Judgment Ranjit Singh, J. 1. A simple looking issue concerning the claim of privilege in regard to Annual Confidential Report has invited interesting debate requiring survey of law relating to claim of privilege in our legal system. Can ACR be withheld from scrutiny of the court on the ground of being a privileged communication, would be question requiring decision in this case?. 2. Respondent No. 1-B.B. Singla has filed a suit seeking declaration to the effect that he is entitled to promotion to the post of Senior Branch Manager with effect from May,* 1997, when his batchmates were so promoted. Respondent No. 1 pleads that his performance was admittedly comparatively better than his batchmates. A witness was summoned to produce the Annual Confidential Reports of respondent No. 1 for the period as noted, when an application was filed under Section 124 of the Evidence Act read with Section 151 CPC by the petitioner-Life Insurance Corporation pleading that his reports cannot be allowed to be produced in public interest and privilege was claimed in this regard. 3. This issue arose before Civil Judge (Junior Division), Chandigarh, who dismissed the application filed by the petitioner claiming privilege when asked to produce the Annual Confidential Reports of respondent No. 1 for the period from 1.4.1993 to 31.12.1999. 4. Trial Judge has made the issue look rather simple and has decided the same by relying on two precedents in the cases of State of H.P. v. Marmohan Bhardwaj 1983 Lab.I.C. 469 and Vasant v. State of Maharashtra 1989 Lab.I.C. 673. View taken in these cases is that claim of privilege in respect of ACR and minutes of Departmental Promotion Committee are impermissible. He has not made reference to contrary view taken by this Court and some other Courts in cases of The State of Punjab and Ors. v. Surjit Singh, and N. Muthu v. The Executive Director, Bharat Heavy Electricals Ltd. 2000(4) S.C.T. 856 (Madras). This Court in Surjit Singhs case (supra) has observed that view taken earlier in Full Bench decision in Governor General In Council v. H. Peer Mohd. v. Surjit Singh, and N. Muthu v. The Executive Director, Bharat Heavy Electricals Ltd. 2000(4) S.C.T. 856 (Madras). This Court in Surjit Singhs case (supra) has observed that view taken earlier in Full Bench decision in Governor General In Council v. H. Peer Mohd. Khuda Bux A.I.R. 1950 E.P. 228 (F.B.) and the Single Bench decision in the cases of Union of India v. Raj Kumar Gujral, and H.L. Rodhey v. Delhi Administration, is no more a good law in view of the decision of the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh, Obviously, the counsel for the petitioner has heavily relied upon these decisions and has remained silent about the subsequent transformation of doctrine of Crown Privilege into doctrine of public interest immunity etc. Mr. Anupam Gupta has with sufficient eloquence traced the development of law in this regard starting from Full Bench decision in the case of Mohd. Khuda Bux (supra) and has referred to the travels of English law in this regard. He has rightly pointed out that we are now living in the era of Right to Information where disclosure of information is now regulated under statute, of course subject to limitation contained therein. 5. Let us notice the present position to find if this privilege can now be upheld as is being claimed or the trial court has rightly rejected the prayer of the petitioner in this regard. Mr. Anupam Gupta has made detailed reference to the case of S.P. Gupta and Ors. v. Union of India and Ors., (famously known as the Judges case). Honble Supreme Court in this case has settled the Indian law on public interest immunity or crown privilege as it used to be called by the majority of 6:1, leading judgment being that of Bhagwati J. The law in this regard has been brought in tune with the law as it stands in England, Australia and United States. In England, the Judges have developed the law governing the crown privilege to the present position, it being unwritten law. In our country, the position is governed by Sections 123, 124 and 162 of the Indian Evidence Act, 1872 ("Evidence Act"). These provisions, as observed by H.M. Seervai, have stood still may be due to lethargy of the legislatures or due to a deliberate desire to adhere to outmoded "privileges" claim by the State in a free India. In our country, the position is governed by Sections 123, 124 and 162 of the Indian Evidence Act, 1872 ("Evidence Act"). These provisions, as observed by H.M. Seervai, have stood still may be due to lethargy of the legislatures or due to a deliberate desire to adhere to outmoded "privileges" claim by the State in a free India. The provisions are preconstitutional legacy and have not been altered or repealed or amended. Thus, these may be open to be saved from constitutional invalidity by judicial interpretation. 6. Section 123 of the Evidence Act confers on the head of the department a discretion to grant or refuse permission to give evidence derived from unpublished official records relating to affairs of State. The Section says: Evidence as to affairs of State-No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs 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. 7. In our country, we do not have any common law protection as a crown privilege (now called public interest immunity) as it is in England and we in this country have only provision of law under which such immunity is to be claimed in the forms of Sections 123, 124 and 162 of the Evidence Act. Since the Judges case is said to have brought the law in this country in line with law in England, Australia and United States, it would be appropriate to have a brief survey of development of law in this regard specially in England. 