Report No. 185

Indian Law:

In this discussion, after referring to Sukhdev's case : AIR 1961 SC 493, we shall be elaborately referring to the discussion in S.P. Gupta's case: 1981. Suppl. SCC 87 from the Judgment of Bhagwati J (as he then was), which has practically settled the law on the subject finally. In fact, we will 328 be referring to several passages from S.P. Gupta's case in our discussion hereinbelow.

The first case to which reference has to be made is the one in State of Punjab v. Sodhi Sukhdev: (AIR 1961 SC 493). In that case a Judicial Officer in Punjab was removed by the President, during President's Rule and while considering his representation for reinstatement, the State Council of Ministers,- after the revocation of President's Rule,- called for the views of the Public Service Commission and instead of reinstating, decided to reemploy the officer.

This action was questioned by the officer and he called for the Report of the Service Commission to be produced. The Supreme Court treated the report of the Service Commission as part of the Minutes of the Minister and held it to be protected under Article 163(3) of the Constitution of India read with Section 123 of the Indian Evidence Act.

But in S.P. Gupta's case 1981 Suppl. SCC 87, Bhagwati J (as he then was) held that there was no basis mentioned in the judgment in Sukhdev's case as to how the Report of the Commission was treated as part of the minutes of the State Cabinet and held Article 163(3) could not be invoked. The learned Judge referred to openness of government as a basic feature of democracy (see paras 65, 66) and referred to the Report of the Franks Committee in UK and to the opinion of Mathew J in State of UP v. Raj Narain (AIR 1975 S.C. 865), in regard to the right to know. After referring to Article 19(1)(a) of the Constitution (see para 67), the learned Judge referred to the interpretation of Section 123 of the Evidence Act so as to restrict secrecy.

Adverting to Sukhdev's case in the context of Section 123, Bhagwati J stated that he agreed that 'public interest' was an important consideration while dealing with disclosure, with a view to see if there would be 'public injury'. He did not agree with Sukhdev that whenever a plea was raised that the document related to 'affairs of state', by way of a certificate of the head of the Department, the Court must fold its hands. The balancing act of protecting public injury and duty of disclosure required that the document be looked into by the Court (see para 68).

But, if the question whether the document related to 'affairs of state' was in issue, and if Sukhdev said such objections have to be decided, then unless the document is seen, such an issue cannot be decided. (para 69). If therefore the Court is to decide, then there is no point in giving finality to the certificate. "There may be a few cases" where by reference to the class of the document it may be possible to hold that it related to 'affairs of state'.

But "by and large", once the Court "has found that the document is of such a character that its disclosure wIllustration cause injury to public interest, it would be futile to leave it to the head of the Department to decide whether he should permit its production or not." On this reasoning, Bhagwati J in S.P. Gupta's case dissented from Sukhdev. The learned Judge observed: (see para 69):

"The Court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that public interest does not compel its non-disclosure or that public interest in the administration of justice in the particular case before it overrides all 330 other aspects of public interest, it will overrule the objection and order or disclosure of the document. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the Court by reason of Section 162."

Earlier, Bhagwati J (see para 63) remarked that Section 123 is a "statutory provision of old vintage" because it was interpreted in a particular manner in Sukhdev's case twenty years earlier. He observed:

"It is an instrument which can speak again in a different voice in the content of a different milieu."

Bhagwati J observed that whenever a certificate is filed claiming injury to public interest as the reason for non disclosure, "the Court will be slow to question the opinion of the official unless there can be shown to exist some factor suggesting either "lack of good faith or an error of judgment or an error of law" on the part of the minister or head of the department. He observed:

"But even in such cases, it is now well settled that the Court is not bound by the statement made by the minister or the head of the department in the affidavit and it retains the power to balance the 331 injury to the State or the public interest against the risk of injustice, before reaching its decision."

The learned Judge relied upon the Burmah Oil Co. Ltd. v. Bank of England: 1978 AC referred to earlier. The learned Judge then observed (see para 70) that there is a class of documents which is protected and it includes "cabinet minutes, minutes of discussion between heads of department, high level inter-departmental communications and dispatches from ambassadors abroad" and referred to Conway v. Rimmer 1968 1 ALL ER 874; Reg v. Lewes Justus, ex parte Home Secretary 1973 A.C. 388.

