State Privilege and its Applicability

State Privilege and Its Applicability

I. Preface: State Privilege

Law is universal and like every law it has its exceptions. Privilege in law is one such exemption of law. Privilege is an exemption from some duty, burden or attendance to which certain persons are entitled; from a supposition of law usually. It is a right or immunity granted as  a peculiar benefit; advantage or favour; a peculiar or personal advantage or right, especially when enjoyed in derogation of a common right.[1] Privilege in its most extended sense, comprehends by far every prerogative, exemption and immunity offered.    

State privilege in one facet of privilege law in general offer. State privilege is special dispensation given to state under sec123, 124 and 162 of the Indian Evidence Act. Sec 123 and 124 hold that disclosure of secret information contained in unpublished state papers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. Moreover no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by disclosure.

 The Constitution holds that everybody is equal before the law, even the state or in pragmatic sense the government. This equality is given to fulfill the purpose of law, which is justice.[2] Theorists as far removed from one another as Acquinas and Salmond[3] have claimed justice as the goal of law was indeed for them in the logical part of very notion of law.[4] Even the well known positivist Austin held the importance of the two concepts although denied any logical connection.[5] Hence the intricate issue is why such privilege to state which causes blatant disregard to the equality before law, the constitution diligently guarantees for eternity. As a matter of fact the matter would still be in question in absence of the Constitution and its principles. This intricate discrepancy would look to deter the principles of natural justice. However to this apparently first inquiry to which general hypothesis suggest something hypocritical and dubious, we must not forget such exceptions as privileges are provided various persons in the forum of law.

The principle and the foundation of the rule laid down in this section is concern for public interest.[6] The section gives effect to the principle that public interest must be paramount and private interest must give way, when there is any conflict between public and private interest.[7]The underlying principle of section 123 is that the interest of the state prevails over the interest of the individual. The privilege claimed is based on the public policy as being detrimental to public evidence that a document which is material and relevant in a suit or proceeding should not be withheld from the court. The departure from the ordinary rules of evidence in section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest which should override and prevail over the interest of the individual.[8]

The claim of privilege is founded on the theory that in case the production of a particular document would cause prejudice or injury to public interest and its non production would result in prejudice or inquiry to some private interest, the latter must yield to the former.[9]

In Beatson v. Skene[10] Justice Pollock held

We are of the opinion that if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice.

The principle underlying the rule contained in section 123, 124 and 162 is founded on the general rule of public policy. General public interest must be considered to be far greater importance than that of an individual suitor.[11]

II.  Applicability of State Privilege

A] Section 123 of the Indian Evidence Act:

There is no sacrosanct rule about the immunity from the production of documents and the privilege should not be applicable in respect of each and every document. The claim of immunity and privilege has to be based on public interest. Their Lordships of  the Supreme Court in State of Bihar v. Kripalu Shanke[12] held:

We would like to outline the general principle on which confidentiality of state documents should be protected. The general principle is that if a person is involved in litigation, the courts can order him to produce all the documents he has which relate to the issues in the case. Even if they are confidential, the court can direct them to be produced when the party in possession does not produce them, for the other side to see or at any rate for the court to see. When the court directs production of those documents there is an implied understanding that they will not be used for any other purpose. The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the court cannot use them for any purpose other than the one relating to the case involved.  

Section 123 and 165, Evidence Act came up for consideration for the first time before the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh[13]. Gajendragadkar, J speaking on behalf of Sinha CJ and Wanchoo J pointed out that the principle behind the exclusionary rule enacted in Section 123 is that a document should not be allowed to be produced in court if such production would cause injury to public interest, and where a conflict arises between public interest in non disclosure and private interest in disclosure, the latter must yield to the former.

However their Lordships of the Supreme Court in S.P Gupta’s Case[14] did not agree with the view explored in State of Punjab v. Sodhi Sukhdev Singh[15] , that the interest in fair administration of justice that comes in to clash with the public interest sought to be protected by non disclosure.

Thus the supreme court in S.P.Gupta has held in explicit words that the court has power to inspect the document for the purpose of deciding the question as to whether the document is a privileged document or not.

The principle holds the same in English law. It is important to note Lord Simon, LC last quoted that a judge must accept as final a minister’s decision to exclude evidence was overruled in Conway v. Rimmer[16], it being laid down that courts have the power to order production and overrule the minister’s decision to with hold, if necessary on the principles that follow.

