(1) This order will dispose of claim of privilege in Civil Writ Petitions No. 1457/74, 1311/74, 136/74 and 24/72, which, though made in the setting of different allegations, raise certain common questions as to the true legal position of confidentiality, its extent and the limit of judicial review of such a claim, particularly in the context of the recent decision of the Supreme Court on the question in the case of Raj Narain, Air 1975 Supreme Court 365 (1) and as to the impact, if any, of the decision on the law laid down by the Supreme Court in the earlier case of Sodhi Sukhdev Singh, : 2SCR371 (2).
(2) By C. W. P. 1457/74 certain civil servants working in the Posts & Telegraphs Department, who initially belonged to the Central Public Works Department, and had been working in the P & T Dept., on transfer of certain projects, which the Cpwd had until then been handling for the P & T Dept., claim that, having regard to the manner in which and the terms on which their services were transferred to the P & T Dept., they would be deemed to have been absorbed in the latter Dept. and could not, thereforee, be repatriated to their parent department. In the alternative, they claim that in any event subsequent to their transfer they were duly absorbed in their present office and arc in any case entitled !o be so absorbed and could not, thereforee, be repatriated. The petition is resisted on the ground that the petitioners were never absorbed in the P & T Dept., either at the time of the initial transfer or at any time subsequent thereto and are, thereforee, liable to be repatriated to their parent office. There is considerable controversy between the parties as to the manner in which the question of absorption and/or repatriation of these petitioners was considered, discussed and decided in the two Depts., as well as the Cabinet Secretariat and in particular whether a decision had been taken at a certain level at one time that, subject to certain conditions being satisfied, the petitioners should be air-orbed but she decision was eventually varied under the pressure of fresh recruits to the P & T Dept., who apprehended that if the petitioners, as indeed others similarly situated officers, were not repatriated their chances of promotion may be prejudicially affected. In support of their various contentions the petitioners made a requisition for the production of records of the two Departments which purport to indicate the terms on which and the circumstances in which the petitioners were transferred to the P & T Dept., along with certain projects, the process of examination of the question as to their absorption and/or repatriation at different levels from time to time, the exchange of notes and correspondence between the two Departments, the decisions with regard to the question taken at different times, the review of the matter at different levels including the alleged decision in favor of the petitioners by the Cabinet Secretariat. These requisitions are contained in C.M. 740/75 and C. M. 682/75. The plea for the production of documents was resisted, infer cilia, by a claim of privilege contained in two affidavits, one of Secretary in the Ministry of Works & Housing in relation to the Cpwd and the other in the affidavit of Secretary in the Ministry of Communications in respect of the records of the P & T Dept. The claim of privilege in respect of both sets of documents is grounded on the allegations that the summoned docu- ments constitute unpublished records of which the disclosure will not be in public interest.
(3) By C.W.P. 1311/75 the petitioner, a civil servant working in the Cpwd, challenges an order by which the petitioner has been compulsorily retired on attaining the age of 50 years in exercise of powers conferred by clause (j) of Rule 56 of the Fundamental Rules in public interest, infer cilia, on the ground that the order is vitiated having been made on the basis of material which could neither be said to be relevant nor germane to the question as to the desirability of compulsory retirement of the petitioner. It is al-feged that the petitioner has had a clean record of service; and that whatever minor lapses may have been there in the service record of the petitioner before 1974 stood wiped off when the petitioner was granted selection grade in May 1968 and was allowed to cross the efficiency bar in 1974. The petition is opposed and the impugned order is sought to be justified on the ground that it was made in public interest on the basis of the service record of the petitioner and was justified with reference to the material which was both relevant and germane to the question as to the liability of the petitioner to compulsory retirement. In particular, it is contended that on a review of the entire service record of the petitioner it was found that the same was generally poor and that such a conclusion would justify the impugned order. The contention of the petitioner was sought to be reinforced with reference to the confidential reports and other records relating to his confirmation, grant of selection grade and crossing of the efficiency bar, etc. The plea for the production of the aforesaid record by C.M. 553/76 was resisted by a claim of privilege on the ground that the summoned documents were unpublished records relating to the affairs of the State and their disclosure would adversely affect freedom and can dour of expression of opinion in the discharge of public functions.
