ESSENTIALS OF AFFAIR OF STATE
When we talk about practicality of sec. 123 a very logical query arises, when the court finds that the document in question relates to any affair of State, it will then be for the departmental head to decide whether disclosure of its contents would be against public interest and his decision on the point is conducive. If on the other hand the court holds that the document does not relate to any affairs of State, no question of privilege can arise- 1)
Whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State? 2)
Whether disclosure of the contents of the document would be against public interest? In spite of there being any claim of privilege or any objection to the production or admissibility of the document, the person summoned to produce it must actually bring the document into court and then claim privilege in the proper way. The first question is for the court. The affidavit of the head of the department as to the nature of the document being by no means conclusive, the court has to determine the first question upon a consideration of all available evidence on the point, though it cannot inspect the document for the purpose. Although inspection of the document itself is not permitted, the court may take “other evidence” for deciding the first question. If the first question is made available to the party desiring to have it. If it is answered in the affirmative, the validity of the privilege relating to any affairs of State is recognized and then the second question is solely for the head of the department concerned. He may allow disclosure of the evidence or may withhold permission on the ground that it would be against national interest. His decision is final and he is not bound to give ay reason for it. How then is the court to determine whether the document relates to any matter of State? The most natural way would be an inspection of the document by the court or a private perusal. But this course does not appear to be permissible as sec.162 of Cr. P.C. prohibits the inspection of a document referring to matters of State. It is rather difficult to conceive how an objection of this kind can be effectively disposed of unless the court has an opportunity of knowing the contents of the document. But although inspection of such document is not allowed, the court may under sec.162 take “other evidence” to enable it to determine on its admissibility [Ijjatali v. R; Bhaiya Shaheb v. Ramnath; In re Mantubhai, sup; S v. Sodhi Sukhdev, A 1961 SC 493; Sujit v. Union, A 1970 A & N 131]. “Other evidence” on the point though admissible must be hard to obtain. Since other evidence is admissible, there does not appear to be anything to prevent the court from examining the head of the department or any other person having knowledge of the contents of the document as to what matters of State are involved. The Supreme Court observed:
“If the document cannot be inspected its contents cannot indirectly be proved, but that is not to say that other collateral evidence cannot be produced which assist the court in determining the validity of the object” In State of Punjab v. Sodhi Sukhdev Singh , The Supreme Court, after analyzing Sec.123 of the Evidence Act, declared that while it was open to the Court to hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question and that was bound to hold a preliminary enquiry and determine the validity of the objection to its production and that necessarily involved an enquiry into the question as to whether the evidence related to an affair of State under Sec.123. After observing that the affair of State would ordinarily refer to matter of political or administrative character whose disclosure would affect the national defence or public security or good neighbourly relations, it further remarked: “There may be another...
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