# STATE OF U.P v. RAJ NARAIN & ORS

- **Citation:** [1975] 3 S.C.R. 333
- **Court:** Supreme Court of India
- **Decided:** 1975-01-24
- **Bench:** A. N. Ray, K. K. Mathew, A. ALAG!RISWAMI; R. s. SARKARIA, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-raj-narain-ors-6720
- **Pages:** 32

## Headnote

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Indian Evidence Act, ss. 123 and 162--Scope of.
.
Section 123 of the Evidence Act states that no one shaU be permitted to give
any evidence derived from unpublished official records relating to any affair of
State except with the permission of the Officer at the Head of the Department con·
cerned who shall give or withhold such permission as he thinks fit., Section 162
provides that when a witness brings to Cou1i a document in pursuance of summons
and then raises an objection to its production or admissibility the Court has to ·
determine the validity of the objection to the production or admissibility and for
. so doing the Court can inspect the document except in the case· of a document re·
· . lating to the affairs of State or take such other eviJcncc as m~y be necessary to de·
termine its admissibility.
In connection with his election petition the respondent made an application be·
fore the High Court for summoning the Secretary. General Administration and
Chief Secretary of the State Government and the- lieadclerk of the office of the
Superintendent of Police of the District for the production of the Blue Book en·
titled "rules and instructions for the protection of the Prime Minister when on tour
or in travel", and certain other correspondence exchanged between the Government
of India and the State Government in that connection. The Home Secretary de·
puted one of his officers to go to the court alongwith the documents but with clear
instructions that he should claim privilege in re~pect of those documents under s.
123 of Evidence Act. No affidavit of 1he Minister concerned or the Head of the
Department was, however, filed at that time. In the course of examination the
witness claimed privilege in respect of the documents. The election petitioner thereupon contended that th~ Head of the Department had not filed an affidavit claim·
ing privilege and that the documents did not relate to the affairs of the State. The
documents in respect of which privilege was claimed were sealed and kept in the
custody of the Court. When the matter came up for hearing, however. the Home
Secretary to the State Government, filed an affidavit claiming privikge for the
documents. Jn respect of the document' summoned from the office of the
Superintendent of Police an affidavit claiming privileA<' under s. 123 t'f the
Evidence Act was tiled by the Superintendent of Police.
The High Court held that (i) under s. 12'.l of the. Evidence Act the Minister 01·
the Head of the Department concerned must file an affidavit in the first instance
and since no such nttidavit had been filed in the first inst:ncc the pri1·ilc~c was
lost and the affidavit filed later claiming privilege was of no avail. (ii) that it
would decide the
que~tion or privilege only when permission to prc>ducc a
document h~d been withheld under~. 121: I iii) thal. the Blue Book in respect of
which privilege was claimed was not ;rn unpublished official recorct re!at'ng to
the affslrs of the. State becnuse the Union Gmcrnmcnt had ieferred to a rortion
of it in one .of its affidavits and a member of Parliament had rcferre.d tc :t
puticular rule of the Blue Book in Par!i:iment: (iv) th:it no rea~ons were given
why the disclosue of the document~ would be against public interest; and (vl
that 1t had power to inspect the documents in respect. of which privilege was
claimed.
·
Allowing the appeal to this Court, (per A. N. Ray. CJ .. A. Alagiriswami, R.
S. Sarkaria and N. L. Untwalia, JJ) :
·
HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act
i\ the same as in English Law. It is that injury to public interest is the reason for
the exclusion from disclosure of document' whose contents. if disclosed, would injure public and national interest. Public interest which demands that evidence be
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334
SUPREME COURT REPORTS
(1975] 3 s.c.R.
withheld is to be weighed against the public interest in the administration of justice
that .courts should have the ful

## Text

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A
STATE OF U.P.
v.
RAJ NARAIN & ORS.
January 24, 1975
[A. N. RAY, c. J., K. K. MATHEW, A. ALAG!RISWAMI; R. s. SARKARIA,
B
AND N. L. UNTWALIA, JJ.]
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Indian Evidence Act, ss. 123 and 162--Scope of.
.
