VANDERGERT v. ZURFICK

008-SLLR-SLLR-2000-V-2-VANDERGERT-v.-ZURFICK.pdf


VANDERGERT
,v.
ZURFICK
COURT OF APPEAL.JAYASINCHE, J.
CA 339/97.
DC Colombo 14157/MR.
24™ AUGUST. 1999.
29th SEPTEMBER, 1999.
1 8th OCTOBER. 1999.
02nd, 12™ NOVEMBER. 1999.
Evidence Ordinance, ss.122. 123, 124, 162(1) – Privileged document -Part of Unpublished Official Record relating to affairs of State -Communications made to a Public Officer in official confidence – Exclusionof same – English and Indian Principles – Are they applicable?' ■■
The Petitioner -Secretary, Ministry of Foreign Affairs (S/MF) was sum-moned to produce a Report dated 21. 11. 1991 sent by the DefendantRespondent to the S/MF. Before the document was tendered to CourtState Counsel who appeared for the S/MF submitted that the said Reportthough brought in compliance with S. 162(1) is a privileged documentwithin the meaningofS. 123, 124 and objected to the production of same.The Petitioner also submitted an affidavit stating that the said Report.wasa part of an unpublished official record relating to affairs of State withinthe meaning of S. 123 and that they are also communications made to aPublic Officer in official confidence – S. 124 and therefore cannot becompelled to produce the said Report in Court.
The Court thereafter perused the said Report to ascertain whether it fellwithin S. 123. S. 124 and holding that the Report does not relate to affairsof State and that, it does not also relate to public interest ordered theproduction of same, observing that the said Report is necessary for thepurpose of administering justice.
Held :
(1) The question of public interest arises only under S. 124 and there toothe Judge of whether public interest would suffer by the disclosure of theofficial communication made to him in official confidence is the PublicOfficer concerned and the courts have no power to over rule him or overrule his opinion.
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The responsibility for weighing and balancing public interest isplaced upon the public officer himself and not upon a court of law.
Our Evidence Ordinance provides for the exclusion of official mattersfrom evidence. Section 123 stipulates an absolute prohibition againstthe production of unpublished official records relating to affairs ofState except with the permission of the Head of the Department Section124 provides that no public officer shall be compelled to disclosecommunications made to him in official confidence when he considersthat public interest would suffer by the disclosure.
Per Jayasinghe. J.
“In England there appears to be no corresponding statutory provisionsbut the situations covered by Section 123. Section 124, Section 125 aredetermined by the common law under which the exclusion of evidence isfounded on grounds of public policy nor is there any recognisabledistinction between matters falling within the scope of our sections 123.124."
The right of inspection by Court contemplated in Section 162(2) isexpressly taken away if the document relates to matters of State.
There is no scope in our law to import into our system the Indianthinking that has been developed on the English thinking – there is noscope for such activism.
APPLICATION in Revision from on Order of the District Court ofColombo.
Cases referred to :
Keerthiratne vs Gunawardena 58 NLR 62
Daniel Appuhamy us Jllangaratne 66 NLR 97
Conway vs Rimmer (1968) AC 910
Duncan vs Cammell Laird & Company (1942) AC 624
Pubjab vs Sodhi Sukhdeu Singh (1961) AIR SC 493
Utter Pradesh vs Raj Narain (1975) AIR SC 865
S.P. Gupta vs The President of India (1982) AIR SC 149 (Judges case)
Tukaram vs King Emperor (1946) NAJ 385
Chamarbaghwalla vs Parpia (1948) 52 Bom. LR 231
Nagaraja Pillai vs Secretary of State (1914) 39 Mad. 304
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Pandit Chandradhar Tewani vs Deputy Commissioner of Lucknow(1938) 14 Luck 351
Jehangir vs Secretary of State (1903) 6 Bom. LR
King Emperor vs Bhagawali Prasad [ 1924) 5 Lucknow 297
Excelsior Film vs Union of India (1966) 69 Bom. LR 878
Saleem Marsoof P.C., Additional Solicitor General with Ms. S. Bari StateCounsel for Petitioner. •.
