbe that a legitimate inference could be made that the Minister orthe Head of the Department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had nobeen permitted by the Head ofthe Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to the Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given.Whatever else the statement might indicate, it does not indicate that the Head ofthe Department had permitted the production or disclosure of the document. [355D-F] (2) Section 123 enjoins upon the Court the duty to see that no oneis permitted to giveany evidence derivedfrom unpublished official records relating to affairs of State unlesspermitted by the officer atthe Head ofthe Department. The Court therefore, had a duty not to permit evidence derived from a secret document being given. Before the arguments were finally concluded and before the Court decidedthe question the Head of the Department filed an affidavit objecting to the production of the documentand statingthat the document in questionrelated to secret affairsof State, and the Court-should have consideredthe validity of that objection under s. 162 of the Evidence Act.

[355G-A; 356A-B] Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B.102 at 134 and Conway v. Rimmar & Anr. [1968] UKHL 2; [1968] A.C. 910, referred to.

(3) There is no substance in the argument that sincethe Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of, State. Ifsome parts ofthe document which are innocuous have been published, itdoes not follow that the whole document has been published.

Since the High Court did not inspect the Blue Book,the statement by the Court that the materials contained inthe file produced by the Superintendent of Policewere taken from the Blue Book was not warranted. [362B-C; E] (4) The mere label given to a document by the executive is not conclusive in respect of the questionwhether it relatesto affairs of State or not. If the disclosure of the contents of the document wouldnot damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally entitled to protection. [362E-F] 5(a) It is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect ofthe disclosure ofthe document upon public interest, that a document is one relating toaffairs of State as, ex hypothesis, a document can relate to affairs of Stateonly if its disclosure will injure public interest.But in cases where the documents do not belong to the noxious classand yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiryinto the validity of the objection that the document is anun- published official record relating to affairs of Stateand.

therefore, permission to give evidence derived from it is declined. [357H; 358A-B] (b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objectionis valid. TheCourt,therefore, has to consider two things : (i) whether the documentrelates to secretaffairsof State; and (ii) whether therefusal to permitevidence derived from it being givenwas in the public interest. [358C] 336 (c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and find out whether, the disclosure ofthe document would be injurious to public interest and the expression “as be thinks fit” in the latter part of s. 123 need not deter the Court from decidingthe question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

(d) When a question of national security is involvedthe Court may not be the proper forum to weigh thematterand that is the reason why a Minister’s certificate is taken as conclusive. As the executive is solely responsiblefor national security, including foreign relations, no other organ could judge so well ofsuch matters.Therefore, documents in relation to these matters might fall into a class which per se might require protection. [359B-C] (e) But the executive is not the organ solelyresponsible for public interest. There are other elements. Onesuch element is the administration of justice. The claim ofthe executive to exclude evidence is more likely to operate to subserve a partial interest, viewedexclusively from a narrowdepartmental angle. It is impossible for it tosee or give equal weight to another matter, namely, that justice shouldbe done and seen to be done. When there aremore aspects of public interest to be considered the Court will, with referenceto the pending litigation, be in a better position to decide where the weightof public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of thepublic interest in the case before it.Oncecon- siderations of national security are left out. there are few matters of _public interest which cannot safely be discussed in public. [139C-D; F-G] Arguments for the Appellant The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section.In cases wherethe document in question obviously relates to affairs of State it is the duty of the Court to prevent the productionand admission of the document in evidence suo motu to safeguard publicinterest Matters of State referred to in the second clauseof s.162 are identical with affairs of State mentioned in s. 123. An objection against the production of document should be raised in the form of an affidavit by the Minister or the Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, requirethe affidavit of the Minister. If theaffidavit is found unsatisfactorya further affidavit may be called, and in a propercase the person making the affidavit should be summoned to face an examination to the relevant point.Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo moru in cases where the documents in question obviously relate to affairsof State. Therefore, the Court cannot hold an inquiryinto the possible injury to public interest.That is a matter for the authority to decide. But the Court is bound to holda preliminaryenquiry and determinethe validity of the objections which necessarilyinvolves an inquiry into the question as to whether the evidence relates to anaffair of State under s. 123. In thisinquirythe Court has todetermine the characterand class ofthe document. The provisions of s. 162 make a departurefrom Englishlaw in one material particular and that isthe authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 ofthe Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretionthe Court will exercise its power only in exceptional circumstances when public interest demands, that is, when thepublic interestservedby the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavitwhereasthe Minister would have done it. This claim of privilege is not rejected on account of this procedural defect.

Arguments for the Respondent in thepresent case the affidavit was not filed atthe relevant time,nor is it clear that the Secretary orthe Minister of the Department concerned ever applied their mind at the relevant time. The Supreme Court in Sukhdeo Singh’s case held that 337 the objection to the production or admissibility of document of which privilege is claimed, should be taken by himself by means of an affidavit. Section 162 of the EvidenceAct indicates thatthe objection should be filed on thedate which is fixed for the production of document so thatthe Court may decide the validity of such objection.Such objection must be by, means of an affidavit. In A mar Chand Butail v. Union of India the Supreme Court held that asthe affidavit wasnot filed, no privilegecouldbe claimed.

This Court also looked to the document and on merits itwas held that thedocument wasnot such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. Inthe present case the question does not arise as the summonswas issued to the Head of the Department who was asked to appear in person or through some other officer authorised byhim for the purpose of giving-evidenceand for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from non-filing of the affidavitof the. Head of theDepartment that no privilege was claimed.The Court has a right to look to the document itself and take a decisionas towhetherthe document concerned was such which at all related toany affairsof the State.The Court has the power of having a judicial review overthe opinion of the Head ofthe Department.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.

Appealby Special Leave from the Judgment andOrder dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.

Niren De, Attorney General of India, B. D. Agarwala, and 0.

P. Rana, for the appellant.

Shanti Bhushan and J. P. Goyal, for respondent no. 1.

Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2.

The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S.