8. The initial turning was made in 1942, when the House of Lords in Duncan 6 Cammell Laird & Co. Ltd. (1942) A.C. 624, departing from earlier authorities, declared in wide terms that a Ministerial claim of privilege must be accepted without question by the court. The opinion of Lord Simon of House of Lords which was concurred in by other Law Lords while hearing appeal had upheld the claim of privilege in this case. Privilege was claimed in Duncans case on the ground that the disclosure of the documents would be injurious to public interest. It was case of submarine failing to resurface while undergoing trials leading to sinking of crew of 91 out of 95 men. Privilege was claimed in Duncans case on the ground that the disclosure of the documents would be injurious to public interest. It was case of submarine failing to resurface while undergoing trials leading to sinking of crew of 91 out of 95 men. Certain technical plans, designs and correspondence were called to be put in evidence to prove that the disaster was due to default or negligence of the builders in the action contemplated on behalf of the dependents of the men who lost their lives. On the facts of the case, there can be no doubt that the privilege was rightly claimed and not rightly upheld by all the courts, but while doing so, Lord Simon laid down law in far wider terms than were required by the question before the House about the crown privilege which over the years became subject of much criticism. This meant that the court was obliged to refuse to receive any evidence if the Minister filed an affidavit objecting to production of the evidence. Unlike other governmental powers, it was exempted from judicial control. It may need a mention here that the doctrine as propounded in Duncans case presented serious obstacles in doing full justice in civil action when privilege against disclosure of documents or secondary evidence of its contents was claimed by or under the directions of the crown. Lord Simons judgment in Duncans case contained wide dicta which became an obstacle to the fair administration of justice till these were overruled in Conway v. Rimmer (1968) A.C. 910. In view of the law laid down in Duncans case, the crown was given legal power to override the rights of litigants even in cases where a government department thought fit and not necessarily in genuine cases. The principal danger of Duncans doctrine was that it enabled the claim of privilege merely on the ground that documents belonged to a class requiring these to be withheld in public interest, i.e., not because documents were secret but were thought to be confidential in nature. The arguments which received approval by courts was that official reports of many kinds would not be made fearlessly and candidly if there was any possibility that these might be made public. The arguments which received approval by courts was that official reports of many kinds would not be made fearlessly and candidly if there was any possibility that these might be made public. Lord Simon in Duncans case though had held that Minister ought not to take the responsibility of withholding production except in cases where public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence 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. 9. The portion underlined in the foregoing observation made by Lord Simon became a principal source of dissatisfaction with the judgment. As observed by Prof. Wade, once this unsound argument gained currency, free rein was given to the tendency to secrecy which is in the interest of the public service. Prof. Wade went on to observe that, Crown having been given a blank cheque yielded to the temptation to overdraw. It is noticed that after Duncans case, the privilege was repeatedly claimed on the ground to keep it secret for proper functioning of the public service irrespective of the contents of the documents. Lord Simon had held that the Ministers affidavit if made in proper form was conclusive. Courts right to examine the document in the private was also not approved by observing that it would amount to communicating with one party to the exclusion of the other. Ratio of law laid down on this aspect in Robinson v. State of Southern Australia (1931) A.C. 704, where Privy Council had ordered production of a document on the ground that privilege was not properly claimed was brushed aside by saying that the question of crown privilege was different from the rule as to discovery of documents. This complete abandonment of judicial control was bound to lead to intolerable abuses. 10. Important concessions were made administratively in the year 1956 by the Government. It was announced that privilege would not be claimed for reports of witnesses of accidents on the record, or on the government premises or involving the government employees; for ordering medical reports on the health of civilian employees; for medical-reports (including of prison doctor) where doctor was sued for negligence; for papers needed for defence against a criminal charge etc. These heads comprised majority of cases which came before the courts. These heads comprised majority of cases which came before the courts. Still, privilege could be claimed regarding reports like Inspectors report into accident not involving the Crown and medical reports in fighting services. These were said to be cases where freedom and candour of communication with and within the public service would be imperilled with the risk of its disclosure at a subsequent date. Certain supplementary announcements were made in 1962 and 1964. After these concessions it became harder to accept the argument about freedom and candour of communication. Criticism staged mounting and Lord Radcliffe observed about the tendency to suppress everything, however commonplace, that has passed between one civil servant and another behind the department service. Lord Keith went on to observe that to express the working of Government it might be positively beneficial. Lord Keith said "The notion that any competent or conscientious public servant would be inhibited at all in the candour of his writing by consideration of the off-chance that they might have to be produced in litigation is, in my opinion, grotesque. To represent that the possibility of it might significantly impair the public service is even more so....the candour argument is an utterly insubstantial ground for denying, [the citizen] access to the relevant document." 