Procedure for claiming privilage from production of document by state

Per Sinha, C. J., Gajendragadkar and Wanchoo, jj.Though under ss. 123 and 162 the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question, the matter being left for the authority concerned to decide, the Court is competent to hold a preliminary enquiry and determine the validity of the objection to its production and that necessarily involves an enquiry into the question as to whether the document relates to affairs of State under s.

123. Where s. 123 confers mide powers on the head of the department to claim privilege on the ground that the disclosure may cause injury to public interest, scrupulous care must be taken to avoid making a claim for such a privilege on the ground that the disclosure of the document may defeat the defence raised by the State. The apprehension that the disclosure may adversely affect the head of the department or the Minister in charge of the department or even the Government in power, or that it may provoke public criticism or censure in the Legislature, should not weigh in the mind of the head of the department and the sole test which should determine his decision is injury to public interest and nothing else.

The privilege under S. 123 should be claimed generally by the Minister in charge who is the political head of the department concerned ; if not, the Secretary of the department should

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make the claim, and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary, the Court may in a proper case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury. If there are series of documents included in a file it should appear from the affidavit that each one of the documents, whose disclosure is objected to, has been duly considered by the authority concerned. The affidavit should also indicate briefly within permissible limits the reason why it is apprehended that their disclosure would lead to injury to public interest.

If the affidavit produced in support of the claim' for privilege is found to be unsatisfactory a further affidavit may be called, and in a proper case the person making the affidavit whether he is a Minister or the Secretary should be summoned to face cross-examination on the relevant points.

Supreme Court of India
The State Of Punjab vs Sodhi Sukhdev Singh on 15 November, 1960
Equivalent citations: 1961 AIR 493, 1961 SCR (2) 371