Civil Revision No.2475 of 2006 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2475 of 2006 DATE OF DECISION: July 02, 2008 The Life Insurance Corporation of India, Sector 17-B, Chandigarh .....Petitioner VERSUS B.B.Singla & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Whether Reporters of local papers may be allowed to see the judgement? 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? PRESENT: Mr. B.R.Mahajan, Advocate, for the petitioner. Mr. Anupam Gupta, Advocate, for respondent No.1. **** RANJIT SINGH, J. A simple looking issue concerning the claim of privilege in regard to Annual Confidential Report has invited interesting debate requiring survey of law relating to claim of privilege in our legal system. Can ACR be withheld from scrutiny of the court on the ground of being a privileged communication, would be question Civil Revision No.2475 of 2006 : 2 : requiring decision in this case?. Respondent No.1 B.B.Singla has filed a suit seeking declaration to the effect that he is entitled to promotion to the post of Senior Branch Manager with effect from May, 1997, when his batch- mates were so promoted. Respondent No.1 pleads that his performance was admittedly comparatively better than his batch- mates. A witness was summoned to produce the Annual Confidential Reports of respondent No.1 for the period as noted, when an application was filed under Section 124 of the Evidence Act read with Section 151 CPC by the petitioner-Life Insurance Corporation pleading that his reports cannot be allowed to be produced in public interest and privilege was claimed in this regard. This issue arose before Civil Judge (Junior Division), Chandigarh, who dismissed the application filed by the petitioner claiming privilege when asked to produce the Annual Confidential Reports of respondent No.1 for the period from 1.4.1993 to 31.12.1999. Trial Judge has made the issue look rather simple and has decided the same by relying on two precedents in the cases of State of H.P. Vs. Manmohan Bhardwaj, 1983 LAB IC 469 and Vasant Vs. State of Maharashtra, 1989 LAB IC 673. View taken in these cases is that claim of privilege in respect of ACR and minutes of Departmental Promotion Committee are impermissible. He has not made reference to contrary view taken by this court and some other Courts in cases of The State of Punjab and others Vs. Surjit Singh, AIR 1975 Punjab and Haryana 11 and N.Muthu Vs. The Executive Director, Bharat Heavy Electricals Ltd. 2000(4) S.C.T. 856 (Madras). Civil Revision No.2475 of 2006 : 3 : This court in Surjit Singh's case (supra) has observed that view taken earlier in Full Bench decision in Governor General In Council Vs. H.Peer Mohd. Khuda Bux, AIR 1950 EP 228 (FB) and the Single Bench decision in the cases of Union of India Vs. Raj Kumar Gujral, AIR 1967 Punj 387 and H.L.Rodhey Vs. Delhi Administration, AIR 1968 Punj 255 is no more a good law in view of the decision of the Supreme Court in State of Punjab Vs.Sodhi Sukhdev Singh, AIR 1961 SC 493. Obviously, the counsel for the petitioner has heavily relied upon these decisions and has remained silent about the subsequent transformation of doctrine of `Crown Privilege' into doctrine of public interest immunity etc. Mr.Anupam Gupta has with sufficient eloquence traced the development of law in this regard starting from Full Bench decision in the case of Mohd. Khuda Bux (supra) and has referred to the travels of English law in this regard. He has rightly pointed out that we are now living in the era of Right to Information where disclosure of information is now regulated under statute, of course subject to limitation contained therein. Let us notice the present position to find if this privilege can now be upheld as is being claimed or the trial court has rightly rejected the prayer of the petitioner in this regard. Mr.Anupam Gupta has made detailed reference to the case of S.P.Gupta and others Vs. Union of India and others, AIR 1982 S.C. 149 (famously known as the Judges' case). Hon'ble Supreme Court in this case has settled the Indian law on public interest immunity or crown privilege as it used to be called by the majority of 6:1, leading judgment being that of Bhagwati J. The law in this regard has been brought in tune with the law as it stands in England, Australia and United States. In Civil Revision No.2475 of 2006 : 4 : England, the Judges have developed the law governing the crown privilege to the present position, it being unwritten law. In our country, the position is governed by Sections 123, 124 and 162 of the Indian Evidence Act, 1872 (“Evidence Act”). These provisions, as observed by H.M.Seervai, have stood still may be due to lethargy of the legislatures or due to a deliberate desire to adhere to outmoded “privileges” claim by the State in a free India. The provisions are pre- constitutional legacy and have not been altered or repealed or amended. Thus, these may be open to be saved from constitutional invalidity by judicial interpretation. Section 123 of the Evidence Act confers on the head of the department a discretion to grant or refuse permission to give evidence derived from unpublished official records relating to “affairs of State”. The Section says:- “Evidence as to affairs of State-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.” In our country, we do not have any common law protection as a `crown privilege' (now called public interest immunity) as it is in England and we in this