Obul Reddi, J.:— The question that falls for determination is, when a citizen moves this Court under Article 226 of the Constitution for the issue of a Writ of Certiorari for quashing an order of the Government and when it issues a rule nisi calling for the records, whether the Government can withhold production of documents for the perusal of the Court, claiming privilege and whether this Court has overriding power in view of its extraordinary jurisdiction under Article 226.
2. It may be stated at the outset that the Government, on account of some practice said to be prevalent from the days of the Composite State of Madras, do not forward the records called for directly to the Court, but send them to the custody of the Law Officers, i, e., the Advocate-General or the Government Pleader, as the case may be, and not all the records that are sent to the Advocate-General or the Government Pleader are placed at the disposal of the Court for its scrutiny at the time when the Writ Petition comes up for hearing as more often than not the notes made or the opinions expressed by the Secretaries concerned or the Departmental heads or the Ministers relating to a particular subject-matter are withheld claiming privilege under Sections 123 and 124 of the Indian Evidence Act on the ground that disclosure of the contents of those documents would be injurious to public interest.
3. The petitioner in this case moved this Court under Article 226 of the Constitution for the issue of a Writ In the nature of a certiorari or mandamus or any other appropriate writ or direction to the respondents i.e, the Government of Andhra Pradesh, Food and Agriculture Department, represented by its Special Secretary; the Chief Conservator of Forests; the Conservator of Forests and the Divisional Forest Officer in Adilabad District. It may be necessary to state a few relevant facts as would appear from the affidavit of the petitioner in order that the question involved may be better appreciated. It Is the case of the petitioner that he Is a jagirdar entitled to the timber In the forest of the Jaglr of Pottial to an extent of ¾ths and the Government Is entitled to the remaining ¼th. Under the provisions of the Forest Act, 1355 F. (Act II of 1355 Fasli) where the Government has a share along with a jagirdar the management rests with the Government (Forest Department) and the other sharer the jagirdar, will be entitled to a pro rata share In the Income. The father of the petitioner It would appear, approached the erstwhile Government of Hyderabad on 19th Sherwar 1328 Fasli for taking necessary steps to evaluate the timber in the jagir forest so as to enable him to take possession of the entire forest area and to pay the Government what is due towards its ¼th share. According to him, on account of certain differences of opinion between the Chief Conservator of Forests and the Conservator of Forests as to the method of securing the ¾ths right of the jagirdar no settlement could be arrived at and the matter has been pending since 1338 Fasli. While matter stood thus, the Jagirs were abolished and taken over by the erstwhile State of Hyderabad. It is the grievance of the petitioner that when the jagirs were taken over, the income from the forest to which he was entitled could not be included for the purpose of calculating the commutation amount and therefore he made representations to the Government.
4. The Government recognised that he was the owner of the timber in question to the extent of ¾ths share and the timber to the extent of his share should be handed over to him. It would appear that the Government passed an order on 17-7-1952 directing payment of Rs. 25,254/- being the ¾ths of the value of the ‘Chobina’ (timber) to the petitioner. It is his complaint that although the Government admitted his rights and interest in the standing timber he had not been paid the value of that timber so far and therefore he made repeated representations to the Government.
5. The Government, according to him, on a perusal of the relevant files relating to his claims, passed G.O Ms. No. 131 dated 24th January, 1967 by and under which he was allowed to fell his ¾ths share of the timber in the jagir and the Conservator of Forests was requested to demarcate the ¾ths area and hand it over to him. Later certain conditions were imposed on the petitioner for handing over the area and for felling the timber; and it is his case that he satisfied all the conditions, executed a release deed deposited some amount towards security and to cover the allowances and salaries of the Range Officer who was put In charge of the forest area for felling the timber. The working period was to be two years from the date of handing over of the area to the forest officials.
6. While he had made all the necessary arrangements to remove the timber that was cut the Government pursuant to the agreement entered into by the petitioner complying with the conditions imposed by the Government issued a notice on 26th December, 1967 proposing to review its order made in G.O Ms. No. 131 dated 24th January, 1967. To this the petitioner submitted his representations on 27th January, 1968 contending that the Government had no jurisdiction to cancel or review the earlier G.Q Msr No. 131 and that pursuant to the agreement later entered into, he had incurred considerable expenditure for felling the timber in certain areas. The Government, on a consideration of the representations, by its G.O Ms. No. 836 dated 23rd April, 1968 cancelled G.O Ms. No. 131 and that led to the filing of this Writ Petition. The grounds urged by him are that the Government, by its order dated 23rd April, 1968 which cancelled G.O Ms. No. 131 has violated the fundamental rights guaranteed to him under Article 19 of the Constitution and also the obligations and duties that are cast on it under Article 299 of the Constitution and the impugned G.O dated 23rd April, 1968 is illegal.
7. The Government resisted the petition contending that the jagirs have been abolished by reason of the promulgation of the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli which came into force on 15th July, 1949 and the only right the jagirdar had in relation to the Jagir was for compensation in accordance with the provisions of the Hyderabad Jagirs (Commutation) Regulation, 1359 Fasli. They also contended that all his claims in respect of the jagir must be made before the Special Tribunal. It is the case of the Government, that even as early as 1951 and 1952 they rejected his claims in view of the fact that the jagirs were abolished and that it again reexamined the case of the petitioner in 1962 and issued G.O Ms. No. 880 Agriculture dated 23rd April, 1962 holding that as a result of the abolition of the jagirs, he had no enforceable right against the Government and that if any amount was ordered to be paid by the Minister of Forests in 1952, if was purely on compassionate grounds and that apart from being entitled to the commutation amount, he has no other rights in the jagir and he must approach the forums named under the Jagirs Abolition Regulation for redressal of his rights if any.
