1. Suit for recovery of salary arrears — Application for production of official records — Claim of privilege under Section 123, Indian Evidence Act. (Para 2 , 3 )
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1960 Supreme(SC) 280
SUPREME COURT OF INDIA
15th November, 1960
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO AND K.N. WANCHOO, JJ.
The State of Punjab, Appellant
Versus.
Sodhi Sukhdev Singh, Respondent.
Civil Appeal No. 337 of 1960.
Advocates appeared
Mr. N. S. Bindra, Senior Advocate, (Mr. D. Gupta, Advocate, with him), for Appellant; Mr. Gopal Singh, Advocate, for Respondent; Mr. H. M. Seervai, Advocate-General for State of Maharashtra (Mr. R. H. Dhebar, Advocate, with him), for Intervener.
Advocates:
D.GUTPA, Gopal Singh, H.M.SIRVAI, N.S.BINDRA, R.H.Dhebar
D.GUTPA, Gopal Singh, H.M.SIRVAI, N.S.BINDRA, R.H.Dhebar
The court can use collateral evidence to determine if a document relates to "affairs of State" under Section 123 of the Indian Evidence Act, but cannot inspect the document. If it does relate to affairs of State, the discretion to disclose it rests solely with the head of the department.
Headnote:(A) Indian Evidence Act, 1872 - Sections 123 and 162 - Privilege relating to unpublished official records - Affairs of State - Court's power to determine validity of claim of privilege - Harmonious construction of Sections 123 and 162 - Court cannot inspect documents relating to matters of State but can take other collateral evidence to determine if the document relates to affairs of State - Once classified as affairs of State, discretion to permit production rests solely with the head of the department (Paras 12, 20, 22, 25).
(B) Public Interest - The principle of overriding and paramount character of public interest justifies the departure from ordinary rules of evidence under Section 123 - The court cannot hold an enquiry into the possible injury to public interest resulting from disclosure, as that is a matter for the authority concerned (Paras 13, 25).
(C) Procedure for claiming privilege - Privilege should be claimed by the political or administrative head of the department via affidavit, indicating the document has been considered and its disclosure would lead to public injury (Para 23).
Facts of the case:
A former judicial officer removed from service filed a suit for declaration and recovery of arrears. The plaintiff sought production of certain government documents, including minutes of cabinet meetings and a report from a statutory commission. The state claimed privilege under the Evidence Act. The trial court upheld the privilege, but the High Court reversed the order for certain documents, enquiring into whether their disclosure would actually injure the public interest.
Findings of Court:
The documents, being minutes of cabinet discussions and a report from a statutory commission, relate to affairs of State. The High Court erred in attempting to determine the actual injury to public interest, which is outside the court's jurisdiction.
Issues: The primary issue was the true scope and effect of Sections 123 and 162 of the Indian Evidence Act, specifically whether the court can determine the validity of a claim of privilege and the extent of its power to inspect documents or take other evidence.
Ratio Decidendi: The court ruled that while Section 162 prohibits the inspection of documents relating to matters of State, it does not preclude the court from taking other collateral evidence to determine if the document belongs to the class of "affairs of State." However, if the document is so classified, the decision to permit its production is the exclusive discretion of the head of the department under Section 123. The court cannot substitute its own opinion regarding the actual injury to public interest.
Result: Appeal allowed.
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2. Whether the head of department has absolute discretion under Section 123 or whether the court can determine the character of documents under Section 162. (Para 17 , 18 )
3. Section 162 empowers the court to determine the validity of objections by taking collateral evidence, though inspection is prohibited for matters of State. (Para 20 , 21 , 22 , 25 )
4. The court can determine if a document relates to affairs of State via collateral evidence, but the decision on public injury remains with the department head. (Para 25 , 26 )
5. Appeal allowed — High Court order set aside — Trial court order upholding privilege restored. (Para 49 , 110 )
6. Can a court determine the validity of a privilege claim under Section 123 of the Indian Evidence Act?
Yes. While the court cannot inspect documents relating to matters of State, it is bound to hold a preliminary enquiry using collateral evidence to determine if the document relates to affairs of State. (Para 22 , 25 )
