GOVERNMENT PRIVILEGE TO WITHHOLD DOCUMENTS FROM …

GOVERNMENT PRIVILEGE TO WITHHOLDDOCUMENTS FROM COURTS

From time to time, questions arise before courts relating tothe claim of privilege by the government in respect of certaindocuments. While legal responsibility is important it is the fearof political responsibility that influences ministers.

In England 'privilege' can be claimed in respect of dou-ments. The court can in the public interest refuse to order theproduction of docuMents in the course of legal proceedings, civiland criminal, whether or not the Crown is a party in these pro-ceedings. The Crown can resist a summons for discovery ofdocuments in the course of litigation.

A similar claim can be made in respect of evidence as tofacts, although the court will not normally support a claim thata particular witness should not be allowed to give evidence atall. In Duncan v. Cammell Laird and Company Limited,' Vis-count Simon, L.C. said,

"The present opinion is concerned only with the produc-tion of documents, but it seems to me that the same prin-ciple must also apply to the exclusion of verbal evidencewhich, if given, would jeopardise the interests of thecommunity".2

The prerogative to claim privilege in a particular case isthat of the Minister. In Duncan 3 it was held by the House of

[19421 I All E.R. 587. For facts see infra, n. 3.Id. at p. 595.Supra, n. 1. The case related to proceedings arising out of the lossof the submarine Thetis in Liverpool Bay just before the outbreakof the last war. In order to establish liability against the Govern-ment contractors, the plaintiffs asked for production of certain docu-ments, including the contract and blue prints for the constructionof the vessel. The Crown claimed privilege.

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Lords that the objection, when formally and validly taken, mustbe accepted by the court as conclusive, and that the court is notentitled to see the papers in question to ascertain whether theclaim of privilege is or is not justified. Viscount Simon pointedout:

"The withholding of documents on the ground that theirpublication would be contrary to the public interest, is notproperly to be regarded as a branch of the law of privilegeconnected with discovery. 'Crown privilege' is for this rea-son not a happy expression. Privilege, in relation to dis-covery, is for the protection of the litigant and could bewaived by him. The rule that the interest of the state mustnot be put in jeopardy by producing documents whichwould injure it is a principle to be observed in administer-ing justice, quite unconnected with the interests or claimsof the particular parties in litigation, and, indeed, is a ruleupon which the judge should, if necessary, insist, eventhough no objection is taken at all."4

Till recently courts interpreted Duncan as establishing theprinciple that they must accept a Ministerial certificate claimingprivilege, although the courts have always considered themselvesentitled to ensure that the Minister has directed his mind to thematter. If privilege is claimed in respect of a class of documents,and not just for a single document, the Minister must describethe nature of the class and the reason why the documents shouldnot be disclosed.5

The principle that the court could not go behind the mini-sterial certificate claiming Crown Privilege had been furtherconsidered in Auten v. Rayner. 6 The court refused to listen toan allegation that the Minister concerned was influenced by apersonal bias, or might have been so influenced in deciding togrant a certificate.

Id. at p. 595.

In Re Grosvenor Hotel (London) Limited, (No. 2), [1964] 3 AllE.R. 354 at p. 362 per Lord Denning,, M. R.

[1958] 3 All E.R. 566.

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The House of Lords held in Conway v. Rimmer 7 that thebroad interpretation of Duncan was wrong, and that the courtcould overrule a Minister's certificate claiming privilege, at leastwhere the certificate was made on the ground that the documentis one of a class that ought not to be produced. Lord Upjohnobserved,

"On the one side there is the public interest to be pro-tected; on the other side of the scales is the interest of thesubject who legitimately wants production of some docu-ments, which he believes will support his own or defeat hisadversary's case. Both are matters of public interest, for itis also in the public interest that justice should be donebetween litigating parties by production of all documentswhich are relevant and for which privilege cannot beclaimed under the ordinary rules. They must be weighedin the balance one against the other." 8

This decision has now been given statutory recognition bythe provisions of the Administration of Justice Act, 1970,9enabling a court to order disclosure of documents except wherethe court considers that compliance with the order, if made,would be likely to be injurious to the public interest.

Thus in relation to all classes of documents it is for thecourt to decide whether or not to grant the claim of privilege.It remains to consider the circumstances in which the court willgrant the claim of privilege. Where the security of the state isinvolved court will grant the claim of privilege. '° Discovery willbe refused in circumstances where a report has been made by

[1968] 1 All E. R. 874. A former police officer sued a senior officerfor malicious prosecution. It was a material part of his case toprove what had been said about him by the senior officer in certainprobationery reports made when the plaintiff was a police officer.The Home Office claimed privilege for this class of document.Id. at p. 914.Ss. 31-34.

