Government Privilege in Legal Proceedings and State Secrets

In one line

The Government may refuse to produce a document in court if disclosing it would harm the public interest, but it is the court and not the Government that decides whether that is true.

In the words a student can write in an exam: public interest privilege, also called Crown privilege or State privilege, is the rule that evidence derived from unpublished official records relating to the affairs of State may not be given without the permission of the head of the department concerned, and that a public officer may not be compelled to disclose communications made to him in official confidence where he considers that the public interest would suffer. The rule is now contained in sections 129 and 130 of the Bharatiya Sakshya Adhiniyam 2023, which replaced sections 123 and 124 of the Indian Evidence Act 1872 with effect from 1 July 2024. The privilege belongs to the public and not to the Government, the claim must be made properly and on affidavit, and the final decision whether disclosure would injure the public interest rests with the court, which may inspect the document.

The section numbers have changed

This is the single most important practical point in the chapter, and every textbook printed before 2024 has the old numbers.

The Indian Evidence Act 1872 was replaced by the Bharatiya Sakshya Adhiniyam 2023 with effect from 1 July 2024. Give both numbers in an answer. The older case law is all decided on sections 123 and 124, and a student who cites only the new numbers cannot connect the cases, while one who cites only the old numbers is stating repealed law.

The two provisions

Section 129: 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No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.

The elements are: the record must be unpublished; it must be an official record; and it must relate to affairs of State. If any one is missing the section does not apply at all.

Section 130: official communications

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

The elements are: the person must be a public officer; the communication must have been made to him in official confidence; and he must consider that the public interest would suffer.