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Attorney(S)
  • Messrs. Arunachalam and Jagannathadas & Co. for Appt.
  • The Govt. Pleader for Respt.
Judges
  • Ramaswami, J.
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Citation Codes
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citation codes
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Attorney(S)
  • Messrs. Arunachalam and Jagannathadas & Co. for Appt.
  • The Govt. Pleader for Respt.
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  • Ramaswami, J.
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This opinion concerns a civil revision petition filed against an order made by the learned Subordinate Judge of Ootacamund in I.A. No. 335 of 1950 in O.S. No. 74 of 1949.

The petitioner, P.S. Narayanaswami, formerly employed in the Chinchona Directorate at Ootacamund, had been dismissed from service and instituted the suit O.S. No. 74 of 1949 against the State of Madras. He sought production of a considerable quantity of unpublished official records. Summons were issued to the Director (head of the department), who examined the records and filed an affidavit classifying them into two categories: (a) documents in respect of which he claimed privilege on the ground that disclosure would be prejudicial to public interest, and (b) documents which might be disclosed.

The records, accompanied by the affidavit, were sent to the court. The Subordinate Judge applied his mind, upheld the claim of privilege as to the documents for which privilege was claimed, and ordered production or non-production accordingly. For the documents that the Director had no objection to disclose, the plaintiff contended they were irrelevant. The petitioner challenged that order by filing the present civil revision petition.

Legal Issues Presented

  1. Whether the procedure adopted by the learned Subordinate Judge and the Departmental head complied with Section 124 of the Indian Evidence Act as interpreted in the leading decisions.
  2. Whether the departmental head's claim of privilege (supported by affidavit and documentary submission) should be accepted or whether the court must independently review and potentially override that claim.
  3. Whether disclosure of the particular official documents would be injurious to public interest, thereby justifying withholding under the relevant principles governing unpublished official records.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dinbai v. Dominion of India (as cited) Illustrates the principle that public interest must prevail over private interest; disclosure may be denied even if injustice to private interest occurs, to protect public interest. Used to emphasize the primacy of public interest in deciding claims under Section 124 and to support upholding departmental claims of privilege where disclosure would damage public interest.
Nagaraja Pillai v. Secretary of State, 39 Mad 304 Held that the object of Section 124 is to prevent disclosures detrimental to public interests; the decision as to such detriment rests with the officer to whom the communication is made. Relied on to support the proposition that the departmental officer's decision on detriment is central and to underpin the described multi-stage procedure under Section 124.
Venkatachala Chettiar v. Sampathu Chettiar, 32 Mad 62 Earlier decision followed by Nagaraja Pillai on the scope of Section 124 (as referenced). Noted as a precedent followed by the Madras decisions that frame how Section 124 operates in practice.
Secretary of State v. Saminatha, AIR 1930 Mad 342 (2) Held that the public officer concerned, not the Judge, is to decide whether evidence should be given or withheld; if objection is taken by proper person the court generally will not go behind it, though discretion must not be arbitrary. Applied to support the view that the departmental head's objection is to be respected and that the court should not ordinarily override a proper objection.
Makky Moithu in re, 1943-1 MLJ 154 Stated that the court must consider whether the communication falls within the section; if so, and the public officer considers disclosure harmful, the court should exclude the document; where the report is confidential and not intended for public, the court cannot question the decision. Used to stress the limited but real role of the court—to decide applicability of the section—and to show that once applicability is found and a proper claim is made, the court should exclude the material.
Weston v. Peary, 40 Cal 898 Protection under the section is not dependent on a claim of privilege being put forward; it is the duty of the Judge himself to exclude the evidence; an objection cannot be used to draw an adverse inference. Referred to for the proposition that the judge has a duty to exclude evidence injurious to public interest even without a formal privilege claim, supporting judicial caution in compelling production.
Governor-General in Council v. Peer Mohd., AIR 1950 EP 228 Held that for state papers of administrative character the court can enquire into validity of objection, but once the court concludes the document relates to affairs of State the head's decision to give or withhold production must be accepted as final. Invoked to balance the court's power to inquire with the ultimate deference to the departmental head when documents are of State affairs.
I.M. Lall v. Secretary of State, AIR 1944 Lah 209 Emphasised that Section 123/124 rests on concern for public interest; an affidavit by the head that documents are unpublished official records implies production would be prejudicial; affidavit should be by the head in whose custody the records are. Used to justify the requirement and sufficiency of an affidavit by the appropriate departmental head and to indicate who must make the sworn statement.
Ducnan v. Cammell Laird and Co., 1942 AC 624 (House of Lords) Laid down that a court should uphold a public department's objection to production on public policy grounds if production would be against public interest; decision to object should be taken by the minister who has seen the documents; objections validly taken on public interest grounds are conclusive; production should be withheld where disclosure would be injurious to national defence, diplomatic relations, or proper functioning of public service. Described as the most important English decision supporting the principles embodied in Sections 123 and 124; used to frame the high-level test of public interest and the requirement that the political head must have considered the documents.