He then held the protection extended to papers brought into existence for the purpose of preparing a submission to cabinet. (Lanyon Property Ltd. v. Commonwealth: 129 C.L.R. 650; and to documents which relate to the framing of governmental policy at a high level (Re, Grosvenor Hotel, London: 1964(3) All ER 354 (CA). However, having said so, Bhagwai J, again added:

"It is not necessary for us for the purpose of this case to consider what documents legitimately belongs to this class so as to be entitled to immunity from disclosure, irrespective of what they contain. But, it does appear that cabinet papers, minutes of discussions of heads of 332 departments and high level documents relating to the inner working of the government machine or concerned with the framing of government policies belong to this class which in the public interest must be regarded as protected against disclosure."

He stated in para 71 that there is some reason why this special class of documents is protected. It is because, in Government, there must be complete freedom and candour in stating facts, tendering advice and exchanging views and opinions and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them.

It was noticed by Bhagwati J that in Conway v. Rimmer 1968 AC 910 (952, 973, 979, 987, 993) Lord Reid dismissed the 'candour argument' summarily and so did Lord UpJohn at p. 952, by Lord Morris at p. 957 that candour would be encouraged rather than inhibited. The Court, according to Justice Bhagwati, has to balance public interest in nondisclosure and public interest in justice, even with regard to the so-called protected class of documents. Bhagwati J then stated:

"This balancing between two competing aspects of public interest has to be performed by the Court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.

Even in Conway v. Rimmer at p 952, Lord Reid recognized an exception that cabinet minutes and the like can be disclosed when they have become only of historical intererst, and in Lanyon Property Ltd. v. Commonwealth, (129 CLR 650, Australia) Menzies, J, agreed that there might be "very special circumstances" in which such documents might be examined. Lord Scarman also pointed out in the course of his speech in Burmah Oil Co. Ltd. v. Bank of England, that he did not accept "that there are any classes of documents which, however harmless their contents and however strong the requirement of justice, may never be disclosed until they are only of historical interest."

Bhagwati J then quoted Lord Scarman further as follows:

"But, is the secrecy of the 'inner workings of the government machine' so vital a public interest that it must prevail over even the most imperative demands of justice? If the contents of a document concern the national safety, affect diplomatic relations or relate to some State secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret government that it must be protected even at the price of injustice in our courts?

After referring to the two reasons of high level policies and need for candour in government records, Lord Scarman (as quoted by Bhagwai J) said in Burma Oil Co. case, as follows:

"I think both reasons are factors legitimately to be put into the balance which has to be struck between the public interest in the proper functioning of the public service (i.e. the executive aim of the government) and the public interest in the administration of justice. Sometimes the public service reasons will be decisive of the issue; but they should never prevent the Court from weighing them against the injury which would be suffered in the administration of justice if the document was not to be disclosed."

Similar view of Gibbs ACJ in Sankey v. Whitlam (1978) 21 Aust. L. Rep. 505 were extracted by Bhagwati J to say that even in regard to the special category of documents, the Court's power to inspect is not taken away.

Bhagwati J then held as follows (see end of para 73):

"There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to anyone by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases."

In para 74, Bhagwati J observed that in some special situation the class doctrine may include some new type of documents. But, the balancing act is again of the Court.

In para 76, it is stated by Bhagwati J that the procedure of the concerned head of department filing affidavit has to be followed. But, even otherwise, the court can, suo motu, consider that a document is such that its contents should not be disclosed. In para 77 adverting to Sukhdev, Bhagwati J said that there is no need for Indian courts not to follow the developments in English law in this branch. The court must have the residual power. He observed:

"It is true that under Section 162, the Court cannot inspect the document if it relates to affairs of State, but this bar comes into operation only if the document is established to be one relating to affairs of State. If, however, there is any doubt whether the document does relate to affairs of State, the residual power which vests in the Court to inspect the document for the purpose of determining whether the disclosure of the document would be injurious to public interest 336 and the document is therefore one relating to affairs of State, is not excluded by Section 162."

The observation in Raj Narain (AIR 1975 SC 865) of Ray CJ to the following effect (in the context of the Blue Book) were quoted:

"If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court", and "if the Court in spite of the affidavit wishes to inspect the document, the Court may do so."

Bhagwati J pointed out that Mathew J in Raj Narain's case referred to Amar Chand's case (AIR 1964 SC 1658) where the Court looked into the document.

Bhagwati J then said (see para 77) as follows:

"There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under Section 123, the Court may, in an appropriate case, inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course, this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the Minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought."

In para 78, Bhagwati J said "The Court is not bound by the affidavit made by the minister or the secretary" for the said authorities are not concerned with the second aspect relating to injury to the judicial administration. It is for the Court to decide the relative strength. (In para 79, he stated that, a document concerning liberty of a detainee, must be disclosed). In para 80, it was said the burden of proof to prevent disclosure, is in the State. In para 80, he observed:

"The doctrine of class immunity is therefore no longer impregnable; it does not anymore deny judicial scrutiny; it is no more a mantra to which the court pays obeisance. And this exercise has to be performed in the context of the democratic ideal of an open government".

