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I cannot, therefore, give a wide meaning to the words "records relating to affairs of State" so as to take in every unpublished document pertain ing to the entire business of State, but confine them only to such of the documents whose disclosure would be injurious to public interest.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 section 162 of the Act.

The learned Advocate General contends that the first part of section 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 section 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 section 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 section 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 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) 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 vs 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) ; (2) ; 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 vs Emperor (1), re Mantubhai Mehta (2), B. M. D. Chamarbaugwala vs

Y. R. Parpia (3 ), Lijat Ali Talukdar vs Emperor Bhaiya Saheb vs Ramnath Rampratap Bhadupote Public Prosecutor, Andhra vs Damera Venkata Narasayya Lakhuram Hariram vs The Union of India Tilka vs 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 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. (2) I.L. R. (3) A.I.R. 1950 Bom.

(4) I.L.R. (5) I.L.R. (1940] Nag. 240.

(6) I.L.R. (7) A.L.R. 1960 Pat.

(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 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 section 162 governs that situation.

An overriding power in express terms is conferred on a court under section 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 section 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 section 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 section 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 section 123 and section 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 section 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 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) ; 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 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) (2) ; 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.