# 2 s.c.R. SUPREME COURT REPORTS 371 . THE STATE OF PUNJAB v. SODHI SUKHDEV SINGH

- **Citation:** [1961] 2 S.C.R. 371
- **Court:** Supreme Court of India
- **Decided:** 1958-05-05
- **Case number:** Civil Appeal No. 337 of 1960
- **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendragadkab, K. SUBBA RAO a.nd K. N. WANOHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reports-371-the-state-of-punjab-v-sodhi-sukhdev-singh-2237
- **Pages:** 89

## Headnote

Evidence -
Production of documents~ "Affairs o/ State",
meaning of-Privileged documents-Scope of-Ministerial certificate, if and 'when conclusive-Collateral evidence to find nature of
document-Court's power-Inspection of documents-Code of Civsl
Procedure (Act 5 of 1908), O; II, rr. 14, 19(z), 0. 14, r. 14-Indian
Evidence Act, 187z (1 of 1872), ss. 123, 162.
The respondent who was a District and Sessions Judge in
the erstwhile State of Pepsu was removed from service on April
7, 1953 by an order passed by the President of India who was
then in charge of the administration of the State. A representation made by the respondent on May 18, 1955, was considered
by the Council of Ministers of the State as in the meantime the
President's rule had come to an end, and its views wore expressed in the form of a Resolution dated September 28, 1955; but
before taking any action it invited the advice of the Public
Service Commission. On receipt of the report of the Public
Service Commission, the Council of Ministers considered the
matter again on March 8, 1956, and its views were recorded in
the minutes of the proceedings.
On August II, 1956, the
representation made by the respondent was considered over
again by the Council and a final conclusion was reached in respect
of it.
In accordance with the said conclusion an order was
passed which was communicated to the respondent to the effect
that he might be re-employed on some suitable post. On May 5,
1958, the respondent instituted a suit against the State of
Punjab for a declaration that..,.the removal of his service on
April 7, 1953, was illegal, and 1lled an application under 0. 14,
r. 4, and 0. II, r. 14, of the Code of Civil Procedure for the
production of certain documents, which included the proceedings
of the Council of Ministers dated September 28, 1955. March 8,
1956, and August II, 1956, and the report of the Public Service
Commission. The State objected to the production of the said
documents claiming privilege under s. 123 of the Indian Evidence Act, 1872, and the Chief Secretary of .the State filed an
affidavit giving reasons in support of the claim. The question
was whether having regard to the true scope and effect of the
provisions of ss. 123 and 162 of the Act the. claim of privilege
raised by the State was sustainable.
Held, that the documents dated September 28, 1955, March
8, 1956, and August II, 1956, which embodied the minutes of
November x5,
I960
Th• Stal• of
Punjab
v.
Sodhi
S1-1Ahdev Siugh
372
SUPREME COURT REPORTS
[1961]
the meetings of the Council of Ministers indicating the advice
which the Council ultimately gave to the Rajpramukh, were
expressly saved by Art. 163(3) of the Constitution of India and
fell within the category of documents relating to "affairs of
State" within the meaning of s. 123 of the Indian Evidence
Act, 1872.
Accordingly, they were protected under s. 123, and as the
head of the department, the Chief Secretary, did not give permission for their production, the Court cannot compel the State
to produce them.
Held, further (Subba Rao, J., dissenting), that the report of
the Public Service Commission being the advice tendered by it,
was also protected under s. 123 of the Act.
Held, also (Kapur, J., dissenting), that the words "records
relating to affairs of State " in s. 123 cannot be given a wide
meaning so as to take in every document pertaining to the
entire business of State, but should be confined only to such
documents whose disclosure may cause injury to the public
interest.
The second clause of s. 162 refers to the objections both as
to the production and admissibility of the document and entitles
the court to take other evidence in lieu of inspection of the
document in dealing with a privilege claimed or an objection
raised under s. 123, to determine the validity of the objections.
Case law reviewed.
Per Sinha, C. J., Gajendragadkar and Wanchoo, JJ.-
Though under ss. 123 and 162 the Court cannot hold an enquiry
into the possible injury to pu

## Text

_Characters 0–39,765 of 202,483. This is a partial read: ask again with offset=39765 for what follows._

2 s.c.R. SUPREME COURT REPORTS
371 .
THE STATE OF PUNJAB
v.
SODHI SUKHDEV SINGH
(B. P. SINHA, c. J., J. L. KAPUR,
P. B. GAJENDRAGADKAB, K. SUBBA RAO
a.nd K. N. WANOHoo, JJ.)
