P.S. Narayanaswamy vs The State of Madras

Ramaswami, J.—This is a civil revision petition filed against the order made by the learned Subordinate Judge of Ootacamund in I.A. No.

335 of 1950 in O. S. No. 74 of 1949.

The facts are: The petitioner P.S. Narayanaswami before us was employed in the Chinchona Directorate located at Ootacamund. He has been

dismissed from service. Thereupon, he has filed the suit O. S. No. 74 of 1949 against the State of Madras. This former dismissed employee

wanted the production of a considerable quantity of unpublished official records. Therefore, summons was issued to the Director who is the head

of this department. He looked into the records asked to be produced. Then he has filed an affidavit classifying the records sought to be produced

under two heads, viz., those in regard to which he claimed privilege on the ground that the disclosure of those documents would be prejudicial to

public interest and those which might be disclosed. The records were sent to court with an affidavit. The learned Subordinate Judge applied his

own mind and upheld the claim of privilege in regard to documents for which privilege was claimed. In regard to documents which the director had

no objection to disclose the plaintiff stated them to be irrelevant for his purpose. Thereupon the learned Subordinate Judge has passed an order to

that effect and the present petition is preferred against that order.

There are no merits in this petition at all because what has been done in the lower court is in strict compliance with Section 124 of the Indian

Evidence Act as interpreted in leading decisions. The substance of these leading decisions can be summarised as follows. On an application by a

party for the production of these documents, summons should be issued to the head of the department concerned. That head of the department

must thereupon apply his mind to the documents sought to be disclosed and come to his own conclusion whether public interest would or would

not be suffered by such disclosure. He has then to claim privilege if he chooses to do so by means of a communication, preferably in the form of an

affidavit, claiming privilege and sufficiently indicating why he is claiming the privilege. It is also desirable but not indispensable that the records

should be sent in a sealed cover through an officer of the department claiming privilege. The statement of the head of the department would be

considered conclusive unless for compelling reasons to the contrary and the privilege will be upheld. But in any event it is the duty of the court to

apply its own mind as to whether the claim is not arbitrary and capricious and if need be it would be open to the court to look into the documents

and come to its own conclusion.

In other words, u/s 124, Evidence Act, the four stages are, summoning, application of the mind of the head of the department to the documents

sought to be disclosed and coming to the conclusion whether the privilege should be claimed or not, communicating this claim of privilege

preferably by means of an affidavit and sending wherever possible the concerned documents in a sealed cover through an officer of the department

claiming privilege and the application of the presiding Judge''s mind to the claim put forward and accepting it unless the claim is arbitrary or

capricious or false. The final decision of both the departmental head as well as the presiding judge will be governed by only one consideration viz.,

whether the disclosure would result in an injury being caused to the public interest as the section gives effect to the principle that public interest

must be paramount and private interest must give way when there is a conflict between public and private interests. The only loyalty which the

section contemplates and which must undoubtedly prevail over private interest is the loyalty to the State in the sense that public interest must prevail

over private interest and the disclosure of a particular document will damnify public interest and so even though injustice may be done to private

interest it is much better that such injustice should be done rather than public interest should be injured by the disclosure of a document: vide --

Lady Dinbai Dinshaw Petit and Others Vs. The Dominion of India and Another, decided by Chagla C. J. and Bhagavati J.

The aforesaid principles which constitute the four stages are deducible from the following decisions on this matter which can be grouped into, the

decisions of the Madras High Court, the decisions of other High Courts and the decision of the House of Lords. In --''Nagaraja Pillai v. Secretary

of State'', 39 Mad 304 a Bench of this court held that the object of Section 124, Evidence Act, is to prevent the disclosures to the detriment of

public interests and the decisions as to such detriment rests with the officer to whom the communication is made and does not depend upon the

special use of the word ""confidential"". The decision in -- ''Venkatachala Chettiar v. Sampathu Chettiar'', 32 Mad 62 was followed.

