TABLE OF CONTENTS

Introduction................................................................................................................................2
Present Law In India..................................................................................................................3
State Privilege............................................................................................................................4
Procedure Code......................................................................................................................4
Authority Determining The Privileges.......................................................................................5
Power Of Courts.........................................................................................................................6
Misuses.......................................................................................................................................6
Facts Excluded By Public Policy...............................................................................................6
Unpublished Official Records Relating To Affairs Of State..................................................7
Permission Of The Head Of The Department............................................................................8
Powers Of Court.........................................................................................................................9
Public Officer...........................................................................................................................10
Communications Made In Official Confidence.......................................................................10
Manner Of Claiming Privilege.................................................................................................11
Communications Made In Official Confidence Cannot Be Proved By Secondary Evidence
..............................................................................................................................................11
Privileged State Documents Cannot Be Proved By Secondary Evidence............................11
Conclusion................................................................................................................................12
Biblioghphy..............................................................................................................................13

INTRODUCTION
The subject was earlier known by the title of "Crown Privilege", but is currently discussed
under the title "public interest privilege" or "Executive privilege" or state privileges".
Special procedural advantages and protections are enjoyed by the State. One of such
protections operates in the field of evidence, and is in the nature of a privilege regarding the
production of certain documents and disclosure of certain communications. The term
"privilege" as used in Evidence law means a freedom from compulsion to give evidence or to
discover-up material, or a right to prevent or bar information from other sources during or in
connection with litigation, but on grounds extrinsic to the goals of litigation. 1 Swinfen-Eldy,
L. J. observed :2
"The foundation of the rule is that the information cannot be disclosed without injury to
the public interests, and not that the documents are confidential or official, which alone
is no reason for their non-production, the general public interest is paramount to the
interests of the suitor".3
In the law of evidence, there are many situations where a party to litigation (or some other
person) may claim a privilege and thereby resist the production of a document or the giving
of oral evidence on a particular subject in court.

Most of these privileges are enjoyed by

private persons. For example the law confers upon the individual the constitutional privilege
of not incriminating himself, it also accords a privileged status to confidential
communications between attorney and client; husband and wife and between certain other
communicants in special private relationships.4
It may be stated as a matter of interest that section 22 of the Evidence Act, 1872was as
follows :

1 State of U.P. v. Raj Narain, AIR 1975SC 865

2 A'frei Crompton Amtsemmt Midlines V. Customs Commr., (1973) 2 AH E.R. 1169
3 Ibid.
4 Graham C. Lilly, An Introduction to the law of Evidence (1998), page 317
2

"22. A witness shall not be forced to produce any document relating to affairs of State
the production of which would be contrary to good policy".
In the United States, the corresponding privilege, known as "executive privilege", is
definitely considered as an aspect of "sovereign immunity". Of course this American version
of Crown privilege has never been at par with the British doctrine as known in some of the
earlier cases.
The general principle now formulated in England is that relevant evidence must be excluded
if its reception would be contrary to the public interest, it is this general principle that seems
to regulate the disclosure or non disclosure of communications in the conduct of official
affairs. There is no separate rule of official communications in addition to that applicable for
official papers. In particular, the Crown is not allowed to object to the giving of any oral
evidence by witness, even if he be a civil servant. The witness must attend, and objection
must be limited to question relating to matters claimed to be covered by the doctrine of public
policy5whatever be the proper scope of that doctrine. In India, the privilege incorporated in
section 123 of the Evidence Act was perhaps, intended to incorporate a policy decision.
PRESENT LAW IN INDIA
The present law on the subject of State privilegein so far as it relates to the production of
evidence as suchis principally contained in sections 123, 124 and 162 of the Indian
Evidence Act, 1872. The first two sections are, on an analysis, found to overlap each other.
The last-mentioned section (section 162) is not confined to State privilege as such, but
concerns itself with the procedure for determination of all questions of privilege, whether the
privilege is claimed under the head of State privilege or under any other head.
The present project deals rather with evidentiary privilege claimed on behalf of the State on
the basis of certain considerations of high policy considerationsmore appropriately called
public interest. They differ from each other. They overlap, in so far as evidence which is
derived from unpublished official records, and which consists of communications made to a
public officer in official confidence, falls under both the sections. They differ

5 Broome V.Broome, (1955)1 All E.R.201,204

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i.