Evidence -
Production of documents~ "Affairs o/ State",
meaning of-Privileged documents-Scope of-Ministerial certificate, if and 'when conclusive-Collateral evidence to find nature of
document-Court's power-Inspection of documents-Code of Civsl
Procedure (Act 5 of 1908), O; II, rr. 14, 19(z), 0. 14, r. 14-Indian
Evidence Act, 187z (1 of 1872), ss. 123, 162.
The respondent who was a District and Sessions Judge in
the erstwhile State of Pepsu was removed from service on April
7, 1953 by an order passed by the President of India who was
then in charge of the administration of the State. A representation made by the respondent on May 18, 1955, was considered
by the Council of Ministers of the State as in the meantime the
President's rule had come to an end, and its views wore expressed in the form of a Resolution dated September 28, 1955; but
before taking any action it invited the advice of the Public
Service Commission. On receipt of the report of the Public
Service Commission, the Council of Ministers considered the
matter again on March 8, 1956, and its views were recorded in
the minutes of the proceedings.
On August II, 1956, the
representation made by the respondent was considered over
again by the Council and a final conclusion was reached in respect
of it.
In accordance with the said conclusion an order was
passed which was communicated to the respondent to the effect
that he might be re-employed on some suitable post. On May 5,
1958, the respondent instituted a suit against the State of
Punjab for a declaration that..,.the removal of his service on
April 7, 1953, was illegal, and 1lled an application under 0. 14,
r. 4, and 0. II, r. 14, of the Code of Civil Procedure for the
production of certain documents, which included the proceedings
of the Council of Ministers dated September 28, 1955. March 8,
1956, and August II, 1956, and the report of the Public Service
Commission. The State objected to the production of the said
documents claiming privilege under s. 123 of the Indian Evidence Act, 1872, and the Chief Secretary of .the State filed an
affidavit giving reasons in support of the claim. The question
was whether having regard to the true scope and effect of the
provisions of ss. 123 and 162 of the Act the. claim of privilege
raised by the State was sustainable.
Held, that the documents dated September 28, 1955, March
8, 1956, and August II, 1956, which embodied the minutes of
November x5,
I960
Th• Stal• of
Punjab
v.
Sodhi
S1-1Ahdev Siugh
372
SUPREME COURT REPORTS
[1961]
the meetings of the Council of Ministers indicating the advice
which the Council ultimately gave to the Rajpramukh, were
expressly saved by Art. 163(3) of the Constitution of India and
fell within the category of documents relating to "affairs of
State" within the meaning of s. 123 of the Indian Evidence
Act, 1872.
Accordingly, they were protected under s. 123, and as the
head of the department, the Chief Secretary, did not give permission for their production, the Court cannot compel the State
to produce them.
Held, further (Subba Rao, J., dissenting), that the report of
the Public Service Commission being the advice tendered by it,
was also protected under s. 123 of the Act.
Held, also (Kapur, J., dissenting), that the words "records
relating to affairs of State " in s. 123 cannot be given a wide
meaning so as to take in every document pertaining to the
entire business of State, but should be confined only to such
documents whose disclosure may cause injury to the public
interest.
The second clause of s. 162 refers to the objections both as
to the production and admissibility of the document and entitles
the court to take other evidence in lieu of inspection of the
document in dealing with a privilege claimed or an objection
raised under s. 123, to determine the validity of the objections.
Case law reviewed.
Per Sinha, C. J., Gajendragadkar and Wanchoo, JJ.-
Though under ss. 123 and 162 the Court cannot hold an enquiry
into the possible injury to public interest which may result
from the disclosure of the document in question, the matter
being left for the authority concerned to decide, the Court is
competent 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 document relates to affairs of State under s. 123. Where s. 123
confers wide powers on the head of the department to cla!m
privilege on the ground that the disclosure may cause injury to
public interest, scrupulous care must be taken to a void making
a claim for such a privilege on the ground that the disclosure of
the document may defeat the defence raised by the State. The
apprehension that the disclosure may adversell affect the head
of the department or the Minister in charge o the department
or even the Government in power, or that it may provoke public
criticism or censure in the Legislature, should not weigh in the
mind of the head of the department and the sole test which
should determine his decision is injury to public interest and
nothing else.
The privilege under s. 123 should be claimed generally by
the Minister in charge who is the political head of the department concerned ; if not, the Secretary of the department should
2 S.C.R. SUPREME COURT REPORTS
373
make the claim, and the claim should always be made in the
form of an affidavit. When the affidavit is made by the Secretary, the Court may, in a proper case, require an affidavit of the
Minister himself. The affidavit should show that each document in question has been carefully read and considered, and
the person making the affidavit is satisfied that its disclosure
would lead to public'injury. If there are series of documents included in a file it should appear from the affidavit that each one
of the documents, whose disclosure is objected to, bas been duly
considered by the authority concerned. The affidavit should
also indicate briefly within permissible limits the reason why it
is arprehended that their disclosure would lead to injury to
public interest.