8. It is further averred by the Government that the petitioner on 18th November, 1966 presented an application before the Minister for Forests reiterating his claim to cut and carry timber from the ¾ths of the forest area, of the abolished jagir and the Government then issued G.O Ms. No. 131 gifting all the standing timber in the ¾ths extent of the forest claimed by him. It is now the case of the Government that the standing timber the subject of the gift Is moveable property of the value of Rs. Seven lakhs and as such it can be revoked at any time before possession passes and even otherwise, the gift is invalid and therefore they cancelled that G.O after issuing a notice stating the grounds on which they proposed to cancel the gilt made. It is also contended that G.O Ms. No. 131 dated 24th January, 1967 is incompetent, without jurisdiction and non est and that the Government had no power to review the order passed in 1951 and in G.O Ms. No. 880 dated 23rd April, 1962 rejecting the claims of the petitioner. Another ground on which the petition is resisted is that the order passed on 24th January, 1967 allowing property worth seven lakhs of rupees to the petitioner's hands did not conform to Rules 15 and 16 of the Andhra Pradesh Government Business Rules and therefore it is not a valid G.O
9. It is evident from the contentions of either side that the Government negatived the claims of the petitioner to any rights in the forest to cut and carry the timber as the jagirs were abolished and he was, therefore, asked to approach the forums provided under the jagirs Abolition Regulation for purpose of commutation. The Government, on a representation made by the petitioner in 1966 reviewed the entire case of the petitioner notwithstanding that there were no jagirs in existence and that no rights survived to the jagirdar after the abolition of the jagirs and made a gift of about seven lakhs of rupees worth of timber in the jagir and also imposed certain conditions in the matter of demarcating the area and felling the timber. While matters stood thus, the Government issued a notice and cancelled the G.O Ms. No. 131 on the ground that the gift itself is invalid as the Government had no jurisdiction to make such a gift and the said order was contrary to the Business Rules of the Government.
10. Since all the records were not before the Court pursuant to the Rule issued by us and all the records were not sent to the Advocate-General, we passed an order on 3rd November, 1969 directing the respondents to produce the subsequent file relating to the application of the petitioner culminating in G.O Ms. No. 131 dated 24th January, 1967 as In our opinion It was necessary for the determination of the question involved, namely, whether the impugned G.O Ms. No. 836 dated 23rd April, 1968 which superseded and cancelled G.O Ms. No. 131 dated 24th January, 1967 is valid and if so whether It takes away the rights and Interests accrued to the petitioner by reason of G.O Ms. No. 131. On that occasion when we gave directions for production of the records, the Advocate-General submitted that he may have to claim privilege by filing a separate application. Pursuant to the directions given by us for production of the records, a sealed cover has been produced before us which is said to contain according to the learned Advocate-General (1) the factual note made by the Secretary or the Deputy Secretary concerned to the Government, and (2) the minutes of the Minister.
11. In the affidavit of the Additional Chief Secretary filed in support of the application claiming privilege It is stated by him that he has been holding additional charge of the Department of Food and Agriculture in the absence on deputation of its Secretary, and that the file produced in a sealed cover claiming privilege contains confidential notes which it is not in the Interests of the public to disclose, and if a note file of this kind is placed before the court without claiming privilege, it will involve the curtailing of the candour and frankness with which the officers of the Government and the Hon'ble Ministers have to place their opinions on the files for the better administration of the affairs of the State.
12. He, however, swore that “the file consists only of a factual statement in an office note prepared in the Section of the Department which records the previous history of the case and reveals that from the Inception the petitioner had no manner of legal right to compensation or account, that no legal right in the petitioner was recognised or acknowledged by the Government, and that whatever was granted to him even prior to the issue of G.O Ms. No. 131 was granted purely ex gratia out of a sense of equity and justice and not as legal consideration for a recognised and acknowledged legal right of the petitioner.” The file also, according to the Additional Chief Secretary, contains the note file of the Minister concerned which preceded the G.O and that there was no acknowledgment or recognition of any legal right, but was intended merely to grant him some concession purely ex gratia and as a measure of equiry and justice. It is on these grounds that the Additional Chief Secretary sought privilege under Sections 123 and 124 of the Evidence Act.
13. We may now notice Sections 123 and 124 of the Evidence Act as well as Section 162 of the same Act.
123. “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.”
124. “No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public Interest would suffer by the disclosure.”
162. “A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
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 admissibibility.
If for such purpose it Is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence; and, if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the I.P.C (XLV of 1860).”
14. Section 123, as has been noticed, emphasises on the fact that “any evidence derived from unpublished official records relating to any affairs of State” shall not be permitted to be given except with the permission of the officer at the head of the department concerned and it is open to him either to give permission or to withhold such permission as he thinks fit. The Indian Evidence Act was codified repealing all rules of evidence other than those saved by the last part of Section 2. The necessity to codify the rules of evidence in this country arose as there was no complete or systematic rules or enactment on the subject. Within the Presidency Towns of Fort, St. George, Bombay and Calcutta, the Courts established under the Koyal Charter followed the English rules of Evidence. The Common and Statute Laws of England before 1726, were introduced in the Presidency Towns by the Charter of 1726. In the Mofussil that is outside the Presidency Towns there were no fixed rules of evidence. The mofussil Courts were mostly guided by a few rules regarding evidence and procedure contained In the old Regulations made between 1793–1834.
15. The rules of evidence in the Hindu and Mahomedan Laws were not applicable to the Courts in the mofussil and the administration of the law of evidence” was anything but satisfactory. Several attempts were made to improve the rules of the law of Evidence and ultimately on account of the unsatisfactory state of the law of evidence, Sir James Fita-James Stephen prepared a new Bill which was finally, passed as the Evidence Act of 1872 (Act I of 1872). The Act is based entirely on the English law of Evidence? In the preamble of the Act which lays down the statement of objects and reasons, we find that the Evidnece Act is enacted as if is expedient to consolidate, define and amend the law of Evidence, Section 1 of the Act which is extended to the whole of India applies to all judicial proceedings in or before any Court. So far as it is material for our purpose, Section 1 reads:—
“It extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court………………but not to affidavits presented to any Court.
……………………”
16. It is by reason of the language of Section 1 that the Advocate-General contends that whether they are proceedings in a civil action or proceedings under Article 226 of the Constitution, they are all “judicial proceedings” under Sec. 1 and therefore Sections 123 and 124 are applicable to writ proceedings. When a citizen prays for a writ of certiorari, he asks for the quashing of an order which he challenges before the Court. Atkin, L.J in R. v. Electricity Commrs., (1924) 1 KB 171 at p, 204 observed:— —
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the Kings Bench Division, exercised in these writs.”
17. Lord Hewart, C.J in R. v. Legislative Committee of Church Assembly, (1928) 1 KB 411 observed:
“In order that a body may satisfy the required test It Is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super added to that characteristic the further characteristic that the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present.”
18. In other words, where there Is a duty cast upon the State or a legally constituted authority to determine questions affecting the rights of the subjects, it has a duty to act judicially and when it acts in excess of the power or authority conferred upon it, it will be subject to the controlling jurisdiction under Article 226 of the Constitution. When a party moves this Court under Article 226 and if a prima facie case is made out for the issue of a writ of certiorari, a Rule will issue calling for the records relating or pertaining to the impugned order of the authority. What the citizen seeks under Article 226(1) is a judicial remedy and the High Courts, throughout the territories in relation to which they exercise jurisdiction, have power to issue to any person or authority, including In appropriate cases any Government, within those territories, directions, orders or writs, Including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the Enforcement of any of the rights conferred by Part III and for any other purpose.
