Explain the legislative policy behind Sections 123 and 162 of the Indian Evidence Act, 1872?

Question: Explain the legislative policy behind Sections 123 and 162 of the Indian Evidence Act, 1872?

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Answer

The matter of State privilege is a matter of constitutional law and is dealt with specifically under Sections 123 and 162 of the Indian Evidence Act. The present law on the subject of State privilege in so far as it relates to the production of evidence as such is principally contained in sections 123, 124 and 162 of the Indian Evidence Act, 1872. Lord Justice Salmon described the power as “vital to the true administration of justice”.

Section 123: Evidence as to Affairs of State: “No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer (at the head of the department concerned), who shall give or withhold such permission as he thinks fit”

Section 123 protects unpublished State records from being disclosed. This section is based on the maxim “Saluspopuli est supreme lex”, i.e., regard for public welfare is the highest law. The general rule is that the witness is bound to tell the whole truth and to produce any document in his possession or power, relevant to the matter in issue.

However, in certain cases, the production of the official documents may be injurious to the larger public interest, as, for instance, it may harm State’s security, good diplomatic relations, etc. In such cases, the State has been given the privilege not to produce certain documents which relate to “affairs of the State”.

Section 123 must be read in conjugation with Section 162. Section 162 provides that when a person has been summoned to produce a document he should produce it even if he has any objection to its production and the court shall decide the matter of his objection; the court may inspect the document unless it refers to matters of State.

Section 162 is not confined to State privilege as such but concerns itself with the procedure for determination of all questions of privilege, whether the privilege is claimed under the head of State privilege or under any other head. The sections with evidentiary privilege claimed on behalf of the State on the basis of certain considerations of high policy considerations more appropriately called public interest.

Under this section and section 162, the court cannot hold an enquiry into the possible injury to the public interest which may result from the disclosure of the document in respect of which privilege is claimed under this section.

That is a matter for the authority concerned to decide, but the court is competent, and indeed is bound to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of the State under this section or not.

In this enquiry, the court has to determine the character or class of the document. Although in such an enquiry the court cannot permit any evidence about the contents of the document, other collateral evidence can be produced which may assist the court in determining the validity of the objection under this section.

The privilege is a narrow one and must be sparingly used. Production of documents without any objection and without claim of privilege amounts to waiver and there would be nothing to debar the court from examining the documents [Chaudhary v. Governor of Bihar, AIR 1980 SC 383]

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