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That section applies to all documents in regard to which claim of privilege of any kind may be claimable including that falling under section 123 and therefore the language of section 162 had necessarily to be wide. |
It has been described as not being clear by Bose, J., as he then was, in Bhaiya Saheb vs Ram Nath Bampratap Bhadupote (1). |
The section requires a witness summoned to produce a document to bring it to the court in spite of any objection which he may take to it& production or to its admissibility and the court is empowered to decide both the questions. |
It is the next part which is relied upon in support of the contention that the court can (1) I.L.R. , 247. |
416 take other evidence to decide both the questions of production and the question of admissibility. |
The words are "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". |
It was argued that this part of the section empowered the court to take other evidence not only to decide the question of admissibility of the document but also its production. |
The language of this part of the section does not lend support to this contention because it gives discretion to the court to inspect the document or take other evidence to enable it to determine the admissibility of the document. |
The interposing of the words "unless it refers to matters of State", has reference to privilege under section 123 and therefore it disentitles the court to inspect the document. |
The sequence envisaged by the section is that a witness summoned to produce a document is bound to bring it to the court. |
He may then take objection to its production under any of the sections, viz., 121 to 131 or he may object to its admissibility and both these objections have to be decided by the court. |
Then comes the second part of the section. |
If the document refers to "matters of State" there is no distinction in the meaning of the word "matters" and "affairs of State" then the court may not inspect the document, but if the document is not of that class, then the court can inspect it and if it finds any objection to the admissibility, it may take other evidence to determine its admissibility. |
To take a concrete case, if a document is produced which is compulsorily registerable and it is not so registered, it would not be admissible in evidence under section 49 of the Registration Act, but evidence may be led as to its admissibility for certain purposes, e.g., section 53 A of the Transfer of Property Act. |
If it refers to that class of documents then the second, part of section 162 becomes applicable, i.e., the, court may inspect the document which will help it in deciding the question of privilege and admissibility. |
But if a claim is properly made by a proper official on the ground that it refers to matters of State, the court will stay its hands and refrain from inspecting it. |
417 The words "or to take. its admissibility" on their plain language do not apply to production and consequently the taking of evidence must have reference to the admissibility of the document. |
All the High Courts in India are in accord that the Supreme court will not inspect the document if it relates to matters of State. |
If that is so it would be difficult to sustain the contention that it can decide the question whether the matter relates or does not relate to affairs of State. |
If the original cannot be inspected, no other evidence can be produced as to its contents. |
The effect of this prohibition is not only as if the document had been destroyed, but as if it never existed. |
If that is the position, then it becomes difficult to see how the question of its production can be decided by the court by taking other evidence or how the court can decide whether a particular document falls within the prohibition imposed by section 123 of the Evidence Act. |
In this connection the words of Lord Kinnear in The Lord Commissioner of the Admiralty vs Aberdeen Steam Trawling & Fishing Co., Ltd. (1) are quite apposite. |
It was there said: "I think it is not improbable that even if an officer of the department were examined as a witness, we should not get further forward, because the same reasons which induced the department to say that the report itself ought not to be produced might be thought to preclude the department from giving explanation required". |
If the court cannot inspect the document, if no secondary evidence can be given as to its contents and if the necessary materials and the circumstances which would indicate the injury to the public interests or detriment to the proper functioning of the services cannot be before the court it cannot be in a position to decide whether the document relates to affairs of State or not and the logical conclusion would be that the court is debarred from overruling the discretion of the head of the department concerned, because the court cannot say whether the disclosure or non disclosure would be detrimental or not. |
If, on the other (1) , 343. |
53 418 hand, the contention is accepted that the court can decide by taking other evidence as to whether the document relates to the affairs of State then the discretion to ban its production by the head of the department must necessarily become illusory. |