The circumstances in Duncan was obviously a matter of State secu-rity in time of war that blueprints on which the design of many sub-marines then in service was based should not be disclosed to theenemy.

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one Crown servant to another in the course of his duties. Insuch circumstances the report should be treated as confidentialif it was prepared under conditions in which the officer makingthe report expected it to be so treated; if the report were sub-sequently to become the subject of examination in a Court oflaw its confidential nature could be destroyed.

A dilemma arises in cases where it is claimed to be injur-ious to public interest to disclose evidence which a litigantwishes to use. Public interest requires that justice should bedone. Public interest may also require that the evidence shouldnot be made public. To hear the evidence in camera is no solu-tion, since revealing it to the parties and their advisers may beas dangerous as revealing it to the public generally. The onlysolution is this: The court should investigate the Crown's claimsand disallow them, if, on balance, the need for secrecy was lessthan the need to do justice to the litigant.

The potential conflict between the judiciary and the exe-cutive which lies at the heart of the 'Crown privilege' issue wasvividly illustrated in the U.S. Supreme Court's decision in theWatergate Tapes case. In ordering President Nixon to deliverthe tapes to the special investigator, the Court held that thegeneralised plea of executive privilege must give way to thespecific public interest in the enforcement of the criminal law."

In the United States, the source of the power to withholddisclosure of documents is statutory. It is the 'House Keeping'statute which provides that department heads may prescribe re-gulations for "the custody, use and preservation of the records,papers and property appertaining to . . . the Department."' 2̀ Onthe basis of this statutory authorisation, department heads havepromulgated orders forbidding the disclosure of all official files,documents, records and information in the offices of the depart-ment, which are to be regarded as confidential. Such regulationsalso provide that, whenever an employee is directed to producethe documents in Court, the employee is to decline to providerecords on the ground that the regulation forbids him to do so

U. S. v. Nixon (1974) 418 U.S. 683.

5 U.S.C., S. 22.

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unless otherwise directed by the department head. The questionarises under what circumstances the department or agency headcan be compelled by the Court to produce the document?

Where the Government is not a party, and production ofdocuments is sought, the Government is normally successful inits attempt to withhold the document. This may be because thecourts believe that in this category of cases, the interest of theprivate litigant in obtaining relevant evidence is not sufficientlystrong to over-ride the overall societal interest in non-disclosure.Generally, in such cases the government freely permits dis-closure. Hence when it claims to withhold disclosure, the pre-sumption is that there must be substantial reasons for such non-disclosure.

Where the Government is a party, whether in a civil or acriminal case, the executive determination is never of itself con-clusive. If the Government brings a criminal prosecution, it hasto disclose all relevant evidence useful to the accused. The onlyway for the Government to avoid disclosure is to forge the pro-secution. The judge may inspect in camera the document whoseprOduction is called for and which the Government claims con-tains matter not relevant to the testimony of the witness, beforethe claim of privilege is overruled and the evidence presented tothe defendant and his counsel. In civil cases production of rele-vant evidence is not to be abdicated to the caprice of executiveofficers, nor should the trial court automatically require completedisclosure in every case. In certain cases, the surrounding cir-cumstances as set forth in the affidavit supporting the claim ofprivilege would be sufficient, without any review of the docu-ment by the Court, to convince the trial Court about the un-desirability or inadvisability of the disclosure of evidence.

In India, Government has a privilege not to produce itsunpublished record." Thus the government has got an advantage

13. Evidence Act 1872, S. 123. It reads: "No one shall be permitted togive any evidence derived from unpublished official records relatingto any affair of State, except with the permission of the officer atthe head of the department concerned, who shall give or withholdsuch permission as he thinks fit."

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in any litigation, for, a document which is material and relevantis allowed to be withheld from the court and this seriously con-stitutes a very grave departure from the ordinary rules of evi-dence. A valid claim for the privilege proceeds on the basis thatthe production of an unpublished record would cause injury topublic interest, and that where a conflict arises between publicinterest and private interest, the latter must yield to the former.The question has been examined by the Supreme Court in Stateof Punjab v. Sodhi Sukhdev Singh. 14 The Court concluded thatit cannot hold an enquiry into the possible injury to public in-terest which may result from the disclosure of the document inquestion. That is a matter for the authority concerned to decide;but the Court is competent, and indeed is bound, to hold a pre-liminary enquiry and determine the validity of the objections toits production.