Court's Reasoning and Analysis

The court began by observing that the lower court's action complied strictly with Section 124 of the Indian Evidence Act as interpreted in the leading decisions recited in the opinion. The court distilled a four-stage procedure from those decisions and the statute:

  1. Summoning the head of the department concerned when an application is made for production of official records.
  2. The head of the department must apply his mind to the documents sought to be disclosed and form his own conclusion whether public interest would suffer by disclosure; if he chooses to object he should claim privilege and indicate why.
  3. The claim of privilege should preferably be communicated by affidavit and, where possible, the documents should be sent in a sealed cover through an officer of the department claiming privilege.
  4. The presiding judge must apply his own mind to the claim; the judge should accept the departmental claim unless it is arbitrary, capricious or false, and the ultimate criterion for both departmental and judicial decisions is whether disclosure would injure public interest.

The court emphasized that the overriding consideration is protection of public interest even at the cost of some injustice to private interest (citing authority to that effect). The opinion surveyed Madras High Court decisions, other Indian High Courts, and English authority (House of Lords) to show consistency behind the four-stage test and the primacy of public interest.

Applying these principles to the facts, the court concluded that the Subordinate Judge correctly followed the statutory and judicially articulated procedure and properly sustained the departmental claims of privilege for certain enumerated documents.

Holding and Implications

Holding: The civil revision petition is dismissed with costs.

Direct consequences and implications:

  • The order of the learned Subordinate Judge stands. The court explicitly held that documents numbered 4, 5, 7, 8, 10, 12, 14 and 17 to 20 "cannot be asked to be produced and marked as evidence."
  • The petition is dismissed and the petitioner must pay costs; the Advocate's fee taxed is Rs. 50/-. (Recorded in the order.)
  • No new precedent is announced; the decision rests on applying established statutory interpretation and existing precedents governing non-production of unpublished official records on public interest grounds.

This summary is confined to the information expressly contained in the provided opinion and does not add factual or legal material beyond that opinion.

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    P.S. Narayanaswamy v. State Of Madras

    1. This is a civil revision petition filed against the order made by the learned Subordinate Judge of Ootacamund in I.A. No. 335 of 1950 in O. S. No. 74 of 1949.

    2. The facts are: The petitioner P.S. Narayanaswami before us was employed in the Chinchona Directorate located at Ootacamund. He has been dismissed from service. Thereupon, he has filed the suit O. S. No. 74 of 1949 against the State of Madras. This former dismissed employee wanted the production of a considerable quantity of unpublished official records. Therefore, summons was issued to the Director who is the head of this department. He looked into the records asked to be produced. Then he has filed an affidavit classifying the records sought to be produced under two heads, viz., those in regard to which he claimed privilege on the ground that the disclosure of those documents would be prejudicial to public interest and those which might be disclosed. The records were sent to court with an affidavit. The learned Subordinate Judge applied his own mind and upheld the claim of privilege in regard to documents for which privilege was claimed. In regard to documents which the director had no objection to disclose the plaintiff stated them to be irrelevant for his purpose. Thereupon the learned Subordinate Judge has passed an order to that effect and the present petition is preferred against that order.

    3. There are no merits in this petition at all because what has been done in the lower court is in strict compliance with Section 124 of the Indian Evidence Act as interpreted in leading decisions. The substance of these leading decisions can be summarised as follows. On an application by a party for the production of these documents, summons should be issued to the head of the department concerned. That head of the department must thereupon apply his mind to the documents sought to be disclosed and come to his own conclusion whether public interest would or would not be suffered by such disclosure. He has then to claim privilege if he chooses to do so by means of a communication, preferably in the form of an affidavit, claiming privilege and sufficiently indicating why he is claiming the privilege. It is also desirable but not indispensable that the records should be sent in a sealed cover through an officer of the department claiming privilege. 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. But in any event it is the duty of the court to apply its own mind as to whether the claim is not arbitrary and capricious and if need be it would be open to the court to look into the documents and come to its own conclusion.

    In other words, under Section 124, Evidence Act, the four stages are, summoning, application of the mind of the head of the department to the documents sought to be disclosed and coming to the conclusion whether the privilege should be claimed or not, communicating this claim of privilege preferably by means of an affidavit and sending wherever possible the concerned documents in a sealed cover through an officer of the department claiming privilege and the application of the presiding Judge's mind to the claim put forward and accepting it unless the claim is arbitrary or capricious or false. The final decision of both the departmental head as well as the presiding judge will be governed by only one consideration viz., whether the disclosure would result in an injury being caused to the public interest as the section gives effect to the principle that public interest must be paramount and private interest must give way when there is a conflict between public and private interests. The only loyalty which the section contemplates and which must undoubtedly prevail over private interest is the loyalty to the State in the sense that public interest must prevail over private interest and the disclosure of a particular document will damnify public interest and so even though injustice may be done to private interest it is much better that such injustice should be done rather than public interest should be injured by the disclosure of a document: vide -- 'Dinbai v. Dominion of India', decided by Chagla C. J. and Bhagavati J.

