Case Summary
| Citation | State of U.P. v. Raj Narain (1975) 4 SCC 428 |
| Keywords | sec 123 IEA, evidence as to affairs of state, election, Indira Gandhi |
| Facts | Raj Narain filed ‘Election Petition’ challenging election of Smt. Indira Gandhi. He alleged misuse of public funds by a political party that fraudulently used the finances to re-elect the Prime Minister of India. The petition was filed before the Allahabad High Court. The petitioner Raj Narain asked the Government of U.P. to produce the Blue Book, which contained the guidelines for the safety of the Prime Minister when he/she travels. The High Court of Allahabad ruled that the Blue Book did not certify the conditions underlying Section 123 of the Indian Evidence Act, 1872, which states that no one can give any singular evidence which derives from unpublished sensitive official records which relate to the affairs of the State. The High Court of Allahabad ordered that the Blue Book need to be produced, as the non- production of the document will jeopardize public interest, and gave the verdict in favor of Mr. Raj Narain. Decision of Allahabad High Court was challenged before Supreme Court. |
| Issues | Whether the Blue Book was an unpublished government record within the meaning of Section 123 of the Evidence Act? |
| Contentions | |
| Law Points | A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which are relevant to the issue. Secrets of State, State papers, confidential official documents and communications between the 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 principle behind Section 123 of the Evidence Act is the overriding and paramount character of public interest. In Sukhdev Singh case this Court said that the first limb of Section 162 required a witness to produce a document to bring it to the Court 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 Court in Sukhdev Singh case to be identical with the expression “affairs of State” in Section 123. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court rather than State in the enquiry. 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 courts should have the fullest possible access to all relevant materials. The Court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non- disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. An overriding power in express terms is conferred on the Court under Section 162 to decide finally on the validity of the objection. |
| Judgement | In the present case, it cannot be said that the Blue Book is a published document. Anypublication of parts of the Blue Book which may be described as innocuous part of thedocument will not render the entire document a published one. Decision of High Court was set aside in this case. |
| Ratio Decidendi & Case Authority |
Full Case Details
RAY, C.J. – This is an appeal by special leave from the judgment dated March 20, 1974 of
the learned Single Judge of the High Court at Allahabad, holding that no privilege can be
claimed by the Government of Uttar Pra-desh 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.
2. Shri Raj Narain, the petitioner in Election Petition No. 5 of 1971 in the High Court of
Allahabad, made an application on July 27, 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:
3. First, the Secretary, General Administration, State of Uttar Pradesh, Lucknow 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 February 1, 24 and 25, 1971 or any general
order for security arrangement; and (a) all correspondence between the State Government and
the Government of India and between the Chief Minister and the Prime Minister regarding
police arrangement for meetings of the Prime Minister by Stale Government and in regard to
their expenses.
4. Second, the Chief Secretary, Government of Uttar Pradesh, Lucknow was also
summoned along with inter alia the documents, namely, (a) 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 February 1, 24 and 25, 1971; (b) all correspondence 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 meetings for the Prime Minister by State
Government and in regard to their expenses.
5. 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
programme of Shrimati Indira Nehru Gandhi of District Rae Bareli for February 1 and 25,
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, arrangement for constructions of rostrum, fixation of loudspeakers
and other arrangements through Superintendent of Police, District Rae Bareli.
6. On September 3, 1973 the summons was issued to the Secretary, General
Administration. The summons was endorsed to the Confidential Department by the General
Department on September 3, 1973 as will appear from paragraph 5 of the affidavit of R. K.
Kaul, Commissioner and Secretary in-charge. On September 5, 1973 there was an application
by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for
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clarification to the effect that the Chief Secretary is not personally required to appear pursuant
to the summons. The learned Judge made an order on that day that the Chief Secretary need
not personally attend and that the papers might be sent through some officer. On September 6,
1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul,
Home Secretary as well as Secretary, Confidential Department, to go to the High Court with
the documents summoned and to claim privilege. This will appear from the application of S.