(4) By C.W.P. 136/74 a former Police Officer seeks to challenge a Presidential order discharging the petitioner from service under clause (bb) of Rule 12 of the Indian Police Service (Probation) Rules, 1954, inter alia, on the ground that the order is punitive in nature having been made on the basis of reports and material against the petitioner and is invalid in that the petitioner was not given a reasonable opportunity of being heard before the order was made and in particular that the aforesaid material and reports were considered behind the back of the petitioner and the same were never disclosed to the petitioner at any stage. The petition is resisted and the impugned order is sought to be justified on the ground that the petitioner, being a probationer, was liable to be discharged from service if he was found lacking in qualities of mind and character or in constructive outlook of human sympathy needed in the public services generally. It is claimed that the impugned action was based on an objective and unbiased assessment of the performance of the petitioner. It is denied that the petitioner had a good record of service. It was, however, not disputed either in the Return to the Rule or at the hearing that the discharge had its genesis in adverse remarks against the petitioner by the various officers, adverse reports against him and other material which clearly made out that the petitioner was unfit to be retained in police service. With a view to reinforcing the contention that the impugned order was punitive in character the petitioner sought the production of the service records, as indeed the other material and reports against the petitioner which was resisted by a claim of privilege contained in the affidavit of Secretary to the Government of Maharashtra which was grounded on the allegations that the contents of the various documents, comprising official nothings and confidential communications, which are unpublished official records, relate to the affairs of the State of which the discloure would materially effect the freedom and can dour of expression of opinion in the determination and execution of public policies. It is further claimed that the disclosure of the contents of these documents would not be in public interest and would impair the proper functioning of public service.
(5) By Civil Writ Petition No. 24/72 certain members of the Indian Statistical Service assail the validity of a number of orders with regard to the determination of seniority of the petitioners vis-a-vis certain other officers, who arc respondents, and seek re-determination of inter se seniority and claim consequential benefits including promotion. The petition is opposed both by the Union as indeed some of the individual officers. The petitioners sought to reinforce their contentions with reference to the official records relating to exclusion of certain posts in the National Sample Survey at the initial constitution in 1961 as well as the files relating to the period when the said posts were included in 1966. The petitioners particularly sought production of files indicating the references made by the N.S.S. Directorate, Dept. of Statistics. The production of these files was sought by C.M.61/76. The production of these files is resisted by a claim of privilege contained in the affidavit of Secretary Department of Personnel & Admn., Reforms Cabinet Sectt. on the ground that the various documents in the files concerned constitute unpublished official records, opinions expressed, reports made and gist of decisions reached in the course of determination or execution of public policy regarding various matters the disclosure of which would materially effect thet freedom and can dour of expression of opinion in determination and execution of the said public policy. It is further claimed that the disclosure would impair the proper functioning of the public service to which the documents relate.
(6) Even while making the claim of privilege the respondents have in each of these cases filed for the examination of the Court all the disputed documents to enable the Court to decide the question as to the validity of the claim of privilege.
(7) In the course of the hearing on the question of the claim of privilege even while admitting the power of the court to examine the contents of the documents for itself to adjudicate the validity of the claim it was contended that even so once the Court came to the conclusion that the documents related to the affairs of the State it was not for this Court to go into the question if their disclosure would be contrary to public interest or to insist that the respondents should satisfy the Court that the disclosure of the documents would not be in public interest. There was considerable controversy as to the limit of confidentiality in the matter of public records and the extent of judicial review in such cases. It was argued that the decision in the case of Raj Narain (supra) had not made any qualitative difference in the law relating to privilege as laid down by the Supreme Court in the earlier decision in the case of Sodhi Sukhdev Singh (supra) and it was, thereforee, urged, that the validity of the claim should be judged in the context of the earlier decision which still held the field and that the later decision has in no way either limited the area of confidentiality or extended the scope of judicial review of the claim of privilege. An attempt was also made to show that the ratio of the main judgment of Ray. C.J. and the concurring judgment of Mathew, J. did not coincide and that the main judgment discloses a consistent current of affirmation of the principles laid down in the case of Sodhi Sukhdev Singh (supra) with the exception of the power of the Court to inspect the records, which was denied in the earlier case. It was thereforee, argued that subject to the aforesaid modification, the decision in the ease of Sodhi Sukhdev Singh (supra) still held the field and certain emphatic observations of Mathew J. only represented a minority view and could not. thereforee, prevail so as. to completely wash away the effect of the earlier judgment.
