State Privilege in India

According to Section 123 in the Indian Evidence Act, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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. From this section, we can derive that there is a state privilege that is instituted to protect public interest at large. This state privilege is maintained so that the unpublished record does not prove to be injurious whether it is with regards to defence, diplomatic relations, or functioning of public servants. However, it should also be noted that an absolute restriction is not placed, and such a record could be disclosed provided the head of the department concerned believes that disclosure of the unpublished records would not produce any negative outcome, in such a case he will give permission to produce the said document. 

Section 162 of the Act 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 its admissibility. 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 court cannot hold an inquiry into matters that qualify as affairs of the state by risking injury to the general interests of the public. However, the court is bound to ascertain whether the unpublished documents in question are related to the affairs of the state on a case-to-case basis. 

In the case of State of Punjab v. Sodhi Sukhdev Singh during the president’s rule, the respondent was removed from his post after which he made a representation against the order of his removal before the council of ministers of the state who concluded that the respondent must be reemployed on a suitable post. Further, he went on to file a suit seeking that his removal was illegal and filed an application for producing certain documents. The state objected and claimed privilege under Section 123 of the Indian Evidence Act. This case is important as it elucidated upon whether the claim of state privilege with regards to the documents are in accordance with section 123 and 162 of the Act. It was held that Section 123 is indeed an exception to the ordinary rule of evidence by withholding documents from being produced. However, it must also be held that the section is justified as it aims to protect public interests. It was also held in the judgment that while construing ss. 123 and 162, it would be irrelevant to consider why the inquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a matter of policy on which the Court does not and should not generally express any opinion. The case was concluded by holding that documents in question are indeed protected by Section 123 and therefore, the court cannot compel the state to produce them. Further, Section 124 states that no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure. There is no doubt that in a democracy however the interests of the public which prevails must be protected, along with the interests of the state at large with regards to diplomatic relations, etc. These Sections are not rigid to the point where unpublished documents cannot be produced at all, there is still leeway to where the head of the department can produce them provided it is not accompanied by serious harm to the public interest.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.


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