ORDER V.C. Daga, J.
1. P.C.
INTRODUCTION The substantive appeal in question is directed against the impugned order dated 8-11-2000 passed by the Joint Secretary, Government of India, Ministry of Home Affairs, New Delhi, issued in exercise of powers under Section 10(a) of the Foreign Contribution (Regulation) Act, 1976 ("Act" for short), whereby the appellant society known as "The Watch Tower Bible and Tract Society" has been prohibited in public interest from accepting foreign contribution from the date of receipt of the impugned order as in the opinion of the Central Government, acceptance of the Foreign Contribution by the appellant - society is likely to affect prejudicially harmony between the religious groups.
BACKGROUND FACTS
2. The appellant is the legal entity used by the Jehovah's witnesses in India since 1978. The appellant is duly registered under Societies Registration Act, 1860 as well as under Bombay Public Trust Act, 1950. The appellant -Society, considering the provision of Section 6 of the Act got itself duly registered with the authorities under the Act.
3. The appellant society on 17-6-2000 was served with the show cause notice dated 6th June 2000 issued by the 2nd respondent alleging there in breach of the provisions of the Act by the society. Thus the appellant - society was called upon to show cause why acceptance of foreign contribution by them should not be prohibited. The appellant - society vide their reply dated 4-7-2000 replied in detail to the show cause notice in which society claims to have dealt with each and every point raised in the show cause notice.
4. The respondent No. 3 on 8-11-2000 passed the impugned order prohibiting the receipt of Foreign Contribution by the appellant expressly stating therein that acceptance of Foreign contribution by the appellant would affect prejudicially harmony between religious groups.
5. The appellant being aggrieved by the above impugned order filed the present appeal. This appeal came to be admitted on 29-1-2001. On being noticed the respondent appeared and filed their affidavit-in-reply, so as to oppose the appeal challenging the impugned order.
6. On the motion made by the appellant society, the above appeal was taken up for final hearing. While hearing this appeal request was made by the learned Counsel appearing for the appellant that the basic document forming basis of the impugned order, in respect of which privilege is being claimed by the respondents, should be before Court While deciding the issues involved in the appeal. In this view of the matter both the parties made a joint request that the issue with regard to the right of the respondents to claim privilege under Section 124 of the Evidence Act, should be considered and decided first before proceeding to hear the appeal on merits. Accordingly, parties were called upon to address this Court on the issue of 'privilege' claimed by the respondents. That is how the question of privilege came up for hearing and decision before this Court.
7. The learned Counsel appearing for the appellants heavily criticized the quality of the affidavit filed on record and contended that the privilege has not been properly claimed. In his submission the affidavit claiming privilege should have contained an indication as to the nature of the document and as to why privilege is being claimed, what injury to public interest is apprehended and what public injury is involved. Mere statement that they are claiming privilege is not enough, the affidavit must indicate the nature of suggested injuries to the interest of public. The learned Counsel for the appellant also urged that the fair administration of justice itself is a matter of vital public interest. In this view of the matter, he prayed for rejection of privilege claimed by the respondents, CONCEPT OF PRIVILEGE
8. Let me first examine the 'Concept of Privilege'. Ordinarily no privilege is created in law by the mere fact that a communication is made to a person in express confidence. No pledge or oath of secrecy can protect a communication from disclosure in a court when it is necessary for elicitation of truth or in the interest of justice. Privileged communications enjoy protection for unique reasons. The Law of Evidence generally seeks accuracy in fact-finding by receiving relevant evidence thought to be reliable, while rejecting that thought to be insufficiently probative or trustworthy. But privilege communications, which by usual evidentiary standards may be highly probative as well as trustworthy, are excluded because their disclosure is inimical to a principle or relationship that society deems worthy of preserving and fostering. For example, the law confers upon the individual the constitutional privilege of not incriminating himself; it also accords a privileged status to confidential communications between attorney and client, husband and wife and between certain other communicants in special, private relationships.
9. The Cost of evidentiary privilege is apparent in the court room probative and otherwise admissible evidence is suppressed, requiring the trier to decide factual issues without its benefit. Thus, the application of an evidentiary privilege obviously increases the probability that judicial disputes will be decided erroneously. A confidential communication to a clerk, to a Trust, to a Commercial Agency, to a Banker, to a Journalist, to a Broker or any other person not holding one of the special relations recognized by law, is not privileged from disclosure, but the law recognizes that some communication between the person having special relations should be privileged such as communications between Spouses, Attorney and Client. Confidential communications which can be broadly placed into two categories State Secrets or Executive Privileges.