Sarkaria and N. L. Untwalia, JJ, was delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion.

RAY, C.J.-Thisis an appeal by special leave fromthe judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilegecan be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is describedfor the sake of brevity to be the Blue Book summoned fromthe Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police,Rae Bareli, Uttar Pradesh.

Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad, made an application on 27 July, 1973 for summoning certain witnesses alongwith documents mentioned in the application. Thesummonswas inter alia for the following witnesses along with following documents First the Secretary, General Administration, State of Uttar PradeshLucknow or any officer authorisedby him was summoned to produce inter alia (a) circulars receivedfrom the Home Ministry and the Defence Ministry of the Union Government regarding the security and 338 tour arrangements of Shrimati IndiraNehru Gandhi,’the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 orany generalorderfor securityarrangement; and (b)All correspondencebetween the State Government andthe Government of India and between the Chief Minister andthe Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regardingthe security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government of India and between the Chief Ministerand the Prime Minister, regardingthe arrangement of Police for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.

Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to thetour programof Shkimati Indira Nehru Gandhi of DistrictRae Barelifor 1 and 25 February, 1971; (b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements forconstructions of Rostrum, fixation of loudspeakers andother arrangements through Superintendent of Police, District Rae Bareli.

On 3 September, 1973the summons was issued tothe Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 ofthe affidavit of R. K. Kaul, Commissionerand Secretaryin- charge.On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effectthat the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer.On 6 September,1973 S. S.Saxena,UnderSecretary, Confidential Department, was deputed by R. K.Kaul,Home Secretary as well as Secretary, Confidential Department, to go tothe High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.

In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Courtthe Home Secretary deputed the applicant Saxena to go tothe Court with the documents summoned withclearinstructions that privilegeis to be claimed under section 123 ofthe Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and 339 Instructions for the protection of the Prune Ministerwhen on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and thePrime Ministerin regard tothe Police arrangements for the meetings of the Prime Minister.

Saxena was examined by the High Court on 10 September, 1973.

On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected.In theapplication it is statedthat during the course of his statement Saxena admitted thatcertain instructions were. issued bythe CentralGovernment for the arrangement of Prime Minister’s tour which are secret and hence he is not in a position to file those documents.The witness claimed privilege in respectof that document. It is stated by the election petitioner that no affidavit claiming privilege hasbeen filed by the Head of the Department and that the documents do not relate to the affairs of the State.

On 11 September, 1973 there was an order as follows.The application of the election petitioner for rejection ofthe claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena ina sealed cover in the Court. In casethe objection would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police.

Rae Bareli claimed privilegeunder-section123 ofthe Evidence-Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross exami- nation.The election petitioner filed the objection tothe affidavit claiming privilege by theSuperintendentof Police, Rae Bareli.

On 13September, 1973 the learnedJudge orderedthat arguments on the question of privilege would be heard on 19 September, 1973. S.S. Saxena filed anapplication supported by an affidavit of R. K. Kaul. The deponent R. K.

Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosurewill be prejudicial to public interest for the reasons setout therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister,the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for argumentsfor deciding preliminaryissuesand onthe questionof privilege. on 20 September, 1973 an objection was madethat the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 September, 1973the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of 340 privilege were adjourned until 29 October,1973.23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded.On 30 October,1973 the Advocate Generalappeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted toshow to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14days of March, 1974 The judgment was delivered on 20 March, 1974.

The learned Judge on 20 March, 1974 made an order as follows “No privilege can be claimed inrespect of three sets of paper allowed to be produced.

The three sets of papers are as follows.The first set consists of the Blue Book, viz., the circulars regarding the securityarrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister’s Secretariat on the basis of which Police arrangement forconstructions of Rostrum, fixationofloudspeakersand other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings ofthe Prime Minister.The second set also relates to circulars regarding securityand tour arrangementsof Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regardingthe arrangement of police for the meetings ofthe Prime Minister.The third set summonedfrom the Head Clerk of the Office ofthe Superintendent of Police relates to the same.” The learned Judge expressed the following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavitwas filed atthe first instance. The Court cannot exercise duty under section123 of the Evidence Act suo motu.The court can functiononly after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 ofthe Evidence Act that the Court will decide. Saxena inhis evidence did not claim privilege even after theLaw Department noted in the filethat privilege should be claimedSaxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.

The learned Judge further held as follows. The Blue Book is not anunpublished official record within themeaning of section 123 of the Evidence Act because Rule 71(6) ofthe Blue Book wasquotedby a Member of Parliament.The Minister did not object or deny they correctness of’the quotation. Rule 71(6) of the Blue Book has been 341 filed in the election petition by therespondent tothe election petition Extracts of Rule 71(6) of the BlueBook were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of theBlue Book in support of her defence.When a portion of theBlue Book had been used by her in her defence it cannot besaid that the BlueBook had not been admitted in evidence.

Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examinethe witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not beenadmitted in evidence and Kaul’s affidavit could be takeninto consi- deration, theBlue Book is not an unpublished official record.

With regard to documents summoned from the Superintendent of Policethe High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not giveany reason why the disclosure of the documents would be against publicinterest, the documents summonedfromthe Superintendentof Police cannot beprivilege documents either.

The High Court further said that in view of the decisions.

of this Court in State of Punjab v. Sodhi Sukhdev Singh(1);

Amar Chand Butail v. Union of India(2) andthe English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilegeis claimed. But because the Blue Book is not anunpublished official record, there is no necessity to inspect theBlue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4);

Conwayv. Rimmer & Anr. (supra); and Rogers v.Home Secretary(5) surveyedthe earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In theCammellLairedcase (supra)the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not toproduce the documents.It was stated that ifthe letter was not accepted as sufficient to found a claim,for privilege theFirst Lord ofAdmirality would make an affidavit. Hedid swear an affidavit. On summonsfor inspection ofthe documents it was held thatit isnot uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method theCourtcart request the Minister’s personal attendance.

