10/16/24, 11:42 AM State Of U.

P vs Raj Narain & Ors on 24 January, 1975

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State Of U.P vs Raj Narain & Ors on 24 January, 1975 section 123 evidence a
preliminary enquiry
Equivalent citations: 1975 AIR 865, 1975 SCR (3) 333, AIR 1975 SUPREME COURT 865, 1975 4 SCC 428, 1975 (1) SERVLR 541,
1975 3 SCR 333 privilege document
Production of documen
Author: A.N. Ray
admissibility and releva
Bench: A.N. Ray, Kuttyil Kurien Mathew, A. Alagiriswami, Ranjit Singh Sarkaria, N.L. Untwalia
national security definit
section 162 evidence a
election petitions
public policy
affidavit in evidence
inspection of document
summoning document
indira nehru gandhi
loudspeaker
what is secret documen
court documents are pu
produce document cited
affidavit of documents
affairs of state

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10/16/24, 11:42 AM State Of U.P vs Raj Narain & Ors on 24 January, 1975

PETITIONER:
STATE OF U.P.

Vs.

RESPONDENT:
RAJ NARAIN & ORS.

DATE OF JUDGMENT24/01/1975

BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
ALAGIRISWAMI, A.
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.

CITATION:
1975 AIR 865 1975 SCR (3) 333
1975 SCC (4) 428
CITATOR INFO :
MV 1982 SC 149 (452,454,1184)
RF 1988 SC 782 (43,44)
RF 1989 SC 144 (4,5)

ACT:
Indian Evidence Act, ss. 123 and 162--Scope of.

HEADNOTE:
Section 123 of the Evidence Act states that no one shall 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permitted to give any evidence derived from unpublished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
concerned who shall give or withhold such permission as he
thinks fit. Section 162 provides that when a witness brings
to Court 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 cage of a document re-
lating to the affairs of State or take such other evidence
as may be necessary to determine its admissibility.
In connection with his election petition the respondent made
an application before the High Court for summoning the
Secretary, General Administration and Chief Secretary of the
State Government and the head clerk of the office of the
Superintendent of Police of the District for the production
of the Blue Book entitled "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 deputed one of his officers
to go to the court alongwith the documents but with clear
instructions that he should claim privilege in respect of
those documents under s. 123 of Evidence Act. No affidavit
of the 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 the Head of
the Department had not filed an affidavit claiming privilege
and that the documents did not relate to the affairs of the
State. The documents in respect of which privilege was
claimed were seated 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 privilege for the documents. In respect of the
documents summoned from the office of the Superintendent of
Police an affidavit claiming privilege under s. 123 of the
Evidence Act was filed by the Superintendent of Police.
The High Court held that (i) under s. 123 of the Evidence
Act the Minister or the, Head of the Department concerned
must file an affidavit in the first instance and since no
such affidavit had been filed in the first instance the
privilege was lost and the affidavit filed later claiming
privilege was of no avail, (ii) that it would decide the
question of privilege only when permission to produce a
document had been withheld under s. 123; (iii) that the Blue
Book in respect of which privilege was claimed was not an
unpublished official record relating to the affairs of the

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10/16/24, 11:42 AM State Of U.P vs Raj Narain & Ors on 24 January, 1975
State because the Union Government had referred to a portion
of it in one of its affidavits and a member of Parliament
had referred to a particular rule of the Blue Book in
Parliament; (iv) that no reasons were given why the
disclosure of the documents would be against public
interest; and (v) that it had power to inspect the documents
in respect of which privilege was claimed.
Allowing the appeal to this Court, (per A. N. Ray, C.J., 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 is the same as in English Law. It is that
injury to public interest is the reason for the exclusion
from disclosure of documents whose contents, if disclosed,
would injure public and national interest. Public interest
which demands that evidence be
23SC/75
334
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
public interest outweighs the latter, the evidence cannot be
admitted. The Court will proprio motu exclude evidence, the
production of which is contrary to public interest. It is
in 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 that
the documents would be of a class which demand protection.
[348E-H]
Evidence is admissible and should be received by the Court
to which it is tendered unless there is a legal reason for
its rejection. Admissibility presupposes relevancy.
Admissibility also denotes the absence of any applicable
rule of exclusion. Facts should not be received in evidence
unless they are both relevant and admissible. The principal
rules of exclusion under which evidence becomes inadmissible
are two fold : (1) Evidence of relevant facts is
inadmissible when its reception offends against public
policy or a particular rule of law. A party is sometimes
estopped from proving facts and these facts are therefore
inadmissible; (2) Relevant facts are, subject to recognised
exceptions, inadmissible unless they are proved by the best
or the prescribed evidence. Secrets of State. State
papers, confidential official documents and communications
between the Government and its officers or between such
officers are privileged from production on the ground of
public policy or as being detrimental to the public interest
or service. [343H; 344A-C]
Conway v. Rimmer & Anr. [1968] 1 A.E.R. 874 & [1968] A.C.
910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers
v. Home Secretary [1973] A.C. 388, referred to.
(1) It is now the well settled practice in our country that
an objection is raised by an affidavit affirmed by the Head
of the Department. The Court may also require a Minister to
affirm an affidavit. Where no affidavit was filed, an
affidavit could be directed to be filed later on. [349B]
(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 that behalf. If
the Court is satisfied with the affidavits, the Court will
refuse disclosure. If the Court, in spite of the affidavit,
wishes to inspect the document the Court may do so. [349E]
Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.
(3) In the present case it cannot be said that the Blue
Book is a published document. Any publication of parts of
the Blue Book which may be described as an innocuous part of
the document will not render the entire document a published
document. [349H]
(4) In the instant case it is apparent that the affidavit
affirmed by the Chief Secretary 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. [349D]
(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
yet like to satisfy itself, the Court may see the document.
Objection as to production as well as admissibility
contemplated in s. 162 of the Evidence 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, J. (Concurring) :
1(a) The foundation of the so called privilege is that the