In -- Suppiah Mooppanar Vs. Mallappa Chetty and Others, , Jackson J. held that the public officer concerned and not the Judge is to decide

whether the evidence referred to should"" be given or withheld and if the objection is taken by the proper person the court will not go behind it. u/s

124, it rested exclusively with the public officer concerned to withhold or give permission as he is the. sole judge as to whether public interest will

or will not suffer by the disclosure though such discretion must naturally be exercised on well established principles and not arbitrarily.

In -- In Re: Makky Moithu and Others, Horwill J. on a question whether a certain report made by the Deputy Tahsildar of a Government Forest

to the Collector was privileged, held that Section 124, Evidence Act, left it to the court to consider whether the communication was of the nature

covered by the section; that is, the court has to decide whether the section can be applied. If it does the court has to exclude the document if the

public officer concerned considers that public interest will suffer by the disclosure. Where the report was undoubtedly a confidential document and

was not intended to be revealed to the public but only to such persons to whom the Collector thought fit to send it, the court cannot question the

decision.

Three other decisions of the other High Courts may be usefully referred to in this connection. In. -- ''Weston v. Peary'', 40 Cal 898 it was laid

down that protection under this section is not dependent upon a claim of privilege being put forward. It is the duty of the Judge himself to exclude

the evidence. A fortiori if objection is taken it cannot be made a ground of adverse inference as the law allows it. In --''Governor-General in

Council v Peer Mohd.'', AIR 1950 EP 228 a Full Bench of the Punjab High Court held that where the privilege claimed is attached to state papers

which are of an administrative character the disclosure of which would be injurious to the proper functioning of the public services the court can

hold an enquiry into the validity of an objection. But it is nevertheless true that once the court comes to the conclusion that the document relates to

an affair of the State, the decision of the head of the department to give or withhold permission to its production must be accepted as final.

Ordinarily, the head of the department will mean the officer who is in control of the department and in whose custody the records of the

department remain. Similarly in -- ''I.M. Lall v. Secretary of State'', AIR 1944 Lah 209, it was held that the principle or foundation on which

Section 123 rests is concern for the public interest. If an affidavit is made by the head of the department that he does not wish to produce certain

documents as they constitute unpublished official records relating to affairs of State, he is deposing by implication that the production of those

documents will be prejudicial to public interest. The use of the word ""concerned"" in relation to the head of the department shows that the affidavit

must contain a sworn statement by the head of the department in whose custody the documents happen to be at the time when discovery and

production is claimed.

These decisions are based upon a long line of English decisions of which the most important is the decision of the House of Lords in -- ''Ducnan

v. Cammell Laird and Co.'', 1942 AC 624. Their Lordships have clearly laid down the principles which are embodied for us in Sections 123 and

124, Evidence Act

A court of law should uphold an objection taken by a public department, called on to produce documents in a suit between private citizens, if on

grounds of public policy they ought not to be produced. Documents otherwise relevant and liable to production must not be produced if the public

interest requires that they should be withheld. The test may be found to be satisfied either (a) by having regard to the contents of the particular

documents, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as such be withheld from production.

It is essential that the decision to object should be taken by the minister who is the political head of department concerned and that he should have

seen and considered the contents of the documents and himself formed the view that on the grounds of public interest they ought not to be

produced. If the question arises before trial the objection would ordinarily be taken by affidavit of the minister. If it arises on ''subpeona'' the

objection may in the first instance be conveyed to the Court by an official of the department, who produces a certificate signed by the minister

stating what is necessary, but if the court is not satisfied it can request the minister''s personal attendance.

An objection validly taken to production on the ground that it would be injurious to the public interest is conclusive. The mere fact that the minister

or the department does not wish the documents to be produced is not an adequate justification for objecting to their production. Production should

only be withheld when the public interest would otherwise be damnified, as where disclosure would be injurious to national defence or to good

diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. In

such a case, the court should not require to see the document, for the purpose of ascertaining whether the disclosure would be injurious to the

public interest.

So, applying those principles the lower court has correctly decided that documents Nos. 4, 5, 7, 8, 10, 12, 14 and 17 to 20 cannot be asked to

be produced and marked as evidence.

There are no merits in this civil revision petition and it is hereby dismissed with costs. Advocate''s fee Rs. 50/-.