Relationship between section 91, CrPc and Sec123, Indian Evidence Act:

Sub section (1) of section 91 CrPC 1973, provides that whenever any court considers that the production of any document is necessary or desirable for the purposes of any inquiry, trial or other proceedings such court may issue a summons to the person in whose possession or power such document is believed to be requiring him to attend and produce it. The discretion conferred on the court is an absolute discretion, the only condition for its exercise being that in the opinion of the court, the production of the document is necessary or desirable for the purpose of the inquiry, trial or other proceeding before the court.

B] Section 124 of Indian Evidence Act:

This is section is really supplementary to the previous section and gives effect to the same principle of public policy; prejudice to the public interest in disclosure.[17] If it were not so then it would be impossible to communicate freely.[18] The objection is sometimes based upon the view that the public interest requires a particular class of communication with or within a public department to be protected from production on the ground that the cad our and completeness of such communication might be prejudiced, if they were even liable to be disclosed in subsequent litigation rather upon the contents of the particular documents itself.[19] 

If the giving of such evidence would be injurious to the public interest, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice. The public officer concerned and not the judge is to decide whether the evidence referred to in these sessions shall be given or withheld because the judge would be unable to determine this question without ascertaining what the document or communication was and why the publication or disclosure of it would be injurious to the public interest – an inquiry which cannot take place in private and which taking place may do all the mischief which it is proposed to guard against.[20]  It has however been held that it is for the court to decide whether or not a particular document for which privilege is claimed under this section, is a communication made to a public officer in official confidence.

Section 124 applies to communications made in official confidence to a public officer and he need not be the head of the department who cannot be compelled to give evidence but is at the liberty to waive objection. The basis of prohibition is that it would restrain the freedom of communications made to public officers or by one public officer to another and would thereby injure public interest. If such communications were compelled there will be a danger that the usual channels of detection of crime or of evasion of taxes would get blocked up. It is for the court to decide as to whether such communication was in official confidence or not.          

III.  Determination of State Privilege: Relationship between section 123 and 162 of the Indian Evidence Act

Lord Blaneshburgh observed in Robinson v. State of South Australia [21]:

As the protection is claimed on the broad principle of State policy and public convenience, the papers protected as might have been expected, have usually been public official documents of a political or administrative character. Yet the rule is not limited to these documents. Its foundation 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.

Robinson v. State of South Australia is the leading authority on the principles governing the privilege, the extent of the privilege, the manner in which it should be claimed and the powers of the court in relation to  the claim of state privilege.  Following the Robinson case it has been held that where a public officer declines to produce certain documents, claiming privilege under section 123 and 124, it is for the court in the first instance to satisfy itself that the documents relate to any state affairs or their production will be detrimental to public interest.[22]

The matter was discussed in length recently by the Supreme Court in S v. Sodhi Sukhdev[23] and ahs held that the combined effect of section 123 and 162 is that:

i.  It is for the court to determine the claim of privilege by giving a decision on the character or class of document, ie whether it  relates to any affairs of State or not.

ii. In this enquiry which the court is bound to hold, it may well take other evidence in    lieu of inspection to determine the character of the document. The jurisdiction conferred on the court to determine the character of the document. The jurisdiction conferred on the court to determine the validity of an objection to produce the document is not illusionary or nominal. If the document cannot be inspected, its contents cannot indirectly be proved, but that is not to say that collateral evidence cannot be produced in determining the validity of the objection.

iii. If the affidavit in support of the claim for privileges is found to be unsatisfactory, the Minister or the Secretary making the affidavit should be summoned to face cross examination on relevant points. It would be open to the opponent to put such relevant and permissible questions as may help the court in determining whether the document belongs to the privileged class or not. If it comes to the conclusion that the document does not relate to the affairs of the state, it should leave it to the discretion to the head of department whether it should direct its production or not.

IV.   Conclusion

Public interest which demands that evidence to be with held is to be weighed against the public interest in the administration of justice that court should have the fullest possible access to all relevant materials. An objection is raised by an affidavit affirmed by the head of department. The court may also require a minister to affirm an affidavit. If the court is satisfied with affidavit evidence the matter ends there but if it would like to satisfy itself it may inspect the document. Objection as to the production as well as admissibility contemplated in Section 162 is decided by the court in enquiry.[24]  

Under the Indian Evidence Act the foundation of the claim of privilege under section 123 is whether the evidence sought to be given is derived from un published official records relating to any affairs of state. That is the condition precedent before any privilege can be claimed.

