Case Summary and Outcome

The Supreme Court of India upheld the High Court’s decision to disclose a government record. Raj Narain requested the government of the State of Uttar Pradesh to disclose the document “Blue Book” which contained security guidelines regarding the Prime Minister of India’s travel. Government officials declined to produce the document, claiming that it was an unpublished official record and against the public interest. The Court reasoned that the document was not an unpublished official record since the government official failed to file an affidavit to claim it as such. In addition, the Court reasoned that it had the authority to determine whether a document is of public interest.

Facts

Raj Narain, an Indian national, filed an election petition before the Allahabad High Court, alleging misuse of public finances by a political party for the re-election of the Prime Minister of India. For proving these allegations, he summoned the State Government of Uttar Pradesh to produce a document called Blue Book, which contained security guidelines for the protection of the Prime Minister in times of travel. In response, an official of the Home Security of Uttar Pradesh was instructed to claim a non-disclosure privilege under Section 123 of the Evidence Act. It states that “no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold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.”

Upon the official’s failure to timely submit an affidavit, Narain argued that the government was obligated to produce the Blue Book because the government did not raise its non-disclosure privilege and that the document did not relate to the affairs of the State.

The High Court ruled that due to the government’s failure to file an affidavit in the first instance, the disclosure of the document could only be prohibited if it was an unpublished government record and that its production would be against public interest. The court concluded that the Blue Book was not an unpublished record within the meaning of Section 123 of the Evidence Act because the Union Government and a member of the Parliament had referred to a portion of the document and that the government failed to specify its reasons as why the disclosure would be against public interest. Accordingly, the Allahabad High Court ordered the production of the Blue Book in favor of Narain.

Subsequently, the State Government of Uttar Pradesh appealed the decision to the Supreme Court of India.

Decision Overview

Justice Alagiriswami and Untwalia delivered the opinion of the Supreme Court of India.

The first issue before the Court was whether the Blue Book was an unpublished government record within the meaning of Section 123 of the Evidence Act. According to the Court, the underlying purpose of the section is to prevent “injury to public,” through disclosure or production of government documents, and it is the function of the judiciary to balance that interest “against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials.” [p. 2] In general, “State papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service.” [p.2] And Section 123 imposes the obligation on the government to timely claim such privilege in an affidavit. [p. 2]

In this case, the Court, while acknowledging the government’s failure to file an affidavit in the first instance, proceeded with its analysis of the Blue Book in light of the above-mentioned standards. It ruled that the document could not be considered a published government record merely based on the fact that some of its part had been disclosed by other government entities. [p. 4] Accordingly, the Court had to consider whether the document related to government confidential information and whether its non-disclosure was in the public interest. [p. 3] It first held that the Court “has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretion[,] the Court will exercise its power only in exceptional circumstances when public interest demands, that is, when the public interest served by the disclosure clearly outweighs that served by the nondisclosure.” [p.6] As applicable in this case, the Supreme Court also noted that under Section 162 of the Evidence Act, an objection to disclosure of a privileged government record “should be filed on the date which is fixed for the production of document so that the Court may decide the validity of such objection.” [p.6]

In the present case, the Court without further analyzing the interest of public in non-disclosure of the Blue Book, affirmed the High Court’s judgment based on the government’s failure to timely raise its privilege in form of an affidavit. It found that the High Court “was right in drawing inference from non-filing of the affidavit” that no privilege was claimed. [p. 5] And that it had the judicial authority “to look to the document itself and take a decision as to whether the document concerned was such which at all related to any affairs of the State.” [p.6]

Justice Matthew delivered the Court’s concurring opinion. He noted that privilege existed with respect to the government document and the right to waive such privilege. He recognized that the right of a party to waive privilege does not extend to cases which may harm public interest. Therefore, the Court was obligated to examine reasons submitted in an affidavit and that it could not decide on such matter without adequate inquiry.