S. Saxena dated September 19, 1973.
7. In paragraph 4 of the said application it is stated that in compliance with the summons
issued by the High Court 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 containing rules and instructions for the protection of the Prime
Minister when on tour and in travel, and the correspondence exchanged between the two
governments and between the Chief Minister, U. P. and the Prime Minister in regard to the
police arrangements for the meetings of the Prime Minister.
8. Saxena was examined by the High Court on September 10, 1973. On September 10,
1973 there was an application on behalf of the election petitioner that the claim of privilege
by Saxena in his evidence be rejected. In the application it is stated that during the course of
his statement Saxena admitted that certain instructions were issued by the Central
Government for the arrangement of Prime Minister’s tour which are secret and hence he is not
in a position to file those documents. The witness claimed privilege in respect of that
document. It is stated by the election petitioner that no affidavit claiming privilege has been
filed by the Head of the Department and that the documents do not relate to the affairs of the
State.
9. On September 11, 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 cover in the
Court. In case the objection would be sustained, the witness Saxena would be informed to
take back the sealed cover.
10. On September 12, 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 Court for cross examination. The election petitioner filed the
objection to the affidavit claiming privilege by the Superintendent of Police, Rae Bareli.
11. On September 13, 1973 the learned Judge ordered that arguments on the question of
privilege would be heard on September 19, 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 September
19, 1973 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. Another
reason was that arrangements of the security of the Prime Minister, the maintenance of public
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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.
12. On September 20, 1973 the case was listed for arguments for deciding preliminary
issues and on the question of privilege. On September 20, 1973 an objection was made that
the Chief Standing Counsel had no locus standi to file an objection claiming privilege. On
September 21, 1973 the arguments in the matter of privilege were heard. On September 24,
1973 further arguments on the question of privilege were adjourned until October 29, 1973.
October 29, 1973 was holiday. On October 30, 1973 arguments were not concluded. On
October 30, 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 Court and the documents summoned
by the Court and the Head of the Department did not permit Saxena to file the same. The
witness was permitted to show to the Court if the Court 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 March 20, 1974.
13. The learned Judge on March 20, 1974 made an order as follows:
No privilege can be claimed in respect of three sets of papers allowed to be
produced. The three sets of papers are as follows: The first set consist-, of the Blue
Book, viz., the circulars regarding the security arrangements of the tour programme
of Snnmati Indira Nehru Gandhi and instructions received from the Government of
India and the Prime Minister’s Secretariat on the basis of which police arrangement
for constructions of rostrum, fixation of loudspeakers and other arrangements were
made, and the correspondence between the State Government and 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
correspondence 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.
14. The learned Judge expressed the following view. Under Section 123 of the Evidence
Act the minister or the head of the department concerned must file an affidavit at the first
instance. No such affidavit was filed at the first instance. The Court cannot exercise duty
under Section 123 of the Evidence Act suo motu. The court 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 Court will decide. Saxena in his evidence did not claim
privilege even after the Law Department noted in the file that privilege should be claimed.
Saxena was allowed to bring the Blue Book without being sealed in a cover. The head of the
department should have sent tile Blue Book under sealed cover along with an application and
an affidavit to the effect that privilege was being claimed. No privilege was claimed at the
first instance.
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15. The learned Judge further held as follows. The Blue Book is not 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 not object or deny
the correctness 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 not an unpublished official record. The respondent to the election
petition had no right 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 cannot be said that the Blue
Book had not been admitted in evidence. Unless the Blue Book is shown to the election
petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book
and cannot effectively cross-examine the witnesses or respondent to the election petition.
Even if it be assumed that the Blue Book has not been admitted in evidence and Kaul’s
affidavit could be taken into consideration, the Blue Book is not an unpublished official
record.
16. With regard to documents summoned from the Superintendent of Police the High
Court said that because these owe their existence to the Blue Book which is not a privileged
document and the Superintendent of Police did not give any reason why the disclosure of the
documents would be against public interest, the documents summoned from the
Superintendent of Police cannot be privileged documents either.