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10/16/24, 11:42 AM State Of U.P vs Raj Narain & Ors on 24 January, 1975
information cannot be disclosed without injury to public
interest and not that the document is confidential or
official, which alone is no reason for its non-production.
[353C-D]
Asiatic Petroleum Company Ltd. v. Anglo Persian Oil Co.
[1916] 1 K.B. 822 at 830; Conway v. Rimmer [1968] 1 All,
E.R. 874 at 899 and Duncan v. Cammell Lavid & Co. [1942]
A.C. 624, referred to.
335
(b) A privilege normally belongs to the parties and can be
waived. 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, referred 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 relating 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 permitted 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
the 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 officer 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 objecting 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 published.
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 the 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
entitled to protection. [362E-F]
5(a) It is difficult to see how the Court 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
hypothesis, 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-B]
(b) Section 162 visualises an inquiry into that objection

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10/16/24, 11:42 AM State Of U.P vs Raj Narain & Ors on 24 January, 1975
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]
336
(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 find out whether, the
disclosure of the document would be injurious to public
interest and the expression "as be 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 determine
the validity of the objection finally. [358F]
State 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 proper forum to weigh the matter and
that is the reason why a Minister's certificate is taken as
conclusive. As the executive is solely responsible for
national security, including foreign relations, no other
organ could judge so well of such matters. Therefore,
documents in relation to these matters might fall into a
class which per se might require protection. [359B-C]
(e) But the executive is not the organ solely responsible
for public interest. 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 exclusively from a
narrow departmental angle. It is impossible for it to see
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 con-
siderations of national security are left out. there are few
matters of _public interest which cannot safely be discussed
in public. [139C-D; F-G]
Arguments for the Appellant
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 duty of the Court to prevent the production and
admission of the document in evidence suo motu to safeguard
public interest Matters of State referred to in the second
clause of s. 162 are identical with affairs of State
mentioned in s. 123. An objection against the production of
document should be raised in the form of an affidavit 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
proper case the person making the affidavit should be
summoned to face an examination to 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 moru in
cases where the documents in question obviously relate to
affairs of State. Therefore, the Court cannot hold an
inquiry into the possible injury to public interest. That
is a matter for the authority to decide. But the Court is
bound to hold a preliminary enquiry and determine the
validity of the objections which necessarily involves an
inquiry into the question as to whether the evidence relates
to an affair of State under s. 123. In this 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 material particular and that is the
authority given to the Court to hold a preliminary 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
unpublished document pertaining to matters of State, but in
its discretion the Court will exercise its power only in
exceptional circumstances when public interest demands, that
is, when the public interest served by the disclosure
clearly outweighs that served by the nondisclosure. In this
case the Chief Secretary filed an affidavit whereas the
Minister would have done it. This claim of privilege is not
rejected on account of this procedural defect.

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Arguments for the Respondent
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 their mind
at the relevant time. The Supreme Court in Sukhdeo Singh's
case held that
337
the objection to the production or admissibility of document
of which privilege is claimed, 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 document 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 Supreme 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 public 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 non-filing 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.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : 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. Agarwala, and 0. P. Rana, for the appellant.

Shanti Bhushan and J. 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. Untwalia, JJ, was delivered by A. N. Ray, C.J. K.
K. Mathew, J. gave his separate Opinion. RAY, C.J.-This is an appeal by special leave from the judgment dated 20 March, 1974
of the learned Single Judge of the 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 the Blue Book
summoned 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 of Allahabad, made an application on 27
July, 1973 for summoning certain witnesses along with documents mentioned in the application. The summons was inter alia
for the following witnesses along with following documents First the Secretary, General Administration, State of Uttar Pradesh
Lucknow or any officer authorised by him was summoned to produce inter alia (a) circulars received from the Home Ministry
and the Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru
Gandhi, 'the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 or
any general order for security arrangement; and (b) All correspondence between the State 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.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the
documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government
regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli
District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government of
India and between the Chief Minister and the Prime Minister, regarding the arrangement of Police for the arrangement of
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 program of Shkimati Indira Nehru Gandhi of District Rae Bareli for 1 and

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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
Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the
Chief Secretary need not personally attend and that the papers might be sent through some officer. On 6 September, 1973 S. S.
Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary,
Confidential Department, to go to the High Court with the documents summoned and to claim privilege. This will appear from
the application of S. S. Saxena dated 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 Instructions for the protection of the Prune 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 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 privilege 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 be
produced before the Court for cross exami- nation. 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,
1973. S. S. Saxena filed an application supported by an affidavit of R. K. Kaul. The deponent R. K. Kaul in his affidavit
affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the
State and their disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security
arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister, the
maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such
that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege. on 20
September, 1973 an objection was made that the Chief Standing Counsel had no locus standi to file an objection claiming
privilege. on 21 September, 1973 the arguments in the matter of privilege were heard. On 24 September, 1973 further
arguments on the question of privilege were adjourned until 29 October, 1973. 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 can 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 Secretariat on the basis of which Police arrangement for constructions of
Rostrum, fixation of loudspeakers and other arrangements were made, and the correspondence between the State Government
& the Government of India regarding the police arrangements for the meetings of the Prime Minister. The second set also
relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae
Bareli and correspondence regarding the arrangement of police for the meetings of the Prime Minister. The third set summoned
from the Head Clerk of the Office of the Superintendent of Police relates to the same." The learned Judge expressed the
following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an
affidavit at the first instance. No such affidavit was filed at the first instance. The Court cannot exercise duty under section 123
of the Evidence Act suo motu. The court can function only after a privilege has been claimed by affidavit. It is only when
permission has been withheld under section 123 of the Evidence Act that the Court will decide. Saxena in his evidence did not

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10/16/24, 11:42 AM State Of U.P vs Raj Narain & Ors on 24 January, 1975
claim privilege even after the Law Department noted in the file that privilege should be claimed Saxena was allowed to bring
the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover
along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first
instance.

