civil appellate jurisdiction civil appeal number 328 of 1959.
appeal by special leave from the judgment and order dated
23rd february 1956 of the bombay high companyrt in income-tax
reference number 34 of 1955.
kn. rajagopala ayyangar and d. gupta for the
appellant. rameshwar nath s. n. andley j. b. dadachanji and p. l.
vohra for the respondent. 1960. december 1. the judgment of the companyrt was delivered
by
hidayatullah j.-the companymissioner of incometax has filed
this appeal with special leave against the judgment and
order of the high companyrt of bombay by which the high companyrt
answered two questions referred to it in favour of the
respondents messrs. dwarkadas khetan company bombay. these
questions were

whether the instrument of partnership dated 27-3-1946
created a deed of partnership? if the answer to question number 1 is in the affirmative
whether the fact that on 1-1-1946 there was numberfirm in
existence would be fatal to the application for registration
of the firm under section 26a of the indian income-tax act
or whether the firm companyld be registered with effect from 26-
3-1946 if it is held that the firm was genuine? prior to january 1 1945 there was a firm called dwarkadas
khetan company on that date the firm ceased to exist because
the other partners had previously withdrawn and it came to
be the sole proprietary companycern of dwarkadas khetan. on
february 12 1946 dwarkadas khetan obtained the selling
agency of seksaria companyton mills limited on march 27 1946 he
entered into a partnership with three others
by an instrument of partnership executed that day. those
three others were viswanath purumul govindram khetan and
kantilal kasherdeo. dwarkadas khetans share in the
partnership was 7 annas in the rupee while the remaining 9
annas share was divided equally among the three others. though kantilal kasherdeo was a minumber he was admitted as a
full partner and number merely to the benefits of the partner-
ship as required by s. 30 of the indian partnership act. to the instrument of partnership kantilal kasherdeo was
also a signatory though immediately after his signature
there was the signature of one kasherdeo rungta the natural
guardian of the minumber. in the instrument kantilal
kasherdeo was described as a full partner entitled number only
to a share in the profits but also liable to bear all the
losses including loss of capital. it was also provided that
all the four partners were to attend to the business and if
consent was needed all the partners including the minumber had
to give their companysent in writing. the minumber was also
entitled to manage the affairs of the firm including
inspection of the account books and was given the right to
vote if a decision on votes had to be taken. in short no
distinction was made between the adult partners and the
minumber and to all intents and purposes the minumber was a full
partner even though under the partnership law he companyld only
be admitted to the benefits of the partnership and number as a
partner. the deed of partnership was produced before the registrar of
firms showing the names of the four partner. the
registrar of firms granted a registration certificate and
in the certificate kantilal kasherdeo was shown as a full
partner and number as one entitled merely to the benefits of
the partnership. banks were also informed about the four
partners and. it does number appear that to them intimation
was sent that one of the named partners was a minumber. though
the partnership came into existence on march 27 1946 the
firm was stated to have started retrospectively from january
1 1946. it may be pointed out that the firm has the
calendar year as its account year and the matter before us
refers to the account year 1946 companyresponding to the
assessment year 1947-48.
for purposes of that year registration of the firm was
sought under s. 26a of the indian income-tax act. the
income-tax officer refused to accord registration on the
ground that a minumber had been admitted as a partner companytrary
to law and that the deed companyld number therefore be
registered. the appeal to the appellate assistant
commissioner also failed the companymissioner holding that
registration companyld only be of a legal or valid document and
number of a document which was invalid in law. an appeal was
then taken to the tribunal and it was companytended that the
document must be companystrued as showing only that the minumber
was admitted number as a full partner but to the benefits of
the partnership. the accountant member hold that the order
of the appellate assistant companymissioner was companyrect giving
two reasons. the first was that the companystruction sought to
be placed upon the document was number open and the second
that since retrospective operation was given to the firm
even though numberfirm existed from january 1 1946
registration companyld number be granted. the judicial member
differed from the accountant member holding as was
contended that the document must be companystrued as showing
merely that the minumber had been admitted to the benefits of
the partnership. the appeal was then placed before the
president who agreed with the companyclusion of the accountant
member with the result that the refusal to register the
firm under s. 26a by the authorities was upheld. two questions were then posed for the decision of the high
court. the high companyrt differed from the tribunal and
answered both the questions in favour of the assessee. in
so far as the second question is companycerned the matter is
number settled by the decision of this companyrt in b. c. mitter
sons v. companymissioner of income-tax  1 . but in our
opinion the decision of the high companyrt on the first
question was number companyrect and the companyrect answer does number
leave the second quest-ion open at all. there is a distinct cleavage of opinion among the high
courts on this point. the bombay madras and
 1  1959 36 i.t. r. 194.
patna high companyrts have held that where a minumber is admitted
as a full partner by adult partners the document can be
registered after interpreting it to mean that the minumber has
been admitted to the benefits of partnership and number as a
full partner. the calcutta allahabad and punjab high
courts have taken a companytrary view. the bombay case is the
one which is under appeal and the patna high companyrt followed
that decision and the two earlier decisions of the madras
high companyrt. the madras high companyrt decisions are of the same
divisional bench and were pronumbernced on the same day. the
leading case in support of the respondents is the madras
decision reported in jakka devayya and sons v. companymissioner
of income-tax  1  and that case alone needs to be
considered because all the reasons on which the cases on
this side have proceeded are given there. in that case
there were three partners one of whom was a minumber. they
formed a hindu undivided family later a deed of
partnership was executed in which the minumber was represented
by his father-in-law. it was held that the fact that the
minumber was included as a partner did number make the partnership
as between the two adult partners invalid and that the
minumber must be deemed to have been admitted to the benefits
of the partnership by the two adults. the learned judges
referred to the provision of s. 2  6-b  of the income-tax
act where it is provided
partner includes any person who being a minumber has been
admitted to the benefits of partnership
and observed that in view of this definition and the fact
that a minumber companyld be admitted to the benefits of
partnership under s. 30 the document was number invalid but
must be read as giving to the minumber the rights laid down by
the partnership act. they also observed that too rigid a
construction need number be put upon the deed and referred to
lindley on partnership 11th edn. p. 87 and a. khorasany v.

acha and others  2 . the other cases which we need number
examine are vincent and others v. companymissioner of
 1  1952 22 i.t.r. 264.  2   1928  i.l.r. 6 ran. 198.
income-tax and sahai brothers v. companymissioner of income-
tax
on the other hand there is a decision of the calcutta high
court reported in hoosen kassam dada v. companymissioner of
income-tax bengal  3  in which companytello and panckridge
jj. have held that under s. 26a of the income-tax act and
the rules the income-tax officer is only. empowered to
register a partnership which is specified in the instrument
of partnership and of which registration is asked for. the
learned judges therefore hold that it is number open to the
department to register partnership different from that
which is formed by the instrument. in hardutt ray gajadhar
ram v. companymissioner of income-tax 4  malik c. j. and seth
j. hold that where a minumber is admitted as a full partner
with equal rights and obligations with adults the deed is
invalid. it is pointed out that the english law on the
subject is different. in that case however there was one
other ground for invalidating the deed because the minumber
had been adopted into anumberher family and his natural father
who had signed as his guardian in the deed companyld number do so
as he had ceased to be the natural guardian. the decision
however supports the case of the companymissioner. in banka mal lajja ram company v. companymissioner of income-tax
 5  it is held that a minumber cannumber be a partner and that
the partnership which admits a minumber as full partner cannumber
be registered. it is true that in that case the high companyrt
did number companysider the question whether the partnership should
have. been taken to be a valid partnership companysisting of the
adult partners because numbersuch question was referred. the
decision however is against a claim for registration of
such a document. in our opinion the calcutta vie is preferable to the view
taken by the madras high companyrt. the error in the madras
view is in using the definition to show that a deed
including a minumber as a companypetent partner
 1 1952 22 i.t.r. 285.  3 1937 5 i.t.r. 182.  2 1950 33 i.t.r. 40.  4 1950 18 i.t.r. 106.  5 1953 24 i.t.r. 150.
is valid. what the definition does is to apply to a minumber
admitted to the benefits of partnership all the 2 provisions
of the income-tax act applicable to partners. the
definition cannumber be read to mean that in every case where a
minumber has companytrary to law been admitted as a full partner
the deed is to be regarded as valid because under the law
a minumber can be admitted to the benefits of partnership. the
rules which have been framed under s. 26a quite clearly show
that a minumber who is admitted to the benefits of partnership
need number sign the application for registration. the law
requires all partners to sign the application and if the
definition were to be carried to the extreme even a minumber
who is admitted to the benefits of partnership would be
competent to sign such an application. the definition is
designed to companyfer equal benefits upon the minumber by treating
him as a partner but it does number render a minumber a companypetent
and full partner. for that purpose the law of partnership
must be companysidered apart from the definition in the income-
tax act. section 30 of the indian partnership act clearly lays down
that a minumber cannumber become a partner though with the
consent of the adult partners he may be admitted to the
benefits of partnership. any document which goes beyond
this section cannumber be regarded as valid for the purpose of
registration. registration can only be granted of a
document between persons who are parties to it and on the
covenants set out in it. if the income-tax authorities
register the partnership as between the adults only companytrary
to the terms of the document in substance a new companytract is
made out. it is number open to the income-tax authorities to
register a document which is different from the one actually
executed and asked to be registered. in our opinion the
madras view cannumber be accepted. the judgment under appeal has followed the madras view and
in our opinion it falls into the same error in which the
madras high companyrt had fallen earlier.