If the court takes upon itself the task of deciding the nature of the document, then it will be taking upon itself the very grave duty of deciding a vital question as to what are the affairs of State without having the necessary material before it or without knowing the exigen cies of the public service or the effect of the disclosure of the State secret or how far the disclosure will injure the public interests and it may thus unwittingly become the instrument of giving publicity to something which the head of the department considered injurious to the public interests, the law having given to the head of the department concerned to make this determination ' No doubt the discretion is wide and covers all classes of documents which may fall within the phrase "affairs of State", some noxious and others innocuous and may even appear to be unduly restrictive of the rights of the litigant but if that is the law the sense of responsibility of the official concerned and his sense of fair play has to be trusted. |
The second. |
part of section 162 therefore cannot be said to permit the taking of other evidence, ie., other than the document to determine the question of its production when it is of the category falling under section 123. |
That part does not entitle the court to determine the nature of the document or the adequacy of the reasons which impelled the proper official to claim privilege. |
It would be relevant Co quote the observations of Isaacs, J., in Marconi 's Wireless Telegraph, Co. vs The Common. |
wealth "I distinctly adverted to the necessary fact that: the right of discovery given, to the litigant for the furtherance of public justice must be subject to the still higher consideration of the general welfare that the order to make proper discovery does not destroy the privilege of public interest, and, that the ground of, public policy may intervene and ', prevent the injury, to (1) (1913) 16 C.L.R. 178, 201. |
419 the community which coercive 'disclosure might produce. |
If that were not so, every gun in every fort and every safe in the Treasury would be open through the medium of the Court to the observation of any ,plaintiff of any nationality who could make a prima facie case of the infringement to which it was relevant. |
One of the authorities to which I referred in that connection was the judgment of Turner, L. J. in Wadeer vs East India Co., at p. 191 and that, judgment is, I think, of great value in this case also". |
It will be helpful to refer to the law on the subject in England as laid down in English cases because the basis of the Indian Law is the law of that country. |
The question of privilege has been described by Viscount Simon L. C., in Duncan vs Cammell Laird & Co., Ltd. (1) as a question of high constitutional importance because it involves a claim by the Executive Government to restrict the material which might otherwise be available for the court trying the case and this description was repeated by the House of Lords in the Scottish case Corporation of Glasgow vs Central Land Board (2). |
It may be the material which a party to the litigation may desire in its own interest and without which equal justice may be prejudiced. |
The question of privilege may not only arise in cases where the State is party to the suit but may equally arise where the contestants in a suit are private parties and whether as a party to the suit or not the State may decline to produce a document. |
In Dun can 's case (1) the privilege of the crown, though it was described as not a happy expression, was upheld on the ground that the interest of the State must not be put in jeopardy by the production of a document which would injure it and which is also a principle to be observed in administering justice, "quite unconnected with the interests or claims of the particular parties in litigation and, indeed, is a rule upon which the Judge if necessary, insist even though no objection is taken at all. |
" The sort of grounds to afford justification for. |
withholding the documents were,given by Viscount Simon as follows. (1) ; (2) 1956 S.C. I (H.L.), 420 "It would not be a good ground that, if they were produced the consequences might involve the department or the government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. |
Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. |
In a word, it is not enough that the minister or the department does not want to have the document produced. |
The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of with holding production except in cases where the public interest would otherwise be damnified e.g. where disclosure would be injurious to national defence, or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. |
" Thus the documents, which are protected from production, are those the production of which would be prejudicial to the public interests or those which belong to that class which as a matter of practice, are kept secret for the proper maintenance of the efficient working of the public service. |
Objection has been taken to the authority of this rule enunciated by Viscount Simon L. C., on the ground that it is in serious conflict with another principle that the proper administration of justice is also a matter of public interest, i. e., "fiat justitia ruat caelum" but as was said by Viscount Simonds in Glasgow Corporation vs Central Land Board (1), "The paramountcy of the public interest has been recognized and preserved". |
This principle, which was re enunciated by Viscount Simon, L. C., had been the law of England for over a century before Duncan 's case (2). |