The learned Judge further held as follows. The Blue Book is not an unpublished official record within the meaning of section
123 of the Evidence Act because Rule 71(6) of the Blue Book was quoted by a Member of Parliament. The Minister did not
object or deny they correctness of 'the quotation. Rule 71(6) of the Blue Book has been filed in the election petition by the
respondent to the election petition Extracts of Rule 71(6) of the Blue Book were filed by the Union Government in a writ
proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the
election petition hid no right to file even a portion of the Blue Book in support of her defence. When a portion of the Blue Book
had been used by her in her defence it cannot be said that the Blue Book had not been admitted in evidence. Unless the Blue
Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and
cannot effectively cross-examine the witnesses or respondent to the election petition. Even if it be assumed that the Blue Book
has not been admitted in evidence and Kaul's affidavit could be taken into consi- deration, 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 Police
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(1); Amar
Chand Butail v. Union of India(2) and the English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect
the document regarding which privilege is claimed. But because the Blue Book is not an unpublished official record, there is no
necessity to inspect the Blue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4); 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 public interest or service. In the Cammell Laired case (supra) the respondent objected to produce
certain documents referred to in the Treasury Solicitors letter directing 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 Admirality 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 Court cart request the Minister's personal attendance.

(1) (1961] 2 S.C.R. 371. (2) A.I.R. 1964 S.C.,1658. (3) [1968] 1 A.E.R- 874 : [1968] A C 910. (5) [1973] AC 388.

(4) [1942] A C- 642.

Grosvenor Hotel, London(1) 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 was 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 before the learned Chamber Judge as not being in compliance with, the order. It was, held
that the affidavit was in compliance with the order. The learned Judge held that Crown privilege is not merely a procedural
matter and it may be enforced by the courts in the interest of the State without the intervention of the executive, though
normally the executive claims it. The matter was taken up to the Court of Appeal, which held 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 withheld. 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 Cammell 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. (supra) to be, obiter. The Minister's
claim of privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape to 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 propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was
adopted that the information 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

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would weigh in the balance on the one side the public interest to be protected and on the other the interest of the subject who
wanted production of some (1) (1963) 3 A E R 426: (1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.

(2) [1916] 1 K B 830.

documents which he believed would support his own or defeat his adversary's case. Both were said in 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; but even here the Minister should go as far as he properly can without prejudicing the public interest in
saying why the contents require protection. In Conway 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 protection. These are Cabinet papers, Foreign Office dispatches, the security of the
State, high level interdepartmental minutes and correspondence and documents pertaining to the general administration of the
naval, military and air force services. Such documents would be the subject of privilege by reason of their contents and also by
their 'class'. No catalog 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 particular document might be,. In Rogers v. Homer Secretary (supra) witnesses were
summoned to give evidence and to produce certain documents. The Home Secretary 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 was whether the public interest would require that the documents should not be
produced. The Minister is an appropriate person to assert 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 should have the fullest
possible access to all relevant material. Once the public interest is found to demand that the evidence should be withheld then
the evidence cannot be admitted. In proper cases the Court will exclude evidence the production of which, it sees is contrary to
public interest. In short, the position in law in an--' is that it is ultimately for the court to decide whether or not it is in the public
interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of
documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its
rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion.
Facts should not be received in evidence unless they are both relevant and admissible.

The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is
inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from
disclosure. A party is some- times estopped from proving facts and these facts are therefore inadmissible. The exclusion of
evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts
are, subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence. A witness,
though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter
which is relevant to the issue. Secrets of state, papers, confidential official documents and communications between .he
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.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-there that the
documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into the loss of the
"Thetis'. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with
the pending action on the, ground ,of public policy it would not be defeated by the circumstances that they had been given a
limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal's
sittings might be secret. In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a
document might have been disclosed at an earlier enquiry. It was said that if part of a document is innocuous but part of it is of
such a nature that its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided
that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh's case (supra) held that the principle behind section 123 of the Evidence Act is the overriding and
paramount character of public interest and injury to public interest is the sole foundation of the section. Section 123 states that
no one shall be permitted to give any evidence derived from unpublished official records relating to_ any affairs of State except
with the permission of the Officer at the head of the department concerned, who shall give or withhold such permission as he
thinks fit. The expression "Affairs ,of State" in section 123 was explained with reference to section 162 of the Evidence Act.
Section 162 is in three limbs. The first limb states that a witness summoned to produce a document shall, if it is in his
possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its
admissibility. The validity of an such objection shall decided by the Court. The second limb of section 162 says that the, Court,,
if it sees fit, may 'inspect the document unless it refers to matters of state, or take other evidence to enable it to determine on its
admissibility. 'the third limb speaks of translation of documents which is not relevant here. In Sukhdev Singh's case (supra) this
Court said that the first limb of section 162 required a witness to produce a document to bring it to the Court and then raise an
objection against its production or its admissibility. The second limb refers to the objection both as to production and

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admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh's case (supra) to be
identical with the expression "affairs of State?' in section 123.

In Sukhdev Singh's case (supra) it was said that an objection against the production of document should be made in the form Of
an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case,
require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case,
the person making the affidavit can be summoned to face an examination. In Sukhdev Singh's case. (supra) this Court laid
down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public
interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to
an affair of State. The Court has to determine the character and class of documents. Second, the harmonious construction of
sections 123 and 162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the
character of the document. Third, the expression "affairs of State" in section 123 is not capable of definition. Many illustrations
are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of
documents such document or such class of documents may also claim the status of documents relating to public affairs'. Fourth,
the second limb of section 162 refers to the objection both as to the production and the admissibility of the document. Fifth,
reading sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may
result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is
competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That
necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under section 123 or
not.

in Sukhdev Singh's case (supra) this Court said that the power to inspect the documents cannot be exercised where the
objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R. at
page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the
validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a
privilege claimed or an objection raised even under section 123. It is said that the Court may take collateral evidence to
determine the character or class of documents. In Sukhdev Singh's case (supra) it has also been. said that if the Court finds that
the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department
whether to permit its production or not. The concurring views in Sukhdev Singh's case (supra) also expressed the opinion that
under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail's case (supra) the appellant called upon the respondents the Union and the State to produce certain
documents. The respondents claimed privilege. This Court saw the documents and was satisfied that the claim for privilege was
not justified.

