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If under section 123 a dispute arises as to whether the 385 evidence in question is derived from unpublished official records that can be easily resolved ; but what presents considerable difficulty is a dispute as to whether the evidence in question relates to any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 section 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 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 section 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 section 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 section 123 387 is that there is a general prohibition against the pro 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 section 123 that Mr. Seervai seeks to build up similarity between section 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 section 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 section 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 section 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 section 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 objections to the production or admissibility of evidence specified in section 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 section 123 but all other objections as well. |
Take for instance the privilege claimed under section 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 section 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 section 162. |
The second clause of section 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 section 162 by inspecting the document while holding an enquiry into the validity of the objection raised against its production under section 123, and that would be inconsistent with the material provision in cl. 2 of section 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 section 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 section 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 section 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 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 section 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 section 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 section 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 section 123. |
it is well settled and not disputed that the privilege should not be claimed under section 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 section 114 of the Act. |
Where, however, section 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 section 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 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 section 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 vs Emperor (1)). |
(1) 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 section 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 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 section 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 section 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 sections 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 section 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 section 162, whereas the contrary position which is also extreme in character ignores the provisions of section 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 section 123 and section 162 read together; it recognises the power conferred on the Court by cl. |
(1) of section 162, and also gives due effect to the discretion vested in the head of the department by section 123. |
It would thus be clear that in view of the provisions of section 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 section 162 is intended to repel the minority view of Baron Martin in the case of Beatson (1). |