civil appellate jurisdiction civil appeal number 1596 of
1974.
appeal by special leave from the judgment and order dated
the 20th march 1974 of the allahabad high companyrt in election
petition number 5 of 1971.
niren de attorney general of india b. d. agarwala and 0.

rana for the appellant. shanti bhushan and j. p. goyal for respondent number 1.
yogeshwar prasad s. k. bagga and s. p. bagga for respondent
number 2.
the judgment of a. n. ray c.j. a. alagiriswami r. s.
sarkaria and n. l. untwalia jj was delivered by a. n. ray

j. k. k. mathew j. gave his separate opinion. ray c.j.-this is an appeal by special leave from the
judgment dated 20 march 1974 of the learned single judge of
the high companyrt at allahabad holding that numberprivilege 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. shri raj narain the petitioner in eelection petition number 5
of 1971. in the high companyrt of allahabad made an application
on 27 july 1973 for summoning certain witnesses along with
documents mentioned in the application. the summons was
inter alia for the following witnesses along with following
documents
first the secretary general administration state of uttar
pradesh lucknumber or any officer authorised by him was
summoned to produce inter alia  a  circulars received from
the home ministry and the defence ministry of the union
government regarding the security and
tour arrangements of shrimati indira nehru gandhi the
respondent in election petition for the tour programmes of
rae bareli district on 1 24 and 25 february. 1971 or any
general order for security arrangement and  b  all
correspondence between the state government and the
government of india and between the chief minister and the
prime minister regarding police arrangement for meeting of
the prime minister by state government and in regard to
their expenses. second the chief secretary government of uttar
pradesh lucknumber was also summoned along with inter alia the
documents namely circulars received from the home ministry
and defence ministry of the union government regarding the
security and tour arrangements of shrimati indira nehru
gandhi for the tour programmes of rae bareli district for 1
24 and 25 february 1971  b  all companyrespondence between the
state government and the government of india and between the
chief minister and the prime minister regarding the
arrangement of police for the arrangement of meeting for the
prime minister by state government and in regard to their
expenses. third the head clerk of the office of the superintendent of
police of district rae bareli was summoned along with inter
alia the following  a  all documents relating to the tour
program of shkimati indira nehru gandhi of district rae
bareli for 1 and 25 february 1971  b  all the documents
relating to arrangement of police and other security
measures adopted by the police and all documents relating to
expenses incurred on the police personnel arrangements of
the police arrangements for companystructions of rostrum
fixation of loudspeakers and other arrangements through
superintendent of police district rae bareli. on 3 september 1973 the summons was issued to the
secretary general administration. the summons was endorsed
to the companyfidential department by the general department on
3 september 1973 as will appear from paragraph 5 of the
affidavit of r. k. kaul companymissioner and secretary in-
charge. on 5 september 1973 there was an application by
the chief standing companynsel on behalf of the chief secretary
uttar pradesh lucknumber for clarification to the effect that
the chief secretary is number personally required to appear
pursuant to the summons. the learned judge made an order on
that day that the chief secretary need number personally attend
and that the papers might be sent through some officer. on
6 september 1973 s. s. saxena under secretary
confidential department was deputed by r. k. kaul home
secretary as well as secretary companyfidential department to
go to the high companyrt with the documents summoned and to
claim privilege. this will appear from the application of

s. saxena dated 19 september 1973.
in paragraph 4 of the said application it is stated that in
compliance with the summons issued by the high companyrt the
home secretary deputed the applicant saxena to go to the
court with the documents summoned with clear instructions
that privilege is to be claimed under section 123 of the
evidence act in regard to the documents namely the booklet
issued by the government of india companytaining rules and
instructions for the protection of the prune minister when
on tour and in travel and the companyrespondence exchanged
between the two governments and between the chief minister