19. When this Court calls for records by issue of a Rule, it is not the same thing as permitting any person to give any evidence derived from unpublished official records relating to any “affairs of State”, What all is directed by the Issue of a Rule is to call for the records for the scrutiny of the Court and not for the purpose of permitting any witness to give evidence derived from the official records. Therefore, there is an essential distinction between a civil action and a proceeding under Article 226, though both are judicial proceedings, for, in a civil action within the scope of Section 9 of the CPC the result is dependent upon the evidnece, oral and documentary, tendered in the Court by the witnesses. The normal practice in writ proceedings is to decide that question whether a party is entitled to the relief prayed for on the strength of the affidavits and where certain facts are disputed by the Government or a legal authority the records called for are looked Into by the Court for purposes of exercising its jurisdiction.
20. Sections 123 and 124 of the Evidence Act were enacted long before anybody could have possibly conceived of a provision like Article 226 or a Constitution like ours in which the fundamental rights of the citizens are enshrined in Part III. The basis or the foundation of the claim of privilege under Section 123 Is whether the evidence sought to be given is “derived from unpublished official records relating to any affairs of the State” and that condition must be present before any privilege can be claimed. Under Section 162, when a public servant is summoned to produce the document in respect of which he wishes to claim privilege, he has first to produce the document summoned and then raise the objection claiming privilege by filing an affidavit in that behalf and If the Court comes to the conclusion that the document does not relate to any affairs of the State the claim must be negatived and the document must be received in evidence, Sections 123, 124 and 162 have to be read together while deciding the question of privilege relating to evidence of unpublished official records relating to any affairs of the State or confidential communications to public officers.
21. While Issuing a rule nisi there is no question of any witness being summoned to produce a document which is in his power and any objection being taken at the time when it is produced by the witness. The question of examining Witnesses in a writ proceeding as in the case of a civil action does not arise. All that the Court does, when it issues the rule-nisi, is to call for the records and not to ask any witness to give any evidence as to the contents of the unpublished official records. The privilege claimed under Section 123 is based on public policy or as being detrimental to public Interest or service. Even in a civil action as distinguished from an action under Article 226, the questions that usually arise are whether the document in respect of which privilege is claimed is really a document relating to the “affairs of State” and whether the disclosure of its contents would jeopardise the public interest. In other words, the Interests of the State prevail over the Interests of an individual if, by producing the documents in respect of which privilege is claimed, it would cause injury to the interests of the State or its services.
22. So far as Section 162 Is concerned, there is an absolute prohibition of inspection of a document if it pertains to or refers to matters of State and the question of recording other collateral evidence, when such an objection is raised, does not arise, as, when the document pertaining to affairs of State cannot be inspected, it cannot be proved by any indirect way of letting in other evidence to speak to the very nature of the contents.
23. Therefore, In the first instance, the Court will have to decide whether the nature of the document in respect of which privilege is claimed, Is such having regard to what, is contained In the affidavit of the party from whose possession the records are called for. Cases may arise where an official In order to protect or cover up his own illegal actions or the Illegal orders made by Ms Department or for other reasons which might involve the State in some liability, make an assertion that the document contains matters of State. In such cases, the Court must, be satisfied from the narration of facts in the affidavit that the matter referred to in the document or documents are really concerned with the affairs of the State and It would not be in the Interests of the State without injury to It or Its services, to disclose the contention of the documents. Care has, however, to be taken to see that interests other than that of the public do not masquerade in the grab of public interest and take undue advantage of the provisions of Section 123(see State Of Punjab v. Sodhi Sukhdev Singh , AIR 1961 SC 493 at p. 501.)
24. The question of Court's jurisdiction to order disclosure of documents for which the State claims privilege has been the subject of various English and Indian decisions and it may be useful to refer to some of the important English and Indian decisions to decide the question as to what extent the State can claim privilege when this Court, In exercise of its powers under Article 226 of the Constitution calls for records.
25. One of the earliest cases is Smith v. The East India Co., (1841) 41 ER (Reprint) 550 at p. 552 : (1841) 1 Ph. 50 at p. 55). Privilege was claimed on the ground that certain correspondence between the Board of Directors of the East India Company and the Commissioners for the Affairs of India were confidential in nature. Lord Lyndhurst, the Lord Chancellor, was of the view that public policy required having regard to the Act of Parliament and what it intended that the most unreserved communications should take place between the East India Co., and the Board of Control, that it should be subject to no restraints or limitations; but it is also quite obvious that if, at the suit of a particular individual, those communications should be subjected to be produced in a Court of Justice, the effect of that would be to restrain the freedom of the communications and to render them more cautious, guarded and reserved. If was, therefore, held that the communications in that case came within the class of officers’ communications which are privileged, inasmuch as they cannot be subjected to production without infringing the policy of the Act of Parliament and without injury to the public interests.
26. The next important case Is Beatson v. Skene, (1843-60) All ER Rep 882 : (1860) 5 H.N 838 at pp. 852, 853, 884, 885) where It was held that the court has no power to compel a witness to produce documents connected with affairs of the State if their production would be injurious to the public service. That was a case where an action for slander was brought by the plaintiff, who had been a General commanding an irregular corps of cavalry during the Crimean war, against the defendant for certain words uttered by him to one General Shirley in February, 1856. In that case, the Secretary of State for war had been subpoenaed to produce certain letters written by the plaintiff to him and also the minutes of a Court of inquiry as to General Shirley's conduct in writing the letter to General Vivian. The Secretary of State, however, attended the trial, but objected to the production of thee document on the ground that his doing so would be injurious to the public service. Pollock, C.B on the question of privilege observed:
“Under these circumstances we are all of opinion that the non-production of these documents furnished no ground for a new trial…………but Inasmuch as my brother Bramwell did not at the trial take this view of the case, but declined to compel the production of the evidence, on the ground that the Secretary for war stated that the production of the documents would be injurious to the public service, we think it due to my brother Bramwell to express the entire concurrence of a majority of the Court in that ruling of his. We are all of opinion that it cannot be laid down that all public documents, including treaties with foreign powers, and all the correspondence that may precede or accompany them, and all communications to the heads of departments, are to be produced and made public whenever a suitor in a Court of Justice thinks that his case requires such production. It is manifest (we think) that there must be a limit to the duty or the power of compelling the production of papers which are connected with acts of State. As an instance, we would put the case of a British minister at a foreign Court writing in that capacity a letter to the Secretary of State for foreign affairs in this Country, containing matter injurious to the reputation of a foreigner or a British subject. Can it be contended that the person referred to would have a right to compel the production of the letter in order to take the opinion of a jury whether the injurious matter was written maliciously or not.”