17. The High Court further said that in view of the decisions of this Court in State of
Punjab v. Sodhi Sukhdev Singh [AIR 1961 SC 493]; Amar Chand Butail v. Union of India
[AIR 1964 SC 1658] and the English decision in Conway v. Rimmer [(1968) 1 All ER 874],
the Court has power to inspect the document regarding which privilege is claimed. But
because the Blue Book is not an unpublished official record, there is no necessity to inspect
the Blue Book.
18. The English decisions in Duncan v. Cammell Laird & Co. [1942 AC 624]; Conway
v. Rimmer and Rogers v. Home Secretary [1973 AC 388], 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 Laird case the respondent
objected to produce certain documents referred to in the Treasury Solicitor’s letter directing
the respondent not to produce the documents. It was stated that if the letter was not 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 not uncommon in modem practice for the Minister’s objection to be conveyed to the
Court 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 Court is not satisfied
by this method the Court can request the Minister’s personal attendance.
19. Grosvenor Hotel, London group of cases [(1963) 3 All ER 426]; [(1964) 1 All ER
92]; [(1964) 2 All ER 674]; and [(1964) 3 All ER 354] 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 not properly made. The applicant asked for leave to
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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 Court 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 not being
in compliance with the order. It was held that the affidavit was in compliance with the order.
The learned Judge held that Crown privilege is not merely a procedural matter and it may be
enforced by the courts in the interest of the State without the intervention of the Executive,
though normally the Executive claims it. The matter was taken up to the Court of Appeal,
which upheld the order of the Chamber Judge. It was observed that the nature of prejudice to
the public interest should be specified in the Minister’s affidavit except in case where the
prejudice is so obvious that it would be unnecessary to state it.
20. In the Cammell Laird case 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 contents 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 was examined in Conway v. Rimmer. In Conway v. Rimmer it was held
that although an objection validly taken to production on the ground that this would be
Injurious to the public interest is conclusive 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 was said in Conway v. Rimmer to be obiter. The Minister’s claim of
privilege in the Cammell Laird case was at a time of total war when the slightest escape to the
public of the most innocent details of the latest design of submarine founders might be a
source of danger to the State.
21. In Conway v. Rimmer the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo
Persian Oil Co. Ltd. [(1961) 1 KB 830] was adopted that the information cannot be disclosed
without injury to the public interest and not that the documents are confidential or official.
With regard to particular class of documents for which privilege was claimed it was said that
the Court 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 documents which he
believed would support his own or defeat his adversary’s case. Both were said in Conway v.
Rimmer case to be matters of public interest.
22. In this background it was held in Conway v. Rimmer that a claim made by a minister
on the basis that the disclosure of the contents 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
Conway v. Rimmer it was said
(I)n such cases it would be rare indeed for the court 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 Conway v. Rimmer that some documents by their
very nature fall into a class which requires protection. These are Cabinet papers, Foreign
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Office despatches, the security of the State, high level inter-departmental minutes and
correspondence 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
contents and also by their ‘class’. No catalogue can be compiled 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 leam of these high level communications, however innocent of prejudice to the
State the actual contents of any particular document might be.
23. In Rogers v. Home Secretary 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 Court could of its own
motion stop evidence being given for documents to be produced. The Court said that the real
question was whether the public interest would require that the documents should not 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 courts 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 cannot be admitted. In proper cases the Court will exclude evidence the
production of which it sees is contrary to public interest. In short, the position in law in
England is that it is ultimately for the Court to decide whether or not it is in the public interest
that the document should be disclosed. An affidavit is necessary. Courts have sometimes held
certain class of documents and information to be entitled in the public interest to be immune
from disclosure.
24. Evidence is admissible and should be received by the Court to which it is tendered
unless there is a legal reason for its rejection. Admissibility presupposes relevancy.
Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not
be received in evidence unless they are both relevant and admissible. The principal rules of
exclusion under which evidence becomes inadmissible are twofold. 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 sometimes estopped from
proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion
and of extrinsic evidence of the contents 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.
25. A witness, though competent 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, State papers, confidential official documents and communications between the
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.