If the affidavit produced in support of the claim for privilege is found to be unsatisfactory a further affidavit may be
called, and in a proper case the person making the affidavit
whether he is a Minister or the Secretary should be summoned
to face cross-examination on the relevant points.
The provisions of 0. II, r. 19(2), of the Code of Civil Procedure must be read subject to s. 162 of the Indian Evidence Act
and where a privilege is claimed at the stage of inspection
under 0. II, r. 19(2), of the Code, the Court is precluded from
inspecting the privileged document in view of s. 162 of the Act.
Per Kapur, J.-The words of s. 123 of the Act are very
wide and cover all classes of documents which may fall within
the phrase "affairs of State ", some noxious and others innocuous, and may even appear to be unduly restrictive of the
rights of the litigant but if that is the law the sense of responsibility of the official concerned and his sense of fair play has to
be trusted. Under that section discretion to produce or not to
produce a document is given to the head of the department and
the court has not the power to override the ministerial certificate against production.
The words "or take other evidence to enable it to determine on its admissibility" in s. 162 on their plain language do
not apply to production and the taking of evidence must have
reference to admissibility. The section does not entitle the
court to take other evidence i.e., other than the document, to
determine the nature of the document or the reasons impelling
the head of the department to withhold the production of the
document.
It is permissible for the Court to determine the collateral
facts whether the' official claiming the privilege is the person
mentioned in s. 123, or to require him to file a proper affidavit
or even to cross-examine him on such matters which do not fall
within the enquiry-as to the nature of the document or nature
of the injury. He may also be cross-examined as to the existence
of the practice of the department to keep documents of the class
The State of
Punjab
v.
Sodhi
Sukhdev Singh
z960
The Slate of
Punjab
v.
Sodhi
Sukhdtv Singh
374
SUPREME COURT REPORTS
[1961)
secret but beyond that the ministerial discretion should be
accepted and it should neither be reviewed nor overruled.
Per Subba Rao, J.-(x) "'Records relating to affairs of
State" in s. 123 of the Act mean documents of State whose
production would endanger the public interest; documents pertaining to public security, defence and foreign relations are
documents relating to affairs of State; unpublished documents
relating to trading, commercial or contractual activities of the
State are not, ordinarily, to be considered as documents relating
to affairs of State, but.in special circumstances they may partake
of that character and it is a question of fact in each case whether they relate to affairs of State or not in the sense that if they
are disclosed public interest would suffer.
(2) Under no circumstances can a court inspect such a document or permit giving of secondary evidence of its contents.
(3) Under s. 162 the Court has overriding power to dis=-
allow a claim of privilege raised by the State, but in its discretion, the court will exercise its power only in exceptional circumstances when public interest demands. The said claim shall
be made by an affidavit filed by the Minister in charge of the
department concerned describing the nature of the document in
general and broadly the category of public interest its non-disclosure purports to serve. Ordinarily, the court shall accept the
affidavit of a Minister. but in exceptional circumstances, when
it has reason to believe that there is more than what meets the
eye, it can examine the Minister and take other evidence to
decide the question of privilege.
(4) The disclosure of the report of the Public Service Commission may expose the Government if the latter ignores a good
advice, but such an exposure is certainly in public interest and
in a conflict between the administration of justice and the claim
of privilege by the State, the claim must be overruled.
CIVIL
APPELLATE
JURISDICTION: Civil Appeal
No. 337 of 1960.
Appeal by specie.I leave from the judgment a.nd
order dated January 19, 1960, of the Punjab High
Court in Civil Revision No. 596 of 1959.
N. 8. Bindra a.nd D. Gupta, for the appellant.
Gapal Singh, for the respondent.
H. M. Beervai, Advoca.te-General for the State of
Ma.ha.ra.shtra. a.nd R. H. Dhebar, for the Intervener.
1960. November
15. The judgment of B. P.
Sinha., C. J., P. B. Ga.jendra.gadka.r, J. a.nd K. N.
Wa.nchoo, J. wa.s delivered by P. B. Gajendra.ga.dka.r, J.
J. L. Kapur, J. a.nd K. Subba. Ra.o, J., delivered
separate judgments.
-d
\_
2 S.C.R. SUPREME COURT REPORTS
375
•
GAJENDRAGADKAR, J.-This appeal raises for our
r96o
decision a question of law of general importance under
ss. 123 and 162 of the Indian Evidence Act, 1872,
Th~=~;~~ of
(hereafter called the Act). Originally the same point
v.
had been raised in another civil appeal before this
Sodhi
Court, Civil Appeal No. 241 of 1955. The said appeal Sukhdev Singh
was the result of a dispute between Dowager Lady G .
