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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: SODHI SUKHDEV SINGH

DATE OF JUDGMENT: 15/11/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR  493            1961 SCR  (2) 371  CITATOR INFO :  R          1963 SC 395  (10)  D          1964 SC  72  (50)  RF         1964 SC1118  (4,8,9)  F          1964 SC1658  (10)  R          1964 SC1823  (26)  R          1966 SC1164  (14)  RF         1970 SC 214  (14)  RF         1975 SC 865  (17,28,29,30,31,33,42,50,69,76  O          1982 SC 149  (59,61,67,68,69,74,76,848,917,  F          1987 SC 331  (40)

ACT: Evidence--Production   of  documents--"Affairs  of   State", meaning   of--Privileged  documents--Scope   of--Ministerial certificate, if and  when conclusive--Collateral evidence to find   nature  of  document--Court’s  power--Inspection   of documents--Code  of Civil Procedure (Act 5 of 1908), O.  14, r. 14, 19(2), O. 14, r. 14--Indian Evidence Act, 1872 (1  of 1872), ss. 123, 162.

HEADNOTE: The respondent who was a District and Sessions Judge in  the erstwhile  State of Pepsu was removed from service on  April 7, 1953 by an order passed by the President of India who was then  in  charge  of the administration  of  the  State.   A representation  made by the respondent on May 18, 1955,  was considered  by the Council of Ministers of the State  as  in the  meantime the President’s rule had come to an  end,  and its  views were expressed in the form of a Resolution  dated September 28, 1955; but before taking any action it  invited the advice of the Public Service Commission.  On receipt  of the report of the Public Service Commission, the Council  of Ministers considered the matter again on March 8, 1956,  and its  views were recorded in the minutes of the  proceedings. On   August  11,  1956,  the  representation  made  by   the respondent  was considered over again by the Council  and  a final   conclusion  was  reached  in  respect  of  it.    In accordance  with  the said conclusion an  order  was  passed which was communicated to the respondent to the effect  that

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he  might be re-employed on some suitable post.  On  May  5, 1958, the respondent instituted a suit against the State  of Punjab for a declaration that the removal of his service  on April  7, 1953, was illegal, and filed an application  under O.  14,  r.  4,  and O. 11, r. 14,  of  the  Code  of  Civil Procedure  for  the production of certain  documents,  which included  the proceedings of the Council of Ministers  dated September 28, 1955, March 8, 1956, and August 11, 1956,  and the  report  of the Public Service  Commission.   The  State objected  to the production of the said  documents  claiming privilege under s. 123 of the Indian Evidence Act, 1872, and the  Chief Secretary of the State filed an affidavit  giving reasons  in support of the claim.  The question was  whether having regard to the true scope and effect of the provisions of ss.  123 and 167 of the Act the claim of privilege raised by the State was sustainable. Held, that the documents dated September 28, 1955, March  8, 1956, and August II, 1956, which embodied the minutes of 372 the  meetings  of the Council of  Ministers  indicating  the advice which the Council ultimately gave to the  Rajpramukh, were  expressly saved by Art. 163(3) of the Constitution  of India and fell within the category of documents relating  to "  affairs  of State " within the meaning of s. 123  of  the Indian Evidence Act, 1872. Accordingly,  they were protected under s. 123, and  as  the head  of the department, the Chief Secretary, did  not  give permission for their production, the Court cannot compel the State to produce them. Held,  further (Subba Rao, J., dissenting), that the  report of  the Public Service Commission being the advice  tendered by it, was also protected under s. 123 of the Act. Held, also (Kapur, J., dissenting), that the words  "records relating  to affairs of State " in s. 123 cannot be given  a wide  meaning so as to take in every document pertaining  to the entire business of State, but should be confined only to such  documents  whose disclosure may cause  injury  to  the public interest. The second clause of s. 162 refers to the objections both as to  the  production and admissibility of  the  document  and entitles  the  court  to  take other  evidence  in  lieu  of inspection  of  the  document in dealing  with  a  privilege claimed  or an objection raised under s. 123,  to  determine the validity of the objections. Case law reviewed. Per  Sinha,  C. J., Gajendragadkar  and  Wanchoo,  jj.Though under ss. 123 and 162 the Court cannot hold an enquiry  into the possible injury to public interest which may result from the disclosure of the document in question, the matter being left  for  the authority concerned to decide, the  Court  is competent  to hold a preliminary enquiry and  determine  the validity  of  the  objection  to  its  production  and  that necessarily  involves  an enquiry into the  question  as  to whether  the document relates to affairs of State  under  s. 123.   Where s. 123 confers mide powers on the head  of  the department  to  claim  privilege  on  the  ground  that  the disclosure  may cause injury to public interest,  scrupulous care  must  be  taken to avoid making a  claim  for  such  a privilege on the ground that the disclosure of the  document may   defeat   the  defence  raised  by  the   State.    The apprehension  that the disclosure may adversely  affect  the head  of  the department or the Minister in  charge  of  the department  or even the Government in power, or that it  may provoke  public  criticism or censure  in  the  Legislature, should  not weigh in the mind of the head of the  department

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and  the  sole test which should determine his  decision  is injury to public interest and nothing else. The  privilege under S. 123 should be claimed  generally  by the  Minister  in charge who is the political  head  of  the department  concerned  ;  if  not,  the  Secretary  of   the department should 373 make  the claim, and the claim should always be made in  the form  of  an affidavit.  When the affidavit is made  by  the Secretary,  the  Court  may in a  proper  case,  require  an affidavit  of  the Minister himself.  The  affidavit  should show that each document in question has been carefully  read and  considered,  and  the person making  the  affidavit  is satisfied  that its disclosure would lead to public  injury. If  there  are  series of documents included in  a  file  it should  appear  from  the affidavit that  each  one  of  the documents,  whose disclosure is objected to, has  been  duly considered by the authority concerned.  The affidavit should also  indicate briefly within permissible limits the  reason why  it is apprehended that their disclosure would  lead  to injury to public interest. If  the  affidavit  produced in support of  the  claim’  for privilege is found to be unsatisfactory a further  affidavit may  be called, and in a proper case the person  making  the affidavit  whether he is a Minister or the Secretary  should be  summoned  to  face  cross-examination  on  the  relevant points. The  provisions  of O. 11, r. 19(2), of the  Code  of  Civil Procedure  must  be  read subject to s. 162  of  the  Indian Evidence  Act and where a privilege is claimed at the  stage of inspection under O. 11, r. 19(2), of the Code, the  Court is precluded from inspecting the privileged document in view of s. 162 of the Act. Per  Kapur, J.-The words of s. 123 of the Act are very  wide and cover all classes of documents which may fall within the phrase  " affairs of State ", some noxious and others  inno- cuous,  and may even appear to be unduly restrictive of  the rights  of the litigant but if that is the law the sense  of responsibility  of the official concerned and his  sense  of fair play has to be trusted.  Under that section  discretion to produce or not to produce a document is given to the head of  the  department  and  the court has  not  the  power  to override the ministerial certificate against production. The words " or take other evidence to enable it to determine on  its admissibility" in s. 162 on their plain language  do not apply to production and the taking of evidence must have reference  to admissibility.  The section does  not  entitle the  court  to  take other evidence  i.e.,  other  than  the document,  to  determine the nature of the document  or  the reasons impelling the head of the department to withhold the production of the document. It is permissible for the Court to determine the  collateral facts  whether  the official claiming the privilege  is  the person  mentioned  in s. 123, or to require him  to  file  a proper  affidavit  or  even to  cross-examine  him  on  such matters  which  do  not fall within the enquiry  as  to  the nature of the document or nature of the injury.  He may also be cross-examined as to the existence of the practice of the department to keep documents of the class 374 secret but beyond that the ministerial discretion should  be accepted and it should neither be reviewed nor overruled. Per  Subba  Rao,  J.-(1) " Records relating  to  affairs  of State"  in s. 123 of the Act mean documents of  State  whose production  would  endanger the public  interest;  documents

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pertaining to public security, defence and foreign relations are  documents  relating to affairs  of  State;  unpublished documents  relating  to trading, commercial  or  contractual activities   of  the  State  are  not,  ordinarily,  to   be considered as documents relating to affairs of State, but in special circumstances they may partake of that character and it is a question of fact in each case whether they relate to affairs  of  State  or not in the sense  that  if  they  are disclosed public interest would suffer. (2)  Under no circumstances can a court inspect such a docu- ment or permit giving of secondary evidence of its contents. (3)  Under s. 162 the Court has overriding power to disallow a claim of privilege raised by the State, but in its discre- tion, the court will exercise its power only in  exceptional circumstances when public interest demands.  The said  claim shall  be  made  by an affidavit filed by  the  Minister  in charge of the department concerned describing the nature  of the  document in general and broadly the category of  public interest its non-disclosure purports to serve.   Ordinarily, the  court shall accept the affidavit of a Minister, but  in exceptional  circumstances,  when it has reason  to  believe that  there is more than what meets the eye, it can  examine the Minister and take other evidence to decide the  question of privilege. (4)  The disclosure of the report of the Public Service Com- mission   may expose the Government if the latter ignores  a good advice,   but  such an exposure is certainly in  public interest  and  in a conflict between the  administration  of justice  and the claim of privilege by the State, the  claim must be overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 337 of 1960. Appeal  by special leave from the judgment and  order  dated January 19, 1960, of the Punjab High Court in Civil Revision No. 596 of 1959. N. S. Bindra and D. Gupta, for the appellant. Gopal Singh,  for the respondent. H.   M.   Seervai,   Advocate-General  for  the   State   of Maharashtra and R. H. Dhebar, for the Intervener. 1960.  November 15.  The judgment of B. P. Sinha, C. J.,  P. B. Gajendragadkar, J. and K. N. Wanchoo, J. was delivered by P.  B. Gajendragadkar, J. J. L. Kapur, J. and K. Subba  Rao, J., delivered separate judgments. 375 GAJENDRAGADKAR,  J.-This  appeal raises for our  decision  a question of law of general importance under ss. 123 and  162 of  the  Indian Evidence Act, 1872,  (hereafter  called  the Act).  Originally the same point had been raised in  another civil  appeal  before this Court, Civil Appeal  No.  241  of 1955.   The said appeal was the result of a dispute  between Dowager  Lady  Dinbai Dinshaw Petit on the one hand and  the Union of India and the State of Bombay on the other.  Having regard  to’ the importance of the point raised by  the  said appeal  a Division Bench of this Court before whom it  first came  for  hearing  directed that it should  be  placed  for disposal before a Constitution Bench, and accordingly it was placed  before us.  The appellant and the respondent in  the present  appeal  then applied for  permission  to  intervene because the same point arose for decision in this appeal  as well;  that is how this appeal was also placed before us  to be  heard after the Bombay appeal.  After the Bombay  appeal was heard for some days parties to the said appeal  amicably

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settled  their dispute and a decree by consent  was  passed. In the result the point of general importance raised by  the said appeal fell to be considered in the present appeal; and so the appellant and the respondent in the said appeal asked for  permission to intervene in the present appeal,  and  we directed  that the arguments urged by Mr. Viswanatha  Sastri and  Mr. Seervai, for th appellant and the State  of  Bombay respectively,  should  be  treated  as  arguments  urged  by interveners in the present appeal.  Mr. Bindra, who  appears for the appellant State of Punjab in the present appeal, and Mr. Gopal Singh who represents the respondent Sodhi  Sukhdev Singh, have substantially adopted the arguments urged by Mr. Seervai and Mr. Sastri respectively and have also  addressed us  on  the special facts in their appeal; that is  how  the point  of law in regard to the scope and effect of  ss.  123 and 162 of the Act has to be decided in the present appeal. This appeal has been brought to this Court by special  leave granted  by this Court, and it arises from a suit  filed  by the  respondent  against the appellant on May 5,  1958.   It appears that the respondent was 376 a  District  and Sessions Judge in the  erstwhile  State  of Pepsu.  He was removed from service on April 7, 1953, by  an order  passed  by  the President of India who  was  then  in charge  of  the  administration  of  the  said  State.   The respondent then made a representation on May 18, 1955.  This representation was considered by the Council of Ministers of the  said  State  on  September 28,  1955,  because  in  the meantime  the  President’s rule had come to an end  and  the administration  of  Pepsu was entrusted to  the  Council  of Ministers.  The Council expressed its views in the form of a Resolution  on  the representation of  the  respondent;  but before taking any action it invited the advice of the Public Service  Commission.   On  receiving  the  said  advice  the Council again considered the said representation on March 8, 1956,  and  views on the merits of the  representation  were expressed  by  the  Members  of  the  Council.   These  were recorded  in  the minutes of the proceedings.   Finally,  on August  11,  1956, the representation  was  considered  over again  by the Council, and it reached a final conclusion  in respect  of it.  In accordance with the said  conclusion  an order  was passed which was communicated to the  respondent. The  order read thus: " Reference his  representation  dated the  18th May, 1955, against the order of his  removal  from service;  the State Government have ordered that he  may  be re-employed on some suitable post ". After  this  order was communicated to  him  the  respondent filed  the present suit against the appellant and claimed  a declaration,  inter alia, that his removal from  service  on April 7, 1953, was illegal, void and inoperative and  prayed ’for  the  recovery  of Rs. 62,700-6-0  as  arrears  of  his salary.,  The appellant disputed the respondent’s  claim  on several  grounds.   Issues were accordingly  framed  by  the trial  judge on January 27, 1959.  Meanwhile the  respondent had filed an application under O. 14, r. 4 as well as O. 11, r.  14  of the Civil Procedure Code for  the  production  of documents mentioned in the list annexed to the  application. The trial court issued notice against the appellant for  the reduction of the said documents.                             377 In reply to the notice Mr. E. N. Mangat Rai, Chief Secretary of the appellant, made an affidavit claiming privilege under s.  123  of the Act in respect of  certain  documents  whose production had been ordered, and gave reasons in support  of the  claim.   On the same day Mr. Mangat  Rai  made  another

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affidavit  in  which he gave reasons  for  claiming  similar privilege  in  respect  of  certain  other  documents.   The statements  made in these affidavits were challenged by  the respondent  who  submitted a counter affidavit.   After  the affidavits  had  thus been filed by the  parties  the  trial court  heard their arguments on the question  of  privilege, and  on  August 27, 1959, it upheld the claim  of  privilege made by the appellant for the production of some  documents, and accepted the reasons given by Mr. Mangat Rai in  support of the said claim of privilege. The respondent then moved the High Court of Punjab under  s. 115  of  the  Code of Civil Procedure and Art.  227  of  the Constitution  for  the  quashing of  the  said  order.   The petition for revision (C.  R. 596 of 1959) first came up for decision  before  D.  K. Mahajan, J.,  at  Chandigarh.   The learned judge took the view that the question raised by  the petition  was of considerable importance, and so he  ordered that  the papers should be placed before the  learned  Chief Justice  to enable him to direct that the matter be  decided by  a larger Bench.  Thereupon the petition was  placed  for decision  before Dulat and Dua, JJ., who, after hearing  the parties,  reversed  the order under revision in  respect  of four  documents,  and directed that the  said  documents  be produced  by the appellant.  The appellant then  applied  to the  High  Court for a certificate under Art.  133  but  its application  was dismissed.  It then came to this Court  and applied  for  and obtained special leave  to  challenge  the validity  of the order passed by the Punjab High Court;  and in the appeal the only question which has been urged  before us is that having regard to the true scope and effect of the provisions of as. 123 and 162 of the Act the High Court  was in error in refusing to uphold the claim of 48 378 privilege  raised  by  the  appellant  in  respect  of   the documents in question. The  question thus posed will naturally have to be  answered on  a fair and reasonable construction of the two  statutory provisions  of  the  Act.   It has,  how   ever,  been  very strenuously urged before us by Mr.  J.  Seervai that  before proceeding  to construe the said provisions it is  necessary that the Court should bear in mind the historical background of  the said provisions.  His argument is that ss.  123  and 162 as they were enacted in the Act in 1872 were intended to introduce  in  India the English Law in regard  to  what  is commonly  described as the Crown privilege in the same  form in which it obtained in England at the material time; and so he has asked us to determine in the first instance what  the true state of English Law was in or about 1872 A. D. In  order  to  decide  this  question  three  representative English decisions must be considered.  In Home v. Lord F. C. Bentinck  (1) the Court was dealing with a claim-made  by  H who  had  sued  the president of the  enquiry  for  a  libel alleged  to  be  contained in the report made  by  him.   It appears  that H was a commissioned officer in the  Army  and the  Commander-in-Chief  of the said Army  had  directed  an assemblage  of  commissioned military officers  to  hold  an enquiry  into  the  conduct of H. According to  H  the  said report  contained libellous matter, and so he had  sued  the president  of the enquiry.  At the trial H desired that  the report submitted by the court of enquiry should be  produced and this request was resisted by the defendant on the ground that  the  document  in question  was  a  privileged  commu- nication.  This plea was upheld.  Dallas, C. J., referred to the  precedents relevant to the decision of the  point,  and

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observed that the basis of the said precedents was that  the disclosure  would cause danger to the public good.  He  then considered the nature of the enquiry which had been directed against H, and observed that in the course of the enquiry  a number  of  persons may be called before the court  and  may give information as witnesses which they would not choose to (1) 1820) 2 Brod. & B. 130  : 129 E. R. 907 . 379 have disclosed ; but, if the minutes of the court of enquiry are  to be produced on an action brought by the party,  they reveal  the name of every witness and the evidence given  by each.  Not only this but they also reveal what has been said and  done by each member of the existing court  of  enquiry; and,  according to ,the learned judge, the reception of  the said  minutes would tend directly to disclose that which  is not permitted to be disclosed; and so, independently of  the character  of  the court the production of  the  report  was privileged   on  the  broad  rule  of  public   policy   and convenience  that matters like those covered by  the  report are secret in their nature and involve delicate enquiry  and the names of persons who ought to stand protected. The next decision to which our attention has been invited is Smith  v.  The  East India Company (1).  In  that  case  the dispute  with which the Court was concerned had arisen  with respect to a commercial transaction in which the East  India Company  bad been engaged with a third party; and  privilege was  claimed in regard to the correspondence which had  been carried oil by the defendant with the Board of Control.   It was held that the said correspondence was, on the ground  of public  policy,  a  privileged  communication,  and  so  the Company were not bound to produce or set forth the  contents of it in answer to a bill of discovery filed against them by the  third party in relation to the transaction to which  it referred.  Lord Lyndhurst upheld the claim of privilege  not because the correspondence purported to be confidential  nor because  it was official, but because of the effect  of  the provisions of c. 85 of Act 3 & 4 W. 4 on which the claim  of privilege was founded.  It was noticed that the Company had been prohibited from carrying on any commercial transactions except  for the purpose of winding up their affairs  or  for the  purposes  of the Government of India; and it  was  held that the result of the relevant provisions, and particularly of  is. 29 was that the Directors of the East India  Company were required to make communication of all their (1) [1841] 1 Ph.50: 41 E.R. (Chancery) 550. 380 acts,  transactions and correspondence of every  description to the Board of Control.  That is why a claim for  privilege in  respect  of the said correspondence  was  upheld.   This decision  shows that a claim for privilege could  have  been made  even  for  correspondence which  had  reference  to  a commercial transaction in circumstances similar to those  in that case. The  last decision on which considerable reliance  has  been placed  by Mr. Seervai is the case of Beatson v. Skene  (3). It  may  incidentally  be  pointed  out  that  Chief   Baron Pollock’s observations in this judgment are frequently cited in judicial decisions where the question of privilege  falls to  be  considered.  In that case the plaintiff had  been  a general who commanded a corps of irregular troops during the war  in  Crimea.   Complaint  having  been  made  about  the insubordination  of  troops the corps was placed  under  the superior command of V. Thereupon the plaintiff resigned  his command.  V directed S to inspect and report upon the  state of  the  corps,  and  referred  S  for  information  to  the