(1) (1961] 2 S.C.R. 371.(2) A.I.R. 1964 S.C.,1658.

(3) [1968] 1 A.E.R- 874 : [1968] UKHL 2; [1968] A C 910.

(5) [1973] AC 388.

(4) [1942] A C- 642.

342 Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents and an affidavit ofthe respondent, the British Railway Board, objecting to produce certaindocuments. The applicant challenged thatthe objection of the respondent to produce the document wasnot properly made.The applicant asked for leave to cross- examinethe Minister.The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere withthe discretion exercised bythe Chamber Judge.The Ministerfiled a further affidavit.That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. Itwas, held that the affidavit was in compliance withthe order.

The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention ofthe executive, though normally the executive claims it.The matterwas taken up to the Court of Appeal, which heldthe order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.

in the Cammell Laird case (supra) the House ofLordssaid that documents are excluded from production ifthe public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact thatthe document belongs to a class which on grounds of public interest must as a class be withheldfrom production. This statement of law in the Cammell Laird case (supra)was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held thatalthough an objection validly taken to production on thegroundthat this would be injurious to the public interest is conclusive it isimportant to remember that the decisionruling out such document is the decision of the Judge. The reference to ‘class’ documents in the Cammell Laird case (supra)was said in Conway v. Rimmer & Anr. (supra) to be, obiter.The Minister’s claim of privilege in theCammellLairdcase (supra) was at a time of total war when the slightest escape to thepublic of the most innocent details ofthe latest design of submarine founders might be a source of danger to the State.

In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injuryto the public interest and- not that the documents are confidential or official.With regard to particular class of documents for which privilege was claimed itwas said that the Court would weigh in the balance on theone side the public interest to be protected and on the other the interest of the subject who wanted production of some (1) (1963) 3 A E R 426:(1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.

(2) [1916] 1 K B 830.

343 documents which he believed would support his own or defeat his adversary’s case. Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest.

In this background it was held in Conway v. Rimmer &Anr.

(supra)that a claim made by a Minister on thebasisthat the disclosure of the contents would be prejudicial tothe publicinterest must receive the greatest weight; buteven here the Minister should go as far as he properlycan withoutprejudicing the public interest in saying whythe contents require protection.In Conway v. Rimmer &Anr.

(supra)it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the documentitselfand then ordering its production”.As to the “class” cases it was said in Conway v. Rimmer & Anr.(supra) thatsome documents by their Very nature fall into aclass which requires protection.These are Cabinet papers, Foreign Officedispatches, the security of the State,high level interdepartmental minutes and correspondence and documents pertaining tothe general administration ofthe naval, military and air force services. Such documents would be the subject of privilege by reason of their contentsand also by their ‘class’.No catalog can be compiled forthe ‘class’ cases.The reason is that it would be wrongand inimical to the functioning of the public service ifthe publicwere to learn of these high level communications, howeverinnocent of prejudice to the Statethe actual comments of any particular document might be,.

In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of theHome Secretary it was argued that the Court couldof itsown motionstop evidencebeing given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assertpublic interest. The public interest which demands that the evidence be withheld has to be weighed againstthe public interest in the administration of justice that courts shouldhave the fullest possible access to all relevant material. Once the public interest is found to demandthat the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the productionof which, it sees iscontrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the documentshouldbe disclosed. Anaffidavit is necessary. Courts havesome times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.

344 The principalrules of exclusion under which evidence becomesinadmissible are two-fold.First,evidence of relevant facts is inadmissible when its reception offends againstpublicpolicy or a particular rule oflaw.Some mattersare privileged from disclosure. A party is some- times estoppedfrom proving facts and these factsare therefore inadmissible. The exclusion of evidenceof opinionand of extrinsic evidence of the contents ofsome documents is again a rule of law. Second, relevant facts are, subject to recognised exceptionsinadmissible unless they are proved by the best or the prescribed evidence.

A witness, though competent generally to give evidence,may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.Secrets of state,papers, confidential official documentsand communicationsbetween .he Government and its officersor- between such officers are privileged from production onthe groundof public policy or as beingdetrimental tothe public interest or service.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-therethat the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into theloss of the “Thetis’. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policyit would not be defeated by thecircumstancesthat they had beengivena limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal’s sittings might be secret.

In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a document might havebeen disclosed at an earlier enquiry. It was said that ifpart of a documentis innocuous but part of it isof such a naturethat its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh’s case (supra) held thatthe principle behind section 123 of the EvidenceAct isthe overriding and paramount character of public interestand injuryto public interest is the sole foundation ofthe section. Section 123 states that no one shall be permitted to give any evidence derivedfrom unpublished official recordsrelating to_ any affairs of State except withthe permission ofthe Officer at the headof the department concerned, who shall give or withhold such permission as he thinksfit. The expression “Affairs ,of State” in section 123 was explained with reference to section162 ofthe Evidence Act.Section 162 is in three limbs.The first limb states that a witness summoned to producea document shall, if it is in his possession or power, bring it tothe Court,notwithstanding any objection which there may be to its production or to its admissibility.The validity of an such objection shall decided by the Court. The secondlimb of section 162 says that the, Court,, if it sees fit,may ‘inspect the document unless it refers to matters of state, or take other evidence to enable it to determine onits admissibility.’the third limb 345 speaksof translation of documents which is not relevant here. In Sukhdev Singh’s case (supra) this Court saidthat the first limb of section 162 required a witness to produce a document tobring it to the Courtand then raise an objection against its production or its admissibility.The secondlimb refers to the objection both as to production and admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh’scase (supra)to be identical with the expression”affairs of State?’ in section 123.

In Sukhdev Singh’s case (supra) itwas said that an objection against the production of document should bemade in the form Of an affidavit by the Minister orthe Secretary. When an affidavit is made by the Secretary,the Court may, in a proper case, require the affidavit ofthe Minister. Ifthe affidavit is found unsatisfactory, a furtheraffidavit may be called. In a proper case,the personmakingthe affidavit can be summonedto face an examination. In Sukhdev Singh’s case. (supra)this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought tobe excluded from production relates to an affair of State.The Court has todetermine the character and class of documents.