Section 162 makes it clear that this question is one for the court to decide and not the head of the department. The position therefore is that when the state or a public officer is summoned to produce a document in respect of which he desire to claim privilege on the ground that it relates to any affairs of the State, he is bound first to appear and bring it to court under Section 162 not withstanding any objection that he may have as to its production nor admissibility and then claim privilege for it in proper way by an affidavit.

It is for the court to decide whether the document in question relates to any affairs of State. In this enquiry which the court has to make, though it cannot inspect the document, it may take other evidence to determine the character or nature of the document.

If the court comes to the conclusion that the document does not relate to any affairs of State, the claim for privilege must be rejected and the document directed to be produced and given evidence.If on the other hand the court holds that the document is of the kind in regard to which privilege can be claimed, in other words that it is an unpublished official record relating to any affairs of State, the question whether disclosure of contents would be against public interest and whether privilege should be claimed for it or not must be left entirely to the discretion of head of department.       

[1] See Or.11, R.19(2)C.P.C and Art59(3) Const.

[2] On justice see Pollock, jurisprudence and Legal Essays(ed-Goodhart) 16-30; S.K.Allen, Aspects of Justice; Dowick, Justice according to English Common Lawyers; Hart, The Concept of Law, Chap8; Lloyd The idea of law, Chap.6

[3] See Salmond, Jurisprudence (7th ed),39:”The law may be defined as the body of principles recognized and applied by the state in the administration of justice . In other words, the law consist of rules recognized and acted on by courts of justice.

[4] For another example of theorists refer to Augustine ‘s theory on Law, he held an unjust law is no law.

[5] Austin, op.cit..,lecture V 126.”The science of jurisprudence is concerned with positive law or with laws strictly so called as concerned without regard to their goodness or badness.

[6] Henry Greer Robinson v. State of South Australia AIR1931PC254; TM Lall v. Secretary of State AIR1944Lah209

[7] S.P.Gupta v. President of India AIR1982SC149, M/S FA Corpn Ltd v. Industrial Development Corp of Orissa Ltd AIR1986Ori199; State of Himachal Pradesh v. Manmohan Bhardwaj 1983LIC469; Samarendra Kumar Deb nath v. Union of India 1981CrLJ144

[8] State of UP v. Raj Narain (1975)4SCC428, State of  Punjab v. Sodhi Sukhder Singh (1961)2SCJ691

[9] State of Himachal Pradesh v. Manmohan Bhardawaj (1983)1LLJ474

[10] (1860)5H&N838

[11] State of WB v. Tulsiram Agarwalla (1980)2CalHN351

[12] AIR1987SC1554

[13] AIR 1961SC493, The learned judge emphasized that though sec123 does not expressly refer to injury to public interest, that principle is obviously implicit in it and indeed it is the sole foundation and proceeded to add that even though administration of justice is a matter of very high public performance , if there is a real conflict between public interest and interest of an individual in an pending case, it may reluctantly have to conceded that the interest of the individual cannot prevail over public privilege.     

[14] AIR1982SC149

[15] AIR 1961SC493  

[16] [1968]AC910

[17] Lady Dinbai Dinshaw Petit v. Dominion of India, AIR1951Bom72, Governor General in Council v. Peer Md Khuda AIR1950EP228

[18] Smith v. East India Co (1841)1Ph55, Henessy v. Wright [1888]21QBD509

[19] Duncan v. Gamell Laird & Co [1942]AC624

[20] Nagaraja Pillai v. Secretary of State AIR 1915 Mad 1113

[21] 1931-AC704

[22] Ibrahim v. Secy of State 161IC668 The mere fact that the production of documents is likely to prejudice the Crowns case is no reason for their non production. Also see Collr of Jaunpur v. Jamma 44A360;Nazir v. R  A1944L In some cases however it was held that whenever a claim is made that the document related to matter of State, the ipse dixit should be regarded as conclusive without further enquiry.

[23] AIR1961SC493

[24] S v. Raj Narain AIR1975SC865