As the court felt that it was not unlikely that the privilegemight be claimed on extraneous grounds, it thought fit to laydown certain rules regarding the manner in, and the safeguardssubject to which, the privilege could be claimed.

The initial claim to the privilege should be made throughan affidavit generally by the Minister concerned, if not by him,then by the Secretary of the department; but in the latter case,the court may require an affidavit of the Minister himself. Theaffidavit should indicate that each document in question hasbeen carefully read and considered and the person making theaffidavit is satisfied that its disclosure would lead to public in-jury. The affidavit should also indicate briefly, within permissiblelimits, the reason why it is apprehended that public interest willsuffer. If the affidavit is unsatisfactory, the person making theaffidavit, whether he is the Minister or the Secretary, can besummoned for cross-examination on the relevant points.

The court has power to determine whether the documentrelates to the "affairs of the State." The validity of any objectionto production of document shall be decided by the Court. TheCourt, may inspect a document unless it refers to matters ofState. The court will not inspect unpublished official documents

14. A. I. R. 1961 S. C. 493.

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relating to affairs of the State nor will it permit any evidenceas regards its contents for if a document cannot be inspected itscontents cannot indirectly be proved. It can, however, take othercollateral evidence to determine the validity of the claim forprivilege in respect of such documents.

The foundation of the law relating to privilege in India isthe same as in English law, namely injury to public interest. Thereason for the exclusion from disclosure of documents is thatthe contents if disclosed would injure public and nationalinterest.

Public interest which demands that evidence be withheld isto be weighed against the public interest in the administrationof justice which requires that courts should have the fullest pos-sible access to all relevant materials. When public interestoutweighs the latter, the evidence cannot be admitted.

VARAHABATLA BHIMACHENULU*

* B.Sc.; B.L.; Advocate, Visakhapatnam.

PREVENTION OF FOOD ADULTERATION - SOMEBASIC PROBLEMS

The distribution of adulterated or impure food for con-sumption is an act perilous to human life and health. To securebetter health to its citizens, it is the duty of the State to ensurethat there is no adulteration in food-stuffs.

Anything which is not pure, substandard or spurious isdeemed to be "adulterated".' All violations of statutorily pres-cribed standards of quality and violations of orders regardinglimitation of colouring or preservatives amount to adulteration.In certain situations adulteration makes the food-stuffs only sub-standard but not dangerous. But at times it makes the articlespositively injurious and harmful to the health of consumers. Inthe latter case the adulteration of food items can be said to be`slow and subtle murder'.

Food adulteration and the sale of unsafe and unhygienicfood-stuffs is a serious problem in almost all countries. It isprobably far more extensive and has much more serious effectin developing countries like India in which most of the peopleare illiterate and ignorant. If substandard foods are supplied ata reduced rate poor people will be ready to purchase them dis-regarding the hazardous effects upon their health.

Food preservation facilities are far more limited in ourcountry, particularly in the case of perishable products. Onesurvey revealed that in Delhi atleast fifty percent of the food-stuffs sold were adulterated or below the prescribed hygienicstandards. 2 Milk, is commonly adulterated with water. In

The Prevention of Food Adulteration Act, 1954 gives a wider de-finition to the term "adulterated." See section 2 of the Act.

Mill-shall B. Clinard, Daniel J. Abbhott, Crime in Developing Coun-tries: A Comparative Perspective (1973), p. 46.

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restaurants, tea dust once used is dried and mixed with new; flourand milk powder is adulterated with non-nutritious products.Vegetable cooking oils are adulterated with mineral oils. Costlypepper is mixed with papaya seeds. Chilly powder is mixed withbrick dust. Most harmful of all, however, are the filthy food-stuffs that are served in restaurants and hotels and at the smallstands of food vendors.

Studies conducted by the Industrial Toxicological ResearchCentre, Lucknow reveals the depth of the problem. On analys-ing 12,750 samples of coloured items including milk products,non-milk 'products, sweets and soft-drinks, spices and condi-ments it was found that 70% of them had been tainted with un-authorised toxic colours or were otherwise unfit for human con-sumption. 3 In another survey carried out on the samples ofchillies and coriander collected from several areas in Bombay,the extent of adulteration in chilly samples was found to be atthe rate of 56.25% and in coriander samples at 45.07%-4