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defendant who was a Civil Commissioner.  The defendant, in a conversation with S, made a defamatory statement  respecting the  conduct  of the plaintiff.  The  plaintiff  brought  an action  against the defendant for slander.  The defence  set up  against the plaintiff’s claim was that what  had  passed between the defendant and S was a privileged  communication. The jury had found a verdict for the defendant.  A new trial was claimed by the plaintiff, inter alia, on the ground that the  learned judge had declined to compel the production  of certain  documents.  It appeared that the Secretary for  War had  been subpoenaed to produce certain letters  written  by the  plaintiff to him and also the minutes of the  court  of enquiry  as to the conduct of S in writing the letter to  V. The plea for a new trial was rejected on the ground that the Court was of the opinion that the non-production of the said documents furnished no ground for a new trial.  There was  a difference of opinion among the members of the Court on  the question  as  to  whether Bramwell,  J.,  was  justified  in upholding the claim of privilege., Pollock, (3)  (1860) 5 H. & N. 838: 157 E.R. 1415. 381 C.   B.,  Bramwell, B., and Wilde, B., held that  the  claim for privilege was properly upheld, whereas Martin, B.,  took a contrary view. Dealing  with  the  claim made that the  production  of  the documents would be injurious to the public service  Pollock, C.  B.,  observed that the general public interest  must  be considered paramount to the individual interest of a  suitor in  a  Court of Justice, and he posed the question:  How  is this  to be determined ?  Then Pollock, C. B., proceeded  to observe  that  the question must be determined either  by  a presiding  judge or by the responsible servant of the  Crown in  whose  custody the paper is; and he  remarked  that  the judge  would be unable to determine it without  ascertaining what the document is and why the publication of it would  be injurious  to  public service-an enquiry which  cannot  take place  in private, and which taking place in public  may  do all the mischief which it is proposed to guard against.   He further held that " the administration of justice is only  a part  of the general conduct of the affairs of any State  or nation, and we ’think is (with respect to the production  or non-production  of  a  State paper in a  Court  of  Justice) subordinate  to  the  general  welfare  of  the  community". Martin,  B., however, was of the opinion that  whenever  the judge  is  satisfied that the document may  be  made  public without  prejudice to the public service the judge ought  to compel its production notwithstanding the reluctance of  the head of the department to produce it.  It would thus be seen that  according  to  the majority view the  question  as  to whether any injury to public interest would be caused by the production  of the document could not be determined  by  the Court, because such an enquiry would tend to defeat the very purpose  for which privilege is claimed, whereas,  according to the minority view it was for the Court to hold an enquiry and determine whether any injury would follow the production of the document. Mr.   Seervai  contends  that  these   decisions   correctly represent  the  legal  position  in  regard  to  the   Crown privilege  in England in the second half of  the  Nineteenth Century, and, according to him, when the 382 Indian  Evidence  Act  was drafted by  Sir  James  Fitzjames Stephen  he  intended to make provisions in  the  Act  which would  correspond to the said position in the  English  Law. In  other  words, the argument is that ss. 123 and  162  are

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intended  to lay down that, when a privilege is  claimed  by the  State in the matter of production of  State  documents, the  total  question with  regard to the  said  claim  falls within  the  discretion  of  the  head  of  the   department concerned,  and he has to decide in his  discretion  whether the document belongs to the privileged class and whether its production would cause injury to public interest.  It is  in the  light of this background that Mr. Seervai wants  us  to construe the relevant sections of the Act. In support of this argument Mr. Seervai has also referred us to the draft prepared by Sir James Fitzjames Stephen at  the instance  of  Lord  Coleridge for adoption  by  the  English Parliament,  and has relied on Art. 112 in the  said  draft. Art. 112 provides, inter alia, that no one can be  compelled to give evidence relating to any affairs of State, or as  to official communications between public officers upon  public affairs,  unless the officer at the head of  the  department concerned  permits  him to do so.  It also  refers  to  some other matters with which we are not concerned.  This part of Art.  112 as framed by Sir James Fitzjames Stephen seems  to include the provisions of ss. 123 and 124 of the Act.  It is significant  that  there is nothing in  this  Article  which corresponds to s. 162 of the Act.  Mr. Seervai concedes that the  draft prepared by Sir James Fitzjames Stephen  was  not adopted  by Parliament, and even now there is  no  statutory law  of evidence in England; even so, he contends  that  the intention which Sir James Fitzjames Stephen had in  drafting the  relevant sections of the Indian Evidence Act must  have been similar to his intention in drafting Art. 112, and that is another fact which we may bear in mind in construing  the relevant  sections  of the Act.  We ought, however,  to  add that though Mr. Seervai elaborately argued this part of  his case  he fairly conceded that recourse to extrinsic  aid  in interpreting a statutory provisions would be justified only 383 within well recognised limits; and that primarily the effect of  the  statutory provisions must be judged on a  fair  and reasonable  construction  of the words used by  the  statute itself. Let us now turn to s. 123.  It reads thus: "  No  one shall be permitted to give any  evidence  derived from  unpublished official records relating, to any  affairs 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." This  section  refers to evidence derived  from  unpublished official  records  which have a relation to any  affairs  of State,  and  it  provides that such evidence  shall  not  be permitted  to  be given unless the head  of  the  department concerned gives permission in that behalf.  In other  words, as a result of this section a document which is material and relevant is allowed to be withheld from the Court, and  that undoubtedly  constitutes a very serious departure  from  the ordinary  rules of evidence.  It is well known that  in  the administration  of  justice  it is a  principle  of  general application  that both parties to the dispute  must  produce all the- relevant and material evidence in their  possession or their power which is necessary to prove their  respective contentions;  that is why the Act has  prescribed  elaborate rules to determine relevance and has evolved the doctrine of onus  of proof.  If the onus of proof of any issue is  on  a party  and it fails to produce such evidence, s. 114 of  the Act  justifies  the  inference that  the  said  evidence  if produced  would  be against the interest of the  person  who withholds  it.  As a result of s. 123 no such inference  can

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be drawn against the State if its privilege is upheld.  That shows  the nature and the extent of the departure  from  the ordinary rule which is authorised by s. 123. The  principle  on  which  this  departure  can  be  and  is justified  is the principle of the overriding and  paramount character  of public interest.  A valid claim for  privilege made  under s. 123 proceeds on the basis of the theory  that the production of the document in 384 that,  where a conflict arises between public  interest  and private  interest, the latter must yield to the former.   No doubt  the litigant whose claim may not succeed as a  result of the non-production of the relevant and material  document may feel aggrieved by the result, and the Court, in reaching the  said  decision, may feel dissatisfied;  but  that  will not .affect the validity of the basic principle that  public good  and interest must override considerations  of  private good  and private interest.  Care has, however, to be  taken to  see that interests other than that of the public do  not masquerade  in  the garb of public interest and  take  undue advantage  of  the provisions of s. 123.   Subject  to  this reservation  the  maxim silus populi est supreme  les  which means  that regard for public welfare is the highest law  is the basis of the provisions contained in s. 123.  Though  s. 123  does not expressly refer to injury to  public  interest that principle is obviously implicit in it and indeed is its sole foundation. Whilst we are discussing the basic principle underlying  the provisions of s. 123, it may be pertinent to enquire whether fair and fearless administration of justice itself is not  a matter  of high public importance.  Fair  administration  of justice between a citizen and a citizen or between a citizen and the State is itself a matter of great public importance; much more so would the administration of justice as a  whole be  a  matter of very high public importance ; even  so,  on principle, if there is a real, not imaginary or  fictitious, conflict  between  public interest and the  interest  of  an individual in a pending case, it may reluctantly have to  be conceded that the interest of the individual cannot  prevail over  the public interest.  If social security and  progress which are necessarily included in the concept of public good are  the  ideal  then  injury to  the  said  ideal  must  on principle be avoided even at the cost of the interest of  an individual  involved  in  a particular case.   That  is  why Courts are and ought to be vigilant in dealing with a  claim of privilege made under s. 123. If under s. 123 a dispute arises as to whether the 385 evidence  in question is derived from  unpublished  official records  that  can be easily resolved ;  but  what  presents considerable  difficulty  is  a dispute as  to  whether  the evidence in question relates to any affairs of State.   What are  the affairs of State under s. 123 ? In the latter  half of  the Nineteenth Century affairs of State may have  had  a comparatively  narrow content.  Having regard to the  notion about governmental functions and duties which then obtained, affairs  of State would have meant matters of  political  or administrative character relating, for instance, to national defence,  public  peace and security  and  good  neighbourly relations.  Thus, if the contents of the documents were such that  their  disclosure  would affect  either  the  national defence  or  public security or good  neighbourly  relations they  could  claim the character of a document  relating  to affairs  of State.  There may be another class of  documents which could claim the said privilege not by reason of  their

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contents as such but by reason of the fact that, if the said documents  were disclosed, they would materially affect  the freedom and candour of expression of opinion in the determi- nation and execution of public policies.  In this class  may legitimately  be  included  notes and minutes  made  by  the respective   officers  on  the  relevant   files,   opinions expressed,  or reports made, and gist of official  decisions reached  in  the. course of the determination  of  the  said questions  of  policy.   In the efficient  admit  of  public affairs  government  may reasonably treat such  a  class  of documents  as  confidential  and urge  that  its  disclosure should  be  prevented on the ground of  possible  injury  to public interest.  In other words, if the proper  functioning of the public service would be impaired by the disclosure of any  document  or class of documents such document  or  such class  of documents may also claim the status  of  documents relating to public affairs. It  may  be  that when the Act was  passed  the  concept  of governmental functions and their extent was limited, and  so was  the  concept  of  the  words  "  affairs  of  State   " correspondingly limited; but,. as ’is often 386 said,  words are not static vehicles of ideas  or  concepts. As  the  content  of  the  ideas  or  concepts  conveyed  by respective  words expands, so does the content of the  words keep  pace with the said expanding content of the  ideas  or concepts,,  and that naturally tends to widen the  field  of public  interest which the  section wants to  protect.   The inevitable  consequence of the change in the concept of  the functions  of the State is that the State in pursuit of  its welfare  activities  undertakes  to  an  increasing   extent activities which were formerly treated as purely commercial, and  documents  in relation to  such  commercial  activities undertaken by the State in the pursuit of public policies of social  welfare  are  also apt to  claim  the  privilege  of documents  relating  to  the affairs of  State.   It  is  in respect of such documents that we reach the marginal line in the   application  of  s.  123;  and  it  is  precisely   in determining  the  claim for privilege for  such  border-line cases that difficulty arises. It  is,  however,  necessary  to  remember  that  where  the Legislature  has  advisedly  refrained  from  defining   the expression " affairs of State " it would be inexpedient  for judicial  decisions  to attempt to put the  said  expression into  a  strait jacket of a definition  judicially  evolved. The  question  as to whether any particular  document  or  a class   of  documents  answers  the  description   must   be determined   in  each  case  on  the  relevant   facts   and circumstances adduced before the Court.  " Affairs of  State ",  according  to Mr. Seervai, are  synonymous  with  public business and he contends that s. 123 provides for a  general prohibition against the production of any document  relating to  public business unless permission for its production  is given by the head of the department concerned.  Mr.  Seervai has  argued  that documents in regard to  affairs  of  State constitute  a  genus under which there are  two  species  of documents, one the disclosure of which will cause no  injury to  public interest, and the other the disclosure  of  which may  cause injury to public interest.  In the light  of  the consequence  which  may flow from their disclosure  the  two species  of  documents  can be described  as  innocuous  and noxious  respectively.  According to Mr. Seervai the  effect of s. 123                             387 is  that  there is a general prohibition  against  the  pro-

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duction of all documents relating to public business subject to  the exception that the head of the department  can  give permission  for  the  production of such  documents  as  are innocuous  and  not  noxious.  He contends that  it  is  not possible  to imagine that the section contemplates that  the head of the department G. would give permission to produce a noxious  document.  It is on this interpretation of  s.  123 that Mr. Seervai seeks to build up similarity between s. 123 and the English Law as it was understood in 1872.  In  other words,  according  to Mr. Seervai the  jurisdiction  of  the Court  in dealing with a claim of privilege under s. 123  is very limited and in most of the cases, if not all, the Court would have to accept the claim without effective scrutiny. On  the other hand it has been urged by Mr. Sastri that  the expression  " documents relating to any affairs of  State  " should  receive  a  narrow construction; and  it  should  be confined  only to the class of noxious documents.   Even  in regard  to this class the argument is that the Court  should decide the character of the document and should not hesitate to   enquire,   incidentally  if  necessary,   whether   its disclosure  would lead to injury to public  interest.   This contention seeks to make the jurisdiction of the Court wider and  the  field of discretion entrusted  to  the  department correspondingly narrower. It  would  thus  be seen that on the  point  in  controversy between  the  parties three views are possible.   The  first view is that it is the head of the department who decides to which  class  the  document  belongs; if  he  comes  to  the conclusion  that  the  document is innocuous  he  will  give permission  to its production; if, however, he comes to  the conclusion  that  the document is noxious he  will  withhold such  permission; in any case the Court does not  materially come into the picture.  The other view is that it is for the Court  to  determine the character of the document,  and  if necessary  enquire  into the possible  consequences  of  its disclosure;  on this view the jurisdiction of the  Court  is very much wider.  A third view which does  not 388 accept  either of the two extreme positions would  be  that the  Court can determine the character of the document,  and if  it comes to the conclusion that the document belongs  to the  noxious  class  it  may leave it to  the  head  of  the department  to  decide  whether  its  production  should  be permitted or not ; for it is not  the policy of s. 123  that in  the  case  of every noxious document  the  head  of  the department must always withhold permission.  In deciding the question  as  to  which  of  these  three  views   correctly represents the true legal position under the Act it would be necessary to examine s. 162.  Let us therefore, turn to that section. Section 162 reads thus: "  A witness summoned to produce a document shall, if it  is in   his   possession   or  power,  bring   it   to   Court, notwithstanding  any  objection which there may  be  to  its production  or  to its admissibility.  The validity  of  any such objection shall be decided on by the Court. 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 on its admissibility." The first clause of s. 162 requires that a witness  summoned to  produce a document must bring it to the Court  and  then raise  an  objection against either its  production  or  its admissibility.   It  also authorises the Court,  and  indeed makes it its obligation, to decide the validity of either or both  of the said objections.  It is significant  that  the

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objections  to the production or admissibility  of  evidence specified  in  s.  162 relate to  all  claims  of  privilege provided by the relevant sections of Chapter IX of Part  III of  the Act.  Section 123 is only one of such privileges  so that  the  jurisdiction  given to the Court  to  decide  the validity  of the objections covers not only  the  objections raised under s. 123 but all other objections as well.   Take for  instance the privilege claimed under s. 124 of the  Act which provides that no public officer shall be compelled  to disclose  communications made to him in official  confidence when he considers he considers that the public interest 389 would suffer by the disclosure.  It is clear, and indeed  it is not. disputed, that in dealing with an objection  against the  production of a document raised under s. 124 the  Court would  have first to determine whether the communication  in question  has  been  made in official  confidence.   If  the answer  to  the said question is in the  negative  then  the document  has to be produced ; if the said answer is in  the affirmative  then it is for the officer concerned to  decide whether  the  document  should be disclosed  or  not.   This illustration  brings out the character and the scope of  the jurisdiction   conferred  on  the  Court  dealing  with   an objection raised under s. 162. The second clause of s. 162 in terms refers to the objection as  to  the admissibility of the document.  It seems  to  us that  this  clause  should  be construed  to  refer  to  the objections  both as to the production and the  admissibility of documents; otherwise, in the absence of any limitation on its  power  the Court would be justified in  exercising  its authority under, and discharging its obligation imposed  by, cl.  1 of s. 162 by inspecting the document while holding an enquiry  into the validity of the objection  raised  against its production under s. 123, and that would be  inconsistent with the material provision in cl. 2 of s. 162.  That is why we  hold  that  the  second  clause  covers  both  kinds  of objections.   In other words, admissibility in  the  context refers  both  to production and admissibility.   It  may  be added  that " matters of State " referred to in  the  second clause are identical with " affairs of State " mentioned  in s. 123. Reading this clause on this assumption what is its effect  ? It empowers the Court to inspect the document while  dealing with the objection; but this power cannot be exercised where the  objection  relates to a document  having  reference  to matters  of State and it is raised under s. 123.  In such  a case the Court is empowered to take other evidence to enable it to determine the validity of the objection.  Mr.  Seervai contends  that the first part of cl. 2 which deals with  the inspection  of  the document is confined  to  the  objection relating to the production of the document, 390 and  on that basis he contends that since inspection is  not permissible  in regard to the document falling under s.  123 the  Court can do nothing else but record its  approval  to, and uphold the validity of, the objection raised by the head of  the  department.  In regard to the objection as  to  the admissibility  of  the said document, however,  he  concedes that  the Court can take other evidence, if  necessary,  and then  determine  its  validity.   According  to  him,   such evidence  would  be  necessary  and  permissible  when   the objection to admissibility is based for instance on want  of stamp or absence of registration.  In our opinion, this con- struction though ingenious is not supportable on a plain and grammatical  construction of the clause read as a whole;  it

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breaks  up  the  clause artificially which  is  plainly  not justified  by rules of grammar.  We are satisfied  that  the Court  can take other evidence in lieu of inspection of  the document in dealing with a privilege claimed or an objection raised even under s. 123.  If the privileged document cannot be  inspected  the  Court may  well  take  other  collateral evidence  to  determine its character or  class.   In  other words, the jurisdiction conferred on the Court to deal  with the validity of an objection as to the production of a docu- ment  conferred  by  the first clause  is  not  illusory  or nominal  ;  it has to be exercised in  cases  of  objections raised under s. 123 also by calling for evidence permissible in  that  behalf.  It is perfectly true that in  holding  an enquiry into the validity of the objection under s. 123  the Court  cannot permit any evidence about the contents of  the document.  If the document cannot be inspected its  contents cannot  indirectly be proved ; but that is not to  say  that other  collateral  evidence  cannot be  produced  which  may assist  the  Court  in  determining  the  validity  of   the objection. This  position would be clear if at this stage  we  consider the  question as to how an objection against the  production of  document  should  be raised under S.  123.  it  is  well settled  and not disputed that the privilege should  not  be claimed  under  s. 123 because it is  apprehended  that  the document if produced would defeat the defences raised by the State.  Anxiety 391 to  suppress  a  document may be natural  in  an  individual litigant and so it is checked and kept under control by  the provisions  of  s. 114 of the Act.  Where, however,  s.  123 confers  wide powers on the bead of the department to  claim privilege on the ground that the disclosure may cause injury to  public interest scrupulous care must be taken  to  avoid making  a claim for such a privilege on the ground that  the disclosure of the document may defeat the defence raised  by the  State.  It must be clearly realised that the effect  of the  document  on the ultimate course of litigation  or  its impact  on  the head of the department or  the  Minister  in charge  of the department, or even the government in  power, has  no relevance in making a claim for privilege  under  s. 123.   The  apprehension that the disclosure  may  adversely affect  the head of the department or the department  itself or  the  Minister  or even the government, or  that  it  may provoke  public criticism or censure in the Legislature  has also no relevance in the matter and should not weigh in  the mind of the head of the department who makes the claim.  The sole  and the only test which should determine the  decision of  the head of the department is injury to public  interest and nothing else.  Since it is not unlikely that  extraneous and  collateral  purposes  may operate in the  mind  of  the person  claiming the privilege it is necessary to  lay  down certain  rules  in  respect  of  the  manner  in  which  the privilege  should be claimed.  We think that in  such  cases the privilege should be claimed generally by the Minister in charge who is the political head of the department  concern- ed;  if  not,  the Secretary of the department  who  is  the departmental  head  should  make the claim;  and  the  claim should always be made in the form of an affidavit.  When the affidavit  is  made  by the Secretary the Court  may,  in  a proper  case, require an affidavit of the Minister  himself. The affidavit should show that each document in question has been  carefully read and considered, and the  person  making the affidavit is satisfied that its disclosure would lead to public injury.  If there are a series of documents  included

