Supreme Court Of India
JUDGEMENT INFORMATION SYSTEM
 

Section 123 of the Evidence Act states that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold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 to determine the validity of the objection to the production or admissibility and for so doing the Court can inspect the document except in the cage of a document re- lating to 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 application before the High Court for summoning the Secretary, General Administration and Chief Secretary of the State Government and the head clerk of the office of the Superintendent of Police of the District for the production of the Blue Book entitled "rules and instructions for the protection of the Prime Minister when on tour or in. travel", and certain other correspondence exchanged between the Government of India and the State Government in that connection. The Home Secretary deputed one of his officers to go to the court alongwith the documents but with clear instructions that he should claim privilege in respect 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 of examination 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 of the State. The documents in respect of which privilege was claimed were seated and kept in the custody of the Court. When the matter came up for hearing, however, the Home Secretary to the State Government, filed an affidavit claiming privilege for the documents. In respect of the documents summoned from the office of the Superintendent of Police an affidavit claiming privilege under s. 123 of the 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 affidavit had been filed in the first instance the privilege was lost and the affidavit filed later claiming privilege was of no avail, (ii) that it would decide the 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 of the 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 of the Blue Book in Parliament; (iv) that no reasons were given why the disclosure of the documents would be 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 is that injury to 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 administration of justice that courts should have the fullest possible 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 interest that confidentiality shall be 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 demand protection. [348E-H] Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. 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 relevant facts is inadmissible when its reception offends against public policy or 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 the best or the prescribed evidence. Secrets of State. State papers, confidential official documents and communications between the 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] Conway v. Rimmer & Anr. [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 the Head of the Department. The Court may also require a Minister to affirm an 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 Court will 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) In the 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 as an innocuous part of the document will not render the entire document a published document. [349H] (4) In the 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 of the witness as well as the aforesaid affidavit shows that objection was taken at the first instance. [349D] (5) If the 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 as to production as 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 [1961] 2 S.C.R. 371, followed. Per Mathew, J. (Concurring) : 1(a) The foundation of the so called privilege is that the information cannot be disclosed without injury to public interest and not that the document is confidential or official, which alone is no reason for its non-production. [353C-D] Asiatic Petroleum Company Ltd. v. Anglo Persian Oil Co. [1916] 1 K.B. 822 at 830; Conway v. Rimmer [1968] 1 All, E.R. 874 at 899 and Duncan v. Cammell Lavid & Co. [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 from evidence by considerations of public policy, there is no power to waive in the parties. [353F-G] Murlidhar Agarwal v. State of U.P. [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 and did 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 as no affidavit had been filed it might be that a legitimate inference could be made that the Minister or the 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 no been permitted by the Head of the 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 of the 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 one is permitted to give any evidence derived from unpublished official records relating to affairs of State unless permitted by the officer at the Head of the 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 decided the question the Head of the Department filed an affidavit objecting to the production of the document and stating that the document in question related to secret affairs of State, and the Court-should have considered the 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] A.C. 910, referred to. (3) There is no substance in the argument 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 have been published, it does 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 in the file produced by the Superintendent of Police were 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 question whether it relates to affairs of State or not. If the disclosure of the contents of the document would not 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 of the disclosure of the document upon 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. But in cases where the documents do not belong to the noxious class and yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiry into the validity of the objection that the document is an un- published official record relating to affairs of State and. 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 objection is valid. The Court, therefore, has to consider two things : (i) whether the document relates to secret affairs of State; and (ii) whether the refusal to permit evidence derived from it being given was 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 of the 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 deciding the question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed. (d) When a question of national security is involved the Court may not be the proper forum to weigh the matter and that is the reason why a Minister's certificate is taken as conclusive. 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 matters might fall into a class which per se might require protection. [359B-C] (e) But the executive is not the organ solely responsible for public interest. There are other elements. One such element is the administration of justice. The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of the public interest in the case before it. Once con- 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 where the document in question obviously relates to affairs of State it is the duty of the Court to prevent the production and admission of the document in evidence suo motu to safeguard public interest Matters of State referred to in the second clause of 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, require the affidavit of the Minister. If the affidavit is found unsatisfactory a further affidavit may be called, and in a proper case 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 affairs of State. Therefore, the Court cannot hold an inquiry into the possible injury to public interest. That is a matter for the authority to decide. But the Court is bound to hold a preliminary enquiry and determine the validity of the objections which necessarily involves an inquiry into the question as to whether the evidence relates to an affair of State under s. 123. In this inquiry the Court has to determine the character and class of the document. The provisions of s. 162 make a departure from English law in one material particular and that is the authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 of the 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 discretion the Court will exercise its power only in exceptional circumstances when public interest demands, that is, when the public interest served by the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavit whereas the Minister would have done it. This claim of privilege is not rejected on account of this procedural defect. Arguments for the Respondent in the present case the affidavit was not filed at the relevant time, nor is it clear that the Secretary or the 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 Evidence Act indicates that the objection should be filed on the date which is fixed for the production of document so that the 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 as the affidavit was not filed, no privilege could be claimed. This Court also looked to the document and on merits it was held that the document was not such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. In the present case the question does not arise as the summons was issued to the Head of the Department who was asked to appear in person or through some other officer authorised by him for the purpose of giving-evidence and 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 affidavit of the. Head of the Department that no privilege was claimed. The Court has a right to look to the document itself and take a decision as to whether the document concerned was such which at all related to any affairs of the State. The Court has the power of having a judicial review over the opinion of the Head of the Department.

   

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