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The certificate would be treated as very strong presumptive evidence of the claim made but the Court would nevertheless have inherent power to override the said certificate. |
It is unnecessary for us to consider the true nature and effect of this power because in India in this particular matter we are governed by the provisions of section 162 which confer power on Courts to determine the validity of the objection raised under section 123, and so there would be no occasion or justification to exercise any inherent power. |
Though we do not propose to refer to the other decisions to which our attention was invited, we may incidentally observe that the decision in Duncan 's case (1) has been followed by English Courts, but sometimes the learned judges have expressed a sense of dissatisfaction when they are called upon to decide an individual dispute in the absence of relevant and material documents. |
(Vide: Ellis vs Home Office (2)). |
Before we part with this topic we may also indicate, that it appears that in the long history of reported judicial decisions only on three occasions the right to (1) ; (2) 406 inspect documents has been either theoretically asserted or actually exercised in England. |
In Hennessy vs Wright (1), Field, J., observed that he would consider himself entitled to examine privately the documents to the production of which the Crown objected, and to endeavour by this means and that of questions addressed to the objector to ascertain whether the fear of injury to public service was the real motive in objecting. |
In point of fact, however, the learned Judge did not inspect the documents. |
From the judgment of the Court of Appeal in Asiatic Petroleum Co., Ltd. vs Anglo Persian Oil Co., Ltd. (2), it appears that Scrutton, J., had inspected the documents to the production of which an objection was raised. |
The learned judge has, however, added that having seen the documents he thought that the. |
government may be right in the view that they ought not to be produced to others, and that he would not take the res ponsibility of ordering them to be produced against the wishes of the government. |
In Spigelmann vs Hocker & Anr. |
(3), Macnaghten, J., inspected the document to the production of which an objection was raised. |
The result of these decisions is that in England a valid certificate issued by the Minister in support of the privilege claimed is conclusive; while in Scotland, though it would normally be treated as such, Courts reserve to themselves an inherent right to revise or review the certificate in a proper case. |
It now remains to consider whether the High Court was right in holding that the privilege claimed by the appellant in respect of the four documents in question was not justified, and that takes us to the consideration of the relevant facts in the present appeal. |
The documents of which discovery and inspection were claimed are thus described by the respondent: (1) Original order passed by Pepsu Government on September 28, 1955, on the representation dated May 18, 1955, submitted by Sodhi Sukhdev Singh; (2) Original order passed by the Pepsu Government (1) (2) (3) (1933 34) 1 Times L.R. 87. 407 on March 8/9, 1956, reaffirming the decision passed on September 28, 1955, referred to above; (3) Original order passed by the Pepsu Government in their cabinet Meeting dated August 11, 1956, revising their previous order on the representation of Sodhi Sukhdev Singh dated May 18, 1955; and (4) Report of the Public Service Commission on the representation of Sodhi Sukhdev Singh dated May 18, 1955, after the Pepsu Government 's decision on September 28, 1955. |
In dealing with this question and in reversing the order passed by the trial court by which the privilege had been upheld, the High Court has purported to apply the definition of the expression "affairs of State" evolved by Khosla, J., as he then was, in the case of Governor General in Council vs H. Peer Mohd. Khuda Bux & Ors. |
(1): "It is, therefore, sufficiently clear", said the learned judge, "that the expression "affairs of State" as used in section 123 has a restricted meaning, and on the weight of authority, both in England and in this country, I would define "affairs of State" as matters of a public nature in which the State is concerned, and the disclosure of which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations". |
It is this definition which was criticised by Aft. |
Seervai on the ground that it purported to describe the genus, namely, affairs of State, solely by reference to the characteristics of one of its species, namely, documents whose disclosure was likely to cause injury to public interest. |
Having adopted this definition the High Court proceeded to examine whether any injury would result from the disclosure of the documents, and came to the conclusion that it was difficult to sustain the plea that the production of the documents would lead to any of the injuries specified in the definition evolved by Khosla, J. |
On this ground the High Court allowed the contention of the respondent and directed the State to produce the documents in question. |
We have already held that in dealing with the (1) A.I.R. 1950 East Punjab 228. |