In Earl vs Vass (3) it was held that public officers are not entitled or compellable to produce written communications made by them officially relative to the character and conduct of a party applying (1) ; (2) ; (3) 421 for a public office when the production is demanded in an action for damages against the writer. |
Lord Eldon L. C., at p. 230 observed: "I apprehend, in all cases in which it has been held, upon the principle of public policy, that you shall not be compellable to give evidence of, or produce s such instruments that is, wherever it is held you are not on grounds of public policy, to produce them you cannot produce them and that it is the duty of the judge to say you shall not produce them. " Lord Eldon referred with approval to the decision in Home vs Lord William Bentinck (1) which was of the year 1820. |
The principle there laid down was that production of instruments and papers must be shut out if it was against public policy. |
At p. 919 the learned Chief Justice said: "It seems therefore that the reception of the minutes would tend directly to disclose that which is not permitted to be disclosed; and therefore, independently of the character of the court, I should say, on the broad rule of public policy and convenience that these matters, secret in their nature, and involving delicate enquiry and the names of persons, stand protected". |
The injury to public service was recognized in Beatson vs Skene (2) where Pollock, Q. B., said: "It appears to us, therefore, that the question, whether the production of the documents would be injurious to the public service, must be determined, not by the Judge but by the head of the department having the custody of the papers; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. |
The administration of justice is only a part of the general conduct of the affairs of any State or Nation, and we think is (with respect to the production or non production of a State paper in a Court of Justice) subordinate to the general welfare of the community. |
If indeed, the head of the (1) ; (2) ; 422 department does not attend personally to say that the production will be injurious but sends the documents to be produced or not as the Judge may think proper, or as was the case in Dickson vs The Earl of Wilton beford Lord Campbell (reported in Foster and Finla son 's N. P. Rep., p. 425), where a subordinate was sent with the document with instructions to object but nothing more, the case may be different." Martin B. did not entirely agree with the view of the other three learned Barons and he was of the opinion that if the document could be produced without prejudice to public service he ought to compel its production notwithstanding the reluctance of the head of the department to produce it. |
It was pointed out by Pollock, C. B., that this might apply to extreme cases and "extreme cases throw little light on the practical rules of life". |
In Smith vs East India Company (1) which related to a commercial transaction as to the liability to pay freight a similar privilege was upheld. |
It was argued that communications between officials and communications between Directors and Board of Control were official correspondence and were privileged. |
On appeal the Lord Chancellor held that in order that superintendence and control should be exercised effectively and for the benefit of the public it was necessary that unreserved communication should take place between the East India Company and the Board of Control. |
In Homer vs Ashford (2) which was of the year 1825,Best, C. J., said: "The first object of the law is to promote public interest; the second to preserve the rights of individuals". |
In this connection it may not be out of place to recall the striking language of Knight Bruce, V. C., quoted at p. 401 of Macintosh vs Dun (3) in the judgment of Lord Macnaughten: "Truth like other good things, may be loved unwisely may be pursued too keenly may cost too (1) (1841) 1 Ph. 50: (2) ; ; , 539. |
(3) 423 much". |
And then he points out that the meanness and the mischief of prying into things which are regarded as confidential, with all the attending consequences, are "too great to pay for truth itself." Thus the law as stated in these old English cases shows that what was injurious to the public interest or prejudicial to the proper functioning of the public services was not to be disclosed and if the objection was based on these grounds it must prevail. |
As to who was to determine this, the judge or the official, Pollock C. B. decided in favour of the official because the enquiry could not be held in private and if it was held in public the mischief would have been done. |
Beatson vs Skene (1). |
It was with this background of the state of the English law that Sir James Fitzjames Stephen drafted the law of evidence which was enacted into the (Act 1 of 1872). |
Scrutton, T., in Asiatic Petroleum Company Ltd. vs Anglo Persian Oil Company Ltd. (2) which was a case between private parties inspected the document to the production of which objection was taken, and having seen it he said that he would not take the responsibility of ordering it to be produced against the wishes of the Government. |
When the matter was taken in appeal, Swinfen Eady, L. J., was of the opinion that the rule was not confined to documents of political or administrative character. |
The foundation of the rule was that the information cannot be disclosed without injury to the public interest and not that the document was confidential or official, and that if the production would be injurious to the public service, the general public interest must be considered paramount to the individual interest of the suitor. |