In India, adulteration of food is done at different levels.It is effected at the stage of production or manufacture, distri-bution and sale. At the stage of production it is effected in alarge scale by big business magnates. Yet most of the cases offood adulteration which come to the courts are cases againstsmall tradesmen such as grocers and small vendors. These smalltradesmen purchase the food-stuffs sold by them from the whole-sale dealers or from the manufacturers. More often than notadulteration is made either by the whole-sale dealers or manu-facturers. The investigative machinery of the concerned depart-ment, for some curious and inexplicable reasons, does riot turnits attention to the wholesalers and manufacturers. The highestjudicial tribunal of the country lamented. "The small tradesmenwho eke-out a precarious. existence living almost from hand tomouth are sent to jail for selling food-stuff which is often notadulterated by them and the wholesalers and manufacturers who

Ganatra and Ganatra, "Revolutionary Changes Proposed by Parlia-mentary Committee in Food Adulteration Bill: Study of the Billand the Report," A.I.R. 1976 (Journal) 22.

Ibid.

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really adulterate the food-stuff and fatten themselves on themisery of others escape the arm of the law.5

Prevention of Food Adulteration Act 1954 was enacted toeliminate the danger to human life and health from the sale ofunwholesome articles of food. It regulates to some extent theconsumer-supplied relations. But the consumer's ignorance andhis total dependence on the fairness and competence of thosewho supply his daily needs, have made him a ready target ofexploitation. The Statutes and regulations are increasingly ob-served in their breach rather than in their observance. Adultera-tion still remains a serious problem. Not only private entre-preneurs, but even the Union Government, the State Govern-ments and governmental agencies like the Food Corporation ofIndia are violating the law flagrantly.6

The problem of food adulteration calls for a multi-dimen-sional approach from the enforcement machinery, the courts andthe consuming public. Mere amendments of the provisions ofthe Act will not serve the purpose as is evident from the longhistory of amendments to the legislation. The Law Commissionof India in its Forty Seventh Report has also taken notice ofthis. ? In order to overcome effectively the existing problems thefollowing measures are suggested.

1. The power of enforcement of the Prevention of FoodAdulteration Act is with the State Governments and localbodies. But sufficient attention is not given for its enforcement.The local authorities are over-burdened with many other func-tions; hence they are not effective in the implementation of ma-tters regarding prevention of food adulteration. For effective im-

Ganeshmal Jeshraj v. Government of Gujarat, (1980) 1 S.C.C. 363at p. 366, per Bhagwati, J.

About two million tons of food-grains were imported into India ason June 18, 1973 which contained poisonous dhatura seeds andfungus and wheat containing poisonous ergot. See, Ganatra andGanatra, "Government Playing with Public Health", 1973 K.L.T.(Journal) 77.

See Law Commission of India, Forty-seventh Report on the Trialand Punishment of Social and Economic Offences, Chapter-4.

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plementation of the. Act, a separate food department under thecontrol of the Director of Health should be established in allthe States.

2. The Act is not being enforced against the Union andStates Governments and the Food Corporation of India. TheAct should be honestly enforced against them. Samples of eachand every articles of food from every storage place of the UnionGovernment, State Governments and Food Corporation of Indiaand from each and every ration-shop need to be drawn andanalysed.

In the case of import of articles of food by a privateparty, normally the samples of the imported articles of food areanalysed in the statutory laboratory to determine the quality andstandard of the food. Such testing of quality should be strictlyimposed in the case of imports by or behalf of the Government.

Corruption prevalent at the lower levels of the imple-mentation machinery is another factor for the non-implementa-tion of the provisions of the statute. Stringent punishment shouldbe imposed upon the corrupt government officials.

Expeditious trial for food adulteration cases is highlynecessary. The administration and enforcement of the law de-signed to prevent adulteration requires much more than a know-ledge of general criminal law and procedure. For this, appoint-ment of Special Judges or Special Tribunals may be made.

The provision prescribing mandatory minimum punish-ment should be deleted. Punishment should be graded accord-ing to the gravity of the offence. If the adulterated food is in-jurious to health and is likely to cause death or grievous hurt, ahigher punishment like life imprisonment or capital punishmentshould be provided. If the adulterated food is not injurious tohealth a lesser punishment may be prescribed.

Apart from all these, consumers themselves should take apositive approach to the problem of containing adulteration offood. Consumers should organise and fight for their legitimate

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cause. Law cannot by itself solve the problem of food adultera-tion; but it can be an effective weapon at the hands of properlyorganised consumers to fight effectively in the war againstadulteration of food.

M. C. VALSON':'

* B.Sc.; LL.M.; Lecturer, Government Law College, Calicut.