11. Duncans case held the field for almost about 25 years. The grave consequences of this doctrine propounded on the basis of keeping documents secret on the ground of public interest and proper functioning was noticed in number of cases. Grave disquiet was expressed by the Judges and a case of Ellis v. Home Office (1953)2 Q.B. 135 can be referred where the Judge while upholding the claim of privilege on the basis of Duncans case expressed himself as under: But before I leave the case I must express as I have expressed during the hearing of the case my uneasy feeling that justice may not have been done because the material before me was not complete and something more than uneasy feeling that whether justice has been done or not, it certainly will not appear to have been done. 12. Lord Simons doctrine in Duncans case was attacked by Lord Denning, Lord Harman and Lord Salmon in the cases of Merricks v. Nott-Bower (1965)1 Q.B. 57, Grosvenor Hotel, London (1965) Ch. 1210 and Wednesbury B.C. v. Minister for Housing and Local Government (1965)1 W.L.R. 261. 12. Lord Simons doctrine in Duncans case was attacked by Lord Denning, Lord Harman and Lord Salmon in the cases of Merricks v. Nott-Bower (1965)1 Q.B. 57, Grosvenor Hotel, London (1965) Ch. 1210 and Wednesbury B.C. v. Minister for Housing and Local Government (1965)1 W.L.R. 261. One need not notice the observations made in all these cases, but it would suffice a reference here that Conways case (supra) came before Court of Appeal constituted by Lord Denning M.R. and Lord Davies L.J. and Russell L.J. Lord Denning in his dissenting judgment repeated his view but the two other Lords held that Duncan covered the case before them and in a good-humoured reference described Lord Denning, Lord Harman and Lord Salmon as Three Musketeers, as can be noticed from the following: It appears to me inescapable that the House of Lords enunciated a principle of equal application to class cases. For that reason in spite of three valiant attempts made in recent cases in this Court (by Arthos M.R., Porthos and Aramis L.J.J.) to assert that Duncans case is no authority for a class case, I cannot but recognise it as such and must leave it to the House of Lords to reconsider the whole basis of the case if it wishes to do so. 13. The House of Lords did reconsider the whole issue in Conways case (supra) which marked the triumph of the three Musketeers. The House unanimously reversed what it had unanimously stated in Duncans case. All the Law Lords expressed their views in the case of Conway (unlike Duncans case) and criticised the overworked argument that whole classes of official documents should be withheld for the sake of freedom and candour of communication. There are, however, some broad conclusions which are reasonably clear from Conways case, which can be summed up. Lord Reid listed a number of reasons to conclude that the present position was unsatisfactory that the House must reexamine the whole question in the light of the authorities. He then observed that two questions would arise- firstly, whether the court has a right to question the finality of a Ministers certificate and, secondly, if it has such a right, how and in what circumstances the right is to be exercised and made effective. 14. He then observed that two questions would arise- firstly, whether the court has a right to question the finality of a Ministers certificate and, secondly, if it has such a right, how and in what circumstances the right is to be exercised and made effective. 14. The view that can be culled out from the judgment is that the court has a jurisdiction to order the disclosure of a document for which crown privilege is claimed as it is the right and duty of the court to hold the balance between the interests of the public in ensuring the proper administration of justice and the public interest in the withholding of the documents disclosure whereof would be contrary to the national interest. Accordingly, a Ministers certificate that disclosure of a class of documents (or the contents of particular documents) would be injurious to public interest is not conclusive against disclosure particularly where the privilege is claimed for routine documents within a class of documents, though in a few instances, i.e., Cabinet minutes, dispatches from Ambassadors abroad and minutes of discussion between heads of departments, the nature of the class of documents may suffice to resist application for disclosure. 15. The House of Lords in Conways case has held that in reaching a decision whether to order disclosure, the court will give full weight to a Ministers view and, if the considerations are of such a character as judicial experience is not competent to weigh, the Ministers view will prevail, but where the conditions are not of that character, the court will decide on balance whether the documents shall be disclosed to the parties; and for this purpose the Judge will generally be right to inspect the documents without these being shown to the parties, before reaching this decision. As per Lord Reid, the proper test when privilege is claimed for a document as being one of a class which will be injurious to public interest to disclose is to examine whether the withholding of the document is really necessary for the proper functioning of the public service. The observations of Lord Reid in this regard are as under: I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. The observations of Lord Reid in this regard are as under: I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest; but I do not think that