27. It is obvious from what has been stated by Pollock, C.B, that there are certain public documents of the nature referred to by him which cannot be produced and made public where a suitor requires their production without causing injury to the affairs of the State. It was further observed by Pollock, C.B, that the Judge would be unable to determine it without ascertaining what the document was and why the publication of it would be injurious to the public-service and an enquiry which cannot take place in private and which taking place in public may do all the mischief which it is proposed to guard against.
28. The facts in Beatson's case, (1843-60) All ER Rep 882 : (1860) 5 H & N 838) are totally different as it was an action for slander and the Secretary of State for War who was summoned took exception to the production of the document on the ground that it would be injurious to the public service. Further, that was a case where there was other evidence inasmuch as the defendant himself had admitted that he had spoken the words as was stated by the witnesses at the trial. Therefore, the facts of that case are distinguishable; as, in this case, the production of the documents in question are not from the War Office, nor were they called for, for the purpose of using them as evidence. The stage of using them as evidence has not at all arisen in this case.
29. The case of Hennessy v. Wright, ((1888) 21 QBD 509) may be referred to in this connection. That was a case where an action for libel was brought by a Governor of a Grown colony against a defendant for an alleged statement made by the defendant in a newspaper. The defendant asked for discovery of the document which the Governor had sent to the Secretary of State for the Colonies. The plaintiff objected to the production of the document on the ground that the document summoned was acquired and held by him in his capacity of Her Majesty's Governor and subject to the directions of Her Majesty's Secretary of State for the Colonies, and contains various copies of dispatches, reports, and other communications which passed either between the Secretary of State for the Colonies and himself as the Governor, or between the Royal Commissioner appointed by her Majesty and himself in his capacity as the Governor; and therefore, they cannot be produced without injury to the interest of the State and the public service. He also pleaded that in consequence of the instructions and of the rules and regulations of Her Majesty's Colonial Service he was unable to produce the said documents. Having regard to the facts of that case, it was held by Wills, J. that the documents in question were privileged from discovery. As would appear from the facts, the correspondence undoubtedly related to the affairs of the State and therefore the claim for privilege was upheld.
30. Another case which may be noticed is Attorney General v. Newcastle Upontyne Corporation, ((1897) 2 QBD 384). Rugby, L.J, who concurred with Lopes, L.J at page 395:
“On the question of hardship, and so on, all that the Court has to do is to Investigate the state of the law; and if for some reason known to the Crown it had been against the public interest in this case to produce documents, even then I should say, I cannot help it, I have got to administer the law; the law is that the Crown is entitled to full discovery, and that the subject as against the Crown, is not. That is a prerogative of the Crown part of the law of England, and we must administer it as we find it. I may say that in these days the prerogative of the Crown Is about equivalent to the rights of the public, and therefore there is nothing so very hard in it; but in this case, as we have heard, no attempt has been made to depart from the practice that to my knowledge has existed for many years past; and my experience goes a long way back, though my own tenure of office as a law officer was only a short one. Now I know that there has always been the utmost care to give to a defendant that discovery which the Crown would have been compelled to give if in the position of a subject, unless there be some plain overruling principle of public interest concerned which cannot be disregarded. Then there is no hardship.”
31. What follows from the view expressed by the Law Lord is that unless there is some overriding consideration of public interest, the production of the documents cannot be withheld from evidence.
32. Another case is Asiatic Petroleum Co. Ltd. v. Anglo-Persian Oil Co. Ltd., ((1916) 1 KB 822). In that case it was held that the protection of documents from discovery upon the broad ground of State policy and public convenience is not limited to public and that the foundation of the rule Is that the information cannot be disclosed without injury to the public interest, and not that the documents are confidential or official, which alone is no reason for their non-production. In that case, a copy of a letter written by the defendants, who owned a pipe line from the Persian Oil fields to their refinery in the Persian Gulf, to their agents in Persia containing confidential information from the Board of Admiralty, with whom the defendants had a contract for the supply of fuel oil for His Majesty's ships as to the progress of the campaign in Persia and as to the intentions of the authorities in reference thereto, was summoned and the Court, having regard to the fact that the contract was with the Board of Admiralty for supply of oil to His Majesty's ships held that the letter was a privileged document and the production of that document would be detrimental to the interests of the State. From the facts of that case, it would appear that the production of such a let ter would be injurious to the interests of the State. Whether the production in evidence of a particular document would be detrimental to the interests of the State or not, has to be judged from the nature of the action brought, the nature and character of the document and its effect on the public service or on the affairs of the State.
33. Another of quoted case is Robinson v. State of South Australia, 1931 AC 704. That case was heard by the Privy Council on appeal from the Supreme Court of South Australia. The South Australian Rules of Court provided that where privilege is claimed for any document, it shall be lawful for the Court to inspect it for the purpose of deciding as to the validity of the claim. In that case, the Supreme Court directed discovery of certain specified classes of documents. Objection was taken in the affidavit made by a Civil servant that the documents were State documents consisting of communications between officers administering the department in the course of official duties and that the disclosure would be contrary to the Interests of the State and of the Public. The Judicial Committee held that the “minute” was inadequate to support the claim of privilege, as it was too vague in the circumstances of the case, and was not a statement on oath showing that the Minister had himself considered each of the documents, or indicating the nature of the suggested injury to the interests of the public; and that the Supreme Court should exercise its power under Order XXXI, Rule 14, Sub-rule (2), to inspect the documents that course being less likely to cause delay than an order for a further and better affidavit of documents.
34. This decision of the Privy Council recognised the power of the Court to examine the claim of privilege as made out in the affidavit and see whether the circumstances mentioned therein justify the ground usually taken by the State that production in evidence of the documents summoned would injure the interests of the public or the service. The ultimate authority in such cases, as has been held by the Privy Council, would be the Court which has to inspect the documents and see whether the objection taken Is really well-founded. The Privy Council no doubt did not finally decide the matter of privilege but remitted the matter to the Supreme Court of South Australia with a direction that It Is a proper case where the Court should exercise its power for inspecting the documents in order to see whether the privilege claimed is justified.