Second, the harmonious construction of sections 123 and162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character ofthe document. Third, the expression “affairs of State” in section123 is not capable ofdefinition.Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document orsuch class of documents may also claim the status of documents relating to public affairs’.Fourth, the second limb of section162 refers to the objection both as tothe production andthe admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannothold an enquiry into the possible injury to public interest which may result from the disclosure of document in question.

That is a matter for the authority concerned to decide.But the Court is competent and is bound to hold apreliminary enquiry and determine the validity of the objection toits production. That necessarily involves an enquiry intothe question as to whether the evidence relates to an affairs of State under section 123 or not.

in Sukhdev Singh’s case (supra) this Court said thatthe power to inspect the documents cannot be exercised where the objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R.at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection.The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is saidthat the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh’scase (supra) it has also been. said that if the Court 346 finds that the document belongs to what is said to bethe noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

The concurring views in Sukhdev Singh’s case (supra)also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail’s case (supra) the appellant called upon the respondents the Union and the Stateto produce certain documents. The respondents claimed privilege.This Court saw the documents and was satisfied that the claim for privilege was not justified.

In Sukhdev Singh’s case (supra) the majorityopinionwas given by Gajendragadkar, J. In Amar Chand Butail’scase (supra)Gagendragadkar, C.J.spoke for theCourt in a unanimous decision. In the later case this Court sawthe document. In Sukhdev Singh’s case (supra) this Courtsaid that an enquiry would be made by the ‘Court as to objections to produce document. It is said thatcollateral evidence could be taken. No oral evidence can be given of thecon- tents of documents. In finding out whether the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State, itmay sometimes be difficult for the Court to determinethe character of the document without the court seeing it.The subsequent Constitution Bench decision inAmar Chand Butail’s case- (supra) recognised the power of inspection by the Court of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision askedthe Compensation Officer to decide inthe light of the decisions of this Court whether the claimfor privilege raised by the State Government should be sustained or not.This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Governmenthad claimed privilege in certain proceedings. Inthe Sub-Divisional Officer; Mirzapur case (supra) therespondent filed objections todraftcompensationassessment rolls.

Compensation was awarded to the respondent.The State appliedfor reopening of the objection cases.The respondent asked for production of some documents.The State claimed privilege. The District Judge directedthat compensation cases should be heard bythe Sub-Divisional Officer. Therespondent’s application for discoveryand production was rejected by the Compensation Officer.The District Judge thereafter directed that compensation cases shouldbe heard bythe Sub-Divisional Officer.The respondent again filed applicationsfor discoveryand inspection of these documents.The State Government again claimedprivilege. The respondent’sapplicationswere rejected. Therespondent then filed a petition under Article 226 of theConstitution for a mandamusto Compensation Officer to bear and determine the applications.

The High Court said (1) [1966] 2 SC R- 970, 347 that the assessment rolls had become final and could not be opened.This Court on appeal quashed the order of theSub Divisional Officer whereby the respondent’s applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said thatthe firstsummonsaddressed totheSecretary, General Administration required him or an officer authorised byhim to give evidence and to produce the documents mentioned therein. Thesecondsummons was addressed to theHome Secretary to give evidence on 12 September, 1973. The third summonswas addressed to the Chief Secretary to giveevi- dence on 12September, 1973 and to produce certain documents. The first summons, it is said on behalf ofthe election petitioner, related to the tour programmes ofthe Prime Minister.The election petitioner, it is said, wanted the documents for two reasons.First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses.

The, electionpetitioner’scaseis that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for furthering the prospects ofthe candidate’s election.

On behalf ofthe election petitioners it is saidthat objection was taken with regard to certain documents inthe first summons on the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is thatthe Superintendentof Police is not the head of the department and either the Minister orthe Secretary shouldhave affirmed an affidavit.

Counselon behalf of the election petitionerput inthe forefront that it was for the Court to decidewhetherthe disclosure and production of documents by theState would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and tothe public interest that justice should bedone betweenlitigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had tobe found out at what stage and itwhat manner privilege was to be claimed and in what circumstancesthe Court could look into the document to determine the validity of the claim to privilege raised under section123.The, other contention on behalf of the election petitionerwas that if a part of the document was made public by lawful custodian of the document the question waswhetherthe document could stillbe regarded a-, anunpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought onthe record of the litigation.

348 Counselfor the election petitioner leaned heavily onthe decision in Conway v. Rimmer & Anr. (supra) that the Court is tobalance the rival interests of disclosure andnon- disclosure.

the first question which falls for decision is whetherthe learnedJudge was right in holding that privilege wasnot claimed by filing an affidavit at the first instance.

Counsel on behalf of the election petitioner submittedthat in a case in which evidence is sought to be led in respect of matters derived from unpublished recordsrelating to affairsof State at a stage, of the proceedings whenthe head of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence beingled till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned,it is said by counsel for the electionpetitioner, the opportunity of claiming privilege in a legal mannerhas already been furnished when summons is received by thehead of thedepartment and if he does not claim privilegethe court is under no legal duty to ask him or to givehim another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules andinstructions for the protection of the Prime Minister when on tour and in travel.Saxena came to court and gave evidence thatthe blue book was a document relating to the affairs of State and was not to be disclosed. TheSecretary filed an affidavit on 20 September, 1973 and claimed privilege in respectof the blue book by submitting that the document relatedto affairs of Stateand should, therefore, be excluded from production.