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in a file it should appear from the affidavit that each  one of the documents, whose disclosure is objected to, has been 392 duly  considered by the authority concerned.  The  affidavit should  also indicate briefly within permissible limits  the reason  why  it is apprehended that their  disclosure  would lead  to injury to public interest.  This  last  requirement would be very important when privilege is claimed in  regard to  documents  which  prima, facie  suggest  that  they  are documents of a commercial character having relation only  to commercial activities of the State.  If the document clearly falls within the category of privileged documents Do serious dispute generally arises; it is only when Courts are dealing with marginal or border-line documents that difficulties are experienced  in  deciding whether the  privilege  should  be upheld  or  not, and it is particularly in respect  of  such documents  that  it  is expedient  and  desirable  that  the affidavit should give some indication about the reasons  why it  is  apprehended that public interest may be  injured  by their disclosure. It is conceded by Mr. Seervai that if the affidavit produced in  support  of  the  claim for privilege  is  found  to  be unsatisfactory  a further affidavit may be called, and in  a proper case the person making the affidavit whether be is  a Minister or the Secretary should be summoned to face  cross- examination  on the relevant points.  Mr. Seervai,  however, contends  that the object of such cross-examination must  be limited  to test the credibility of the witness and  nothing more.   We  do not see why any such a limitation  should  be imposed  on cross-examination in such a case.  It  would  be open  to the opponent to put such relevant  and  permissible questions  as  he  may  think  of  to  help  the  Court   in determining  whether the document belongs to the  privileged class  or not.  It is true that the scope of the enquiry  in such  a case is bound to be narrow and restricted ; but  the existence of the power in the Court to hold such an  enquiry will  itself  act  as a salutary  check  on  the  capricious exercise of the power conferred under s. 123; and as some of the decisions show the existence of this power is not merely a  matter  of theoretical abstraction  (Vide  for  instance, Ijjat Ali Talukdar v. Emperor (1)). (1) [1944] 1 Cal. 410. 393 Thus our conclusion is that reading ss.123 and 162  together 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  determine  the validity  of  the  objections to its  production,  and  that necessarily  involves  an enquiry into the  question  as  to whether the evidence relates to an affair of State under  s. 123 or not. In this enquiry the Court has to determine the character  or class  of the document.  If it comes to the conclusion  that the  document  does not relate to affairs of State  then  it should  reject  the  claim  for  privilege  and  direct  its production.  If it comes to the conclusion that the document relates  to the affairs of State it should leave it  to  the head  of the department to decide whether he  should  permit its  production  or  not.   We  are  not  impressed  by  Mr. Seervai’s argument that the Act could not have intended that the head of the department would permit the production of  a document  which  belongs  to  the  noxious  class.   In  our opinion,  it is quite Conceivable that even in regard  to  a

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document  falling within the class of documents relating  to affairs of State the head of the department may legitimately take the view that its disclosure would not cause injury  to public  interest.  Take for instance the case of a  document which  came  into  existence  quite  some  time  before  its production  is called for in litigation; it is not  unlikely that  the  head of the department may feel that  though  the character  of  the document may  theoretically  justify  his refusing  to  permit its production, at the  time  when  its production  is  claimed  no public injury is  likely  to  be caused.  It is also possible that the head of the department may  feel that the injury to public interest which the  dis- closure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the  direct injury to the cause of justice which may  result from its non-production he may 394 decide   to  permit  its  production.   In  exercising   his discretion  under  s.  123 in many cases  the  head  of  the department  may  have  to weigh the pros  and  cons  of  the problem  and objectively determine the nature and extent  of the  injury to public interest as against the      injury to the  administration of justice.  That is why we think it  is not unreasonable to hold that s. 123 gives discretion to the bead  of  the  department  to permit  the  production  of  a document  even though its production may theoretically  lead to some kind of injury to public interest.  While construing ss. 123 and 162, it would be irrelevant to consider why  the enquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a  matter of  policy  on  which  the Court does  not  and  should  not generally express any opinion. In  this connection it is necessary to add that  the  nature and  scope  of  the enquiry which, in  our  opinion,  it  is competent  to  the Court to hold under s. 162  would  remain substantially  the same whether we accept the wider  or  the narrower  interpretation  of  the  expression  "affairs   of State".   In the former case the Court will  decide  whether the  document  falls in the class of  innocuous  or  noxious documents;  if  it finds that the document  belongs  to  the innocuous  class it will direct its production; if it  finds that the document belongs to the noxious class it will leave it  to the discretion of the head of the department  whether to  permit its production or not.  Even on the  narrow  con- struction  of  the expression "affairs of State"  the  Court will  determine its character in the first instance;  if  it holds  that it does not fall within the noxious class  which alone is included in the relevant expression on this view an order for its production will follow; if the finding is that it  belongs  to  the noxious class the  question  about  its production will be left to the discretion of the head of the department.   We  have already stated how  three  views  are possible  on  this  point.  In our  opinion,  Mr.  Seervai’s contention  which  adopts one extreme position  ignores  the effect  of  s. 162, whereas the contrary position  which  is also extreme in character ignores the provisions of s.  123. The view                             395 which  we  are  disposed to take  about  the  authority  and jurisdiction  of  the Court in such matters is  based  on  a harmonious construction of s. 123 and s. 162 read  together; it recognises the power conferred on the Court by cl. (1) of s.  162, and also gives due effect to the discretion  vested in the head of the department by s. 123. It would thus be clear that in view of the provisions of  s.

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162 the position in India in regard to the Court’s power and jurisdiction  is  different  from  the  position  under  the English  Law as it obtained in England in 1872.  It  may  be true to say that in prohibiting the inspection of  documents relating to matters of State the second clause of s. 162  is intended  to repel the minority view of Baron Martin in  the case  of Beatson (1).  Nevertheless the effect of the  first clause  of s. 162 clearly brings out the departure  made  by the  Indian 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.  That is why  we  think that  the arguments so elaborately and ingeniously built  up by Mr. Seervai on the basis of the background of the  Indian Evidence  Act breaks down in the light of the provisions  of s. 162.  We may add that in substance and broadly stated the consensus  of judicial opinion in this country is in  favour of this conclusion. (Vide: e.g., Kaliappa Udayan v.  Emperor (2); R. M. D. Chamarbaugwala v. Y. R. Parpia (3);  Governor- General  in Council v. H. Peer Mohd.  Khuda Bux & Ors.  (4); The Public Prosecutor, Andhra v. Venkata Narasayya (5);  and ljjat  Ali Talukdar v. Emperor (6)).  Therefore we think  it is  unnecessary to refer to these decisions in detail or  to examine  the  reasons  given  by  them  in  support  of  the conclusion reached by them. There  are, however, two decisions which have struck a  note of  dissent, and so it is necessary to examine them.  In  W. S.  Irwin  v. D. J. Reid (7) it appears that the  Court  was incidentally dealing with (1)  (1860) 5 H. & N. 838 ; 157 E. R. 1415. (2)  A.I.R. 1937 Mad. 492. (3)  A.I.R. 1950 Bom. 230. (4)  A.I.R. 1950 East Punjab 228. (5)  A.I.R. 1957 Andhra 486. (6)  I.L.R. [1944] 1 Cal- 410. (7)  (192I) I.L.R- 48 Cal. 304- 396 the scope and effect of s. 123 of the Act.  In that case the plaintiff was one of the members of the committee, known  as the Champaran Agrarian Enquiry Committee, and as such member he had effected a settlement between the indigo planters and the  tenants        about  the  partial   refund of tawan or remission  of  sarabeshi.  The defendant Irwin  wrote  three letters  to   the members after the settlement  which  taken together would import that his consent to the settlement was obtained  by  misrepresentation  and  all  facts  were   not disclosed to him.  Thereupon Reid filed a suit claiming  Rs. 50,000  as  damages  against  Irwin  for  making  the   said defamatory statements which according to him greatly injured his  credit and reputation and had brought him  into  public odium and contempt.  It appears that at the trial an attempt was made to compel the production of the minutes of the com- mittee.  The, said attempt failed because the Government  of Bihar and Orissa claimed privilege under s. 123.  In  appeal it was urged that the privilege should not have been upheld, but  the  appellant’s plea was not accepted  by  the  Court. "The  public officer concerned", observed Mookerjee,  A.  C. J.,  "and  not the judge is to decide whether  the  evidence referred  to shall be given or withheld.  If any other  view were  taken the mischief intended to be avoided  would  take place as the judge could not determine the question  without ascertaining the contents of the document, and such enquiry, if  it did take place, must, for obvious reasons take  place in  public".  In support of this decision the learned  judge referred  to  some English decisions; amongst them  was  the case  of Beatson v. Skene (1).  It would be noticed that  in

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making  these  incidental  observations the  Court  has  not considered  the  true effect of the provisions  of  s.  162. Indeed  no  reference was made to the said section  and  the matter  does  not appear to have been seriously  argued  and naturally,  because  the point was not directly  raised  for decision.  In this connection we ought to point out that  in a  subsequent decision of the said High Court in  Ijjat  Ali Talukdar’s case (2) a contrary view has been (1) (1860) 5 H.     & N. 838: 157 E.R. 1415. (2) I.L.R.  [1944] I Cal. 410. 397 taken  and it is the subsequent view which has prevailed  in the Calcutta High Court thereafter. In  Khawaja Nazir Ahmad v. The Crown (1) the High  Court  of Judicature  at  Lahore  has held that when  a  privilege  is claimed  under s. 123 the Court simply gives effect  to  the decision  of  the head of the department by adding  its  own command  to  it but the Court. has no power to  examine  the document   in  order  to  verify  the  correctness  of   the allegations  or  the  grounds  on  which  the  privilege  is claimed.   Abdur Rahman, J., who delivered the  judgment  of the  Bench in that case, has considered the relevant  Indian and   English  decisions,  and  has  based  his   conclusion substantially  on  the  judgment of the House  of  Lords  in Duncan  v.  Cammell Laird & Co. Ltd. (2), to which  we  will presently  refer.   The learned judge appears to  have  con- strued  s. 162 in the manner suggested by Mr.  Seervai.   In fact Mr. Seervai’s argument was that the construction placed by Abdur Rahman, J. on s. 162 had not been considered by the other   Indian  decisions  when  they  brushed   aside   his conclusion.   "I  feel convinced", said  Abdur  Rahman,  J., "that  the objection as to the production of  the  document, apart  from its admissibility (for want of  registration  or contravening  the  rule as to when secondary evidence  of  a document  can be admitted-if the document is merely  a  copy and  not original) can only be decided by its inspection  by the  Court, followed, as it must necessarily. have been,  by an  order  of production, although not in the sense  of  its contents  having been disclosed to the party  summoning  the document  at  any  rate at that  stage".   We  have  already indicated  our  reasons for not  accepting  this  artificial construction of the second clause in s. 162.  This  decision also  has been dissented from by a Full Bench of the  Lahore High  Court in Governor-General in Council v. H. Peer  Mohd. Khuda Bux & Ors. (3) and the view taken by the Full Bench in that case prevails in the Punjab High Court ever since. In  the  course  of arguments before us a  large  number  of English decisions have been cited by the learned (1) (1945) I.L.R. 26 Lah. 219.    (2) [1942] A.C. 624.               (3) A.I.R. 1950 East Punjab 228. 398 counsel  appearing for both the parties.  Having  regard  to the fact that our decision ultimately rests, as it must,  on the  construction of the relevant provisions of the Act,  we do not think it necessary to refer to all the cases to which our attention was drawn; we propose to confine ourselves  to three  decisions which have made a substantial  contribution to the discussion of the problem, and which represent  three distinct  and  different trends of judicial opinion  on  the point with which we are dealing. The  first case to which we would refer is the  decision  of the Privy Council in Robinson v. State of South Australia In that case the appellant had brought an action in the Supreme Court  of  South  Australia  against  the  respondent  State claiming damages for alleged negligence in the care of wheat

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placed in the control of the State under the Wheat  Harvests Acts,  1915-17.  Upon an order for discovery the  respondent State,  by  an affidavit made by a  civil  servant,  claimed privilege  in  respect  of  1892  documents  tied  in  three bundles,  and  stated  to  be  State  documents   comprising communications between officers administering the department concerned.  There was exhibited to the affidavit a minute by the  responsible  Minister  stating, inter  alia,  that  the disclosure  of  the  documents  would  be  contrary  to  the interests  of  the State and of the public.  The  claim  for privilege  had been upheld by the Australian Courts  but  it was rejected by the Privy Council which held that the minute was inadequate to support the claim; it was too vague in the circumstances  of the case, and was not a statement on  oath showing that the Minister had himself considered each of the documents, or indicating the nature of the suggested  injury to  the  interests  of  the  public.   The  Privy   Council, therefore,   directed  that  the  Supreme  Court  of   South Australia should exercise its power under O. 31, r. 14, sub- r.  (2), to inspect the documents, because it  thought  that the said course was less likely to cause delay than an order for  a  further  and better  affidavit  of  documents.   The litigation  in  that  case  had  been  preceded  by  another litigation, and on the (1) [1931] A.C. 704. 399 facts  thus disclosed the Privy Council was  satisfied  that the action in question was one of a large number which  were then  pending,  and  against  which  a  similar  relief  was claimed,  all  being alike dependent for  success  upon  the establishment of the same facts.  That is how full discovery by  the respondent had become "the immediately  vital  issue between the parties". Dealing  with the merits of the privilege the Privy  Council cited with approval Taylor’s observation that "the principle of  the  rule is concern for public interest, and  the  rule will  accordingly be applied no further than the  attainment of   that  object  requires"(1).   Lord   Blanesburgh,   who delivered the judgment of the Board observed that "it cannot be assumed that documents relating to trading, commercial or contractual activities of the State can never be claimed  to be  protected  under this head of privilege", but  he  added that  "the  cases in which this is so must, in view  of  the sole  object  of the privilege, and especially  in  time  of peace,  be rare indeed".  Then he referred to the fact  that in view of the increasing extension of State activities into the  spheres  of trading business and commerce, and  of  the claim  of privilege in relation to the  liabilities  arising therefrom which were frequently put forward, it is necessary for  the  Courts  to  remember that  while  they  must  duly safeguard genuine public interests they must see to it  that the  scope  of  the  admitted  privilege  is  not,  in  such litigation,  extended.   The judgment then proceeds  to  add that in truth the fact that documents if produced might have any  such effect upon the fortunes of the litigation  is  of itself a compelling reason for their production-one only  to be  overborne by the gravest considerations of State  policy or  security.  Then the power of the Court to call  for  the production of documents for which privilege was claimed  was examined  in  the light of previous decisions,  and  in  the light  of  the  provisions  of O. 31,  r.  14,  sub-r.  (2). "Where, as in the present case", it was observed, "the State is  not  only  sued  as defendant  under  the  authority  of statute,  but is in the suit bound to give discovery,  there seems little, if any,

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(1) Taylor on "Evidence", s.939. 400 reason why the Court in relation to this privileged class of its  documents  should have any less power than  it  has  to inspect  any  other  privileged  class  of  its   documents, provided  of course, that such power be exercised so as  not to  destroy the protection of the privilege in any  case  in which it is found to exist".  The procedure which should  be adopted  in claiming the privilege was then considered,  and it was held that the affidavit produced, which in its  sweep covered  no fewer than 1892 documents in number, was of  the vaguest  generality and as such unsatisfactory.   The  Privy Council then considered the question as to whether a further opportunity  should be given to the State to make  a  better affidavit  but  it thought that it would be  inexpedient  to adopt  such  a  course because  it  ,would  involve  further serious  delay, "without, it may be, advancing  any  further the  final solution to the question at issue".  That is  why the Supreme Court was asked to exercise its power under  the relevant  rule  to  inspect the documents  and  then  decide whether  the  privilege  should be upheld  or  not.   It  is significant  that  even when giving such a  direction  their Lordships  took the precaution of adding that the judge,  in giving  his decision as to any document, will be careful  to safeguard  the  interest of the State and will not,  in  any case  of doubt, resolve the doubt against the State  without further  enquiry from the Minister.  It only remains to  add that  so  far as Australia is concerned it does  not  appear that  there is any statutory provision corresponding  to  s. 162  of  the  Act,  and so, even  after  this  judgment  was pronounced  by the Privy Council, Courts in India  have  not given effect to the operative part of the order in regard to the  inspection of the document by Courts having  regard  to the statutory prohibition imposed by s. 162 in that behalf. This  pronouncement  of the Privy Council  was  subsequently criticised by the House of Lords in Duncan & Anr. v. Cammell Laird & Co. Ltd. (1).  It appears that the submarine  Thetis which  had been built up by the respondents  under  contract with  the Admiralty was undergoing her submergence tests  in Liverpool Bay, and, while engaged in the operation of a                             401 trial drive, sank to the bottom owing to the flooding of her two  foremost  compartments  and failed  to  return  to  the surface  with  the result that all who were in  her,  except four survivors were overwhelmed.  This unfortunate  accident gave  rise  to  a  large  number  of  actions  against   the respondents  for damages for negligence.  Pending the  trial of  the  said  claims the  plaintiffs  wanted  discovery  of certain   specified  documents  to  which   the   defendants objected, and the objection of the defendants was  supported by Mr. Alexander who was the First Lord of the Admiralty ’in his  affidavit  made in that behalf.  The documents  to  the production  of which an objection was thus  raised  included (either in original or as a copy) the contract for the  hull and  machinery of the Thetis and other letters and  reports. The  Master before whom the objection was raised refused  to order  inspection.  His decision was confirmed  by  Hilbery, J., sitting in Chambers, and the Court of Appeal unanimously confirmed the judge’s order.  The plaintiffs, however,  were given leave to appeal to the House of Lords; that is how the matter reached the House of Lords. Viscount  Simon, L. C., who pronounced a composite  judgment on behalf of himself and on behalf of Lord Thankerton,  Lord Russel of Killowen and Lord Clauson, exhaustively considered the whole law on the subject of Crown Privilege; and in  his

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speech he made the categorical statement that in his opinion the  Privy Council was mistaken in regarding the  Australian rule of procedure as having any application to the  subject- matter and in ordering the inspection of the documents which were  in question before the Privy Council.  Viscount  Simon began  his  speech with the consideration  of  the  previous decisions of the House of Lords, and held that the matter in substance was concluded by previous authorities in favour of upholding  the objections.  He observed that the common  law principle  is  well established that, where the Crown  is  a party  to a suit, discovery of documents cannot be  demanded from  it  as  a matter of right,  though  in  practice,  for reasons of fairness and. in the 51 402 interests  of justice, all proper disclosure and  production would  be  made.   As a result of  the  examination  of  the several decisions Viscount Simon deduced the principle which has  to be applied in such cases in these words:  "Documents otherwise  relevant  and liable to production  must  not  be produced if the public interest requires that they should be withheld.   This test may ’be found to be  satisfied  either (a)  by  having  regard to the contents  of  the  particular document, or (b) by the fact that the document belongs to  a class which, on grounds of public interest, must as a  class be with held from production".  In this connection he stated that public interest may be damnified where disclosure would be  injurious  to national defence, or  to  good  diplomatic relations,  or  where  the practice of keeping  a  class  of documents secret is necessary for the proper functioning  of the  public  service.   Then he  proceeded  to  examine  the question  as to whether when objection has been  duly  taken the judge should treat it as conclusive; and his answer  was that an objection validly taken to production on the  ground that   this  would  be  injurious  to  public  interest   is conclusive;  but, of course, he proceeded to make  pertinent observations  for  the guidance of those who  are  entrusted with  the power to make a claim.  It would be  noticed  that even this decision would not be of material assistance to us because,  as  we have repeatedly pointed out,  our  decision must  ultimately rest on the relevant  statutory  provisions contained in the Indian Evidence Act; and so, the conclusion that a valid certificate issued by the Minister in charge is conclusive  may  not be strictly applicable to a  claim  for privilege  similarly made by a Minister in charge in  India. As  we  have  already  indicated,  the  preliminary  enquiry contemplated by the first clause of s. 162 has to be held by the Court, and it is after the Court has found in favour  of the character of the document pleaded by the State that  the occasion  arises for the head of the department to  exercise his  discretion conferred by s. 123.  Incidentally,  we  may point out that Lord Thankerton and Lord Russel of  Killowen, who were parties to this                             403 decision,  were  also parties to the decision of  the  Privy Council in the case of Robinson (1). In regard to the decisions in the cases of Robinson (1)  and Duncan (2 ) respectively, it may be permissible to make  one general observation.  In both these cases the nature of  the documents for which privilege was claimed, the time at which the  dispute arose and the other  surrounding  circumstances were very unusual and special though in different ways,  and so, as often happens, the shift in emphasis from one  aspect of  the  same principle to another and the  strong  language used  took  colour  from the nature of  the  special  facts.