28. This Court in Sukhdev Singh case 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 of foundation of the section. Section 123 states that no one shall be
permitted to give any evidence derived from unpublished official records relating to any
146
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, notwithstanding any
objection which there may be to its production or to its admissibility. The validity of any such
objection shall be decided by the Court. The second limb of Section 162 says that the Court, 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 not relevant here. In Sukhdev Singh case this Court said that the first
limb of Section 162 required a witness to produce a document to bring it to the Court 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 Court in Sukhdev Singh case to be identical with the expression
“affairs of State” in Section 123.
29. In Sukhdev Singh case 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 Singh case this Court laid down these propositions. First, it is a matter for the
authority to decide whether the disclosure would cause injury to public interest. The Court
would enquire into the question as to whether the evidence sought to be excluded from
production relates to an affair of State. The Court has to determine the character and class of
documents. Second, the harmonious construction of Sections 123 and 162 shows there is a
power conferred on the Court under Section 162 to hold a preliminary enquiry into the
character of the document. Third, the expression “affairs of State” in Section 123 is not
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 Court
cannot 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 concerned to decide. But
the Court is competent 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 affair of State under Section 123 or not.
30. In Sukhdev Singh case this Court said that the power to inspect the document cannot
be exercised where the objection relates to a document having reference to matters of State
and it is raised under Section 123. The view expressed by this Court is that the Court is
empowered to take other evidence to enable it to determine the validity of the objection. The
Court, it is said, can take other evidence in lieu of inspection of the document in dealing with
147
a privilege claimed or an objection raised even under Section 123. It is said that the Court
may take collateral evidence to determine the character or class of documents. In Sukhdev
Singh’s case it has also been said that if the Court finds that the document belongs to what is
said to be the noxious class it will leave to the discretion of the head of the department
whether to permit its production or not.
33. In Sukhdev Singh case the majority opinion was given by Gajendragadkar, J. In
Amar Chand Butail case Gajendragadkar, C.J. spoke for the Court in a unanimous decision.
In the later case this Court saw the document. In Sukhdev Singh case this Court said that an
enquiry would be made by the Court as to objections to produce document. It is said that
collateral evidence could be taken. No oral evidence can be given of the contents of
documents. In finding out whether the document is a noxious document which should be
excluded from production on the ground that it relates to affairs of State, it may sometimes be
difficult for the Court to determine the character of the document without the Court seeing it.
The subsequent Constitution Bench decision in Amar Chand Butail case recognised the
power of inspection by the Court of the document.
34. In Sub-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh [AIR 1966 SC
1164], this Court in a unanimous Constitution Bench decision asked the Compensation
Officer to decide in the light of the decisions of this Court whether the claim for privilege
raised by the State Government should be sustained or not. This Court gave directions for
filing of affidavits by the heads of the departments. This direction was given about 10 years
after the State Government had claimed privilege in certain proceedings. In the
Sub-Divisional Officer, Mirzapur case the respondent filed objections to draft compensation
assessment rolls. Compensation 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 respondent’s application for discovery and
production was rejected by the Compensation Officer. The District Judge thereafter directed
that compensation cases should be heard by the Sub-Divisional Officer. The respondent again
filed applications for discovery and inspection of those documents. The State Government
again claimed privilege. The respondent’s applications were rejected. The impendent then
filed a petition under Article 226 of the Constitution for a mandamus to Compensation
Officer to hear and determine the applications. The High Court said that the assessment rolls
had become final and could not be opened. This Court on appeal quashed the order of the
Sub-Divisional Officer whereby the respondent’s applications for discovery and production
had been rejected and directed the Compensation Officer to decide the matter on a proper
affidavit by the State.
35. 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 September 12, 1973. The third summons
was addressed to the Chief Secretary to give evidence on September 12, 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
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documents for two reasons. First, that these documents would have a bearing on allegations of
corrupt practice, viz., exceeding the prescribed limits of election expenses. The election
petitioner’s case is that rostrum, loudspeakers, decoration would be within the expenditure of
the candidate. Second, the candidate had the assistance of the gazetted officers for furthering
the prospects of the candidate’s election.