-. -
Dinbai Dinshaw Petit on the one hand and the Union a;end•agadkar f.
of India. and the State of Bombay on the other. Having regard to the importance of the point raised by
the said appeal a Division Bench of this Court before
whom it first came for hearing directed that it should
be placed for disposal before a Constitution Bench,
and accordingly it was placed before us. The appellant and the respondent in the present appeal then
applied for permission to intervene because the same
point arose for decision in this appeal as well; that is
how this appeal was also placed before us to be heard
after the Bombay appeal. After the Bombay appeal
was heard for some days parties to the said appeal
amicably settled their dispute and a decree by consent
was passed. In the result th'e point of general importance raised by the said appeal fell to be considered
in the present appeal ; and so the appellant and the
respondent in the said appeal asked for permission to
intervene in the present appeal, and we directed that
the arguments urged by Mr. Viswanatha Sastri and
Mr. Seervai, for the appellant and the State of Bombay respectively, should be treated as arguments urged
by interveners in the present appeal. Mr. Bindra,
who appears for the appellant State of Punjab in the
present appeal, and Mr; Gopal Singh who represents
the respondent Sodhi Sukhdev Singh, have substantially adopted the arguments urged by Mr. Seervai and
Mr. Sastri respectively and have also addressed us on
the special facts in their appeal; that is how the point
of law in regard to the scope and effect of ss. 123 and
162 of the Act has to be decided in the present appeal.
This appeal has been brought to this Court by
special leave granted by this Court, and it arises from
a suit filed by the res_pondent against the appellant
on May 5, 1958. It appears that the respondent was
376
SUPREME COURT REPORTS
[1961]
r96o
a. District and Sessions Judge in the erstwhile State of
Th• Stat• of
Pepsu. He was removed from service on April 7,
Punjab
1953, by a.n order passed by the President of India.
v.
who was then in charge of the administration of the
Sodhi
said State. The respondent then ma.de a. representa.-
Svkhd•• Singh tion on May 18, 1955. This representation was con-
-
sidered by the Council of Ministers of the said State
Gajendragadkar f. on September 28, 1955, because in the meantime the
President's rule had come to an end and the administration of Pepsu was entrusted to the Council of
Ministers. The Council expressed its views in the
form of a. Resolution on the representation of the
respondent; but before taking any action it invited
the advice of the Public Service Commission. On
receiving the said advice the Council again considered
the said representation on March 8, 1956, and views
on the merits of the representa. tion were expressed by
the Members of the Council. These were recorded in
the minutes of the proceedings. Finally, on August
ll, 1956, the representation was considered over again
by the Council, and it reached a. final conclusion in
respect of it. In accordance with th1:1 said conclusion
an order was passed which was communicated to the
respondent. The order read thus : " Reference his
representation dated the 18th May, 1955, against the
order of his removal from service; the State Government have ordered that he may be re-employed on
some suitable post".
After this order was communicated to him the
respondent filed the present suit against the appellant
and claimed a. declaration, inter alia., that his removal
from service on April 7, 1953, was illegal, void and
inoperative and prayed for the recovery of Rs.
62,700-6-0 as arrears of his salary. The appellant
disputed the respondent's claim 011 several grounds.
Issues were accordingly framed by the trial judge on
January 27, 1959. Meanwhile the respondent had filed
an application under 0. 14, r. 4 as well as 0. 11, r. 14
of the Civil Procedure Code for the production of
documents mentioned in the list annexed to the application. The trial court issued notice against the
appellant for the production of the said documents.
2 S.C.R. SUPREME COURT REPORTS
377
In reply to the notice Mr. E. N. Mangat Rai, Chief
z96o
Secretary of the appellant, made an affidavit claiming
The Stale of
privilege under s. 123 of the Act in respect of certain
Punjab
documents whose production had been ordered, and
v.
gave reasons in support of the claim. On the same
Sodhi
day Mr. Mangat Rai made another affidavit in which
sukhdev Singh
he gave reasons for claiming similar privilege in G . d-dk
respect of certain other documents. The statements a,,,, raga
ar f.
made in these affidavits were challenged by the respondent who submitted a counter affidavit. After the
affidavits had thus been filed by the parties the trial
court heard their arguments on the question of privilege, and on August 27, 1959, it upheld the claim of
privilege made by the appellant for the production of
some documents, and accepted the reasons given by
Mr. Mangat Rai in support of the said claim of privilege.
The respondent then moved the High Court of
Punjab under s. 115 of the Code of Civil Procedure
and Art. 227 of the Constitution for the quashing of
the said order. The petit.ion for revision (C. R. 596 of
1959) first came up for decision before D. K. Mahajan, J., at Chandigarh. The learned judge took the
view that the question raised by the petition was of
eonsidera.ble importance, and so he ordered that the
papers should be placed before the learned Chief Justice
to enable him to direct that the matter be decided by
:i larger Bench. Thereupon the petition was placed
for decision before Dulat and Dua., JJ., who, after
hearing the parties, reversed the order under revision
in respect of four documents, and directed that the
said documents be produced by the appellant. The
appellant then applied to the High Court for a certificate under Art. 133 but its application was dismissed.