Section 123 of the Evidence Act states that no one shaU be permitted to give
any evidence derived from unpublished official records relating to any affair of
State except with the permission of the Officer at the Head of the Department con·
cerned who shall give or withhold such permission as he thinks fit., Section 162
provides that when a witness brings to Cou1i a document in pursuance of summons
and then raises an objection to its production or admissibility the Court has to ·
determine the validity of the objection to the production or admissibility and for
. so doing the Court can inspect the document except in the case· of a document re·
· . lating to the affairs of State or take such other eviJcncc as m~y be necessary to de·
termine its admissibility.
In connection with his election petition the respondent made an application be·
fore the High Court for summoning the Secretary. General Administration and
Chief Secretary of the State Government and the- lieadclerk of the office of the
Superintendent of Police of the District for the production of the Blue Book en·
titled "rules and instructions for the protection of the Prime Minister when on tour
or in travel", and certain other correspondence exchanged between the Government
of India and the State Government in that connection. The Home Secretary de·
puted one of his officers to go to the court alongwith the documents but with clear
instructions that he should claim privilege in re~pect of those documents under s.
123 of Evidence Act. No affidavit of 1he Minister concerned or the Head of the
Department was, however, filed at that time. In the course of examination the
witness claimed privilege in respect of the documents. The election petitioner thereupon contended that th~ Head of the Department had not filed an affidavit claim·
ing privilege and that the documents did not relate to the affairs of the State. The
documents in respect of which privilege was claimed were sealed and kept in the
custody of the Court. When the matter came up for hearing, however. the Home
Secretary to the State Government, filed an affidavit claiming privikge for the
documents. Jn respect of the document' summoned from the office of the
Superintendent of Police an affidavit claiming privileA<' under s. 123 t'f the
Evidence Act was tiled by the Superintendent of Police.
The High Court held that (i) under s. 12'.l of the. Evidence Act the Minister 01·
the Head of the Department concerned must file an affidavit in the first instance
and since no such nttidavit had been filed in the first inst:ncc the pri1·ilc~c was
lost and the affidavit filed later claiming privilege was of no avail. (ii) that it
would decide the
que~tion or privilege only when permission to prc>ducc a
document h~d been withheld under~. 121: I iii) thal. the Blue Book in respect of
which privilege was claimed was not ;rn unpublished official recorct re!at'ng to
the affslrs of the. State becnuse the Union Gmcrnmcnt had ieferred to a rortion
of it in one .of its affidavits and a member of Parliament had rcferre.d tc :t
puticular rule of the Blue Book in Par!i:iment: (iv) th:it no rea~ons were given
why the disclosue of the document~ would be against public interest; and (vl
that 1t had power to inspect the documents in respect. of which privilege was
claimed.
·
Allowing the appeal to this Court, (per A. N. Ray. CJ .. A. Alagiriswami, R.
S. Sarkaria and N. L. Untwalia, JJ) :
·
HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act
i\ the same as in English Law. It is that injury to public interest is the reason for
the exclusion from disclosure of document' whose contents. if disclosed, would injure public and national interest. Public interest which demands that evidence be
7--423SCil75
334
SUPREME COURT REPORTS
(1975] 3 s.c.R.
withheld is to be weighed against the public interest in the administration of justice
that .courts should have the fullest possible access to all relevant materials. When
pubhc mterest outweighs the latter, the evidence cannot be admitted. The Court
~ill proprio motu e~cl1;1de. evidence, the product.ion of which is contrary to public
mterest. It 1s m public interest that confidentiality shall be safeguarded. Confidentiality is not a head of privilege. It is not that the contents contain material
which it would be damaging to the national interest to divulge but rather th<tt the
documemts would. be of a class which demand protection. [348E-HJ
Evidence is admissible and should be received by the Court to which it fa tendered unless there is a legal reason for its rejection. Admissibility presupposes rel~vancy. Admissibility alSI) denotes the absence of any applicable rule of exclusion. Fa-cts should not be received in evidence unless they are both relevant and
admissible. The principal rules of exclusion under which evidence becomes inad·
missible are two fold : (I) Evidence of relevant facts is inadmissible when its re.
ception offends against public policy or a particular rule of Jaw. A party is some·
times es topped from proving facts and these facts are therefore inadmissible; (2)
Relevant facts an!, subject to recognised exceptions, inadmissible unless they are
proved by the best or the pres<:ribed evidence. Secrets or 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 or as being detrimental to the public interest or service. [343H;
344A-Cj
Conway v. Rimmer & Anr. [1968] 1 A.E.R. 874 & [1968] A.C. 910; Duncan
v. Cammel/ Laird & Co. [1942] A.C. 642 and Rogers v. Home Secretary [1973]
A.C. 388, referred to.