In Sukhdev Singh's case (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butail's case (supra)
Gagendragadkar, C.J. spoke for the Court in a unanimous decision. In the later case this Court saw the document. In Sukhdev
Singh's case (supra) this Court said that an enquiry would be made by the 'Court as to objections to produce document. It is said
that collateral evidence could be taken. No oral evidence can be given of the con- tents of documents. In finding out whether
the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State,
it may sometimes be difficult for the Court to determine the character of the document without the court seeing it. The
subsequent Constitution Bench decision in Amar Chand Butail's case- (supra) recognised the power of inspection by the Court
of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision
asked the Compensation Officer to decide in the light of the decisions of this Court whether the claim for privilege raised by
the State Government should be sustained or not. This Court gave directions for filing of affidavits by the heads of the
department. This direction was given about 10 years after the State Government had claimed privilege in certain proceedings.
In the Sub-Divisional Officer; Mirzapur case (supra) the respondent filed objections to draft compensation assessment rolls.
Compensation was awarded to the respondent. The State applied for reopening of the objection cases. The respondent asked for
production of some documents. The State claimed privilege. The District Judge directed that compensation cases should be
heard by the Sub-Divisional Officer. The respondent's application for discovery and production was rejected by the
Compensation Officer. The District Judge thereafter directed that compensation cases should be heard by the Sub-Divisional
Officer. The respondent again filed applications for discovery and inspection of these documents. The State Government again
claimed privilege. The respondent's applications were rejected. The respondent then filed a petition under Article 226 of the
Constitution for a mandamus to Compensation Officer to bear and determine the applications. The High Court said (1) [1966] 2
SC R- 970, that the assessment rolls had become final and could not be opened. This Court on appeal quashed the order of the
Sub Divisional Officer whereby the respondent's applications for discovery and production had been rejected and directed the,
Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said that the first summons addressed to the Secretary, General Administration
required him or an officer authorised by him to give evidence and to produce the documents mentioned therein. The second
summons was addressed to the Home Secretary to give evidence on 12 September, 1973. The third summons was addressed to
the Chief Secretary to give evi- dence on 12 September, 1973 and to produce certain documents. The first summons, it is said
on behalf of the election petitioner, related to the tour programmes of the Prime Minister. The election petitioner, it is said,
wanted the documents for two reasons. First, that these documents would have a bearing on allegations of corrupt practice, viz.,
exceeding the prescribed limits of election expenses. The, election petitioner's case is that rostrum, loudspeakers, decoration

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would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for
furthering the prospects of the candidate's election.

On behalf of the election petitioners it is said that objection was taken with regard to certain documents in the first summons on
the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department.
With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the
election petitioner is that the Superintendent of Police is not the head of the department and either the Minister or the Secretary
should have affirmed an affidavit.

Counsel on behalf of the election petitioner put in the forefront that it was for the Court to decide whether the disclosure and
production of documents by the State would cause prejudice to public interest or whether non-disclosure of documents would
cause harm to the interest of the subject and to the public interest that justice should be done between litigating parties. This
submission was amplified by counsel for the election petitioner by submitting that it had to be found out at what stage and it
what manner privilege was to be claimed and in what circumstances the Court could look into the document to determine the
validity of the claim to privilege raised under section 123. The, other contention on behalf of the election petitioner was that if a
part of the document was made public by lawful custodian of the document the question was whether the document could still
be regarded a-, an unpublished document. It was also said if there was a long document and if parts thereof were noxious and
therefore privileged whether the unanimous part could still be brought on the record of the litigation.

Counsel for the election petitioner leaned heavily on the decision in Conway v. Rimmer & Anr. (supra) that the Court is to
balance the rival interests of disclosure and non- disclosure.

the first question which falls for decision is whether the learned Judge was right in holding that privilege was not claimed by
filing an affidavit at the first instance. Counsel on behalf of the election petitioner submitted that in a case in which evidence is
sought to be led in respect of matters derived from unpublished records relating to affairs of State at a stage, of the proceedings
when the head of the department has not come into picture and has not had an opportunity of exercising discretion under
section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence being led till
the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned, it
is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished
when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to
ask him or to give him another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the
protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a
document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973
and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should,
therefore, be excluded from production.

The several decisions to which reference has already been made establish that the foundation of the law behind sections 123
and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from
disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands
that evidence be 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 public interest outweigh's the latter, the evidence cannot be admitted. The
court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that
confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents
Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which
it would be damaging to the national interest to divulge but rather that the documents would be of class which demand
protection. (See Rogers v. Home Secretary (supra) at p. 405). To illustrate the class of documents would embrace Cabinet
papers, Foreign Office dispatches, papers regarding the security to the State and high level interdepartmental minutes. In the
ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the
documents are to be withheld. (See Merricks and Anr. v. Nott Bower & Anr.(1). It is now the well settled Practice in our
country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite a
Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be
withheld from disclosure. If the Court is satisfied with the affidavit evidence, that the document should be protected in public
interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This
will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in
section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh's case
(supra). In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief
Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as
well as the aforesaid affidavit shows that objection was taken at the first instance. This Court has said that where no affidavit
was filed an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases (supra) in England
shows that if an affidavit is defective an opportunity can be given to file a better affidavit. 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 that behalf.
If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect
the document the Court may do so.