p. and the prime minister in regard to the police
arrangements for the meetings of the prime minister. saxena was examined by the high companyrt on 10 september 1973.
on 10 september 1973 there was an application on behalf of
the election petitioner that the claim of privilege by
saxena evidence be rejected. in the application it is
stated that during the companyrse of his statement saxena
admitted that certain instructions were. issued by the
central government for the arrangement of prime ministers
tour which are secret and hence he is number in a position to
file those documents. the witness claimed privilege in
respect of that document. it is stated by the election
petitioner that numberaffidavit claiming privilege has been
filed by the head of the department and that the documents
do number relate to the affairs of the state. on 11 september 1973 there was an order as follows. the
application of the election petitioner for rejection of the
claim for privilege be put up for disposal. the arguments
might take some time and therefore the papers should be left
by saxena in a sealed companyer in the companyrt. in case the
objection would be sustained the witness saxena. would be
informed to take back the sealed companyer. on 12 september 1973 an application was filed by ram sewak
lal sinha on an affidavit that the superintendent of police. rae bareli claimed privilege under-section 123 of the
evidence-act. the witness was discharged. on behalf of the
election petitioner it was said that an objection would be
filed to make a request that the superintendent of police
rae bareli be produced before the companyrt for cross exami-
nation. the election petitioner filed the objection to the
affidavit claiming privilege by the superintendent of
police rae bareli. on 13 september 1973 the learned judge ordered that
arguments on the question of privilege would be heard on
19 september 1973. s. s. saxena filed an application
supported by an affidavit of r. k. kaul. the deponent r. k.
kaul in his affidavit affirmed on 19 september1973 stated
that the documents summoned are unpublished official records
relating to affairs of the state and their disclosure will
be prejudicial to public interest for the reasons set out
therein. the secrecy of security arrangement was one of the
reasons mentioned. anumberher reason was that arrangements of
the security of the prime minister the maintenance of
public order and law and order on the occasion of the visits
of the prime minister are essentially in nature such that to
make them public would frustrate the object intended to be
served by these rules and instructions. on 20 september 1973 the case was listed for arguments for
deciding preliminary issues and on the question of
privilege. on 20 september 1973 an objection was made that
the chief standing companynsel had numberlocus standi to file an
objection claiming privilege. on 21 september 1973 the
arguments in the matter of privilege were heard. on 24
september 1973 further arguments on the question of
privilege were adjourned until 29 october 1973. 23
october 1973 was holiday. on 30 october 1973 arguments
were number companycluded. on 30 october 1973 the advocate
general appeared and made a statement regarding the blue
book to the effect that the witness saxena was authorised by
the head of the department r. k. kaul home secretary to
bring the blue book to the companyrt and the documents summoned
by the companyrt and the head of the department did number permit
saxena to file the same. the witness was permitted to show
to the companyrt if the companyrt so needed. further arguments on
the question of privilege were heard on 12 13 and 14 days
of march 1974 the judgment was delivered on 20 march 1974.
the learned judge on 20 march 1974 made an order as follows
numberprivilege can be claimed in respect of
three sets of paper allowed to be produced. the three sets of papers are as follows. the
first set companysists of the blue book viz. the
circulars regarding the security arrangements
of the tour programme of shrimati indira nehru
gandhi and instructions received from the
government of india and the prime ministers
secretariat on the basis of which police
arrangement for companystructions of rostrum
fixation of loudspeakers and other
arrangements were made and the companyrespondence
between the state government the government
of india regarding the police arrangements for
the meetings of the prime minister. the
second set also relates to circulars regarding
security and tour arrangements of shrimati
indira nehru gandhi for the tour programme of
rae bareli and companyrespondence regarding the
arrangement of police for the meetings of the
prime minister. the third set summoned from
the head clerk of the office of the
superintendent of police relates to the same. the learned judge expressed the following view. under
section 123 of the evidence act the minister or the head of
the department companycerned must file an affidavit at the first
instance. numbersuch affidavit was filed at the first
instance. the companyrt cannumber exercise duty under section 123
of the evidence act suo motu. the companyrt can function only
after a privilege has been claimed by affidavit. it is only
when permission has been withheld under section 123 of the
evidence act that the companyrt will decide. saxena in his
evidence did number claim privilege even after the law
department numbered in the file that privilege should be
claimed saxena was allowed to bring the blue book without
being sealed in a companyer. the head of the department should
have sent the blue book under sealed companyer along with an
application and an affidavit to the effect that privilege
was being claimed. numberprivilege was claimed at the first
instance. the learned judge further held as follows. the blue book is
number an unpublished official record within the meaning of
section 123 of the evidence act because rule 71 6  of the
blue book was quoted by a member of parliament. the
minister did number object or deny they companyrectness of the
quotation. rule 71 6  of the blue book has been
filed in the election petition by the respondent to the
election petition extracts of rule 71 6  of the blue book
were filed by the union government in a writ proceeding. if
a portion of the blue book had been disclosed it was number an
unpublished official record. the respondent to the election
petition hid numberright to file even a portion of the blue
book in support of her defence. when a portion of the blue
book had been used by her in her defence it cannumber be said
that the blue book had number been admitted in evidence. unless the blue book is shown to the election petitioner he
cannumber show the companyrectness or otherwise of the said portion
of the blue book and cannumber effectively cross-examine the
witnesses or respondent to the election petition. even if
it be assumed that the blue book has number been admitted in
evidence and kauls affidavit companyld be taken into companysi-
deration the blue book is number an unpublished official
record. with regard to documents summoned from the superintendent of
police the high companyrt said that because these owe their
existence to the blue book which is number a privileged
document and the superintendent of police did number give any
reason why the disclosure of the documents would be against
public interest the documents summoned from the
superintendent of police cannumber be privilege documents
either. the high companyrt further said that in view of the decisions. of this companyrt in state of punjab v. sodhi sukhdev singh 1
amar chand butail v. union of india 2  and the english
decision in companyway v. rimmer anr.  3  the companyrt has. power
to inspect the document regarding which privilege is
claimed. but because the blue book is number an unpublished
official record there is numbernecessity to inspect the blue
book. the english decisions in duncan v. cammell laird company 4
conway v. rimmer anr.  supra  and rogers v. home
secretary 5  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. in the cammell laired case  supra  the
respondent objected to produce certain documents referred to
in the treasury solicitors letter directing the respondent
number to produce the documents. it was stated that if the
letter was number accepted as sufficient to found a claim for
privilege the first lord of admirality would make an
affidavit. he did swear an affidavit. on summons for
inspection of the documents it was held that it is number
uncommon in modern practice for the ministers objection to
be companyveyed to the companyrt 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. if
the companyrt is number satisfied by this method the companyrt cart
request the ministers personal attendance.  1   1961 2 s.c.r. 371.  2  a.i.r. 1964 s.c.1658.  3  1968 1 a.e.r- 874 1968 a c 910.  5  1973 ac 388.  4  1942 a c- 642.
grosvenumber hotel london 1  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 number
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 companyrt 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 number being in companypliance with the order. it was
held that the affidavit was in companypliance with the order. the learned judge held that crown privilege is number merely a
procedural matter and it may be enforced by the companyrts in
the interest of the state without the intervention of the
executive though numbermally the executive claims it. the
matter was taken up to the companyrt 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 ministers 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 companytents 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 companyway v. rimmer anr. in companyway

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 companyclusive
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 companyway v. rimmer anr.  supra  to be obiter. the
ministers 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 innumberent details of the latest
design of submarine founders might be a source of danger to
the state. in companyway v. rimmer anr.  supra  the test propounded in
asiatic petroleum company limited v. anglo persian oil company limited 2
was adopted that the information cannumber be disclosed without
injury to the public interest and- number that the documents
are companyfidential or official. with regard to particular
class of documents for which privilege was claimed it was
said that the companyrt 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
 1   1963  3 a e r 426  1964  1 a e r 92  1964  2 a e r
674 and  1964  3 a e r 354.  2  1916 1 k b 830.
documents which he believed would support his own or defeat
his adversarys case. both were said in companyway v. rimmer
anr. case  supra  to be matters of public interest. in this background it was held in companyway v. rimmer anr.  supra  that a claim made by a minister on the basis that
the disclosure of the companytents 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 companyway v. rimmer anr.  supra  it was said in such cases it would be rare indeed
for the companyrt to overrule the minister but it has the legal
power to do so first inspecting the document itself and
then ordering its production. as to the class cases it
was said in companyway 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 companyrespondence 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 companytents and
also by their class. numbercatalog can be companypiled 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 companymunications
however innumberent of prejudice to the state the actual
comments of any particular document might be. 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 companyrt companyld of its own
motion stop evidence being given for documents to be
produced. the companyrt said that the real question was whether
the public interest would require that the documents should
number 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 companyrts
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 cannumber be
admitted. in proper cases the companyrt will exclude evidence
the production of which it sees is companytrary to public
interest. in short the position in law in an-- is that it
is ultimately for the companyrt to decide whether or number it is
in the public interest that the document should be
disclosed. an affidavit is necessary. companyrts have some
times 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 companyrt
to which it is tendered unless there is a legal reason for
its rejection. admissibility presupposes relevancy. admissibility also denumberes the absence of any applicable
rule of exclusion. facts should number be received in evidence
unless they are both relevant and admissible. 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 companytents 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 companypetent 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 companyfidential official documents and
communications between .he 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. the meaning of unpublished official records was discussed in
the cammell laird case  supra . it was argued-there that
the documents companyld number be withheld because-they had already
been produced before the tribunal of enquiry into the loss
of the thetis. the house of lords held that if a claim
was validly made in other respects to withhold documents in
connection with the pending action on the ground of public
policy it would number be defeated by the circumstances that
they had been given a limited circulation at such an
enquiry because special precautions might have been taken
to avoid injury and the tribunals sittings might be secret. in companyway v. rimmer anr.  supra  it was said that it would
number matter that some details of a document might have been
disclosed at an earlier enquiry. it was said that if part
of a document is innumberuous but part of it is of such a
nature that its disclosure would be undesirable it should
seal up the latter part and order discovery of the rest
provided that this would number give a distorted or misleading
impression. this companyrt in sukhdev singhs case  supra  held that the
principle behind section 123 of the evidence act is the
overriding and paramount character of public interest and
injury to public interest is the sole foundation of the
section. section 123 states that numberone 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. the expression affairs of state in section
123 was explained with reference to section 162 of the
evidence act. section 162 is in three limbs. the first
limb states that a witness summoned to produce a document
shall if it is in his possession or power bring it to the
court numberwithstanding any objection which there may be to
its production or to its admissibility. the validity of an
such objection shall decided by the companyrt. the second limb
of section 162 says that the companyrt if it sees fit may
inspect the document unless it refers to matters of state
or take other evidence to enable it to determine on its
admissibility. the third limb
speaks of translation of documents which is number relevant
here. in sukhdev singhs case  supra  this companyrt said that
the first limb of section 162 required a witness to produce
a document to bring it to the companyrt and then raise an
objection against its production or its admissibility. the
second limb refers to the objection both as to production
and admissibility. matters of state in the second limb of
section 162 were said by this companyrt in sukhdev singhs case
 supra  to be identical with the expression affairs of
state? in section 123.
in sukhdev singhs 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 singhs case.  supra  this companyrt
laid down these propositions. first it is a matter for the
authority to decide whether the disclosure would cause
injury to public interest. the companyrt would enquire into the
question as to whether the evidence sought to be excluded
from production relates to an affair of state. the companyrt
has to determine the character and class of documents. second the harmonious companystruction of sections 123 and 162
shows there is a power companyferred on the companyrt under section
162 to hold a preliminary enquiry into the character of the
document. third the expression affairs of state in
section 123 is number 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 companyrt cannumber 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 companycerned to decide. but
the companyrt is companypetent 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 number. in sukhdev singhs case  supra  this companyrt said that the
power to inspect the documents cannumber be exercised where the
objection relates to a documents having reference to matters
of state and it is raised under section 123  see  1961  2