    4. The aforesaid principles which constitute the four stages are deducible from the following decisions on this matter which can be grouped into, the decisions of the Madras High Court, the decisions of other High Courts and the decision of the House of Lords. In --'Nagaraja Pillai v. Secretary of State', 39 Mad 304 a Bench of this court held that the object of Section 124, Evidence Act, is to prevent the disclosures to the detriment of public interests and the decisions as to such detriment rests with the officer to whom the communication is made and does not depend upon the special use of the word "confidential". The decision in -- 'Venkatachala Chettiar v. Sampathu Chettiar', 32 Mad 62 was followed.

    In -- 'Secretary of State v. Saminatha', AIR 1930 Mad 342 (2), Jackson J. held that the public officer concerned and not the Judge is to decide whether the evidence referred to should" be given or withheld and if the objection is taken by the proper person the court will not go behind it. Under Section 124, it rested exclusively with the public officer concerned to withhold or give permission as he is the. sole judge as to whether public interest will or will not suffer by the disclosure though such discretion must naturally be exercised on well established principles and not arbitrarily.

    In -- 'Makky Moithu in re', 1943-1 MLJ 154 Horwill J. on a question whether a certain report made by the Deputy Tahsildar of a Government Forest to the Collector was privileged, held that Section 124, Evidence Act, left it to the court to consider whether the communication was of the nature covered by the section; that is, the court has to decide whether the section can be applied. If it does the court has to exclude the document if the public officer concerned considers that public interest will suffer by the disclosure. Where the report was undoubtedly a confidential document and was not intended to be revealed to the public but only to such persons to whom the Collector thought fit to send it, the court cannot question the decision.

    5. Three other decisions of the other High Courts may be usefully referred to in this connection. In. -- 'Weston v. Peary', 40 Cal 898 it was laid down that protection under this section is not dependent upon a claim of privilege being put forward. It is the duty of the Judge himself to exclude the evidence. A fortiori if objection is taken it cannot be made a ground of adverse inference as the law allows it. In --'Governor-General in Council v Peer Mohd.', AIR 1950 EP 228 a Full Bench of the Punjab High Court held that where the privilege claimed is attached to state papers which are of an administrative character the disclosure of which would be injurious to the proper functioning of the public services the court can hold an enquiry into the validity of an objection. But it is nevertheless true that once the court comes to the conclusion that the document relates to an affair of the State, the decision of the head of the department to give or withhold permission to its production must be accepted as final. Ordinarily, the head of the department will mean the officer who is in control of the department and in whose custody the records of the department remain. Similarly in -- 'I.M. Lall v. Secretary of State', AIR 1944 Lah 209, it was held that the principle or foundation on which Section 123 rests is concern for the public interest. If an affidavit is made by the head of the department that he does not wish to produce certain documents as they constitute unpublished official records relating to affairs of State, he is deposing by implication that the production of those documents will be prejudicial to public interest. The use of the word "concerned" in relation to the head of the department shows that the affidavit must contain a sworn statement by the head of the department in whose custody the documents happen to be at the time when discovery and production is claimed.

    6. These decisions are based upon a long line of English decisions of which the most important is the decision of the House of Lords in -- 'Ducnan v. Cammell Laird and Co.', 1942 AC 624. Their Lordships have clearly laid down the principles which are embodied for us in Sections 123 and 124, Evidence Act "A court of law should uphold an objection taken by a public department, called on to produce documents in a suit between private citizens, if on grounds of public policy they ought not to be produced. Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. The test may be found to be satisfied cither (a) by having regard to the contents of the particular documents, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as such be withheld from production. It is essential that the decision to object should be taken by the minister who is the political head of department concerned and that he should have seen and considered the contents of the documents and himself formed the view that on the grounds of public interest they ought not to be produced. If the question arises before trial the objection would ordinarily be taken by affidavit of the minister. If it arises on 'subpeona' the objection may in the first instance be conveyed to the Court by an official of the department, who produces a certificate signed by the minister stating what is necessary, but if the court is not satisfied it can request the minister's personal attendance.

    An objection validly taken to production on the ground that it would be injurious to the public interest is conclusive. The mere fact that the minister or the department does not wish the documents to be produced is not an adequate justification for objecting to their production. Production should only be withheld when the public interest would otherwise be damnified, 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. In such a case, the court should not require to see the document, for the purpose of ascertaining whether the disclosure would be injurious to the public interest."

    7. So, applying those principles the lower court has correctly decided that documents Nos. 4, 5, 7, 8, 10, 12, 14 and 17 to 20 cannot be asked to be produced and marked as evidence.

    8. There are no merits in this civil revision petition and it is hereby dismissed with costs.

    Advocate's fee Rs. 50/-.

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    P.S. Narayanaswamy v. State Of Madras
    (Apr 15, 1952)