country have only provision of law under which such immunity is to be claimed in the forms of Sections 123, 124 and 162 of the Evidence Act. Since the Judges` case is said to have brought the law in this country in line with law in England, Australia and United States, it would be appropriate to have Civil Revision No.2475 of 2006 : 5 : a brief survey of development of law in this regard specially in England. The initial turning was made in 1942, when the House of Lords in Duncan v. Cammell Laird & Co.Ltd. (1942) A.C. 624, departing from earlier authorities, declared in wide terms that a Ministerial claim of privilege must be accepted without question by the court. The opinion of Lord Simon of House of Lords which was concurred in by other Law Lords while hearing appeal had upheld the claim of privilege in this case. Privilege was claimed in Duncan's case on the ground that the disclosure of the documents would be injurious to public interest. It was case of submarine failing to resurface while undergoing trials leading to sinking of crew of 91 out of 95 men. Certain technical plans, designs and correspondence were called to be put in evidence to prove that the disaster was due to default or negligence of the builders in the action contemplated on behalf of the dependents of the men who lost their lives. On the facts of the case, there can be no doubt that the privilege was rightly claimed and not rightly upheld by all the courts, but while doing so, Lord Simon laid down law in far wider terms than were required by the question before the House about the crown privilege which over the years became subject of much criticism. This meant that the court was obliged to refuse to receive any evidence if the Minister filed an affidavit objecting to production of the evidence. Unlike other governmental powers, it was exempted from judicial control. It may need a mention here that the doctrine as propounded in Duncan's case presented serious obstacles in doing full justice in civil action when privilege against disclosure of documents or secondary Civil Revision No.2475 of 2006 : 6 : evidence of its contents was claimed by or under the directions of the crown. Lord Simon's judgment in Duncan's case contained wide dicta which became an obstacle to the fair administration of justice till these were overruled in Conway v. Rimmer (1968) A.C. 910. In view of the law laid down in Duncan's case, the crown was given legal power to override the rights of litigants even in cases where a government department thought fit and not necessarily in genuine cases. The principal danger of Duncan's doctrine was that it enabled the claim of privilege merely on the ground that documents belonged to a class requiring these to be withheld in public interest, i.e., not because documents were secret but were thought to be confidential in nature. The arguments which received approval by courts was that official reports of many kinds would not be made fearlessly and candidly if there was any possibility that these might be made public. Lord Simon in Duncan's case though had held that Minister ought not to take the responsibility of withholding production except in cases where public interest would otherwise be damnified, for example, 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. The portion underlined in the foregoing observation made by Lord Simon became a principal source of dissatisfaction with the judgment. As observed by Prof.Wade, once this unsound argument gained currency, free rein was given to the tendency to secrecy which is in the interest of the public service. Prof.Wade went on to observe that, “Crown having been given a blank cheque yielded to Civil Revision No.2475 of 2006 : 7 : the temptation to overdraw”. It is noticed that after Duncan's case, the privilege was repeatedly claimed on the ground to keep it secret for proper functioning of the public service irrespective of the contents of the documents. Lord Simon had held that the Minister's affidavit if made in proper form was conclusive. Court's right to examine the document in the private was also not approved by observing that it would amount to communicating with one party to the exclusion of the other. Ratio of law laid down on this aspect in Robinson v State of Southern Australia (1931) A.C. 704, where Privy Council had ordered production of a document on the ground that privilege was not properly claimed was brushed aside by saying that the question of crown privilege was different from the rule as to discovery of documents. This complete abandonment of judicial control was bound to lead to intolerable abuses. Important concessions were made administratively in the year 1956 by the Government. It was announced that privilege would not be claimed for reports of witnesses of accidents on the record, or on the government premises or involving the government employees; for ordering medical reports on the health of civilian employees; for medical reports (including of prison doctor) where doctor was sued for negligence; for papers needed for defence against a criminal charge etc. These heads comprised majority of cases which came before the courts. Still, privilege could be claimed regarding reports like Inspectors' report into accident not involving the Crown and medical reports in fighting services. These were said to be cases where freedom and candour of communication with and within the public service would be imperilled with the