This was a document which was written by the defendants, who owned a pipeline from Persia to their refinery in the Persian Gulf, to their agents in Persia which contained confidential information from the Board of Admiralty. |
The Scottish cases have also upheld the privilege of. |
the Crown in regard to production although it has (1) ; ; (2) 424 been stated that the inherent power of the court to itself see the document and to override but not to review the certificate of the official of the department concerned has always existed in Scottish courts. |
In Duncan 's case (1) Viscount Simon, L. C., quoted with approval the observation of Lord Dunedin, the Lord President in the Lord Commissioners of the Admiralty vs The Aberdeen Steam Trawling & Fishing Co., Ltd. (2). |
That was a case where a Government department objected to the production of the document on the ground that the production would be prejudicial to public services and it was held that the view of the government department was final and the court will refuse production even in action in which the Government department was a party. |
The objection there was taken on an affidavit. |
At p. 340, the Lord President (Dunedin) said: "It seems to me that if a public department comes forward and says that the production of a document is detrimental to the public service,, it is a very strong step indeed for the Court to overrule that statement by the department. |
The Lord Ordinary has thought that it is better that he should determine the question. |
I do not there agree with him, because the question of whether the publication of a document is or is not detrimental to the public service depends so much upon the various points of view from which it may be regarded, and I do not think that the Court is in possession of these various points of view. |
In other words, I think that, sitting as Judges without other assistance, we might think that something was innocuous, which the better informed officials of the public department might think was noxious. |
Hence, I think the question is really one for the department, and not for your Lordships". |
And Lord Kinnear agreed with Lord Dunedin and at p. 343 said: "I agree that we cannot take out of the hands of the Department the decision of what is or what is not detrimental to the public service. |
There are only two possible courses. |
We must either say that it is a good (1) ; , (2) , 343. |
425 ground of objection or we must overrule it altogether. |
I do not think that we should decide whether it would be detrimental to the public service or not; and I agree with what both your Lordships have said as to the position of the Court in reference to that question. |
We do not know the conditions under which the production of the document would or would not be injurious to the public service. |
I think it is not improbable that even if an officer of the Department were examined as a witness we should not get further for ward, because the same reasons which induced the Department to say that the report itself ought not to be produced might be thought to preclude the Department from giving the explanations required. |
A department of Government, to which the exigencies of the public service are known as they cannot be known to the Court, must, in my judgment, determine a question of this kind for itself, and therefore I agree we ought not to grant the diligence. |
" In a later Scottish case Henderson v.M 'Gown (1) where in a suit between private parties income tax returns were sought to be produced, the court held that it had the power, in the exercise of its discretion, to order production of documents in the custody of a public department in spite of its objection but in the circumstances it did not order production as it was unnecessary. |
Lord Johnston said at p. 826: "That is not to say that the court never can and never will overrule such a statement but merely that it would be a very strong step, and therefore a step for which the Court would require very grave justification. |
The Admiralty and the War Office are charged with the duty of providing for the safety of the realm, and, if either say that the production of a document in their hands would be prejudicial to the public interest, I think that we should naturally implicitly accept the statement. |
But there are distinctions between public departments. |
The interest of such a department as the Inland Revenue is that the public should be able to rely on all returns to them and (1) 54 426 communications made to them being treated as confidential. |
This also is the public interest. |
" The latest Scottish case relied upon is a decision of the House of Lords in Glasgow Corporation vs Central Land Board (1). |
In that case privilege was claimed by the Central Land Board on the ground that its production would adversely affect the public interests. |
The question for decision was whether Scottish courts were bound to give effect to the certificate of the Secretary of State or whether the court had an inherent jurisdiction not to review the certificate but to override it. |
The House of Lords was of the opinion that Duncan 's case (2) did not affect the Law of Scotland and the Scottish courts possessed the inherent power to override the objections of the Minister and it did not exclude the court from making an order of production but in that case the power was not exercised. |