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Incidentally  we  may  also add that  the  epilogue  to  the decision  in Robinson’s case (1) illustrates  what  untoward consequences  may  follow from an-erroneous  decision  or  a miscalculation as to the injury to public interest which may be caused by disclosure.* Nearly  five years after the judgment in Duncan’s  case  (2) was  pronounced, the Crown Proceedings Act (10 & 11 Geo.  6, c.  44)  was  passed  in  1947,  and  the  Crown   Privilege recognised under the common law of England is now  regulated by  s.  28  of the said Act.  Section 28  which  deals  with discovery provides in substance that subject to the rules of court in any civil proceedings there specified the Crown may be required by the Court to make discovery of documents  and produce   documents  for  inspection,  and  that   in   such proceedings  the  Crown  may  also  be  required  to  answer interrogatories.   This legislative invasion of the  Crown’s prerogative  is,  however, subject to the proviso  that  the said  section shall be without prejudice to any rule of  law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the  question would be injurious to public interest.  It would be  noticed that  s.  28  read with the proviso confers  on  the  Courts specified by it powers which are much narrower than (1) [1931] A.C. 704.             (2) [1942] A.C. 624. *For a graphic account of the aftermath of the enquiry  held by  the  Supreme Court of South Australia, pursuant  to  the Privy  Council’s decision in Robinsons’s case (i), see  "Law and Orders" by Sir C. K. Allen, 2nd Ed.,P.   374,  foot-note 5a. 404 those which are conferred on the Indian Courts under cl. 1 of s. 162 of the Act. In  the  decision in Duncan’s case (1)  Viscount  Simon  had assumed  that the law as laid down by the said decision  was equally  applicable to Scotland.  This assumption  has  been seriously  challenged  by another decision of the  House  of Lords in Glasgow Corporation v. Central Land Board (2).   In that case Viscount Simonds has referred to a large number of earlier  decisions  dealing with the relevant law as  it  is administered  in Scotland and commented on the  decision  in Duncan’s  case  (1) by saying that the observations  in  the said  case, in so far as they relate to the law of  Scotland must  be  regarded as obiter dicta.  "In the course  of  the present  appeal",  added  Lord Simonds,  "we  have  had  the advantage  of an exhaustive examination of the relevant  law from the earliest times, and it has left me in no doubt that there always has been, and is now, in the law of Scotland an inherent  power  of  the  Court  to  override  the   Crown’s objections to produce documents on the ground that it  would injure the public interest to do so", though he added that " very  rarely  in recent times has this inherent  right  been exercised".  Lord Radcliffe, who agreed with the  conclusion of the House with some reluctance, has made strong  comments on  the plea of privilege which is raised on behalf  of  the Crown in such matters.  Adverting to the contention that the public  interest  may be injured by the  production  of  the document  Lord Radcliffe observed that more than one  aspect of the public interest may have to be surveyed in  reviewing the question whether a document which would be available  to a party in a civil suit between private parties is not to be available  to  the party engaged in a suit with  the  Crown. According  to  Lord  Radcliffe it was  not  unreasonable  to expect  that  the Court would be better qualified  than  the Minister  to  measure the importance of such  principles  in

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application to the particular case that is before it.  It is on that assumption that the Scottish Law has reserved to the Courts the duty of making some assessment of the relative (1) [1942] A.C. 624.  (2) (1956) Soots Law Times Reports 41.                             405 claims  of  the different aspects of public  interest  where production of a document is objected to by the Crown.  Then, in  his characteristic style Lord Radcliffe has observed  "I should think it a very great pity indeed if a power of  this kind, a valuable power, came to be regarded as a mere  ghost of  theory  having no practical substance,  and  the  Courts abdicated  by  disuse in the twentieth century  a  right  of control  which their predecessors in the  earlier  centuries have  been insistent to assert".  The learned law  Lord  has also made some strong comment on the formula which has  been evolved  by  Viscount Simon in Duncan’s case  (1),  and  had stated,   that   the  phrase  "necessary  for   the   proper functioning of the public service" is a familiar one, and  I have a misgiving that it may become all too familiar in  the future".  The result of this decision appears to be that  in Scotland,  where  the  common  law  doctrine  of  the  Crown Privilege  is  not  strictly enforced, a  privilege  can  be claimed  by the Minister on grounds set forth by him in  his affidavit.  The certificate would be treated as very  strong presumptive  evidence of the claim made but the Court  would nevertheless  have  inherent  power  to  override  the  said certificate.  It is unnecessary for us to consider the  true nature  and  effect of this power because in India  in  this particular  matter we are governed by the provisions  of  s. 162  which confer power on Courts to determine the  validity of the objection raised under s. 123, and so there would  be no occasion or justification to exercise any inherent power. Though we do not propose to refer to the other decisions  to which our attention was invited, we may incidentally observe that the decision in Duncan’s case (1) has been followed  by English  Courts,  but  sometimes  the  learned  judges  have expressed  a sense of dissatisfaction when they  are  called upon  to  decide  an individual dispute in  the  absence  of relevant and material documents. (Vide: Ellis v. Home Office (2)).  Before we part with this topic we may also  indicate, that  it  appears  that  in the  long  history  of  reported judicial decisions only on three occasions the right to (1) [1942] A.C. 624.      (2) [1953] 2 All E. R. 149. 406 inspect documents has been either theoretically asserted  or actually  exercised in England.  In Hennessy v. Wright  (1), Field, J., observed that he would consider himself  entitled to  examine  privately the documents to  the  production  of which the Crown objected, and to endeavour by this means and that  of  questions addressed to the objector  to  ascertain whether  the fear of injury to public service was  the  real motive in objecting.  In point of fact, however, the learned Judge  did not inspect the documents.  From the judgment  of the Court of Appeal in Asiatic Petroleum Co., Ltd. v. Anglo- Persian Oil Co., Ltd. (2), it appears that Scrutton, J., had inspected  the  documents  to the  production  of  which  an objection was raised.  The learned judge has, however, added that  having  seen  the  documents  he  thought  that   the. government  may be right in the view that they ought not  to be  produced to others, and that he would not take the  res- ponsibility  of  ordering them to be  produced  against  the wishes  of the government.  In Spigelmann v. Hocker  &  Anr. (3),   Macnaghten,  J.,  inspected  the  document   to   the production of which an objection was raised.  The result  of these  decisions  is  that in England  a  valid  certificate

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issued  by the Minister in support of the privilege  claimed is  conclusive; while in Scotland, though it would  normally be treated as such, Courts reserve to themselves an inherent right to revise or review the certificate in a proper case. It now remains to consider whether the High Court was  right in  holding that the privilege claimed by the  appellant  in respect of the four documents in question was not justified, and that takes us to the consideration of the relevant facts in the present appeal.  The documents of which discovery and inspection   were   claimed  are  thus  described   by   the respondent: (1)  Original order passed by Pepsu Government on  September 28,  1955,  on  the  representation  dated  May  18,   1955, submitted by Sodhi Sukhdev Singh; (2)  Original order passed by the Pepsu Government (1) (1888) 21 Q.B. 509.     (2) [1916] 1 K.B. 822. (3) (1933-34) 1 Times L.R. 87. 407 on  March  8/9,  1956, reaffirming the  decision  passed  on September 28, 1955, referred to above; (3)  Original order passed by the Pepsu Government in  their cabinet  Meeting  dated  August  11,  1956,  revising  their previous order on the representation of Sodhi Sukhdev  Singh dated May 18, 1955; and (4)  Report   of  the  Public  Service  Commission  on   the representation  of Sodhi Sukhdev Singh dated May  18,  1955, after the Pepsu Government’s decision on September 28, 1955. In  dealing  with this question and in reversing  the  order passed  by the trial court by which the privilege  had  been upheld, the High Court has purported to apply the definition of the expression "affairs of State" evolved by Khosla,  J., as  he then was, in the case of Governor-General in  Council v.  H. Peer Mohd. Khuda Bux & Ors. (1): "It  is,  therefore, sufficiently  clear",  said  the learned  judge,  "that  the expression  "affairs  of  State" as used in  s.  123  has  a restricted meaning, and on the weight of authority, both  in England  and  in this country, I would  define  "affairs  of State"  as matters of a public nature in which the State  is concerned,  and the disclosure of which will be  prejudicial to  the public interest or injurious to national defence  or detrimental  to  good  diplomatic relations".   It  is  this definition  which  was criticised by Aft.   Seervai  on  the ground  that  it purported to describe  the  genus,  namely, affairs of State, solely by reference to the characteristics of  one of its species, namely, documents  whose  disclosure was  likely  to  cause injury to  public  interest.   Having adopted this definition the High Court proceeded to  examine whether  any injury would result from the disclosure of  the documents, and came to the conclusion that it was  difficult to  sustain  the plea that the production of  the  documents would  lead  to  any  of  the  injuries  specified  in   the definition  evolved  by Khosla, J. On this ground  the  High Court allowed the contention of the respondent and  directed the State to produce the documents in question. We have already held that in dealing with the (1)  A.I.R. 1950 East Punjab 228. 408 question  of privilege raised under s. 123 it is not a  part of the Court’s jurisdiction to decide whether the disclosure of  the  given document would lead to any injury  to  public interest;,  that is a matter for the head of the  department to  consider  and  decide.   We  have  also  held  that  the preliminary  enquiry  where the character of  the  documents falls  to  be  considered is  within  the  jurisdiction  and competence  of the Court, and we have indicated  how  within

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the narrow limits prescribed by the second clause of a.  162 such  an  enquiry  should be conducted.   In  view  of  this conclusion we must hold that the High Court was in error  in trying  to enquire into the consequences of the  disclosure; we may add that the decision of the High Court suffers  from the  additional  infirmity that the said  enquiry  has  been confined  only to the specified classes of injury  specified by Khosla, J., in his definition which cannot be treated  as exhaustive.   That  being  so, we  think  the  appellant  is justified  in  complaining  against  the  validity  of   the decision of the High Court. Let  us then consider whether the documents in  question  do really  fall  within the category of documents  relating  to "affairs of State".  Three of the documents the discovery of which  the  respondent  claimed are  described  as  original orders  passed by the Pepsu Cabinet on the three  respective dates.  It is difficult to understand what was exactly meant by  describing the said documents as original orders  passed on those dates; but quite apart from it the very description of  the documents clearly indicates that they are  documents relating  to  the discussions that took  place  amongst  the members  of  the Council of Ministers  and  the  provisional conclusions  reached by them in regard to  the  respondent’s representation  from  time to time.   Without  knowing  more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody  the minutes  of  the meetings of the Council  of  Ministers  and would indicate the advice which the Council ultimately  gave to  the Rajpramukh.  It is hardly necessary to  recall  that advice given by the                           409 Cabinet to the Rajpramukh or the Governor is expressly saved by  Art. 163, sub-art. (3), of the Constitution; and in  the case  of  such  advice  no  further  question  need  to   be considered.  The same observation falls to be made in regard to  the advice tendered by the Public Service Commission  to the  Council of Ministers.  Indeed it is very  difficult  to imagine  how  advice  thus tendered by  the  Public  Service Commission  can be excluded from the protection afforded  by s. 123 of the Act.  Mr. Gopal Singh attempted to argue  that before  the final order was passed the Council of  Ministers had decided to accept the respondent’s representation and to reinstate  him, and that, according to him,  the  respondent seeks  to prove by calling the two original orders.  We  are unable to understand this argument.  Even if the Council  of Ministers   had  provisionally  decided  to  reinstate   the respondent   that  would  not  prevent  the   Council   from reconsidering the matter and coming to a contrary conclusion later  on, until a final decision is reached by them and  is communicated  to  the Rajpramukh in the form of  advice  and acted upon by him by issuing an order in that behalf to  the respondent.   Until the final order is thus communicated  to the  respondent it would be open to the Council to  consider the  matter  over  and over again, and the  fact  that  they reached provisional conclusions on two occasions in the past would not alter the character of the said conclusions.   The said  conclusions, provisional in character, are a  part  of the  proceedings  of the Council of Ministers and  no  more. The  report received by the Council from the Public  Service Commission  carries on its face the character of a  document the  disclosure  of  which would lead to  injury  of  public interest.   It  falls in that class of  document  which  "on grounds of public interest must as a class be withheld  from production".   Therefore,  in our  opinion,  the  conclusion appears  inescapable  that  the documents  in  question  are

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protected  under s. 123, and if the head of  the  department does  not  give permission for their production,  the  Court cannot compel the appellant to produce them.  We should have 52 410 stated  that the two affidavits made by the Chief  Secretary in  support of the plea of the claim of privilege  satisfied the  requirements which we have laid down in  our  judgment, and  no comment can be effectively made against  them.   The argument  that in its pleadings the appellant  accepted  the description  of the respondent that the  document  contained orders is hardly relevant or material.  The affidavits  show what  these  documents purport to be and that leads  to  the inference which irresistibly follows from the very  descrip- tion of the documents given by the respondent himself in his application  by  which he called for  their  production  and inspection. Before we part with this appeal we may incidentally refer to another  point which was argued at some length before us  by both  the learned counsel for interveners.   Mr.  Viswanatha Sastri  contended  that  the provisions of  s.  162  can  be invoked only where a witness has been summoned to produce  a document and a privilege is claimed by him in respect of it. According to him the said provisions cannot be invoked where the Court is called upon to decide the validity of the claim of  privilege at the stage of inspection of  the  documents. In  other words, where the State is a party to the suit  and an  application for inspection of documents is made  against it by its opponent, and a claim for privilege is put forward by the State, the Court is entitled under 0. 11, r. 19, sub- a. (2), to inspect the documents for the purpose of deciding as  to the validity of the claim of privilege.  That is  the clear  provision of 0. 11, r. 19, sub-r. (2), and the  power conferred on the Court by the said provision is not  subject to  s. 162 of the Act.  This position is seriously  disputed by Mr.  Seervai. The  procedural law in regard to discovery,  production  and inspection  of documents is contained in 0. 11, rr. 12,  21. It  is true that 0. 11, r. 19, sub-r. (2) provides  that  in dealing  with a claim of privilege "it shall be  lawful  for the  Court  to  inspect  the document  for  the  purpose  of deciding  the  validity  of the claim  of  privilege".   The question is, what is the effect of this provision when it is considered along with s. 162 of the Act ?                             411 Before  briefly indicating our conclusion on this  point  we may  observe  that this contention does not appear  to  have been raised in any judicial decisions to which our attention was drawn.  Indeed it appears generally to have been assumed that in the matter of deciding a claim for privilege made by the  State the provisions of s. 162 of the Act  would  apply whether  the  said  claim is made at the  earlier  stage  of inspection  or  later when evidence  is  formally  tendered. That, however, is another matter. It  is true that s. 162 in terms refers to a witness who  is summoned  to  produce  a  document  and  provides  for   the procedure  which  should  be adopted and  the  powers  which should  be exercised in dealing with a privilege claimed  by such a witness; but there is no doubt that the provisions of the Act are intended to apply to all judicial proceedings in or before any Court; that in terms is the result of s. 1  of the  Act, and the proceedings before the Court under 0.  11, r. 19, are judicial proceedings to which prima facie s.  162 would.  apply.  Similarly, s. 4, sub-s. (1), of the Code  of Civil Procedure provides, inter alia, that in the absence of

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any specific provisions to the contrary nothing in the  Code shall be deemed to limit or otherwise affect any special  or local  law in force; that is to say, in the absence  of  any provisions  to the contrary the Evidence Act would apply  to all the proceedings governed by the Code.  Besides, it would be very strange that a claim for privilege to which 0. 1  1, r.  19 sub-r. (2), refers is allowed to be raised  under  a. 123 of the Act, whereas, the procedure prescribed by the Act in dealing with such a claim by s. 162 is inapplicable.   If s.  123 of the Act applies and a claim for privilege can  be raised  under it, prima facie there is no reason why s.  162 should not likewise apply. But  apart  from these general considerations  the  relevant scheme of the Code of Civil Procedure itself indicates  that there is no substance in the argument raised by Mr.  Sastri. Order  27 prescribes the procedure which has to  be  adopted where  suits  are  filed by ,or against  the  government;  a plaint  or  written statement proposed to be  filed  by  the government has to be 412 signed  under r. 1 by such person as the government  may  by general or special order appoint in that behalf, which means that  the  government can only act through  its  agent  duly appointed in that behalf.  The Minister who is the political head  of  the  department  or  the  Secretary  who  is   its administrative  head is not the government; and so  whenever the  government sues or is sued and makes its  pleadings  it always acts through its duly authorised agents.  The  scheme of  the  relevant  rules of 0. 27 is  consistent  with  this position. Section 30 of the Code empowers the Court either on its  own motion or on an application of a party to issue summonses to persons whose attendance is required either to give evidence or  produce  document,  and to order that any  fact  may  be proved  by an affidavit.  Order 4, r. 5, contemplates  that, at  the  time  of  issuing the summons,  the  Court  has  to determine  whether the summons should be for the  settlement of  issues only or for the final disposal of the  suit;  and the relevant form of the summons (No.  1 in First  Schedule, Appendix  B)  shows that in the case of a suit  against  the government of a State a summons can be issued to compel  the attendance  of  any  witness  and  the  production  of   any document.   This  shows that where the State is  a  party  a summons  may  have to be issued to its  appropriate  officer calling  upon him to produce the documents  for  inspection. The  provisions  of  rr. 14, 15 and 16 of 0.  11  show  that affidavits  have to be filed by the parties, and the  filing of affidavits which is permitted by 0. 19 is undoubtedly one mode  of giving evidence.  Order 16, r. 1, provides for  the issue  of a summons to persons whose attendance is  required inter alia to produce documents; and r. 21 of the said order expressly  provides  that  where  any party  to  a  suit  is required  to  give  evidence or to produce  a  document  the provisions as to witnesses shall apply to him so far as  are applicable.   Thus  there can be little doubt that  where  a privilege  is  claimed at the stage of  inspection  and  the Court  is  required  to adjudicate upon  its  validity,  the relevant provisions of the Act 413 under  which  the privilege is claimed as well as  the  pro- visions  of s. 162 which deal with the manner in  which  the said privilege has to be considered are equally  applicable; and if the Court is precluded from inspecting the privileged document  under  the  second  clause  of  s.  162  the  said prohibition  would apply as much to a privilege  claimed  by

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the  State through its witness at the trial as  a  privilege similarly’ claimed by it at the stage of inspection.  It  is hardly  necessary  to point out that a contrary  vie*  would lead  to  this manifestly unreasonable result  that  at  the stage  of  inspection the document can be inspected  by  the Court,  but  not at the subsequent stage of trial.   In  our opinion,  the provisions of 0. 11, r. 19, sub-r. (2),  must, therefore, be read subject to s. 162 of the Act. The  result is that the appeal is allowed, the order  passed by  the  High Court set aside and that of  the  trial  court restored with costs throughout. KAPUR,  J.-I have read the judgment prepared by  my  learned brother  Gajendragadkar, J., and agree with  the  conclusion but  in my opinion the Court cannot take other  evidence  in regard  to  the nature of document, for which  privilege  is claimed, and my reasons are these: In  India  the  law  of  privilege  in  regard  to  official documents is contained in s. 123 of the Indian Evidence  Act which  has to be read with s. 162 of that Act.  The  various kinds  of  privileges claimable under the Evidence  Act  are contained in Chapter IX, two sections amongst these are  ss. 123  and  126,  the  former  dealing  with  state  privilege relating   to  "affairs  of  State"  and  the  latter   with communications with a legal adviser.  In s. 123 the  opening words are "no one shall be permitted " and in the latter "no barrister etc., shall at any time be permitted In the  other sections  dealing with privilege the opening words  are  "no person  shall  be  compelled  This  difference  in  language indicates  that  the  legislature  intended  to  place   the privilege of the State in regard to official documents on  a different   footing  than-the  other  forms  of   privileges mentioned in the 414 Act  in so far as it put a ban on the court  permitting  any evidence of the kind mentioned in. s. 123 from being  given, so  that if, unwittingly any evidence mentioned therein  was sought to be given, the court would not permit it unless the other conditions were satisfied. In  s. 123 the provision is against the giving  of  evidence which is derived from unpublished official records  relating to  any  affairs  of  State except  when  the  head  of  the department concerned in his discretion gives permission  for the   evidence  to  be  given.   The  important  words   are "derived",  "unpublished" and "affairs of State".  The  word "derived"  means  coming  out of the  source  and  therefore refers  to  original  as  well  as  secondary  evidence   of documents   whether  oral  or  documentary.   The  words   " unpublished  official  records" are not  very  difficult  of interpretation  and  must depend upon the  circumstances  of each  case.   If the record is shown to  have  already  been published,  it ceases to be an unpublished record.  But  the difficulty arises as to the meaning of the words "affairs of State",  because  the ban is put on  evidence  derived  from official  documents  relating to affairs of State.   At  the time  when the Indian Evidence Act was enacted,  affairs  of State were confined to governmental or political  activities of  Government, but with the expanding of the activities  of the  State,  which, because of the changed  concept  of  the State,   comprise   also   socioeconomic,   commercial   and industrial  activities  the words "affairs  of  State"  must necessarily  have  a much wider meaning than  it  originally had.  But the language of the sections remains the same  and so  also  the limitation on the giving of  evidence  derived from such documents and therefore what was considered to  be within  the  discretion  of the head of  the  department  to