35. Dealing with Robinson's case, ((1931) AC 704) Gajendragadkar, J. (as he then was) in Sukhdev Singh's case, AIR 1961 SC 493 observed at page 508:
“It only remains to add that so far as Australia Is concerned it does not appear that there Is any statutory provision corresponding to Section 162 of the Act, and so, even after this judgment was pronounced by the Privy Council, Courts in India have not given effect to the operative part of the order in regard to the inspection of the document by Courts having regard to the statutory prohibition Imposed by Section 162 In that behalf.”
36. The principle laid down In Robinson's case, ((1931) AC 704) did not find acceptance with Viscount Simon, L.C who pronounced the judgment of the House of Lords In Duncan v. Cammell Laird and Co. Ltd., (1942) AC 624). In the words of Viscount Simon (at page 632):
“There is thus express authority In this House that a Court of Law ought to uphold an objection, taken by a public department when called on to produce documents in a suit between private citizens that, on grounds of public policy, the documents should not be produced. It is important to note what are the circumstances in which this specific objection may arise. When the Crown (which for this purpose must be taken to include a Government department, or a Minister of the Crown in his official capacity) is a party to a suit, it cannot be required to give discovery of documents at all. No special ground of objection is needed. The common law principle is well established.”
37. Proceeding further, the Lord Chancellor observed at page 635:
“It will be observed that the objection is sometimes based upon the view that the public interest requires a particular class of communications with, or within, a public department to be protected from production on the ground that the candour and completeness of such communications might be prejudiced if they were ever liable to be disclosed in subsequent litigation rather than on the contents of the particular document itself. Several cases have been decided on this ground protecting from production documents in the files of the East India Company held in its public capacity as responsible for the Government of India.”
38. Again at page 641 the Lord Chancellor observed:
“The practice in Scotland, as In England, may have varied, but the approved practice in both countries is to treat a ministerial objection taken in proper form as conclusive. The reasons given by Pollock, C.B, by Lord Dunedin and by Lord Kinner cannot be gainsaid. As Lord Parker said in another connection: “Those who are responsible for the national security must be the sole iudges of what the national security requires: “The Zamora, (1916) 2 AC 77, at p. 107 : (AIR 1917 PC 225 at p. 237) In (1931) AC 704 the Judicial Committee reversed the decision of the Supreme Court of South Australia, which had refused to order the Inspection of documents which the minister in charge of the department objected to produce on grounds of public policy, and remitted the case to the Supreme Court with the direction that it was one proper for the exercise of the Court's power of Inspecting documents to determine whether their production would be prejudicial to the public welfare, I cannot agree with this view. Their Lordships’ conclusion was partly based on their interpretation of a rule of Court which was in the same terms as Order XXXI, Rule 19-A sub-rule (2) of the rules of the English Supreme Court.”
39. The decision in Duncan's case, ((1942) AC 624), it may be pointed out, has since become obsolete as it has not been followed by the House of Lords in Conway y. Bimmer, (1968) 1 All ER 874. The house of Lords approved. Robinson's case, (1931) AC 704 and Glasgow Corporation v. Central Land Board, (1956) SC (HL) 1 at p. 11 and disapproved (1841) 41 ER 550 : (1841) 1 Ph 50 at p. 55 and (1843-60) All ER 882 : (1860) 5 H & N 838.
40. We may therefore notice what Viscount Simon said in (1956) SC (HL) 1 at p. 11:
“In the course of the present appeal we have had the advantage of an exhaustive examination of the relevant law from the earliest times, and it has left me In no doubt that there always has been and Is now In the law of Scotland an Inherent power of the Court to override the Crown's objection to produce documents on the ground that it would injure the public interest to do so.”
41. Dealing with Glasgow Corporation case, (1956) SC (HL) 1 at p. 11 and Duncan's case, (1942) AC 624 Gajendragadkar, J. (as he then was) in Sukhdev singh's case, AIR 1961 SC 493 observed at pp. 509 and 510 (para 38):
“In the decision In Duncan's case, 1942 AC 624 Viscount Simon has assumed that the law as laid down by the said decision was equally applicable to Scotland. This assumption has been seriously challenged by another decision of the House of Lords in 1956 SLT 41, In that case Viscount Simon has referred to a large number of earlier decisions dealing with the relevant law as it is administered In Scotland and commented on the decision In Duncan's case, 1942 AC 624 by saying that the observations in the said case, In so far as they relate to the law of Scotland must be regarded as obiter dicta.”
42. After quoting the observations which we have extracted supra, His Lordship then proceeded to say at p. 510:
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“Then, In his characteristic style Lord Radcliffee has observed “I should think it a very great pity Indeed if a power of this kind, a valuable power, came to be regarded as a mere ghost of theory having no practical substance, and the Courts abdicated by disuse In the twentieth century a right of control which their predecessors In the earlier centuries have been Insistent to assert”. The learned law Lord has also made some strong comment on the formula which has been evolved by Viscount Simon In Duncan's case, 1942 AC 624 and had stated that the phrase “necessary for the proper functioning of the public service is a familiar one, and I have a misgiving that It may become all too familiar in the future.” The result of this decision appears to be that in Scotland where the common law doctrine of the Crown Privilege Is not strictly enforced, a privilege can be claimed by the Minister on grounds set forth by him in his affidavit. The certificate would be treated as very strong presumptive evidence of the claim made but the Court would nevertheless have inherent power to override the said certificate. It is unnecessary for us to consider the true nature and effect of this power because in India in this parti cular matter we are governed by the provisions of Section 162 which confer power on Courts to determine the validity of the objection raised under Section 123, and so there would be no occasion or justification to exercise any inherent power.”
43. Ultimately, this is how their Lordships summed up the result of the decisions of the English Courts at pp. 510 and 511 (para 39):
“The result of these decisions Is that In England a valid certificate issued by the Minister In support of the privilege claimed Is conclusive; while in Scotland, though it would normally be treated as such, Courts reserve to themselves an inherent right to revise or review the certificate In a proper case.”
44. The following opinion expressed by Lord Reid in (1968) 1 All ER 874 may now be noticed as it lays down the law In that country in regard to the Crown's privilege to withhold disclosure of documents from evidence in Courts,
“The court has jurisdiction to orders disclosure of the documents for which Crown privilege is claimed as It Is the right and the duty of the Court to hold the balance between the interests of the public In ensuring the proper administration of justice and the public interest in withholding of documents whose disclosure would be contrary to the national interest; accordingly, a minister's certificate that disclosure of a class of documents (or the contents of particular documents) would be injurious to the public interest is not conclusive against disclosure, particularly when the privilege Is claimed for routine documents within a class of documents, though in a few instances (………) the nature of the class of documents may suffice to resist application for disclosure.”