(I) It is now the well si;ttled 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. Where no affidavit was filed, an affidavit
c:ould be directed to be filed later on. [349B]
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(2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in
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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 mny do so. [349E]
C'rm"cnor Hotel, London [1963] 3 A.E.R. 426, referred to.
'1' f o the present c:ase it cannot be said that the Blue Book is a published
docum ·nt
Any rub'ication of parts of the Blue Book which may be described as
an ino''cuous part of the doi:ument will 'i10t render the entire document a published
F
dornm ·n' f349H]
-( 4 l r n the in,'lant case it is apparent that the affidavit affirmed by the Chief
Secr0 •,,·v is an affidavit objecting to the production of the documents. The oral
evidence of the witness as well as the aforesaid affidavit shows that objection was
taken at the first instance. [3490]
(5) 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 vet like to satisfy itself. the Court mav see the document. Ob·
j~ction as to production as well as admissibility contemnlated in s. 162 of the Evid1:nce Act is decided by the Court in the enquiry. [349B-C]
State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed.
Per Mathew, l. (Concurring) :
!(a) The foundatiqn of the so called privilege is that the information cannot
h: disclosed without injury to public interest and not that the docume.nt is confidential or official, which alone is no reason for its non.production_. [353C-.D]
Asiatic Petroleum Companv Ltd. v. Anq/o Persian Oil Co. [1916] I K.B. 822
at 830; Conway v. Rimmer [19681 1 All. E.R. 874 at 899 and Duncan v. Cam·
me/I Lavid & Co. [1942) A.C. 624, referred to.
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U. P, ~TATE V. RAJ
NARAIN
335
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(b) A privilege normally belongs to the parties and can be \\<aived. But where
a fact is excluded from evidence by considerations of public policy, there is no
power to waive in the parties. [353F-G]
Murlidhar Agarwal v. State of U.P. [1974] 2 S.C.C. 472 at 483, rP.ferred to.
In the instant case the mere fact that the witness brought the documents to
Court in pursuance to the summons and did not file a proper affidavit would not
mean that the right to object to any evidence derived from an unpublished official
record 1elating to affairs of State had been for ever waived and as no affidavit had
been filed it might be that a legitimate inference could be made that the Minister
or the Head of the Department concerned 11ei:mitted the production of the document
or evidence being given derived from it, if"there was no other circumstance. If the
statement made by the witness that the document was a secret one and that he had
no been permitted by the Head of the Department to produce it, was not really an
objection to the production of the document which could be taken cognizance of
by the Court under s. 162 of the Evidence Act, it was an intimation to tlte Court
that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given. Whatever else the statement might indicate, it does not indicate that the Head of the Department had permitted the production or disclosure of the document. [355D~F]
(2) Section 123 enjoins upon the Court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to
affairs of State unless permitted by the 0fficer at the Head of. the Department.
The Court therefore, had a duty not to permit evidence derived from: a secret
document being given. Before the arguments were finally concluded and before
the Court decided the question the Head of the Department .filed an affidavit
objectin·g to the production of the document and stating that the document in
question related to secret affairs of State, and the Court_ should have considered
the
validity
of that objection under s. 162 of the Evidence Act. [355G-A;
356A-B]
·
Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B. 102 at 134 and
Conway v. Rimmar & Anr. [1968] A.C. 910, referred to.
