Section 123 of the Act enacts that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.
Section 124 ordains that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
Section 162 enjoins that a witness summoned to produce a document shall, if it is 1n his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility, that the validity of any such objection shall be decided on by the Court and that 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.
II. General principles underlying sections 123, 124 and 162: -
1. The principle underlying section 123 is that disclosure of confidential and secret information contained in unpublished official records relating to the affairs of State would be prejudicial to public interest. Section 124 is also founded on public policy that communications made to a public officer in 'official confidence· should not be disclosed. The communication may be oral or in writing and the confidence reposed may be express or implied. Under Section 124, which is confined to public officers, the public officer is the person who has to decide as to whether a disclosure will or will not be against the public interests. Under section 123, which embraces every person, the discretion rests with the head of the department concerned. If a document comes within the ambit of section 123. the Court cannot inspect it, though it can take other evidence to determine the character attributed to the document. But if the document falls within the scope of section 124. the Court can inspect it to determine the claim of privilege.
2. It is manifest from section 162 that where a privilege Is claimed under section 123 or section 124, the question is one for the Court to decide and not the head of the department or the public officer concerned. The position. therefore, is that when a public officer Is summoned to produce a document in respect of which he desires to claim privilege under those sections, he is bound first to produce it in court under section 162, notwithstanding any object that he may have as to its admissibility, and then claim privilege for it in the proper way by an affidavit. But once the court finds that the document Is of the kind in regard to which privilege can be claimed, namely, that it is an unpublished official record relating to any affairs of State or that it is a communication made in official confidence, the question whether disclosures of conten1 s would be against the public interests and whether privilege should be claimed for it or not, is entirely within the discretion of the head of the department or the public officer concerned. If, on the other hand, the Court holds that the document does not relate to any affairs of State or that it is not a communication made in official confidence no privilege can be claimed under section 123 or section 124, as the case may be.
III. Legal position with regard to the claim of privilege under section 123 and the procedure to be followed in respect thereof: -
1. For a privilege under section 123. two questions are involved, namely, (i) whether the document in respect of which privilege is claimed is a document of the kind described in that section, that is, unpublished official record relating to affairs of State; and (ii) whether the disclosure would be against public interest. No privilege can be claimed in relation to documents the contents of which have already been published. Where a report is circulated to a limited circle of officials, the circulation of the report being limited, does not amount to publication.
2. The expression "affairs of State·· includes any matters of a public nature with which the State is concerned. It can be emphatically stated that note files are in fact the most confidential and secret documents of the State in which the views of the several Departments and Ministers are expressed most candidly and unreservedly. A Court of law should uphold an objection taken by a public Department when it is called upon to produce such a document, if the public interest requires that it should be withhold. If a public department comes forward and says that the production of a document is detrimental to the public service, it is a very strong step indeed for the Court to overrule that statement by the Department. The question whether the publication of a document is or is not detrimental to the public service depends upon various points of view from which it may be regarded and it cannot be said that the Court is in possession of these various points of view. A Department of Government to which the exigencies of the public service are well known must determine a question of this kind for itself and as such no indulgence should be shown to a party who claims the production of documents like note files. Production of note files can be withheld either because of their actual contents or because they are a class of documents which should be kept secret for the proper functioning of the public service. In such a case, the Court should not require to see the document for the purpose of ascertaining whether disclosure would be injurious to the public interest - vide Duncan vs. Camell, Daird & Co., (1942- A.C. 624).
3. As indicated already, production of documents should be withheld only when the public interest would by their disclosure be injured, as where disclosure would be injurious to national defence, or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service Some High Courts have pointed out the circumstances under which no such privilege should be claimed, e.g. privilege is not to be claimed on the mere ground that the documents are State documents or are official or marked confidential or, if promoted, would result in Parliamentary discussion or public criticism or would expose dearth of efficiency in the administration or tend to lay a particular department of Government open to a claim for compensation.