45. We may also notice the facts of that case. That was a case where the appellant before the House of Lords, soon after his acquittal In a case of theft, was dismissed from the police force as he was unlikely to become an efficient police officer. He sued the Superintendent for malicious prosecution. The superintendent had earlier in the course of the investigation of the theft case, sent certain adverse reports. The reports of the Superintendent of Police against the appellant were sought to be inspected when privilege was taken by the Home Secretary. It was, therefore, held that it was most improbable that harm would be done by the disclosure of the reports on the appellant. The proper test, according to Lord Reid, is
“Whether, when privilege is claimed for a document as being one of a class of routine documents which it will be injurious to the public interest to disclose, is whether the withholding of the document is really necessary for the proper functioning of the public service.”
46. In that view, their Lordships overruled the privilege claimed.
47. The trend on the development of law in England, as may be seen from the latest case in (1968) 1 All ER 874 on the point is that Courts have the inherent power to inspect the documents and override the certificate of a head of a department or a Minister concerned and to see whether the production of the document would be injurious to public interest. The latest view of the House of Lords in Conway's case, (1968) 1 All ER 874 accords with the view expressed by the Privy Council in Robinson's case, (1931) AC 704 that Judges ought to have some reserved authority and not to be left powerless whenever the Government chooses to claim privilege.
48. So far as the position of law in India is concerned, it has been explained by Gajendragadkar, J. (as he then was) (per majority) in Sukhdev Singh's case, AIR 1961 SC 493 which was subsequently relied upon in Amar chand Butail v. Union of India, AIR 1964 SC 1658. It is, therefore, necessary to see the ratio rate of the decision in the leading ease of Sukhdev Singh, AIR 1961 SC 493.
49. It is recognised that the power conferred upon the Indian Courts under Section 162 of the Evidence Act is wider than the power under the Crown Proceedings Act, passed in British Parliament in 1947.
50. The Advocate-General in support of his argument that the documents in question cannot be looked into and the privilege claimed is absolute, relied upon the following passage in the Judgment of Gajendragadkar, J. occurring in para 15 (page 502) in Sukhdev Singh's case, AIR 1961 SC 493:
“There may be another class of documents, which could claim the said privilege not by reason of their contents as such but by reason of the fact that if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy.”
51. From this it is sought to be argued that the notes and minutes made on the files in this case come within the privileged class, and therefore, exempt from production and that the privilege claimed by the Additional Chief Secretary cannot be questioned in view of Sec. 123. There is nothing in the affidavit of the Additional Chief Secretary to suggest that the notes made, relate to expression of an opinion in the determination and execution of public policies. It is with reference to the opinion expressed relating to public policies that his Lordship observed that notes and minutes made by respective officers on relevant files would become privileged. There is nothing to suggest from what has been stated by the Supreme Court that notes and minutes made by officers, other than those pertaining to determination and execution of public policies, would come within the privileged class of documents.
52. As to what would constitute “affairs of State” the learned judge observed that “whether a particular document or class of documents answered that description must be determined in each case on the relevant facts and circumstances adduced before the Court.”
53. Dealing with the scope of Sections 123 and 162 of the Evidence Act it was pointed out by His Lordship at p. 504 (para 22):—
“…………the Court can take other evidence in lieu of inspection of document in dealing with a privilege claimed or an objection raised even under Section 123, If the privileged document cannot be inspected the Court may well take other collateral evidence to determine its character or class. In other words, the jurisdiction conferred on the Court to deal with the validity of an objection as to the production of a document conferred by the first clause is not illusory or nominal; it has to be exercised in cases of objections raised under Section 123 also by calling for evidence permissible in that behalf.”
54. The ultimate conclusion reached by the learned Judge, on a reading of Sections 123 and 162 together is stated at para 25 (page 505) = (AIR 1961 SC 493):
“……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 question as to whether the evidence relates to an affair of State under Section 123 or not.”
55. The case with which their Lordships of the Supreme Court were dealing was one where the plaintiff filed a suit against the State of Punjab and claimed declaration that his removal from service was illegal, void and prayed for recovery of Rs. 62,700-6-0 as arrears of his salary. That claim was disputed by the State of Punjab and issues were framed on the pleadings. Meanwhile, the plaintiff had filed an application under Order 14, Rule 4 as well as O. 11, R. 14 of the CPC for the production of documents mentioned in the list annexed to the application. The trial court issued notice for the production of the said documents. In reply, the Chief Secretary of the State of Punjab in an affidavit claimed privilege under Section 123 in respect of certain documents and gave reasons for claiming privilege. The statements made in the affidavit were challenged by the plaintiff and the claim was upheld. Then the plaintiff filed a revision in the High Court of Punjab under Section 115 of the CPC and under Article 226 of the Constitution; and the High Court reversed the order of the trial Court In respect of some documents and directed their production.
It is against that order that the State of Punjab applied to the High Court for a certificate under Article 133 to grant leave to appeal to the Supreme Court, but it was dismissed. The State of Punjab thereafter moved the Supreme Court and applied for and obtained special leave under Article 136 to challenge the validity of the High Court's order in the revision petition. So, that was a case where in a civil action evidence was sought to be adduced by the plaintiff by summoning certain documents from the Government The words “evidence derived from unpublished official records relating to any affairs of State” occurring in Section 123 clearly demonstrate the fact that it is only in cases where documentary evidence of unpublished official records of the affairs of the State, Is sought to be adduced that the person who seeks to adduce such evidence shall not be permitted unless permission in that behalf is granted by the officer or the head of the department The privilege under Section 123, in our opinion, will not hold good when no evidence is sought to be given from the unpublished official records as all that the Court does while issuing a Rule Nisi, is to call for records. The question of using them as evidence does not arise, for no Government Officer has been summoned to prove the documents nor is any witness permitted to give evidence derived from the official records.