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The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On
behalf of the election petitioner, it was- said that a part of the document was published by the Government, viz., paragraph
71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed
in the Court. in the Canmell Laird case, it was said that though some of the papers had been produced before the Tribunal of
Enquiry and though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons
were given. One is that special precaution may have been taken to avoid public injury and the other is that portions of the
Tribunal's sittings may have been secret. In the present case, it cannot be, said that the blue book is a published document. Any
publication of parts of the blue book which may be described the innocuous part of the document will not render the entire
document a published one. (1) [1964] 1 A E R 717 8-423SCI/75 For these reasons, the judgment of the High Court is set aside.
The learned judge will consider the affidavit a firmed by R. K. Kaul. The learned Judge will give, an opportunity to the head of
the department to file affidavit in respect of the documents summoned to be produced by the Superintendent of Police. The,
learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require
protection from production, the matter will end there. If the learned Judge will feel inclined in spite of the affidavits to inspect
the documents to satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect the same
and pass appropriate orders thereafter,. If the Court will find on inspection that any part of a document is innocuous in the sense
that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a
distorted or misleading impression. Where the Court orders disclosure of an innocuous part as aforesaid the Court should seal
up the other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay and bear their
own costs.

MATHEW, J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No. 1
applied to the Court for summons to the Secretary, General Administration and the Chief Secretary, Government of U.P. and the
Head Clerk, Office of the Superintendent of Police, Rai Bareily, for production of certain documents. In pursuance to summons
issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in
court with the documents and objected to produce:

(1) A blue book entitled "Rules and Instructions for the Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of India and the Government of U.P.
in regard to the police arrangements for the meetings of the Prime Minister; and (3) Correspondence exchanged between
the Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxena was examined by Court on 10-9-1973. The 1st res- pondent filed an application on that day praying that as no privilege
was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that the
application be put up for disposal. As Saxena's examination was not over on 10-9-1973, the Court kept the documents in a
sealed cover stating that in case the claim for privilege was sustained, Saxena would be informed so, that he could take back
the documents. Examination of Saxena was over on 12-9-1973. On that day, the, Superintendent of Police, Rai Bareily, filed an
affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard
to privilege and directed that it be heard the next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which
date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed in Court an application and the Home
Secretary to the Government of U.P., Shri R, K. Kaul, the head of the department in question an affidavit claiming privilege for
the documents. The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims
for privilege. This appeal, by special leave, is against that order. The first question for consideration is whether the privilege
was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilege was filed in the first
instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is
summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge or the head of
the department concerned to Me an affidavit showing that he had read and considered the document in respect of which
privilege is claimed and containing the general nature of the document and the particular danger to which the State would be,
exposed by its disclosure. According to the Court, this was required as a guarantee. that the statement of the Minister or the
head of the department which the Court is asked to accept is one that has not been expressed casually or lightly or as a matter
of departmental routine, but is one put forward with the solemnity necessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P.,
Saxeiia was deputed to take the documents summoned to the Court and he stated in his evidence that he could not Me the blue
book as it was marked ,secret, and as he was not permitted by the Home Secretary to produce it in Court. As no affidavit of the
Minister or of the Head of the Department was filed claiming Privilege under s. 123 of the Evidence Act in the first instance,
the Court said that the privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming
privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their
Lordships of the Privy Council said that it would be contrary to the public (1) [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

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interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the
description already indicated by saying that these observations have no application as, no affidavit, albeit defective, was filed in
this case in the first instance. The Court further observed that it was only when a proper affidavit claiming privilege was filed
that the Court has to find whether the document related to unpublished official record of affairs of State, that a duty was cast on
the Minister to claim privilege and that, duty could not be performed by Court, nor would the Court be justified in suo motu
ordering that the document should be disclosed. The Court then quoted a passage from the decision of this Court in Sodhi
Sukhdev Singh's case (supra) to the effect that court has no power to hold an enquiry into the possible injury to the public
interest which may result from the disclosure of the document as that is a matter for the authority concerned to decide but that
the court is competent and indeed bound to hold a preliminary enquiry and determine the validity of the objection and that
necessarily involves an enquiry into 'the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Book was that
since portions of it had in fact been published, it was not an unpublished official record relating to affairs of state. He relied
upon three circumstances to show that portions of the Blue Book were published. Firstly, the Union Government had referred
to a portion of it (Rule 71/6) in an affidavit filed in Court. Secondly, respondent No. 2 had obtained a portion of the Blue Book
(Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a
Member of Parliament had referred to this particular rule in Parliament.

The learned Judge, however, did not consider or decide whether the Blue Book related to any affair of state, perhaps, in view of
his conclusion that it was not an unpublished official record.

Section 123 of the Evidence Act states from unpublished official records relating to any affairs of state, except with the
permission of the Officer at the head of the department concerned, who shall give or withhold such permission as be thinks fit."
Section 162 of the Evidence Act provides that when a witness brings to court a document in pursuance to summons and 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 relating to affairs of state
or, take such other evidence as may be necessary to determine its admissibility.

Having regard to the view of the High Court that since the'. privilege was not claimed in the first instance by an affidavit of the
Minister or of the head of the department concerned, the privilege could not thereafter be asserted and that no inquiry into the
question whether the disclosure of the document would injure public interest can be con- ducted by the court when privilege is
claimed, it is necessary to see the scope of s. 123 and s. 162 of the Evidence Act.

The ancient proposition that the public has a right to every man's evidence has been reiterated by the Supreme Court of U.S.A.
in its recent decision in United States v. Nixon. This duty and its equal application to the executive has never been doubted
except in cases where it can legitimately claim that the evidence in its possession relates to secret affairs of state and cannot be
disclosed without injury to public interest.

The foundation of the so-called privilege is that the information cannot be disclosed without injury to public interest and not
that the document is confidential or official which alone is no reason for its non-production(1). In Durcan v. Cammel Lavid &
Co.(2) Lord Simon said that withholding of documents on the ground that their pub- lication would be contrary to the public
interest is not properly to be regarded as a branch of the law of privilege connected with discovery and that 'Crown privilege' is,
for this reason, not a happy expression.