The several decisions to which reference has alreadybeen made establishthat the foundationof thelaw behind sections 123 and 162 of the Evidence Act is the same as in Englishlaw. It is that injury to public interest isthe reason for the exclusion from disclosure of documents whose contents if disclosedwould injure public and national interest. Public interest which demands thatevidence be withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials.When publicinterest outweigh’s the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest.It is inpublicinterest thatconfidentiality shallbe safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentialityis not a head of privilege. It is a consideration to bear in mind.It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v.Home Secretary (supra) at p. 405).To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the Stateand high level interdepartmentalminutes. In the ultimate analysis the contents of the 349 document are so described that it could be seen at once that in thepublic interest the documents are to be withheld.

(See Merricks and Anr. v. Nott Bower & Anr.(1).

It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite aMinister to affirman affidavit. That will arise in the course ofthe enquiryby the Court as to whether the document should be withheld from disclosure. If the Court is satisfiedwith the affidavitevidence, that the documentshouldbe protected in public interest from production the matter ends there.If the Court would yet like to satisfy itselfthe Court may see the document. This will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in section 162 ofthe Evidence Act is decided by the Court in theenquiry as explained by this Court in Sukhdev Singh’s case (supra).

In thefacts and circumstances of the present case it is apparent that the affidavit affirmed by R. K.Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the productionof the documents. The oralevidence of Saxenaas well as the aforesaid affidavitshowsthat objection was taken at the first instance.

This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on.The Grosvenor Hotel, London group of cases (supra)in England shows that if an affidavit is defective an opportunitycan be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfiedwith the affidavitsthe Court will refuse disclosure. Ifthe Court in spite of the affidavit wishes toinspectthe document the Court may do so.

The next question is whether the learned Judge was right in holdingthat the blue book is not an unpublished official record. On behalf of the election petitioner, it was-said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Canmell Laird case, it was said that though some of the papershad been producedbefore the Tribunal ofEnquiryand though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given.One is that special precaution may have been taken to avoid publicinjuryand the otheris that portions ofthe Tribunal’s sittings may have been secret. Inthe present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one.

(1) [1964] 1 A E R 717 8-423SCI/75 350 For these reasons, the judgment of the High Court isset aside.The learned judge will consider theaffidavit a firmedby R.K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced bythe Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require protectionfrom production, the matter will end there.If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature ofthe documents, the learned Judge will be pleased to inspectthe same and pass appropriate orders thereafter,. If the Court will find oninspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided thatwould not give a distorted or misleading impression. Where the Courtordersdisclosure ofan innocuous partas aforesaid the Court should seal upthe other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay andbear their own costs.

MATHEW,J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No.

1 applied to the Court for summons to the Secretary, General Administrationand the Chief Secretary, Government ofU.P.

and the Head Clerk, Office of the Superintendent of Police, Rai Bareily, for productionof certain documents.In pursuance to summonsissuedto theSecretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documentsand objected to produce:

(1) Ablue book entitled”Rulesand Instructions forthe Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of Indiaand the Government of U.P. in regard to the police arrangements forthe meetings of the Prime Minister; and (3) Correspondence exchanged betweenthe Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxenawas examined by Court on 10-9-1973. The 1stres- pondent filed an application on that day praying that as 351 no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that theapplication be put upfor disposal.As Saxena’s examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that incase the claim forprivilege was sustained, Saxena would be informed so, that hecouldtake back the documents.

Examination of Saxena was over on 12-9-1973. On thatday, the, Superintendent of Police, RaiBareily, filedan affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heardthe next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed inCourtan application and the Home Secretary tothe Government of U.P., Shri R,K. Kaul, the head ofthe department in question an affidavit claiming privilege for the documents.

The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege.

This appeal, by special leave, is against that order.

The first question for consideration is whetherthe privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilegewas filed in the first instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge orthe head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According tothe Court, this was required as a guarantee. that the statement of theMinister or the head of the department whichthe Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental routine, but isone put forward withthe solemnitynecessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned tothe Court and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and ashe wasnot permitted by the Home Secretary to produce it in Court.As no affidavit of theMinister or of the Head ofthe Department was filed claiming Privilege under s. 123 ofthe Evidence Act in the first instance, the Court said thatthe privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lordships ofthe Privy Council said that it would be contrary to the public (1) [1960] INSC 196; [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

352 interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as,no affidavit, albeit defective, was filed in this case inthe first instance.The Court further observed that it was only when a proper affidavit claiming privilege wasfiledthat the Court hasto find whether the documentrelated to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that,duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Courtthen quoted a passage fromthe decision of this Court in Sodhi Sukhdev Singh’s case (supra) to theeffect that court has no power to holdan enquiry into the possible injury to the public interest whichmay resultfrom the disclosure of the document asthat is a matterfor the authority concerned to decide but thatthe court is competent and indeed bound to hold apreliminary enquiry and determine the validity of the objection and that necessarily involves an enquiry into ‘the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Bookwas that since portions of it had in fact been published, it was not an unpublished official record relating toaffairs of state.He relied upon three circumstances to showthat portions of the Blue Book were published. Firstly,the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court.Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) andhad produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred tothis particular rulein Parliament.

The learned Judge, however, did notconsider or decide whetherthe Blue Book related to any affair of state, perhaps, in view of his conclusion that itwas not an unpublished official record.

Section 123 of the Evidence Act states from unpublished official records relating to any affairs ofstate,except withthe permission of the Officer at the head ofthe department concerned, who shall giveor withhold such permission as be thinks fit.” Section 162 of the Evidence Act provides that when a witness bringsto court a document in pursuance tosummonsand raises an objection to its production or admissibility,the Court has to- determine the validity of the objection to the production or admissibility and, for so doing, the court can inspectthe documentexcept in the case ofa document relating to affairs of state or, take such other evidence as may be necessary to determine its admissibility.

353 Having regard to the view of the High Court that since the’.

privilege wasnot claimed in the first instance by an affidavit of the Minister or of the head of the department concerned, the privilege could not thereafterbe asserted and that no inquiry into the question whether the disclosure of thedocument would injure public interest can becon- ductedby thecourtwhen privilegeis claimed, it is necessary to see the scope of s. 123 and s.162 ofthe Evidence Act.