It then ca.me to this Court and applied for and obtained special leave to challenge the validity of the order
passed by the Punjab High Court ; and in the appeal
the only question which has been urged before us is
that having regard to the true scope and effect of the
provisions of ss. 123 and 162 of the Act the High
Court was in error in refusing to uphold the cla~m of
,.s
378
SUPREME COURT REPORTS
(1961]
I96o
privilege raised by the appellant in respect of the
documents in question.
The State of
Punjab
The question thus posed will naturally have to be
v.
answered on a fair and reasonable construction of the
Sodhi
two statutory provisions of the Act. It has, howSukhdev Singh ever, been very strenuously urged before us by Mr.
-
Seervai that before proceeding to construe the said
Gajendragadka' ].
· ·
't •
th t h C
t
h
Jd b
prov1s1ons 1 1s necessary
a t e our s ou
ear
in mind the historical background of the said provisions. His argument is that as. 123 and 162 as they
were enacted in the Act in 1872 were intended to
introduce in India. the English Law in regard to what
is commonly described as the Crown privilege in
the same form in which it obtained in England at the
material time; and so he has asked us to determine
in the first instance what the true state of English
Law was in or a.bout 1872 A. D.
In order to decide this question three representative English decisions must be considered. In Home
v. Lord F. 0. Bentinck(') the Court was dealing with
a. claim made by H who had sued the president of the
enquiry for a libel alleged to be contained in the report
made by him. It appears that H was a commissioned
officer in the Army and the Commander-in-Chief of the
said Army had directed an assemblage of commissioned
military officers to hold an enquiry into the conduct of
H. According to H the said report contained libellous
matter, and so he had sued the president of the enquiry. At the trial H desired that the report submitted
by the court of enquiry should be produced and this
request was resisted by the defendant on the ground
that the document in question was a. privileged communication. This plea was upheld. Dallas, C. J., referred
to the precedents relevant to the decision of the point,
and observed that the basis of the said precedents was
that the disclosure would ca.use danger to the public
good.
He then considered the nature of the enquiry
which had been directed against H, and observed
that in the course of the enquiry a. number of persons
may be called before the court and may give information as witnesses which they would not choose to
(1) (1820) 2 Brod. & B. 130: 129 E. R. 907.
2 S.C.R. SUPREME COURT REPORTS
379
have disclosed ; but, if the minutes of the court of enI960
quiry are to be produced on an action brought by the
The State of
party, they reveal the name of every witness and the
Punjab
evidence given by ea.ch. Not only this but they also
v.
reveal what has been said and done by each member
Sodhi
of the existing court of enquiry ; and, according to
Sukkdev Sing4
the learned judge, the reception of the said minutesG . d-dk 1
would tend directly to disclose that which is not pera;en raga ar •
mitted to be disclosed; and so, independently of the
character of the court the production of the report
was privileged on the broad rule of public policy and
convenience that matters like those covered by the
report a.re secret in their nature and involve delicate
enquiry and the names of persons who ought to stand
protected.
The next decision to which our attention has been
invited is Smith v. The East India Company (1). Io
that case the dispute with which the Court was concerned had a.risen with respect to a commercial transaction in which the East India Company had been
engaged with a third party ; and privilege was claimed in regard to the correspondence which had been
carried on by the defendant with the Board of Control.
It was held that the said correspondence was, on the
ground of public policy, a privileged communication,
and so the Company were not bound to produce or
set forth the contents of it in answer to a bill of discovery filed against them by the third party in
relation to the transaction to which it referred. Lord
Lyndhurst upheld the claim of privilege not because ·
the correspondence purported to be confidential nor
because it was official, but because of the effect of the
provisions of c. 85 of Act 3 & 4 W. 4 on which the
claim of privilege was founded. It was noticed that
the Company had been prohibited from carrying on
any commercial transactions except for the purpose of
winding up their affairs or for the purposes of the
Government of India.; and it was held that the result
of the relevant provisions, and particularly of :s. 29
was that the Directors of the Ea.st India. Company
were required to make communication of all their
(1) (1841) r Ph. 50: 41 E.R. (Chancery) 550.
380
SUPREME COURT REPORTS
[1961)
acts, transactions and correspondence of every desI'he State of cription to the Board of Control. That is why a claim
Punjab
for privilege in respect of the said correspondence was
v.
upheld. This decision shows that a. claim for priviSodhi.
lege could have been made even for correspondence
Sukhdev Singh which had reference to a. commercial transaction in
Gaje•d•;;;,dka• J. circumstances similar· to those in that case.
