What is 'privileged communication'? Whether cabinet-note placed ...immune from judicial scrutiny...

Question: What is 'privileged communication'? Whether cabinet-note placed for discussion before the Cabinet Ministers is immune from judicial scrutiny under Section 123 of the Evidence Act. Discuss with the help of decided cases. [HPJS 2023]

Find the answer to the mains question of the Law of Evidence only on Legal Bites. [What is 'privileged communication'? Whether cabinet-note placed for discussion before the Cabinet Ministers is immune from judicial scrutiny under Section 123 of the Evidence Act. Discuss with the help of decided cases.]

Answer

Privileged communication refers to confidential information exchanged between specific parties in a relationship of trust, which is protected from disclosure in legal proceedings. Under the Indian Evidence Act, 1872, certain communications are treated as privileged to safeguard the confidentiality of state affairs, professional relationships (e.g., lawyer-client), and other sensitive exchanges.

Section 123 of the Indian Evidence Act, 1872 states: 

“No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the head of the department concerned, who shall give or withhold such permission as he thinks fit.”

This means that documents relating to the affairs of the state are considered privileged and cannot be disclosed unless the head of the concerned department permits it. The objective is to protect state secrets and the smooth functioning of government affairs.

A cabinet note is a confidential document prepared for discussion among Cabinet Ministers regarding government policies or decisions. The Supreme Court has addressed whether such notes are immune from judicial scrutiny under Section 123 in several landmark cases:

1. S.P. Gupta v. President of India (1981 AIR 149) (Judges' Transfer Case): The Court held that the claim of privilege under Section 123 cannot be absolute. The judiciary has the authority to examine whether the document relates to state affairs and whether disclosure would harm the public interest. The court ruled that documents concerning state affairs could be subject to judicial scrutiny if public interest demands disclosure.
2. R.K. Jain v. Union of India (1993 AIR 1769): The Supreme Court held that while cabinet notes are generally protected under Section 123, the court can order their disclosure if it determines that the public interest in disclosure outweighs the harm to confidentiality.
3. State of Uttar Pradesh v. Raj Narain (1975 AIR 865): Raj Narain challenged Indira Gandhi’s election victory and sought the production of the "Blue Book" detailing security protocols for the Prime Minister. The State of Uttar Pradesh claimed privilege under Sections 123 and 162 of the Indian Evidence Act, citing public interest. The High Court rejected the claim due to the absence of an initial affidavit by the head of the department. The Supreme Court reversed this, holding that privilege is based on public interest and can be asserted even if the affidavit is filed late. The Court directed the High Court to inspect the documents and decide based on public interest.

Cabinet notes are prima facie privileged under Section 123 of the Indian Evidence Act. However, the judiciary has the authority to examine whether the public interest in disclosure outweighs the harm caused by disclosure. Courts have held that privilege is not absolute, and documents can be ordered to be disclosed if justice and transparency require it.

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