Report No. 69

VI. Procedure

65.40. Section 123 speaks of the permission of the head of the department. It has been held1 by a majority judgment of the Supreme Court that the Court is competent, and indeed bound, to hold a preliminary inquiry and determine the validity of an objection to the production of the document when privilege is claimed under section 123. This necessarily involves an inquiry into the question whether she evidence relates to "affairs of state" or not. It does not, however, permit the Court to substitute its own judgment in place of that of the head of the department as to whether the public interest would suffer by disclosure.

1. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493: (1961) 2 SCR 372.

65.41. Although under section 123, as it is at present worded, the head of the Department has the final decision, he must apply his mind. In Amarchand v. Union of India, AIR 1964 SC 1658 (1661) (not reported in the SCR), a judgment referred to in the Court of Appeal in the English case of Conway v. Rimmer, in the Court of Appeal,-the Supreme Court rejected the claim for privilege on the ground that the statement of the Home Minister did not show that he had seriously applied his mind to the contents of the document, or that he had examined the question whether their disclosure would injure the public interest. The Supreme Court observed:

"In view of the fact that section 123 confers wide powers on the head of the department, the heads of departments should act with scrupulous care in exercising their right under section 123 and should never claim privilege only or even mainly on the ground that the disclosure of the document in question may defeat the defence raised by the State. Considerations which are relevant in claiming privilege on the ground that the affairs of the State may be prejudiced by disclosure must always be distinguished from considerations of expediency."

65.42. Present practice.-

It is well-known that the practice in India is for the head of the department to make an affidavit setting out the objection on behalf of the State and relevant factors. The present practice was thus described by the Supreme Court in State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 (876), para. 42.:

"It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withhold from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production, the matter ends there. 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. Objection as to production as well as admissibility contemplated in section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh's case.1

This Court has said that where no affidavit was filed, an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases, (1963) 2 All. E.R. 426: (1964) 1 All. E.R. 92: (1964) 2 All. E.R. 674 and (1964) 3 All. E.R. 354 (supra) in England shows that if an affidavit is defective, an opportunity can be given to file a better affidavit. It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits, the Court will refuse disclosure. If the Court inspite of the affidavit wishes to inspect2 the document, the Court may do so."

1. State of Punjab v. Sodhi Sukdev Singh, (1961) 2 SCR 371: AIR 1961 SC 493.

2. Emphasis supplied.

65.43. It may be noted that inspection of a document which relates to "matters of State" is prohibited by section 162. In Amar Chand Butail's case,1 the appellant called upon the respondents, the Union and the State to produce certain documents. The respondents claimed privilege. The Supreme Court saw the documents and was satisfied that the claim for privilege was not justified. This case illustrates how inspection may become necessary, to determine whether the claim to privilege is justified.

1. Amar Chand Butail, AIR 1964 SC 1658.

VII. Illustrative Case from Andhra

65.44. We may refer, at this stage, to an Andhra case,1 as illustrating some of the problems encountered by courts in the application of the section.

1. R. Ramanna v. Government of Andhra Pradesh, AIR 1971 AP 196.

65.45. First, as regards inspection by the Court, it was held that "there is an absolute prohibition1 of inspection of a document if it pertains to or refers to matters of State and the question of "recording other collateral evidence when such objection is raised, does not arise, as, when the document pertaining to affairs of State cannot be inspected, it cannot be proved by any indirect way of letting in other evidence, to speak to the very nature of the contents."

1 Section 162.

65.46. It was argued in that case that the notes and minutes made on the files were within the privileged class and were exempt from production. The privilege claimed by the Additional Chief Secretary could not be questioned in view of section 123. It was held that there was nothing in the affidavit to "suggest that the notes made, relate to expression of an opinion in the determination and execution of public policies",-a test suggested in Sukhdev Singh's case.1

1. Sukhdev Singh's case, AIR 1961 SC 493 (502).

65.47. Further, it was said that the Supreme Court has not suggested that notes and minutes made by officers other than those pertaining to the determination and execution of public policies would come within the privileged class of documents. Certain observations were also made as to the application of section 123 in relation to Article 226.

65.48. We are concerned not with the actual decision-which was given on the basis of the affidavit of the head of the department-but with some of the difficulties felt by the court in the administration of the present provisions. These difficulties are apparent from the observations quoted above. A later decision of the Supreme Court1 also contains instructive discussion. We shall have occasion to refer to it in due course.

1. State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865.

VIII. English Law

65.49. The evolution of English law on the subject presents certain interesting aspects. We have stated above that "Crown privilege" is often dealt with as a topic of state liability. Although the general law of state liability in England was put on a liberal and efficient basis by the Crown Proceedings Act, 1947, the Act failed to deal with the problem of "Crown privilege". "Crown privilege" is the name given in England to the Government's power to prevent evidence being given in court where it is claimed that its disclosure will be against the public interest. The expression is not a happy one1 but is well-known.