The la.st decision on which considerable reliance has
been placed by Mr. Se'ervai is the case Of Beatson v.
Skene ('). It may incidentally be pointed out that
Chief Baron Pollock's observations in this judgment
are frequently cited in judicial decisions where the
question of privilege falls to b.e considered. In that
case the plaintiff had been a. general who commanded
a. corps of irregular troops during the war in Crimea.
Complaint having been made about the insubordination of troops the corps was placed under the superior
command of V. Thereupon the plaintiff resigned his
command. V directed S to inspect and report upon
tbe state of the corps, and referred S for information
to the defendant who was a Civil Commissioner. The
defendant, in a conversation with S, made a defamatory statement respecting the conduct of the plaintiff.
The plaintiff brought an action against the defendant
for slander. The defence set up against the plaintiff's
claim was that what had passed between the defendant and S was a privileged communication. The jury
had found a. verdict for the defendant. A new trial
was claimed by the plaintiff, inter alia, on the ground
that the learned judge had declined to compel the production of certain documents. It appeared that the
Secretary for War had been subpoenaed to produce
certain letters written by the plaintiff to him and also
the minutes of the court of enquiry as to the conduct
of S in writing the letter to V. The plea. for a new
trial was rejected on the ground that the Court was of
the opinion that the non-production of the said documents furnished no ground for a new trial. There was
a difference of opinion among the members of the
Court on the question as to whether Bramwell, J., was
justified in upholding the claim of privilege
Pollock,
(3) (186o) 5 H. & N. 838: 157 E.R. 1415.
2 S.C.R. SUPREME COURT REPORTS
381
C. B., Bramwell, B., a.nd Wilde, B., held that the
x960
claim for privilege was properly upheld, whereas
The State of
Martin, B., took a. contrary view.
.
Punjab
Dealing with the claim ma.de that the production of
v.
the documents would be injurious to the publiQ service
Sodhi
Pollock, C. B., observed that the genera.I public
Suklidev Singh
interest must be considered para.mount to the indivi.
-
due.I interest of a. suitor in a Court of Justice, a.nd heGajendragadkar J.
posed the question : How is this to be determined ?
Then Pollock, C. B., proceeded to observe that the
question must be determined either by a. presiding
judge or by the responsible servant of the Crown in
whose custody the paper is; and he remarked that the
judge would be unable to determine it without ascertaining what the document is and why the publication of it would be injurious to public service-an
enquiry which cannot take place in private, a.nd which
taking place in public ma.y do a.II the mischief which
it is proposed to guard a.gs.inst. He further held that
" the administration of justice is only a pa.rt of the
general conduct of the a.ffa.irs of a.ny State or nation,
a.nd we think is (with respect to the production or
non-production of a. State pa.per in a. Court of Justice)
subordinate to the general welfare of the community".
Martin, B., however, wa.s of the opinion tha.t whenever
the judge is satisfied tha.t the document may be made
public without prejudice to the public service the
judge ought to compel its production notwithstanding
the reluctance of the hea.d of the department to produce it. It would thus be seen tha.t according to the
majority view the question as to whether a.ny injury
to public interest would be ca.used by the producti~n
of the document could not he determined by the Court,
bees.use such an enquiry would tend to defeat the
very purpose for which privilege is claimed, whereas,
according to the minority view it wa.s for the. Court to
hold a.n enquiry a.nd determine whether any injury
would follow the production of the document.
Mr. Seervai contends that these decisions correctly
represent the legal position in rega.rd to the Crown
privilege in England in the second half of the Nineteenth Century, and, according to him, when the
382
SUPREME COURT REPORTS
(1961]
i96o
Indian Evidence Act was drafted by Sir James Fitzjames Stephen he intended to make provisions in the
The State of
A
. h
Id
Punjab
ct wh1c wou
correspond to the said position in the
v.
English Law. In other words, the argument is that
Sodhi
ss. 123 and 162 are intended to lay down that, when
Sukhdev Singh a privilege is claimed by the State in the matter of
. --
production of State documents, the total question with
Ga1•ndragadkar J ·regard to the said claim falls within the discretion of
the head of the department concerned, and he has to
decide in his discretion whether the document belongs
to the privileged class and whether its production
would cause injury to public interest. It is in the
light of this background that Mr. Seervai wants us to
construe the relevant sections of the Act.
