The ‘privilege’ under Section 123 of the Indian Evidence Act is claimed frequently by the Government to authorize them not to produce its unpublished records in courts. As per this section a witness cannot be permitted to give any evidence which is derived from unpublished records relating to any affairs of state without permission of the officer at the head of department concerned. In a landmark decision in Punjab v SS Singh AIR 1961 SC 493, the Supreme Court considered the effect of Section 123 and Section 162 of Indian Evidence Act on the claim of privilege by government to the minutes of the meeting of council of Ministers, advice tendered by the Public Service Commission etc. The Supreme Court, through Gajendrakadkar J, writing for majority, laid down certain rules in this regard. The fifth rule is relevant for this case.
(5) A privilege should not be claimed under section 123 simply because it is apprehended that the document, if produced would defeat the defense raised by the State. The apprehension that the disclosure may adversely affect the government, or that it may provoke public criticism, shall not be a criterion for claiming privilege. The sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else.
Though such a broad rule is laid down the Supreme Court in that case held that documents regarding minutes of Cabinet Meeting or advice of PSC to the Ministers or advices of the Council to Governor are protected under Section 123 of Evidence Act. Subbarao J in his dissenting judgment ruled against granting privilege to the report of the Public Service Commission as he failed to understand how public interest would suffer if that report was disclosed and how such disclosure would deter the Commission from expressing its views in future cases.
The majority in SP Gupta (AIR 1982 SC 149) held that the correspondence between high dignitaries and notes made by the Constitutional functionaries cannot be regarded as a class protected, entitled to immunity against disclosure.
In Shri Harish Chandra Singh Rawat v Union of India, writ petition M/S No. 795/2016, Uttarakhand High Court’s Division Bench in its recent order invalidating President’s Rule in Uttarakhand, referred to these two important cases and stated that the larger bench in SP Gupta case took the view that in an open democratic society, there is little scope for claiming right to withhold documents. The trend should be disclosure of information. It is crucial in the efficient working of a mature democracy. The division bench said:
…. We notice that, after the Right to Information Act has been passed by the Parliament, there is a change brought about. It is true that in Bommai’s case and in Rameshwar Prasad’s case the court has taken a view that it is open to the Government to raise the claim under Section 123. We only wish to notice that under Section 8(1)(i) of RTI Act, ‘the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over’. Therefore after the enactment of the said law in keeping with the inclination of the people to know more about the state affairs of the State, without which their right under Article 19(1)(a) itself would be considerably obstructed, the Parliament has brought about this change. We are highlighting this aspect only to point out that, under this provision, as and when the Council of Ministers takes a decision, it would appear to be the duty to make public the material and also the reasons for the decision of the Council of Ministers. This will result in opening up of the windows and allowing in the sunlight of information and knowledge, which, by far, is the best disinfectant for killing all kinds of ills that are plaguing our body polity’.
The Division Bench of Uttarakhand reviewed the material produced and invalidated the proclamation of President’s Rule.
When New York Times was publishing news stories revealed unpublished records of Defence Department report called Pentagon Papers regarding US war on Vietnam, state wanted injunction against publication claiming the privilege to the reports as classifying them ‘top secret’, the US Supreme Court refused both claims – to privilege and prayer for injunction. It was held that Constitution bars any restraint upon newspaper publication, regardless of the nature of material published, except under special circumstances, where it would result in direct, immediate and irreparable damage, which was called doctrine of ‘clear and present danger’. (New York Times v United States, 403d U S 713 (1971). This decision was a landmark reversing the trend set by US v Renolds, 345 US 1(1971) where the claim of privilege of documents regarding certain test electronic equipment was upheld. Here, the widows of pilots who had died in an aircrash demanded the documents to know the reason for crash.
Some of the legal provisions which incorporate right to information are as follows:
Right to Information Act is the latest Act that has codified the ‘freedom of speech and expression’ guaranteed under Article 19(1)(a) in terms of right to receive information. This Act has consolidated all the above listed provisions facilitating access to information in different legislations. RTI Act has revolutionarily changed the so called law of privilege where the Government used to hold information as secret as matter of principle and disclosed exceptionally. Since RTI Act 2005, the rule is disclosure and exception is withholding it. RTI has overridden the Official Secrets Act, 1923 and all other legislations which contradict or conflict the RTI Act. The provisions of privilege in Indian Evidence Act have to give way to the disclosure now as per Section 22 of Right to Information Act, 2005. If the documents pertain to affairs of state, they cannot be withheld by state as privileged documents under Evidence Act, but has to disclose under RTI Act, subject only to Section 8 and 9. The privilege against disclosure under Evidence Act is eclipsed by Right to Information Act. 7.6.2016
Professor Madabhushi Sridhar is a Columnist, Media Law Researcher and Central Information Commissioner.