Section 1236 applied only to evidence derived from unpublished official records relating to
any affair of State whereas section 124 7 applies to all communications made in official
confidence, whether such communications are in writing or not, and whether they relate

ii.

to any affair of State or not.

Section 123 leaves the discretion of divulging the contents of State documents to the head of
the department to which the document relates, whereas section 124 gives the discretion of
disclosing communications made in official confidence to the public officer to whom the

iii.

communication was made, whether he is or is not the head of the department.

According to section 123, evidence derived from unpublished official records is inadmissible,
even if the subordinate officer who is examined with reference to such documents does
not claim any privilege, unless permission is obtained to such disclosure from the head of
the department; whereas, under section 124, the public officer to whom the
communication was made may waive the privilege without reference to the head of his
department.
STATE PRIVILEGE
The court therefore has to consider two things; whether the documents relate to secret affairs
of State; and whether the refusal to permit evidence derived from it being given was in the
public interest. No doubt, the words used in section 123 'as he thinks fit' confer an 'absolute
discretion', on the head of the department to give or withhold such permission. As I said, it is
only if the officer refuses to permit the disclosure of a document that any question can arise in
a court and then section 162 of the Evidence Act will govern the situation. An overriding
power in express terms is confined on the court under section 162 to decide finally on the
validity of the objection. The court will disallow the objection if it comes to the conclusion
that the document does not relate to affairs of State or that the public interest does not compel
its non-disclosure or that the public interest served by the administration of justice in a
particular case overrides all other aspects of public interest.8
Procedure Code
6 Section 123 of the Evidence Act, 1872
7 Section 124 of the Evidence Act, 1872
8 judgment of Subba Rao, J. in Sukhdev Singh's case"
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An important question relating to procedure that deserves to be considered may now be

mentioned. Where a document is claimed to be privileged under section 123 and the Court
determines the question one way or the other, the question naturally arises whether there
should be a right of appeal against a ruling so determining the question, and if so, in what
cases, and to which forum. A ruling upholding the privilege can be challenged in appeal on
final determination in the case, whether it be a decree or other final order in a civil case and a
judgment of conviction or acquittal or other final order in a criminal case. A separate right of
appeal is not required, and the absence of such a right would not seriously prejudice the
interests of the private litigant, whose request for admission in evidence of the particular
document is rejected by upholding the privilege. But the case of a denial of the privilege
stands on a different footing. The document would then straightaway go into evidence. If,
ultimately, on appeal, the document is held to be privileged, an anomalous situation might
arise. The harm that the privilege is intended to prevent (injury to the public interest) would
then have been already done. Any ruling of the Appellate Court (even if it upholds the
privilege) would then have only an academic value, so far as that particular litigation is
concerned. In view of this, an immediate and separate right of appeal to the appropriate
forum would appear to be necessary in the interests of justice. Such a course, we think,
should be adopted whether the proceedings are civil or criminal in nature.
AUTHORITY DETERMINING THE PRIVILEGES
The head of the Department claiming privilege under section 123 must apply his mind. In
Amarchand v. Union of India9 judgement of the Supreme Court of India referred to by the
Court of Appeal in the English case of Conway v. Rimmer10 this aspect became important. In
that case, the Supreme Court rejected the claim for privilege on the ground that the statement
of the Home Minister did not show that he had seriously applied his mind to the contents of
the document, or that he had examined the question whether their disclosure would injure the
public interest. The Supreme Court observed as follows :
"In view of the fact that section 123 confers wide powers on the head of the department, the
heads of departments should act with scrupulous care in exercising their right under section
123 and should never claim privilege only or even mainly on the ground that the disclosure
9 1973 AIR 313
10 Conway V. Rimmer, (1968) A.C. 919, 971 (Lord Morris of Borth-y-gest)
5