In support of this argument Mr. Seervai has also
referred us to the draft prepared by Sir James Fitzjames Stephen at the instance of Lord Coleridge for
adoption by the English Parliament, and has relied
on Art. 112 in the said draft. Art. 112 provides, inter
alia, that no one can be compelled to give evidence
relating to any affairs of State, or as to official communications between public officers upon public affairs,
unless the officer at the head of the department concerned permits him to do so. It also refers to some
other matters with which we are not concerned. This
part of Art. 112 as framed by Sir James Fitzjames
Stephen seems to include the provisions of ss. 123 and
124 of the Act. It is significant that there is nothing
in this Article whioh corresponds to s. 162 of the Act.
Mr. Seervai concedes that the draft prepared by Sir
James Fitzjames Stephen was not adopted by Parliament, and even now there is no statutory law of evidence in England; even so, he contends that the
intention which Sir James Fitzjames Stephen had in
drafting the relevant sections of the Indian Evidence
Act must have been similar to his intention in drafting Art. 112, and that is another fact which we may
bear in mind in construing the relevant sections of the
Act. We ought, however, to add that though Mr.
Seervai elaborately argued this part of his case he
fairly conceded that recourse to extrinsic aid in interpreting a statutory provision would be justified only
2 S.C.R. SUPREME COURT REPORTS
383
within well recognised limits ; and that primarily the
x96a
effect of the statutory provisions must be judged on a
d
The Stale of
fair and reasonable construction of the wor s used by
Punjab
the statute itself.
v.
Let us now turn to s. 123. It reads thus :
Sodhi
"No one shall be permitted to give any evidenSukhdev Singh
ce derived from unpublished official records relating
.
-dk
a: •
f S
t
'th th
. .
fGa;endraga
or j.
to any aua1rs o
tate, excep w1
e perm1ss10n o
the officer at the head of the department concerned,
who shall give or withhold such permission as he
thinks fit."
This section refers to evidence derived from unpublished official records which have a relation to any
affairs of State, and it provides that such evidence
shall not be permitted to be given unless the head of
the department concerned gives permiEJsion in that
behalf. In other words, as a result of this section
a document which is material and relevant is allowed
to be withheld from the Court, and that undoubtedly
constitutes a very serious dep_1uture from the ordinary rules of evidence.
It is well known that in
the administration of justice it is a principle of
general application that both parties to the dispute must produce all the relevant and material
evidence in their possession or their power which
is necessary . to prove their respective contentions ;
that is why the Act has prescribet;l elaborate rules to
determine relevance and has evo1ved the doctrine of
onus of proof. If the onus of proof of any issue is on
a party and it fails to produce such evidence, s. 114 of
the Act justifies the inference that the said evidence if
produced would be against the interest of the person
who withholds it.
As a result of s. 123 no such inference can be drawn against the State if its privilege
is upheld. That shows the nature and the extent of
the departure from the ordinary rule which is authorised by s. 123.
The principle on which this departure can be and is
justified is the principle of the overriding and para.-
mount character of public interest. A valid claim
for privilege ma.de under s. 123 proceeds on the basis
of the theory that the production of the document in
question would ca.use injury to public interest, and
384
SUPREME COURT REPORTS
[1961]
'960
that, where a conflict arises between public interest
Th• Slat• of
and private interest, the latter must yield to the forPunjab
mer. No doubt the litigant whose claim may not sucv.
ceed as a result of the non-production of the relevant
SodM
and material document may feel aggrieved by
Sukhd•v Singh the result, and the Court, in reaching the said
G . d-dk 1 decision, may feel dissatisfied; but that will not
"1'" '°8" "' ·affect the validity of the basic principle that public good and interest must override considerations
of private good and private interest. Care has, however, to be taken to see that interests other than that
of the public do not masquerade in the garb of public
interest and take undue ad vantage of the provisions
of s. 123. Subject to this reservation the maxim Bilus
populi est supreme les which means that regard for
public welfare is the highest law is the be.sis of the
provisions contained in s. 123. Though s. 123 does
not expressly refer to injury to public interest that
principle is obviously implicit in it and indeed is its
sole foundation.
Whilst we a.re discussing the be.sic principle underlying the provisions of s. 123, it may be pertinent to
enquire whether fair and fearless administration of
justice itself is not a. matter of high public importance.
Fair administration of justice between a.
citizen and a. citizen or between a. citizen and
the State is itself a matter of great public importance; much more so would the administration of
justice a.s a. whole be a. matter of very high public
importance; even so, on principle, if there is a. real,
not imaginary or fictitious, conflict between public
interest a.n·d the interest of a.n individual in a. pending
case, it may reluctantly have to be conceded that the
interest of the individual cannot prevail over the
public interest. If social security and progress which
are necessarily included in the concept of public good
are the ideal then injury to the said idea.I must on
principle be avoided even a.t the cost of the interest of
a.n individual involved in a. particular case. That
is why Courts a.re and ought to be vigilant in dealing
with a. claim of privilege ma.de under s. 123.
