CIA 3

ADMINISTRATIVE LAW
GOVERNMENT PRIVILEGES IN ENGLAND

Submitted by:

Nancy Wadhwa

1650557

7 BBA LLB B
Introduction

The constitution of India seeks to establish a Democratic Republic where under

the equality clauses there is no question of privileged position or immunity in
favour of the state. However, government vis-à-vis the individual is always a
government. There are numerous privileges and immunities which are legally
recognized and enforced in favour of the government.

Government Privilege to Withhold Documents in England and other government

privileges:

(a) Position in England

In England, the crown enjoys special privilege of withholding disclosure of
documents, referred to as the rule of “crown privilege”. It can refuse to disclose
any evidence or to answer any question if in its opinion such disclosure or answer
would be injurious to the public interest. The rule is based on the postulate that
public welfare is the highest law. The public interest requires that justice should
be done but it may also require that the necessary evidence should be suppressed.
This right can be exercised by the crown even in those proceedings in which it is
not a party.
The leading case on “crown privilege” is Duncan v Carmel i,Laird and Co. Ltd.
Which arose at the time of second world war when the submarine Thetis sank
during her trials. Numerous actions were brought against respondents by the
representatives of the deceased, claiming damages for negligence. The widow of
one of the dead persons sought discovery of documents in order to establish
liability against the government contractors. The admiralty claimed crown
privilege which was upheld by the house of lords. It was ruled that the affidavit
filed by the minister that the disclosure will be against the public interest could
not be called into question. Lord Simon said :
“ The principle to be applied in every case is that documents otherwise
relevant and liable to production must not be produced in the public interest
required that they should be withheld .“ ii
In Ellis v Home Officeiii, a prisoner assaulted Ellis who was an under-trial
prisoner. The prisoner who assaulted was under observation as a suspected
mentally defective. Ellis alleged negligence on the part of Prison Authorities but
he lost his action as the crown claimed privilege in respect of the medical reports.
It is submitted that the evidence could have been disclosed without any injury to
public interest.
However, Convay v Remmer,1968, the document was ordered to be
produced as the disclosure was not injurious to the public interest. By this
decision, the House of Lords have brought back into legal custody a dangerous
executive power. The privilege is now described the ‘public interest’ privilege
instead of a Crown Privilege.

(b) Position in India in comparison with England

(1) Predominance of public interest: In India, the government privilege to

withhold documents from the courts is claimed on basis of section 123 of the
Indian Evidence Act, 1872 which reads as under :

“ 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.iv

As a general rule, the requirement is that both the parties to the dispute
must produce all the relevant and material evidence in their possession. If any
party fails to produce such evidence, an adverse inference can be drawn under
section 114 of the Evidence Act. Section 123 gives a great advantage to the
Government in as much as in spite of non-production of relevant evidence before
the court, no adverse inference can be drawn against it if the claim of privilege is
upheld by the court. This thing undoubtedly constitutes a very serious departure,
from the ordinary rules of evidence. The basis on which this departure can be
justified is the principle of the “overriding and paramount character of public
interest” i.e. when the public interest served by disclosure is outweighed by the
public interest served by non-disclosure of documents.

The leading case on the subject is, State of Punjab v Sodhi Sukhdev Singhv,
decide by the supreme court. In this case, the respondent who was a District &
Session Judge was removed from service by the President of India. He made a
representation against the removal. In pursuance of the representation, the
council of ministers secured the advice of the public service commission and
therefore decided to re-employ him. He then filed a suit for declaration that his
removal was illegal and void. He wanted production of certain documents. The
state claimed privilege in respect of them. The supreme court by majority held
that the documents in question were protected under section 123 of Evidence Act
and could be withheld from production on the ground of public interest.

(2) Balancing of Public Interest: In State of U.P. v Raj Narayanvi, Raj Narayan
had filed an election petition against the then prime minister Smt. Indira Nehru
Gandhi. During the trial, he made an application for production of certain
documents. The U.P. Government claimed privilege in respect of those
documents. The Allahabad High Court rejected the claim for privilege. On appeal,
the supreme court set aside the Allahabad judgement.
(3) Ideal of Open Government as alternate measure: The final decision in
regard to the validity of an objection against disclosure raised under section 123
would always be with the court by reason of section 102vii. The court is not bound
by the assertions made by the government in support of plea against non-
disclosure. The court has the power to balance the injury to the state or the public
service against the risk of injustice, before reaching the decision.

Example for this is the case, Reliance petrochemicals Ltd. V Indian Express
Newspapersviii.

(4) Class Privilege: In State Of Bihar v Kirpalu Shankarix, the supreme court held
that government files are privileged documents and no contempt proceedings,
civil or criminal can be initiated on the basis of noting on the files as the privilege
is necessary in order to maintain the independent functioning of civil services and
fearless expression of views. Similarly, the court in Doy Pack Systems Pvt. Ltd. V
Union of India, laid down that it is the duty of the court to prevent disclosure of
documents where Article 74(2) of the constitution is applicable.

i
1942 AC 624
ii
Ibid, at p. 636
iii
1953 2. B 135
iv
See also Ss. 124, 162; Art. 22(6), 74(2) and 163 of the Constitution of India
v
AIR 1961 SC 493
vi
AIR 1974 All. 324
vii
AIR 1982 SC 419 (per Bhagwati, J.)
viii
AIR 1987 SC 190.
ix
(1987) 3 SCC 34