4. For the purposes of Section 123, the expression 'officer a, the head of the department' may be held to mean the officer who is in control of the department and in whose charge the records of the department would remain. Ordinarily, such an officer would be the Secretary to the Government in the Secretariat or other Heads of Departments like Board of Revenue Inspector General of Police, Inspector General of Local administration, Director of Agriculture etc. The mere fact that the officer at the head of the department concerned does not wish the documents to be produced, is not an adequate justification for taking objection to their production. Before claiming privilege, the head of the department should examine the relevant document carefully and his affidavit should contain an indication as to the nature of the document, as to why privilege is claimed, what injury to public interests is apprehended, or what affairs of State are involved. A bare statement that in his opinion the disclosure would be against public interest is not enough. He should indicate the nature of the suggested injury to the interests of the public, and it is desirable that a statement should be put in saying that he has considered the document carefully and has come to the conclusion that it cannot be produced without injury to public interest.
5. It has been held by the Madras High Court i n Narayanaswamy vs. State of Madras, 1952 M.L.J. 375, that it is desirable but not indispensable that the records should be sent in a sealed cover through the officer of the department claiming privilege and that the statement of the head of the department would be considered conclusive unless for compelling reasons to the contrary and the privilege will be upheld. So, the safe working principle under section 123 is to produce the records in question in a sealed cover and reiterate the claim of privilege. While claiming privilege, the grounds on which the claim is based must be set out by the concerned Secretary to the Government or the head of department in an affidavit in Form No.I appended to this U.O.Note. The Court will generally accept the statements in the affidavit and uphold the privilege claimed.
6. A Government servant other than the head of a department who is summoned to produce an official document should first determine whether the document is in his custody, and he is in a position to produce it. In this connection. it may be stated that all official records are normally in the custody of the head of the department, and it is only under special circumstances that an official document can be said to be in the custody of an individual Government servant. If the document is not in the custody of the Government servant summoned, he should inform the court accordingly. If, under any special circumstances. the document is in the custody of the Government servant summoned, he should next determine whether the document is an unpublished official record relating to affairs of State and whether privilege under section 123 should be claimed in respect of it. If he is of the view that such privilege should be claimed or even if he is doubtful of the position, he should refer the matter to the head of the department, who will issue necessary instructions and will also furnish the affidavit in Form No.I. The Government servant who is to attend a Court as a witness with official documents should, where permission under section 123 has been withheld, be given an affidavit in Form No.I duly signed by the head of the department. He should produce it when he is called upon to give his evidence and should explain that he is not at liberty to produce the documents befor ·. the Court, or to give any evidence derived therefrom. He should, however, take with him in a sealed cover the papers which he has been summoned to produce.
IV. Legal position with regard to the claim of privilege under section 124 and the procedure to be followed in respect thereof: -
1. Courts have adopted a basic principle for deciding whether a particular document is a communication made in official confidence to a public officer or not, namely, whether the document produced, or the statement made was under the process of law or not. If the former is the case, it would be difficult to say that a document produced, or statement made under the process of law is a communication made in official confidence. If, on the other hand. a document is produced, or a statement is made in a confidential departmental enquiry not under the process of law but for the gathering of information by the department for guiding them in the future action, if any, they have to take, it would be a case of communication made in official confidence. The question whether a communication was made in official confidence is for the court to decide but the public officer concerned is the sole judge whether it should or should not be disclosed.
2. A Government servant who is summoned to produce an official communication which is made to him in official confidence should first determine whether the public interests would suffer by its disclosure. If he considers so, he should claim privilege under section 124 in Form No.II appended to this U.O.Note. In case of doubt, he should seek the advice of the head of the department. When he is not attending the court himself to give evidence, he shall have it sent to the court along with the documents. The person through whom the documents are sent to court should submit the affidavit to the court when called upon to produce the documents. He should take with him the documents which he has been called upon to produce but should not hand them over to the court unless the court directs him to do so. In such a case, privilege should be claimed under section 124 and the documents should not be shown to the opposite party, nor they should be marked as exhibits in any proceedings. If the document is not in his custody, he should inform the court accordingly.
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