E.D. Wikremanayake with Ms. Anandi Cooray for Plaintiff Respondent.
Romesh de Silva P.C., with Geethaka Gunawardena for DefendantRespondent.
Cur. adv. uult.
May 25, 2000.
JAYASINGHE. J.This is an application to revise the order of the learnedDistrict Judge of Colombo of 04. 03. 1997 where the learnedDistrict judge ordered the production in evidence a Reportdated 25.11.1991 sent by the Defendant Respondent to theSecretary Ministry of Foreign Affairs on 06. 06. 1996.The Petitioner – the Secretary Ministry of Foreign Affairsreceived summons from the District Court of Colombo for theproduction before Court of the said document andconsequently in compliance with the said summons theSecretary took steps to send the Deputy Director EconomicAffairs to the District Court of Colombo. He was representedby State Counsel who submitted to Court that the said Reportwas brought in compliance to Court with Section 162( 1) of theEvidence Ordinance and that the said document is a privilegeddocument within the meaning of sections 123 and 124 andobjected to the production of the said document in Court. ThePetitioner had submitted by way of affidavit that the abovementioned Report was a part of an Unpublished OfficialRecord relating to Affairs of State within the meaning of section123 and that they are also communications made to a publicofficer in official confidence within the meaning of Section 124of the Evidence Ordinance and therefore cannot be compelled
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to produce the said Report in court. Having heard Counsel thelearned District Judge delivered order directing the Petitionerto produce the said Report for perusal of Court in order toconsider whether the document fell within the provisions: ofSections 123 and 124 of the Evidence Ordinance. Afterperusing the document the learned District Judge deliveredorder on 04. 03. 1997 holding that the said Report was sent bythe Defendant – Respondent to the Secretary. Ministry ofForeign Affairs under confidential cover; that the said Reportrelated to Affairs of State; that the said document does notrelate to public interest and that the said Report is necessaryfor the purpose of administering Justice. The presentapplication had been filed by the petitioner for Revision of thesaid order of the learned District Judge.
The content of the objection of the petitioner for theproduction of the said Report was twofold:
That the said Report is an Unpublished Official Recordrelating to affairs of State within the meaning ofSection 123 of the Evidence Ordinance.
That the said Report was a communication made to apublic officer in official confidence within the meaningof section 124 of the Evidence Ordinance.
Dealing with the provision of section 123 of the EvidenceOrdinance the learned Additional Solicitor General submittedthat the most important feature of section 123 is that itcontains a prima facie rule of prohibition, in that it prohibitsthe production in Court of any unpublished Official Recordsrelating to Affairs of State except with the permission of theofficer at the head of the department concerned subject onlyto Ministerial Control. He submitted that judicial discretion isnot envisaged or sanctioned by this Section. He relied onKeerthiralna us. Gunawardena!'1 where H. N. J. Fernando, J.had observed that section 123 assumes that the productionmay be prejudicial to public interest and therefore prohibits
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the production except with requisite permission. He also reliedon Daniel Appuhamy vs. Illangaralne131 where Basnayake, C.J.observed that – "the question whether the public interest willsuffer or not does not arise under Section 123 because if thedocument, the production of which is sought comes within theambit of Section 123, the Court must shut it out and is notentitled to let it in on the ground that public interest will notsuffer or any other ground”. He submitted that the learnedDistrict Judge in coming to a finding that the impugneddocument does not relate to public interest and that the saidReport is necessary to administer justice relying on thejudgment of the House of Lords in Conway vs. Rimmer<3>misunderstood the law relating to the application of Section123 of the Evidence Ordinance. The learned AdditionalSolicitor General further submitted that there is no scope forthe dicta in Conway vs. Rimmerfsupra) to be absorbed into ourlaw for once the Head of the Department produces a certificateit is deemed to be conclusive that the interest of the publicwould suffer. He invited the attention of Court to an.observation of Basnayake C.J. in Daniel Appuhamy vs.Illangaratne;(supra) “in construing the Evidence Ordinance itwould not be correct to approach it with preconceived notionsof English Law and to treat Section 123 as a statutorydeclaration of the English system”. Refering to the applicationunder 124 the learned Additional Solicitor General submittedthat the order of the learned District Judge was also incontravention of the provisions of Section 124 of the EvidenceOrdinance. He submitted that it is an established canon ofstatutory interpretation that the obvious meaning of a statuteshould be given effect to where the meaning is clear andunequivocal; that it is clear from section 124 that a publicofficer cannot be compelled to disclose communications madeto him in official confidence when he considers that the publicinterest would suffer from the disclosure.