Dealing with the topics of exclusion of evidence on the ground of estate interest, Cross says that this head of exclusion of
evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by
the Judge if it is not raised by the parties or the Crown.(3) Phipson deals with the topic under the general category "Evidence
excluded by public policy". He then lists as an entirely separate category: "Facts excluded by privilege,"

and deals there with the subject of legal professional communication, matrimonial communication, etc., topics dealt with
by sections 124-131 of the Evidence Act(4). A privilege normally belongs to the parties and can be waved. But where a
fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties see in this
connection Murlidhar Aggarwal v. State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression 'Crown privilege is wrong and may be, misleading and that there is
no question of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires
that a document shall not be produced and, whether the public interest is so strong as to override (1) gee Asiatic
Petroleum Company Ltd. v Anglo Persian Oil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer (1968) 1 All ER 874,
at 899.

(2) [1942] A-- C 624. (3) "Evidence", 3rd ed p 251. (4) "see Phipson on Evidence"

(5) [1974] 2 S7 C C 472, at 483.

(6) [1973] A C at, 388.

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the ordinary right and interest of a litigant that he shall be able to I before a court of justice all relevant evidence. In the same
case, Lor Pearson observed that the expression 'Crown privilege' is not accur though sometimes convenient. Lord Simon of
Claisdale observed in that case :

".... .'Crown privilege' is a misnomer and apt to be misleading. 'It refers to the rule that certain evidence is hadmissible on
the ground that its adduction would be contrary to the public interest. It is not a privilege which may be waived by the
Crown (see Marks v. Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown has prerogatives, not previlege."

I am not quite sure whether, in this area, there was any antithesi between prerogatives and privilege. I think the source of this
privilege was the prerogatives of the Crown.

"The source of the Crown'& privilege in relation to production of documents in a suit between subject and subject
(whether production is sought from a party or from some other) can, no doubt, be traced to the prerogative right to
prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence, regarding Court
intrigue. As is pointed out in Pollock and Maitland's History of English Law (2nd ed., Vol. I, p. 5 17), "the King has
power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in
which he has any concern. If the King disseises A and transfers the land to X, then X when he is sued will say that he
cannot answer without the King, and the action will be stayed until the King orders that it shall proceed." We find similar
principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. In the report of Layer's
Case (1722), (16 How St. Tr. p. 294) the Attorney General claimed that minutes of the Lords of the Council should not be
produced; and Sir John Pratt L.C.J. sup-

ported the claim, additing that "it would be for the disservice of the King to have these things disclosed". We recall Coke's
useful principle : Nihil quod inconvenience est licitum. It is true that in the preceding century the privilege was not upheld
either in Strafford's case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How. St. Tr. 183, but these
decisions were made in peculiar circumstances."

[see "Documents Privileged in Public

Interest"(1)]

But, with the growth of democratic government, the interest of the Crown in these matters developed into and became
identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

In the early days of the nineteenth century, when principles of 'public policy' received broad and generous interpretation we
find the privilege of documents recognized on the ground of public interest. At this date, public policy and the interest of the
public were to all intents synonymous".

(see "Documents Privileged in Public

Interests" (supra)

The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle
quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge
should, if necessary, insist, even though no objection.is taken at all. This would show how remote the rule is from the branch of
jurisprudence relating, to discovery of documents or even to privilege(1). So the mere fact that Saxena brought the documents
to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned
claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating
to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege
had been filed, it might be that a legitimate inteference could be made that the Minister or the head of the department
concerned permitted the production of the document or evidence being given derived from it, if there was no other
circumstance. But, Saxena stated that the Blue Book was a secret document and he had not been permitted by the head of the
department to produce it. Though that statement 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 the 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 the disclosure
of the document. In other words, from the statement of Saxena that the document was a 'secret' one and that he was not
permitted to produce it in court, it is impossible to infer that the Minister or the head of the department bad permitted the
document to be produced in court or evidence derived from it being given. 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 officer at the head of the department. The court, therefore, had a duty, if the Blue Book related to secret affairs
of state, not to permit evidence derived from it being given. And, in fact, 'the Court did not allow the production of the
document, for, we find a note in the proceedings of the Court on 10-9-1973 stating that the "question about the production of
this document in Court shall be decided after argument of the parties on the point is finally (1)see : J.K.S. Simon, "Evidence
Excluded by Consideration of State Interest", (1955) Cambridge L Journal, 62.

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heard". And before the arguments were finally concluded, Kaul, the officer at the head of the department, filed an affidavit
claiming privilege. As the privilege could not have been waived, and as, before the objection to the production of the document
raised by Saxena-whether tenable in law or not-was decided by the Court, an affidavit was filed by Kaul objecting to the
production of the document and stating that the document in question related to secret affairs of state, the Court should have
considered the validity of that objection under S. 162 of the Evidence Act. In Crompton Ltd. v. Customs & Excise Comrs.
(C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the
parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it and that
the judge himself must take the objection if it appears to him that the production of the document would be injurious to public
interest. In Copway v. Binger & Anther(2) it was observed :

"I do not doubt that it is proper to prevent the use of any document, wherever it comes from, if disclosure of its contents
would really injure the national interest and I do not doubt that it is proper to prevent any witness whoever be may be,
from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do
this without the intervention of any Minister, if possible serious injury to the national interest is ,really apparent. "I do not
accept that in so important a matter, it could properly play about with formalities or regard itself as entering forbidden
territory merely because a door had not been formally locked."

The question then arises as to what exactly is the meaning of the expression "affairs of state".

According to Phipson(3), witnesses may not be asked, and will not be allowed, to state facts or to produce documents the
disclosure of which would be prejudicial to the public service, and this exclusion is not confined to official communications or
documents, but extends to all others likely to prejudice the public interest, even when relating to commercial matters. He thinks
that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be.
caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest
to be considered by the court, and they are : (1) the public interest that harm shall not be done to the nation or the public
service; and (2) the public interest that the administration of justice shall not be frustrated by the withholding of documents
which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1) [1972] 2 Q.B 102, at 134.