If under s. 123 a. dispute a.rises as to whether the
2 S.C.R. SUPREME COURT REPORTS
385
evidence in question is derived from unpublished offix960
cial records that can be easily resolved; but what presents considerable difficulty is a dispute as to whether
Th~:!;~~ of
the evidence in question relates to any affairs of State.
v.
What are the affairs of State under s. 123 ? In the
Sodhi
latter half of the Nineteenth Century affairs of State Sukhdev Singh
may have had a comparatively narrow content. Hav-
-
'
d t th
t•
b t
1 f
.
GRjsndragadkar J.
mg regar
o
e no ion a ou g51vernmenta unction.a
and duties which then obtained, affairs of State would
have meant matters of political or administrative
character relating, for instance, to national defence,
public peace and security and good neighbourly rela.
tions. Thus, if the contents of the documents were
such that their disclosure would affect either the
national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State.
There may be
another class of documents which could claim the said
privilege not by reason of their contents as such but
by reason of the fa.ct that, if the said documents were
disclosed, they would materially affect the freedom
and candour of expression of opinion· in the determination and execution of public policies. In this class
may legitimately be included notes and minutes made
by the respective officers on the relevant files, opinions expressed, or reports ma.de, a.nd gist of official
decisions reached in the course of the determination
of the said questions of policy. In the effic,ient administration of public affairs government may reasonably treat such a class of documents as confidential
and urge that its disclosure should be prevented on
the ground of possible injury to public interest. In
other words, 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.
It may be that when the Act was passed the concept of governmental functions and their extent was
limited, and so was the concept of the words " affairs
of State " correspondingly limited ; but, as is often
49
386
SUPREME COURT REPORTS
[1961]
'960
said, words are not static vehicles of ideas or conThe State of cepts. As the content of the ideas or concepts con.
Punjab
veyed by respective words expands, so does the conv.
tent of the words keep pace with the said expanding
Sodhi
content of the ideas or concepts, and that naturally
Sukhd•v Singh tends to widen the field of public interest which the
Gajend;;:;;.dkar 1 . section wants ~o protect. The inevitable c.onsequence
of the change m the copcept of the functions of the
State is that the State m pursuit of its welfare activities undertakes to an increasing extent activities
which were formerly treated as purely commercial,
and documents in relation to such commercial activities undertaken by the State in the pursuit of public
policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. It
is in respect of such documents that we reach the
marginal line in the applica.tion of s. 123; a.nd it is
precisely in determining the cla.im for privilege for
such border-line ca.sea that difficulty arises.
It is, however, necessary to remember tha.t where
the Legislature has advisedly refra.ined from defining
the expression " affairs of State " it would be inexpedient for judicial decisions to a.ttempt to put the said
expression into a stra.it jacket' of a definition judicially evolved. The question as to whether any particular document or a class of documents a.nswers the
description must be determined in each ca.se on the
releva.nt facts and circumstances adduced before the
Court. " Alfa.ire of State", according to Mr. Seervai,
are synonymous with public business and he contends
that s. 123 provides for a genera.I prohibition against
the production of any document relating to public
business unless permission for its production is given
by the head of the department concerned.
Mr. Seerva.i has argued that documents in regard to affairs of
State constitute a genus under which there are two
species of documents, one the disclosure of w hioh will
cause no injury to public interest, and the other the
disclosure of which may cause injury to public
interest. In the light of the consequence which may
flow from their disclosure the two species of documents
can be described as innocuous and noxious respectively. According to Mr. Seervai the effect of s. 123
2 S.C.R. SUPREME COURT REPORTS
387
is that there is a. genera.I prohibition against the pror960
duction of all documents relating to public business
subject to the exception that the head of the departTh~;!;:~ of
ment can give permission for the production of such
v.
documents as are innocuous and not noxious. He
Sodhi
contends that it is not possible to imagine tha~ the
Sukhdiv Singh
section contemplates that the head of the depa.rtmentG .
-
ld •
. ·
t
d
.
d
a;sndragadkar J.
wou
give perm1ss1on o pro uoe a noxious ocument.
It is on this interpretation of s. 123 that Mr. Seervai
seeks to build up similarity between s. 123 and the
English Law as it was understood in 1872. In other
words, according to Mr. Seervai the jurisdiction of the
Court in dealing with a claim of privilege under s. 123
is very limited and in most of the oases, if not all, the
Court would have to accept the claim without effective scrutiny.
On the other hand it has been urged by Mr. Sastri
that the expression "documents relating to any affairs
of State " should receive a narrow construction ; and
it should be confined onlv to the class of noxious
documents. Even in regard to this class the argument
is that the Court should decide the character of the ·
document and should not hesitate to enquire, incidentally if necessary, whether its disclosure would lead to
injury to public interest.