Central and State Government Privileges
Section 123 of the Indian Evidence Act
Evidence as to affairs of State: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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 is basically founded on the maxim salus populi est suprema lex, which means that regard for public welfare is the highest law. This section lays down that no person shall be permitted to give any evidence derived from unpublished public records relating to affairs of state. Such an unpublished record can be had of from the official head of the department concerned, who may also withhold the permission in case of necessity. The section also prohibits the disclosure of any evidence derived from unpublished official records.
Under the section unpublished official records of the state are protected from being disclosed. Only exception laid down is that such unpublished document may be disclosed with express permission of the head of the department. “The court is also bound to accept without question the decision of the public officer.”
Section 123 has to be read with Section 162 to ascertain whether any claim is made by the state in respect of any document and whether the document belongs to the privilege class. The second question is whether the disclosure of the document would cause injury to the public interest and fall within the discretion of the head of the department concerned. It was considered by the Supreme Court in S.P. Gupta v President of India1 and held that if the disclosure of the contents of the document was injurious to public interest and that the document belonged to the state which should not be disclosed to secure proper functioning of the public service.
Unpublished official records
According to the section unpublished official records are not permitted to be disclosed except with the permission of the head of the department concerned. Naturally, no question in this regard can be raised in the court of law. But, whether a document falls within unpublished official records may be decided in accordance with Section 162 of the Evidence Act. When Section 123 is read with Section 162 “the effect is that the final decision whether the permission should be granted or not should be with the court. About the power of the court to inspect the document, there is residual power of the court to decide whether its disclosure would be injurious to public interest.
In order to claim immunity from disclosure thereof the document must be unpublished state documents and must relate to affairs of the state and the disclosure thereof must be against interest of the state or public interest. Under section 162, the rest documents can be inspected by the court to examine the privilege claimed that the disclosures would injure the public interest. After inspection, the court is free to disclose either whole or in parts, provided that will not to give a distorted or misleading impression of the document.
An objection against the disclosure of a public document was raised on the ground that it would be against the interest of the state or public service and it is such class of documents which being public interest ought not to be disclosed. In S.P. Gupta v President of India, overruling its earlier decision the Supreme Court Observed that the injury to public interest which is likely to result from their disclosure would be far less than the injury which would arise from suppression of such information. Public interest, the very foundation for protection against disclosure under section 123 and which was protected by the Supreme Court. State of Punjab v Sodhi Sukhde Singh case has acquired new dimension in S.P. Gupta case. For the purpose of non-disclosure of documents relating to the affairs of the state, the immunity claimed by the State under section 123 is not absolute. According to Their Lordships’ view “it is not the rule of law to be applied mechanically in all cases. In case of necessity the court can compel the production of such documents for fair administration of justice because the public interest immunity are not applicable in India.” It is court to decide what kinds of documents can be handled only by person bound by oath of secrecy. Whether any document relates to the affairs of the state has to be determined in each case on the basis of the relevant facts and circumstances adduced before the court. Because, public welfare is the highest law. The Supreme Court seems to be in favour of revitalization of the privilege when it considers whether the ministerial advice falls within the justiciable area. “Since the court would be precluded from calling their disclosure but the Article 74(2) of the Constitution is no bar to the ministerial advice was based.
Official Secrets Act
The Official Secret Act 1923 is India’s anti-espionage act held over from the British colonial period. It states clearly that actions which involve helping an enemy state against India are strongly condemned. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area. According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy.
Punishments under the Act range from three to fourteen years imprisonment. A person prosecuted under this Act can be charged with the crime even if the action was unintentional and not intended to endanger the security of the state. The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.
Journalists have to help members of the police forces above the rank of the sub-Inspector and members of the military with investigation regarding an offense, up to and including revealing his sources of information. Under the Act, search warrants may be issued at any time if the magistrate determines that based on the evidence there is enough danger to the security of the state.
In June 2002, journalist Iftikhar Gilani was, arrested for violating the OSA 1923. He was charged under the OSA, with a case under the Obscenity Act added to it. The first military report suggested that the information he was accused of holding was “secret” despite being publicly available. The second military intelligence report contradicted this, stating that there was no “official secret”. Even after this, the government denied the opinion of the military and was on the verge of challenging it when the contradictions were exposed in the press. The military reported that, “the information contained in the document is easily available” and “the documents carries no security classified information and the information seems to have been gathered from open sources”.
On 13 January 2004, the government withdrew its case against him to prevent having two of its ministries having to give contradictory opinions. Gilani was released the same month.