(3) "Phipson on Evidence", 11th ed. p. 240. (2) [1968] A.C. 910.

documents probably ought to be produced, it would generally be, best that he should see them before ordering production.
Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest; but "state interest" is
an ominously vague expression and it is necessary to turn to the decided cases in order to ascertain the extent to which this
objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two
heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression
which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded
because its reception would be injurious to some other national interest and that although the first group of decisions has not
excited much comment, some of the cases included in the second may be thought to indicate an excessive concern for
unnecessary secrecy. In Sodhi Sukhdev Singh's case (supra) this Court held that there are three views possible on the matter.
The first view is that it is the head of the department who decides to which class the document belongs. If he comes to the
conclusion that the document is innocent, he can give permission to its production. If, however, he comes to the conclusion that
the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture. The
second view is that it is for the court to determine the character of the document and if necessary to enquire into the possible
consequence of its disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept
either of the two extreme positions would be that the court can determine the character of the document and if it comes to the
conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its
production should be permitted or not, for, it is not the policy of s. 123 that in the case of every noxious document the head of
the department must always withhold permission. The Court seems to have accepted the third view as the correct one and has
said "Thus, our conclusion is that reading ss. 123 and 162 together the Court cannot hold an enquiry into the possible injury to
public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to
decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the
objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an
affairs of State under s. 123 or not."

As it was held in that case that the Court has no power to inspect the document, it is difficult to see how the Court 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- hypothesis a document can relate to affairs of state only if its disclosure will
injure public interest. It might be that there are certain classes of documents which are per se noxio s in the sense (1)
"Evidence" 3rd ed, p. 252.

that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be
injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure
would be injurious to public interest. The enquiry to be conducted under s. 162 is an enquiry into the validity of the objection
that the document is an unpublished official record relaing to affairs of state and therefore, permission to give evidence derived
from it is declined. The objection would be that the document relates to secret affairs of state and its disclosure cannot be
permitted; for, why should the officer at the head of the department raise an objection to the production of a document if he is

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prepared to permit its disclosure even though it relates to secret affairs of state ? Section 162 visualises an enquiry 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; whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived
from it being given was in the public interest. No doubt, the, words used-in s. 123 "as he thinks fit" confer an absolute
discretion on the head of the department to give or withhold such permission. As I said, it is only if the officer refuses to permit
the disclosure of a document that any question can arise in a court and then s. 162 of the Evi- dence Act will govern the
situation. An overriding power in express terms is conferred on the court under s. 162 to decide finally on the validity of the
objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state
or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in
a particular case overrides all other aspects of public interest. This conclusion flows from the fact that in the first part of s. 162
of the Evidence Act there is no limitation on the scope of the court's decision, though in the second part, the mode of enquiry is
hedged in by- conditions. It is, therefore, clear that even though the head of the department has refused to grant permission, it is
open to the court to go into the question after examining the document and find out whether the disclosure of the document
would be injurious to public interest and the expression "as he thinks fit" in the latter part of section 123 need not deter the
court from deciding the question afresh as s. 162 authorises the court to determine the validity of the objection finally (see the
concurring judgment of Subba Rao, J. in Sukhdev Singh's case). It is rather difficult to understand, after a court has inquired
into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be
served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him
would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question
already decided by the court. In other words, if injury to public interest is the foundation of this so-called privilege, when once
the court has enquired into the question and found that the disclosure of the document will injure public interest and therefore it
is a document relating to affairs of state, it would be a futile exercise for the Minister or the head of the department to consider
and decide whether its disclosure should be permitted as be would be making an enquiry into the identical question. It is
difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that
arrived at by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a
different concept of public interest. Few would question the necessity of the rule to exclude that whichwould cause serious
prejudice to the state. When a question of national security is involved, the court may not be the proper forum to weigh the
matter and that is the reason why a Minister's certificate is taken as conclusive.

"Those who are responsible for the national security must be the sole judges of what national security requires"(1). As the
executive is solely responsible for national security including foreign relations, no other organ could judge so well of
such matters. Therefore, documents in relation to these matters might fall into a class which per se might require
protection. But the executive is not the organ solely responsible for public interest. It represents only an important
element in it; but there are other elements, One such element is the administration of justice. The claim of the executive to
have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the
executive alone knows what is best for the citizen. C The claim of the executive to exclude evidence is more likely to
operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see
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. The power reserved to the court is a order production even
though public interest is to some 'extent prejudicially affected. This amounts to a recognition that more than one aspects
of public interest will have to be surveyed. The interests of government' for which the Minister speaks do not exhaust the
whole public interest. Another aspect of that interest is seen in the need for impartial ad- ministration of justice. 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. The court has to make an assessment of the relative claims of these different aspect of public interest.
While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice
public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters
may affect public interest. Once considerations of national security are left out, there are few matters of public interest
which cannot safely be discussed in public. The administration itself knows of many classes of security documents
ranging from those merely reserved for official use to those which can be seen only by a handful of Ministers of officials
bound by oath of secrecy. According to Wigmore, the extent to which this privilege has gone beyond "secrets of State" in
the military or international sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2 A C 77, at 107.

no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logic and policy.
According to him, in a community under a system of representative government, there can be only few facts which require to
be kept secret with that solidity which defies even the inquiry of courts of justice. (1) In a government of responsibility like
ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this
country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are
entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the
concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security (2) . To cover with veil secrecy the common routine
business, is not in the interest of the public. Such secrecy can seldom be legiti- mately desired. It is generally desired for the
purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to
justify their acts is the chief safeguard against oppression and corruption.