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disclose  or  not  to  disclose  still  remains  within  his discretion  and  merely  because  the  scope  of  the  words "affairs  of  State" had been extended, the  extent  of  the discretion  has not thereby decreased or become limited  and the words "who shall give or withhold such permission as  he thinks  fit" indicate that the discretion to remove the  ban vests in the head of the department and no one else. 415 The  real  difficulty arises in the  interpretation  of  the words  "affairs  of  State".  What are  they?   How  is  the meaning  of the words to be determined and by whom?  When  a claim  is  made by a proper authority in a proper  form,  is that  conclusive  of the nature of the document or  has  the court  to proceed to determine the efficacy of the claim  by taking other evidence as to its nature or the effect of  its disclosure.  It was contended that the decision, whether the document   belongs  to  the  category  falling  within   the expression "affairs of State" or not has to be of the  court and not of the official mentioned in the section.  In a  way that is correct because the conduct of the trial must always remain in the hands of the court but what is implied in  the contention  raised  was  that the court  must  first  decide whether  the document belongs to the class comprised in  the expression   "affairs  of  State"  and  then  the   official concerned  may  give or withhold his consent.  It  was  also submitted that in order to enable the court to determine the validity  of the claim of privilege the official  concerned, when  making the claim, may have to state the nature of  the document or at least the nature of the injury to the  public interests or to the efficient working of the public service, as the case may be, which the disclosure of the document  or evidence derived therefrom would result in. Section  162 of the Evidence Act was relied upon in  support of  the  above  contention.  That  section  applies  to  all documents in regard to which claim of privilege of any  kind may  be  claimable including that falling under s.  123  and therefore the language of s. 162 had necessarily to be wide. It has been described as not being clear by Bose, J., as  he then  was, in Bhaiya Saheb v. Ram Nath  Bampratap  Bhadupote (1).   The section requires a witness summoned to produce  a document to bring it to the court in spite of any  objection which he may take to it& production or to its  admissibility and the court is empowered to decide both the questions.  It is  the  next part which is relied upon in  support  of  the contention that the court can (1)  I.L.R. [1940] Nag. 240, 247. 416 take  other  evidence  to  decide  both  the  questions   of production and the question of admissibility.  The words are "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 on its admissibility".  It was argued that  this part of the section empowered the court  to  take other   evidence  not  only  to  decide  the   question   of admissibility of the document but also its production.   The language  of this part of the section does not lend  support to this contention because it gives discretion to the  court to inspect the document or take other evidence to enable  it to  determine  the  admissibility  of  the  document.    The interposing  of  the words "unless it refers to  matters  of State",  has  reference  to  privilege  under  s.  123   and therefore it disentitles the court to inspect the  document. The  sequence  envisaged by the section is  that  a  witness summoned  to produce a document is bound to bring it to  the court.   He may then take objection to its production  under

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any  of the sections, viz., 121 to 131 or he may  object  to its  admissibility  and  both these objections  have  to  be decided  by  the court.  Then comes the second part  of  the section.  If the document refers to "matters of State"-there is  no distinction in the meaning of the word "matters"  and "affairs  of  State"-then  the court  may  not  inspect  the document, but if the document is not of that class, then the court  can inspect it and if it finds any objection  to  the admissibility,  it may take other evidence to determine  its admissibility.   To take a concrete case, if a  document  is produced which is compulsorily registerable and it is not so registered, it would not be admissible in evidence under  s. 49  of the Registration Act, but evidence may be led  as  to its admissibility for certain purposes, e.g., s. 53-A of the Transfer  of  Property Act.  If it refers to that  class  of documents   then  the  second,  part  of  s.   162   becomes applicable, i.e., the, court may inspect the document  which will  help  it  in deciding the question  of  privilege  and admissibility.  But if a claim is properly made by a  proper official  on the ground that it refers to matters of  State, the  court will stay its hands and refrain  from  inspecting it.                             417 The  words  "or to take...... its  admissibility"  on  their plain  language do not apply to production and  consequently the   taking  of  evidence  must  have  reference   to   the admissibility of the document. All the High Courts in India are in accord that the  Supreme court will not inspect the document if it relates to matters of  State.  If that is so it would be difficult  to  sustain the  contention that it can decide the question whether  the matter  relates or does not relate to affairs of State.   If the  original cannot be inspected, no other evidence can  be produced as to its contents.  The effect of this prohibition is not only as if the document had been destroyed, but as if it never existed.  If that is the position, then it  becomes difficult  to see how the question of its production can  be decided  by  the court by taking other evidence or  how  the court can decide whether a particular document falls  within the  prohibition imposed by s. 123 of the Evidence Act.   In this  connection  the  words of Lord  Kinnear  in  The  Lord Commissioner  of the Admiralty v. Aberdeen Steam Trawling  & Fishing  Co.,  Ltd. (1) are quite apposite.   It  was  there said: "I think it is not improbable that even if an officer of the department  were  examined as a witness, we should  not  get further forward, because the same reasons which induced  the department  to  say that the report itself ought not  to  be produced  might be thought to preclude the  department  from giving explanation required". If  the court cannot inspect the document, if  no  secondary evidence  can  be  given  as to  its  contents  and  if  the necessary  materials  and  the  circumstances  which   would indicate the injury to the public interests or detriment  to the proper functioning of the services cannot be before  the court  it  cannot  be in a position to  decide  whether  the document relates to affairs of State or not and the  logical conclusion  would  be  that  the  court  is  debarred   from overruling  the  discretion of the head  of  the  department concerned,   because  the  court  cannot  say  whether   the disclosure  or non-disclosure would be detrimental  or  not. If, on the other (1)  (1909) S.C. 335, 343. 53 418

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hand, the contention is accepted that the court can   decide by taking other evidence as to whether the document  relates to  the  affairs  of State then the discretion  to  ban  its production  by the head of the department  must  necessarily become illusory.  If the court takes upon itself the task of deciding the nature of the document, then it will be  taking upon itself the very grave duty of deciding a vital question as  to  what  are the affairs of State  without  having  the necessary material before it or without knowing the  exigen- cies  of the public service or the effect of the  disclosure of  the State secret or how far the disclosure  will  injure the public interests and- it may thus unwittingly become the instrument  of giving publicity to something which the  head of  the  department  considered  injurious  to  the   public interests,  the  law  having  given  to  the  head  of   the department  concerned to make this determination’  No  doubt the  discretion is wide and covers all classes of  documents which  may fall within the phrase "affairs of  State",  some noxious  and  others  innocuous and may even  appear  to  be unduly restrictive of the rights of the litigant but if that is  the  law  the sense of responsibility  of  the  official concerned and his sense of fair play has to be trusted.  The second.  part of s. 162 therefore cannot be said  to  permit the  taking of other evidence, ie., other than the  document to  determine the question of its production when it  is  of the  category  falling  under s. 123.  That  part  does  not entitle the court to determine the nature of the document or the  adequacy  of  the reasons  which  impelled  the  proper official to claim privilege.  It would be relevant Co  quote the  observations  of  Isaacs,  J.,  in  Marconi’s  Wireless Telegraph, Co. v. The Common. wealth "I distinctly adverted to the necessary fact that: the right of  discovery given, to the litigant for the furtherance  of public   justice  must  be  subject  to  the  still   higher consideration of the general welfare that the order to  make proper  discovery does not destroy the privilege  of  public interest,  and,  that  the  ground  of,  public  policy  may intervene and’, prevent the injury, to (1)  (1913) 16 C.L.R. 178, 201.                             419 the community which coercive ’disclosure might produce.   If that were not so, every gun in every fort and every safe  in the  Treasury would be open through the medium of the  Court to the observation of any ,plaintiff of any nationality  who could  make a prima facie case of the infringement to  which it was relevant.  One of the authorities to which I referred in  that  connection was the judgment of Turner,  L.  J.  in Wadeer  v.  East India Co., 8 D.M. & G., 182 at p.  191  and that,  judgment  is, I think, of great value  in  this  case also". It  will  be helpful to refer to the law on the  subject  in England  as laid down in English cases because the basis  of the Indian Law is the law of that country.  The question  of privilege  has  been described by Viscount Simon L.  C.,  in Duncan  v.  Cammell Laird & Co., Ltd. (1) as a  question  of high  constitutional importance because it involves a  claim by  the Executive Government to restrict the material  which might  otherwise be available for the court trying the  case and  this description was repeated by the House of Lords  in the  Scottish  case Corporation of Glasgow v.  Central  Land Board  (2).   It may be the material which a  party  to  the litigation may desire in its own interest and without  which equal justice may be prejudiced.  The question of  privilege may not only arise in cases where the State is party to  the suit  but may equally arise where the contestants in a  suit

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are  private parties and whether as a party to the  suit  or not  the State may decline to produce a document.   In  Dun- can’s  case  (1) the privilege of the crown, though  it  was described  as  not  a happy expression, was  upheld  on  the ground  that  the interest of the State must not be  put  in jeopardy by the production of a document which would  injure it  and  which  is  also  a  principle  to  be  observed  in administering justice, "quite unconnected with the interests or  claims  of  the particular parties  in  litigation  and, indeed, is a rule upon which the Judge if necessary,  insist even  though  no  objection is taken at all."  The  sort  of grounds   to  afford  justification  for.  withholding   the documents-were,given by Viscount Simon as follows.- (1)  [1942] A.C. 624.         (2) 1956 S.C. I (H.L.), 420 "It  would  not  be  a good ground  that,  if  they     were produced  the consequences might involve the  department  or the  government  in Parliamentary discussion  or  in  public criticism, or might necessitate the attendance as  witnesses or  otherwise  of  officials  who      have  pressing duties elsewhere.    Neither  would  it  be  a  good  ground   that production might tend to expose a want of efficiency in  the administration or tend to lay the department open to  claims for  compensation.   In a word, it is not  enough  that  the minister  or  the  department  does not  want  to  have  the document produced.  The minister, in deciding whether it  is his  duty  to object, should bear  these  considerations  in mind,  for he ought not to take the responsibility of  with- holding production except in cases where the public interest would otherwise be damnified e.g. where disclosure would  be injurious  to  national  defence,  or  to  good   diplomatic relations  or  where  the practice of  keeping  a  class  of documents secret is necessary for the proper functioning  of the public service." Thus the documents, which are protected from production, are those  the production of which would be prejudicial  to  the public  interests or those which belong to that class  which as  a  matter of practice, are kept secret  for  the  proper maintenance of the efficient working of the public service. Objection  has  been  taken to the authority  of  this  rule enunciated by Viscount Simon L. C., on the ground that it is in  serious conflict with another principle that the  proper administration  of  justice  is  also  a  matter  of  public interest, i. e., "fiat justitia ruat caelum" but as was said by  Viscount Simonds in Glasgow Corporation v. Central  Land Board (1), "The paramountcy of the public interest has  been recognized  and preserved".  This principle, which  was  re- enunciated  by  Viscount Simon, L. C., had been the  law  of England  for  over a century before Duncan’s case  (2).   In Earl  v. Vass (3) it was held that public officers  are  not entitled  or compellable to produce  written  communications made  by  them  officially relative  to  the  character  and conduct of a party applying (1) 1956 S.C. 1 (H.L.).            (2) [1942] A.C. 624. (3) (1822) 1 Sh.  Sc.  App. 229. 421 for  a public office when the production is demanded  in  an action for damages against the writer.  Lord Eldon L. C., at p. 230 observed:- "I  apprehend, in all cases in which it has been held,  upon the  principle  of  public policy, that  you  shall  not  be compellable   to  give  evidence  of,  or  produce  s   such instruments-that  is,  wherever it is held you  are  not  on grounds of public policy, to produce them-you cannot produce them  and that it is the duty of the judge to say you  shall

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not produce them......" Lord Eldon referred with approval to the decision in Home v. Lord  William Bentinck (1) which was of the year 1820.   The principle there laid down was that production of instruments and papers must be shut out if it was against public policy. At p. 919 the learned Chief Justice said:- "It seems therefore that the reception of the minutes  would tend directly to disclose that which is not permitted to  be disclosed; and therefore, independently of the character  of the court, I should say, on the broad rule of public  policy and convenience that these matters, secret in their  nature, and  involving  delicate enquiry and the names  of  persons, stand protected". The  injury to public service was recognized in  Beatson  v. Skene (2) where Pollock, Q. B., said: "It appears to us, therefore, that the question, whether the production of the documents would be injurious to the public service,  must  be determined, not by the Judge but  by  the head of the department having the custody of the papers; and if  he is in attendance and states that in his  opinion  the production of the document would be injurious to the  public service,  we  think  the  Judge  ought  not  to  compel  the production  of it.  The administration of justice is only  a part  of the general conduct of the affairs of any State  or Nation,  and we think is (with respect to the production  or non-production  of  a  State paper in a  Court  of  Justice) subordinate  to  the general welfare of the  community.   If indeed, the head of the (1)  (1820) 2 Brod. &B. 130: 129 E.R. 907. (2)  (1860) 5 H. & N. 838: 157 E.R. 1415. 422 department  does  not  attend personally  to  say  that  the production  will be injurious but sends the documents to  be produced or not as the Judge may think proper, or as was the case  in Dickson v. The Earl of Wilton beford Lord  Campbell (reported  in Foster and Finla  son’s N. P. Rep.,  p.  425), where  a  subordinate  was  sent  with  the  document   with instructions  to  object but nothing more, the case  may  be different." Martin B. did not entirely agree with the view of the  other three  learned Barons and he was of the opinion that if  the document  could  be  produced without  prejudice  to  public service  he ought to compel its  production  notwithstanding the reluctance of the head of the department to produce  it. It was pointed out by Pollock, C. B., that this might  apply to  extreme cases and "extreme cases throw little  light  on the practical rules of life". In  Smith  v.  East India Company (1)  which  related  to  a commercial transaction as to the liability to pay freight  a similar   privilege   was  upheld.   It  was   argued   that communications between officials and communications  between Directors and Board of Control were official  correspondence and  were  privileged.  On appeal the Lord  Chancellor  held that  in  order that superintendence and control  should  be exercised  effectively and for the benefit of the public  it was  necessary  that unreserved  communication  should  take place  between  the  East India Company  and  the  Board  of Control. In Homer v. Ashford (2) which was of the year 1825,Best,  C. J., said:- "The first object of the law is to promote public  interest; the second to preserve the rights of individuals". In this connection it may not be out of place to recall  the striking  language of Knight Bruce, V. C., quoted at p.  401 of   Macintosh   v.  Dun  (3)  in  the  judgment   of   Lord

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Macnaughten:- "Truth like other good things, may be loved unwisely-may  be pursued too keenly-may cost too (1)  (1841) 1 Ph. 50: 41 E.R. 550. (2)  (1825) 3 Bing. 322; 130 E.R. 537, 539. (3) (1908) A. C. 390. 423 much".   And  then he points out that the meanness  and  the mischief  of  prying  into  things  which  are  regarded  as confidential, with all the attending consequences, are  "too great to pay for truth itself." Thus the law as stated in these old English cases shows that what was injurious to the public interest or prejudicial  to the proper functioning of the public services was not to  be disclosed and if the objection was based on these grounds it must prevail.  As to who was to determine this, the judge or the  official,  Pollock  C.  B. decided  in  favour  of  the official  because the enquiry could not be held  in  private and  if it was held in public the mischief would  have  been done. Beatson v. Skene (1). It was with this background of the state of the English  law that Sir James Fitzjames Stephen drafted the law of evidence which  was  enacted into the Indian Evidence Act (Act  1  of 1872). Scrutton,  T., in Asiatic Petroleum Company Ltd.  v.  Anglo- Persian  Oil  Company  Ltd. (2) which  was  a  case  between private parties inspected the document to the production  of which  objection was taken, and having seen it he said  that he  would not take the responsibility of ordering it  to  be produced  against  the wishes of the Government.   When  the matter was taken in appeal, Swinfen Eady, L. J., was of  the opinion  that  the  rule was not confined  to  documents  of political  or administrative character.  The  foundation  of the  rule  was  that the  information  cannot  be  disclosed without  injury  to  the public interest and  not  that  the document  was  confidential  or official, and  that  if  the production  would  be injurious to the public  service,  the general public interest must be considered paramount to  the individual  interest  of the suitor.  This  was  a  document which  was written by the defendants, who owned  a  pipeline from Persia to their refinery in the Persian Gulf, to  their agents  in Persia which contained  confidential  information from the Board of Admiralty. The  Scottish cases have also upheld the privilege  of.  the Crown in regard to production although it has (1) (1860) 5 H. & N. 838; 157 E.R. 1415. (2) [1916] 1 K. B. 822. 424 been  stated that the inherent power of the court to  itself see  the  document  and to override but not  to  review  the certificate of the official of the department concerned  has always  existed  in Scottish courts.  In Duncan’s  case  (1) Viscount Simon, L. C., quoted with approval the  observation of   Lord   Dunedin,  the  Lord  President   in   the   Lord Commissioners  of  the  Admiralty  v.  The  Aberdeen   Steam Trawling  & Fishing Co., Ltd. (2).  That was a case where  a Government  department  objected to the  production  of  the document  on  the  ground  that  the  production  would   be prejudicial to public services and it was held that the view of  the government department was final and the  court  will refuse  production  even in action in which  the  Government department was a party.  The objection there was taken on an affidavit.  At p. 340, the Lord President (Dunedin) said:- "It  seems to me that if a public department  comes  forward and says that the production of a document is detrimental to

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the public service,, it is a very strong step indeed for the Court  to  overrule that statement by the  department.   The Lord  Ordinary has thought that it is better that he  should determine  the  question.  I do not there  agree  with  him, because  the  question  of  whether  the  publication  of  a document  is  or is not detrimental to  the  public  service depends  so much upon the various points of view from  which it may be regarded, and I do not think that the Court is  in possession of these various points of view.  In other words, I think that, sitting as Judges without other assistance, we might  think that something was innocuous, which the  better informed officials of the public department might think  was noxious.  Hence, I think the question is really one for  the department, and not for your Lordships". And Lord Kinnear agreed with Lord Dunedin and at p.    343 said:- "I  agree  that  we  cannot take out of  the  hands  of  the Department   the  decision  of  what  is  or  what  is   not detrimental  to  the  public service.  There  are  only  two possible courses.  We must either say that it is a good (1) [1942] A.C. 624,     (2) (1909) S.C. 335, 343. 425 ground of objection or we must overrule it altogether.  I do not  think  that  we  should  decide  whether  it  would  be detrimental  to the public service or not; and I agree  with what both your Lordships have said as to the position of the Court  in  reference to that question.  We do not  know  the conditions under which the production of the document  would or would not be injurious to the public service.  I think it is not improbable that even if an officer of the  Department were  examined as a witness we should not get  further  for- ward, because the same reasons which induced the  Department to say that the report itself ought not to be produced might be  thought  to  preclude the  Department  from  giving  the explanations required.  A department of Government, to which the  exigencies  of  the public service are  known  as  they cannot  be  known  to  the  Court,  must,  in  my  judgment, determine a question of this kind for itself, and  therefore I agree we ought not to grant the diligence." In  a later Scottish case Henderson v.M’Gown (1) where in  a suit between private parties income-tax returns were  sought to be produced, the court held that it had the power, in the exercise of its discretion, to order production of documents in  the  custody  of a public department  in  spite  of  its objection  but  in  the  circumstances  it  did  not   order production as it was unnecessary.  Lord Johnston said at  p. 826:- "That is not to say that the court never can and never  will overrule such a statement but merely that it would be a very strong step, and therefore a step for which the Court  would require very grave justification.  The Admiralty and the War Office are charged with the duty of providing for the safety of  the realm, and, if either say that the production  of  a document  in their hands would be prejudicial to the  public interest, I think that we should naturally implicitly accept the  statement.  But there are distinctions  between  public departments.   The  interest  of such a  department  as  the Inland Revenue is that the public should be able to rely  on all returns to them and (1)  (1916) S.C. 821. 54 426 communications  made to them being treated as  confidential. This also is the public interest." The  latest Scottish case relied upon is a decision  of  the