36. On behalf of the election petitioner 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 no objection was taken by an affidavit affirmed 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 petition is that the Superintendent of Police is not the
head of the department and either the Minister or the Secretary should have affirmed an
affidavit.
39. The first question which falls for decision is whether the learned Judge was right in
holding that privilege was not claimed by filing an affidavit at the first instance. Counsel 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 not come into picture and has not had an
opportunity of exercising discretion under Section 123 to claim privilege it will be the duty of
the Court 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
summoned, it is said by Counsel 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 not claim privilege the court is under no legal duty to ask
him or to give him another opportunity.
40. 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 court and gave evidence that the Blue Book was a document relating
to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on
September 20, 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.
41. 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 courts should have the fullest possible access to all
relevant materials. When public interest outweighs the latter, the evidence cannot be admitted.
The Court will proprio motu exclude evidence the production of which is contrary to public
interest. It is in public interest that confidentiality shall be safeguarded. The reason is that
such documents become subject to privilege by reason of their contents. Confidentiality is not
a head of privilege. It is a consideration to bear in mind. It is not that the contents 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. To illustrate the class of documents
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would embrace Cabinet papers. Foreign Office despatches, papers regarding the security of
the State and high level inter-departmental minutes. In the ultimate analysis the contents of
the document are so described that it could be seen at once that in the public interest the
documents are to be withheld.
42. It is now the well settled practice in our country that an objection is raised by an
affidavit affirmed by the head of the department. The Court may also require a minister to
affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the
document should be withheld from disclosure. If the Court is satisfied with the affidavit
evidence that the document should be protected in public interest from production the matter
ends there. If the Court would yet like to satisfy itself the Court may see the document. This
will be the inspection of the document by the Court. Objection as to production as well as
admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the
enquiry as explained by this Court in Sukhdev Singh case.
44. This Court has said that where no affidavit was filed an affidavit could be directed to
be filed later on. The Grosvenor Hotel, London group of cases in England shows that if an
affidavit is defective an opportunity can be given to file a better affidavit. It is for the Court to
decide whether the affidavit is clear in regard to objection about the nature of documents. The
Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the
Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the
document the Court may do so.
45. The next question is whether the learned Judge was right in holding that the Blue
Book is not 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 Court. In the Cammell 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 could 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 Tribunal’s sittings may have been secret. In the present case, it cannot
be said that the Blue Book is a published document. Any publication of parts of the Blue
Book which may be described as innocuous part of the document will not render the entire
document a published one.
46. For these reasons, the judgment of the High Court is set aside. The learned Judge will
consider the affidavit affirmed 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 consider 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 Court will find on inspection that any part of a document is innocuous in the sense that it
does not relate to affairs of State the Court could order disclosure of the innocuous part
provided that would not give a distorted or misleading impression. Where the Court orders
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disclosure of an innocuous part as aforesaid the Court should seal up the other parts which are
said to be noxious because their disclosure would be undesirable.
K.K. MATHEW, J. – During the trial of the election petition filed by respondent No. 1
against respondent No. 2, respondent No. 1 applied to the Court 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, Rae Bareli, 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 Court with the documents
and objected to produce:
(1) A Blue Book entitled “Rules and Instructions for the Protection of Prime
Minister when on tour or in travel”;
(2) 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
(3) 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 concerned or of the head of the department.
48. Saxena was examined by Court on September 10, 1973. The first respondent filed an
application on that day praying that as no privilege was claimed by Saxena, he should be
directed to produce these documents. The Court passed an order on September 11, 1973 that
the application be put up for disposal. As Saxena’s examination was not over on September
10, 1973, the Court kept the documents in a sealed cover stating that in case the claim for
privilege was sustained, Saxena would be informed so that he could take back the documents.
Examination of Saxena was over on September 12, 1973. On that day, the Superintendent of
Police, Rae Bareli, filed an affidavit claiming privilege in respect of the documents
summoned from his office. The Court adjourned the argument in regard to privilege and
directed that it be heard the next day. On September 13, 1973 the Court adjourned the hearing
to September 14, 1973 on which date the hearing was again adjourned to September 20, 1973.