The ancient proposition that the public has a right to every man’s evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon.

This duty and its equal application to the executivehas never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairsof state and cannot be disclosed without injury to public interest.

The foundationof the so-called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official which alone is no reason for its non-production(1).

In Durcan v. Cammel Lavid & Co.(2) Lord Simon saidthat withholding ofdocuments on the ground thattheirpub- lication wouldbe contrary to the public interest isnot properly to be regarded as a branch of the law of privilege connected with discovery and that ‘Crown privilege’ is,for this reason, not a happy expression.

Dealingwith the topics of exclusion of evidence onthe groundof estate interest, Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown.(3) Phipsondealswith the topic under the general category “Evidence excluded by public policy”.He then lists as an entirely separate category: “Facts excluded byprivilege,” and deals there with the subject oflegalprofessional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act(4).

A privilege normallybelongs to the partiesand can be waved.But where a fact isexcluded fromevidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v.

State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression ‘Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense ofthe word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override (1) gee Asiatic Petroleum Company Ltd. v Anglo PersianOil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer [1968] UKHL 2; (1968) 1 All ER 874, at 899.

(2) [1942] A– C 624.(3) “Evidence”, 3rd ed p 251.

(4) “see Phipson on Evidence” (5) [1974] 2 S7 C C 472, at 483.

(6) [1973] A C at, 388.

354 the ordinary right and interest of a litigant that he shall be able to Ibefore a court of justice all relevant evidence. In the same case, Lor Pearson observed thatthe expression ‘Crown privilege’ is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case :

“…. .’Crown privilege’ is a misnomer and apt to be misleading.’It refers to the rule that certain evidence is hadmissible on the ground that its adduction would be contrary tothe public interest.It is not a privilege which may be waived by the Crown (see Marks v.

Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown hasprerogatives,not previlege.” I am not quite sure whether, in this area, there wasany antithesi between prerogatives and privilege.I thinkthe source of this privilege was the prerogatives of the Crown.

“The source ofthe Crown’& privilegein relation to production of documents in asuit betweensubject andsubject (whether production is sought from a party or from some other) can, nodoubt,be traced tothe prerogative right to prevent the disclosure of State secrets, or evenof preventingthe escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland’s History of English Law(2nd ed., Vol. I, p. 5 17), “the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, thenX when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed.”We findsimilar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries.In the report of Layer’s Case (1722), (16 How St.

Tr. p. 294) the Attorney General claimedthat minutes of the Lords of the Council should not be produced; and Sir John PrattL.C.J.sup- ported the claim, additing that “it would be for the disservice of the King to have these things disclosed”. We recall Coke’s useful principle: Nihil quodinconvenienceest licitum. It is true that in the preceding century the privilege was not upheld either in Strafford’s case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How.

St. Tr. 183, but these decisions were made in peculiar circumstances.” [see “Documents Privilegedin Public Interest”(1)] But, with the growth of democratic government, the interest of theCrown in these matters developed intoand became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

355 In the early days of the nineteenth century, when principles of ‘public policy’ received broad and generous interpretation we findthe privilegeof documentsrecognized onthe ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous”.

(see “Documents Privilegedin Public Interests” (supra) The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all.This would showhow remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1).

So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it mightbe that a legitimate inteference could be made that theMinister or the head ofthe departmentconcerned permittedthe production of the document or evidence being given derived from it, if there was no other circumstance.But, Saxena statedthat the Blue Book was a secret document and hehad not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it wasan intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, fromthe statement of Saxena that the document was a ‘secret’ one and that he was not permitted to produce it in court, it is impossible toinfer that the Minister or the head ofthe department badpermitted the document to beproduced in court or evidence derived from it being given.Section123 enjoinsupon the court the duty to see thatno one is permitted to give any evidence derived fromunpublished official records relating toaffairs of state unless permitted by the officer at the head of the department.The court, therefore, had a duty, if the Blue Bookrelated to secret affairs of state, not to permit evidence derived from it being given.And, in fact, ‘the Court did not allowthe production ofthe document, for, we find a note inthe proceedings ofthe Court on 10-9-1973 stating thatthe “question about the production of this document in Court shall be decided after argument of the parties on the point is finally (1)see: J.K.S. Simon, “Evidence Excluded by Consideration of State Interest”, (1955) Cambridge L Journal, 62.

356 heard”.And before the arguments werefinally concluded, Kaul, the officer at the head of the department, filed an affidavit claiming privilege.As the privilege couldnot have been waived, and as, before the objection tothe production of the document raised by Saxena-whether tenable in lawor not-was decided by the Court, an affidavitwas filed by Kaul objecting to the production of the document and stating that the document in question related to secret affairsof state, the Court should have consideredthe validity of that objection under S. 162 of the Evidence Act.

In Crompton Ltd. v. Customs & Excise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it andthat the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest. In Copway v. Binger & Anther(2) itwas observed :

“I do not doubt that it is proper to prevent the useof any document, wherever it comes from, ifdisclosure ofits contents would really injure the national interest and I do not doubt that it is proper topreventany witness whoeverbe may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without theintervention of any Minister, if possible serious injury to the national interest is ,really apparent.

“I do not accept thatin soimportant a matter, it could properly playaboutwith formalities or regard itself as entering forbidden territory merely because a doorhad not been formally locked.” The question then arises as to what exactly is the meaning of the expression “affairs of state”.

According to Phipson(3), witnesses may not beasked,and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confinedto official communicationsor documents, but extends toall others likely to prejudice the public interest, even when relating to commercial matters.He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered bythe court, and they are : (1)the public interest that harm shall not be done to the nation orthe public service; and (2) thepublicinterest thatthe administrationof justice shall not be frustrated bythe withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1) [1972] 2 Q.B 102, at 134.