The responsibility for weighing and balancing publicinterest is placed upon the public officer himself and not uponCourts of Law. The learned Additional Solicitor General drew
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support for this proposition from an opinion expressed byBasnayake C. J. in Daniel Appuhamy vs. Illangaratne(supra)where his Lordship observed that the question of publicinterest arises only under Section 124 and there too the judgeof whether public interest would suffer by the disclosure of theofficial communication made to him in official confidence is thepublic officer concerned and the Court has no power tooverrule him or override his opinion. The Additional SolicitorGeneral also argued that the Courts are denied the right ofinspection of documents under 162(2) of the EvidenceOrdinance where it relates to matters of State. He submittedthat from its very nature and language, Section 162(2) has noapplication whatsoever to Section 123 of the EvidenceOrdinance. He relied on an observation made by H. N. G.Fernando, J. in Keerthiratne vs. Gunawardena(supra) whereHis Lordship observed that “the terms of this Sub Section(162(2)) appear to indicate that in relation to “UnpublishedOfficial Records relating to affairs of State” that is to say casescovered by section 123 Courts are denied the right ofinspection if the objection to production is duly taken on behalfof the Crown. Indeed it would seem that in regard to such casesthe view as to the conclusiveness expressed in Duncan vs.CammeU. Laird & Company141 is clearly incorporated in terms ofSection 162(2) of the Evidence Ordinance”. However theAdditional Solicitor-General disagreed with the reasoning ofH. N. G. Fernando. J. in Keerthiratne us. Gunawardenafsupra)
where His Lordship observed “but where it is alleged that
some communication made to a public officer in officialconfidence, there seems to be no reason why effect cannot begiven to the plain terms of section 162 which confer on theCourt a right of inspection in order to determine the questionof admissibility. He submitted that the judgment in the case ofKeerthiratne vs. Gunawardenatsupra) to the extent that itholds that a Judge has an overriding jurisdiction to considerthe public interest when privilege under Section 124 is claimedis bad in law, for the reason that in that case the Court hasrestricted the application of 162(2) to Section 124. Hesubmitted that Section 124 is an independent provision and
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its obvious meaning has to be given effect to; that at most thejurisdiction of the Judge can only extend to deciding whetheror not the communication was made in official confidencesimilar to the decision on whether or not a document relatedto Affairs of State under Section 123.
Both the Additional Solicitor General and Mr. Romesh deSilva, President’s Counsel drew the attention of Court tochapter XI of the Evidence Ordinance. It was submitted byboth counsel that the legislature had attempted to preserveand protect the sanctity and inviolability of certainrelationships and situations by preventing anycommunications or information in respect of theserelationships being published however innocuous or harmlessthey may be. Communications during marriage, professionalcommunications, confidential communications with legaladvisors are privileged in the same way they operate to protectAffairs of State. Mr. De Silva submitted that Section 123prevents production of documents relating to affairs of Stateand Section 124 prevents the disclosure of communicationsmade in official confidence and the two Sections read togethermean that there has to be confidentiality maintained forofficial communications and that such communications anddocuments cannot be produced in Court without the requisitepermission.
