1975 (1) TMI 88 - SC - Indian Laws

Whether no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? Held that - In the present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one or these reasons, the judgment of the High Court is set aside. The learned judge will consider the affidavit a firmed by R. K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced by the Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied on the affidavits that the documents require protection from production, the matter will end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect the same and pass appropriate orders thereafter,. If the Court will find on inspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a distorted or misleading impression. Where the Court orders disclosure of an innocuous part as aforesaid the Court should seal up the other parts which are said to be noxious because their disclosure would be undesirable

Issues Involved:
1. Claim of Privilege under Section 123 of the Evidence Act.
2. Requirement of Affidavit by the Minister or Head of Department.
3. Definition and Scope of "Affairs of State."
4. Court's Power to Inspect Documents.
5. Published vs. Unpublished Official Records.

Detailed Analysis:

1. Claim of Privilege under Section 123 of the Evidence Act:
The primary issue was whether the Government of Uttar Pradesh could claim privilege under Section 123 of the Evidence Act to withhold documents described as the Blue Book and other related documents. The High Court ruled that no privilege could be claimed as the necessary affidavit by the head of the department was not filed initially. The Supreme Court emphasized that the foundation of Sections 123 and 162 is the protection of public interest, and the court must weigh the public interest in confidentiality against the public interest in the administration of justice.

2. Requirement of Affidavit by the Minister or Head of Department:
The High Court held that the privilege was lost because no affidavit was filed by the Minister or head of the department at the first instance. The Supreme Court clarified that an affidavit filed later could still be considered, and the court must examine the validity of the objection to the production of the document. The affidavit from R.K. Kaul, filed on 20 September 1973, was deemed sufficient to claim privilege.

3. Definition and Scope of "Affairs of State":
The Supreme Court discussed the meaning of "affairs of state" and concluded that it includes documents whose disclosure would injure public interest. The court has the authority to determine whether a document relates to affairs of state and whether its disclosure would harm public interest. The High Court's view that the Blue Book was not an unpublished official record because portions of it had been published was rejected. The Supreme Court noted that partial publication does not render the entire document published.

4. Court's Power to Inspect Documents:
The High Court did not inspect the Blue Book, assuming it was not an unpublished official record. The Supreme Court reiterated that the court has the power to inspect documents to determine their nature and whether they relate to affairs of state. The court can also take other evidence to decide on the validity of the privilege claim.

5. Published vs. Unpublished Official Records:
The High Court held that the Blue Book was not an unpublished official record because parts of it had been referred to in other proceedings. The Supreme Court disagreed, stating that the publication of innocuous parts does not make the entire document published. The court emphasized that the classification of documents as unpublished official records is essential for claiming privilege under Section 123.

Conclusion:
The Supreme Court set aside the High Court's judgment and directed it to reconsider the matter afresh. The High Court was instructed to evaluate the affidavits filed by R.K. Kaul and the Superintendent of Police, and if necessary, inspect the documents to determine whether they relate to affairs of state and whether their disclosure would injure public interest. If parts of the documents are found to be innocuous, the court can order their disclosure while withholding the noxious parts. The appeal was allowed, and the matter was remanded for further consideration.

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