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Introduction The constitution of Indiaseeks to establish a Democratic Rebuile where under the equality clauses there is no question of privileged

position or immunity in favour of the state. However, government vis--vis the individual is always a government. There are numerous priveleges and immunities which are legally recognized and enforced in favour of the government. Government Privilege to Withhold Documents (a) Position in England In England, the crown enjoys special privilege of withholdind disclosure of documents, reffered to as the rule of crown privilege. It can refuse to disclose any evidence or to answer any question if in its opinion such disclosure or answer would be injurious to the public interest. The rule is based on the postulate that public welfare is the highest law.the public interest requires that justice should be done but it may also require that the necessary evidence should be suppressed. This right can be execised by the crown even in those proceedings in which it is not a party. The leading case on crown privilege is Duncan v Carmel i,Laird and Co. Ltd. Which arose at the time of second world war when the submarine Thetis sank during her trials. Numerous actions were braught against respondents by the representatives of the deceased, claiming damages for negligence. The widow of one of the dead persons saught discovery of documents in order to establish liability against the government contractors. The admiralty claimed crown privilege which was upheld by the house of lords. It was ruled that the affidavit filed by the minister that the disclosure will be against the public interest could not be called into question. Lord Simon said : The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced in the public interest required that they should be withheld . ii In Ellis v Home Officeiii, a prisoner assaulted Ellis who was an under-trial prisoner. The prisoner who assaulted was under observation as a suspected mentally defective. Ellis alleged negligence on the part of Prison Authorities but he lost his action as the crown claimec privilege in

respect of the medical reports. It is submitted that the evidence could have been disclosed without any injury to public interest. However, Convay v Remmer,1968, the document was ordered to be produced as the disclosure was not injurious to the public interest. By this decision, the House of Lords have braught back into legal custody a dangerous executive power. The privilege is now described the public interest privilege instead of a Crown Privilege. (b) Position in India (1) Predominance of public interest: In India, the government privilegege to withhold documents from the courts is claimed on basis of section 123 of the Indian Evidence Act, 1872 which reads as under : 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.iv As a general rule, the requirement is that both the parties to the dispute must produce all the relevant and material evidence in their possession. If any party fails to produce such evidence, an adverse inference can be drawn under section 114 of the Evidence Act. Section 123 gives a great advantage to the Government in as much as inspite of non-production of relevant evidence before the court, no adverse inference can be drawn against it if the claim of privilege is upheld by the court. This thing undoubtedly constitutes a very serious departure, from the ordinary rules of evidence. The basis on which this departure can be justified is the principle of the overriding and paramount character of public interest i.e. when the public interest served by disclosure is outweighed by the public interest served by non-disclosure of documents. The leading case on the subject is, State of Punjab v Sodhi Sukhdev Singhv, decide by the sureme court. In this case, the respondent who was a District & Session Judge was removed from service by the

President of India. He made a representation aginst the removal. In pursuance of the representation, the council of ministers secured the advice of the public service commission and therefore decided to reemploy him. He then filed a suit for declaration that his removal was illegal and void. He wanted production of certain documents. The state claimed privilege in respect of them. The supreme court by majority held that the documents in question were protected under section 123 of Evidence Act and could be withheld from production on the ground of public interest. (2) Balancing of Public Interest: In State of U.P. v Raj Narayanvi, Raj Narayan had filed an election petition against the then prime minister Smt. Indira Nehru Gandhi. During the trial, he made an application for production of certain documents. The U.P. Government claimed privilege in respect of those documents. The Allahbad High Court rejected the claim for privilege. On appeal, the supreme court set aside the Allahbad judgement. (3) Ideal of Open Government as alternate measure: The final decision in regard to the validity of an objection against disclosure raised under section 123 would always be with the court by reason of section 102vii. The court is not bound by the assertions made by the government in support of plea against non-disclosure. The court has the power to balan ce the injury to the state or the public service against the risk of injustice, before reaching the decision. Example for this is the case, Reliance petrochemicals Ltd. V Indian Express Newspapersviii. (4) Class Privilege: In State Of Bihar v Kirpalu Shankarix, the supreme court held that government files are privileged documents and no contempt proceedings, civil or criminal can be initiated on the basis of notings on the files as the privilege is necessary in order to maintain the independent functioning of civil services and fearless expression of views. Similarly the court in Doy Pack Systems Pvt. Ltd. V Union of India, laid down that it is the duty of the court to prevent disclosure of documents where article 74(2) of the constitution is applicable.

1942 AC 624 Ibid, at p. 636 iii 1953 2. B 135 iv See also Ss. 124, 162; Art. 22(6), 74(2) and 163 of the constitution of india v AIR 1961 SC 493 vi AIR 1974 All. 324 vii AIR 1982 SC 419 (per Bhagwati, J.) viii AIR 1987 SC 190. ix (1987) 3 SCC 34
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