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

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 (1 = appeal accepted, 0 = rejected): 1

Explanation:
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.