Government Privilege in Legal Proceedings and State Secrets

Note the difference. Section 129 concerns a record and the permission of the head of the department. Section 130 concerns a communication and the officer's own view. Students routinely merge them.

Whose privilege is it

It is the public's, not the Government's. That single proposition answers most examination questions in this area, and three consequences follow.

1. It cannot be waived for convenience. The Government cannot claim privilege to conceal an embarrassing document and abandon it when the document turns out to help.
2. The court may take the objection. Since the interest protected is the public interest, the court may consider the point even if the Government does not.
3. Its scope is measured by injury to the public, not by the Government's preference. The question is never whether the Government would rather not produce; it is whether producing would injure the public interest.

How the privilege is claimed

The procedure matters and is examinable.

1. The claim is made on affidavit, ordinarily by the Minister in charge or by the Secretary of the department, who must have read the document.
2. The affidavit must state that the document belongs to a class, or contains matter, whose disclosure would injure the public interest, and must give the reasons as far as they can be given without disclosing the very matter protected.
3. A bare assertion is not enough. An affidavit that recites the words of the section without applying the mind to the document is defective.
4. The court decides. It may inspect the document itself, in private, to determine whether the claim is well founded.

Class claims and contents claims

The distinction runs through the whole subject.

The movement of the law has been from accepting class claims almost automatically towards insisting on a demonstrated injury, and towards the court, rather than the executive, being the judge of that injury.

The balance the court strikes

The court weighs two public interests against each other.

The public interest in the administration of justice, which requires that all relevant evidence be available so that cases are decided correctly.

The public interest in the effective working of government, which may require confidentiality for defence, foreign relations, security, the detection of crime and the frank exchange of advice.

Neither is absolute, and the weighing is done case by case. Where the document is essential to establishing a serious wrong by the State, the first interest is strong; where the subject is defence or the identity of an informant, the second is.

The relationship with the Right to Information Act 2005

A modern answer must connect the two, because they cover overlapping ground with different machinery.

• The Bharatiya Sakshya Adhiniyam provisions apply to the production of evidence in a proceeding. The claimant is a litigant, and the arbiter is the court.
• The Right to Information Act 2005 applies to a request by any citizen, without any proceeding. The arbiter is the Public Information Officer, then the appellate authority, then the Information Commission.
• Section 8 of the Act contains the exemptions, several of which cover the same ground: security and strategic interests, foreign relations, information received in confidence from a foreign government, cabinet papers, and information whose disclosure would impede an investigation. Section 8(2) contains a public interest override, and section 24 excludes certain intelligence and security organisations from the Act. These are treated in [Exemptions from Disclosure].
• The important structural difference: under the Act, exemption is decided in the first instance by an officer and finally by an Information Commission, and the public interest override in section 8(2) is written into the statute. Under the evidence provisions the decision belongs to the court.

The practical consequence for a litigant is that a document refused as privileged in a suit may sometimes be obtainable on an information request, and the reverse, so the two routes should be considered together.

A worked example

A public interest petition alleges that a State awarded a mining lease to a company in breach of the rules. The petitioner seeks production of the departmental file containing the notings of officers, the legal opinion, and a note recording the Chief Minister's decision. The State claims privilege.

Step 1: which provision? The file is an unpublished official record, so section 129 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 123 of the Indian Evidence Act 1872. If the claim is that an officer's confidential communication should not be disclosed, section 130, formerly section 124.

Step 2: is it an affair of State? Not everything in a government file is. Routine administration is not automatically an affair of State merely because it is on government paper. A note on the award of a mining lease is administration; a note on the deployment of forces is not.

Step 3: how is the claim made? By affidavit of the Minister or Secretary, who has read the file, stating the injury feared and, so far as possible, why.

Step 4: class or contents? If the State says "all notings on files are protected because officers would otherwise not write candidly", that is a class claim resting on the candour argument, which the courts have treated with increasing scepticism. If it says "this particular note discloses the identity of a person who informed against a mining operation and would endanger him", that is a contents claim and is much stronger.

Step 5: who decides? The court, which may inspect the file itself.