On September 20, 1973, Saxena filed in Court an application and the Home Secretary to the
Government of U. P., Shri R. K. Kaul, the head of the Department in question an affidavit
claiming privilege for the documents. The argument was concluded on March 14, 1974 and
the Court passed the order on March 20, 1974 rejecting the claims for privilege. This appeal,
by special leave, is against that order.
49. The first question for consideration is whether the privilege was lost as no affidavit
sworn by the minister in charge or the head of the department claiming privilege was filed in
the first instance.
50. In State of Punjab v. Sodhi Sukhdev Singh, this Court held that the normal 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 concerned
to file an affidavit showing that he had read and considered the document in respect of which
privilege is claimed and containing the general nature of the document and the particular
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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 not 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.
51. In response to the summons issued to the Secretary, General Administration and the
Chief Secretary, Government of U. P., Saxena was deputed to take the documents summoned
to the Court and he stated in his evidence that he could not file the Blue Book as it was
marked ‘secret’ and as he was not permitted by the Home Secretary to produce it in Court. As
no affidavit of the minister or of the head of the department was filed claiming privilege under
Section 123 of the Evidence Act in the first instance, the Court said that privilege was lost and
the affidavit filed on September 20, 1973 by Shri R. K. Kaul, Home Secretary, claiming
privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South
Australia [AIR 1931 PC 254] where their Lordships of the Privy Council said that it would
be contrary to the public 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 no application as, no affidavit, albeit defective, was filed
in this case in the first instance. The Court further observed that it was only when a proper
affidavit claiming privilege was filed that the Court 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, that duty could not be performed by Court, nor would the Court be justified
in suo motu ordering that the document should be disclosed. The Court then quoted a passage
from the decision of this Court in Sodhi Sukhdev Singh case to the effect that Court has no
power 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 concerned to decide but
that the Court is competent 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 Section 123 or not.
52. The second ground on which the learned Judge held that no privilege could be
claimed in respect of the Blue Book was that since portions of it had in fact been published, it
was not 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 Court. Secondly,
respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in
court 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.
55. Having regard to the view of the High Court that since the privilege was not claimed
in the first instance by an affidavit of the minister or of the head of the department concerned,
the privilege could not thereafter be asserted and that no inquiry into the question whether the
disclosure of the document would injure public interest can be conducted by the court when
privilege is claimed, it is necessary to see the scope of Section 123 and Section 162 of the
Evidence Act.
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56. The ancient proposition that the public has a right to every man’s evidence has been
reiterated by the Supreme Court of U. 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 cannot be disclosed without injury to public interest.
57. The foundation of the so-called privilege is that the information cannot be disclosed
without injury to public interest and not that the document is confidential or official which
alone is no reason for its non-production. In Duncan v. Cammell Laird & Co., Lord Simon
said that withholding of documents on the ground that their publication would be contrary to
the public interest is not properly to be regarded as a branch of the law of privilege connected
with discovery and that ‘Crown privilege’ is, for this reason, not a happy expression.
58. Dealing with the topics of exclusion of evidence on the ground of ‘state 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
not raised by the parties or the Crown.
63. The rule that the interest of the State must not 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 no objection 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.
64. So, the mere fact that Saxena brought the documents to court in pursuance to the
summons and did not file an affidavit of the minister or of the head of the department
concerned claiming privilege would not mean that the right to object to any evidence derived
from an unpublished official record relating to affairs of State has been forever 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 inference could be made that the Minister or the head of the
department concerned permitted the production of the document or evidence being given
derived from it, if there was no other circumstance. But, Saxena stated that the Blue Book was
a secret document and he had not been permitted by the head of the department to produce it.