408 question of privilege raised under section 123 it is not a part of the Court 's jurisdiction to decide whether the disclosure of the given document would lead to any injury to public interest;, that is a matter for the head of the department to consider and decide. |
We have also held that the preliminary enquiry where the character of the documents falls to be considered is within the jurisdiction and competence of the Court, and we have indicated how within the narrow limits prescribed by the second clause of a. 162 such an enquiry should be conducted. |
In view of this conclusion we must hold that the High Court was in error in trying to enquire into the consequences of the disclosure; we may add that the decision of the High Court suffers from the additional infirmity that the said enquiry has been confined only to the specified classes of injury specified by Khosla, J., in his definition which cannot be treated as exhaustive. |
That being so, we think the appellant is justified in complaining against the validity of the decision of the High Court. |
Let us then consider whether the documents in question do really fall within the category of documents relating to "affairs of State". |
Three of the documents the discovery of which the respondent claimed are described as original orders passed by the Pepsu Cabinet on the three respective dates. |
It is difficult to understand what was exactly meant by describing the said documents as original orders passed on those dates; but quite apart from it the very description of the documents clearly indicates that they are documents relating to the discussions that took place amongst the members of the Council of Ministers and the provisional conclusions reached by them in regard to the respondent 's representation from time to time. |
Without knowing more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody the minutes of the meetings of the Council of Ministers and would indicate the advice which the Council ultimately gave to the Rajpramukh. |
It is hardly necessary to recall that advice given by the 409 Cabinet to the Rajpramukh or the Governor is expressly saved by article 163, sub article |
(3), of the Constitution; and in the case of such advice no further question need to be considered. |
The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers. |
Indeed it is very difficult to imagine how advice thus tendered by the Public Service Commission can be excluded from the protection afforded by section 123 of the Act. |
Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent 's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. |
We are unable to understand this argument. |
Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent. |
Until the final order is thus communicated to the respondent it would be open to the Council to consider the matter over and over again, and the fact that they reached provisional conclusions on two occasions in the past would not alter the character of the said conclusions. |
The said conclusions, provisional in character, are a part of the proceedings of the Council of Ministers and no more. |
The report received by the Council from the Public Service Commission carries on its face the character of a document the disclosure of which would lead to injury of public interest. |
It falls in that class of document which "on grounds of public interest must as a class be withheld from production". |
Therefore, in our opinion, the conclusion appears inescapable that the documents in question are protected under section 123, and if the head of the department does not give permission for their production, the Court cannot compel the appellant to produce them. |
We should have 52 410 stated that the two affidavits made by the Chief Secretary in support of the plea of the claim of privilege satisfied the requirements which we have laid down in our judgment, and no comment can be effectively made against them. |
The argument that in its pleadings the appellant accepted the description of the respondent that the document contained orders is hardly relevant or material. |
The affidavits show what these documents purport to be and that leads to the inference which irresistibly follows from the very descrip tion of the documents given by the respondent himself in his application by which he called for their production and inspection. |
Before we part with this appeal we may incidentally refer to another point which was argued at some length before us by both the learned counsel for interveners. |
Mr. Viswanatha Sastri contended that the provisions of section 162 can be invoked only where a witness has been summoned to produce a document and a privilege is claimed by him in respect of it. |
According to him the said provisions cannot be invoked where the Court is called upon to decide the validity of the claim of privilege at the stage of inspection of the documents. |
In other words, where the State is a party to the suit and an application for inspection of documents is made against it by its opponent, and a claim for privilege is put forward by the State, the Court is entitled under 0. 11, r. 19, sub a. (2), to inspect the documents for the purpose of deciding as to the validity of the claim of privilege. |
That is the clear provision of 0. 11, r. 19, sub r. |
(2), and the power conferred on the Court by the said provision is not subject to section 162 of the Act. |