The above views of Bhagwati J were accepted by a majority of Judges among the seven in S.P. Gupta's case.

We have considered the above views closely.

We are of the view that today the English law and the Indian law are almost the same, the residual power is with the Court to decide upon disclosure by balancing the injury to public interest and the injury to administration of justice. There is no special class of documents which have absolute protection from scrutiny by Court. Section 162 of the Evidence Act as also Section 123 have to be read in the light of what was decided in S.P. Gupta.

Sri Vepa P. Sarathi has stated that our law relating to departmental communications is wider and gives full powers to court to inspect, which is not there under English law. But so far as 'affairs of State' are concerned, he opines that the said words should be restricted to 'defence, law and order and diplomatic relations with other countries'.

Before we go into other details as to secs. 123, 124 and 162, we have to refer to the Freedom of Information Act, 2002 (Act 5 of 2003) published in the Central Gazette Extraordinary, Part II, Section 1 on 7.1.2003 at p.1.

That Act is intended, as stated in the Preamble, to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental.

The Act in Section 2(f) defines public authority, as any authority or body established or constituted-

(i) by or under the Constitution.

(ii) by any law made by appropriate government and includes certain other bodies financed.

So far as the exemptions in Section 8 are concerned, they do refer to records of government. Therefore, Section 2(f) has to be construed widely as including 'government' also.

So far as the impact of Act 5 of 2003 on secs. 123, 124 and 162 of the Evidence Act, 1872 is concerned, we may point out that (a) documents of which information is permitted under the above Act 5/2003, (b) information which is exempted under Section 8 of the said Act,- all of them are controlled by secs. 123, 124 and 162, whether they relate to affairs of the State or are communications made to public officers, or not.

S.P. Gupta's case, as accepted in the 88th Report (and its principle, accepted earlier in the 69th Report) and the principles accepted by us that the court can always call for and look into any document, a power which is absolute and universally accepted in all countries, governs even the exempted items in Section 8.

As the law is clear, it is not, in our view, necessary to make any special provision in regard to Act 5/2003 in the Evidence Act.

We are, however, of the view that the words 'unpublished official records relating to affairs of State' need not be restricted to any particular class and is best left to the courts. It is not necessary to recognise any class of documents inasmuch as the court is entitled to inspect all documents, if it thinks it necessary, while performing the balancing task referred to above.

We shall now refer to some other aspects which arise in connection with Sections 123, 124 and 162.

(a) Under sec.123, the objection to the production of the document may occur in a court subordinate to the High Court or in a High Court or in the Supreme Court of India. There is no difficulty for a decision thereon if the objection is raised in the High Court or the Supreme Court of India. But, if it is raised in a Court subordinate to the High Court and the objection that it concerns 'affairs of State' is rejected by a reasoned order, it will result in public disclosure of the contents of the record before an authoritative decision is given by the High Court.

The 88th Report of the Law Commission no doubt recommended a right of appeal to the High Court to be given against the decision of such a court rejecting the objection, whether in a civil or criminal proceeding. But in our view, if the court which is subordinate to the High Court rejects the objection as to production of the record, by a detailed order, the contents may indirectly get into public domain even before the appeal is filed in the High Court. In order to maintain confidentiality of the contents of the record before the question is authoritatively decided by the High Court, we would think that the subordinate court should, as soon as the objection is raised, whether in a civil or criminal proceeding, make a 'reference' to the High Court.

(b) The next question is about the power of the civil or criminal court, subordinate to the High Court, to make a reference.

Here, one other problem may have to be referred to. Under sec.113 of the Code of Civil Procedure, 1908 every civil court can refer a question of law to the High Court. But, the power of reference under sec.395 (2) of the Code of Criminal Procedure, 1973 is available only to the Sessions court and Metropolitan courts and not to other criminal courts. In order to get over this problem, we propose to introduce a non-obstante clause in the proposed subSection of sec.123 which would enable any court subordinate to the High Court to make a reference to the High Court, whether it is a civil court or criminal court.

(c) As pointed out in the 69th and 88th Reports of the Commission, there is some overlapping between sec.123 and sec.124. If a record relates to 'affairs of State' falling under Section 123 and also to an 'official communication' disclosed to an officer in official confidence, falling under Section 124, then the certificate of the head of the department under Section 123 (1) is necessary and the public officer has also be take a decision under sec.124.

