Case: State Of U.P Vs. Raj Narain & Ors

Ray, C.J.1. This is an appeal by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what is described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh.2. Shri Raj Narain, the petitioner in Election Petition No. 5, of 1971 in the High Court of Allahabad, made an application on 27 July, 1973 .for summoning certain witnesses along with documents mentioned in the application. The summons was inter alia for the following witnesses along with following documents:3. First, the Secretary, General Administration. State of Uttar Pradesh, Lucknow or any officer au.- thorised by him was summoned to produce inter alia (a) circulars received from the Home Ministry and the Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi, the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February, 1971 or any general order for security arrangement; and (l) All correspondence between the State Government and the Government of India and between the Chief Minister and the Prime Minister regarding Police arrangement for meetings of the Prime Minister by State Government and in regard to their expenses.4. Second, the Chief Secretary, Government of Uttar Pradesh Lucknow was also summoned along with inter alia the documents namely, (a) circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February 1971; (j) All correspondence between the State Government and the Government of India and between the Chief Minister and the Prime Minister, regarding the arrangement of Police for the arrangement of meetings for the Prime Minister by State Government and in regard to their expenses.5. Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to the tour programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971; (b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangement for constructions of Rostrum, fixation of loud-speakers and other arrangements through Superintendent of Police, District Rae Bareli.6. On 3 September 1973 the summons was issued to the Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary in-charge. On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer. On 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated l9 September, 1973.7. In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents summoned with clear instructions that privilege is to be claimed under Section 123 of the Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and Instructions for the protection of the Prime Minister when on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U. P. and the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister.8. Saxena was examined by the High Court on 10 September, 1973. On 10 September, 1973 there was an application on behalf of the Election petitioner that the claim of privilege by Saxena in his evidence be rejected. In the application it is stated that during the course of his statement Saxena admitted that certain instructions were issued by the Central Government for the arrangement of Prime Ministers tour which are secret and hence he is not in a position to file those documents. The witness claimed privilege in respect of that document. It is stated by the election petitioner that no affidavit claiming privilege has been filed by the Head of the Department and that the documents do not relate to the affairs of the State.9. On 11 September, 1973 there was an order as follows. The application of the election petitioner for rejection of the claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena in a sealed cover in the Court. In case the objection would be sustained, the witness Saxena would be informed to take back the sealed cover.10. On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police, Rae Bareli claimed privilege under Section 123 of the Evidence Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross-examination. The election petitioner filed the objection to the affidavit claiming privilege by the Superintendent of Police, Rae Bareli.11. On 13 September, 1973 the learned Judge ordered that arguments on the question of privilege would be heard on 19 September, 1973. S. S. Saxena filed an application supported by an affidavit of R. K. Kaul. The deponent R. K. Kaul in his affidavit affirmed on 19 September, 1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister, the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.12. On 20 September, 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege. On 20 September, 1973 an objection was made that the Chief Standing Counsel had no locus standi to file an objection claiming privilege. On 21 September, 1973 the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of privilege were adjourned until 29 October, 1973. 29 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded. On 30 October, 1973 the Advocate General appeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul. Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted to show to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14 days of March, 1974. The judgment was delivered on 20 March, 1974.13. The learned Judge on 20 March, 1974 made an order as follows:"No privilege can be claimed in respect of three sets of papers allowed to be produced. The three sets of papers are as follows. The first set consists of the Blue Book, viz. the circulars regarding the security arrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Ministers Secretariat on the basis of which Police arrangement for constructions of Rostrum, fixation of loudspeakers and other arrangements were made and the correspondence between the State Government and the Government of India regarding the police arrangements for the meetings of the Prime Minister. The second set also relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings of the Prime Minister. The third set summoned from the Head Clerk of the Office of the Superintendent of Police relates to the same ".14. The learned Judge expressed the following view. Under Section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavit was filed at the first instance. The Court cannot exercise duty under Section 123 of the Evidence Act suo motu. The court can function only after a privilege has been claimed by affidavit. It is only when permission has been withheld under Section 123 of the Evidence Act that the Court will decide. Saxena in his evidence did not claim privilege even after the Law Department noted in the file that privilege should be claimed. Saxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.15. The learned Judge further held as follows. The Blue Book is not an unpublished official record within the meaning of Section 123 of the Evidence Act because Rule 71 (6) of the Blue Book was quoted by a Member of Parliament. The Minister did not object or deny the correctness of the quotation. Rule 71 (6) of the Blue Book has been filed in the election petition by the respondent to the election petition. Extracts of Rule 71 (6) of the Blue Book were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition had no right to file even a portion of the Blue Book in support of her defence. When a portion of the Blue Book had been used by her in her defence it cannot be said that the Blue Book had not been admitted in evidence. Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examine the witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not been admitted in evidence and Kauls affidavit could be taken into consideration, the Blue Book is not an unpublished official record.16. With regard to documents summoned from the Superintendent of Police the High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not give any reason why the disclosure of the documents would be against public interest, the documents summoned from the Superintendent of Police cannot be privileged documents either.17. The High Court further said that in view of the decisions of this Court in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 = (AIR 1961 SC 493 ); Amar Chand Butail v. Union of India AIR 1964 SC 1658 and the English decision in Conway v. Rimmer (1968) 1 A. E.R. 874 = 1968 A.C. 910 the Court has power to inspect the document regarding which privilege is claimed. But because the Blue Book is not an unpublished official record, there is no necessity to inspect the Blue Book.18. The English decisions in Duncan v. Cammell Laird and Co. 1942 A.C. 624; (1968) 1 All ER 874 = 1968 AC 910 (supra); and Rogers v. Home Secy. 1973 A.C. 388 surveyed the earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In the Cammell Laird case, 1942 AC 624 (supra) the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not to produce the documents. It was stated that if the letter was not accepted as sufficient to found a claim for privilege the First Lord of Admiralty would make an affidavit. He did swear an affidavit. On summons for inspection of the documents it was held that it is not uncommon in modern practice for the Ministers objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method the Court can request the Ministers personal attendance.19. Grosvenor Hotel, London group of cases reported in (1963) 3 All ER 426; (1964) 1 All ER 92; (1964) 2 All ER 674; and (1964) 3 All ER 354 turned on an order for mutual discovery of documents and an affidavit of the respondent, the British Railway Board, objecting to produce certain documents. The applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for leave to cross-examine the Minister. The Minister was ordered to swear a further affidavit. That order of the learned Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere with the discretion exercised by the Chamber Judge. The Minister filed a further affidavit. That affidavit was again challenged before the learned Chamber Judge as not being in compliance with the order. It was held that the affidavit was in compliance with the order. The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention of the executive, though normally the executive claims it. The matter was taken up to the Court of Appeal, which upheld the order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Ministers affidavit except in ease where the prejudice is so obvious that it would be unnecessary to state it.20. In the Cammell Laird case. 1942 AC 624 (supra) the House of Lords said that documents are excluded from production if the public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact that the document belongs to a class which on grounds of public interest must as a class be withheld from production. This statement of law in the Cammell Laird case, l942 AC 624 (supra) was examined in (1968) 1 All ER 874 - 1968 AC 910. In (1968) 1 All ER 874 = l968 AC 910 (supra) it was held that although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive it is important to remember that the decision ruling out such document is the decision of the Judge. The reference to class documents in the Cammell Laird case (supra) was said in (1968) 1 All ER 874 = 1968 AC 910 (supra) to be obiter. The Ministers claim of privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State.21. In (1968) 1 All ER 874 = l968 AC 910 (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd. (19l6 1 KB 822 (830) was adopted that the information cannot be disclosed without injury to the public interest and not that the documents are confidential or official. With regard to particular class of documents for which privilege was claimed it was said that the Court would weigh in the balance on the one side the public interest to be protected and on the other the interest of the subject who wanted production of some documents which he believed would support his own or defeat his adversarys case. Both were said in (1968) 1 All ER 874 = 1968 AC 910 (supra) to be matters of public interest.22. In this background it was held in (1968) 1 All ER 874 = 1968 AC 910 (supra) that a claim made by a Minister on the basis that the disclosure of the contents would be prejudicia1 to the public interest must receive the greatest weight, but even here the Minister should go as far as he properly can without prejudicing the public interest in saying why the contents require protection. In (1968) 1 All ER 874 = 1968 AC 910 (supra) it was said "in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the document itself and then ordering its production." As to the "class" cases it was said in (1968) 1 All ER 874= 1968 AC 910 (supra) that some documents by their very nature fall into a class which requires protection. These are Cabinet papers, Foreign Office dispatches, the security of the State, high level inter-departmental minutes and correspondence and documents pertaining to the general administration of the naval, military and air force services. Such documents would be the subject of privilege by reason of their contents and also by their class. No catalogue can be compiled for the class cases. The reason is that it would be wrong and inimical to the functioning of the public service if the public were to learn of these high level communications, however innocent of prejudice to the State the actual contents of any particular document might be.23. In 1973 AC 388 (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of the Home Secretary it was argued that the Court could of its own motion stop evidence being given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assert public interest. The public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material. Once the public interest is found to demand that the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the production of which it sees is contrary to public interest. In short, the position in law in England is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.24. Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence.25. A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, state papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy of as being detrimental to the public interest or service.26. The meaning of unpublished official records was discussed in the Cammell Laird case, 1942 AC 624 (supra). It was argued there that the documents could not be withheld because they had already been produced before the Tribunal of Enquiry into the loss of the "Thetis". The House of Lords held that if a claim was validly made in other respects to withhold documents in connection with the pending action on the ground of public policy it would not be defeated by the circumstances that they had been given a limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunals sittings might be secret.27. In (1968) 1 All ER 874 = 1968 AC 910 (supra) it was said that it would not matter that some details of a document might have been disclosed at an earlier enquiry. It was said that if part of a document is innocuous but part of it is of such a nature that its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.28. This Court in Sukhdev Singhs case, (1961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) held that the principle behind Section 123 of the Evidence Act is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section. Sec. 123 states that 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. The expression "Affairs of State" in Sec. 123 was explained with reference to Section 162 of the Evidence Act. Section 162 is in three limbs. The first limb states that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the 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. The second limb of Section 162 says that 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. The third limb speaks of translation of documents which is not relevant here. In Sukhdev Singhs case (supra) this Court said that the first limb of Section 162 required a witness to produce a document to brine it to the Court and then raise an objection against its production or its admissibility. The second limb refers to the objection both as to production and admissibility. Matters of State in the second limb of Sec. 162 were said by this Court in Sukhdev Singhs case (supra) to be identical with the expression "affairs of State" in Section 123.29. In Sukhdev Singhs case, (1961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singhs case (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second the harmonious construction of Secs. l23 and 162 shows there is a power conferred on the Court under Sec. 162 to hold a preliminary enquiry into the character of the document. Third, the expression "affairs of State" in Section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs". Fourth, the second limb of Section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury, to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.In Sukhdev Singhs case (1961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) this Court said that the power to inspect the document cannot be exercised where the objection relates to a document having reference to matters of State and it is raised under Section 123 ,(See (l961) 2 SCR 828 at p. 839 = (AIR 1961 SC 532 at pp. 537, 538). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objections The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under Section 123. It is said that the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singhs case (supra) it has also been said that if the Court finds that the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department whether to permit its production or not.The concurring views in Sukhdev Singhs case (1960 2 SCR 371 = (AIR 1961 SC 493 ) (supra) also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.30. In Amar Chand Butails case AIR 1964 SC 1658 (supra) the appellant called upon the respondents the Union and the State to produce certain documents. The respondents claimed privilege. This Court saw the documents and was satisfied that the claim for privilege was not justified.31. In Sukhdev Singhs case (l961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butails case AIR l964 SC 1658 (supra) Gajendragadkar, C. J. spoke for the Court in a unanimous decision. In the later case this Court saw the document. In Sukhdev Singhs case (supra) this Court said that an enquiry would be made by the Court as to objections to produce document. It is said that collateral evidence could be taken. No oral evidence can be given of the contents of documents. In finding out whether the document is a noxious document which should be excluded from production on the ground that it relates to affairs of State, it may sometimes be difficult for the Court to determine the character of the document without the court seeing it. The subsequent Constitution Bench decision in Amar Chand Butails case (supra) recognised the power of inspection by the Court of the document.32. In Sub-Divisional Officer, Mirzapur v. Raja Sri Nivas Prasad Singh, (1966) 2 SCR 970 = (AIR l966 SC 1164) this Court in a unanimous Constitution Bench decision asked the Compensation Officer to decide in the light of the decisions of this Court whether the claim for privilege raised by the State Government should be sustained or not. This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Government had claimed privilege in certain proceedings. In the Sub-Divisional Officer, Mirzapur case (supra) the respondent filed objections to draft compensation assessment rolls. Compensation was awarded to the respondent. The State applied for reopening of the objection cases. The respondent asked for production of some documents. The State claimed privilege. The District Judge directed that compensation cases should be heard by the Sub-Divisional Officer. The respondents application for discovery and production was rejected by the Compensation Officer. The District Judge thereafter directed that compensation cases should be heard by the Sub-Divisional Officer. The respondent again filed applications for discovery and inspection of those