many people would give as the reason that premature disclose would prevent candour in the cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. That must in my view also apply to all documents concerned with policy making within departments including it may be minute and the like by quite junior officials and correspondence with outside bodies. Further, it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition; but there seems to me to be a wide difference between such documents and routine reports. There may be special reasons for withholding some kinds of routine documents, but I think that a proper test to be applied is to ask, in the language of Lord Simon in Duncans case (47), whether the withholding of a document because it belongs to a particular class is really necessary for the proper functioning of the public service. The House has, thus, made clear that the courts would seldom dispute a claim based on specific contents of documents like Cabinet decision, national defence, foreign affairs etc. However, the power and duty of the court to weigh the public interest of justice to the litigant against the public interest asserted by the Government has been well recognised. Thus, the House of Lords, as Prof. Wade has observed, has brought back a dangerous executive power into legal custody. The legal basis of class claim has thus been destroyed. 16. Another important observation made in this regard is that the Minister should have a right to appeal before a document is produced. Thus, the House of Lords, as Prof. Wade has observed, has brought back a dangerous executive power into legal custody. The legal basis of class claim has thus been destroyed. 16. Another important observation made in this regard is that the Minister should have a right to appeal before a document is produced. Lord Morris of Borth-Y-Gest observed that it has been clearly laid down that the mere fact that a document is private or is confidential does not necessarily produce the result that its production can be withheld. It is further observed by the Law Lords that it was conceded that the objection on behalf of the Crown that production of a document on the ground of injury to the public interest which was shown (a) not to have been taken in good faith or (b) to have been actuated by some irrelevant or improper consideration or (c) to have been founded on a false factual premise would not be final or conclusive and could be overridden by the court. If, as is thus conceded, the court possesses such wide powers of overruling an objection to production it would seem only reasonable and natural that it should also have the duty of assessing the weight of the competing public interests. 17. It can be noticed that Crown privilege was replaced by the impression public interest immunity as can be noticed from Lord Reids observations in R. v. Lewes Justices ex parte Home Secretary (1973) A.C. 388. He has said that the expression crown privilege is wrong and may be misleading. As per Lord Reid, there is no question of any privilege in any ordinary sense of the word. The real question is whether the public interest requires that the document should not be produced and whether the public interest is strong as to override the ordinary right and interest of a litigant...Lords Pearson, Simon, and Salmon also criticised the expression crown privilege. This was a case where a would-be gambling club proprietor took proceedings for criminal libel against public officer who had supplied unfavourable information about him to the gambling board about which the Home Secretary claimed privilege. The claim was upheld. The social evil which had allowed gambling clubs before the Gambling Act and the obvious necessity of the board to be able to make confidential inquiries to fulfil its duties, tilted the balance against disclosure. 18. The claim was upheld. The social evil which had allowed gambling clubs before the Gambling Act and the obvious necessity of the board to be able to make confidential inquiries to fulfil its duties, tilted the balance against disclosure. 18. Claims to public interest immunity fall into two broad categories, i.e., the contents claim, and the class claim. The former claim is based on the contents of the document and the latter claim on the fact that the document formed part of a class which ought to be protected from disclosure irrespective of its contents. It can also be said that the Ministers certificate cannot be held as final. Further, private or confidential documents do not necessarily produce a result that its production can be withheld. It can also be noticed that the court is held entitled to examine the document to decide the claim regarding privilege and once the claim is declined, the Ministers right to file appeal is recognised. 19. Let us see in this background the position of law in our country. Sodhi Sukhdev Singh (supra) is a case where the Honble Supreme Court had the occasion of considering all the aspects of the law in this regard and has interpreted the terms affairs of State after considering various other decisions including the Full Bench decision by this Court in Khuda Buxs case (supra) as under: What are the affairs of State under Section 123? In the latter half of the ninteenth century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents, which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. There may be another class of documents, which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy. In the efficient administration of public affairs government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented, on the ground of possible injury to public interest. In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such documents or such class of documents may also claim the status of documents relating to public affairs. It may be that when the Act was passed the concept of governmental functions and their extent was limited, and so was the concept of the words "affairs of State" correspondingly limited; but, as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas or concepts conveyed by respective words expands, so does the content of the words keep pace with the said expanding content of the ideas or concepts, and that naturally tends to widen the field of public interest which the section wants to protect. The inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. 