(8) What then is the true legal position of the claim of privilege, the extent of confidentiality the area of judicial review and where does the law stand after the decision in the case of Raj Narain (supra) are some of the questions that must, thereforee, be considered.
(9) As there has been some controversy as to whether the law relating to claim of privilege from compulsory production has, by the decision of the Supreme Court in the case of Raj Narain, been brought at par with the law on the subject obtaining in England, it will be useful to find out the true legal position of Crown privilege in England. In proceedings, where Crown is a party, the Crown has the same right of discovery as a subject against another, but, until the Crown proceedings Act, 1947, the Crown could not be compelled to give discovery even though in actual practice, 'it often did so unless some principle of public interest was involved', A. G. v. Newcastle-upon-Tyne Corporation (1897) 2 Q.B. 384. The Crown may now be required by the court to make discovery of documents and produce documents for inspection and answer interrogatories in civil proceedings, to which it is a party. This is, however, without prejudice 'to the right to resist discovery on the ground that disclosure of a document or the answering of a question would be injurious to the public interest', Halsbury's Law of England, 3rd Ed. Vol. 12 Para (16).
(10) The question as to the extent of Crown privilege against disclosure. the class of documents which will be entitled to absolute privilege, the class of documents which will be entitled to qualified privilege., as to the test to determine when the disclosure would be against public policy or prejudicial to public interest, the extent to which the minister's claim of privilege could be considered as conclusive and as to the extent of judicial review of such claims, came up for consideration in Courts in England on a number of occasions. It is, however, unnecessary to reter to the numerous decisions and it should be sufficient for our present purpose to examine three decision', which could be said to represent the important stages in the development of the law relating to claim of privilege.
(11) The earliest of these cases is Robinson v. State of South Australia, 1931 All ELR 33. This was the decision of the Privy Council in an appeal from a decision of the Supreme Court of South Australia. The Supreme Court had turned down the application by a party to an action for production of documents by the State on a claim of privilege on the ground that the disclosure of the documents was contrary to public policy and that the interests of the State and of public service and the public interest would be prejudiced by their production. The Judicial Committee set aside the order and the case was remitted to the Supreme Court with the direction to inspect the documents for which the privilege was claimed in order to determine whether the facts discoverable by the production of documents were prejudicial or detrimental to the public welfare 'in any justifiable sense'. Lord Blanesburgh in his speech expressed the view: 'that the privilege is a narrow one, most sparingly to be exercised', and quoted with approval the following passage in Taylor on Evidence:
'THE principle of the rule is concern for public interest, and the rule will accordingly be applied no further than the attainment of that object requires.'
It was further pointed out that the foundation of the claim is that the information could not be disclosed without injury to the public interests and 'not that the documents arc confidential or official, which alone is no reason for their non-production'.
(12) In the case of Duncan v. Cammell Laird & Co. Ltd., (1942) 1 All ELR 587, the question that arose for consideration before the House of Lords was as to the circumstances in which it may be validly claimed on behalf of the Crown that documents. the production of which is demanded by regular process in a civil action, should not be produced on the ground that it would be contrary to the public interest to produce them. In 1939, a submarine which was built by the respondents under a contract with the Admiralty. sank to the bottom in a trial dive as a consequence of which ninetynine men lost their lives. This led to a number of actions for damages for negligence. In the course of proceedings production of certain documents was sought which was resisted by a claim of privilege. The documents included a large number of plans and speeifications relating to parts of the vessel. The claim was upheld by the Judge sitting in Chambers and the order was unanimously affirmed in the Court of Appeal. Viscount Simon, L. C. in his speech referred to a number of earlier decisions and observed :
'THE principle to be applied in every case is that the documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld, this test may be found to be satisfied either (a) by having regard to the contents of the particular document or (b) by the fact that the document belongs to a class which, one the grounds of public interest, must be a class be withheld from production.'
