Report No. 69

Chapter 65

State Privilege

Section 123

I. Introductory

65.1. An important point of public law arises out of the next section-section 123-which now requires to be considered. It pertains to public law in its procedural aspect. Although the citizen may sue public bodies and the Government, it does not necessarily follows that the law and procedure applied by the courts will be the same as is applied in litigation between private citizens. Apart from substantive rules, special procedural advantages and protections are enjoyed by the State, of which one may now be considered.

In the law of evidence-as is shown by our discussion of the preceding sections-there are many situations where a party to litigation or other person may claim a privilege and thereby resist the production of a document or the giving of oral evidence on a particular subject. Apart from privilege enjoyed by private persons, the State has the right to withhold a document, or evidence, on the ground that the disclosure will be prejudicial to the public interest. This privilege is dealt with in section 123, which prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the head of the Department.

65.2. Strictly speaking, this is not a privilege which can be claimed by the State only, because it is not confined to litigation to which the State is a party, no witness can give evidence of matters privileged under this rule. "State privilege" is, therefore, only an expression used for the sake of convenience. However, the expression is correct in so far as the privilege can be waived by the State. The use of the expression "privilege" itself has been criticised. But it has been established by usage, and this question of terminology need not detain us. The law on the subject is stated in section 123 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"No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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."

Connected with this section is the provision in section 162, under which 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 by the Court. That section further provides that the Court, if it seems 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 last paragraph of the section is not material for the present purpose.).

II History and Rationale

65.3. How is the matter viewed in England and the U.S.A.-

As regards the rationale of the privilege in section 123, historical material in India is scanty. Indian case-law on the subject is profuse, but those cases do not elucidate this aspect of the matter.

65.4. In England, Crown privilege is usually dealt with as an aspect of the general law of State liability. In this connection it may be noted that the Crown Proceedings Act, 1947, while making the Crown liable as a private citizen in many respects, took care to provide that its provisions should not affect this general law. In one article, published a few years ago, it was stated-

"The source of the Crown's privilege in relation to production of documents in a suit between subject and subject (whether production is sought from a party or from some other) can, no doubt, be traced to the prerogative right to prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence regarding Court intrigue. As is pointed out in Pollock and Maitland's History of English Law (2nd End., Vol. I, page 517), 'the king has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern.

If the king diseases A and transfers the land to X, then X when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed'. We find similar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. But with the growth of democratic government, the interest of the Crown in these matters developed into and became identified with public interest.

"In the early days of the nineteenth century, when principles of 'public policy' received broad and generous interpretation we find the privilege of documents recognised on the ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous."1

1. Documents Privileged in Public Interest, 39 LQR 476-477.

65.5. In the report of Layer's case,1 (1722), the Attorney-General claimed that minutes of the Lords of the Council should not be produced; and Sir John Pratt L.C.J. supported the claim, adding that "it would be for the disservice of the King to have these things disclosed."

1. Layer's case, (1722) 16 Howard ST 224.

65.6. Position in U.S.A.-

In the United States, the corresponding privilege, known as "executive privilege", is definitely considered as an aspect of "sovereign immunity". Of course, this American version of Crown privilege has never been at par as the British doctrine was known in some of the earlier cases, but we need not discuss that aspect of the matter at present.

65.7. In India, the privilege incorporated in section 123 was, perhaps, intended to incorporate a policy decision. It is not, however, very clear whether the framers of the Evidence Act examined the English law in detail.

65.8. It is possible to view the matter as one concerning the liability of the State in the adjective sphere. Though the provision is contained in the Evidence Act, it is obvious that it has important repercussions in administrative law. We are referring to this aspect in order to put the matter in its proper perspective.

65.9. Foundation of the privilege.-

The foundation for the privilege under consideration is injury to the public interest. The expression "affairs of State" is of very wide amplitude and it will cover every business activity of the State, so as to take in even day to day routine administration-and not merely highly confidential matters pertaining to defence, foreign affairs, Cabinet minutes or what advice was tendered by the Ministers to the Governor specified in Article 163(3). secret service and the like.1 Therefore, the activities of a Democratic Welfare State extend to so many fields and all such activities can be brought within the compendious expression "affairs of State", if broadly construed, it only shows that any document relating to any affairs of State cannot partake the character of a privileged document, the disclosure of which would not be, without possible injury to the public interest.