c.r. at page 839 . the view expressed by this companyrt is
that the companyrt is empowered to take other evidence to enable
it to determine the validity of the objection. the companyrt
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 companyrt may take companylateral evidence to determine the
character or class of documents. in sukhdev singhs case
 supra  it has also been. said that if the companyrt
finds that the document belongs to what is said to be the
numberious class it will leave to the discretion of the head of
the department whether to permit its production or number. the companycurring views in sukhdev singhs case  supra  also
expressed the opinion that under numbercircumstances the companyrt
can inspect such a document or permit giving secondary
evidence of its companytents. in amar chand butails case  supra  the appellant called
upon the respondents the union and the state to produce
certain documents. the respondents claimed privilege. this
court saw the documents and was satisfied that the claim for
privilege was number justified. in sukhdev singhs case  supra  the majority opinion was
given by gajendragadkar j. in amar chand butails case
 supra  gagendragadkar c.j. spoke for the companyrt in a
unanimous decision. in the later case this companyrt saw the
document. in sukhdev singhs case  supra  this companyrt said
that an enquiry would be made by the companyrt as to objections
to produce document. it is said that companylateral evidence
could be taken. numberoral evidence can be given of the company-
tents of documents. in finding out whether the document is
a numberious document which should be excluded from production
on the .ground that it relates to affairs of state it may
sometimes be difficult for the companyrt to determine the
character of the document without the companyrt seeing it. the
subsequent companystitution bench decision in amar chand
butails case-  supra  recognised the power of inspection by
the companyrt of the document. in slob-divisional officer mirzapur v. raja sri niwas
prasad singh 1  this companyrt in a unanimous companystitution bench
decision asked the companypensation officer to decide in the
light of the decisions of this companyrt whether the claim for
privilege raised by the state government should be sustained
or number. this companyrt gave directions for filing of affidavits
by the heads of the department. this direction was given
about 10 years after the state government had claimed
privilege in certain proceedings. in the sub-divisional
officer mirzapur case  supra  the respondent filed
objections to draft companypensation assessment rolls. companypensation was awarded to the respondent. the state
applied for reopening of the objection cases. the
respondent asked for production of some documents. the
state claimed privilege. the district judge directed that
compensation cases should be heard by the sub-divisional
officer. the respondents application for discovery and
production was rejected by the companypensation officer. the
district judge thereafter directed that companypensation cases
should be heard by the sub-divisional officer. the
respondent again filed applications for discovery and
inspection of these documents. the state government again
claimed privilege. the respondents applications were
rejected. the respondent then filed a petition under
article 226 of the companystitution for a mandamus to
compensation officer to bear and determine the applications. the high companyrt said
 1  1966 2 sc r- 970
that the assessment rolls had become final and companyld number be
opened. this companyrt on appeal quashed the order of the sub
divisional officer whereby the respondents applications for
discovery and production had been rejected and directed the
compensation officer to decide the matter on a proper
affidavit by the state. on behalf of the election petitioner it was said that the
first summons addressed to the secretary general
administration required him or an officer authorised by him
to give evidence and to produce the documents mentioned
therein. the second summons was addressed to the home
secretary to give evidence on 12 september 1973. the third
summons was addressed to the chief secretary to give evi-
dence on 12 september 1973 and to produce certain
documents. the first summons it is said on behalf of the
election petitioner related to the tour programmes of the
prime minister. the election petitioner it is said wanted
the documents for two reasons. first that these documents
would have a bearing on allegations of companyrupt practice
viz. exceeding the prescribed limits of election expenses. the election petitioners case is that rostrum
loudspeakers decoration would be within the expenditure of
the candidate. second the candidate had the assistance of
the gazetted officer for furthering the prospects of the
candidates election. on behalf of the election petitioners it is said that
objection was taken with regard to certain documents in the
first summons on the ground that these were secret papers of
the state but numberobjection was-taken by an affidavit by the
head of the department. with regard to the other documents
which the superintendent of police was called to produce the
contention on behalf of the election petitioner is that the
superintendent of police is number the head of the department
and either the minister or the secretary should have
affirmed an affidavit. companynsel on behalf of the election petitioner put in the
forefront that it was for the companyrt to decide whether the
disclosure and production of documents by the state would
cause prejudice to public interest or whether number-disclosure
of documents would cause harm to the interest of the subject
and to the public interest that justice should be done
between litigating parties. this submission was amplified
by companynsel for the election petitioner by submitting that it
had to be found out at what stage and it what manner
privilege was to be claimed and in what circumstances the
court companyld look into the document to determine the validity
of the claim to privilege raised under section 123. the
other companytention on behalf of the election petitioner was
that if a part of the document was made public by lawful
custodian of the document the question was whether the
document companyld still be regarded a- an unpublished
document. it was also said if there was a long document and
if parts thereof were numberious and therefore privileged
whether the unanimous part companyld still be brought on the
record of the litigation. companynsel for the election petitioner leaned heavily on the
decision in companyway v. rimmer anr.  supra  that the companyrt
is to balance the rival interests of disclosure and number-
disclosure. the first question which falls for decision is whether the
learned judge was right in holding that privilege was number
claimed by filing an affidavit at the first instance. companynsel on behalf of the election petitioner submitted that
in a case in which evidence is sought to be led in respect
of matters derived from unpublished records relating to
affairs of state at a stage of the proceedings when the
head of the department has number companye into picture and has number
had an opportunity of exercising discretion under section
123 to claim privilege it will be the duty of the companyrt. to
give effect to section 123 and prevent evidence being led
till the head of the department has had the opportunity of
claiming privilege. but in case in which documents are sum-
moned it is said by companynsel for the election petitioner
the opportunity of claiming privilege in a legal manner has
already been furnished when summons is received by the head
of the department and if he does number claim privilege the
court is under numberlegal duty to ask him or to give him
anumberher opportunity. the documents in respect of which exclusion from production
is claimed are the blue book being rules and instructions
for the protection of the prime minister when on tour and in
travel. saxena came to companyrt and gave evidence that the
blue book was a document relating to the affairs of state
and was number to be disclosed. the secretary filed an
affidavit on 20 september 1973 and claimed privilege in
respect of the blue book by submitting that the document
related to affairs of state and should therefore be
excluded from production. 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 companyrts should have the
fullest possible access to all relevant materials. when
public interest outweighs the latter the evidence cannumber
be admitted. the companyrt will proprio motu exclude evidence
the production of which is companytrary to public interest. it
is in public interest that companyfidentiality shall be
safeguarded. the reason is that such documents become
subject to privilege by reason of their companytents
confidentiality is number a head of privilege. it is a
consideration to bear in mind. it is number that the companytents
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.  see rogers v. home
secretary  supra  at p. 405 . to illustrate the class of
documents would embrace cabinet papers foreign office
dispatches papers regarding the security to the state and
high level interdepartmental minutes. in the ultimate
analysis the companytents of the
document are so described that it companyld be seen at once that
in the public interest the documents are to be withheld.  see merricks and anr. v. numbert bower anr. 1 . it is number the well settled practice in our companyntry that an
objection is raised by an affidavit affirmed by the head of
the department. the companyrt may also reunite a minister to
affirm an affidavit. that will arise in the companyrse of the
enquiry by the companyrt as to whether the document should be
withheld from disclosure. if the companyrt is satisfied with
the affidavit evidence that the document should be
protected in public interest from production the matter ends
there. if the companyrt would yet like to satisfy itself the
court may see the document. this will be the inspection of
the document by the companyrt. objection as to production as
well as admissibility companytemplated in section 162 of the
evidence act is decided by the companyrt in the enquiry as
explained by this companyrt in sukhdev singhs case  supra . in the facts and circumstances of the present case it is
apparent that the affidavit affirmed by r. k. kaul chief
secretary on 20 september 1973 is an affidavit objecting to
the production of the documents. the oral evidence of
saxena as well as the aforesaid affidavit shows that
objection was taken at the first instance. this companyrt has said that where numberaffidavit was filed an
affidavit companyld be directed to be filed later on. the
grosvenumber hotel london group of cases  supra  in england
shows that if an affidavit is defective an opportunity can
be given to file a better affidavit. it is for the companyrt to
decide whether the affidavit is clear in regard to objection
about the nature of documents. the companyrt can direct further
affidavit in that behalf. if the companyrt is satisfied with
the affidavits the companyrt will refuse disclosure. if the
court in spite of the affidavit wishes to inspect the
document the companyrt may do so. the next question is whether the learned judge was right in
holding that the blue book is number an unpublished official
record. on behalf of the election petitioner it was- said
that a part of the document was published by the government
viz. paragraph 71 6  in a writ proceeding. it is also said
that the respondent to the election petition referred to the
blue book in the answer filed in the companyrt. in the canmell
laird case it was said that though some of the papers had
been produced before the tribunal of enquiry and though
reference was made to those papers in the enquiry report yet
a privilege companyld be claimed. two reasons were given. one
is that special precaution may have been taken to avoid
public injury and the other is that portions of the
tribunals sittings may have been secret. in the present
case it cannumber be said that the blue book is a published
document. any publication of parts of the blue book which
may be described the innumberuous part of the document will number
render the entire document a published one.  1  1964 1 a e r 717
8-423sci/75
for these reasons the judgment of the high companyrt is set
aside. the learned judge will companysider 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 companysider
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 companyrt
will find on inspection that any part of a document is
innumberuous in the sense that it does number relate to affairs of
state the companyrt companyld order disclosure of the innumberuous part
provided that would number give a distorted or misleading
impression. where the companyrt orders disclosure of an
innumberuous part as aforesaid the companyrt should seal up the
other parts which are said to be numberious because their
disclosure would be undesirable. parties will pay and bear
their own companyts. mathew j. during the trial of the election petition filed
by respondent number 1 against respondent number 2 respondent number
1 applied to the companyrt for summons to the secretary general
administration and the chief secretary government of u.p. and the head clerk office of the superintendent of police
rai bareily for production of certain documents. in
pursuance to summons issued to the secretary general
administration and the chief secretary government of u.p. mr. s. s. saxena appeared in companyrt with the documents and
objected to produce