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"Whether it is the relations of the Treasury to the Stock Exchange, or the dealings of ;the Interior Department with public
lands, the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a
sacrosanct secrecy in a court of justice is to attribute to them a character which for other purposes is never maintained a
character which appears to have been advanced only when it happens to have served some undisclosed interest to obstruct
investigation into facts which might reveal a liability(3)"

To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the
transaction of official business and it must be further a secrecy which has remained or would have remained inviolable but for
the compulsory disclosure. In how many transactions of official business is there ordinarily such a secrecy? If there arises at
any time a genuine instance of such otherwise inviolate secrecy, let the necessity. of maintaining it be determined on its merits
(4). Lord Blanesburgh said in Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be
exercised, that its foundation is that the information cannot be disclosed without injury A, to the public interests and not that the
documents are confidential or ,official which alone is no reason for their non-production. He further said that in view of the
increasing extension of state activities into spheres of trading, business and commerce, and of the claim of privilege in (1) see
"Evidence", 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, 29 L Ed 822, 403 U S 713.

(3) gee "Wigrnore on Evidence", 3rd ed-, Vol 8, page 790. (4) [1931] A. C. 704 at 798.

relation to liabilities arising therefrom, the courts must duly safeguard genuine public interests and that they must see to it that
the scope of the admitted privilege is not extended in such litigation.

There was some controversy as to whether the court can inspect the document for the purpose of coming to the conclusion
whether the document relates to affairs of state. In Sodhi Sukhdev Singh's case, this Court has said that the court has no power
to inspect the document. In the, subsequent case (Amar Chand Butail v. Union of India and Others(1), this Court held that the
normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit
was filed, the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to
affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the
court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residual power in court to decide disclosure of a
document is in the interest of the public purpose, if necessary, to inspect the document, and that the of the, head of the
department that the disclosure would injure public interest is not final.

In Robinson's case, (Supra) the Privy Council took the view that the court has power to inspect the (document in order to
decide the question whether it belongs to one category or the other.

It is also noteworthy that Lord Denning, M. R, in his dissenting judgment in the Court of Appeal in Conway v. Rimmer has
referred to the decision in Amar Chand Butail v. Union of India and Others' (supra) and said that the Supreme Court of India
also has come round to the view that there is a residual power in the court to inspect a document to decide whether its
production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court will not insist on inspection of the document is that stated by Vinson, C. J. in
United States v. Revenolds(3) :

"Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over
evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the
court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any
case. It may be possible to satisfy the court from all the circumstances of the base, that there is a reasonable danger that
compulsion of evidence will expose military matters which, in the interest of national security, should not be divulged
When this is the case, the occasion for the privilege (1) A I R 1964 SC 1658.

(2) [1968] 1 All E R 874.

(3) [1952] 345 U S 1.

is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone in chambers."

I do not think that there is much substance in the contention 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 published. No authority has been cited for the proposition that if a severable and innocuous portion
of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123. In regard to

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the claim of privilege for the document summoned from the office of the Superintendent of Police, Rai Bareily, the High Court
has only said that all the instructions contained in the file produced by the Superintendent of Police were the same as those
contained in the Blue Book and since no privilege in respect of the Blue Book could be claimed, the Superintendent of Police
could not claim any privilege, in respect of those documents. It is difficult to under:stand how the High Court got the idea that
the papers brought from the office of the Superintendent of Police contained only instructions or materials taken from the Blue
Book. Since the 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 the Blue Book was not warranted.

I am not satisfied that a mere label given to a document by the .executive is 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 entitled to
protection. N6 doubt, "the very description-of the documents in the class may suffice sometimes to show that they should not
be produced such as Cabinet papers" (see per Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J.
said(2) in that case : "the appellants' real point is that since Duncan's Case(3) there has grown up a practice to lump documents
together and treat them as a class for which privilege is claimed and that this depends on dicta pronounced on what is really a
different subject-matter which are not binding on the court and are wrong." In Conway v. Rimmer(4) Lord Reid said : "I do not
doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be" and referred
to cabinet minutes as belonging to that class. Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C-- 624.

(4) [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

claimed for a document on the ground of 'class' the judge, if he feels any doubt about the reason for its inclusion as a class
document, should not hesitate to call for its production for his private inspection, and to order and limit its production if he
thinks fit." In the same case Lord Hodson said(1) : "I do not regard the classification which places all documents under the
heading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan's case and documents
exemplified by cabinet minutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class
without the necessity of the documents being considered individually. The documents in this case, class documents though they
may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as
requiring protection on the ground that 'candour' must be ensured."

I would set aside the order of the High Court and direct it to consider the matter afresh. The High Court will have to consider
the question whether the documents in respect of which privilege had been claimed by Mr. R. K. Kaul, Home Secretary and the
Superintendent of Police relate to affairs of state and whether public interest would be injuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits. If, on the basis
of the averments in the affidavits, the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of
the proceedings of the cabinet, which is per se entitled to protection, no further question will arise in respect of that document.
In such case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the
Blue Book does not belong to that class and that averments in the affidavits and the evidence adduced are not sufficient to
enable the Court to make up its mind that its disclosure will injure public interest, it will be open to the court to inspect the
document for deciding the question whether it relates to affairs of state and that its disclosure will injure public interest. In
respect of the other documents, the court will be at liberty to inspect them, if on the averments in the affidavits or other
evidence, it is not able to come to a conclusion that they relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its
disclosure would not injure public interest, the court will be free to (1) bid at p. 905.

disclose that part and uphold the objection as regards the rest provided that this will not give a misleading impression. Lord
Pearce said in Conway v. Rimmer(1) "if part of a document is innocuous but part is of such a nature that its disclosure would
be undesirable, it should seal up the latter part and order discovery of the rest, provided that this will not give a distorted or
misleading impression."

The principle of the rule of non-disclosure of records relating to affairs of state is the concern for public interest and the rule
will be applied no further than the attainment of that objective requires(2). I would allow the appeal.

P.B.R. Appeal allowed.

(1) [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.

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