of the document in question may defeat the defence raised by the State. Consideration
which are relevant in claiming privilege on the ground that the affairs of the State may be
prejudiced by disclosure must always be distinguished from considerations of expediency".
Cross cites the following observations of Lord Hailsham:--11
"The categories of public interest are not closed, and must alter from time to time, whether by
restriction or extension, as social conditions and social legislation develop".
POWER OF COURTS
the power of the court must also include a power to examine documents privately though that
power should in practice be sparingly exercised. Finally, as Lord Morris of Borth-y-gest
observed : "I see no difference in principle between the consideration which should govern
what have been called the contents cases and the class cases." No distinction is made in
England between cases in which Crown is a party and those in which the proceedings are
between private citizens or corporations.12
MISUSES
It is not every official record or register or communication that is privileged. Document must
belongs to a class which on grounds of public interest must be withheld from production.
Affairs of State" mean matters of public nature in which the State is concerned and the
disclosure of which will be prejudicial to the public interest or injurious to national defence,
or detrimental to good diplomatic relations. But the fact that production of the documents
might prejudice the State's own case or assist that of the other side is no such "plain
overruling principle of the public interest" as to justify any claim of privilege in a case to
which the State is a party. State misuse as follows:
i.

Deviating from the scope and parameters of the privilege via overbroad invocation such

ii.
iii.

that cases are entirely dismissed without review on the merits;

expanding the privilege
interfering with private constitutional and statutory rights that the government should be
protecting; and,
11 Regrossnor Hobe {No. 1) (1963) 3 All E.R. 426, on appeal (1964) 1 All E.R. 92
12 Lord Fraser in Science Research Council V. Nasse, (1979) 3 W.L.R. 784.
6

iv.

Interfering with public rights and the role of the people as a check on the power of the

v.

government.
This power is misused and violate the private right to information and that government is
accountable to the people.
FACTS EXCLUDED BY PUBLIC POLICY

Under the English law of evidence the following facts may be excluded on grounds of public
policy: (1) Affairs of State; (2) Information given for the detection of crime; and (3)
Information relating to the adjudicative process. Sections 123 and 124 provides as follows:
Unpublished official records relating to affairs of State
The principle of the section is that it is not all records relating to the affairs of State that are
privileged, but only those the disclosure of which would result in an injury being caused to
public interests. The section gives effect to the principle that public interest must be
paramount and private interests must give way when there is any conflict between public and
private interests13. A witness cannot be permitted to give any evidence which is derived from
unpublished official records relating to any affairs of State, without the permission of the
officer at the head of the department concerned. The Act does not say what documents are to
be regarded as unpublished official records relating to affairs of State.
It is open to Government, by Resolution or otherwise, to censure or reprimand an officer, and
such Resolution, being an official communication, is absolutely privileged. It cannot be put in
evidence or produced in Court to found an action for libel. 14 The diary of a foot constable
shadowing the movements of a suspect is not a document relating to affairs of State.
A zaildari file but not a zaildri book is an official record relating to affairs of State 15 But
proper secondary evidence of these documents is admissible.

13 Lady Dinbai Dinshaw Petit v. Dominion of India, 1951 BLR 229

14 Jehangir M. Cursetjee v. Secretary of State, 27 B 189
15 Crown v. Raghunath, 1946 PLR 41
7

Statements made by witnesses in a departmental inquiry are not privileged. 16 Privilege

cannot be claimed in respect of documents, the contents of which have already been
published. Where letters addressed by the head of a department reach the addressee, the
letters cease to be unpublished documents within the meaning of section 123 of the Evidence
Act, and the Court is entitled, under sectin 162 of the Evidence Act, to see the documents to
decide the question of their admissibility.17 The section is-inapplicable to published official
records. Government intervention, unauthorized by law, in a pending judicial or quasi-judicial
matter is not an affair of State, A record evidencing such intervention cannot be privileged
since its disclosure would not be prejudicial to public interest. Affairs of State Privilege are
claimed in public interest.
The Blue Book was an unpublished official record. Any publication of parts of the Blue Book
which might be innocuous would not render the entire document a published one. On
inspection of such document the Court may order disclosure of an innocuous part and seal the
other parts which are said to be noxious.18
PERMISSION OF THE HEAD OF THE DEPARTMENT
It is for the Court to decide whether the claim to privilege should be allowed or not. But once
the Court holds that the document is an unpublished official record relating to affairs of State
which it would not be in the public interest to disclose, the question whether privilege should
be claimed for it or not is entirely within the discretion of the head of the department. 19 It
must be left to a responsible Government officer, either a Minister or a person at the head of a
department to look at the document, to consider, it and to decide for himself whether the
document falls in the category of documents of state referred to in section 123. If having
considered the documents he tells the Court that the document is one relating to the affairs of
State and that its disclosure will be injurious to public safety, the Court ordinarily would

