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Government Privileges Not to Produce Documents

The increasing uncertainty of a democratic state enhances the government's confidentiality. This adds to administrative violations. Democratic administration needs a fine balancing between the expectations of confidentiality in the public interest and the demands of disclosure and public responsibility. Therefore, certain provisions are made in order to ensure that the secrecy of governmental functions are maintained where ever deemed necessary, in order to best secure public interest in the most balanced manner.

Relevant Statutory Provisions
In India, the privilege of the government to withhold documents from production in the courts is claimed on the basis of Sections 123 and 124 of the Indian Evidence Act, 1872. Section 123 reads as:
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.

Section 124 of the IEA subsequently provides that:

Official communications:
No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

The two clauses above offer the government an upper hand and a great deal of privilege in lawsuits of some kind, an advantage against private citizens. This obviously jeopardizes the core principles of administrative law that ensure equity in the administration of justice, as well as that of the IEA. However, if the right is asserted, the privilege is not conclusive in essence, in the sense that it is not possible for the courts to consider the records for which the privilege is claimed in such cases.

This plan is based on the legislative mandate contained in s.162 from the IEA, which specifies that:

Production of documents:
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 administration has come to possess strong powers to intervene with the person and property of the citizen in the new age of the welfare state. It is certain that administrative capacity will have to expand faster in the future. Thus, with the rise in government operations, most tasks that have been carried out by individuals so far have been carried out by the administration.

Thus, individual encounters with the government are growing, often leading individuals to get aggrieved by government intervention and turn to the courts to satisfy their grievances. In litigation, the courts follow multiple processes in which the government is one of the plaintiffs against the common man relative to the suits between common people. Whenever the case appears before the courts in India, on the grounds of three different questions, it rules on the claim of right to withhold the records.

One is the 'public interest' and the other, as part of Article 19(1)(a) of the Constitution of India (freedom of speech and expression), is 'open government' and the third, as interpreted by the Supreme Court, is beyond the framework of Article 21 (Protection of life and personal liberty).

Relevant Judicial Pronouncements

In the case of State of Bihar v. Kasturbhai Lalbhai the court while elaborating on the expression affairs of the State said that it refers to matters that are of:
public nature, with which the State is concerned, or the disclosure of which will be prejudicial to the public service. When the State is a party to the litigation and documents relate to commercial or contractual activities of the state:
Privilege can be asserted in those cases with respect to such records. Through doing so, the court suggested that if the degree to which public interest is catered to is greater than when revealed by withholding those records, then this right of non-disclosure may be asserted.

In the case of State of Punjab v. Sodhi Sukhdev Singh, the court further explained the position by saying that:
Cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. This 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 the question as to whether the evidence relates to an affair of state under Sec. 123 or not.

The court further held in another instance that:
It must be clearly realized¦ that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the minister in charge of the department, or even the government in power has no relevance in making a claim for privilege under Sec. 123.

Also the sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else.

It was also held by the court in Sukhdev's case that:
If the document cannot be inspected, its contents cannot indirectly be proved, but that is not to say that other collateral evidences cannot be produced which may assist the court in determining the validity of objection.

In another case of Amar Chand Butail v. Union of India the court held that the head of the department:
Should never claim privilege only even mainly on the ground that the disclosure of the documents in question may defeat the defence raised by the state. Considerations which are relevant in claiming privilege on the ground that the affairs of the state may be prejudiced by disclosure must always be distinguished from considerations of expediency.

However, the court held it mandatory to inspect certain governmental documents in certain cases and the government wasn't given withholding privileges.

In the case of State of Kerala v. The Midland Rubber & Produce Co, for example, after reading over the documents, the court ruled that the documents had nothing to do with the general interest as well, and were merely instrumental in supporting the state's claims.

State of Uttar Pradesh v. Raj Narain is a seminal case in the field of assessing government rights in the withholding of records, where the judgment of the court was as follows:
The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest.

Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all the relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded.

The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. ...

To illustrate, the class of document would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State capital and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld.

The most crucial case law on this topic evolved from the case of S. P Gupta v. President of India where it was held that:
the concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Art, 19 (1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands.

The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure serves an important aspect of public interest.
Thus, Justice Bhagwati observed that:

The citizens' right to know facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.

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