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House of Lords in Glasgow Corporation v. Central Land  Board (1).  In that case privilege was claimed by the Central Land Board  on  the ground that its  production  would  adversely affect the public interests.  The question for decision  was whether  Scottish  courts were bound to give effect  to  the certificate  of the Secretary of State or whether the  court had  an inherent jurisdiction not to review the  certificate but  to override it. The House of Lords was of  the  opinion that  Duncan’s case (2) did not affect the Law  of  Scotland and  the  Scottish courts possessed the  inherent  power  to override  the  objections  of the Minister and  it  did  not exclude the court from making an order of production but  in that case the power was not exercised.  Viscount Simonds, L. C.,  said at p. 10 that Duncan’s case (2) had  settled  that according  to the Law of England an objection validly  taken to production of documents on the ground that this would  be injurious  to the public interest is conclusive but to  cite the  case  of Lords Commissioners of the Admiralty (3  )  as authoritative  without regard to the earlier cases  and  the later case of Henderson v. M’Gown (4) must give an imperfect view of the law of Scotland.  But even in Scotland the power had  been rarely, very rarely, exercised by the courts;  its exercise had been refused even where the result had been the prejudice  of the private individual and the paramountcy  of the  public interest had been recognised and preserved.  (p. II).   Lord-  Normand  observed that for  a  100  years  the uniform  track of authority asserted the inherent  power  of the  court to disregard the crown’s objection but the  power had been seldom exercised; only the courts had  emphatically said that it must be used with the greatest caution and only in  special circumstances.  In this connection Lord  Normand said at p. 16:- "It was also a firmly established rule that the courts could not dispute the certificate and that the (1)  1956 S.C. 1 (H.L.).     (2)   [1942] A.C. 624. (3)  (1909) S.C. 335, 343.    (4)  (1916) S.C. 821. 427 question  whether  production would be  contrary  to  public interest was for minister or the department concerned." Lord  Radcliffe in his speech said that Duncan’s case  ought not  to be treated as a decision which affected the  law  of Scotland.   Dealing with the case before the court  and  the power reserved to the court to overrule the crown  objection he said at p. 18:- "I  do  not  understand  that the  existence  of  the  power involves  that in Scotland, any more than in England, it  is open to the court to dispute with the minister his view that production would be contrary to the public interest is  well founded  or to arrive at a view, contradictory of  his  that production  would  not in fact be at all injurious  to  that interest.   If  weight  is given to the  argument  that  the Minister in forming his view may have before him a range  of considerations that is not open to the Court and that he  is not under any obligation to set out these considerations  in public, I think that it must follow that the Minister’s view must  be  accepted  by  the  Court  as  incapable  of  being displaced  in  by its own opinion".  The view  expressed  in Admiralty Commissioners v. Aberdeen(1) was dissented from. After  referring to another aspect of public  interest  that impartial  justice should be done in the courts of law,  not least between citizen and Crown, the Lord Normand observed: "If  in  the past the power to disregard the  objection  has hardly ever been exercised, that has been due, I think, to a very  proper  respect  for the Crown’s  position  and  to  a confidence  that  objections  of this nature  would  not  be

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advanced,  or at any rate persisted in, unless the case  was one in which production would involve material injury to the public welfare". Thus,  as  was said by Lord Normand, there is  a  difference between  the  law of England and the law of Scotland  on  an important  constitutional  question.  But  in  practice  the difference was little as the exercise of the inherent  power by the Scottish Courts had been rare. (1) [1942] A.C. 624.            (2) (1909) S.C. 335. 343. 428 As  the  Privy Council judgment in Robinson’s case  (1)  was from Australia it will be useful to refer to two  Australian cases:- In Marconi’s Wireless Telegraph Company Limited   v.   The Commonwealth(2)  where  inspection was claimed  of  wireless telegraphic apparatus, Isaacs, J., in his minority  judgment at  p. 205 enunciated the following propositions  which  are relevant for the purpose of the present case:-  "(1)  The  rule  of exclusion  of  State  secrets  applies, necessarily without distinction to the facts, documents  and other  objects.   This was admitted by Mr.  Irvine,  and  is established by such cases as B. v. Watson 2 Stark, 116 at p. 148; B. v. Hardy 24 St. Tri. 199, at col. 753; R. v.  Watson 32 St. Tri. 1, at cols. 100-101. (2)The rule proceeds on the same grounds whether the   parties called on to produce the documents, &c., are or   are    not parties  to  the  suit,  that is,  on  the  grounds  of  the prejudice  to the public interests, which  production  would occasion (per Turner, L. J. in Wadeer’s case S. D. M. &  G., 1882;  Admiralty  Commissioners  v.  Aberdeen  Trawling  Co. (1909) Sess.  Ca., 335. (3)  The right to protection depends upon the "character" of the documents, &c. (ib.). (4)  If  the  documents, &c., are prima  facie  private,  as where  they  are  in private hands then in  the  absence  of Ministerial  claim  for protection, the Court,  in  case  of objection  by the private defendant on the ground of  public policy, will ascertain their character that is, whether they are   really  governmental  and,  if  they  are,  the   next succeeding paragraph applies: Smith v. East India Company  I Ph. 50. (5)  If  the  documents,  & are of a political  that  is,  a governmental  "character", then even in the absence  of  any Ministerial  claim  for protection, it is the  duty  of  the Court,  on  objection  by private person  holding  them,  to ascertain  whether public prejudice will or may  ensue  from production,  and, if it appears that public policy  requires confidence between the objector and the Government, they are presumed (1) [1931] A.C. 704.      (2) (1913) 16 C.L.R. 178, 201. 429 prima facie to be confidential: Smith v. East India  Company I  Ph. 50 and per Wills, J. in Hennessy v. Wright 21  Q.B.D. 509, 518-519. (6)  If   either   by  proof  or   undisplaced   presumption confidence  is  required, then it is a rule of law,  not  of discretion,  that the documents shall be excluded: Marks  v. Beyfus 25 Q.B.D. 494 at pp. 498-500; Stace v Griffith L.R. 2 P. C., 420 at p. 428. (7)  If  the documents, &c., are in fact "State  documents", that is, "in possession of a government department", and the Minister  having  custody  of them assures  the  Court  that public prejudice will or may ensue from production, that, in the  absence  of  what  are called  extreme  cases  and  are practically  negligible,  is conclusive evidence  of  their,

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character,  that  is,  that  they  are  confidential  public documents,  and that such prejudice will or may  ensue,  and the  Court must act upon it: Stace v. Griffith L.R.  2  P.C. 420  at  p.  428;  Beatson  v. Skene 5  H.  &  N.  838;  The Bellerophon  44  L. J. Adm. 5; Hughes v. Vargas  9  R.  661; Halsbury’s  Laws  of  England, Vol.  XI, p.  85;  Taylor  on Evidence,  10th ed., pp. 673, 674; Powell on  Evidence,  9th ed.,  p. 273.  Conclusiveness in such a case is not  unique. Even a private claim for privilege in an ordinary  affidavit of  documents is (with certain exceptions immaterial  here), taken as conclusive with respect even to the grounds  stated for claiming privilege; See Halsbury’s Laws of England, Vol. XI, p. 61 and Morris v. Edwards 15 App.  Cas. 309." The  learned Judge dealing with the matter of  privilege  in public  interest and the principles based on  prevention  of injury to the community observed at p. 203: "Such a doctrine is inherent in all systems of law; for  the first requirement of every organised society is to live, and so far as possible to live securely, and the next is to live with the greatest advantage to the community at large ;  and to these essentials the strict administration of justice  in particular cases amongst members must yield." Thus the principle is that private inconvenience must  yield to public ;interest; in other words Fiat justitia 430 ruat coelum is not always the right of a suitor because  the proper  maxim  applicable is salus populi  suprema  est  lex which transcends all other considerations.  The majority  of the  Court in that case had held that there was  nothing  to warrant  the conjecture that the inspection  could  disclose anything that could reasonably be called secret in any sense of the word.  The matter was taken to the Privy Council  but special  leave to appeal was refused.  The  Lord  Chancellor there said:-(See Griffins case, 36 C.L.R. 378, 386) "Of  course the Minister’s statement or certificate must  be conclusive  on  a  particular  document.   How  can  it   be otherwise?........................ If the Minister certifies quite  specifically,  his  certificate is  to  be  taken  as conclusive.  The ground on which special leave to appeal was refused  in  that  case appears to have  been  that,  having regard to the form of the order, which carefully limited the right  of inspection and reserved liberty to apply,  it  was not a convenient case in which to raise a great question  of principle." In Griffin v. The State of South Australia (1) objection  to the production for inspection of documents was upheld on the ground  that the statement of the Attorney General  for  the State   that  their  production  for  inspection  would   be prejudicial to the public interest is conclusive.  That  was a  case  in which inspection of documents was sought  in  an action  brought  in  the  High Court  of  Australia  by  the plaintiff  against the State of South Australia  to  recover damages for negligent storage of wheat.  Knox, C. J., in the course  of his judgment referred to the observations of  the Lord  Chancellor  in  Marconi’s case, (2)  which  have  been quoted above.  Isaacs, J., reiterated his previous  opinion. Starke,  J.,  was doubtful and he was of  the  opinion  that there was no reason why the courts should not use the  power confided  in  them for discovery.  If some  real  doubt  was established  as to the accuracy of the Minister’s  statement there was no reason for refusing the power in a proper  case particularly   when   the  commercial  activities   of   the Government were becoming more and more extensive and (1) (1925) 36 C.L.R. 378, (2) (1913) 16 C.L.R. 178,201.

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431 the   sphere   of  political   and   administrative   action correspondingly wider.  He was also of the opinion that  the courts should be able to fully protect the public  interests and  do nothing to imperil them.  The learned Judge in  that particular  case was not fully satisfied with the  affidavit of the Minister. The  matter  of privilege in Australia    was taken  to  the Privy     Council  in Robinson v. State of  South  Australia (1).      This  case  arose  out of  an  action  similar  to Griffin’s case  (2) and a similar privilege was  claimed.The Privy Council was of the opinion that the Minister’s  minute was inadequate to support the claim of privilege but it  had not  been lost by the inefficiency of the form in  which  it was claimed and the matter was a proper one for the court to exercise  its  power of inspection for which  privilege  was sought  in order to determine whether their production  will be  prejudicial  to  public interest  or  to  the  efficient working of the public services. Lord Blanesburgh said at p. 714:- "  As  the protection is claimed on the broad  principle  of State  policy and public convenience, the papers  protected, as  might  have  been expected,  have  usually  been  public official   documents  of  a  political   or   administrative character.  Yet the rule is not limited to these  documents. Its  foundation is that the information cannot be  disclosed without  injury  to the public interests and  not  that  the documents  are confidential or official, which alone  is  no reason for their nonproduction: See Asiatic Petroleum Co. v. Anglo-Persian  Oil (1916) 1 K. B. 822, 829-830 and Smith  v. East India Co. 1 Ph. 50." and at p. 715 it was observed:- "It must not be assumed from these observations of the  Lord Justice  that documents relating to the trading,  commercial or contractual activities of a State can never be claimed to be   protected  under  this  head  of  privilege.    It   is conceivable  that even in connection with the production  of such   documents  there  may  be  "some   plain   overruling principles  of  public interest concerned  which  cannot  be disregarded"." (1) [1931] A.C. 704. (2) (1925) 36 C.L.R. 378. 432 After  referring  to various cases that have  been  set  out above  the Privy Council was of the opinion that  the  court was entitled to prescribe in any particular case the  manner in  which  the claim of privilege should be  made.   It  may accept unsworn testimony of the Minister in one case but  in another  where the circumstances seems to be to  so  require call  for an affidavit from him.  It may be  that  objection merely on ground of public policy may not be sufficient  but it  ought to appear that the mind of a responsible  Minister had  been brought to bear on the question of  expediency  in the  public interest of giving or refusing  the  information asked  for.  This would be a guarantee that the  opinion  of the Minister which the court is asked to accept is one which has  not been expressed inadvisedly or as a matter  of  mere departmental  routine  but  is  one  put  forward  with  the solemnity necessarily attaching to the sworn statements  and that  the  privilege could not be asserted  in  relation  to documents the contents of which had already been  published. In that particular case the Minister had merely stated  that he had considered this mass of documents and not that he had read them and considered each one of them.  Lord Blanesburgh said at p. 722:-

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"In  view  specially  of the fact  that  the  documents  are primarily  commercial documents he should have  condescended upon some explanation of the particular and far from obvious danger  or detriment to which the State would be exposed  by their production.  Above all, and especially in view of  the last paragraph of the minute, the claim was one which should have been put forward under the sanction of an oath by  some responsible Minister or State official." Continuing it was observed that there may be some among  the scheduled  documents  to which privilege  may  be  genuinely attached and to give inspection of which without more  would destroy  the  protection of the privilege and  therefore  it would or might be contrary to public interest to deprive the State   of   opportunity  of  regularising  its   claim   to protection.   The Board would have given this advice had  it not  been for the fact that it would have  involved  serious delay                             433 without   advancing  further  the  final  solution  of   the question.   The case was therefore remitted to  the  Supreme Court  with  a direction that it was a proper  one  for  the exercise by that court of the power of inspecting documents. The  Privy  Council  was careful to add that  the  Judge  in giving his decision as to, any document would safeguard  the interests  of  the  State and would not  resolve  the  doubt against  the  State  without  further  enquiring  from   the Minister.   In  that  case  also  the  paramountcy  of   the consideration  of public interest was recognized but as  the privilege was not properly claimed and the document  related to  commercial  activities of the State and  it  would  have involved  unnecessary prolongation of the action  the  Privy Council  remitted  the case for the court  to  exercise  its power of inspection under the Rules and Orders of the  court but with the further direction of safeguarding the  interest of the State. In  Duncan v. Cammell Laird & Co. (1), the Court  of  Appeal held  that the affidavit of the First Lord of Admiralty  was conclusive  if  it  stated that  such  production  would  be contrary  to public interest, and the order  for  production was  therefore refused.  Du Parcq, L. J., pointed  out  that the  Privy  Council case (Robinson’s case (2)) was  not  the final  word  on the subject in regard  to  production.   The House of Lords in appeal did not agree with the judgment  of the  Privy  Council and it is significant that  two  of  the seven  Law Lords in the House of Lords were parties  to  the Privy  Council judgment.  The House of Lords held  that  the affidavit of the Minister was conclusive and that inspection of  a document by a court in private would be  communicating with one party to the exclusion of the other and it accepted the  principle  that  if it was prejudicial  to  the  public interests  or  the  document  belonged  to  that  class   of documents  which are kept secret for the proper  functioning of the public services the production of the document  would be  refused.  It was recognized in that case that it is  the Judge  who is in control of the trial and not the  executive but the proper ruling for the judge to give (1) [1942] A.C. 624.          (2) [1931] A.C. 704. 55 434 would  be that an objection validly taken to the  production on  the ground of its being injurious to public interest  is conclusive. The English cases which were decided after the pronouncement of  the  House  of  Lords in  Duncan’s  case  (1)  naturally followed  the decision of the House of Lords.  In  Ellis  v.

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Home  Office (2) where a prisoner who had been  attacked  in jail  by  another prisoner who was a mental case  asked  for certain reports and privilege was claimed, the privilege was upheld  but it was said that although it was essential  that Government department should be entitled to claim  privilege against  disclosure  of documents on the  ground  of  public interest  the  ambit  of  privileges  should  be   carefully scrutinized and each document should be examined.  It may be mentioned  that in that case Devlin, J., felt grave  concern about  the  claim of this privilege because the  result  was that  documents  were  to be treated  as  destroyed  and  no secondary  evidence  could be led and this  concern  of  the trial judge was shared by the Court of Appeal.  In Broome v. Broome  (3) which was a defended suit for divorce, the  wife wanted  certain  documents of the  Soldiers’,  Sailors’  and Airmen’s  Families  Association but the Secretary  of  State issued a certificate in which he stated that the  production would  not  be in public interest.  It was held  that  Crown privilege   from  disclosure  attached  to   all   documents irrespective  of where they originated or in  whose  custody they  reposed provided that they had emanated from  or  came into the possession of some servant of the Crown. In Auton v. Rayner & Ors. (4) it was pointed out at page 572 that  the  sole  concern of the  Minister  was  whether  the interests  of  the  State in the sphere  for  which  he  was responsible would be affected and therefore the documents or evidence  should be withheld from the court.  It  was  added that  the  Minister  should accept and  recognize  that  the proper administration of justice would be impeded or may  be unattainable  if any document or any evidence was  withheld. In that case an action was brought against the (1)  [1942] A.C. 624.     (2) [1953] 2 All E.R. 149. (3) [1955] 1 All E.R. 201.  (4)    [1958] 3 All E.R. 566. 435 defendants, one of whom was a Police Officer, charging  them with   conspiracy   to  injure  and   defraud   him,   false imprisonment  and  malicious  prosecution.   The   documents required  by the plaintiff were reports made by  the  Police Officer to his superior officers and the communication which passed  between  the  Metropolitan Police  Force  and  other police  force and the Secretary of State swore an  affidavit indicating  that  the  document  should  be  withheld   from production and that he had formed an impartial judgment that in the public interest and for the proper functioning of the public services the document should be withheld.  ’The Court of  Appeal held that the determination of the  Secretary  of State ought reasonably to be accepted and that the affidavit was, in the circumstances, conclusive. The law in England may thus be summed up:-- (1)  That  a document need not be  produced  for  inspection either on discovery or at the trial when objection is  taken by  the  Minister that disclosure of the document  would  be contrary to public policy or detrimental to public  interest or services.  This privilege attaches irrespective of  where the  document originates or in whose custody it is  provided it emanated from or came into possession of some servant  of the crown; (2)  the privilege can be claimed or waived by the authority of the Minister or the head of the department; (3)  secondary  evidence may not be given of a document  for which privilege is established; (4)  official correspondence per se is not privileged on the ground  of  its being confidential or official nor is  it  a valid ground that production would involve the Government in criticism   or   expose   ’want   of   efficiency   in   the