Mr. Wikremanayake submitted that in order to ascertainthe application of Section 123 and 124 of the EvidenceOrdinance it is necessary to trace the development of the lawrelating to the question of privilege both in England and inIndia as our Evidence Ordinance is based primarily on EnglishCommon law and as the Evidence Ordinance of India containssimilar provisions. He submitted that Duncan vs. CanvnellLaird & Company(supra) laid down in very wide terms that theMinisters certificate was final and conclusive He submittedthat the reasoning of Cammell Lairdlsupra) was justified as itwas decided during the war and the privilege claimed was forthe production of a design of a submarine the production of
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which would cause injury to public interest. He submittedthat Cammell Lairdfsupra) was subject to much criticism bothby the Bench and the Bar and the House of Lords in Conwayvs. Rimmerisupra) laid down restrictions on the use of privilegeoverruling Duncan vs. Cammell Laird(supra). Conway vs.Rimmer(supra) held that Court had jurisdiction to peruse andarrive at an independent decision whether in fact theproduction of the document is injurious to public interest. Hesubmitted that Conway vs. Rimmer(supra) criticized theblanket privilege claimed (hitherto) stating that the realquestion is whether public interest is affected in theproduction of the document in question. Referring to the lawprevailing in India Mr. Wikremanayake submitted that inPunjab vs. Sodhi Sukhdeu Singh151 it was held that the Courtwould not inspect the document in order to determine whetherit related to Affairs of State. However it would take otherevidence to determine whether in fact it related to Affairs ofState. The Court could not however inquire into whether anyinjury could be caused to public interest in the disclosure ofthe document. Therefore the injury into pubic interest was tobe decided solely by the Minister. In Utter Pradesh vs. RajNarain161 The Supreme Court reinterpreted Section 123 so asto bring the Indian Law in line with the modem judicialthinking in England and to curtail somewhat theGovernment’s privilege not to produce documents in Court.The Supreme court held that the basis of privilege was injuryto public interest. Public interest demanding that evidence bewithheld is to be weighed against the public interest in theAdministration of Justice that Court should have the fullestpossible access to all relevant material, when the former outweighs the latter the evidence cannot be admitted. Courtsaccepted the principle that an affidavit claiming privilege is notconclusive and if the Court is not satisfied with the affidavit ithad power to peruse the document in order to decide whetherthe protection be awarded to the document or not. In S.P.Gupta vs. The President of India!71 (judges case) Bahgawati, J.observed that "the basic question to which the court wouldtherefore have to address itself for the purpose of deciding the
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validity of the objection would be whether the documentrelates to Affairs of State or in other words it is of such acharacter that its disclosure would be against the interest ofState or public service and if so whether the public interest inits non- disclosure is so strong that it must prevail over thepublic interest in the administration of justice and on thataccount it should not be allowed to be disclosed. The finaldecision in regard to validity of an objection,against disclosureraised under Section 123 would always be with the Court byreason of Section 162”. Mr. Wikremanayake contended thatthe Judges case(supra) reiterated the position in RajNarain(supra) holding that the Courts enjoy the power toinspect the document to decide whether it relates to Affairs ofState or not.
Our Evidence Ordinance provides for the exclusion ofofficial matters from evidence. Section 123 stipulates anabsolute prohibition against the production of unpublishedofficial Records relating to Affairs of State except with thepermission of the officer at the Head of the Departmentconcerned who shall give or withhold permission as he thinksfit subject to the control of the Minister. Section 124 providesthat no public officer shall be compelled to disclosecommunications made to him in official confidence when heconsiders that public interest would suffer by the disclosureand section 125 recognizes the right of the Magistrates and lawenforcement officers to withhold the source of information asto the commission of offences. In England there appeal's to beno corresponding statutory provision but the situationscovered by Sections 123, 124 and 125 are determined by thecommon law under which the exclusion of evidence is foundedon grounds of public policy; nor is there any recognisabledistinction between matters falling respectively within thescope of our sections 123 and 124. All these matters are dealtwith in England as Affairs of State. Phipson in Law of Evidence(page 196) enunciated the principle that "the witness may notbe asked and will not be allowed to state facts or to producedocuments the disclosure of which would be prejudicial to
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public service. And this exclusion is not confined to officialcommunications or documents but extends to all other likelyto prejudice public interest". Vicount Simon L. C. in Duncan os.Cammell Laird & Company(supra) stated that “the questionwhether the production of the documents would be injuriousto the public service must be determined not by the Judge butby the Head of the Department having the custody of the paper;and if he is in attendance and states that in his opinion theproduction of the document would be injurious to the publicservice we think the Judge ought not to compel the productionofit”. However in Conway us. Rimmerfsupra) overruling Cammell. Lairdlsupra) the House of Lords held “that the documentshould be produced for inspection by the House of Lords andif it was then found that disclosure would not be prejudicial tothe public interest or that any possibility of such prejudice wasinsufficient tojustify their being withheld disclosure should beordered. When there is a clash between public interest thatharm should not be done to the nation or the public serviceby the disclosure of certain documents and that theAdministration of Justice should not be frustrated by thewithholding of them, their production will not be ordered if thepossible injury to the nation or the public service is so gravethat no other interest should be allowed to prevail over it, butwhere the possible injury is substantially less the Court mustbalance against each other the two public interests involved.When the Ministers certificate suggests that the documentbelongs to a class which ought to be withheld, then, unless hisreasons are of a kind that judicial experience is not competentto weigh, the proper test is whether the withholding of adocument of that particular class is necessary for thefunctioning of the public service. If on a balance, consideringthe likely importance of the document in the case before it, theCourt considers that it should probably be produced, it shouldgenerally examine the document before ordering theproduction. In the present case the Court held that it wasimprobable that any harm would be done to the public serviceby the disclosure of the document in question, which mightprove vital to the litigation".