This position is seriously disputed by Mr. Seervai. |
The procedural law in regard to discovery, production and inspection of documents is contained in 0. 11, rr. 12, 21. |
It is true that 0. 11, r. 19, sub r. (2) provides that in dealing with a claim of privilege "it shall be lawful for the Court to inspect the document for the purpose of deciding the validity of the claim of privilege". |
The question is, what is the effect of this provision when it is considered along with section 162 of the Act ? 411 Before briefly indicating our conclusion on this point we may observe that this contention does not appear to have been raised in any judicial decisions to which our attention was drawn. |
Indeed it appears generally to have been assumed that in the matter of deciding a claim for privilege made by the State the provisions of section 162 of the Act would apply whether the said claim is made at the earlier stage of inspection or later when evidence is formally tendered. |
That, however, is another matter. |
It is true that section 162 in terms refers to a witness who is summoned to produce a document and provides for the procedure which should be adopted and the powers which should be exercised in dealing with a privilege claimed by such a witness; but there is no doubt that the provisions of the Act are intended to apply to all judicial proceedings in or before any Court; that in terms is the result of section 1 of the Act, and the proceedings before the Court under 0. 11, r. 19, are judicial proceedings to which prima facie section 162 would. |
apply. |
Similarly, section 4, sub section |
(1), of the Code of Civil Procedure provides, inter alia, that in the absence of any specific provisions to the contrary nothing in the Code shall be deemed to limit or otherwise affect any special or local law in force; that is to say, in the absence of any provisions to the contrary the Evidence Act would apply to all the proceedings governed by the Code. |
Besides, it would be very strange that a claim for privilege to which 0. 1 1, r. 19 sub r. |
(2), refers is allowed to be raised under a. 123 of the Act, whereas, the procedure prescribed by the Act in dealing with such a claim by section 162 is inapplicable. |
If section 123 of the Act applies and a claim for privilege can be raised under it, prima facie there is no reason why section 162 should not likewise apply. |
But apart from these general considerations the relevant scheme of the Code of Civil Procedure itself indicates that there is no substance in the argument raised by Mr. Sastri. |
Order 27 prescribes the procedure which has to be adopted where suits are filed by ,or against the government; a plaint or written statement proposed to be filed by the government has to be 412 signed under r. 1 by such person as the government may by general or special order appoint in that behalf, which means that the government can only act through its agent duly appointed in that behalf. |
The Minister who is the political head of the department or the Secretary who is its administrative head is not the government; and so whenever the government sues or is sued and makes its pleadings it always acts through its duly authorised agents. |
The scheme of the relevant rules of 0. |
27 is consistent with this position. |
Section 30 of the Code empowers the Court either on its own motion or on an application of a party to issue summonses to persons whose attendance is required either to give evidence or produce document, and to order that any fact may be proved by an affidavit. |
Order 4, r. 5, contemplates that, at the time of issuing the summons, the Court has to determine whether the summons should be for the settlement of issues only or for the final disposal of the suit; and the relevant form of the summons (No. 1 in First Schedule, Appendix B) shows that in the case of a suit against the government of a State a summons can be issued to compel the attendance of any witness and the production of any document. |
This shows that where the State is a party a summons may have to be issued to its appropriate officer calling upon him to produce the documents for inspection. |
The provisions of rr. |
14, 15 and 16 of 0. |
11 show that affidavits have to be filed by the parties, and the filing of affidavits which is permitted by 0. |
19 is undoubtedly one mode of giving evidence. |
Order 16, r. 1, provides for the issue of a summons to persons whose attendance is required inter alia to produce documents; and r. 21 of the said order expressly provides that where any party to a suit is required to give evidence or to produce a document the provisions as to witnesses shall apply to him so far as are applicable. |
Thus there can be little doubt that where a privilege is claimed at the stage of inspection and the Court is required to adjudicate upon its validity, the relevant provisions of the Act 413 under which the privilege is claimed as well as the pro visions of section 162 which deal with the manner in which the said privilege has to be considered are equally applicable; and if the Court is precluded from inspecting the privileged document under the second clause of section 162 the said prohibition would apply as much to a privilege claimed by the State through its witness at the trial as a privilege similarly ' claimed by it at the stage of inspection. |