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administration  or  open up claims to compensation  but  the ground  for  privilege  is  that  the  production  would  be detrimental to the interest of the public or interfere  with the efficient working of the public service or it belongs to class  of  documents  which  it  is  the  practice  of   the department to keep secret; (5)  the minister’s objection may be conveyed by a letter or by the official who attends at a trial but 436 the  court may require an affidavit by or the attendance  of the Minister; (6)  before a privilege is claimed it is desirable that each document should be examined by the department concerned  and inspection permitted of all documents which cannot harm  the public interest; (7)  if  a minister claims privilege the court  will  accept his  statement and ought not to examine the document to  see if the objection is well founded; (8)  public  interest  must not be put in  jeopardy  by  the production of a document which could injure it and the court should, if necessary, prohibit the production even though no objection has been taken by the Government department. It  may  be  pointed out that the  privilege  was  expressly reserved when by the Civil Proceedings Act, 1947, the  Crown was made liable to. give discovery in civil proceedings. It  is  no  doubt true and it must be  recognized  that  the administration  of public justice is also a part  of  public interest  but as was pointed out by Viscount Simon L. C.  in Duncan’s case (1) the interest of the State is the  interest of the citizen and if the former suffers the interest of the litigant   also  suffers  and  therefore   public   interest transcends  the  individual  interest  of  a  citizen.    In Duncan’s  case  (1) it was emphasised that the  Minister  in deciding  whether it was his duty to object should  bear  in mind   the   considerations   which   justify    withholding production,  i.e.,  the public interest would  otherwise  be damnified,  i.e.,  the  disclosure  would  be  injurious  to national  defence, or to good diplomatic relations or  where the  practice  of  keeping a class of  documents  secret  is necessary for the pro-per functioning of the public service. And  that is the safeguard which both in England  and  India the law seems to have found sufficient for the protection of an individual’s rights.  Even in Scotland where the inherent right of the courts to override official discretion has been recognized the occasions for the exercise of that power have indeed been rare and even in the (1)  [1942) A.C. 624. 437 latest  case  Glasgow  Corporation v. Land  Board  (1)  that position was reiterated. Although the consensus of opinion in India is that under the second  part  of  s.  162 the court  will  not  inspect  the document  if it relates to matters of State yet there  is  a track  of decision which has taken the view that it  is  not for  the head of the department claiming the  privilege  but for  the court to decide whether the document  falls  within the category mentioned in s. 123.  But in some other cases a different  view has been taken.  A reference to cases  which fall on both sides of the line will be helpful. In  Irwin  v. Reid (2) Mukherjea, A. C. J.,  held  that  the language  of s. 123 showed that the court cannot be  invited to  discuss  the  nature  of the  document  and  the  public official  concerned and not the court is to  decide  whether the  evidence referred to shall be given or  withheld.   "If any  other  view  were taken, the mischief  intended  to  be

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averted  would take place, as the judge could not  determine the  question  without  ascertaining  the  contents  of  the document,  and such inquiry, if it did take place must,  for obvious reasons, take place in public: Beatson v. Skene (3), Hennessy v. Wright (4), Jehangir v. Secretary of State  (5). The  result practically is, that if the objection is  raised by a proper authority the court cannot compel disclosure  by primary or by secondary evidence." The  Lahore High Court in Khawja Nazir Ahmad v. Emperor  (6) held that the head of the department who is in possession of the  documents  is the sole judge of the  fact  whether  the documents should be protected from production on the  ground of  their  being related to affairs of State  and  therefore though  the  decision would be that of the court,  it  would have to rule in favour of the privilege claimed by the  head of  the department.  It was also held that the interests  of the  State  must  not be put in jeopardy  by  production  of documents  which would injure them and that was a  principle to be observed in administering justice and (1) (1956) S.C. 1 (H. L.) (2) (1921) I.L.R. 48 Cal. 304. (3)  (1860)  5  H. & N. 838; 157 E.R. 1415. (4) (1888) 21 Q.B.D. 509. (5) (1903) 6 Bom.  L.R. 131, 160. (6) I.L.R. (1945) Lah. 219. 438 indeed  a rule on which the judge should insist even  though no  objection  is  taken at all.  In that  case  there  were certain  confidential  files of the Special  Enquiry  Agency containing notes, correspondence etc., relating to the  case and containing a record of statements of various persons and a  proper  affidavit  had  been filed by  the  head  of  the department stating that the production would be injurious to public interests.  Abdul Rahman, J., said "I feel  convinced in  my  mind that the objection as to its  production  apart from  its admissibility (e.g., for want of  registration  or contravening  the  rule as to when secondary evidence  of  a document  can be admitted-if the document is merely  a  copy and  not original) can only be decided by its inspection  by the  Court followed as it must necessarily have been  by  an order  for its production, although not in the sense of  its contents  having been disclosed to the party  summoning  the document  at  any  rate  at that stage.   If  the  Court  is debarred under the statute from inspecting it, I cannot  see how  the  objection as to its production  can  otherwise  be decided".   In  I.  M. Lal v. Secretary of  State  (1)  this privilege was upheld.  In that case it was held that s.  162 divided the privilege of documents into two categories.   At p. 212 Abdul Rashid, J. (as he then was) observed:- "The Court can inspect documents for the purpose of deciding the  question  of privilege only if those documents  do  not refer  to matters of State.  In other words an exception  is made in respect of documents that refer to matters of State. Such  documents cannot be inspected by the Court  while  all other  documents for which privilege is claimed are open  to inspection  by  the Court for the purpose  of  deciding  the validity of the objection regarding privilege." The  Bombay High Court in re Mantubhai Mehta  in  construing ss.  123, 124 and 162 has held that the officer summoned  to produce  the document is bound ’to bring it and if he  takes objection  to its production it is for the court  to  decide whether  the objection is well founded or not but the  court is  not  entitled to inspect it.  This  track  of  reasoning suffers from the (1) A.I.R. 1944 Lah. 209.    (2) I.L.R. [1945] Bom. 122. 439

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same  difficulty  that  has been pointed  out  that  without looking  at the document and taking into  consideration  the wide  words of s. 123 it becomes difficult to hold that  the court  can  decide  as to whether the  document  relates  to "affairs  of State" and whether it should or should  not  be produced.   In  that  Bombay  judgment  the  learned   Judge referred  to  the observations of Viscount Simon,  L.C.,  in Duncan’s case (1).  Besides the learned Judge also  referred to  s. 124 the effect of which is not the same as of s.  123 of the Evidence Act.  Bhagwati J. (as a Judge of the  Bombay High  Court)  in R.M.D. Chamarbaghwala v. Y. R.  Parpia  (2) held that the court cannot inspect the document in order  to determine  whether  they are  unpublished  official  records relating  to any affairs of State, but its  jurisdiction  to determine  is  not taken away by s. 162 and it  is  for  the court to decide the question of production by taking all the circumstances  into consideration barring inspection of  the document.   The learned Judge mainly referred to  Robinson’s case  (3)  and  it appears that the learned  Judge  was  not satisfied  as  to the documents being  unpublished  but  the criterion  he  laid down was that only  such  documents  are privileged  which  relate  to  affairs  of  State  and   the disclosure of which would be detrimental to public interest. The question really is the same as to who is to decide  whe- ther it is "matters" of "affairs of State". The  Calcutta  High Court in a later judgment in  Ijjat  Ali Talukdar v. Emperor (4) took a contrary view different  from its older view and held that the court is to decide  whether conditions precedent to ss. 123 & 124 have been established. That  was  a  case  under the  Excise  Act  and  the  Excise Commissioner  was called upon to produce certain  documents. The  Commissioner  claimed  privilege under s.  123  on  the ground that the files contained unpublished official records relating to affairs of State and Das J., as he then was, was of  the  opinion that the occasion  for  claiming  privilege under  s.  123  arose when it was sought  to  give  evidence derived from unpublished official records (1)  [1942] A.C. 624.    (2)  A.I.R. 1950 Bom. 230. (3)  [1931] A.C. 704.    (4)  I.L.R. [1944] 1 Cal. 410. 440 relating  to  any  public  affairs  which  was  a  condition precedent.  He then referred to s. 124 of the Evidence  Act. The  second part of s. 162 provided the method or  means  to enable  the  court  to  decide  the  question,  namely,   by inspecting  the  document  or  by  taking  other   evidence. Although  the  court  was disentitled  from  inspecting  the document, the duty of deciding the question was still on the court.  At p. 419 the learned Judge observed:- "In case of documents relating to affairs of State it may be difficult for the Court to decide the question, yet it  need not  be  necessarily  impossible for the  Court  to  do  it. Ordinarily  no  difficulty  will  arise,  because  heads  of departments  or  public  officers are not  expected  to  act capriciously  and  ordinarily the Court  will  accept  their statement.  If necessary, the Court will require the officer to  claim  the  privilege in the  manner  indicated  in  the Judgment  of Lord Blanesburgh in the Australian  case.   If, however,  the  Court finds that an over-zealous  officer  is capriciously putting forward a claim of privilege, the Court will  decide, as best as it can, by the means  available  to it, whether the claim is well founded." As  has  already been said above the second  part  does  not afford  the  means  or methods to the Court  to  decide  the question  of privilege.  The only method is  inspection  and that is denied to the court in cases falling under s. 123.

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The  second case which is on the other side of the  line  is the judgment of Bose J., as he then was, in Bhaiya Saheb  v. Ramnath  Rampratap Bhadupote (1).  In that case the  learned Judge  was  of the opinion that the insertion of  the  words "unless it refers to matters of State" in the middle of  the paragraph  seemed  to  indicate that  the  court  might  not inspect  the document in respect of which the privilege  was claimed  until  it had opportunity of determining  upon  its admissibility  and  for  that purpose it  could  take  other evidence  which  meant  evidence  other  than  the  document produced.  This line of reasoning is similar to that adopted in Ijjat Ali’s (2) case. (1) I.L.R. [1940] Nag. 240, 247. (2) I.L.R. [1944] 1 Cal. 410. 441 The  Andhra Pradesh High Court in Public Prosecutor,  Andhra v. Damera Venkata Narsayya (1) was of the opinion that  when an objection under s. 123 is taken the court has no power to inspect  the  document but may take other evidence  for  the purpose  of  deciding the objection and if it comes  to  the conclusion  that  the  evidence will  be  derived  from  the unpublished records relating to the affairs of the State the objection will have to be upheld and it will be left to  the head  of the department to give or withhold  the  permission and the criterion for the head of the department was whether or not the disclosure would cause injury to public  interest and he was the sole judge of the matter with which the court cannot interfere.  This case does not support the contention of the respondent. The  Patna  High Court in Lakhuram Hariram v. The  Union  of India  (2) held that the head of the department  must  first examine the document and he may then raise an objection  but he is not absolved from the obligation of appearing in court and  satisfying the court that the objection taken is  valid and  the  court  may require him to  give  an  affidavit  or further  questions may be put in regard to the  validity  of the claim but the court is not entitled to inspect the docu- ment. A.   P.  Srivastava, J., in Tilka & Ors. v. State, (3)  held that under s. 162 of the Evidence Act the court may  inspect a document unless it relates to affairs of State and in such a  case it will have to take other evidence relating to  the nature of the document. The  words  of s. 123 are very wide; and the  discretion  to produce or not to produce a document is given to the head of the  department and the court is prohibited from  permitting any  evidence  to  be  given  which  is  derived  from   any unpublished documents relating to affairs of State.  Section 162  does not give the power to the court to call for  other evidence  which will indicate the nature of the document  or which will (1) I.L.R. [1957] And.  Prad. 174. (2) A.I.R. 1960 Pat. 192. (3)  A.I.R. 1960 All. 543. 56 442 have any reference to the reasons impelling the head of  the department  to withhold the document or documents.   In  the very nature of things when the original cannot be looked  at and  no secondary evidence is allowable the court will  only be  groping  in  the dark in regard to  the  nature  of  the document or the evidence.  The correct way of looking at the Indian  statute,  therefore, is to interpret in  the  manner which is in accord with the English law, i.e., the court has not  the power to override ministerial  certificate  against

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production. It is permissible for the court to determine the  collateral facts  whether  the official claiming the privilege  is  the person mentioned in s. 123, or to require him to file proper affidavit or even to cross-examine him on such matters which do  not  fall  within the enquiry as to the  nature  of  the document  or  nature  of the injury but  he  may  be  cross- examined  as  to  the  existence  of  the  practice  of  the department to keep documents of the class secret but  beyond that ministerial discretion should be accepted and it should neither be reviewed nor overruled. For these reasons I concur in the decision that this  appeal must be allowed. SUBBA  RAO, J.-I have perused the judgments prepared  by  my learned  brethren,  Kapur and Gajendragadkar, JJ.   I  agree with them in maintaining the claim of privilege in regard to the three items described as "original orders" passed by the PEPSU Government, but regret my inability to agree with them in regard to the report of the Service Commission. This appeal raises the question of the scope and content  of the  law of privilege attached to affairs of State  and  the procedure to be followed for ascertaining it.  The facts are fully  stated in the said judgments and I need  not  restate them;  but  I  would prefer to give my own  reasons  for  my conclusion. It  would be convenient at the outset to clear  the  ground. The  arguments at the Bar have covered a wide field, but  we are not concerned here with the law of privilege  pertaining to  the field of discovery and inspection of documents.   We are called upon only to decide its 443 scope  during  the trial of a suit when a  witness,  who  is summoned  to  produce a document, claims  privilege  on  the ground  that  the document relates to affairs of  State.   I should  not be understood to have expressed any  opinion  on the  difficult  question  whether when the  defendant  is  a State,  the Court is not entitled to inspect  the  documents under 0. XI, rule 19(2), Code of Civil Procedure. The  question falls to be considered on a true  construction of  two of the provisions of the Indian Evidence  Act,  1872 (hereinafter called the Act), namely, ss. 123 and 162.  They read: Section 123: "No one shall be permitted to give any evidence derived  from unpublished official records relating  to  any affairs 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:  "A  witness summoned to  produce  a  document shall,  if  it is in his possession or power,  bring  it  to Court,  notwithstanding any objection which there may be  to its production or to its admissibility.  The validity of any such objection shall be decided on by the Court. 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 on its admissibility. If for such a purpose it is necessary to cause any  document to  be translated, the Court may, if it thinks  fit,  direct the  translator  to  keep the contents  secret,  unless  the document is to be given in evidence; and if the  interpreter disobeys such direction, he shall be held to have  committed an offence under section 166 of the Indian Penal Code (45 of 1869)." The  relevant  parts  of  the  foregoing  sections  may   be summarized  thus-.  Section 123 prohibits the giving of  any evidence derived from unpublished official records  relating

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to  affairs  of  State except with  the  permission  of  the officer at the head of the department; while s. 162  enjoins on  a witness summoned to produce a document to bring it  to Court and empowers 444 the Court to decide on the validity of any objection  raised in respect of its production or admissibility.  The argument of the Advocate-General is that the words "affairs of State" mean  "the  business  of State",  and,  therefore,  evidence derived  from any unpublished official document relating  to that  business cannot be given as evidence except  with  the permission of  the  head  of the department  concerned,  and that  the Court under  s. 162 of the Act must  automatically accept  the  affidavit filed by the head of  the  department claiming   such  a  privilege.   Learned  counsel  for   the respondent, on the other hand, defines the words "affairs of State"  only to take in documents whose production would  be against public interest, confines the power of the head of a department to permit or withhold the user of such a document in  evidence, and sustains the Court’s power to  decide  the question  of  privilege  in respect of such  a  document  on relevant materials without inspecting the document. The  crucial  words  in s. 123  are,  "unpublished  official records  relating  to  any affairs of  State".   Under  that section  no  one  shall be permitted to  give  any  evidence derived from such records except with the permission of  the officer at the head of the department concerned.  The  words "affairs of State" have not been defined.  Though in s.  123 the words used are &’affairs of State", in s. 162 the  words used  are "matters of State".  There does not appear  to  be any practical difference between the two sets of words.   In Shorter Oxford Dictionary, III edition (1956), "matter"  has been  defined as "a thing, affair, concern" and "affairs  of State"  as "public business".  These Dictionary meanings  do not  help  to  decide the content of the  said  words.   The content  of the said words, therefore, can be gathered  only from the history of the provision.  It has been acknowledged generally,  with some exceptions, that the  Indian  Evidence Act was intended to and did in fact consolidate the  English Law  of  Evidence.   It  has also  often  been  stated  with justification  that  Sir  James  Stephen  has  attempted  to crystallize  the principles contained in Taylor’s work  into substantive propositions.  In case of doubt or 445 ambiguity over the interpretation of any of the sections  of the  Evidence  Act we can with profit look to  the  relevant English common law for ascertaining their true meaning.   In English  common  law the words "affairs of.  State"  do  not appear.  The basis of the doctrine of Crown privilege is the injury  to the public interests.  The Judicial Committee  in Robinson v. State of South Australia (1) says at p. 714, "The  principle of the rule is concern for public  interest, and the rule will accordingly be applied no further than the attainment  of that object requires." The House of Lords  in Duncan  v.  Cammell Laird & Co. (2) restated the  same  idea when  it  observed that the State should  not  withhold  the production  of  documents except in cases where  the  public interest would otherwise be damnified. The  earlier decisions of the English courts  indicate  that the  Crown  privilege  was  sustained  only  in  regard   to documents pertaining to matters of administration,  defence, and foreign relations whose disclosure would be against  the public interest: see Home v. Lord F. C. Bentinck (3),  Smith v. The East India Company (4) and Beatson v. Skene, (5). The decisions of the High Courts in India over a long period

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of  time  consistently  gave the same meaning  to  the  said words.   It  may also be stated that in and about  the  time when  the Evidence Act was passed, the concept of a  welfare State  had  not  evolved  in India and  as  such  the  words "affairs  of  State"  could not have  been,  at  that  time, intended to take in the commercial or the welfare activities of  the State.  But when the words are elastic there  is  no reason  why they should not :be so construed as  to  include such  activities  also,  provided the  condition  of  public injury is also satisfied.  It is, therefore, clear that  the words "affairs of State" have acquired a secondary  meaning, namely, those matters of State whose disclosure would  cause injury to the public interest. (1)   [1931] A.C. 704.   (2) [1942] A.C. 624. (3)  (1820) 2 Brod. & B. 130: 129 E.R. 907. (4)  (1841) 1 Ph. 50; 41 E.R. (Chancery) 550. (5)  (1860 5 H. &. N. 838. 446 The    learned   Advocate-General   contends    that    this construction,  if  accepted,  would give a  meaning  to  the provisions  of s. 123 of the Act which would be contrary  to its tenor.  He classifies documents relating to "affairs  of State"  into noxious and innocuous documents,  and  contends that  documents,  whose disclosure would affect  the  public interest,  are  noxious documents and that  if  the  records which  relate  to  the affairs of State  mean  only  noxious documents,  the said construction would bring out  a  result directly opposite to that contemplated by the section.  When the  section intends to prohibit the disclosure  of  noxious documents,  the argument proceeds, the construction  enables their  disclosure if the head of the department permits  it. Shortly  stated,  his  contention  is  that  the  expression "affairs of State", that is, business of State, is the genus and  the  document, the disclosure of which is  against  the public  interest, is the species, and that the head  of  the department  is  only empowered to permit the  disclosure  of documents  falling outside the said species.  This  argument is  apparently logical and rather attractive, but it  is  an oversimplification  of  the  problem and  is  based  upon  a disregard  of the legislative history and the long track  of decisions  of  this country.  If accepted, it  enlarges  the scope of the said privilege to such an extent that in effect and substance the control of the admissibility of  documents shifts  from  the  Court to the  State  or  its  subordinate officers,  for  every document relating to the  business  of State would be a privileged document unless the head of  the department in his discretion permits the giving of  evidence derived  therefrom.  Nor can I accept the construction  that an absolute privilege is attached to every noxious document, i.e.,  to every State document the disclosure of  which  may cause  injury  to the public interest.  This is  giving  too narrow  a  meaning to the words "public interest".   If  the non-disclosure  of a particular State document is in  public interest,  the impartial and uneven dispensation of  justice by  Courts is also in public interest.  They are indeed  two aspects  of  public  interest.   There  is  no  conflict  or dichotomy between the two.  In particular 447 circumstances one aspect may be paramount and in a different set of circumstances the other may be given precedence.   In the  last analysis, it is the question of balancing  of  the two  aspects  having  regard  to  the  circumstances  of   a particular  case.   The  head of a department  may  as  well permit  the disclosure of a document even if ordinarily  its disclosure  affects public interest, if in his  opinion  the