1. See infra.

65.50. Judicial attitudes in England on the subject fluctuated till 1968, when in Conway v. Rimmer, (1968) 1 All ER 874 (HL). Re-affirmed in Rogers v. Home Secretary, (1972) 2 All ER 1057 the position came to be settled to a large extent. The matter could be usefully considered with reference to the pre-1942 period, the period from 1942 to 1955, the period from 1956 to 1964, the period from 1965 to 1970 and the position after 1970.

65.51. Pre-1942 period.-

Until the Second World War,1 it was generally recognised in the courts that the power of the Crown to forbid the disclosure of specified evidence was not absolute. The Crown was entitled to claim that evidence of any description ought not to be given in court because its disclosure was contrary to the public interest, whether or not the Crown was a party to the proceedings. But, in the last resort, the court would disallow the claim if it seemed unjustified, and this bad several times been done. There had to be some machinery for preventing secret information about such things as weapons of war and diplomatic negotiations from being disclosed in court; and the procedure was that a minister of the Crown swore an affidavit that disclosure would, in his opinion, be contrary to the public interest. In that case there was a conflict between the national interest and the litigant's interest, and the latter had to give way.2

1. Schwartz and Wade Legal Control of the Executive, p. 192.

2. Schwartz and Wade Legal Control of the Executive, p. 192.

65.52. Period 1942 to 1955.-

In Duncan v. Cammell Laird and Co., 1942 AC 624 (632): (1942) 1 All ER 58, followed in Gail v. Gail, (1961) 1 WLR 1959, decided during the Second World War, an affidavit was made by the First Lord of the Admiral to the effect that certain blue-prints relating to the construction of a submarine Thetis, in support of an objection producing the document on the ground of the Crown's privilege. It was held to conclude the matter in the affidavit, the First Lord of the Admiral had stated-"I am of the opinion that it would be injurious to the public interest that any of the said documents should be disclosed to any person." The decision of the lower courts, that inspection of the documents should not be ordered, was upheld by the House of Lords. As observed by Lord Simon in that case, the Court of law had to uphold an objection, taken by a public department when called on to produce documents in a suit between private citizens, that on grounds of public policy the documents should not be produced.

65.53. The decision in Duncan's case was criticised by several writers. While the result actually reached was stated to be sound on the facts of the case, the enunciation of a categorical rule, making the Crown officer's decision final in every case, did not find favour with writers. The case was understood as laying down that a ministerial claim of privilege was unquestionable in law. The case itself1 was a plain one. The evidence required by the plaintiff widow was the plans of a naval submarine on which her husband had been killed. But it was obvious, especially in wartime, that secrecy must prevail, even at the cost of depriving the plaintiff of her legal rights. But the decision struck a new ground inasmuch as (1) the Minister's affidavit was conclusive, no matter what the nature of the case was, and (2) also because the House ruled that the Minister might say that the evidence belonged to a class of documents which the public interest required to be withheld from production.

1. Duncan v. Cammell Laird and Co. Ltd., 1942 AC 624.

65.54. After this judgment, cases started being decided on the basis of "class". It is easy for a government department to persuade itself that all sorts of official papers are better kept confidential, that candid reports will not be made if there is the remotest chance of their being used in public, and that the only safe course is to give the public interest the benefit of every doubt.1 Under this policy, privilege was coming to be claimed, as one law Lord put it2 in a case from Scotland, for "everything, however common place, that has passed between one civil servant and another".

Section 28 of the Crown Proceedings Act, 1947, which, in effect, preserved the Crown Privilege, was discussed at length in the Lords3 in the debate on the Bill. Section 28 took away the immunity of the Crown from discovery, but provided that this should be "without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest."

The speech of Lord Parker of Waddington in The Zamora4. "Those who are responsible for the national security must be the sole judges of what the national security requires", was quoted in the Debates on the Crown Proceedings Bill.

1. Schwartz and Wade Legal Control of the Executive, p. 193.

2. Lord Radclifle in Glasgow Corporation v. Central Land Board, 1956 SC 1.

3. Parliamentary Debates Lords, Vol. 146, Col. 924 (Viscount Jowitt), Cols. 926, 929 (Viscount Simon), Cols. 932-933 (Lord Simonds).

4. The Zamora, (1916) 2 AC 77 (107).

65.55. Period from 1956 to 1964.-

This legal position created hardships. Government, realising the extremeness of the position, made certain concessions. In June 1956, the Lord Chancellor made in the House of Lords a statement of policy in relation to future claims of Crown Privilege for documents and oral evidence.1

A few months earlier, in December 1955, the House of Lords had decided2 that the law of Scotland was rather more favourable to the private litigant than the law of England.

1. Glasgow Corporation v. Central Land Board, 1956 SLT 41.

2. See-

(a) Professor T.B. Smith in (1956) Modern Law Review 427;

(b) Sir Carleton Allen in (1956) 72 LQR 322;

(c) E.C.S. Wade in (1956) Cambridge LJ 133, 136.