16 Ibrahim Sheriff v. Secretary of State, 1936 N 25

17 Mahtab Singh v. Secretary of State, 1933 L 157
18 State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865
19 Section 123 of the Evidence Act, 1872
8

accept his statement, if made on oath. But the statement must not be of a vague or indefinite
character.
He must not only indicate the nature of the document but he must also state what injury to
public interest he contemplates would result from the disclosure of the document. The Court
may in a proper case be not satisfied with the oath of the deponent and he may be asked to
submit himself to cross-examination at the hands of the party claiming the disclosure of the
document. But as the Minister of the head of the department is in a much better position to
judge both as to the nature of the document and as to the injury that will be caused to public
interest, the Court treats his objection as conclusive provided that objection is validly and
property, taken and is based on materials which the Court considers adequate.20 But though
this privilege is absolute and cannot be questioned, judges, both in England and in India, have
attempted to indicate for the guidance of the heads of departments the cases in which
privilege should be claimed, Dealing with this subject in the House of Lords Viscount Simon
L.C., made the following observations in the case of Duncanv. Cammell:
The entire law on this point was reviewed and restated by the Supreme Court in S.P.
Guptav. Union of India,21Commenting on Duncan case22,Venkataramiah, J., observed:
"This decision...... laid down that privilege could be claimed in respect of a document
on two alternative grounds viz.,(a) that the disclosure of the contents of the document
would be injurious to the public interest by endangering national security or
diplomatic relation and (b) that the document belonged to a class should not be
disclosed to ensure the proper functioning of public service."
POWERS OF COURT
The decision whether to allow or reject the claim to Crown privilege or State privilege, and if
so, to what extent, is and remains the decision of the Court, and the view of the political
minister that the production or disclosure of documents or information, whether because of
their actual contents or because of the class of documents to which they belong is not
20 Lady Dinbai Dinshaw Petit v. Dominion of India, 1951 B 72: 53 BLR 229
21 AIR 1982 SC 149
22 1942 AC 624
9

conclusive. The Court will give full weight to the view of the minister in every case, but it
has and is entitled to exercise a residual power, and indeed a duty, to examine the objection
and the grounds raised by the minister to support his view that production would be injurious
to the public interest. If, in spite of the certificate or affidavit of the minister, the Court is
satisfied that the objection is not taken bona fide or that the grounds relied on by the minister
are insufficient or misconceived or not clearly expressed or that there are no reasonable
grounds for apprehending danger to the public interest, the Court has a residual power to
override the objection. For this purpose, the Court is entitled to see the documents before
ordering production, and the Court can see the documents without their being shown to the
parties, but the minister should have a right to appeal before the documents are in fact
produced.
Among the cases decided in India, the first to be referred to was that of State of
Punjabv. Sodhi Sukhdev Singh23 which was declaratory of the law on the point in India.
According to Venkataramiah J,:
"...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 the document in
question. That is a matter for the authority concerned to decide, but the Court is
competent, and indeed is bound, to hold a preliminary enquiry and determine the validity
of the objection to its production, and 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 this enquiry the Court has to determine the character or class of the document.
If it comes to the conclusion that the document does not relate to affairs of State then it
should reject the claim for privilege and direct its production. If it comes to the conclusion
that the document relates to affairs of State it should leave it to the head of the department
to decide whether he should permit its production or not ....it is quite conceivable that
even in regard to a document....relating to affairs of State the head of the department may
legitimately take the view that its disclosure would not cause injury to public interest ....It
is also possible that the head of the department may feel that the injury to public interest
which the disclosure of the document may cause is minor or insignificant, indirect or
remote; and having regard to the wider extent of the direct injury to the cause of justice
which may result from its non production he may decide to permit its production......we
23 AIR 1961 SC 493
10