(3) There is no substance in the argument that since the Blue Book had been
published in parts, it must be deemed to have been published as a whole, and,
therefore, the document could not be regarded as an unpublished official record
relating to affairs of State. If some parts of the· document which are innocuous
have been published, it does not follow that the whole document has been pnblishm'. Since the High Court did not inspect the Blue Book, the statement by the
Court that the materials contained in the file produced by the Superintendent of
Police were taken from thel Blue Book was not warranted. [362B-C; E]
( 4) The· mere label given to a document by the executive is not conclusive in
respect of the question whether it relates to affairs of State or not. If the disclosure
of the contents of the document would not damage public interest the executive
cannot label it in such a manner as to bring it within the class of documents which
are normally ~ntitled to protection. [362E-F]
5 (a) It is difficult to see how the Cou.rt can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public
interest, that a document is one relating to affairs of State as, ex hypothesi, a document can relate to affairs of State only if its disclosure will injure public interest.
But in cases where the documents do not belong to the noxious class and yet their
disclosure would be injurious to public interest, the inquiry to be conducted under
s. 162 is an enquiry into the validity of the objection that the document is an un-.
published official record relating to affairs of State and. therefore, permission to
give evidence derived from it is declined. [357H; 358A-BJ
(b) Section 162 visualises an inquiry into that objection and empowers the
Court to take evidence for deciding whether the objection is valid.
The Court,
. therefore. has to consider two things : (i) whether the document relates to secret
affairs of State: and
(ii) whether the refusal to permit evidence derived from it
being given was in the public interest. [358C]
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( c) Even though the Head of the Department refused to grant permission, it
was open to the Court to go into the question after examining the document and
~rid out whether, the disdosure of the document wo1J!d be injurious to public
mterest and the expres,ion "as he thinks fit" in the latter part of s. 123 need not
deter the Court from deciding the question afresh as s. 162 authorities the Court
to dete;ymine the validity of the objection finally. [358F]
·
Srare of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed.
( d) When a question of national security is involved the Court may not be the
prop~r forum to weigh the matter and that is the reason why a Minister's certificme 1s taken as conclusivi:. As the executive is solely responsible for national
~ecurit)', including foreign relations, no other organ could judge so well of such
matters. Therefore, documents in relation to these matters mi2ht fall into a class
which per se might r~quire protection. [359B-C]
(e)
But the executive is not the organ solely responsible for public inkrest.
There are other elements. One such element is the administration of justice. The
claim of the executive to exclude evidence is more likely to operate to subserve a
partial
interest,
viewed i:xclusively
from
a narrow departmental
angle.
It is impossible for it to se1~ or give equal weight to another matter, namely, that
justice should be done and seen to be done. When there are more aspects of public interest to be considered the Court will, with reference to the pending litigation,
be in a better position to decide where the weight of public interest predominates.
It seems reasonable to assume that a Court is better qualified than the Minister
to measure the importance of the public interest in the case before it. Once considerations of national security are left out. there are few matters of public
interest which ·~annot safely be discussed in public. [139C-D; F-Gl
A r1wments for the Appel/a111
The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section. In
cases where the document in question obviously relates to affairs of State it is the
rJuty of the C1<1urt to prevent the production and admission of the document in evidence suo 1110/u to safeguard public interest Matters of State referred to in the
second clause of s. 162 are identical with affairs of State mentioned ins. 123. An
objection against the production of document should be raised in the form of an
affid<1vit by the Minister or the. Secretary. When an affidavit was 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, and in a proJicr case th" person making the affidavit should be summoned to face an examination on. the relevant: point. Here too this Court did not consider that any party can
raise the objection and it is the duty of the Court to act suo molll in cases wh<::re
the dorumcnts in question obviously relate to affairs of State. Therefore, the Court
cannot hold an inquiry into the pos~ible injury to public interest. That i!> a matter
for the authority to decide. But the Court is bound to hold a preliminary enquiry
and determine the validity o[ the objections which necessarily involves an inquiry
into the question a' to whether the evidence relates to an affair of State under
s. 123. Jn Jf1i1 inquiry the Court. has to determine the character and class of the
document. The provisions of s. 162 make a departure from English law in one
mat~rial pnrticular and that is the authority given to the Court to hold a preliminarv enquiry into the character of the document. Under s. 162 of the Evidence
Act the Court has the overriding power to disallow a claim of privilege raised by
the State in respect of an unnublished document pertaining to matters of State, but
in its di,cretion the Court will exercise its power only in exceptional circumstances
when nublic interest demands, that is, when the public interest served by the disclosure clearlv outwei~hs that served by the non-disclosure. In this case the Chief
Sccretan· filed an affidavit whereas the Minister would have done it. This claim
of privilege is not rejected on account of this procedural defect.