It is hardly necessary to point out that a contrary vie* would lead to this manifestly unreasonable result that at the stage of inspection the document can be inspected by the Court, but not at the subsequent stage of trial. |
In our opinion, the provisions of 0. 11, r. 19, sub r. |
(2), must, therefore, be read subject to section 162 of the Act. |
The result is that the appeal is allowed, the order passed by the High Court set aside and that of the trial court restored with costs throughout. |
KAPUR, J. I have read the judgment prepared by my learned brother Gajendragadkar, J., and agree with the conclusion but in my opinion the Court cannot take other evidence in regard to the nature of document, for which privilege is claimed, and my reasons are these: In India the law of privilege in regard to official documents is contained in section 123 of the which has to be read with section 162 of that Act. |
The various kinds of privileges claimable under the Evidence Act are contained in Chapter IX, two sections amongst these are sections 123 and 126, the former dealing with state privilege relating to "affairs of State" and the latter with communications with a legal adviser. |
In section 123 the opening words are "no one shall be permitted " and in the latter "no barrister etc., shall at any time be permitted In the other sections dealing with privilege the opening words are "no person shall be compelled This difference in language indicates that the legislature intended to place the privilege of the State in regard to official documents on a different footing than the other forms of privileges mentioned in the 414 Act in so far as it put a ban on the court permitting any evidence of the kind mentioned in. |
section 123 from being given, so that if, unwittingly any evidence mentioned therein was sought to be given, the court would not permit it unless the other conditions were satisfied. |
In section 123 the provision is against the giving of evidence which is derived from unpublished official records relating to any affairs of State except when the head of the department concerned in his discretion gives permission for the evidence to be given. |
The important words are "derived", "unpublished" and "affairs of State". |
The word "derived" means coming out of the source and therefore refers to original as well as secondary evidence of documents whether oral or documentary. |
The words " unpublished official records" are not very difficult of interpretation and must depend upon the circumstances of each case. |
If the record is shown to have already been published, it ceases to be an unpublished record. |
But the difficulty arises as to the meaning of the words "affairs of State", because the ban is put on evidence derived from official documents relating to affairs of State. |
At the time when the was enacted, affairs of State were confined to governmental or political activities of Government, but with the expanding of the activities of the State, which, because of the changed concept of the State, comprise also socioeconomic, commercial and industrial activities the words "affairs of State" must necessarily have a much wider meaning than it originally had. |
But the language of the sections remains the same and so also the limitation on the giving of evidence derived from such documents and therefore what was considered to be within the discretion of the head of the department to disclose or not to disclose still remains within his discretion and merely because the scope of the words "affairs of State" had been extended, the extent of the discretion has not thereby decreased or become limited and the words "who shall give or withhold such permission as he thinks fit" indicate that the discretion to remove the ban vests in the head of the department and no one else. |
415 The real difficulty arises in the interpretation of the words "affairs of State". |
What are they? How is the meaning of the words to be determined and by whom? When a claim is made by a proper authority in a proper form, is that conclusive of the nature of the document or has the court to proceed to determine the efficacy of the claim by taking other evidence as to its nature or the effect of its disclosure. |
It was contended that the decision, whether the document belongs to the category falling within the expression "affairs of State" or not has to be of the court and not of the official mentioned in the section. |
In a way that is correct because the conduct of the trial must always remain in the hands of the court but what is implied in the contention raised was that the court must first decide whether the document belongs to the class comprised in the expression "affairs of State" and then the official concerned may give or withhold his consent. |
It was also submitted that in order to enable the court to determine the validity of the claim of privilege the official concerned, when making the claim, may have to state the nature of the document or at least the nature of the injury to the public interests or to the efficient working of the public service, as the case may be, which the disclosure of the document or evidence derived therefrom would result in. |
Section 162 of the Evidence Act was relied upon in support of the above contention. |