think it is not unreasonable to hold that section 123 gives discretion to the head of
department to permit the production of a document even though its production may
theoretically lead to some kind of injury to public interest. While constructing sections 123
and 162, it would be irrelevant to consider why the enquiry as to injury to public interest
should not be within the jurisdiction of the Court, for that clearly is a matter of policy on
which the Court does not and should not generally express any opinion.
PUBLIC OFFICER
The words "public officer" are used in their ordinary dictionary sense and include the ViceChancellor of the Punjab University24.The Agent of a Railway Company is not a "public
servant". He cannot, therefore, object to produce document in his possession under section
124.
COMMUNICATIONS MADE IN OFFICIAL CONFIDENCE
This section is based on the same principle as the preceding section, the object being to
prevent disclosures to the detriment of public interest. The test of privilege under this section
is that the communication was made to the public officer in official confidence. If a document
is produced or a statement is made in a confidential departmental enquiry not under process
of law but for the gathering of information by the department for guiding them in future, it
would be a communication made in confidence. 25 Privilege cannot, therefore, be claimed in
respect of a communication, merely on the ground that its disclosure would cause a scandal in
the office. The words "communication made to him in official confidence" import no special
degree of secrecy and no pledge or direction for its maintenance, but include generally all
matters communicated by one officer to another in the performance of their duties.
MANNER OF CLAIMING PRIVILEGE
The Court in State of Uttar Pradeshv. Raj Narain,26 held that an objection claiming immunity
should be raised by an affidavit affirmed by the head of the department. The court may also
24 University of the Punjab v. Jaswant Rai, 48 PLR 16: 1946 L 220.
25 Killi Suryanarayan Naidu (in re:), 1954 M 278
26 (1975) 4 SCC 428 (443): (1975) 3 SCR 333 (349)
11

require a Minister to affirm an affidavit. They must state with precision the grounds or
reasons in support of the public interest immunity. It is now settled law that the initial claim
for public interest immunity to produce unpublished official records for short "State
documents" should be made through an affidavit generally by the Minister concerned, in his
absence by the Secretary of the department or head of the department.
Communications made in official confidence cannot be proved by secondary evidence
Not only are communications made in official confidence privileged, but no secondary
evidence of them can be given. Where, therefore, a complaint or an action27 is founded on a
communication made in official confidence, the complaint or action must fail, as the
communication, being privileged, cannot be proved either by primary evidence or by
secondary evidence.
Privileged State documents cannot be proved by secondary evidence
As unpublished official records are protected from disclosure, it follows that secondary
evidence of their contents also is inadmissible.28 Where, therefore a complaint, or an action is
founded on a privileged document, the complaint or action must fail, as the document, being
privileged, cannot be proved either by primary evidence or by secondary evidence.29
CONCLUSION
State privileges are necessary in conducting the state affairs as well as the fact these are
misused by the officials to avoid personal liabilities which might arise if the alleged
documents or communication allowed to get published. Therefore it become necessary for
judiciary to come and play the role of check and balance between public interest and justice
by weighing the harm that would cause after the disclosure and the injustice that would
attribute because of the non-disclosure of the document or official communication. It would
not be unreasonable to hold that section 123 gives discretion to the head of department to
permit the production of a document even though its production may theoretically lead to
27 Jehangir M. Cursetjee v. Secretary of State, 27 B 189
28 Lady Dinbai Dinshaw Petit v. Dominion of India, 1951 B 72: 53 BLR 229
29 Devi Datt Ram Naranjandas v. Shriram Narayan Das, 56 B 324: 1932 B 291
12

some kind of injury to public interest. While constructing sections 123 and 162, it would be
irrelevant to consider why the enquiry as to injury to public interest should not be within the
jurisdiction of the Court, for that clearly is a matter of policy on which the Court does not and
should not generally express any opinion.

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BIBLIOGHPHY
Books

Justice U.L. Bhat with a Foreword by Justice K.T. Thomas, Lectures on The Indian

Evidence Act, 2015

Ratanlal & Dhirajlal, The Law of EVIDENCE, 22th Edition, 2009

Online Sources

http://www.scconline.com/
http://www.manupatrafast.com/

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