10. In the above backdrop one can turn to the provisions of Section 121 to 129 of the Evidence Act to understand the concept of privilege recognised by law. The case in hand needs to be considered on the text of Section 124 of the Evidence Act, which reads as under:
Section 124. Official Communications. -- No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
11. Public Policy also requires that a communication made to a Public Officer in "official confidence" should not be disclosed being detrimental to the public interest or service. The communication may be oral or in writing.
The confidence reposed may be express or implied. The occasion for claiming privilege under Section 124 arises only when the evidence sought to be given is a communication made to the public officer "in official confidence". That is the condition precedent before privilege can be claimed. So long as this condition is not fulfilled there can be no claim of privilege.
12. The important question always needs to be decided first is whether or not the communication was made to him in "official confidence". The public officer concern is no Judge of this question, and for that purpose the court is empowered to order production and to inspect the document with a view to determine whether the communication was or was not made in official confidence. If the answer to the said question is in the negative then the document has to be produced, if the said answer is in the affirmative, then, it is for the officer concerned to decide whether the document should be produced or not. Privilege has been given not for the benefit of the person making the communication but for protection of the public interest alone. The dominant intention in the section is to prevent disclosures to the detriment of the public interest and it is settled that the decision as to such detriment is to be with the officer, to whom the communication is made, and does not depend on the special use of the word "Confidential".
13. While deciding the question of privilege it is necessary to consider as to how the privilege has been claimed by the officer concerned. It is not proper for the authority to claim privilege without considering the documents. There should be some indication on the nature of suggested injury to the interest of the State or public interests by the disclosure. The Head of the Department should have the documents before him and give careful consideration before claiming privilege. It is true that affidavit should contain an indication as to the nature of the documents, as to why privilege is claimed, what injury to public interests is apprehended, or what affairs of the State are involved, otherwise the court is entitled to draw an adverse inference from non-production. A mere statement that in "my opinion the disclosure would be against public interest" is not enough. He should indicate the nature of the suggested injury to the interests of the public. He must apply his mind to the question whether public interests are likely to suffer by disclosure. It is always desirable that a statement should be put in saying that he has considered the document carefully and has come to the conclusion that it cannot be produced without injury to public interests.
14. The Phrase "Public Officer" used in Section 124 needs to be understood in the context in which it is used in the section itself. He is an officer with public as opposed to private duties who received communications made to him in official confidence of such a nature that disclosure in certain cases would cause injury to the public interests. This section follows the English Law and makes the officer the Judge, as to whether a communication made to him in official confidence should be or should not be disclosed. If he thinks that the public interest would suffer by such disclosure, he is entitled to refuse to disclose the communication. On principle or public policy the official transaction between the heads of the department of the State and their subordinate officers are in general treated as privileged communications. The communications made by one Secretary to the Government is a communication in respect of which privilege can be claimed. Under the section whether the communication was made in official confidence is matter for the Court to decide and whether the public interest would suffer by its disclosure is for the public officer to decide.
PRIVILEGE HOW DETERMINED
15. Where a public officer declines to produce certain documents, claims privilege under Section 124, it is for the Court at the first instance to satisfy itself that the documents relate to any affairs of the State or that their production would be detrimental to the public interests and it is not that a mere fact that their production is likely to create prejudice against the State, is not reason for non production. When privilege is claimed it is for the court to determine whether the documents really relates to the affairs of the State and Ipse Dixit for any one on behalf of the State that it concerned the affairs of the State is not sufficient. The aforesaid question was the subject matter of debate before the Apex Court in the case of Chamanlal v. State of Punjab, AIR 1970 SC 7572, where in the Apex Court observed as under :
"........ A privilege extends only to a communication upon the subject with respect to which the privilege extends and the privilege can be claimed in exercise to the right or safeguard of the interest which creates the privileged."
16. In the leading judgment of the Apex Court, delivered in the case of S.P. Gupta and others vs. President of India and others, , the Apex Court had occasion to express itself in the following words :
"........ Undoubtedly there must be such affairs of the State involving security of the nation and foreign affairs where public interest requires that the disclosure should not be ordered. It is however equally well recognized that fair administration of justice is itself a matter of vital public interest. Therefore, if the two public interests conflict, the Court will have to decide whether the public interest which formed the foundation for claiming privilege would be jeopardized if disclosure is ordered and on the other hand whether fair administration of the justice would suffer by non disclosure and decide which way the balance tilts. In the ultimate analysis the approach of the Court while deciding the question of privilege would be that it has to balance public interest in just justice and just administration of justice and State affairs at high level in respect of appointment to high constitutional offices and then decide which way the balance tilts.
Privilege could be claimed in respect of a document on two alternative grounds; (a) that the disclosure of the contents of the documents would be injurious to the public interest by endangering national security or diplomatic relations and (b) that the document belonged to a class which should not be disclosed to ensure the proper functioning of public service.