question was posed if an objection taken in proper form should, 'be treated by the Court as conclusive, or are there circumstances in which the Judge should himself look at the documents before ruling as to their production'. On a review of a number of earlier decisions it was held that where an objection has been validly taken, the view of the government department as to the likely effect of this disclosure was 'conclusive'. The view expressed by the Privy Council in the case of Robinson (supra) was dissented from. It was, however, pointed out that it would not be a good ground to unhold the claim of privilege because 'the production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation', and that 'The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in case where the public interest world otherwise be damnified e.g. where disclosure would be injurious to national defense, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.'
(13) In Conway v. Rimmer and another, (1968) 1 All ER 874, the House of Lords reviewed the entire law on the question. The claim arose in an action for damages for malacious prosecution filed by a probationary constable and the documents of which, the production was sought, inter alia, consisted of probationary reports and certain other reports by the District Police Training Centre and Director of Public Prosecution with regard to the work and conduct of the appellant. The production of the documents was resisted on the ground that the documents fell, 'within a class of documents comprising confidential reports by the police officers to Chief officers of police relating to the conduct, efficiency and fitness. for employment of individual police officers under their command and that the said documents numbered 47 fell within a class of documents comprising reports by police officers to their superiors concerning investigations into the commission of crime' and the production of documents of each such class 'would be injurious to the public interest'. The question arose whether such a claim by a Minister of Crown 'should be accepted as conclusively preventing any court from ordering production of any of the documents' to which it applied. It was pointed out by Lord Reid in his speech that if the commonly accepted interpretation of the decision of the House in Duncan (supra) is to be accepted, the question must be answered in the affirmative. It was pointed out that the decision in case of Duncan was right on the facts of that case, in that the plaintiff sought discovery of documents relating to a submarine and its plans and specifications which might 'well have given valuable information, or at least clues, to the skilled eye of an agent of a foreign power', and felt 'difficult to believe' that the views expressed by Viscount Simon L. C. 'would have been the same if the case had related, as the present case does, to discovery of routine reports on a probationer constable'. It was further pointed out that the rule laid down by Viscount Simon L.C. arose out of a misconception that on this question, the law in Scotland was the same as in England and that 'events have proved that the rule supposed to have been laid down in Duccan's case, is far from satisfactory' and reference was made to a large number of cases in England in which 'much dissatisfaction has been expressed' and that there was no case which gave 'expression of wholehearted approval to it'. The need to strike a proper balance between public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done was emphasised. It was observed :
'THERE are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases, it would be proper to say, as Lord Simon did, that to order production of the documents in question would put the interest of the State in jeopardy; but there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved. I do not believe that Lord Simon really meant 12 HCD/76 10 that the smallest probability of injury to the public service must always outweigh the grave frustration of the administration of justice.'
Their lordships then posed two questions: First, whether the court is to have any right to question the finality of a Minister's certificate and Secondly, if it has such a right, how and in what circumstances that right is to be exercised and effective. After reviewing a number of decisions, the following test was laid down:
'I would, thereforee, propose that the House ought now to decide that courts have and are entitled to exercise a power and duly to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest, in ensuring the proper administration of justice. That does not mean that a Court would reject a Minister's view: full weight must be given to it in every case, and if the Minister's reasons are of a character, which judicial experience is not competent to weight then the Ministers view must prevail; but experience has shown that reasons given for withholding whole classes of documents are often not of that character. For example a Court is perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that there was a chance that his report might be produced in legal proceedings, he would make a less full and candid report than he would otherwise have clone.'