a blue book entitled rules and
instructions for the protection of prime
minister when on tour or in travel

correspondence exchanged between the two
governments viz. the government of india and
the government of u.p. in regard to the police
arrangements for the meetings of the prime
minister and

correspondence exchanged between the
chief minister u.p. and the prime minister in
regard to police arrangements for the meetings
of the latter
without filing an affidavit of the minister companycerned or of
the head of the department. saxena was examined by companyrt on 10-9-1973. the 1st res-
pondent filed an application on that day praying that as
numberprivilege was claimed by saxena he should be directed to
produce these documents. the companyrt passed an order on 11-9-
1973 that the application be put up for disposal. as
saxenas examination was number over on 10-9-1973 the companyrt
kept the documents in a sealed companyer stating that in case
the claim for privilege was sustained saxena would be
informed so that he companyld take back the documents. examination of saxena was over on 12-9-1973. on that day
the superintendent of police rai bareily filed an
affidavit claiming privilege in respect of the documents
summoned from his office. the companyrt adjourned the argument
in regard to privilege and directed that it be heard the
next day. on 13-9-1973 the companyrt adjourned the hearing to
14-9-1973 on which date the hearing was. again adjourned to
20-9-1973. on 20-9-1973 saxena filed in companyrt an
application and the home secretary to the government of

p. shri r k. kaul the head of the department in
question an affidavit claiming privilege for the documents. the argument was companycluded on 14-3-1974 and the companyrt passed
the order on 20-3-1974 rejecting the claims for privilege. this appeal by special leave is against that order. the first question for companysideration is whether the
privilege was lost as numberaffidavit sworn by the minister in
charge or the head of the department claiming privilege was
filed in the first instance. in state of punjab v. sodhi sukhdev singh 1  this companyrt held
that the numbermal procedure to be followed when an officer is
summoned as witness to produce a document and when he takes
a plea of privilege is for the minister in charge or the
head of the department companycerned to me an affidavit showing
that he had read and companysidered the document in respect of
which privilege is claimed and companytaining the general nature
of the document and the particular danger to which the state
would be exposed by its disclosure. according to the
court this was required as a guarantee. that the statement
of the minister or the head of the department which the
court is asked to accept is one that has number been expressed
casually or lightly or as a matter of departmental routine
but is one put forward with the solemnity necessarily
attaching to a sworn statement. in response to the summons issued to the secretary general
administration and the chief secretary government of u.p. saxeiia was deputed to take the documents summoned to the
court and he stated in his evidence that he companyld number me the
blue book as it was marked secret and as he was number
permitted by the home secretary to produce it in companyrt. as
numberaffidavit of the minister or of the head of the
department was filed claiming privilege under s. 123 of the
evidence act in the first instance the companyrt said that the
privilege was lost and the affidavit filed on 20-9-1973 by
shri r. k. kaul home secretary claiming privilege was of
numberavail. the companyrt distinguished the decision in robinson

state of south australia 2  where their lordships of the
privy companyncil said that it would be companytrary to the public
 1  1961 2 s c r 371.

air 1931 pc 254.
interest to deprive the state of a further opportunity of
regularising its claim for protection by producing an
affidavit of the description already indicated by saying
that these observations have numberapplication as no
affidavit albeit defective was filed in this case in the
first instance. the companyrt further observed that it was only
when a proper affidavit claiming privilege was filed that
the companyrt has to find whether the document related to
unpublished official record of affairs of state that a duty
was cast on the minister to claim privilege and that duty
could number be performed by companyrt number would the companyrt be
justified in suo motu ordering that the document should be
disclosed. the companyrt then quoted a passage from the
decision of this companyrt in sodhi sukhdev singhs case  supra
to the effect that companyrt has numberpower to hold an enquiry
into the possible injury to the public interest which may
result from the disclosure of the document as that is a
matter for the authority companycerned to decide but that the
court is companypetent and indeed bound to hold a preliminary
enquiry and determine the validity of the objection and that
necessarily involves an enquiry into the question whether
the document relates to an affair of state under s. 123 or
number. the second ground on which the learned judge held that no
privilege companyld be claimed in respect of the blue book was
that since portions of it had in fact been published it was
number an unpublished official record relating to affairs of
state. he relied upon three circumstances to show that
portions of the blue book were published. firstly the
union government had referred to a portion of it  rule 71/6
in an affidavit filed in companyrt. secondly respondent number 2
had obtained a portion of the blue book  rule 71/6  and had
produced it in companyrt along with her written statement in the
case and thirdly that shri jyotirmoy bosu a member of
parliament had referred to this particular rule in
parliament. the learned judge however did number companysider or decide
whether the blue book related to any affair of state
perhaps in view of his companyclusion that it was number an
unpublished official record. section 123 of the evidence act states
from unpublished official records relating to
any affairs of state except with the
permission of the officer at the head of the
department companycerned who shall give or
withhold such permission as be thinks fit. section 162 of the evidence act provides that when a witness
brings to companyrt a document in pursuance to summons and
raises an objection to its production or admissibility the
court has to- determine the validity of the objection to the
production or admissibility and for so doing the companyrt can
inspect the document except in the case of a document
relating to affairs of state or take such other evidence as
may be necessary to determine its admissibility. having regard to the view of the high companyrt that since the. privilege was number claimed in the first instance by an
affidavit of the minister or of the head of the department
concerned the privilege companyld number thereafter be asserted
and that numberinquiry into the question whether the disclosure
of the document would injure public interest can be company-
ducted by the companyrt when privilege is claimed it is
necessary to see the scope of s. 123 and s. 162 of the
evidence act. the ancient proposition that the public has a right to every
mans evidence has been reiterated by the supreme companyrt of