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Our law however does not correspond to the English Lawin that there is the demarcation between unpublished officialRecords and communications made in Official Confidence. Inthe case of unpublished official Records Section 123 assumesthat production may be prejudicial to public interest andprohibits the production except with the requisite permission.In Daniel Appuhamy vs. IUangaratne(suprcO Basnayake, C.J.stated that “Although documents which, are protected bySection 123 are referred to as privileged documents it is notcorrect to do so. When a Counsel or a public officer or any otherperson invites the Court not to permit the production of adocument to which Section 123 applies he claims no privilege.His act is an invitation to the Court to obey the imperativeprohibition in that section. The question of privilege arisesunder Section 124”.
In England it may be open to a Minister to plead theobjection of public policy in his discretion with respect to anymatter falling within the categoiy of an Affair of State and thuswithhold evidence of any communication made to a publicofficer. The same absolute privilege under our Ordinanceextend only to Unpublished Official Records and notnecessarily to every communication made to a publicofficer. Communications made in official confidenceenvelopes a vast area of governmental business; as much asAffairs of State have not been defined though often used inrelation to the business of the State such as matters connectedwith international diplomacy, minutes of public servants totheir colleagues or superiors regarding business ofgovernment, State secrets and such like documents connectedwith State craft, communications made in official confidenceis also without defined limits. Our Evidence Ordinance wasenacted in 1895 at a time when activities of the State wereconfined to gubernatorial functions. Neither social welfare ortrade came within the ambit of the State activities. Today theState is engaged in multifarious activities that can be classifiedas Affairs of State and within that classification there will becommunications made in official confidence and the
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disclosure of such communications would not place the publicinterest in jeopardy. Courts will relying on 162(2) inspect thedocument and rule on it if objection to its production is taken.However when communications made in official confidencealso amounts to Unpublished Official Records relating toAffairs of State, the disclosure of which would not be in theinterest of the public and where the objection is taken. Courtwould be denied of inspection. This is the content of theobjection of the petitioner. Though the legislature has madeseparate provisions in Section 123 and 124 respectively fortwo groups of matters covered in England by one generalprinciple of public policy, it is some times necessary to read thetwo sections together when the Court is invited to inspect thedocument under 162(2). If the communication amounts to anunpublished Official Record relating of Affairs of State then theprohibition set out in Section 123 must necessarily apply. H.N. G. Fernando, J. in Keerthiratne vs. Gun aw ard cma(su p ra)observed that it is unsafe to ignore the distinction of mattersof State referred to in Section 123 and the communicationsmade to a public officer under Section 124. H. N. G. Fernando,J. went no to state that if objection to the production is takenunder 124 the Court has to first determine whether thecommunication was made in official confidence and secondlywhether the disclosure would place the public interest injeapardy.