(3) “Phipson on Evidence”, 11th ed. p. 240.

(2) [1968] UKHL 2; [1968] A.C. 910.

357 documents probably ought to be produced, it would generally be, best that he should see them before ordering production.

Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest;but “state interest” is an ominously vague expressionand it is necessary to turn to the decided cases in order to ascertain the extent towhich this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded becauseits receptionwould be injurious tosome other national interest andthat although the first group of decisions has not excited much comment, some of the cases included in the second may be thought toindicate an excessive concern for unnecessary secrecy.

In Sodhi Sukhdev Singh’s case (supra) this Court heldthat there are three views possible on the matter.The first view is that it is the head of the department who decides to which class the document belongs. If he comes tothe conclusion that the document is innocent, he cangive permission to its production. If, however, he comes tothe conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture.The second view is that it isfor the court to determine the character of the document and if necessary to enquire into the possible consequence ofits disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of thetwo extreme positions would be that the courtcan determine the character of the document and if it comes to the conclusion that the document belongs tothe noxious class,it may leave it to the head ofthe department to decidewhether its production should be permitted ornot, for, it is not the policy of s. 123 that in the case of every noxiousdocument the head of the departmentmust alwayswithhold permission.The Court seems tohave accepted the third view as the correct one and has said “Thus, our conclusion is that reading ss.123 and 162together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determinethe validity of the objections to itsproduction, and that necessarily involves an enquiryinto the question asto whether the evidence relates to an affairs of State under s. 123 or not.” As it was held in that case that the Court has no power to inspectthe document, it is difficult to see how the Court can find, without conducting an enquiry asregardsthe possible effect of the disclosure ofthe documentupon public interest, that a document is one relating to affairs of state as, ex- hypothesis a document can relate to affairs of state only if its disclosure will injure public interest.

It might be that there are certain classes of documents which are per se noxio s in the sense (1) “Evidence” 3rd ed, p. 252.

358 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 documents which do not belong to the noxious class andyet their disclosure would be injurious to public interest.The enquiry to be conducted under s. 162 is an enquiry intothe validity of the objection that the document isan unpublished official record relaing to affairs of stateand 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 ofthe department raise an objection to the production of a document if he is prepared to permit its disclosureeven thoughit relates to secret affairs of state ? Section162 visualises an enquiry into that objection and empowersthe court to take evidence for deciding whether the objection is valid.The court, therefore, has to considertwo things;

whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest. Nodoubt,the, words used-ins. 123 “as he thinks fit” conferan absolute discretion on the head of the department to give or withhold such permission. AsI said, it is only ifthe officer refusesto permit the disclosure of adocument thatany question can arise in a court and then s. 162 of theEvi- dence Act will govern the situation. An overriding power in expresstermsis conferred on the court unders. 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 publicinterest. This conclusion flows from the factthat in the first part of s. 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 enquiryis hedged inby- conditions. It is, therefore, clear that eventhoughthe 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 thedisclosure ofthe document wouldbe injurious to public interest andthe expression “as he thinks fit” in the latter part of section 123 need not deter the court from deciding the question afreshas s.162 authorises the court to determinethe validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh’s case).

It israther difficult to understand, after a courthas inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question already decided by the court.In other words, if injury to public interest is the foundation of this so-called privilege,when once the courthas enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, itwould be a futile exercise for the Minister or the head ofthe department toconsider and decide whether its disclosure should be permitted as be would be making an 359 enquiryinto the identical question.It is difficult to imaginethat a headof thedepartment would takethe responsibilityto come to a conclusion different fromthat arrivedat by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a different concept of public interest.

Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be theproper forum to weigh the matter and that isthe reason why a Minister’s certificate is taken asconclusive.

“Those who are responsible for the national security must be the sole judges of what national security requires”(1).As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these mattersmight fall into a class which per se might requireprotection. But the executive is not the organ solely responsible for public interest.It representsonly an important element in it; but there are other elements, One such element is the administration of justice.The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knowswhat is best for the citizen. C The claim of the executive to excludeevidence is more likely to operate tosubserve a partialinterest, viewed exclusively froma narrow departmental angle. It is impossible for it to see orgive equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of publicinterest to be considered, the courtwill,with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.

The power reserved to the court is a order productioneven thoughpublicinterest is tosome ‘extent prejudicially affected. This amounts to a recognition that more thanone aspectsof public interest will have to be surveyed.The interests of government’ for which the Minister speaks do not exhaust the whole public interest.Another aspect of that interestis seen in the needfor impartialad- ministration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance ofthe public interest in the casebeforeit.

The court has to make an assessment of the relative claims of these different aspect of public interest.While there are overwhelming arguments for giving to the executivethe power to determine what matters may prejudice public security, those arguments give no sanction togivingthe executive an exclusive power to determine what mattersmay affectpublicinterest. Once considerations of national security are left out, there are fewmatters of public interest which cannot safely be discussed in public. The administrationitselfknows of many classesof security documents ranging from those merely reserved for official use tothosewhich can be seen only by ahandful of Ministers of officials bound by oath of secrecy.

According to Wigmore, the extent to which this privilege has gone beyond “secretsof State” inthe militaryor international sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2A C 77, at 107.

360 no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logicand policy. According to him, in a community under a system of representative government, there can be only few facts which requireto be kept secret with that solidity which defies even the inquiry of courts of justice. (1) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, therecan but few secrets. The people ofthis countryhave a right to know every public act,everything, that is done in a public way, by their public functionaries.

They are entitled to know the particulars of every public transaction in all its bearing.The right to know, which is derived from the concept of freedom of speech,thoughnot absolute, is a factor which should make onewary,when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) . To coverwith veil secrecy the common routine business, isnot inthe interest of the public.Such secrecy can seldom be legiti- mately desired.It is generally desired for the purpose of partiesandpolitics or personalself-interestor bureaucratic routine.The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

“Whetherit is the relations of the Treasury to the Stock Exchange, or the dealings of ;the InteriorDepartment with publiclands,the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a sacrosanct secrecy in a court ofjustice is to attribute to them a characterwhich for other purposes is never maintained a character which appears tohave been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(3)” To justify a privilege, secrecy must be indispensable to inducefreedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which hasremained or would have remained inviolable but for the compulsory disclosure.In howmany transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwiseinviolate secrecy, letthe necessity. of maintaining it be determined on its merits (4).