Argume/l/s for th~ 'cspondent
In the present case the. affidavit was not filed at the relevant time, nor is it clear
that the Secretary or the Minister of the Department concerned ever applied the:ir
1nind at the relevant time. The Supreme Court in Sukhdeo Singh's case held that
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·the objection to the production or admissibility of document of which privilege is
claimcid, should be. taken by' himself by means of an affidavit. ·Section 162 of the
Evidence Act indicates that the objection should be filed on the date which is fixed
for the production of docwnent so that the Court may decide the validity of such
objection. Such objection must be by. means of an affidavit. In A mar Chand
Butail v .. Union of India the Suprem.e Court held that as the affidavit was not filed,
no privilege could be claimed. This Court also looked to the document and on
merits it was held that the document was not such document whose disclosure was
not in the pubric interest. On that ground also, the Claim for privilege was disallowed. In the present case the question does not arise as the summons was issued
to the .Head of the Department who was asked to appear in person or through
some other officer authorised by him for the purpose of giving evidence and for
producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted
to claim privilege. The High Court was right in drawing inference from nonfiling of the affidavit of the, Head of the Department that no privilege was claimed.
The Court has a right to look to the document itself and take a decision as to whether the document concerned was such which at all related to any affairs of the
State. The Court has the power of having a judicial review over the opinion of
the Head of the Department.
CIVIL APPELLATE JuRISDICRION : Civil Appeal
No.
1596
of
1974.
Appeal by Special Leave from the Judgment and Order dated the
20th March, 1974 of the Allahabad High Court in Election Petition
No. 5 of 1971.
Niren De, Attorney General of India, B. D. Agarwa/a, and 0. P.
Rana, for the appellant.
Shanti Bhushan and 1. P. Goyal, for respondent no. 1.
Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent
no. 2.
·
The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria
and N. L. Untwa!ia, JJ, was delivered by A. N. Ray, C.J. K. K.
Mathew, J. gave his separate Opinion.
RAY, C.J.-This is an apeal by special leave from the judgment
dated 20 March, 1974 of the learned Single Judge of t.he High Court
at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to be·t~ Blue Book
sunimoned from the Government of Uttar Pradesh ·and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar
Pradesh.
Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971
in the High Court ofAllahabad, m.ade 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 :
First, the Secretary, General Administration, State of Uttar Pradesh
Luckrio~ oi: ·any officer .authorised by him was summoned to produce
. iitter ·a(ia . (a) circulars received from the Hoine Ministry and the Defence. 'Mfuistcy of the Uriioil Oovel'1JBicnt regarding the security and
338
SUPREME COURT REPORTS
[1975] 3 s.c.R.
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 (b) All correspondence between the St!j.te Government and the Government of India. and between the Chief Minister
and the Prime Minister regarding Police arrangement for meeting of
the Prime Minister by State Government and in regard to their expenses.
Second, the Chief Secretary, Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the docu·ments, namely,
(a) circulars received from the Home Ministry and Defence Ministry
of the Union Government regarding the security and tour ai:rangements of Shrimati Indira Nehru Gandhi for the tour programmes of
Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government ol' India
and between thl~ Chief Minister and the Prime Minister, regarding the
arrangement of Polic:e for the arrangement of meeting for the Prime
Minister by State Government and in regard to their expenses.
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, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police,
District Rae Bareli.
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 Secretmy-is not personally required to appear pursuant to the
summons.
The learned Judge made atl order on that day that the
Chief Secretary need not personally attend and that the pap'ers 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
19 September, 1973.
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
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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.
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 i'n 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 Minister's 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 privilage
has been filed by the Head of the Department and that the documents
do not relate to the affairs of the State.
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.
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 1?e 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.
