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

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 asprivilege 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 ".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.

Reasoning:
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.