56. The other case AIR 1964 SC 1658 is also one which arose out of a suit filed for recovery of certain amounts payable by the Himachal Pradesh Administration (2nd respondent therein) to the plaintiff in respect of supply of goods by him to the labourers employed by the State. The documents summoned in that case were intended to be used as evidence by the plaintiff in support of his claim. The case on hand is not one where a suitor has taken out subpoena for production of the documents; but one where the Court, in exercise of its jurisdiction under Article 226, calls for the records for scrutiny and perusal by it. It cannot, therfeore, be said that the Court is permitting anybody to give any evidence derived from unpublished official records relating to any “affairs of State”. Calling for records is not the same thing as permitting to give any evidence derived from unpublished official records. Further, the occasion for claiming privilege under Section 123 arises only where a party seeks to give any evidence derived from unpublished official records relating to “affairs of State”. No such occasion ordinarily arises in writ proceedings unless the Court, in the interests of justice, summons anybody to give evidence and it is the constitutional right of the Court, where a citizen prays for the issue of a writ of certiorari, to direct production of the records. Further even when a privilege is claimed under Section 123, as pointed out by Gajendragadkar, C.J in Amar Chand Butails case, AIR 1964 SC 1658, that:
“Heads of Department should act with scrupulous care In exercising their right tinder Section 123 and should never claim privilege only, or even mainly, on the ground that the disclosure of the document In question may defeat the defence raised by the State. Considerations which are relevant In claiming privilege on the ground that the affairs of State may be prejudiced by disclosure must always be distinguished from considerations of expediency which may persuade the head of the department to raise a plea of privilege on the ground that if the document is produced, the document will defeat the defence made by the State.”
57. It Is thus evident, that even assuming that S. 123 is attracted, since writ proceedings are also judicial proceedings, there is no such thing as absolute privilege to every State document; and the words “records relating to alfairs of State” do not take in every unpublished document concerning the business of the State. The records relating to affairs of State must be such the disclosure of which would be injurious to public interest.
58. The scope of Sections 123, 124 and 162 of the Evidence Act came to be considered in Bhalchandra v. Chan basappa, AIR 1939 Bom 237 at p. 246 by a Division Bench of the Bombay High Court consisting of Wassoodew and Sen, JJ. and it has been explained by Wassoodew, J, (though in a separate but concurring Judgment) in the following words:—
“Section 162 makes it obligatory on the witness to produce the documents called upon by the Court, and he has no right to determine whether the document shall be produced. At the time he produces it according to the exigency of the summons, it is for the witness to claim the privilege. It is the duty of the Court then to determine whether the document shall be admitted and exhibited. This section as well as S. 123 protects the discovery of documents referring to matters of State. That is based on the general rules that no person can be compelled to give evidence of matters which are State Secrets including communications between public officers in the discharge of their public duties. The Section makes no difference between a private witness called upon to produce private documents and a public officer summoned to produce public record. In that respect, Section 124 is more particular and lays down the rule of public policy, and the limits within which the production can be withheld, that is the character and quality of the privilege. The question that arises under Sec. 124 is whether the communication in question was made to the public officer in official confidence.”
59. Dealing with the question of privilege, Washoodew, J. observed:
“It is essential to bear in mind the cardinal fact that privilege does not attach to a document merely because it is a State or official document. The foundation of the claim rests on the consequences of disclosure of a communication made in official confidence whose publication the officer to whom it is made considers contrary to the public interests. A communication in official confidence requiring protection under Section 124 must be such as to necessarily involve the wilful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust Is reposed, under an express or implied premise of secrecy The test must be whether the disclosure would result In betrayal of the person confidingly the publication of the communication having regard to the nature thereof. The prerogative right therefore has to be distinguished from the evidence showing how it arises In a particular case. Section 162 merely lays down broad principles of State policy and protects State and official documents from disclosure in Courts.”
60. The observations of Chagla, C.J on behalf of the Division Bench of the Bombay High Court in Dinbai v. Dominion of India, AIR 1951 Bom 72, may be quoted with advantage:
“………The ultimate adjudication is always by the Court…………
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The scales are always weighed against the subject who fights against Government and Government should be loath to throw against him more weight In the scales by refusing disclosure of documents which are relevant to the Issues in the suit. Government should always bear hi mind that it is incumbent upon it to see that there is a fair trial between itself and the subject who is fighting the Government. It should also realise that refusal to disclose material documents makes it difficult or impossible for the subject to make good his allegation against the Government, Government should also bear in mind that the loyalty of its officers to the cause of Government should not prevail to the extent of injustice being done to the subject. Even if disclosure of a document may result the subject succeeding or in getting heavy damages or compensation against the Government that is no reason why a material document should not be disclosed. The only loyalty which the section contemplates and which must undoubtedly prevail over private interests is the loyalty to the State in the sense that public interests must prevail over private interests and the disclosure of a particular document will damnify public Interests.”
61. In the present case, so far as the affidavit of the Additional Chief Secretary Is concerned, except to say that the file contains confidential notes which it is not in the interest of the better administration of the State, there is nothing to suggest how the files, if disclosed, would injure or affect the public interest. All that is stated Is that “It would Involve the curtailing of the candour and frankness with which the officers of the Government and the Hon'ble Ministers had to place their opinions on the files for the better administration of the State.” This does not certainly amount to saying that the documents pertain to affairs of State, disclosure of which would affect the public interest or the services.
62. The foundation for the privilege Is injury to public interest. The expression “affairs of State” is of very wide amplitude and it willl cover every business activity of the State so as to take in even day to day routine administration as also highly confidential matters pertaining to Defence, foreign affairs, Cabinet minutes or what advice was tendered by the Ministers to the Governor specified in Article 163(3), Secret service and the like. Therefore, the activities of a Democratic Welfare State extend to so many fields and all such activities can be brought within the broad meaning of the compendious expression “affairs of State”. It only shows that any document relating to any affairs of State cannot partake the character of a privileged document, the disclosure of which would not be, without possible Injury, to the public interest
63. As has been stated by Lord Reid in Conway's case, (1968) 1 All ER 874 at p. 880.
“It is universally recognised that here there are two kinds of public interest which may clash. There is the public Interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is 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.”
64. Proceeding further, Lord Reid observed at p. 888.
“I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that cabinet minutes and the like ought not to be disclosed until such tune as they are only of historical interest? but I do not think that many people would give as the reason that premature disclosure would prevent candour in the cabinet. To my mind the most Important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of Government is different enough as it is, and no government could contemplate with equanimity the Inner workings of the Government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. That must In my view also apply to all documents concerned with policy making within departments including it may be minutes and the like by quite junior officials and correspondence with outside bodies. Further, it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition; but there seems to me to be a wide difference between such documents and routine reports. There may, be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon In Duncan's case, (1942) AC 624, whether the withholding of a document because it belongs to a particular class Is really “necessary for the proper functioning of the public service,”
65. We may also notice the observations of Lord Pearce at p. 909:—
“Any department quite naturally and reasonably wishes, as any private business or any semi-State board must also wish, that its documents or correspondence should never be seen by any outside eye. If It can obtain this result by putting forward a general vague claim for protection on the ground of candour It can hardly be blamed for doing so. “It is not surprising” it has been said (Professor Wade, Administrative Law (2nd Edition) at p. 285) “that the Crown, having been given a blank cheque, yielded to the temptation to overdraw.”