On 13 September, 1973 the learned Judge ordered that arguments
on; the question of privilege would be heard on 19 September, l,973.
S. S. Saxena filed an application supported by an affidavit of lt. 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 arangements of the security of the Pr.irne
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.
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
340
SUPREME COURT Rl~PORTS
{1975] 3 s.c.R.
privilege were adjourned until 29 October, 1973.
23 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.
The learned Judge on 20 March, 1974 made an order as follows
"No privilege ca'.1 be claimed in respect of three sets
of paper 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
Minister's St:cretariat 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 & 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 l~arned Judge expressed the following view.
Under se1::tio11
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 tht~ 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 daimed Saxena was allowed to bring the Blue Book with-
. out being sealedin 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 daimed at the first instance.
Th~ learned. Judge further held as follows. The Blue Book is not
an unpublished official record within the meaning of .section 123 of the
Evidence Actbecause Rule 71 (6) of the Blue Book was quoted by a
Member of P~rliament. The Minister did not object or deny the correctness of the ·quotaticm.
Rule 71(6) of the Blue Book has been
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filed in the el~tion pc~tition by the respondent to the election peti~on
Extracts of Rule' 11 ( 6) ·of the Blue Book were filed by the Umon
Gover~nt 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 cartnot 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
veutton.
Even if it be assumed that the Blu.e Book has not been
admitted in evidence a,nd Kaul's affidavit eould be taken into consideration, the Blue Book is not an unpublished official record.
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 P9lice cannot be privilege documents either.
The High Court further said that in view of the decisions of this
Court in State of Punjab v. Sodhi Sukhdev Singh('); Amar Chand
Butail v. Union of lndia(2) and the English decision in Conway v.
Rimmer & Anr.( 8) the eourt 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.
l'he English decisions in Duncan v. Cammell Laird & Co.(");
Conway v. Rimmer & Anr. (supra); and Rogers v. Home Secretary( 5)
·· surveyed the earlier law on the rule of exclusion of documents from
production on the ground of public policy or as being detrimental to
the ublic interest or service. In the Cammell Laired case
(supra)
the respondent objected to produce certain documents referred to in
the Treasury Solicitors letter dire<;_ting the respondent not to produce
the documents. It was stated that if the letter was not accepted as
sufficient to found a claim for privilege the First Lord of Adrnirality
would make an affidavit.
He did swear an affidavit.
On summons
for inspection of the documents it was held that it is not uncommon
in modern practice for the Minister's objection to be conveyed to the
Court at any rate in the first instance by an official of-the department ··
who prodUces a certificate which the Minister has signed stating what
. is· necessary. If the Court is not satisfied by this method the Coutt
can: request the Minister's personal attendance ..
(1) (1961] 2 S.C.R. 371.
(2) AJ.R. 1964·8.C. 1658.
(3) [1%8] 1 A.E.R· 874 : [1968}A C 910.
(4) [19421AC-642.
(5) [1973] AC 388.
342
SUPREME COURT REPORTS
[1975] 3 s.c.R.
<.irosvenor Hotel, London(!) group of cases turned on an order
for mutual discovery of documents and an affidavit of the respondent,
the British Railway Board, objecting to produce certain documents.
The applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for
leave to cross-examine the Minister.
The Minister waa ordered to
swear a further affidavit.
That order of the learned Chamber Judge
was challenged in appeal. The Court of Appeal refused to interfere
with the discretion exercised by the Chamber Judge.
The Minister
filed a further affidavit.
That affidavit was again challenged b':fore
the learned Chamber J111dge as not being in compliance with the order.
It was held that the affidavit was in compliance with the order. The
learnt~d Judge held that Crown privilege is. not merely a procedural
matter and it may be enforced by the courts in the interest of' the
Sta1.e without the intervention of the executive, though normally the
executive claims it. The matter was taken up to the Court of Appeal,
which upheld the order of the Chamber Judge. It was observed that
the nature of prejudice to the public interest should be specified in
the Minister's affidavit except in case where the prejudice is so obvious
that it would be unnecessary to state it.
In the Cammell Laird case (supra) the House of Lords said that
documents are excluded from production if the public interest requires
that they should be wiithheld.