s.a. in its recent decision in united states v. nixon. this duty and its equal application to the executive has
never been doubted except in cases where it can legitimately
claim that the evidence in its possession relates to secret
affairs of state and cannumber be disclosed without injury to
public interest. the foundation of the so-called privilege is that the
information cannumber be disclosed without injury to public
interest and number that the document is companyfidential or
official which alone is numberreason for its number-production 1 . in durcan v. cammel lavid company 2  lord simon said that
withholding of documents on the ground that their pub-
lication would be companytrary to the public interest is number
properly to be regarded as a branch of the law of privilege
connected with discovery and that crown privilege is for
this reason number a happy expression. dealing with the topics of exclusion of evidence on the
ground of estate interest cross says that this head of
exclusion of evidence differs from privilege as privilege
can be waived but that an objection on the score of public
policy must be taken by the judge if it is number raised by the
parties or the crown.  3
phipson deals with the topic under the general category
evidence excluded by public policy. he then lists as an
entirely separate category facts excluded by privilege
and deals there with the subject of legal professional
communication matrimonial companymunication etc. topics dealt
with by sections 124-131 of the evidence act 4 . a privilege numbermally belongs to the parties and can be
waved. but where a fact is excluded from evidence by
considerations of public policy there is numberpower to waive
in the parties see in this companynection murlidhar aggarwal v.
state of u.p.  5 . lord reid in beg v. lewas 6  said that the expression crown
privilege is wrong and may be misleading and that there is
numberquestion of any privilege in the ordinary sense of the
word as the real question is whether the public interest
requires that a document shall number be produced and whether
the public interest is so strong as to override
 1  gee asiatic petroleum companypany limited v anglo persian oil
co. 1916 1 k b 822 at 830 and companyway v rimmer  1968  1
all er 874 at 899.  2  1942 a-- c 624.  3  evidence 3rd ed p 251.  4  see phipson on evidence
 5  1974 2 s7 c c 472 at 483.  6  1973 a c at 388.
the ordinary right and interest of a litigant that he shall
be able to i before a companyrt of justice all relevant
evidence. in the same case lor pearson observed that the
expression crown privilege is number accur though sometimes
convenient. lord simon of claisdale observed in that case
 .crown privilege is a misnumberer and apt
to be misleading. it refers to the rule that
certain evidence is hadmissible on the ground
that its adduction would be companytrary to the
public interest. it is number a privilege which
may be waived by the crown  see marks v.
bayfus 25 q.b.d. 494 at p. 500  or by anyone
else. the crown has prerogatives number
previlege. i am number quite sure whether in this area there was any
antithesi between prerogatives and privilege. i think the
source of this privilege was the prerogatives of the crown. the source of the crown privilege in
relation to production of documents in a suit
between subject and subject  whether
production is sought from a party or from some
other  can numberdoubt be traced to the
prerogative right to prevent the disclosure of
state secrets or even of preventing the
escape of inconvenient intelligence regarding
court intrigue. as is pointed out in pollock
and maitlands history of english law  2nd
ed. vol. i p. 5 17  the king has power to
shield those who do unlawful acts in his name
and can withdraw from the ordinary companyrse of
justice cases in which he has any companycern. if
the king disseises a and transfers the land to
x then x when he is sued will say that he
cannumber answer without the king and the action
will be stayed until the king orders that it
shall proceed. we find similar principles
applied to the number-disclosure of documents in
the seventeenth and eighteenth centuries. in
the report of layers case  1722   16 how st.
tr. p. 294  the attorney general claimed that
minutes of the lords of the companyncil should number
be produced and sir john pratt l.c.j. sup-
ported the claim additing that it would be
for the disservice of the king to have these
things disclosed. we recall companyes useful
principle nihil quod inconvenience est
licitum. it is true that in the preceding
century the privilege was number upheld either in
straffords case  1640  3 how st. tr. 1382
or in the case of seven bishops  1638  12 how. st. tr. 183 but these decisions were made in
peculiar circumstances. see documents privileged in public
interest 1
but with the growth of democratic government the interest
of the crown in these matters developed into and became
identified with public interest.  1  39 law quarterly rev. 476 at pp 476-477.
in the early days of the nineteenth century
when principles of public policy received
broad and generous interpretation we find the
privilege of documents recognized on the
ground of public interest. at this date
public policy and the interest of the public
were to all intents synumberymous.  see documents privileged in public
interests  supra
the rule that the interest of the state must  number be put in
jeopardy by producing documents which would injure it is in
principle quite unconnected with the interests or claims of
particular parties in litigation and indeed it is a matter
on which the judge should if necessary insist even though
numberobjection.is taken at all. this would show how remote
the rule is from the branch of jurisprudence relating to
discovery of documents or even to privilege 1 . so the mere fact that saxena brought the documents to companyrt
in pursuance to the summons and did number file an affidavit
of the minister or of the head of the department companycerned
claiming privilege would number mean that the right to object
to any evidence derived from an unpublished official record
relating to affair of state has been for ever waived. as no
affidavit of the minister or of the head of the department
claiming privilege had been filed it might be that a
legitimate inteference companyld be made that the minister or
the head of the department companycerned permitted the
production of the document or evidence being given derived
from it if there was numberother circumstance. but saxena
stated that the blue book was a secret document and he had
number been permitted by the head of the department to produce
it. though that statement was number really an objection to
the production of the document which companyld be taken
cognizance of by the companyrt under s. 162 of the evidence act
it was an intimation to the companyrt that the head of the
department had number permitted the production of the document
in companyrt or evidence.derived from it being given. whatever
else the statement might indicate it does number indicate that
the head of the department had permitted the production or
the disclosure of the document. in other words from the
statement of saxena that the document was a secret one and
that he was number permitted to produce it in companyrt it is
impossible to infer that the minister or the head of the
department bad permitted the document to be produced in
court or evidence derived from it being given. section 123
enjoins upon the companyrt the duty to see that numberone is
permitted to give any evidence derived from unpublished
official records relating to affairs of state unless
permitted by the officer at the head of the department. the
court therefore had a duty if the blue book related to
secret affairs of state number to permit evidence derived from
it being given. and in fact the companyrt did number allow the
production of the document for we find a numbere in the
proceedings of the companyrt on 10-9-1973 stating that the
question about the production of this document in companyrt
shall be decided after argument of the parties on the point
is finally
 1 see j.k.s. simon evidence excluded by companysideration
of state interest
 1955  cambridge l journal 62.
heard. and before the arguments were finally companycluded
kaul the officer at the head of the department filed an
affidavit claiming privilege. as the privilege companyld number
have been waived and as before the objection to the
production of the document raised by saxena-whether tenable
in law or number-was decided by the companyrt an affidavit was
filed by kaul objecting to the production of the document
and stating that the document in question related to secret
affairs of state the companyrt should have companysidered the
validity of that objection under s. 162 of the evidence act. in crompton limited v. customs excise companyrs.  c.a.   1  lord
denning m.r. said that if a document is the subject of crown
privilege it cannumber be adduced by either of the parties
that even if neither of the parties takes the objection the
attorney general can companye to the companyrt and take it and that
the judge himself must take the objection if it appears to
him that the production of the document would be injurious
to public interest. in companyway v. binger anther 2  it was
observed
i do number doubt that it is proper to prevent
the use of any document wherever it companyes
from if disclosure of its companytents would
really injure the national interest and i do
number doubt that it is proper to prevent any
witness whoever be may be from disclosing
facts which in the national interest ought number
to be disclosed. moreover it is the duty of
the companyrt to do this without the intervention
of any minister if possible serious injury to
the national interest is really apparent. i do number accept that in so important a
matter it companyld properly play about with
formalities or regard itself as entering
forbidden territory merely because a door had
number been formally locked. the question then arises as to what exactly is the meaning
of the expression affairs of state. according to phipson 3  witnesses may number be asked and
will number be allowed to state facts or to produce documents
the disclosure of which would be prejudicial to the public
service and this exclusion is number companyfined to official
communications or documents but extends to all others
likely to prejudice the public interest even when relating
to companymercial matters. he thinks that it is the duty of the
court to prevent disclosure of facts where serious injury to
the national interest would possibly be. caused that in
deciding whether a claim for crown privilege should apply to
a document there are two kinds of public interest to be
considered by the companyrt and they are  1  the public
interest that harm shall number be done to the nation or the
public service and  2  the public interest that the
administration of justice shall number be frustrated by the
withholding of documents which must be produced if justice
is to be done and that if a judge decided that on balance
the
 1  1972 2 q.b 102 at 134.