Though that statement was not really an objection to the production of the document which
could be taken cognizance of by the Court under Section 162 of the Evidence Act, it was an
intimation to the Court that the head of the department had not permitted the production of the
document in Court or evidence derived from it being given. Whatever else the statement
might indicate, it does not 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 not permitted to produce it in court, it is
impossible to infer that the minister or the head of the department had permitted the document
to be produced in court or evidence derived from it being given. Section 123 enjoins upon the
Court the duty to see that no one 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, not to permit evidence derived from it being given. And, in fact, the Court did not allow
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the production of the document, for, we find a note in the proceedings of the Court on
September 10, 1973 stating that the “question about the production of this document in Court
shall be decided after argument of the parties on the point is finally heard”. And before the
arguments were finally concluded Kaul, the officer at the head of the department, filed an
affidavit claiming privilege. As the privilege could not have been waived and as, before the
objection to the production of the document raised by Saxena – whether tenable in law or not –
was decided by the Court, 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 Court
should have considered the validity of that objection under Section 162 of the Evidence Act.
66. The question then arises as to what exactly is the meaning of the expression “affairs of
State”.
69. In Sodhi Sukhdev Singh case this Court 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. It’ he comes to the conclusion that the document is innocent, he can
give permission to its production. If, however, he comes to the conclusion that the document
is noxious, he will withhold that permission. In any case, the Court does not materially come
into the picture. The second view is that it is for the Court to determine the character of the
document and if necessary to enquire into the possible consequence of its disclosure. On this
view, the jurisdiction of the Court is very much wider. A third view which does not accept
either of the two extreme positions would be that the Court can determine the character of the
document and if it comes to the conclusion that the document belongs to the noxious class, it
may leave it to the head of the department to decide whether its production should be
permitted or not, for, it is not the policy of Section 123 that in the case of every noxious
document the head of the department must always withhold permission. The Court seems to
have accepted the third view as the correct one and has said:
Thus, our conclusion is that reading Sections 123 and 162 together the Court
cannot 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
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 State under Section 123 or not.
As it was held in that case that the Court has no power to inspect the document, it is
difficult to see how the Court can find, without conducting 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 hypothesi, 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 noxious in the sense that, without conducting 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 not belong to the noxious class and yet their
disclosure would be injurious to public interest. The enquiry to be conducted under Section
162 is an enquiry into the validity of the objection that the document is an unpublished
official record relating to affairs of State and therefore, permission to give evidence derived
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from it is declined. The objection would be that the document relates to secret affairs of State
and its disclosure cannot 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 visualizes an enquiry
into that objection and empowers the Court to take evidence for deciding whether the
objection is valid. The Court, therefore, has to consider 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. No doubt, the words used in Section 123 “as he thinks
fit” confer 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 court and then Section 162 of the Evidence Act will govern
the situation. An overriding power in express terms is conferred on the Court under Section
162 to decide finally on the validity of the objection. The Court will disallow the objection if
it comes to the conclusion that the document does not relate to affairs of State or that the
public interest does not compel its non-disclosure or that the public interest served by the
administration of justice in a particular case overrides all other aspects of public interest. This
conclusion flows from the fact that in the first part of Section 162 of the Evidence Act there is
no limitation on the scope of the Court’s 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 Court 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 not deter the Court from deciding the question afresh as Section 162 authorises the
Court to determine the validity of the objection finally.
70. It is rather difficult to understand, after a court 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 interest — a question already
decided by the Court. In other words, if injury to public interest is the foundation of this socalled privilege, when once the Court 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
consider and decide whether its disclosure should be permitted as he 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 come to a conclusion different from that arrived at by a court
as regards the effect of the disclosure of the document on public interest unless he has or can
have a different concept of public interest.
71. Few would question the necessity of the rule to exclude that which would cause
serious prejudice to the State. When a question of national security is involved, the Court may
not be the proper forum to weigh the matter and that is the reason why a minister’s certificate
is taken as conclusive. “Those who are responsible for the national security must be the sole
judges of what national security requires.” As the Executive is solely responsible for national
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security including foreign relations, no other organ could 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 not 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 conclusive
power to determine what is in public interest is a claim based on the assumption that the
Executive alone knows what is best for the citizen. The claim of the Executive to exclude
evidence is more likely to operate to subserve a partial interest, viewed exclusively from a
narrow department angle. It is impossible for it to see or give equal weight to another matter,
namely, that justice should be done and seen to be done. When there are more aspects of
public interest to be considered, the Court will, with reference to the pending litigation, be in
a better position to decide where the weight of public interest predominates.