Lord Blanesburgh saidin Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannotbe disclosed withoutinjuryA, to the public interests andnot that the documents are confidential or ,official which alone is no reason for their non-production.

He further said that in view of the increasing extension of state activities intospheres of trading, businessand commerce, and of the claim of privilege in (1) see “Evidence”, 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, [1971] USSC 145; 29 L Ed822, 403 U S 713.

(3) gee “Wigrnore on Evidence”, 3rd ed-, Vol 8, page 790.

(4) [1931] A. C. 704 at 798.

361 relation to liabilities arising therefrom, the courtsmust duly safeguard genuine public interests and that theymust see to it that the scope of the admitted privilege isnot extended in such litigation.

There was some controversy as to whether the courtcan inspectthe documentfor the purposeof coming tothe conclusion whether the document relates to affairs of state.

In Sodhi Sukhdev Singh’s case, this Court has said thatthe court has nopower to inspect thedocument. Inthe, subsequent case (Amar Chand Butail v. Union of Indiaand Others(1), this Courtheld that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected.But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residualpower in court to decide disclosure of a document is in the interest ofthe public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final.

In Robinson’s case, (Supra) the Privy Council took theview that the court has power to inspect the (document in order to decide the question whether it belongs to one category or the other.

It isalso noteworthy that Lord Denning, M.R, inhis dissenting judgment in the Court of Appeal in Conway v.

Rimmer has referred to the decision in Amar Chand Butail v.

Union of India and Others’ (supra) and said that the Supreme Court of India also has come round to the view that there is a residual power in the court to inspect adocument to decidewhether its production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court willnot insiston inspectionof the document is that stated by Vinson, C. J. in United States v. Revenolds(3) :

“Regardless of how it is articulated,some like formula of compromise mustbe applied here. Judicial control over evidence in a case cannot be abdicated to thecaprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possibleto satisfy the court from all the circumstances ofthe base, that there is a reasonable dangerthat compulsion of evidence will expose military matters which, in the interestof national security, should not be divulged When this is the case, the occasion for the privilege (1) A I R 1964 SC 1658.

(2) [1968] UKHL 2; [1968] 1 All E R 874.

(3) [1953] USSC 31; [1952] 345 U S 1.

362 is appropriate,and the courtshouldnot jeopardize the security which the privilege is meant to protect by insisting uponan examination of the evidence, even by the judge alone in chambers.” I do not think thatthereis much substance inthe contention that since, the Blue Book had been published in parts,it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state.

If some parts of the document which are innocuous havebeen published, it does not follow that the whole documenthas been published. No authority has been cited forthe proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.

In regard tothe claim of privilege for the document summoned from the office of the Superintendentof Police, Rai Bareily, the High Court has only said that allthe instructions contained in the fileproduced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of theBlue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents.It is difficult to under:stand how the High Court got theidea that the papers brought from the office ofthe Superintendentof Police contained only instructions or materials taken from the Blue Book. Since the court did not inspectthe Blue Book, the statement by the court thatthe materials containedin the fileproduced bythe Superintendent of Police were ,taken from the Blue Bookwas not warranted.

I am not satisfied that a mere label given to a document by the .executiveis conclusive in respect of the question whether it relates to affairs of state or not. Ifthe disclosure of the contents of the document would not damage publicinterest, the executive cannot label it in such a manneras to bring ‘it within the class of documents which ,are normally entitled to protection.N6 doubt, “thevery description-ofthe documentsin theclassmay suffice sometimes to show that they should not be produced such as Cabinetpapers” (seeper Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J. said(2) in that case : “the appellants’ real point isthat since Duncan’s Case(3) there has grown up a practice tolump documents together and treat them as a class for which privilege is claimedand that thisdepends on dicta pronounced onwhat is reallya different subject-matter which are not binding on the court and are wrong.” In Conway v. Rimmer(4) Lord Reid said : “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be” andreferred to cabinetminutes as belonging to that class.Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C– 624.

(4) [1968] UKHL 2; [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

363 claimedfor a document on the ground of ‘class’ the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call forits production forhis private inspection, and to orderand limit its production if he thinks fit.” In the samecase Lord Hodson said(1) : “I do not regardthe classification which places all documents under theheading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan’s case and documents exemplified by cabinetminutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class withoutthe necessity of thedocuments being considered individually.The documents in this case, class documents thoughthey may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as requiring protection on the groundthat ‘candour’ must be ensured.” I would set aside the order of the High Court and direct it to consider the matter afresh.The High Court will have to consider the question whether the documents inrespect of which privilege had been claimed by Mr. R. K.Kaul,Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would beinjuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits.

If, onthe basis of the averments in the affidavits,the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of theproceedings ofthe cabinet, which is per se entitled to protection, no further question will arise in respect of that document. Insuch case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class andthat averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind thatits disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whetherit relates to affairs of state and thatits disclosure will injure public interest. In respect ofthe other documents, the court will be at libertyto inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion thatthey relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to (1) bid at p. 905.

364 disclose that part and uphold the objection as regardsthe rest providedthat this will notgive amisleading impression. Lord Pearce said in Conway v. Rimmer(1) “if part of a document is innocuous butpart is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this willnot give a distortedor misleading impression.” The principleof the rule ofnon-disclosureof records relating to affairs of state is theconcernfor public interest and the rule will be applied no further thanthe attainment of that objective requires(2).

I would allow the appeal.

P.B.R.

Appeal allowed.

(1) [1968] UKHL 2; [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.

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