Two tests were propounded for such
exclusion.
The first is in regard to the contents of the particular
document.
The second is the fact that the document belongs to a
class which on grounds of public interest must as a class be withheld
from production. This statement of law in the CammeU Laird case
(supra)
was examined in Conway v. Rimmer
&
Anr.
In
Conway v. Rimmer & Anr.
(supra) it was held that although
an objection validly taken to production on the ground that
this would be injurious to the public interest is conclusive it is
important to remember that the decision ruling out such document is
the decision of the Judge. The reference to 'class' documents in. the
Cammell Laird case (supra) was said in Conway v. Rimmer & Anr.
lsupra) to be 1>biter. The Minister's clai mof privilege in the Cammell
Laird case (supra) was at a time of total war when the slightest escape
1to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State.
In Conway v. Rimmer & Anr. (supra) the test propoundr,d in
Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2 )
was
adopted that the infonnation cannot be disclosed without injury to
the public interest and not that the documents
are confidential or
official.
With regard to particular, class of documents for which privilege was claimed it was said that the Court would weigh in the
balance on the one sidf: the public interest to be protected and on the
other the interest of tli1e subject who wanted production of s1>me
(1) (1963) 3 A ER 426 : (1964) 1 A ER 92 : (1964) 2 A ER 674 and (1964)
3 AER 354.
(2) [1916] l KB 830.
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documents. which he· believed would support his own or defeat his
adversary's case. Both were said iri Conway v. Rimmer & Anr. case
(supra) to be matters of public interest.
In this background it was held in Conway v. Rimmer
&: Anr.
(supra) that a claim made by a Minister on the basis that the disClosure of the contents would be prejudicial to the public interest must
receive the greatest weight; b_ut even here the Minister should go as
far as he properly can without prejudicing the public interest in saying
why the contents require protection. IJ!._(:'onway v. Rimmer & Anr.
(supra) it was said "in such cases it would be rare indeed for the court
to overrule the Minister but it has the legal power to do so, first
inspecting the document itself and then ordering its production". As ·
to the ''class" cases it was said in Conway v. Rimmer & Anr; (supra)
that some documents by their very nature fall' into a class which requires
prokction. These are Cabinet papers, Foreign Office dispatches; the
security of the State, high level interdepartmental minutes and corres-·
ponaence and documents pertaining to the general administration of the
naval, military and air force services.
Such documents would be the
suoiect ot privilege by reason of their contents and also by their 'class'.
No catalogue can be compiled for the 'class'. cases.
The reason is that
it would be wrong and inimical to the functioning of the public service
if the public were to learn of these high level communiCations, however
innocent of prejudice to, the State the actual comments ,of any parti~
cular document might be.
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In Rogers v. Home Secretary (supra) wit.nesses were summoned
to give evidence and to produce certain documents. The Home SccreE
tary gave a certificate objecting to the production of documents.
There was an application for certiorari to quash the summons issued
.to the witnesses. On behalf of the Home Secretary it was argued that
the Court could of its own motion stop evidence being given for documents to be produced.
The Court said that the .real question waa
whether the public interest would require that the documen1s should
not be produced.
The Minister is an appropriate person to assert
F
public interest. The public interest which demands that the evidence
be withheld has to be weighed against the public interest in the administration of justice that courts shoμ_ld have the fullest possible access
to all relev11nt material. Once the public interest is found to demand
that the evidence should be withheld then the evidence cannot be
admitted. In proper c;:ases the Court will exclude evidence the production of which it sees is contrary to public interest. In short, the·
G · 'position in law in England. is that it is ultimately for. tlJe court to
decide whether or not it is in the public interest that ~e dbcument
should be disclosed.
An affidavit is necessary.
Courts have some
times held certain class of documents and information to bC entitled
in the public interest to be immune from disclosure.
..
Evidence . is admissible and should be received by th cJirt to
B
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 exclusfon. Facts should not be
.received in evidence unless they are both relevant · and admissible.
H97S] 3 s.c:.a.
The principal r~ of exdi.islcn under which· evidence becomes inadmissible are· tw<>"fold.