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counter-balancing circumstances are in favour of  disclosure rather  than  non-disclosure.  I cannot, therefore,  give  a wide  meaning to the words "records relating to  affairs  of State" so as to take in every unpublished document  pertain- ing  to the entire business of State, but confine them  only to such of the documents whose disclosure would be injurious to public interest. The  next question is, who is empowered to decide  the  said question whether a particular document relates to affairs of State ?-whether it is the Court or the State.  That is found in s. 162 of the Act.  The learned Advocate-General contends that  the first part of s. 162 makes a  distinction  between the  production  of a document and the  admissibility  of  a document  and that the first limb of the second part of  the section  provides for the production of a document  and  the second  limb  for  its admissibility.   He  illustrates  his argument  thus:  privilege  may  be  raised  in  respect  of production  of a document on the ground that it pertains  to matters  of State, or on the ground that it is  inadmissible for  want  of registration deficiency of stamp,  or  similar other  defects.  The first clause of the second part  of  s. 162,  the argument proceeds, enables the Court to inspect  a document when the objection is to its production unless  the document refers to a matter of State, and the second  clause thereof  empowers the Court to take evidence only  when  the objection is not to its production but to its admissibility. If this contention be accepted, it will lead to an  anomaly, for grammatically construed the two limbs of the second part can be applied only to the question of admissibility and  in that  event,  on  the hypothesis suggested  by  the  learned counsel, the Court will be entitled to look into a  document even if it relates to a 448 matter  of State if the objection is only to its  production and   not  to  its  admissibility.   The   more   reasonable construction  of the section is to give a wider  meaning  to the word "admissibility" so as to comprehend both production as well as admissibility, for the question of  admissibility arises only after the document is produced and a party seeks to  get it admitted in evidence.  In this view,  the  second part  of  s.  162 can only mean that when  an  objection  is raised either to the production or to the admissibility of a document, a Court can inspect the document and if it  thinks necessary  other  evidence  may be taken to  decide  on  the objection  raised. By the express terms of the  section  the Court  is precluded from inspecting a document if it  refers to matters of State.  But in other respects the jurisdiction of  the  Court  to decide on the  objection  raised  is  not different  from  that  it  possesses  in  respect  of  other privileged documents. If so understood there cannot be any ambiguity in the  scope of s. 162 of the Act.  It says in express terms that when an objection  is raised to the production of a document  or  to its admissibility, the validity of any such objection  shall be  decided  by the court.  The second part of  the  section states the material on the basis of which such an  objection can be decided.  It can either inspect the document or  take other  evidence to enable it to decide the validity  of  any objection  raised.   The only limitation in the  case  of  a document  referring  to matters of State is that  the  court cannot inspect it.  It is implicit in the limitation that in the  case  of documents pertaining to matters of  State  the court  is precluded not only from inspecting  the  documents but  also  from  permitting  parties  to  adduce   secondary evidence  of  their  contents.  "The  other  evidence"  must

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necessarily be de hors the contents of the documents. Even  in  England  there is no divergence  of  view  on  the question  who  has  to  decide, when  an  objection  to  the production  of  a  document  is  raised  on  the  ground  of privilege,  the  validity of the objection.   In  Robinson’s case (1), the Judicial Committee observed at p. 716 thus: (1)  [1931] A.C. 704. 449 "The  result  of  the  discussion  has   been............... wherein  effect  he concludes that the Court  has  in  those cases  always had in reserve the power to inquire  into  the nature of the documents for which protection is sought,  and to  require some indication of the nature of the  injury  to the State which would follow its production.  The  existence of such a power is in no way out of harmony with the  reason for  the privilege provided that its exercise  be  carefully guarded  so  as not to occasion to the  State  the  mischief which  the privilege, where it exists, is designed to  guard against." The  House  of Lords in Duncan’s case (1),  also  recognized this power though it whittled down its scope by holding that the judge had to accept automatically the affidavit filed by a  minister.   Viscount Simon, L. C., states at  p.  642  as follows: "Although  an objection validly taken to production, on  the ground that this would be injurious to the public  interest, is conclusive, it is important to remember that the decision ruling   out   such  documents  is  the  decision   of   the judge................  It is the judge who is in control  of the trial, not the executive, but the proper ruling for  the judge to give is as above expressed." On the other hand, in Scotland the inherent right of  courts to override official discretion is recognized.  The House of Lords in Glasgow Corporation v. Land Board (2) gave a  clear exposition  of  the law of that country.   Viscount  Simonds derives  the  principle of the court’s power from  the  fact that the fair administration of justice between subject  and subject  and the Crown is a public interest of higher  order and  the  protection  is  the  care  of  the  courts.   Lord Radcliffe finds it on the doctrine that the interest of  the Government   for  which  the  minister  should  speak   with authority does not exhaust the public interest, for  another aspect  of that interest is seen in the need that  impartial justice should be done in courts of law.  These judgments of the  high authority also recognized the fact that it is  the court that has to decide an objection (1)  [1942] A.C. 624.    (2) (1956) S.C. (H.L.) 1. 57 450 raised by the State on the ground of privilege.  There is  a strong current of Indian decisions taking the same view: see Khawja  Nazir Ahmad v. Emperor (1), re Mantubhai Mehta  (2), B.  M.  D.  Chamarbaugwala v.Y. R. Parpia (3  ),  Lijat  Ali Talukdar  v.  Emperor  Bhaiya  Saheb  v.  Ramnath  Rampratap Bhadupote  Public  Prosecutor,  Andhra  v.  Damera   Venkata Narasayya  Lakhuram Hariram v. The Union of India  Tilka  v. State  (8).  In a few cases a different view  is  expressed. It may, therefore, be stated without contradiction that  the preponderance of authority is in favour of a court  deciding the question of State privilege. Some  objections are raised in decided cases in England  and restated  in  Duncan’s case (9) against  conferring  such  a power  on  courts.   Apart from the fact  that  the  statute expressly  confers such a power, there are no merits in  the objections  raised.  The objections are: (i) the judges  are

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not  well  qualified  to  appreciate  the  highly  technical matters  which may arise with regard to some kinds of  State secrets;  (ii) if a judge is allowed to decide  on  evidence the  question of privilege, it may prejudice a  fair  trial; and (iii) it is a first principle of justice that the  judge should  have  no  dealings on the matter in  hand  with  one litigant save in the presence of and to the equal  knowledge of the other.  The objections raised have no substance.  The first  objection,  if accepted, disqualifies  a  judge  from deciding  complicated technical questions that arise  before him.   A judge is trained to look at things objectively  and can  certainly decide, without inspecting the  documents  on the  material supplied whether the production of a  document will  affect  the  public  interest  having  regard  to  the circumstances of each case.  Nor are there any merits in the second objection.  In the words of Sir C. K. Allen, a  judge worthy  of  his office can put out of his  mind  all  issues except  those which are raised and decided by  the  forensic process.   It  is common place that a judge  is  trained  to decide a case only on (1)  I.L.R. [1945] Lah. 219.  (2)  I.L. R. [1945] BOM. 122. (3)  A.I.R. 1950 Bom. 230.    (4)  I.L.R. [1944] 1 Cal. 410. (5)  I.L.R. (1940] Nag. 240.  (6)  I.L.R. [1957] P. 174. (7)  A.L.R. 1960 Pat. 192.    (8)  A.I.,R. 1960 All, 543,                     (9) [1942) A.C. 624. 451 the admissible evidence actually adduced before him and  not on any extraneous considerations.  The third objection  also has no basis in fact.  So long as a judge takes care to rule out  any question on the contents of a document  in  respect whereof  privilege is claimed, he can certainly  decide  the question   in  the  presence  of  both  the  parties.    The objections  have,  therefore, no substance.   On  the  other hand,  there is every reason why the duty to decide  on  the question of State privilege must be left to a judge and  not to  the  State.   That is the  reason  why  the  legislature rightly  conferred that power on the court.  A judge  is  as much  a  part of a department of the State as  an  executive officer.   But  unlike  the executive officer,  a  judge  is trained  to decide cases objectively not only between  indi- viduals inter se but also between the State and individuals. He  can, therefore, be trusted to decide impartially on  the question whether the production of a document in a case will affect   the   public  interest.   State  documents   in   a secretariat,  I  presume,  will  be’  looked  into  by  many officers dealing with the said documents, sometimes from the lowest  to  the  highest in the  department.   It  would  be unrealistic  to  suggest  that the  disclosure  of  a  State document  to any one of those officers would not affect  the public  interest whereas the decision of its character by  a judge would do so.  It is, therefore, the duty of the court, whenever  an  objection  is raised on the  ground  of  State privilege  to  decide  on  relevant  evidence  whether   the document relates to affairs of State. Even  if  the  wide construction of the  words  "affairs  of State",  namely, business of State, be accepted, the  result will  not be different.  The section says that no one  shall be  permitted to give any evidence derived from  unpublished official  records relating to affairs of State, except  with the permission of the officer at the head of the  department concerned.   The  expression  "affairs  of  State"  in   its ordinary  significance is of the widest amplitude  and  will mean the entire business of State.  It takes in the  routine day-to-day administration and also highly confidential  acts involving defence and foreign relations, and also in  modern

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times 452 the multifarious activities of a welfare State.  The  object of the section is simply to prohibit the use of  undisclosed documents of State in evidence by persons who in the  course of  their  duties deal with or look  into  those  documents, without  the  permission of the officer at the head  of  the department concerned.  The words used in the section "as  he thinks fit" confer an absolute discretion on the head of the department to give or withhold such permission.  The section does not lay down that the head of the department  concerned should  refuse  permission only if  the  disclosure  injures public interests, though ordinarily he may refuse permission on  such matters affecting the State.  One can  visualize  a situation  when  the  officer in exercise  of  his  absolute discretion  refuses  to give permission for the use  of  not only noxious documents but even of innocuous ones.  The only limitation  on his power is his reason and experience.   The absolute discretion is capable of giving rise to mistake  or even  conscious abuse.  The section does not really  involve any  doctrine  of  State privilege but is  only  a  rule  of commonsense and propriety.  If the officer gives permission, there is an end of the matter; but, if he refuses, the party affected  may  take  out  necessary  summons  to  the  State Government  to produce the document.  The  State  Government may  depute one of its officers to produce the  document  in court.   Then only the occasion for raising the question  of privilege  arises  and s. 162 governs  that  situation.   An overriding  power in express terms is conferred on  a  court under s. 162 of the Act to decide finally on the validity of the objection raised on the ground of privilege.  The  court will  disallow the objection if it comes to  the  conclusion that  the  document does not relate to affairs of  State  or that the public interest does not compel its non-disclosure, or that the public interest served by the administration  of Justice in a particular case overrides all other aspects  of public  interest.  This conclusion flows from the fact  that in  the  first  part  of  s. 162 of  the  Act  there  is  no limitation  on the scope of the court’s decision, though  in the second part the 453 mode of enquiry is hedged in by conditions.  In England,  in the  absence of a provision or a rule of common law  similar to  that of s. 162, there was room for conflict of views  on the  scope  of  the court’s power.  On the  other  hand,  in Scotland the common law corresponding to s. 162 was  invoked and the House of Lords recognized the inherent power of  the Court to reject a claim of Privilege if the Court comes to a conclusion that the paramount interest of the administration of  justice demands or compels such a  disclosure.   Section 162  of the Act in terms confers a similar power  on  courts and though it may have to be used with circumspection, it is a real and effective power.  There is no conflict between s. 123  and s. 162 of the Act: the former confers a power on  a head of a department to withhold permission from the  stand- point of State administration, whereas s. 162 recognizes the overriding power of a court in the interest of higher public interest to overrule the objection of privilege. The next point is, what is the procedure to be followed by a judge  for deciding on the said objection?  When an  officer of the State is summoned as a witness to produce a document, if  the State seeks to take a plea of privilege then  it  is the  duty  of  the  minister in  charge  of  the  department concerned  to file an affidavit at the first instance.   The affidavit  so  filed shall ex facie show that  the  minister

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concerned  has read and considered each of the documents  in respect  of which the privilege is claimed.  It  shall  also contain   the  general  nature  of  the  document  and   the particular danger to which the State would be exposed by its production.  If the court is not satisfied with the contents of  the  affidavit,  to  enable it  to  decide  whether  the document in question refers to the affairs of State, it  can summon  the minister to appear as a witness.  In effect  and substance   the  said  procedure  has  been   suggested   in Robinson’s  case (1) at p. 722.  The same procedure is  also indicated  in  Duncan’s case (2) at p. 638.  In  the  second case  above  referred, Viscount Simon L.C. says  at  p.  638 thus: (1) (1931] A.C. 704.              (2) [1942] A.C. 624. 454 "If the question arises on subpoena at the hearing it is not 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.  I see  no  harm in that procedure, provided it  is  understood that  this is only for convenience and that if the court  is not satisfied by this method, it can request the  minister’s personal attendance." It  may  be  suggested that this procedure  may  cause  some inconvenience  to  the  minister  concerned.   But  if   one realizes  that  every act of the exercise of  the  right  of privilege  detracts from the fair disposal of a case  before the  court  and that the administration of justice  is  also part of the general conduct of the affairs of any State  and that  its  impartiality and purity are as important  as  any other  public interests, one will also appreciate  that  the requirement  of  the personal attendance of a  minister,  if necessary,  to  support his affidavit would be  to  a  large extent a guarantee against unjust objections that may other- wise  be raised.  It is suggested that an affidavit  of  the head  of  a department, such as the Secretary, would  do  as well  as  that  of a minister, but  there  is  an  essential distinction  between a Secretary and a minister: the  former may  be  frequently  tempted  to  take  the  opposite  view, particularly in cases where a claim against the State  seems to  him to be harsh or unfair, while the latter,  being  the political  head  subject to parliamentary  control,  may  be expected, if he carefully scrutinizes a particular document, not  to  take such objection which obstructs  the  cause  of justice  unless absolutely necessary.  I  would,  therefore, hold  that  the  affidavit which states  that  a  particular document  relates to affairs of State must be sworn to  only by  a  minister in charge of the  department  wherefrom  the document or documents are summoned. The next point is, what are the well established rules which help  the  court  to decide whether  a  particular  document pertains to affairs of State or not?  The following relevant rules may be extracted from 455 the  decision of the Judicial Committee in  Robinson’s  case (1): (1) the privilege is a narrow one most sparingly to  be exercised;  (2)  the principle of the rule  is  concern  for public interest and the rule will accordingly be applied  no further than the attainment of that object requires; (3)  as the  protection is claimed on the broad principle  of  State policy  and  public convenience, the  papers  protected,  as might have been expected, have usually been public  official documents  of a political or administrative  character;  (4) its  foundation is that the information cannot be  disclosed

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without  injury  to the public interests and  not  that  the documents  are confidential or official, which alone  is  no reason  for  their non-production; (5) even in the  case  of documents relating to the trading, commercial or contractual activities  of a State, it is conceivable that there may  be some   plain  overruling  principle  of   public   interest. concerned  which cannot be disregarded; though in  times  of peace  such cases must be very rare.  The House of Lords  in Duncan’s  case (2) has laid down the following negative  and positive tests for deciding the question of privilege of the State.   The negative tests are: (1) it is not a  sufficient ground that the documents are State documents or official or marked  confidential  ; (2) it would not be  a  good  ground that, if they were produced, the consequences might  involve the department or the government in parliamentary discussion or in public criticism, or might necessitate the  attendance as  witnesses  or otherwise of officials who  have  pressing duties  elsewhere; (3) neither would it be good ground  that production might tend to expose a want of efficiency in  the administration or tend to lay the department open to  claims of  compensation.   The positive test is, where  the  public interest  would otherwise be damnified, for  example,  where disclosure  would  be injurious to national defence,  or  to good diplomatic relations, or where the practice of  keeping a  class  of documents secret is necessary  for  the  proper functioning of the public service.  The last test has  given rise  to  mild but definite protests within  the  limits  of judicial propriety by the learned judges who (1) [1931] A.C. 704.             (2) [1942] A.C. 624. 456 had the occasion to deal with the question of privilege  and to vehement protests from jurists.  Sir C. K. Allen, in  his book "Law and Orders" (2nd edition), has observed at p.  384 thus: "Everybody  is  agreed  that  public  security  and  foreign relations  are necessary heads of privilege.  Both are  wide in scope, and it is doubtful whether any other ’head’  needs to  be  specified..................  It would  be  of  great advantage  if  statute could put an end  to  the  pernicious doctrine  that  privilege  can be  claimed  for  classes  of documents." The  argument of the learned Advocate-General is based  upon an  apprehension,  which in my view is unfounded,  that  the court  may  always refuse the affidavit of  a  minister  and insist   on  his  personal  attendance.    The   unpublished documents  relating to defence, foreign relations and  other documents  of  great public importance  rarely  come  before municipal  courts.   Occasionally  documents  of  day-to-day administration  of the State may be relevant  evidence,  but very  often  documents pertaining to mercantile  or  welfare activities  of  the State would be summoned to  establish  a particular  claim.   In the case of documents  of  undoubted public importance, when the minister swears to an  affidavit that  in his discretion their production is  against  public interest, it may reasonably be expected that the judge would accept  the  statement.  But the real difficulty is  in  the case  of  other documents, where the  interests  of  private individuals  and  the State come into  conflict,  the  judge should  be in a position to examine the minister and  others to  ascertain by evidence collateral to the contents of  the documents  whether the assertion of the minister  is  justi- fied. The aforesaid discussion yields the following  propositions: (1)  under  s.  162 of the Evidence Act the  court  has  the overriding power to disallow a claim of privilege raised  by

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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 457 disclosure  clearly  outweighs  that  served  by  the   non- disclosure.   One  of  such instances is  where  the  public interest  served  by  the administration  of  justice  in  a particular  case  overrides  all  other  aspects  of  public interest.  (2) The said claim shall be made by an  affidavit filed by the minister in charge of the department  concerned describing the nature of the document in general and broadly the category of public interest its non-disclosure  purports to  serve.  (3)  Ordinarily  the  court  shall  accept   the affidavit  of a minister, but in exceptional  circumstances, when  it has reason to believe that there is more than  what meets  the eye, it can examine the minister and  take  other evidence  to decide the question of privilege. (4) Under  no circumstances can a court inspect such a document or  permit giving of secondary evidence of its contents. (5) Subject to the  overriding power of the court to disallow the claim  of privilege  in  exceptional  cases,  the  following   provide working  rules of guidance for the courts in the  matter  of deciding the question of privilege in regard to  unpublished documents  pertaining  to  matters of  State:  (a)  "records relating to affairs of State" mean documents of State  whose production would endanger the public interest; (b) documents pertaining to public security, defence and foreign relations are documents relating to affairs of State; (e)  unpublished documents  relating  to trading, commercial  or  contractual activities   of  the  State  are  not,  ordinarily,  to   be considered as documents relating to affairs of State; but in special  circumstances they may partake of  that  character; (d)  in cases of documents mentioned in (c) supra, it  is  a question of fact in each case whether they relate to affairs of  State  or not in the sense that if  they  are  disclosed public interest would suffer. Bearing  the aforesaid principles in mind, I shall  construe the nature of the documents in respect of which privilege is claimed  in the present appeal.  The so called order of  the PEPSU  Government  is  really the minutes  recorded  in  the course  of  cabinet discussions.  Under Art. 163(3)  of  the Constitution, the question 58 458 whether  any,  and  if  so  what,  advice  was  tendered  by ministers to the Governor shall not be inquired into in  any court.   In view of the constitutional protection,  and  the reason  underlying  such  protection, I  hold  that  in  the present case the district court was right in sustaining  the claim of privilege in regard to the said document. In  regard to the report of the Service Commission,  on  the assumption that it is a relevant document, I cannot see  how public   interest  suffers  by  its   disclosure.    Service Commission  is  a statutory body constituted  with  definite powers  conferred on it under the Constitution.  Under  Art. 320(3)(c)  of  the  Constitution the  State  Public  Service Commission  shall be consulted on all  disciplinary  matters affecting a person serving under the Government of a  State. This  is one of the constitutional protections conferred  on public  servants.   I cannot visualize how  public  interest would  suffer  if  the  report  submitted  by  the   Service Commission  to  the  Government is disclosed,  and  how  the disclosure of such a report prevents the Service  Commission

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from expressing its views on any other case in future passes my  comprehension.   It  may expose  the  Government  if  it ignores a good advice; but such’ an exposure is certainly in public  interest.  The Constitution does not put a  seal  of secrecy  on the document; nor, in my view,  public  interest demands   such   secrecy.   In  a   conflict   between   the administration of justice and the claim of privilege by  the State,  I  have  no  hesitation to  overrule  the  claim  of privilege. Before  closing, I must notice one fact.  In this case,  the Chief  Secretary filed an affidavit.  But, in my  view,  the minister should have done it.  The respondent did not object to  this either in the district court or in the High  Court. In  the  circumstances,  I would not  reject  the  claim  of privilege on the basis of this procedural defect. In  the result, I would allow the appeal in respect  of  the minutes of the cabinet and dismiss it in other respects.  As the parties have succeeded and failed in part, I direct them to bear their own costs throughout. 459 BY  COURT: In accordance with the opinion of  the  majority, this  appeal is allowed, the order passed by the High  Court is set aside and that of the trial court restored with costs throughout.                                         Appeal allowed.