Step 6: the balance. The allegation is of a serious illegality in the disposal of a public resource, and the file is the only evidence of it. The public interest in the administration of justice is at its strongest.

Step 7: the other route. The petitioner, or anybody else, may also seek the file under the Right to Information Act 2005, where the State would have to bring itself within a section 8 exemption and face the public interest override in section 8(2).

Distinctions worth having straight

What it does NOT mean

It does not mean the Government's word is final. The claim is made by the executive; the decision belongs to the court.

It does not mean everything on a government file is privileged. The record must be unpublished, official and relate to affairs of State.

It does not mean privilege protects embarrassment. The interest protected is the public's, not the department's reputation.

It does not mean the old section numbers are still correct. Sections 123 and 124 of the Indian Evidence Act 1872 became sections 129 and 130 of the Bharatiya Sakshya Adhiniyam 2023 with effect from 1 July 2024.

Quick revision

1. Section 129 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 123 of the Indian Evidence Act 1872: no evidence from unpublished official records relating to affairs of State without the permission of the head of the department.
2. Section 130, formerly section 124: no public officer compelled to disclose communications made in official confidence where he considers the public interest would suffer.
3. The Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872 with effect from 1 July 2024. Give both numbers.
4. The privilege belongs to the public, so it cannot be waived for convenience, the court may take the point, and its scope is measured by injury to the public.
5. Procedure: an affidavit of the Minister or Secretary who has read the document, stating the injury feared. A bare assertion is defective. The court may inspect the document.
6. Class claims, resting on candour, are treated with scepticism; contents claims showing a specific injury are accepted.
7. The court balances the public interest in the administration of justice against the public interest in the working of government.
8. The Right to Information Act 2005 covers the same ground by a different route: section 8 exemptions, the section 8(2) public interest override, and the section 24 exclusions.

Test yourself

1. What is public interest privilege, and where is it now found? It is the rule that the Government may withhold documents from production in legal proceedings where disclosure would injure the public interest. It is contained in section 129 of the Bharatiya Sakshya Adhiniyam 2023, which provides that no one shall be permitted to give 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, and section 130, which provides 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. Those provisions replaced sections 123 and 124 of the Indian Evidence Act 1872 when the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024, and the older case law is all decided under the former numbering.

2. Who decides whether a document is privileged? The court. The claim is made by the executive, ordinarily by affidavit of the Minister in charge or the Secretary of the department, who must have read the document and must state the injury apprehended so far as it can be stated without disclosing the protected matter. But the privilege exists for the benefit of the public and not of the Government, so the final decision whether disclosure would injure the public interest belongs to the court, which may inspect the document in private for that purpose. A bare assertion reciting the words of the section, without any application of mind to the particular document, is not a good claim.

3. Distinguish a class claim from a contents claim. A class claim asserts that documents of a particular class must be protected whatever their contents, usually on the argument that officers would not write frankly if their notes might be produced. A contents claim asserts that the contents of the particular document would injure the public interest, for example by disclosing defence dispositions or the identity of an informant. The judicial attitude has moved against class claims, the candour argument having been doubted, and towards requiring a demonstrated injury, so a contents claim properly made is far more likely to succeed.

4. Is everything contained in a government file an affair of State? No. Section 129 applies only where the record is unpublished, is an official record, and relates to affairs of State, and all three elements must be satisfied. Ordinary administrative correspondence does not become an affair of State merely because it is on government paper and is confidential in a general sense. If the section does not apply, no permission from the head of the department is required and the ordinary rules of production govern.

5. How does the Right to Information Act 2005 relate to public interest privilege? They cover overlapping ground by different routes. The evidence provisions govern the production of documents in a proceeding and the arbiter is the court. The Act governs a request by any citizen without any proceeding, and the arbiter is the Public Information Officer, then the appellate authority, then the Information Commission. Section 8 of the Act lists exemptions, several of which correspond to traditional grounds of privilege, including security and strategic interests, foreign relations, cabinet papers and information that would impede an investigation; section 8(2) contains a public interest override; and section 24 excludes certain intelligence and security organisations. A document refused as privileged in a suit may therefore sometimes be obtainable on an information request, and a litigant should consider both routes.