The English decisions in Duncan v. Cammell Laird & Co[1]; Conway v. Rimmer & Anr.[2]; and Rogers v. Home Secretary[3] surveyed the earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service.
Cammell Laired case
In the Cammell Laired case (supra) the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not to produce the documents. It was stated that if the letter was not accepted as sufficient to found a claim, for privilege the First Lord of Admiralty would make an affidavit. He did swear an affidavit.
On summons for inspection of the documents it was held that it is not uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary.
Grosvenor Hotel, London[4] group of cases turned on an order for mutual discovery of documents and an affidavit of the respondent, the British Railway Board, objecting to produce certain documents. The applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for leave to cross- examine the Minister. The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal.
The Court of Appeal refused to interfere with the discretion exercised by the Chamber Judge. The Minister filed a further affidavit. That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. It was, held that the affidavit was in compliance with the order. The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention of the executive, though normally the executive claims it.
The matter was taken up to the Court of Appeal, which held the order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.
In the Cammell Laird case (supra) the House of Lords said that documents are excluded from production if the public interest requires that they should be withheld.
Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact that the document belongs to a class which on grounds of public interest must as a class be withheld from production. This statement of law in the Cammell Laird case (supra) was examined in Conway v. Rimmer & Anr.
Conway v. Rimmer & Anr
In Conway v. Rimmer & Anr. (supra) it was held that although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive it is important to remember that the decision ruling out such document is the decision of the Judge.
The reference to ‘class’ documents in the Cammell Laird case (supra) was said in Conway v. Rimmer & Anr. (supra) to be, obiter. The Minister’s claim of privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State.
In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.[5] was adopted that the information cannot be disclosed without injury to the public interest and not that the documents are confidential or official. With regard to particular class of documents for which privilege was claimed it was said that the Court would weigh in the balance on the one side the public interest to be protected and on the other the interest of the subject who wanted production of some documents which he believed would support his own or defeat his adversary’s case.
Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest. In this background it was held in Conway v. Rimmer & Anr. (supra) that a claim made by a Minister on the basis that the disclosure of the contents would be prejudicial to the public interest must receive the greatest weight; but even here the Minister should go as far as he properly can without prejudicing the public interest in saying why the contents require protection.
In Conway v. Rimmer & Anr. (supra) it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the document itself and then ordering its production”.
“Class” cases
As to the “class” cases it was said in Conway v. Rimmer & Anr. (supra) that some documents by their Very nature fall into a class which requires protection. These are Cabinet papers, Foreign Office dispatches, the security of the State, high level interdepartmental minutes and correspondence and documents pertaining to the general administration of the naval, military and air force services. Such documents would be the subject of privilege by reason of their contents and also by their ‘class’. No catalog can be compiled for the ‘class’ cases.
The reason is that it would be wrong and inimical to the functioning of the public service if the public were to learn of these high level communications, however innocent of prejudice to the State the actual comments of any particular document might be.
Rogers v. Homer Secretary Case
In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of the Home Secretary it was argued that the Court could of its own motion stop evidence being given for documents to be produced.
The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assert public interest. The public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material.
Once the public interest is found to demand that the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the production of which, it sees is contrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have sometimes held certain class of documents and information to be entitled in the public interest to be immune from disclosure.
Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.
The Principal rules of Exclusion
The principal rules of exclusion under which evidence becomes inadmissible are two-fold–
First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is some- times estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law.
Second, relevant facts are, subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence.
A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, papers, confidential official documents and communications between the Government and its officers or- between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service.
State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371,
In Sukhdev Singh’s case (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination.
In Sukhdev Singh’s case. (Supra) Supreme Court laid down these propositions.
First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents.
Second, the harmonious construction of sections 123 and 162 of evidence act shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character of the document.
Third, the expression “affairs of State” in section 123 is not capable of definition. Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs’.
Fourth, the second limb of section 162 refers to the objection both as to the production and the admissibility of the document.
Fifth, reading sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under section 123 or not.
The view expressed by the Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is said that the Court may take collateral evidence to determine the character or class of documents.
In Sukhdev Singh’s case (supra) it has also been. said that if the Court finds that the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department whether to permit its production or not. The concurring views in Sukhdev Singh’s case (supra) also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.
Reference
State of UP v. Raj Narain (1975)
[1] [1942] A C- 642
[2] [1968] 1 A.E.R- 874
[3] [1973] AC 388
[4] (1963) 3 A E R 426
[5] [1916] 1 K B 830