Thus, both Sections 123 and 124 have to be complied with. In order to avoid such overlapping, we are proposing, as done in the 69th and 88th Reports, a separate provision in sec.124 that sec.124 shall not apply if 'affairs of State' are involved in such confidential communications to an officer. Where the objection relates to record or evidence derived from such record, relates to affairs of State, as under Section 123 (the record not having been published), or to official communications, which are related to affairs of State, as under Section 124, we are in agreement with the 69th and 88th Report that sec.123 alone should apply and not sec.124.

(d) In para 66.9 of the 69th Report, while dealing with sec.124 and the overlapping of the provisions, it was stated that sec.123 should be confined to 'records' and sec.124 to 'oral' communication made to the officer.

We differ from the 69th Report here. Under sec.123 (1) the words used are 'evidence derived from unpublished official records' and hence the objection may relate not only to production of such unpublished record but also to oral evidence which is derived from the record. In both situations, it may relate to 'affairs of State'. The only distinction between secs.123 and 124 to be made is that all objections as to 'affairs of State' must come under sec.123 only and not under sec.124. But sec.123 cannot be confined to 'record' and Section 124 to oral communications and in our view, Section 123 applies both to oral evidence derived from record, concerning affairs of State.

(e) Likewise, the statement in para 66.19 of the 69th Report that sec.124 refers to communications, made to an officer which are oral and not documentary, is in our view, not correct. The public officer may be asked to disclose what is orally communicated to him or as to the contents of any document communicated to him. The word 'communication' need not necessarily be oral.

(f) To make this clear, we recommend adding a separate Explanation in both Section 123 and a separate provision in sec.124. In sec.124, it is further to be made clear by subSection (3) that the communication to a public officer, if it relates to affairs of State, will fall only under sec.123.

After considering the recommendations in the 69th and the 88th reports and development of case law, we recommend that Section 123 should be substituted as follows:

"123. Evidence as to Affairs of State.- (1) Save as otherwise provided in this Section, ,-

(a) no person shall give evidence derived from unpublished official records relating to any affairs of State; or

(b) no public officer shall be compelled to disclose any oral, written or electronic communication relating to any affairs of the State made to him in official confidence, unless the officer at the head of the department concerned, has given permission for giving such evidence.

Explanation:- For the purposes of clause (a), the expression 'evidence derived from unpublished official records' includes the oral evidence derived from such records and the record itself.

(2) The officer at the head of the department concerned referred to in sub-Section (1), shall not withhold such permission, unless he is satisfied that the giving of such evidence would be injurious to the public interest; and where he withholds such permission, he shall file an affidavit in the Court, raising an objection and such objection shall contain a statement to that effect and his reasons therefor.

(3) Where the objection referred to in sub-Section (2) is raised in a Court subordinate to the High Court, whether in a civil or criminal proceeding, the said Court, notwithstanding anything in any other law 344 for the time being in force, shall have power and shall refer the question as to the validity of such objection to the High Court for its decision.

(4) The High Court, on a reference under sub-Section (3), shall decide upon the validity of the said objection, in accordance with the provisions of sub Sections (5) to (7) and transmit a copy of the judgment to the Court which made the reference to enable the said Court to proceed further in accordance with the Judgment.

(5) Where the High Court, on a reference under sub-Section (3) is of the opinion that the affidavit filed under sub Section (2) does not state the facts or the reasons fully, the High Court may require such officers or, in appropriate cases, the Minister concerned with the subject, to file a further affidavit on the subject.

(6) The High Court, after considering the affidavit or further affidavit as the case may be, and if it thinks fit, after examining such officer or, in appropriate cases, the Minister, orally, shall

(a) issue summons for the production of the unpublished records in chambers; and

(b) inspect the records in chambers, and

(c) determine the question whether the giving of such evidence would or would not be injurious to the public interest, recording its reasons therefor.

(7) Where the High Court determines under clause (c) of subSection

(6) that the giving of such evidence would not be injurious to the public interest and rejects the objection raised under sub-Section (2), the provisions of sub Section (1) shall not apply to such evidence and such evidence shall be received.

(8) Where the objection referred to in sub Section (2) is raised in the High Court or in the Supreme Court, whether in a civil or criminal proceeding, the said Court shall decide the validity of such objection in accordance with the procedure in sub Sections (5) to (7), as if the validity of the said objection had been referred to it."

Section 162: "Production of documents"

We have elaborately discussed Section 162 while dealing with Section 123.

In paras 65.85 and 65.92 and para 93.109 of the 69th Report and in the 88th Report, it was recommended that the words "matters of State" in the second para of Section 162 be deleted.

Following the same, we recommend that in the second para of sec.162, the words, 'unless it refers to matter of State' be deleted.

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