Report No. 185

Sections 123, 124 & 162:

This Section and the next Section and Section 162 are important and have to be dealt with together. Section 123 deals with privilege in regard to privilege as to "affairs of State" while Section 124 deals with privilege in respect of 'official communications'. Section 162 deals with production of documents in Court. The two Sections read as follows:

"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 No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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."

"124. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure."

This Section has to be considered in the light of subsequent developments in the laws in various countries including England. Section 162 (Evidence Act) has also to be kept in mind. That Section reads as follows:

"Section 162. Production of document.- A witness summoned to produce a document shall, if it is in his possession or power, bring it to the 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

Translation of documents"

In the 69th Report, in Chapter 65, the discussion relating to Section 123, 162 is contained in page 645 to 686. The discussion is under the following headings.

(I) Introductory;

(II) History and Rationale;

(III) Essential Conditions;

(IV) Affairs of State;

(V) Authority Competent;

(VI) Procedure;

(VII) Illustrative Case from Andhra;

(VIII) English Law;

(IX) Position in US.-

(1) Criminal Proceedings;

(2) Civil Proceedings with State as plaintiff;

(3) Civil Proceedings with State as defendant;

(4) State not a Party;

(5) Public Authorities other than Central Government;

(X) Other Countrie.- Australia, France, Scotland, Kenya, Sweden;

(XI) Result of the 315 Comparison;

(XII) Points for Amendment;

(XIII) National Security; (XIV) Case law disallowing claim;

(XV) Recommendation regarding Section 123.

Recommendations regarding Section 162 are contained at page 671, paras 65.83A and 65.85 of the 69th report.

So far as Section 124 is concerned, it is dealt with in the 69th Report in Chapter 66. The discussion is under the following headings: (I) Introductory; (II) English Law; (III) Points for Amendment; (IV) Meaning of official confidence; (V) Recommendation.

In regard to amendment to Section 123 and 124, there were reservations by Justice Dhawan and Shri Sen Verma.

Order 16 Rule 6 of the Code of Civil Procedure, 1908 and Section 91(2) of the Code of Criminal Procedure, 1973 refer to the procedure to be followed by the Court for summoning documents.

We may here also refer to the 88th Report of the Law Commission (7th January 1983) where several recommendations were made in connection with Sections 123, 124 and 162.

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