1. Ramanna v. Government of Andhra Pradesh, AIR 1968 Al' 196 (208), para. 36.

65.10. Two kinds of public interest.-

Lord Reid observed in Conway v. Rimmer, (1968) 1 All ER 874 (880) (HL).

"It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."

This aspect is of crucial importance in determining what ought to be the law. Before we proceed to consider the present section and the changes needed therein, it will be useful to bear in mind certain aspects of the privileges.

65.11. Several shades of privilege.-

It has been pointed out by one writer1 that there could be several possible situations in relation to documents-

"(1) The document may safely be seen by all the world.

(2) It would be desirable for the document to be in some measure restricted in its forensic publication: but this consideration ought to yield to the greater desirability that justice should manifestly be seen to be done.

(3) The document might be disclosed to the parties (or the opposite party, if the Crown is a party) on their undertaking to the Court, so as to render a breach a contempt of court, not to disclose its contents to any person except for the purpose of the proceedings in question or by order of the court.

(4) The document might be disclosed to the parties (or the opposite party, if the Crown is a party) on condition that it should not be produced or referred to except in close court. Any further publication would then automatically be punishable as contempt of court.2

(5) The document might be disclosed to the trial Judge, but not to the parties (or the opposite party, if the Crown is a party).

(6) The document might be disclosed to a Judge for the purpose of determining its decree of forensic publication; but he might hold that its evidential importance is so slight that its further forensic publication is not justified in the light of its possible prejudice to the public interest.

(7) The document being of a highly secret and confidential nature, its forensic publication in any form or circumstances must be absolutely withheld."

1. J.E.S. Simon Evidence Excluded by State Secrets, (1955) Cambridge LI 62 (76).

2. Cf. Scott. v. Scott, 1913 AC 417.

65.12. The same writer has further pointed out1 that hardship from too rigid a claim of privilege arises because of the failure to distinguish between "national security" and "public interest".

"The law, indeed, appears to be unnecessarily rigid in this sphere. While there are overwhelming arguments in favour of giving to the executive an exclusive power to determine what matters may prejudice the public security, those arguments give no sanction for extending to the executive an equally exclusive power to determine what matters may affect the public interest. And since the Minister cannot fairly weigh the degree of injury to the State by the disclosure of the document against the degree of injury to a private citizen from its non-disclosure, there seem to be .strong grounds for removing the decision from him and vesting it in an independent tribunal; for example, a judge of the High Court.

The Minister's decision as to what evidence should be excluded by consideration of public security should be conclusive; but any claim based on his own considerations of public interest should be examinable, and should be balanced against such other considerations of public interest as are urged by those seeking disclosure. The possible injury suggested in Broome v. Broome to the morale of the armed forces if the evidence were admitted could be weighed against the probable injury to the moral or the material interests of the litigants, or one of them or to the administration of justice, if it were excluded."2

1. J.E.S. Simon Evidence Excluded by State Secrets, (1955) Cambridge LJ 62, 76.

2. This distinction between considerations of public security and considerations of public interest reflect in a different context the suggestion of Sachs, J. that the public interest in question might be limited to specific heads.

65.13. His suggestion1 for amendment can be thus summarised:

"The unequal disclosure of material is inherently likely to work injustice, and there is ground for thinking that injustice has in fact been caused by the wide scope and the rigidity of the present rules. It has been submitted that the interest of the executive can be conveniently reconciled with the claims of the private litigant for justice if it were possible to stipulate various degrees of forensic publication. Of these, the most important, between absolute withholding and full disclosure, would be the hearing of the questioned evidence in closed court. It is considered that the Minister should still be given an absolute discretion to state whether any particular evidence would be prejudicial to national security, or so prejudicial to the public interest that its forensic publication in any form must be barred.

If he states that full disclosure of the evidence would be prejudicial to the National security, but that it could be disclosed in closed court, there should be power to order a hearing in closed court. So far as concerns evidence of facts the disclosure of which the Minister alleges to be contrary to the public interest, unless he is prepared to certify that the forensic publication of the evidence in any form must, on the ground of its high secrecy and confidential nature, be absolutely withheld, the question of its degree of disclosure would be for a Judge of the High Court. He would weigh considerations of public interest as stated by the Minister against considerations of public interest as urged by the party seeking disclosure; and would have power to order a limited forensic publication including its disclosure only in closed court."

1. J.E.S. Simon Evidence Excluded by State Interest, (1955) Cambridge LJ 62, 78.

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