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2012 Supreme(Mad) 3985
High Court of Judicature at Madras
V. RAMASUBRAMANIAN
N.Jothi
Versus
The Secretary, Department of Home, Government of Tamil Nadu & Others
M.P.No.2 of 2012 in Writ Petition No.12891 of 2011
Decided On : 01-10-2012
For the Petitioner: N.Jothi (Party-in-Person).
For the Respondents:A.Navaneethakrishnan, Advocate General, Assisted by M.C.Swamy, Special Government Pleader.
Ratios
a. The safety and security of a citizen of the country is also an ’affairs of the State’ in respect of which the State could claim privilege under Sec.123 of the Evidence Act, 1872 for refusing to disclose the files or proceedings relating to such security.
b. Mere fact that a subordinate officer filed an affidavit would not be a sole ground to disentitle the State from claiming the privilege available under Sec.123 of Indian Evidence Act, 1872 and the defect could be permitted to be rectified.
Headnote:(A)Indian Evidence Act, 1872(1 of 1972)-Sec.123-Right to life-Security-Personal security officer-Withdrawal-Affairs of State-Privilege-When the personal security officer provided to the petitioner was withdrawn by the State Government, he had challenged it and sought for enhanced security cover to him-In that writ petition, he had sought for the minutes of the security review committee which was resisted by the respondent-While the petitioner contended that the details sought for would show the discrimination shown against him, the necessity of providing enhanced cover to him and the privilege of nondisclosure could be claimed only by the Head of the department and not by an additional secretary, respondent contended that providing security was an affairs of the State and the disclosure of the details of the security cover withdrawn would put the life of others in danger-Held, even the security of the citizen of the country was an ’affairs of the State’ in respect of which the State could claim privilege from disclosing the files or proceedings-Non-filing of affidavit claiming privilege by the head of the department was not a material defect for denying the privilege and if necessary, affidavit could be directed to be filed by proper officer-Claim of privilege by the State was upheld and the petition was dismissed.
(B)Indian Evidence Act, 1872(1 of 1972)-Sec.123-Right to life-Security-Withdrawal-Affairs of State-Privilege- The safety and security of a citizen of the country is also an ’affairs of the State’ in respect of which the State could claim privilege under Sec.123 of the Evidence Act, 1872 for refusing to disclose the files or proceedings relating to such security.
Therefore, the safety and security of all persons, including that of the petitioner, whose cases were taken up for review on 20.5.2011 by the Security Review Committee, would fall within the meaning of the expression "affairs of State". Hence the first question to be addressed by this Court, as per paragraph 70 of the decision of the Supreme Court in Peoples Union of Civil Liberties, has to be answered in favour of the respondents. In other words, the document in respect of which privilege is claimed, is an unpublished official record relating to the affairs of State. Para 39
(C)Indian Evidence Act, 1872(1 of 1972)-Sec.123-Affairs of State-Privilege-Affidavit-Head of Department-Mere fact that a subordinate officer filed an affidavit would not be a sole ground to disentitle the State from claiming the privilege available under Sec.123 of Indian Evidence Act, 1872 and the defect could be permitted to be rectified.
The fact that the affidavit had been sworn to only by the Additional Secretary to Government, who is not the Head of the Department, is hardly of any significance. The Constitution Bench has already held in Raj Narain that the Court can always call upon the Head of the Department either to file an affidavit for the first time or to call upon the Head of the Department to file an additional or further affidavit. Therefore, the fact that the Additional Secretary alone has filed the affidavit, will not go to the rescue of the petitioner. Para 41
Pending disposal of the main writ petition seeking a Mandamus to enhance the security cover given to the petitioner and to his residential house, the petitioner has come up with the above miscellaneous petition, seeking a direction to the respondents to produce the records relating to the security coverage provided to the petitioner from its inception till date.
2. I have heard Mr.N.Jothi, petitioner appearing in person and Mr.A. Navaneethakrishnan, learned Advocate General, assisted by Mr.M.C.Swamy, learned Special Government Pleader appearing for the respondents.
3. The petitioner is an Advocate. He was also a Member of Parliament during the period from 2002-2008.
4. According to the petitioner, he was informed by a high ranking Police Official in the year 2003 that there was a threat perception to his life and that therefore, the State would provide Personal Security Officers. Accordingly, he was provided Security Officers from the year 2003-2006. According to the petitioner, the security cover was withdrawn in the year 2006.
5. Challenging the withdrawal of the security cover, the petitioner filed a writ petition in W.P.No.14926 of 2006. The said writ petition was dismissed by an order dated 5.10.2006. The said order attained finality.
6. It is the case of the petitioner that he was a member of one political party from which he came out in the year 2008. It appears that in the year 2009, he was again provided security cover. The security cover was withdrawn in a meeting of the Security Review Committee held on 20.5.2011. Therefore the petitioner came up with the above writ petition seeking a Mandamus to direct the respondents to enhance the security cover from 'Y' category to 'Y+' category. The writ petition was moved during the summer recess of the year 2011 on 26.5.2011. While ordering notice, this Court passed an interim order, directing the respondents to continue to provide security under 'Y' category.
7. Thereafter, the writ petition was admitted in October 2011 and the respondents filed a counter affidavit to the main writ petition. The petitioner then filed a reply to the counter.
8. Subsequently, when the respondents came up with an application in M.P.No.1 of 2012 to vacate the interim order, the petitioner filed the above miscellaneous petition, seeking a direction to the respondents to furnish the records relating to the security cover provided to the petitioner from the beginning viz., 2004 till date. In the above application, a counter affidavit was filed by the Additional Secretary to Government, Home Department, seeking privilege. Therefore, the petitioner filed a reply, to the counter affidavit filed by the respondents in the above miscellaneous petition.
9. Thereafter, the petitioner as well as the learned Advocate General argued the above miscellaneous petition, since the arguments in the main writ petition would depend upon the fate of the above miscellaneous petition.
10. In the light of the facts detailed above, the question that arises for consideration is as to whether the claim of privilege made by the respondents should be sustained or not.
11. In the counter affidavit filed by one Mr.P.Seetharaman, Additional Secretary to Government, Home Department, privilege is claimed in terms of Sections 123 and 124 of the Indian Evidence Act, 1872. The petitioner made a similar prayer for production of records even in his previous writ petition W.P.No.14926 of 2006, by filing a miscellaneous petition in W.P.M.P.No.17754 of 2006. But by a final order dated 5.10.2006, K.Chandru, J., dismissed not only the miscellaneous petition, but also the main writ petition. Therefore, the respondents not only claim privilege in terms of Sections 123 and 124, but also claim that the issue is already covered by the earlier order, rejecting a similar prayer.
12. However, the petitioner contends, in his reply affidavit, that the claim for privilege made by the respondents, cannot be sustained for the following