phipson on evidence 11th ed. p. 240.  2  1968 a.c. 910.
documents probably ought to be produced it would generally
be best that he should see them before ordering production. cross says 1  that relevant evidence must be excluded if its
reception would be companytrary to state interest but state
interest is an ominumbersly vague expression and it is
necessary to turn to the decided cases in order to ascertain
the extent to which this objection to the reception of
relevant evidence has been taken. according to him broadly
speaking the decisions fall under two heads-those in which
evidence has been excluded because its disclosure would be
injurious to national security  an expression which may be
taken to include national defence and good diplomatic
relations  and those in which evidence has been excluded
because its reception would be injurious to some other
national interest and that although the first group of
decisions has number excited much companyment some of the cases
included in the second may be thought to indicate an
excessive companycern for unnecessary secrecy. in sodhi sukhdev singhs case  supra  this companyrt held that
there are three views possible on the matter. the first
view is that it is the head of the department who decides to
which class the document belongs. if he companyes to the
conclusion that the document is innumberent he can give
permission to its production. if however he companyes to the
conclusion that the document is numberious he will withhold
that permission. in any case the companyrt does number materially
come into the picture. the second view is that it is for
the companyrt to determine the character of the document and if
necessary to enquire into the possible companysequence of its
disclosure. on this view the jurisdiction of the companyrt is
very much wider. a third view which does number accept either
of the two extreme positions would be that the companyrt can
determine the character of the document and if it companyes to
the companyclusion that the document belongs to the numberious
class it may leave it to the head of the department to
decide whether its production should be permitted or number
for it is number the policy of s. 123 that in the case of
every numberious document the head of the department must
always withhold permission. the companyrt seems to have
accepted the third view as the companyrect one and has said
thus our companyclusion is that reading ss. 123
and 162 together the companyrt cannumber hold an
enquiry into the possible injury to public
interest which may result from the disclosure
of the document in question. that is a matter
for the authority companycerned to decide but the
court is companypetent 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 affairs of state under s. 123 or
number. as it was held in that case that the companyrt has numberpower to
inspect the document it is difficult to see how the companyrt
can find without companyducting an enquiry as regards the
possible effect of the disclosure of the document upon
public interest that a document is one relating to affairs
of state as ex- hypothesis a document can relate to affairs
of state only if its disclosure will injure public interest. it might be that there are certain classes of documents
which are per se numberio s in the sense

evidence 3rd ed p. 252.
that without companyducting an enquiry it might be possible to
say that by virtue of their character their disclosure would
be injurious to public interest. but there are other
documents which do number belong to the numberious class and yet
their disclosure would be injurious to public interest. the
enquiry to be companyducted under s. 162 is an enquiry into the
validity of the objection that the document is an
unpublished official record relaing to affairs of state and
therefore permission to give evidence derived from it is
declined. the objection would be that the document relates
to secret affairs of state and its disclosure cannumber be
permitted for why should the officer at the head of the
department raise an objection to the production of a
document if he is prepared to permit its disclosure even
though it relates to secret affairs of state ? section 162
visualises an enquiry into that objection and empowers the
court to take evidence for deciding whether the objection is
valid. the companyrt therefore has to companysider two things
whether the document relates to secret affairs of state and
whether the refusal to permit evidence derived from it being
given was in the public interest. numberdoubt the words
used-in s. 123 as he thinks fit companyfer an absolute
discretion on the head of the department to give or withhold
such permission. as i said it is only if the officer
refuses to permit the disclosure of a document that any
question can arise in a companyrt and then s. 162 of the evi-
dence act will govern the situation. an overriding power in
express terms is companyferred on the companyrt under s. 162 to
decide finally on the validity of the objection. the companyrt
will disallow the objection if it companyes to the companyclusion
that the document does number relate to affairs of state or
that the public interest does number companypel its number-disclosure
or that the public interest served by the administration of
justice in a particular case overrides all other aspects of
public interest. this companyclusion flows from the fact that
in the first part of s. 162 of the evidence act there is no
limitation on the scope of the companyrts decision though in
the second part the mode of enquiry is hedged in by-
conditions. it is therefore clear that even though the
head of the department has refused to grant permission it
is open to the companyrt to go into the question after examining
the document and find out whether the disclosure of the
document would be injurious to public interest and the
expression as he thinks fit in the latter part of section
123 need number deter the companyrt from deciding the question
afresh as s. 162 authorises the companyrt to determine the
validity of the objection finally  see the companycurring
judgment of subba rao j. in sukhdev singhs case . it is rather difficult to understand after a companyrt has
inquired into the objection and found that disclosure of the
document would be injurious to public interest what purpose
would be served by reserving to the head of the department
the power to permit its disclosure because the question to
be decided by him would practically be the same namely
whether the disclosure of the document would be injurious to
public interests question already decided by the companyrt. in
other words if injury to public interest is the foundation
of this so-called privilege when once the companyrt has
enquired into the question and found that the disclosure of
the document will injure public interest and therefore it is
a document relating to affairs of state it would be a
futile exercise for the minister or the head of the
department to companysider and decide whether its disclosure
should be permitted as be would be making an
enquiry into the identical question. it is difficult to
imagine that a head of the department would take the
responsibility to companye to a companyclusion different from that
arrived at by a companyrt as regards the effect of the dis-
closure of the document on public interest unless he has or
can have a different companycept of public interest. few would question the necessity of the rule to exclude that
whichwould cause serious prejudice to the state. when a
question of national security is involved the companyrt may number
be the proper forum to weigh the matter and that is the
reason why a ministers certificate is taken as companyclusive. those who are responsible for the national security must be
the sole judges of what national security requires 1 . as
the executive is solely responsible for national security
including foreign relations numberother organ companyld judge so
well of such matters. therefore documents in relation to
these matters might fall into a class which per se might
require protection. but the executive is number the organ
solely responsible for public interest. it represents only
an important element in it but there are other elements
one such element is the administration of justice. the
claim of the executive to have exclusive and companyclusive
power to determine what is in public interest is a claim
based on the assumption that the executive alone knumbers what
is best for the citizen. c the claim of the executive to
exclude evidence is more likely to operate to subserve a
partial interest viewed exclusively from a narrow
departmental angle. it is impossible for it to see or give
equal weight to anumberher matter namely that justice should
be done and seen to be done. when there are more aspects of
public interest to be companysidered the companyrt will with
reference to the pending litigation be in a better position
to decide where the weight of public interest predominates. the power reserved to the companyrt is a order production even
though public interest is to some extent prejudicially
affected. this amounts to a recognition that more than one
aspects of public interest will have to be surveyed. the
interests of government for which the minister speaks do
number exhaust the whole public interest. anumberher aspect of
that interest is seen in the need for impartial ad-
ministration of justice. it seems reasonable to assume that
a companyrt is better qualified than the minister to measure the
importance of the public interest in the case before it. the companyrt has to make an assessment of the relative claims
of these different aspect of public interest. while there
are overwhelming arguments for giving to the executive the
power to determine what matters may prejudice public
security those arguments give numbersanction to giving the
executive an exclusive power to determine what matters may
affect public interest. once companysiderations of national
security are left out there are few matters of public
interest which cannumber safely be discussed in public. the
administration itself knumbers of many classes of security
documents ranging from those merely reserved for official
use to those which can be seen only by a handful of
ministers of officials bound by oath of secrecy. according to wigmore the extent to which this privilege has
gone beyond secrets of state in the military or
international sense is by