7. Who has the authority to decide whether the disclosure of a State document would cause injury to the public interest?
The authority to decide whether production would cause injury to public interest rests solely with the head of the department; the court cannot hold an enquiry into the possible injury. (Para 25 , 26 )
8. What constitutes affairs of State under Section 123 of the Indian Evidence Act?
It includes matters of national defence, public peace, security, and documents that, if disclosed, would impair the freedom and candour of expression in executing public policies. (Para 15 )
9. What is the proper procedure for the State to claim privilege under Section 123?
Privilege should be claimed via an affidavit by the Minister or Secretary, stating that each document was considered and its disclosure would lead to public injury. (Para 23 )
10. Does the court's power to inspect documents under Order 11 Rule 19 of the CPC override the prohibition in Section 162 of the Evidence Act?
No. The provisions of Order 11 Rule 19 must be read subject to Section 162; the prohibition against inspecting State documents applies at both the inspection and trial stages. (Para 46 , 48 )
Judgment
GAJENDRAGADKAR, J. (on behalf of himself, and B. P. Sinha, C.J.I. and Wanchoo, J.) : This appeal raises for our decision a question of law of general importance under Secs. 123 and 162 of the Indian Evidence Act, 1872, (hereafter called the Act.) Originally the same point had been raised in another civil appeal before this Court, Civil Appeal No. 241 of 1955. The said appeal was the result of a dispute between Dowager Lady Dinbai Dinshaw Petit on the one hand and the Union of India and the State of Bombay on the other. Having regard to the importance of the point raised by the said appeal a Division Bench of this Court before whom it first came for hearing directed that it should be placed for disposal before a Constitution Bench, and accordingly it was placed before us. The appellant and the respondent in the present appeal then applied for permission to intervene because the same point arose for decision in this appeal as well; that is how this appeal was also placed before us to be heard after the Bombay appeal. After the Bombay appeal was heard for some days parties to the said appeal amicably settled their dispute and a decree by consent was passed. In the result the point of general importance raised by the said appeal fell to be considered in the present appeal; and so the appellant and the respondent in the said appeal asked for permission to intervene in the present appeal, and we directed that the arguments urged by Mr. Viswanatha Sastri and Mr. Seervai, for the appellant and the State of Bombay respectively, should be treated as arguments urged by interveners in the present appeal. Mr. Bindra, who appears for the appellant State of Punjab in the present appeal, and Mr. Gopal Singh who represents the respondent Sodhi Sukhdev Singh, have substantially adopted the arguments urged by Mr. Seervai and Mr. Sastri respectively and have also addressed us on the special facts in their appeal; that is how the point of law in regard to the scope and effect of Secs. 123 and 162 of the Act has to be decided in the present appeal.
2. This appeal has been brought to this Court by special leave granted by this Court, & it arises from a suit filed by the respondent against the appellant on May 5, 1958. It appears that the respondent was a District and Sessions Judge in the erstwhile State of Pepsu. He was removed from service on April 7, 1953, by an order passed by the President of India who was then in charge of the administration of the said State. The respondent then made a representation on May 18, 1955. This representation was considered by the Council of Ministers of the said State on September 28, 1955, because in the meantime the President s rule had come to an end and the administration of Pepsu was entrusted to the Council of Ministers. The Council expressed its views in the form of a Resolution on the representation of the respondent; but before taking any action it invited the advice of the Public Service Commission. On receiving the said advice the Council again considered the said representation on March 8, 1956, and views on the merits of the representation were expressed by the Members of the Council. These were recorded in minutes of the proceedings. Finally, on August 11, 1956, the representation was considered over again by the Council, and it reached a final conclusion in respect of it. In accordance with the said conclusion an order was passed which was communicated to the respondent. The order read thus: "Reference his representation dated the 18th May, 1955, against the order of his removal from service; the State Government have ordered that he may be re-employed on some suitable post".
3. After this order was communicated to him the respondent filed the present suit against the appellant and claimed a declaration, inter alia, that his removal from service on April 7, 1953, was illegal, void and inoperative and prayed for the recovery of Rs. 62,700-6-0 as arrears of his salary. The appellant disputed the