The law on the question after the decision in Conway (supra) has been suceinctly summarised by Phipson in his celebrated works on Law of Evidence in para 562 thus : In deciding whether a claim of Crown privilege should apply to a document, there are two kinds of public interest to be considered by the court. There is (1) the public interest that harm shall not be done to the nation or the public service and (2) the public interest that the administration of justice shall not be frustrated by the withholding of documents which must produced if justice is to be done. There are cases where the nature of the injury which might be done to the public service is of so grave a character that no other interest can be allowed to prevail. But there arc other cases where the possible injury is much less and there the court must balance the public interests involved in deciding whether to withhold the document or not. When a Minister's certificate suggests that a document belongs to a class which ought to be withheld then, unless his reasons arc of a kind that judicial experience is not competent to weigh, the test is whether the withholding of a document because it belongs to a particular class is really necessary for the functioning of the public service. If a judge decides that on balance the documents probably ought to be produced, it would generally be best that he should see them before ordering production.' Elsewhere Phipson has summarised the impact of the decision in Conway thus:
'IN Conway v. Rimmer, dicta of Lord Simon L.C. in Duncan v. Cammell Laird & Co. that a Judge must accept as final a Minister's decision to exclude evidence mere overruled it being laid down that Courts have power to order production and to overrule the Minister's decision'.
(14) In India the first over opportunity to undertake a comprehensive review of the law on te question and to lay it down authoritatively was provided in the case of Sodhi Sukhdev Singh (supra) The judgment in this case was rendered in November 1960 and a large number of Indian as well as English decisions, touching the question. including the leading English decision in the case of Duncan (supra), which until then held the field, were referred to and discussed. The conclusion arrived at by Gajendragadkar. J.. as he then was, and who spoke for the majority, on the question of extent of confidentality, the conclusiveness of the conclusion of the authority with regard to the effect of disclosure and the extent of judicial review of it may be summed up thus: The expression 'affairs of the State' has not been defined by the legislature. With the extension of the state activity from traditional fields to areas of trade, commerce and industry, in which the State participates in pursuit of public policies of social welfare, the meaning of the expression has undergone change. Where legislature has thought it lit to leave the expression undefined a judicially evolved definition would be improper and the question as to whether any particular document or a class of documents answers the description must be determined in each case on the relevant facts and circumstances. When faced with the question whether a claim of privilege should be upheld on the ground that the document relates to the affairs of the state of which the disclosure would be prejudicial to public interest it is open to court to determine the character or class of the document but without looking at the document or any evidence as to its contents. Collateral evidence may, however, be produced which may assist the court in determining the validity of the objection. It is likewise not open to the court to hold an inquiry into the possible injury to public interest which may result from a disclosure of the document in respect of which privilege is claimed for that is a matter for the authority concerned to decide. Kapur, J. in his dissenting opinion, however, ruled that the court was not entitled to take any evidence in regard to the nature of the document for which privilege is claimed. Subba Rao, J. as he then was, in his dissenting opinion, expressed the view that the court had the overriding power to disallow a claim of privilege but will exercise its power only in exceptional circumstances where the public interest served by the disclosure clearly outweighs that served by the non-disclosure. It was further held that the documents whose production would endanger public interest, documents pertaining to public security, defense and foreign relations, were documents relating to affairs of state, while unpublished documents relating to trading, commerce or contractual activities are ordinarily not to be considered as such documents but in special circumstances they may partake of that character and that in the cases mentioned in the last category it is a question of fact in each case where they relate to affairs of state or not in the sense that if they are disclosed public interest would suffer.
(15) Subsequently in the case of Amar Chand Butail, Air 1964 SC 1958, while reiterating the principles laid down in the case of Sodhi Sukhdev Singh, the Court recognised the power of inspection by the Court of the disputed documents because it was felt that in finding whether a document was of a noxious class and should be excluded from production on the ground that it related to affairs of Stale, it may sometime be difficult for the Court to determine the character of the document without looking at it. To that extent, thereforee, Butail's case represented further development in the law in that in the earlier of the two cases, the Court had denied itself the power to examine the document and, as indeed to receive any oral evidence, as to the contents of the documents, and had ruled that the question as to the nature of the document could be decided only by collateral evidence.