risk of its disclosure at a Civil Revision No.2475 of 2006 : 8 : subsequent date. Certain supplementary announcements were made in 1962 and 1964. After these concessions it became harder to accept the argument about freedom and candour of communication. Criticism started mounting and Lord Radcliffe observed about the tendency to suppress everything, however commonplace, that has passed between one civil servant and another behind the department service. Lord Keith went on to observe that to express the working of Government it might be positively beneficial. Lord Keith said “The notion that any competent or conscientious public servant would be inhibited at all in the candour of his writing by consideration of the off- chance that they might have to be produced in litigation is, in my opinion, grotesque. To represent that the possibility of it might significantly impair the public service is even more so...... the candour argument is an utterly insubstantial ground for denying, [the citizen] access to the relevant document”. Duncan's case held the field for almost about 25 years. The grave consequences of this doctrine propounded on the basis of keeping documents secret on the ground of `public interest' and `proper functioning' was noticed in number of cases. Grave disquiet was expressed by the Judges and a case of Ellis v Home Office (1953) 2 QB 135 can be referred where the Judge while upholding the claim of privilege on the basis of Duncan's case expressed himself as under:- “But before I leave the case I must express as I have expressed during the hearing of the case my uneasy feeling that justice may not have been done because the material before me was not complete and something more than uneasy feeling that whether Civil Revision No.2475 of 2006 : 9 : justice has been done or not, it certainly will not appear to have been done”. Lord Simon's doctrine in Duncan's case was attacked by Lord Denning, Lord Harman and Lord Salmon in the cases of Merricks v Nott-Bower (1965) 1 Q.B. 57, Grosvenor Hotel, London (1965) Ch.1210 and Wednesbury B.C. v Minister for Housing and Local Government (1965) 1 W.L.R. 261. One need not notice the observations made in all these cases, but it would suffice a reference here that Conway's case (supra) came before Court of Appeal constituted by Lord Denning M.R. and Lord Davies L.J. and Russell L.J. Lord Denning in his dissenting judgment repeated his view but the two other Lords held that Duncan covered the case before them and in a good-humoured reference described Lord Denning, Lord Harman and Lord Salmon as Three Musketeers, as can be noticed from the following:- “It appears to me inescapable that the House of Lords enunciated a principle of equal application to `class' cases. For that reason in spite of three valiant attempts made in recent cases in this court (by Arthos M.R., Porthos and Aramis L.J.J.) to assert that Duncan's case is no authority for a `class' case, I cannot but recognise it as such and must leave it to the House of Lords to reconsider the whole basis of the case if it wishes to do so”. The House of Lords did reconsider the whole issue in Conway's case (supra) which marked the triumph of the three Musketeers. The House unanimously reversed what it had unanimously stated in Duncan's case. All the Law Lords expressed their views in the case of Conway (unlike Duncan's case) and Civil Revision No.2475 of 2006 : 10 : criticised the overworked argument that whole classes of official documents should be withheld for the sake of freedom and candour of communication. There are, however, some broad conclusions which are reasonably clear from Conway's case, which can be summed up. Lord Reid listed a number of reasons to conclude that the present position was unsatisfactory that the House must re- examine the whole question in the light of the authorities. He then observed that two questions would arise-- firstly, whether the court has a right to question the finality of a Minister's certificate and, secondly, if it has such a right, how and in what circumstances the right is to be exercised and made effective. The view that can be culled out from the judgment is that the court has a jurisdiction to order the disclosure of a document for which crown privilege is claimed as it is the right and 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 the documents disclosure whereof would be contrary to the national interest. Accordingly, a Minister's certificate that disclosure of a class of documents (or the contents of particular documents) would be injurious to 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, i.e., Cabinet minutes, dispatches from Ambassadors abroad and minutes of discussion between heads of departments, the nature of the class of documents may suffice to resist application for disclosure. The House of Lords in Conway's case has held that in Civil Revision No.2475 of 2006 : 11 : reaching a decision whether to order disclosure, the court will give full weight to a Minister's view and, if the considerations are of such a character as judicial experience is not competent to weigh, the Minister's view will prevail, but where the conditions are not of that character, the court will decide on balance whether the documents shall be disclosed to the parties; and for this purpose the Judge will generally be right to inspect the documents without these being shown to the parties, before reaching this decision. As per Lord