72. The power reserved to the Court is a power to order production even though public
interest is to some extent prejudicially affected. This amounts to a recognition that more than
one aspect of public interest will have to be surveyed. The interests of government for which
the minister speaks do not exhaust the whole public interest. Another aspect of that interest is
seen in the need for impartial administration of justice. It seems reasonable to assume that a
court is better qualified than the minister to measure the importance of the public interest in
the case before it. The Court has to make an assessment of the relative claims of these
different aspects 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 no sanction to giving the executive an exclusive power to determine what
matters may affect public interest. Once considerations of national security are left out, there
are few matters of public interest which cannot safely be discussed in public. The
administration itself knows 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 or officials
bound by oath of secrecy.
74. In a government of responsibility like ours, where all the agents of the public must be
responsible for their conduct, there can be but few secrets. The people of this country have a
right to know every public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every public transaction in all its
bearing. The right to know, which is derived from the concept of freedom of speech, though
not absolute, is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security. To cover with
veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy
can seldom be legitimately 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 corruption:
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 constitutionally be
demandable, sooner or later, on the floor of Congress. 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
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advanced only when it happens to have served some undisclosed interest to obstruct
investigation into facts which might reveal a liability.
To justify a privilege, secrecy must be indispensable to induce freedom of official
communication 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 compulsory
disclosure. In how many transactions of official business is there ordinarily such as 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.
80. Probably the only circumstance in which a court will not insist on inspection of the
document is that stated by Vinson. C.J. in United States v. Reynolds [(1952) 345 US 1]:
Regardless of how it is articulated, some like formula of compromise must be
applied here. Judicial control over evidence in a case cannot be abdicated to the
caprice of executive officers. Yet we will not go so far as to say that the court may
automatically require a complete disclosure to the judge before the claim of privilege
will be accepted in any case. It may be possible to satisfy the court from all the
circumstances of the case, that there is a reasonable danger that compulsion of
evidence will expose military matters which, in the interest of national security,
should not be divulged. When this is the case, the occasion for the privilege is
appropriate, and the court should not 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.
82. In regard to the claim of privilege for the document summoned from the office of the
Superintendent of Police, Rae Bareli, the High Court has only said that all the instructions
contained in the file produced by the Superintendent of Police were the same as those
contained in the Blue Book and since no privilege in respect of the Blue Book could be
claimed, the Superintendent of Police could not claim any privilege in respect of those
documents. It is difficult to understand how the High Court got the idea that the papers
brought from the office of the Superintendent of Police contained only instructions or
materials taken from the Blue Book. Since the Court did not inspect the Blue Book, the
statement by the Court that the materials contained in the file produced by the Superintendent
of Police were taken from the Blue Book was not warranted.;
85. I would set aside the order of the High Court and direct it to consider the matter
afresh. The High Court 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.
86. If the averments in the affidavits are not full or complete, the Court 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, no further question will arise
in respect of that document. In such case, the question of inspection of that document by court
will also arise. If, however, the Court is not satisfied that the Blue Book does not belong to
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that class and that averments in the affidavits and the evidence adduced are not sufficient to
enable the Court to make up its mind that its disclosure will injure public interest, it will be
open to the Court 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 Court will be at liberty to inspect them, if on the averments in the affidavits or
other evidence, it is not able to come to a conclusion that they relate to affairs of State or not.
87. If, on inspection, the Court holds that any part of the Blue Book or other document
does not relate to affairs of State and that its disclosure would not injure public interest, the
Court will be free to disclose that part and uphold the objection as regards the rest provided
that this will not give a misleading impression. Lord Pearce said in Conway v. Rimmer :
If part of a document is innocuous but part 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 will not give a distorted or misleading impression.
The principle of the rule of non-disclosure of records relating to affairs of State is the
concern for public interest and the rule will be supplied no further than the attainment of that
objective requires. I would allow the appeal