(16) In the case of Raj Narain (supra), Supreme Court had another occasion to consider the question in the context of the earlier decisions, both English and Indian, and in particular the latest decision of the House of Lords in the case of Conway (supra), which had, in. the meanwhile, brought about considerable change in legal thought on the question of claim of privilege. The conclusion of Ray, C.I., who spoke for the majority, may be summarised thus : The foundation of the law behind sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs [he latter the evidence cannot be admitted. But documents may be privileged either because of the class to which they belong or because of their contents. When a claim of privilege is made the court is entitled to inspect the document and decide its validity and the decision whether the document is entitled to the privilege is the decision of the Court. Mathew. J. in a separate though concurring opinion, expressed himself emphatically in favor of the view, now held in England, lhat except in a limited class of documents, involving the security of the state. it is for the court to determine whether the documents relate to the affairs of the state and us to the possible consequences of their disclosure and that ii was open to the court to overrule the conclusion of the authority as to the likely effect of the disclosure. It was pointed out that there was more than one aspect of public interest and that the need for impartial administration of justice was one of these aspects and while there may be overwhelming argument for giving to the executive the power to determine what matters may prejudice public security such arguments give no sanction to give the executive an exclusive power to (Jetermine what matters may affect public interest, and that. it was for the court in such cases to sec if in a given case considerations of public interest with regard to privilege against disclosure outweigh the. consideration of public interest that all relevant material be placed before a court of justice.
(17) The judgment in the case of Raj Narain, to my mind, represents a clear departure from the line of thinking on which the earlier decision in the case of Sodhi Sukhdev Singh was based, at least in two matters, namely, the power of the court to inspect the documents and the extent of justifiability of the opinion of the executive as lo the likely effect of disclosure of contents of a document on public interest. In the case of Sodhi Sukhdev Singh the power to inspect and the power of the court to overrule the executive opinion as to the likely impact of disclosure had been denied to the court. The right to inspect the document was restored to the court in the case of Amar Chand Bhutail and this was reiterated in the case of Raj Narain, which in addition reserved for [he court the ultimate power to decide if the disclosure of a document would prejudice public interest or not. There is, thereforee, no force in the contention that the decision in the case of Raj Narain does not represent any departure from the legal position obtaining before that decision. It is equally fallacious to suggest that the departure, if any, could be spelt only out of the opinion of Mathew J. which did not coincide with the majority view. To my mind, the opinion of Mathew J. is neither a dissenting opinion nor is in any way in conflict with the opinion expressed by Ray, CJ. The two-fold departure pointed out above is clearly implicit in the main judgment and what was so clearly implicit there was made explicit, with his characteristic emphasis, by Mathew J., and I say so with respect. In a sense the decision in Sodhi Sukhdev Singh was based on the ratio in the decision of Duncan even though Gajendragadkar J. was not unaware of the peculiar features of that case which led to that decision and which ultimately persuaded Lord Reid, in the case of Conway, to treat the decision in Duncan as confined to the facts of that case and not as laying down any rule of universal application, on the question of privilege. It would be correct to say that the limitation on the power of the court while dealing with the claim of privilege visualised in the case of Sodhi Sukhdev Singh was relaxed and relieved in the case of Raj Narain in almost the same manner and to the extent a similar limitation, imposed on the court in the case of Duncan, was relaxed and relieved in the case of Conway. The decision in Raj Narain, to my mind, represents a development in the law relating to claim of privilege in India in the way in which Conway represents a stage in the growth of the law in England.