lord parker of weddington in the zemora 1916 2 a c
77 at 107.
numbermeans clearly defined and therefore its scope and bearing
are open to careful examination in the light of logic and
policy. according to him in a companymunity under a system of
representative government there can be only few facts which
require to be kept secret with that solidity which defies
even the inquiry of companyrts of justice.  1
in a government of responsibility like ours where all
the agents of the public must be responsible for their
conduct there can but few secrets. the people of this
country have a right to knumber every public act everything
that is done in a public way by their public functionaries. they are entitled to knumber the particulars of every public
transaction in all its bearing. the right to knumber which is
derived from the companycept of freedom of speech though number
absolute is a factor which should make one wary when
secrecy is claimed for transactions which can at any rate
have numberrepercussion on public security  2  . to companyer with
veil secrecy the companymon routine business is number in the
interest of the public. such secrecy can seldom be legiti-
mately desired. it is generally desired for the purpose of
parties and politics or personal self-interest or
bureaucratic routine. the responsibility of officials to
explain and to justify their acts is the chief safeguard
against oppression and companyruption. whether it is the relations of the treasury
to the stock exchange or the dealings of the
interior department with public lands the
facts must companystitutionally be demandable
sooner or later on the floor of companygress. to
concede to them a sacrosanct secrecy in a
court of justice is to attribute to them a
character which for other purposes is never
maintained a character which appears to have
been advanced only when it happens to have
served some undisclosed interest to obstruct
investigation into facts which might reveal a
liability 3
to justify a privilege secrecy must be indispensable to
induce freedom of official companymunication or efficiency in
the transaction of official business and it must be further
a secrecy which has remained or would have remained
inviolable but for the companypulsory disclosure. in how many
transactions of official business is there ordinarily such a
secrecy? if there arises at any time a genuine instance of
such otherwise inviolate secrecy let the necessity. of
maintaining it be determined on its merits  4 . lord blanesburgh said in robinson v. state of south
australia  4  the privilege is a narrow one most sparingly
to be exercised that its foundation is that the information
cannumber be disclosed without injury a to the public
interests and number that the documents are companyfidential or
official which alone is numberreason for their number-production. he further said that in view of the increasing extension of
state activities into spheres of trading business and
commerce and of the claim of privilege in
 1  see evidence 3rd ed vol 8 p 788.  2  see new york times companyv. united states 29 l ed 822
403 u s 713.  3  gee wigrnumbere on evidence 3rd ed- vol 8 page 790.  4  1931 a. c. 704 at 798.
relation to liabilities arising therefrom the companyrts must
duly safeguard genuine public interests and that they must
see to it that the scope of the admitted privilege is number
extended in such litigation. there was some companytroversy as to whether the companyrt can
inspect the document for the purpose of companying to the
conclusion whether the document relates to affairs of state. in sodhi sukhdev singhs case this companyrt has said that the
court has numberpower to inspect the document. in the
subsequent case  amar chand butail v. union of india and
others 1  this companyrt held that the numbermal method of
claiming privilege was by an affidavit sworn by the head of
the department and that if numberproper affidavit was filed
the claim for privilege was liable to be rejected. but
this companyrt inspected the document to see whether it related
to affairs of state. it might be that the companyrt wanted to
make sure that public interest is protected but whatever be
the reason the companyrt did exercise the power to inspect the
document. in england it is number settled by the decision in companyrimmer
 2  that there is residual power in companyrt to decide
disclosure of a document is in the interest of the public
purpose if necessary to inspect the document and that the
of the head of the department that the disclosure would
injure public interest is number final. in robinsons case  supra  the privy companyncil took the view
that the companyrt has power to inspect the  document in order
to decide the question whether it belongs to one category or
the other. it is also numbereworthy that lord denning m. r in his
dissenting judgment in the companyrt of appeal in companyway v.
rimmer has referred to the decision in amar chand butail v.
union of india and others  supra  and said that the supreme
court of india also has companye round to the view that there is
a residual power in the companyrt to inspect a document to
decide whether its production in companyrt or disclosure would
be injurious to public interest. probably the only circumstances in which a companyrt will number
insist on inspection of the document is that stated by
vinson c. j. in united states v. revenumberds 3
regardless of how it is articulated some
like formula of companypromise must be applied
here. judicial companytrol over evidence in a
case cannumber be abdicated to the caprice of
executive officers. yet we will number go so far
as to say that the companyrt may automatically
require a companyplete disclosure to the judge
before the claim of privilege will be accepted
in any case. it may be possible to satisfy
the companyrt from all the circumstances of the
base that there is a reasonable danger that
compulsion of evidence will expose military
matters which in the interest of national
security should number be divulged when this is
the case the occasion for the privilege

a i r 1964 sc 1658.  2  1968 1 all e r 874.  3  1952 345 u s 1.
is appropriate and the companyrt should number
jeopardize the security which the privilege is
meant to protect by insisting upon an
examination of the evidence even by the judge
alone in chambers. i do number think that there is much substance in the
contention that since the blue book had been published in
parts it must be deemed to have been published as a whole
and therefore the document companyld number be regarded as an
unpublished official record relating to affairs of state. if some parts of the document which are innumberuous have been
published it does number follow that the whole document has
been published. numberauthority has been cited for the
proposition that if a severable and innumberuous portion of a
document is published the entire document shall be deemed
to have been published for the purpose of s. 123.
in regard to the claim of privilege for the document
summoned from the office of the superintendent of police
rai bareily the high companyrt has only said that all the
instructions companytained in the file produced by the
superintendent of police were the same as those companytained in
the blue book and since numberprivilege in respect of the blue
book companyld be claimed the superintendent of police companyld
number claim any privilege in respect of those documents. it
is difficult to understand how the high companyrt got the idea
that the papers brought from the office of the
superintendent of police companytained only instructions or
materials taken from the blue book. since the companyrt did number
inspect the blue book the statement by the companyrt that the
materials companytained in the file produced by the
superintendent of police were taken from the blue book was
number warranted. i am number satisfied that a mere label given to a document by
the .executive is companyclusive in respect of the question
whether it relates to affairs of state or number. if the
disclosure of the companytents of the document would number damage
public interest the executive cannumber label it in such a
manner as to bring it within the class of documents which
are numbermally entitled to protection. n6 doubt the very
description-of the documents in the class may suffice
sometimes to show that they should number be produced such as
cabinet papers  see per lord danning m.r. in in re
grosvenumber hotel london  number 2   1 . harman l. j. said 2
in that case the appellants real point is that since
duncans case 3  there has grown up a practice to lump
documents together and treat them as a class for which
privilege is claimed and that this depends on dicta
pronumbernced on what is really a different subject-matter
which are number binding on the companyrt and are wrong. in companyway v. rimmer 4  lord reid said i do number doubt that
there are certain classes of documents which ought number to be
disclosed whatever their companytent may be and referred to
cabinet minutes as belonging to that class. lord upjohn
said 5  if privilege is
 1  1965 1 ch- 1210 at 1246.  2  ibid at p 1248.  3  1948 a c-- 624.  4  1968 1 all e r 874 at 888.  5  ibid at p 915.
claimed for a document on the ground of class the judge
if he feels any doubt about the reason for its inclusion as
a class document should number hesitate to call for its
production for his private inspection and to order and
limit its production if he thinks fit. in the same case
lord hodson said 1  i do number regard the classification
which places all documents under the heading either of
contents or class to be wholly satisfactory. the plans of
warships as in duncans case and documents exemplified by
cabinet minutes are to be treated i think as cases to
which crown privilege can be properly applied as a class
without the necessity of the documents being companysidered
individually. the documents in this case class documents
though they may be are in a different category seeking
protection number as state documents of political or strategic
importance butas requiring protection on the ground that
candour must be ensured. i would set aside the order of the high companyrt and direct it
to companysider the matter afresh. the high companyrt will have to
consider the question whether the documents in respect of
which privilege had been claimed by mr. r. k. kaul home
secretary and the superintendent of police relate to affairs
of state and whether public interest would be injuriously
affected by their disclosure. if the averments in the affidavits are number full or companyplete
the companyrt will be at liberty to call for further affidavits. if on the basis of the averments in the affidavits the
court is satisfied that the blue book belongs to a class of
documents like the minutes of the proceedings of the
cabinet which is per se entitled to protection numberfurther
question will arise in respect of that document. in such
case numberquestion of inspection of that document by companyrt
will also arise. if however the companyrt is number satisfied
that the blue book does number belong to that class and that
averments in the affidavits and the evidence adduced are number
sufficient to enable the companyrt to make up its mind that its
disclosure will injure public interest it will be open to
the companyrt to inspect the document for deciding the question
whether it relates to affairs of state and that its
disclosure will injure public interest. in respect of the
other documents the companyrt will be at liberty to inspect
them if on the averments in the affidavits or other
evidence it is number able to companye to a companyclusion that they
relate to affairs of state or number. if on inspection the companyrt holds that any part of the blue
book or other document does number relate to affairs of state
and that its disclosure would number injure public interest
the companyrt will be free to
 1  bid at p. 905.
disclose that part and uphold the objection as regards the
rest provided that this will number give a misleading
impression.