Section 162(2) provides that the Court if it sees fit mayinspect the document unless it refers to matters of State ortake other evidence to enable it to determine on itsadmissibility, while Section 123 refers to Affairs of State. Theright of inspection by Court contemplated in Section 162(2) isexpressly taken away if the document relates to matters ofState. I for a moment cannot see a distinction between thephraseology Affairs of State and matters of State. His LordshipH. N. G. Fernando, j. observed that the exception for mattersof State provided in Section 162(2) should be restricted tocases falling under Section 123 where a similar expressionoccurs. His Lordship went on to state that where it is alleged
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that some communications were made to a public officer inofficial confidence, there seems to be no reason why effectcannot be given to the plain terms of Section 162(2) whichconfer on the Court the right of inspection in order todetermine the question of admissibility. This reasoning isfounded probably on the premise that communications madein official confidence is to be treated as a separate categorydistinct from Unpublished official record relating to affairs ofState. In Conway vs. Rimmerfsupra) the Court adopted aliberal attitude in allowing inspection moving away fromDuncan vs. Cammed Lairdjsupra). But since the Englishcommon law is codified in Sections 123 and 124 there is noroom to import into our law the thinking of Conway vs.Rimmer(supra). However in Keerthiratne vs. Gunawardana(supra) the Court did not give its mind to the possible over lapof Sections 123 and 124 and the possible injury to the interestof the public. H. N. G. Fernando, J. sought to restrict theapplication of 162(2) to Section 123 for the reason that similarexpressions occur in both 123 and 162(2). But did not considerthat the official communication might also amount to anUnpublished Official Record. Both Basnayake, C. J. in DanielAppuhamy vs. Illangaratnefsupra)and H. N. G. Fernando, J. inKeerthiratne vs. Gunawardena were agreed that if objection istaken to the production of a document under Section 123 theright of inspection contemplated in Section 162(2) would bedenied. Basnayake, C.J. in Daniel Appuhamy vs. Illangaratneobserved that, subsection (162(2)) is an empowering provision.It empowers the Court to inspect a document or take otherevidence in order to determine on its admissibility. It confersno such power when the Court has to determine whether thedocument is one that need not be produced. Even when theCourt has to determine the admissibility of a document, thepower of inspection does not extend to documents which referto matters of State.
Mr. Wikremanayake referred to Utter Pradesh vs. RajNarain where the Supreme Court interpreted Section 123 so asto bring the Indian Law in line with the modern judicial
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thinking in England and to curtail somewhat theGovernment’s privilege not to produce documents in Court(Jain & Jain page 695) There the Court held inter alia that theaffidavit claiming privilege in respect of a document is notconclusive and that there is a residual power in the Court todecide whether the disclosure of the document is in theinterest of the public. Mr. Wikremanayake also referred toS. P. Gupta vs. President of India where the Indian SupremeCourt ruled that the Court enjoys the power to inspect thedocument in question and then decide whether it relates toAffairs of State or whether its exclusion is in the publicinterest. The reason was that "the final decision in regard tothe validity or an objection against disclosure raised underSection 123 would always be with the Court by reason ofSection 162(2) that extend to matters of State”. LearnedAdditional Solicitor General submitted that Section 162(2)which is a later section from its very nature and language hasno application whatsoever not only to Section 123 but also toSection 124. He submitted that these Sections set out aprohibition and privilege respectively while Section 162(2)deals with the question of admissibility. I am inclined to agreewith the submission of the Additional Solicitor General thatSection 162(2) has no application not only to 123 but also toSection 124 where privilege is claimed; that Section 162(2)deals only with the question of admissibility and if thecommunication made to a public officer relates to matters ofState and the objection is taken to its production the Court hasno power of inspection.
The distinction between class of documents and nature ofdocuments (contents claim) was recognized in India in the caseof Reg Narain(suprci). There the Court held “Confidentiality isnot a head of privilege. It is a consideration to bear in mind. Itis not that the contents contain material which it would bedamaging to the national interest to divulge but rather that thedocuments would be of a class which demand protection. Toillustrate, the class of documents would embrace Cabinet
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papers, Foreign office dispatches, Papers regarding thesecurity of the State and high level Inter departmentalminutes. In the ultimate analysis the contents of thedocuments are so described that it could be seen at once thatin the public interest the documents are to be withheld. InIndia Court observed in interpreting Section 123 in Tukaramvs. King Emperor181 “the only ground sufficient to justify nonproduction of a official document marked confidential is thatproduction would not be in the public interest for examplewhere disclosures would be injurious to national defence orgood diplomatic relations or where the practice of keeping aclass of documents, secret is necessary for the properfunctioning of the public service.