(18) With the decision in the case of Raj Narain the law relating to claim of privilege could be safely treated as having become crystallised. It is thus no more in doubt that when called upon to consider a claim of privilege court is entitled, as in deed bound, to insist on the production of the documents, to inspect the documents, to consider if the document relates to affairs of the state and to decide if the disclosure of the contents of the documents would be prejudicial to public interest. In considering whether the disclosure would prejudice public interest the court would strike a balance between the requirements of public interest which demands that evidence be withheld and the public interest which demands that in the administration of justice court should have the fullest possible access to all relevant material and it is only when the former outweighs the latter the claim would be upheld. It is equally well settled that in considering the question as to the likely effect of the disclosure the opinion of the executive is not conclusive although the court would give due weight to it while deciding the question. However, ordinarily the court would treat the view of the executive as conclusive in matters on which the decision is best left to be made by the executive, and turn which the court is not the proper place to adjudicate such as documents relating to the security of the state, national defense, relations with foreign countries, documents relating to decisions of the Cabinet and documents pertaining to high national policies. In respect of other confidential records the view of the executive as to the likely impact of the disclosure on public interest or national interest, would be subject to judicial review.
(19) That being the true legal position it remains to be considered if the claim in respect of the individual documents should or should not be upheld.
(20) It was not disputed that except documents said to relate lo the decision of the Cabinet in the matter of absorption in C.W.P. No. 1457/74, the production of which was not pressed, none of the other documents in any of the cases could be said to belong to the category of documents which have any relation to the security of the state, defense, foreign relations, or could be said to contain high level policy decisions. The documents in each of the cases consist either of reports of the higher officers with regard to the work and conduct of the civil servants concerned or reports and other material in relation to their conduct, or confidential reports as to their suitability for retention as in the case of documents in C.W.P. No. 1311/75 and C.W.P. No. 136/74 or consist of office notes and exchange of correspondence between the different departments with regard to the constitution of a particular service, exclusion of certain posts at the time of initial constitution, inclusion of certain posts subsequently, as in the case of C.W.P. No. 24/72, or similar office noting and correspondence with reward to the terms and conditions on which certain civil servants were transferred from one department to the other, the office noting by which question as to their absorption was considered and decided at different levels, as in the case of C.W.P. No. 1457/74. None of these documents could possibly qualify for the claim of privilege either with reference to the class to which they belong or with reference to their contents. The only possible manner in which the claim could be justified was that their disclosure would discourage can dour in the expression of views in matters of public administration. The argument is that if the authors of these documents were aware that at some stage these documents would be exposed to public gaze in a court of law they would be reluctant to give expression to their honest views on the work and conduct of their subordinates. This argument, to my mind, is wholly unsustainable and I can do no better than quote the way a similar argument was dealt with by Lord Morris in the case of Conway. This is what his Lordship said :
'IN many a decided case, however, there have been references to a, suggestion that if there were knowledge that certain documents (e.g. reports) might in some circumstances be seen by eyes for which they were never intended the result would be that in the making of similar documents in the future can dour would be lacking. Here is a suggestion of doubtful validity. Would the knowledge that there was a remote chance of possible enforced production really affect can dour If there was knowledge that it was conceivably possible that some person might himself see a report which was written about him, it might well be that can dour on the part of the writer of the report would be encouraged rather than frustrated. The law is simple in its protection of those who are honest in recording opinions which they are under a duty to express. Whatever may be the strength or the weakness of the suggestion to which I have referred it seems to me that a court is as well and probably better qualified than any other body to give such significance to it as the circumstances of a particular case may warrant.'
While there thus appears no compulsion of public interest which may point to the need to prevent disclosure, such a course is bound to cause denial of justice to the petitioners. The production of these documents would either reinforce the contentions of the petitioners or provide complete defenses to their pleas. Either way they would conclude the questions of fact in controversy.
(21) In C.W. 1457/74, however, there are large number of nothings and it is possible that some parts of the notes may relate not only to the question of absorption of the civil servants or their repatriation but certain larger question of policy with which part the petitioners may neither be concerned nor interested. It would, thereforee, be open to the respondents in that case to withhold inspection of such portions of the noting.
(22) In the result the claim of privilege is rejected in all these cases subject to the aforesaid observations. CMs. 682 and 740/75 in C.W.P. 1457/74, C.M. 553/76 in C.W.P. 1311/74 and C.M. 61/76 in C.W.P. 24/72 are disposed of accordingly. The respondents would allow the inspection of the records, subject as aforesaid, to the petitioners within a week.
(23) In the peculiar circumstances, there would be no costs. Ordered Accordingly.