66. The aforesaid observations would only show that it is not every document relating to “affairs of State” which would fall within the class of privileged document, the disclosure of which would result in possible injury to the public interest or affect the candour of expression of a public servant. The temptation to overdraw, having been given a blank cheque, will always be there and it is the duty of the Court in order to hold the scales even, where a citizen is pitted against the State, to determine the question whether there is any overruling principle of public interest to allow the privilege claimed and permit the non-production of the documents. As has already been pointed out by us, there is nothing in the affidavit to show that public interests would suffer by reason of the filesbeing made available for the scrutiny of the Court, nor are we satisfied from the affidavit that it will affect the freedom and candour of expression of opinion In the determination and execution of public policies. From the facts stated In the affidavit of the Additional Chief Secretary, there Is nothing to suggest that determination or execution of any public policy is involved in this petition.
67. In the words of Blackstone, (Blackstone Commentaries on the Laws of England, Vol,? 4th Edition (1876) page 44), the writ jurisdiction Is “very high and transcendent.” The supervisory jurisdiction exercised by this Court under Article 226 of the Constitution is of very wide amplitude. The writ jurisdiction conferred upon the High Court entitles the Court to examine the decisions of all the subordinate Tribunals or bodies or officers to see whether they have acted illegally or without jurisdiction or in excess of it or in violation of the principles of natural justice or have refused to exercise jurisdiction vested in them or there is an error apparent on the face of the record and whether “such act, omission, error or excess has resulted in manifest injustice.” The powers are, no doubt, discretionary and this Court should not allow itself to turn into a Court of Appeal or Revision to set-right mere errors of law, which do not occasion injustice in a general sense or affect the fundamental rights of a citizen. In the words of Lord Sumner in the Nat Bell case, (1922) 2 AC 128 at p. 156 : (1922) All ER 335), supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.
68. It is needless to emphasise that the extraordinary powers are indeed “very high and transcendent” and the writ should run so as to reach injustice wherever it is found and that can be achieved only when the records called for, are submitted to the Court for its scrutiny and perusal.
69. If the documents relate to affairs pertaining to Defence. Diplomatic relations. Foreign affairs, Cabinet minutes and what advice was tendered by the Council of Ministers to the Governor under Article 163(3), Secret service. Intelligence Service or Policy-making decisions and such other like matters, the concerned Secretary to the Government, or a Head of the Department or a Minister as the case may be, can file an affidavit stating the nature of the affairs of the State and expressing his opinion that it will not be in the interests of the State or in public interest or in the interest of the Services, without possible injury, to produce such documents. If a responsible Minister or a Secretary to the Government certifies in that manner, it is inconceivable that the Court would make an order for its production, except in cases where a false affidavit is sworn to or interests other than the interests of the public or the State masquerade in the garb of public interest. The safety of the public may well depend on the candour and frankness Of the reports made by Secretaries to the Government and Heads of departments to their Ministers, whose duty it is to draw the attention of the Ministers concerned to the relevant rules and the facts of the case and the public interests cannot be said to be endangered by the candour or frankness of the notes so made by the subordinates and their production, far from affecting the interests of the public services, would be in the best interests of good administration.
70. In the records made available to the Court, without claiming any privilege, we find a note made by a Minister on the application of the petitioner which reads: “Secretary, F & A., Please examine and put up.”, and on the margin of the same application, presumably the concerned Secretary made a note.” As it is already a decided case, there is no need at all to examine the further points raised by the petitioner at this late stage.” It is obvious from the notes of the Minister and the Secretary that they do not come within the privileged class of files relating to affairs of the State, the disclosure of which would jeopardise the public interests or the interests of the services. It is the duty of a Secretary to the Government to express freely and frankly his opinion on the subject by pointing out the relevant rules including prior decisions so that the Minister concerned may act within the limits of his power or authority and not act in excess thereof or in violation of the relevant rules. Such notes of the Secretaries, far from affecting the candour and frankness of expression, would make them act without fear or favour in the best interest of the administration of the State. A judicial check or review, far from affecting the interests of the public service, would protect them against arbitrary or illegal actions of or interference by the Ministers or other superiors.
71. If the Court is satisfied that the production of such documents as really pertaining to “affairs of State” would not be in the interests of the State or in the interests of the public, then such documents shall be withheld from production; but if the Court is not satisfied with the reasons given and they turn out to be only excuses to withhold the documents from the eye of the Court and that no public interests or the secu rity of the State are involved, then they shall be submitted to the Court for such use as the Court may deem necessary, having regard to the nature of the re lief asked for. All other documents, which cannot be brought under any one of the categories referred to above, shall be submitted to the Court, indexed in sealed covers and the Advocate-General or any other Law Officer may keep them in safe custody till the date of the hearing or till such time as the Court re quires them for inspection. But in any event, the Government cannot withhold the documents except with the permis sion of the Court and the records called for pertaining to a writ of certiorari or other writs where records are called for, shall reach the Court, well in advance before the date of hearing, and it would be open to the Advocate-General or the concerned Government Pleader with the permission of the Court, to take the records for safe custody subject to the condition that the records shall be placed before the court at the time of the hearing of the petition.
72. We are tempted to quote the following passage from the speech of Lord Upjohn in Conway's case, (1968) 1 All ER 874 at p. 914; which, in our opinion, is quite appropriate in this context;
“On the one side there is the public interest to be protected; on the other side of the scales is the interest of the subject who legitimately wants production of some documents, which he believes will support his own or defeat his adversary's case. Both are matters of public interest, for it is also in the public Interest that justice should be done between litigating parties by production of all documents which are relevant and for which privileges cannot be claimed under the ordinary rules. They must be weighed in the balance one against the other
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the claim of privilege by the Crown, while entitled to the greatest weight, is only a claim, and the decision whether the court should accede to the claim lies within the discretion of the judge: and It is a real discretion.” Therefore, we are of the view, having regard to the extraordinary jurisdiction conferred on this Court under Article 226 of the Constitution, that no general blanket protection can be given to the State and that it is for this Court to ultimately decide, notwithstanding the objection raised by an officer or a Minister claiming privilege, the nature and the class of the documents and the decision of the Court shall prevail.
73. That is how the provisions of Sections 123 and 124 are to be understood and applied in the context of “very high and transcendent” powers of the High Court under Article 226 of the Constitution.
74. In the view we have taken, we have no hesitation in rejecting the plea of privilege claimed by the learned Advocate-General. His application, therefore, fails and is dismissed.
75. Application dismissed.