It appears that in India the Courts were cautious in thatcare has to be taken to see that interest other than the interestof the public do not masquerade in the garb of public interestand take undue advantage of the provisions of this section. Itwas consistently held in India that it is for the Court to decidewhether a document falls within the category of "UnpublishedOfficial Records relating to any Affairs of State”. In doing so theCourt can have regard to all the circumstances barring theinspection of the document itself. Apart from this there is nofetter to the jurisdiction of the Court looking at whatevermaterial available for the purpose of ascertaining whether thedocument is an unpublished official record relating to Affairsof State. In Chamarbaghwalla vs. Parpiaf91 the Court statedthat what are the Affairs of State "has got to be determined bya reference to the grounds on which privilege can be claimedin respect of a particular document/ It is only such documentswhich relate to the affairs of State, the disclosure of whichwould be detrimental to the public interest that come withinthe category of unpublished official records relating to Affairsof State entitled to protection under this section". In NagarajaPillai vs. Secretary of State110’ and also in Pandit ChandradharTewari vs. Deputy Commissioner Lucknow11,1 Courts took theview that the sole judge as to whether disclosure will harm thepublic interest is the public officer concerned and it is not for
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the court to decide whether public interest would or would notsuffer. In Jehangir vs. Secretary qfStatetl2> and in King Emperorvs. Bhagawali Prasad1131 Courts took the view that the publicofficer claiming privilege has to exercise his discretion in giving' or refusing disclosure. His decision must not be arbitrary orcapricious. He should not claim privilege because suchdisclosure would either advance the case of the adversary ordamage his case. Section 123 must in no event be resorted toas a cloak to shield the truth from the Court.
Excelsior Film us. Union of India1141 and in Pimjob vs. SodhiSukhdeu Singh/supra) it was held that a Court would notinspect the document in order to determine whether it isrelated to an Affair of State. However it could take otherevidence to determine whether it is in fact an Affair of State, bu theld further that the Court would not inquire into whether thedisclosure would cause an injury to public interest by suchdisclosure. Injury to public interest was to be decided solely bythe official.
However there was a departure from this thinking in thecase of Uttar Pradesh vs. Raj Narainfsupra) "which sought tobring the Indian Law in line with the modem judicial thinking
in England"In Gupta vs. The President of Indialsupra)
(Judges case) the Indian Supreme Court ruled that the courtenjoys the power to inspect the document in question and thendecide whether it relates to Affairs of State or whether it sexclusion is in the public interest. The final decision in regardto the validity of an objection against disclosure raised underSection 123 would always be with Court by reason of Section162 Examination of the judges case(supra) and RajNarain(supra) would indicate that the reasoning of Conway vs.Rimmer(supra) has found its way into India as observed byBhagwati, J. in Gupta us. The President of Indialsupra). Thebasic question to which the Court would therefore have toaddress itself for the purpose of deciding the validity of theobjection would be whether the document relates to "Affairs ofState” in other words it is of such a character that itsdisclosure would be against the interest of the state or the
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public service and if so whether the public interest in itsnon-disclosure is so strong that it must prevail over the publicinterest in the administration of justice and on that account itshould not be allowed to be disclosed,”
Mr. Wikremanayake invited Court to import into oursystem the Indian thinking that has been developed on theprinciples laid down in Conway vs. Rimmerfsupra). It is myconsidered view that there is no scope in our law for suchactivism.
