Government Privileges In

England

Nancy Wadhwa
1650557
• The Constitution of India seeks to establish a
Democratic Republic where under the equality
clauses there is no question of privileged
position or immunity in favour of the state.
However, there are numerous privileges and
immunities which are legally recognized and
enforced in favour of the government
In England, the crown enjoys special privilege of
withholding disclosure of documents, referred to as the
rule of “crown privilege”. It can refuse to disclose any
evidence or to answer any question if in its opinion such
disclosure or answer would be injurious to the public
interest. The rule is based on the postulate that public
welfare is the highest law. The public interest requires
that justice should be done but it may also require that
the necessary evidence should be suppressed.
• Duncan v Carmel ,Laird and Co. Ltd. Which arose at the time of second
world war when the submarine Thetis sank during her trials. Numerous
actions were brought against respondents by the representatives of
the deceased, claiming damages for negligence. The widow of one of
the dead persons sought discovery of documents in order to establish
liability against the government contractors. The admiralty claimed
crown privilege which was upheld by the house of lords. It was ruled
that the affidavit filed by the minister that the disclosure will be against
the public interest could not be called into question.“ 1942 AC 624
• Lord Simon said :
“ The principle to be applied in every case is
that documents otherwise relevant and liable to
production must not be produced in the public
interest required that they should be withheld.”
• In Ellis v Home Office, a prisoner assaulted Ellis who was an under-trial
prisoner. The prisoner who assaulted was under observation as a
suspected mentally defective. Ellis alleged negligence on the part of
Prison Authorities but he lost his action as the crown claimed privilege
in respect of the medical reports. (1953 2. B 135)
• Convay v Remmer,1968, the document was ordered
to be produced as the disclosure was not injurious
to the public interest. By this decision, the House of
Lords have brought back into legal custody a
dangerous executive power. The privilege is now
described the ‘public interest’ privilege instead of a
Crown Privilege.
• INDIAN SCENARIO
• As a general rule, the requirement is that both the parties to the dispute
must produce all the relevant and material evidence in their possession. If
any party fails to produce such evidence, an adverse inference can be
drawn under section 114 of the Evidence Act. Section 123 gives a great
advantage to the Government in as much as in spite of non-production of
relevant evidence before the court, no adverse inference can be drawn
against it if the claim of privilege is upheld by the court. This thing
undoubtedly constitutes a very serious departure, from the ordinary rules
of evidence. The basis on which this departure can be justified is the
principle of the “overriding and paramount character of public interest”
i.e. when the public interest served by disclosure is outweighed by the
public interest served by non-disclosure of documents.
• State of Punjab v Sodhi Sukhdev Singh, decide by the Supreme Court. In
this case, the respondent who was a District & Session Judge was removed
from service by the President of India. He made a representation against
the removal. In pursuance of the representation, the council of ministers
secured the advice of the public service commission and therefore
decided to re-employ him. He then filed a suit for declaration that his
removal was illegal and void. He wanted production of certain documents.
The state claimed privilege in respect of them. The supreme court by
majority held that the documents in question were protected under
section 123 of Evidence Act and could be withheld from production on the
ground of public interest.( AIR 1961 SC 493)
• In State of U.P. v Raj Narayan, Raj Narayan had filed an election petition
against the then Prime Minister Smt. Indira Nehru Gandhi. During the
trial, he made an application for production of certain documents. The
U.P. Government claimed privilege in respect of those documents. The
Allahabad High Court rejected the claim for privilege. On appeal, the
Supreme Court set aside the Allahabad judgement.( AIR 1974 All 324)
• State Of Bihar v Kirpalu Shankar, the Supreme Court held that
government files are privileged documents and no contempt
proceedings, civil or criminal can be initiated on the basis of noting on
the files as the privilege is necessary in order to maintain the
independent functioning of civil services and fearless expression of
views. Similarly, the court in Doy Pack Systems Pvt. Ltd. V Union of
India, laid down that it is the duty of the court to prevent disclosure
of documents where Article 74(2) of the Constitution is applicable.
(1987) 3 SCC 34)