65.56. The changes announced in 1956 were based on the distinction which has been mentioned in some of the cases between objections founded on the contents of a particular document, and those founded on the fact that the document belongs to a class which ought to be kept secret in the public interest. In the case of the latter, some of the objections that were formerly taken will not, it was stated, be raised any more. For example, exemption would not be claimed for reports of accidents to employees of the Crown, or for medical reports concerning civilian employees and, where the Crown or the doctor is a defendant in an action founded on the negligence of the latter, exemption would not be claimed for medical reports concerning members of the forces.

65.57. Certain further changes were announced in 1962 relating to police matters.1 In future, it was stated, in proceedings against the police for such matters as malicious prosecution or wrongful arrest, no claim to exclude evidence relating to the justification for the police action would be made unless its disclosure would reveal the name of a police informer. In the case of statements by civilians to the police, the claim to exclude will be made in all cases, but it will be done by affidavit and not by certificate, so that the final decision to admit or to exclude may be made by the court.

1. 1962 Public Law 203.

65.58. Period from 1965 to 1970.-

It is unnecessary to go into the details of all the English cases decided between 1956 and 1964. The Judgment of the Court of Appeal in Merricks v. Nott-Bower, (1965) 1 QB 57: {1964) 1 All ER 717 and Grosvenor Hotel London (in re:) (No. 2), 1965 Ch 1210: (1964) 2 All ER 674., London (No. 2) meet many of the criticisms of Lord Simon's speech in Duncan v. Gammen Laird & Co. Ltd., 1942 AC 624: (1942) 1 All ER 587.

65.59. The modifications in the rigid rule flowing from Duncan's case, made by executive orders were followed by certain judicial developments. The courts began to break away from the House of Lords'1 sweeping rule. This movement started in 1965. For a time, the decisions swayed to and from, and confusion reigned. But, in 1968, the House of Lords unanimously repudiated its extreme propositions of 1942, and re-asserted judicial control.2 This was in a case where a junior police officer had brought an action for malicious prosecution against a superior officer and needed to see the reports made on him in the police service. The Home Secretary intervened with a claim of "class" privilege.

The House of Lords disallowed the claim, inspected the documents themselves, and order their disclosure, saying that they could see no possible danger to the public interest. They reviewed the law comprehensively and made it clear that, though the courts will naturally respect claims based on genuine secrets of State, they will not allow other claims unless the public interest in secrecy really outweighs the public interest in doing justice to the litigant; and that this is to be determined by the court, not by the executive. Thus, the law was in 1968 brought into general accord with the law of the United States-and, indeed, with the law of several Commonwealth countries which had refused to accept the House of Lords' earlier judgment.

1. Grosvenor Hotel London (in re:) (No. 2), 1965 Ch 1210.

2. Conway v. Rimmer, 1968 AC 910: (1968) 1 All ER 1714.

65.60. To come more specifically to Conway v. Rimmer, (1968) 1 All ER 874 (HL), it was established in that case that where a Minister claims that documents should not be used in evidence because their production would be injurious to the public interest, the court has power to disallow the claim and order their production, after weighing the possible injury to the public interest against the injury to the interests of justice that their suppression would cause. For this purpose, the court may inspect the documents privately, i.e. without disclosure to the parties. The position resulting from Conway v. Rimmer can be broadly-stated thus-

The Court has jurisdiction to order the disclosure of documents for which Crown Privilege is claimed, as it is the right and the duty of the court to hold the balance between the interests of the public in ensuring the proper administration of justice and the public interest in the withholding of documents whose disclosure would be contrary to the National interest; accordingly, a Minister's certificate that disclosure of a class of documents or of the contents of a particular document, would be injurious to the public interest is not conclusive against disclosure, particularly where the privilege is claimed for routine documents within a class of documents, though in a few instances (e.g., cabinet minutes), the nature of the class of documents may suffice to resist application for disclosure.

65.61. Position after 1970.-

The judgment in Conway v. Rimmer was put into statutory form in 1970. The Administration of Justice Act, 1970,1 enables a court to order disclosure of documents, etc. and specifically provides that the provisions apply to the Crown except that no such order may be made if the court considers "that compliance with the order, if made, would be likely to be injurious to the public interest". The material provision is quoted below2:

"35.-(1) This part of this Act shall bind the Crown.

(2) Section 21 of the Administration of Justice Act, 1969 (power of court to order inspection, custody, etc. of property pending commencement of action) shall bind the Crown so far as it relates to property (within the meaning of that section) as to which it appears to the court that it may become the subject-matter of subsequent proceedings involving a claim in respect of personal injuries to a person or in respect of a person's death.

(3) A court shall not make an order under section 31 of this Act, nor an order under section 21 of the said Act of 1969 if it considers that compliance with the order, if made, would be likely to be injurious to the public interest.3

(4) In this section references to the Crown do not include references to Her Majesty in Her private capacity nor to Her Majesty in right of Her Duchy of Lancaster, nor to the Duke of Corwall."

1. Administration of Justice Act, 1970, sections 31-35.

2. Section 35, Administration of Justice Act, 1970.

3. Emphasis supplied.

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