It is therefore appropriate to consider the reasoning ofBhagwati, J. which under lay the reception of the English lawafter Conway vs. Rimmerfsupra) Bhagwati, J. havingpropounded the principal of open government in RajNarainfsupra) sought to strengthen this concept of opengovernment in the Judges case. He stated that “Secrecy of thegovernment is not a vital public interest so as to prevail overthe most imperative demands of justice. Even if a document isconfidential it must be produced notwithstanding itsconfidentiality, if it is necessary for fairly disposing of the case,unless it can be shown that its disclosure would otherwise beinjurious to public interest". He ruled that “the court enjoyspower to inspect the document in question and then decidewhether it related to Affairs of State or whether it’s exclusionis in public interest". In giving a new orientation to thestatutory provision (Section 123 of the Evidence Act) Bhagwati,J. emphasised “where a society has chosen to acceptdemocracy as its credal faith, it is elementary that the citizenought to know what their government is doing. No democraticgovernment can survive without accountability and the basicpostulate of accountability is that the people should haveinformation about the functioning of the government. Thecitizens, right to know the facts, the true facts, about theadministration of the country is thus one of the pillars of thedemocratic State and that is why the demand of openness inthe government is increasingly growing in different parts of theworld." Bhagwati, J. pointed out that “if the processes and
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functioning of government are kept shrouded in secrecy andhidden from public scrutiny, it would tend to promote andencourage oppression, corruption and misuse or abuse ofauthority. But if there is an open government where means ofinformation are available to the public, there would be greaterexposure of the functioning of the government and it wouldhelp to assure the people a better and more efficientadministration. Exposure to public gaze and scrutiny is“the surest means of achieving a clean and healthyadministration”. “An open government is clean governmentand a powerful safeguard against political and administrativeaberration and inefficiency. Therefore, disclosure ofinformation in regard to the functioning of government mustbe the rule and secrecy an exception justified only where the
strictest requirement of public interest so demandsthe
possibility of subsequent disclosure would act as an effectivecheck against carelessness impetuosity, arbitrariness, or malaJides"
It seems therefore that the concept of open governmenthad been the motivating factor for falling in line with thedevelopments in England, With all due respect to Bhagwati, J.,it is my considered view that judges and Courts must keep aclear distance from the machinations of State craft andpolitical intrigue if the judicial system is to be recognized andrespected as an entity devoid of political colouring. Thepronouncements of Bhagawati, J. in Raj Narain(supra) and inthe Judges case(supra) to my mind appear to be political thananything else. Certainly there is no scope for such activism inthis country.
It is already settled law that Section 123 embodies anabsolute prohibition as observed by Basnayake, C.J. in DanielAppuhamy vs. Illangaratnefsupra). H. N. G. Fernando, J. inKeerthiratne vs. Gunawardanafsupra) held that Section 123and 124 of the Evidence Ordinance do not correspond with theEnglish Law on the same subject and the general principle bywhich the England Courts are guided is not applicable to casesfalling under Section 124.
CA
Vandergert u. Zurfick (Jayaslnghe, J.j
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I have expressed an opinion elsewhere in this judgmentthat it is possible that an official communication made to apublic officer in official confidence could also amount to anUnpublished Official Record relating to Affairs of State inwhich case Section 162(2) operates to shut it out. Hence therein no scope for the application of English Law in this country.
I am inclined to accept the submission of the AdditionalSolicitor General that the obvious meaning of a statute shouldbe given effect to where the meaning is clear and unequivocaland that it is clear from Section 124 that a public officer cannotbe compelled to disclose communications made to him inofficial confidence when he considers that the public interestwould suffer from the disclosure. This submission of theAdditional Solicitor General is strengthened by the dicta ofBasnayake, C.J. in Daniel Appuhamy(supra) where His
Lordship observed “judge-of whether public interest
would suffer by the disclosure of the official communicationmade to him- in official confidence is the public officerconcerned and the courts have no power to overrule him oroverride his authority.” When Section 124 is read with 162(2)the power of inspection is taken away where it refers to mattersof State.
Mr. Romesh de Silva, Presidents Counsel also submittedthat the learned Districtjudge erred in ordering the productionof the impugned document after having come to a finding thatthe communication related to Affairs of State. The moment theDistrict Judge formed the opinion that the document relatedto an Affair of State then she was bound by the reasoning ofBasnayake, C.J. in Daniel Appuhamy vs. IlLangaraLne(siipra).
I accordingly set aside the order of the learned District Judgedated 04. 03. 1997 ordering the production of the impugneddocument. The application for revision is allowed. I make noorder for costs.
Application allowed.