documents. The State Government again claimed privilege. The respondents applications were rejected. The respondent then filed a petition under Article 226 of the Constitution for a mandamus to Compensation Officer to hear and determine the applications. The High Court said that the assessment rolls had become final and could not be opened. This Court on appeal quashed the order of the Sub-Divisional Officer whereby the respondents applications for discovery and production had been rejected and directed the Compensation Officer to decide the matter on a proper affidavit by the State.33. On behalf of the election petitioner it was said that the first summons addressed to the Secretary, General Administration required him or an officer authorised by him to give evidence and to produce the documents mentioned therein. The second summons was addressed to the Home Secretary to give evidence on 12 September, 1973. The third summons was addressed to the Chief Secretary to give evidence on 12 September, 1973 and to produce certain documents. The first summons, it is said on behalf of the election petitioner, related to the tour programmes of the Prime Minister. The election petitioner, it is said, wanted the documents for two reasons. First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses. The election petitioners case is that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officers for furthering the prospects of the candidates election.34. On behalf of the election petitioner it is said that objection was taken with regard to certain documents in the first summons on the ground that these were secret papers of the State, but no objection was taken by an affidavit affirmed by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is that the Superintendent of Police is not the head of the department and either the Minister or the Secretary should have affirmed an affidavit.35. Counsel on behalf of the election petitioner put in the forefront that it was for the Court to decide whether the disclosure and production of documents by the State would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and to the public interest that justice should be done between litigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had to be found out at what stage and in what manner privilege was to be claimed and in what circumstances the Court could look into the document to determine the validity of the claim to privilege raised under Section 123. The other contention on behalf of the election petitioner was that if a part of the document was made public by lawful custodian of the document the question was whether the document could still be regarded as an unpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the innocuous part could still be brought on the record of the litigation.Counsel for the election petitioner leaned heavily on the decision in (1968) 1 All ER 874 = 1968 AC 910 (supra) that the Court is to balance the rival interests of disclosure and non-disclosure.36. The first question which falls for decision is whether the learned Judge was right in holding that privilege was not claimed by filing an affidavit at the first instance. Counsel on behalf of the election petitioner submitted that in a case in which evidence is sought to be led in respect of matters derived from unpublished records relating to affairs of State at a stage of the proceedings when the head of the department has not come into picture and has not had an opportunity of exercising discretion under Section 123 to claim privi1ege it will be the duty of the court to give effect to Section 123 and prevent evidence being led till the head of the department has had the opportunity of claiming privilege. But in case in which documents are summoned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another opportunity.37.The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should, therefore, be excluded from production.38. The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (Supra) at p. 40). To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks v. Nott Bower, (1964) 1 All ER 717).39. 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 withheld 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 Singhs case (1961) 2 SCR 371 , (AIR 1961 SC 493 ) (supra).40. In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance.41. 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) 3 All ER 426; (1964) All ER 92; (1964) 2 All ER 674 and (1964) 3 All ER 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 in spite of the affidavit wishes to inspect the document the Court may do so.42. The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it was said that a part of the document was published by the Government, viz, paragraph 71 (6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. In the Cammell Laird case, 1942 AC 624 it was said that though some of the papers had been produced before the Tribunal of Enquiry and though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may have been taken to avoid public injury and the other is that portions of the Tribunals sittings may have been secret.In the present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one.43.

Decision reasoning: 1[ds]In short, the position in law in England is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.24. Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence.25. A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, state papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy of as being detrimental to the public interest or service.In Sukhdev Singhs case, (1961) 2 SCR 371   = (AIR 1961 SC 493  ) (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singhs case (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second the harmonious construction of Secs. l23 and 162 shows there is a power conferred on the Court under Sec. 162 to hold a preliminary enquiry into the character of the document. Third, the expression "affairs of State" in Section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs". Fourth, the second limb of Section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury, to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.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 withheld 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 Singhs case (1961) 2 SCR 371  , (AIR 1961 SC 493  ) (supra).In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the firstis 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 in spite of the affidavit wishes to inspect the document the Court may dothe present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one.