There is residual power in Court to decide whether the disclosure of a document is in the interest of the public and for that purpose, if necessary to inspect the document, and that the statement of the head of the department that the disclosure would injury public interest is not final."
17. The Apex Court ruled that on the parity of reasoning it can be safely concluded that in Statutory provisions of Sections 123 and 124 of the Evidence Act, the disclosure is prohibited in public interest unless the court is fully satisfied that the disclosure will not harm the public interest. The Apex Court in the very same judgment observed that the court is however not powerless to hold its own enquiry in order to test the bona fides of the plea of privilege. One form of such an enquiry may be, the inspection of the documents themselves by the court before disclosure. If after inspection the court finds that the plea of privilege is well grounded and its disclosure will lead to great public injury, it will be justified in upholding the plea of privilege.
APPLICATION OF THE ABOVE PRINCIPLE TO THE FACTS OF THE PRESENT CASE
18. The aforesaid principles enunciated by the Apex Court extracted hereinabove, compelled me to take survey of the affidavits-in-opposition filed by the respondents; wherein the plea of privilege has been raised in the very first para of the affidavit. The relevant paras of the affidavit, relevant to the controversy read as under:
"I V. K. Gupta, working as Under Secretary, Ministry of Home Affairs having my office at Lok Nayak Bhavan, New Delhi, do hereby state on solemn affirmation as under:
1. I say that I have gone through the papers and proceedings of the above mentioned matter and office files made available to me. I say that after going through the papers and proceedings of the above mentioned matter and office files, I am filing the present affidavit to oppose the interim relief order as claimed by the Appellant in the above mentioned matter. I say that I am filing the present affidavit on the basis of the available facts and reports. I am claiming the privilege not to disclose the said reports as per Section 124 of the Indian Evidence Act, 1971.I say that I am claiming the said privilege in the interest of public at large.
2. .......
3. .......
4. .......
5. .......
6. ........ The receipt of foreign donations on a very large scale by the applicants and the absence of any tangible welfare project on the ground is indicative of the same being used for influencing the poor, illiterate and tribals to change their religion.
7. ......... It is therefore, submitted that the applicants have deliberately sought to camouflage the work of advancement of their religious activities of influencing the poor, illiterate and tribals by allurements and inducements of different kinds which they can very well afford with the enormous funds they receive from other countries.
8. Onwards...."
19. In addition to the aforesaid affidavit one more affidavit dated 2-5-2001, sworn by Pravin Shrivastava, Joint Secretary, Ministry of Home Affairs, New Delhi is also on record; wherein the respondents have claimed privilege and stated on oath that in the interest of public at large, it is not possible for the Government to disclose the said report.
20. Having considered the affidavits placed on record, the affidavit by and large satisfies the broader requirements of the section and the law laid down by the Apex Court. The affidavit has been affirmed by the head of the department. It is no doubt that the better affidavit could have been filed, but that by itself cannot be a consideration for rejecting the affidavits filed on record. The technicalities cannot arrest the process of administration of justice. In order to satisfy my own conscious, I took liberty to inspect; in camera and go through the document itself in respect of which privilege is being claimed by the respondents. The document in question is a secret communication from the Ministry of Home Affairs, under the signature of Joint Director to the Intelligence Bureau, to the Cabinet Secretary, Principal Secretary to the Prime Minister of India, New Delhi. After having personally seen and examined the document in question I am satisfied that there is sufficient indication in the communication and the possible injury to the public interest, if the document is allowed to be disclosed. I am also satisfied that the public interest would subserve withholding production or disclosure or making the document part of the record.
21. It is no doubt true that on the one side there is a public interest to be protected; on the other side of the scale is the interest of the litigant who legitimately wants production of document, which he believes will support his own and defeat his adverserys case. Both are matters of public interest, for it is also in the public interest that justice should be done between litigating parties by production of all relevant documents for which public interest immunity has been claimed. They must be weighed one competing public interest in the balance as against equally on other competing public administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done. As district forms private interest the principle on which protection is given is that where the conflict arises between public and private interest, private interest must give way to the public interest. In this view of the matter, I propose to uphold the claim of privilege set up by the respondents. In my opinion the plea of privilege is well founded and it's disclosure will lead to great public injury. Thus, considering the facts and circumstances of the present case, this court would be justified in upholding the plea of privilege. In the circumstances plea of privilege stands sustained. Prayer for production of document made by the appellant -society therefore, stands rejected with no order as to costs.
22. The aforesaid matter was on my board. The same was treated as part heard. However, in view of the change in assignment, I do not propose to keep this matter part-heard. Hence not to be treated as part heard. Matter stands released. The office of this Court is directed to place it before appropriate bench for further hearing.