Reid, the proper test when privilege is claimed for a document as being one of a class which will be injurious to public interest to disclose is to examine whether the withholding of the document is really necessary for the proper functioning of the public service. The observations of Lord Reid in this regard are as under:- “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest; but I do not think that many people would give as the reason that premature disclose would prevent candour in the cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the Civil Revision No.2475 of 2006 : 12 : background and perhaps with some axe to grind. That must in my view also apply to all documents concerned with policy making within departments including it may be minute and the like by quite junior officials and correspondence with outside bodies. Further, it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition; but there seems to me to be a wide difference between such documents and routine reports. There may be special reasons for withholding some kinds of routine documents, but I think that a proper test to be applied is to ask, in the language of Lord Simon in Duncan's case (47), whether the withholding of a document because it belongs to a particular class is really “necessary for the proper functioning of the public service.” The House has, thus, made clear that the courts would seldom dispute a claim based on specific contents of documents like Cabinet decision, national defence, foreign affairs etc. However, the power and duty of the court to weigh the public interest of justice to the litigant against the public interest asserted by the Government has been well recognised. Thus, the House of Lords, as Prof.Wade has observed, has brought back a dangerous executive power into legal custody. The legal basis of class claim has thus been destroyed. Another important observation made in this regard is that the Minister should have a right to appeal before a document is Civil Revision No.2475 of 2006 : 13 : produced. Lord Morris of Borth-Y-Gest observed that it has been clearly laid down that the mere fact that a document is private or is confidential does not necessarily produce the result that its production can be withheld. It is further observed by the Law Lords that it was conceded that the objection on behalf of the Crown that production of a document on the ground of injury to the public interest which was shown (a) not to have been taken in good faith or (b) to have been actuated by some irrelevant or improper consideration or (c ) to have been founded on a false factual premise would not be final or conclusive and could be overridden by the court. If, as is thus conceded, the court possesses such wide powers of overruling an objection to production it would seem only reasonable and natural that it should also have the duty of assessing the weight of the competing public interests. It can be noticed that `Crown privilege' was replaced by the impression `public interest immunity' as can be noticed from Lord Reid's observations in R v. Lewes Justices ex parte Home Secretary (1973) AC 388. He has said that the expression `crown privilege' is wrong and may be misleading. As per Lord Reid, there is no question of any privilege in any ordinary sense of the word. The real question is whether the public interest requires that the document should not be produced and whether the public interest is strong as to override the ordinary right and interest of a litigant......... Lords Pearson, Simon, and Salmon also critised the expression `crown privilege'. This was a case where a would-be gambling club proprietor took proceedings for criminal libel against public officer who had supplied unfavourable information about him to the gambling board about Civil Revision No.2475 of 2006 : 14 : which the Home Secretary claimed privilege. The claim was upheld. The social evil which had allowed gambling clubs before the Gambling Act and the obvious necessity of the board to be able to make confidential inquiries to fulfil its duties, tilted the balance against disclosure. Claims to public interest immunity fall into two broad categories, i.e., the contents claim, and the `class claim'. The former claim is based on the contents of the document and the latter claim on the fact that the document formed part of a class which ought to be protected from disclosure irrespective of its contents. It can also be said that the Minister's certificate cannot be held as final. Further, private or confidential documents do not necessarily produce a result that its production can be withheld. It can also be noticed that the court is held entitled to examine the document to decide the claim regarding privilege and once the claim is declined, the Minister's right to file appeal is recognised. Let us see in this background the position of law in our country. Sodhi Sukhdev Singh (supra) is a case where the Hon'ble Supreme Court had the occasion of considering all the aspects of the law in this regard and has interpreted the terms `affairs of State' after considering various other decisions including the Full Bench decision by this court in Khuda Bux's case (supra) as under:- “What are the affairs of State under Section 123? In the latter half of the ninteenth century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant Civil Revision No.2475 of 2006 : 15 : matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class