20. The Full Bench of this Court had gone into this aspect in the year 1950 in the case of Mohd. 20. The Full Bench of this Court had gone into this aspect in the year 1950 in the case of Mohd. Khuda Bux (supra) and had defined the expression affairs of State in the following manner: I would define "affairs of State" as matters of a public nature in which the State is concerned and the disclosure of which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations. J.L. Kapur J., described the object underlying Section 123 of Evidence Act thus: But the sole object of this privilege ***** is that the disclosure would be injurious to national defence or to good diplomatic relations or for the proper functioning of the public service and it is necessary to keep that document or that class of documents secret. 21. Honble Supreme Court in the case of Sodhi Sukhdev Singh (supra) has observed that the view taken by Khosla J. was too narrow and could not be treated as exhaustive and thus has defined the expression affairs of State in the manner as reproduced above. The Honble Supreme Court, however, had also observed that this term, when the Act was passed, took into account the concept of government functioning those were of a limited extent and thus would expand with the passage of time depending upon the government functioning that would also keep on expanding. 22. The definition of the term affairs of State by the Full Bench of this Court described as narrow in Sodhi Sukhdev Singhs case was limited to such disclosure which was prejudicial to the public interest injurious to national defence or good diplomatic relations, etc. Supreme Court introduced the aspect of freedom and candour of expression of opinion to treat such class of documents as confidential to prevent these disclosures for avoiding possible injury to public interest. 23. The decision in the case of Sodhi Sukhdev Singh (supra) apparently was influenced by decision of the House of Lords in Duncans case (supra), referred to above. While noticing that the decision in Duncans case was followed by English Courts, the Supreme Court also noticed that some times the learned Judges have had expressed a sense of dissatisfaction when they were called upon to decide an individual dispute in the absence of relevant and material documents as has been noticed in the foregoing portion of this judgment. While noticing that the decision in Duncans case was followed by English Courts, the Supreme Court also noticed that some times the learned Judges have had expressed a sense of dissatisfaction when they were called upon to decide an individual dispute in the absence of relevant and material documents as has been noticed in the foregoing portion of this judgment. The law as laid down in Duncans case has subsequently been overruled by the House of Lords in Conways case (supra). This has also been referred to in sufficient details. This change in legal position and also the fact that the Government functions would not remain static and would keep on changing with passage of time has also been noticed by the Honble Supreme Court in the celebrated case of S.P. Gupta (supra). While noticing the socio-political background in the context of which Section 123 was to be interpreted, the Honble Supreme Court noticed that this section was enacted in the second half of the last century and its meaning and content cannot remain static. It is further observed that interpretation of every statutory provision must keep pace with the changing concepts and values and it must, to that extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of fast changing society which is undergoing rapid social and economic transformation. The Supreme Court went on to observe that the Judge has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with the meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice. The Supreme Court, thus, clearly observed that it should not be obsessed with the fact that Section 123 is a statutory provision of old vintage or that it has been interpreted in a particular manner some two decades ago. As per the Court, it is not as if it has once spoken and then turned into muted silence. The Section is said to be an instrument which can speak again and in a different voice in the context of a different milieu. As per the Court, it is not as if it has once spoken and then turned into muted silence. The Section is said to be an instrument which can speak again and in a different voice in the context of a different milieu. Proceeding further, the Court has observed that no democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. Citizens right to know the facts, the true facts, about the administration of the country is thus noticed as one of the pillars of a democratic State. It is further observed that if secrecy were to be observed in the functioning of the government and the processes of the government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in veil of secrecy without any public accountability. 24. Views of Gajendragadkar J. (as His Lordship then was) in he case of Sodhi Sukhdev Singh (supra) were taken note of but were not fully approved. In S.P. Guptas case (supra), the Court agreed with the observations made in the case of Sodhi Sukhdev Singh (supra) to the extent that public interest lies at the foundation of the claim against disclosure enacted in Section 123 and it seeks to prevent production of a document, where such production would cause public injury. However, it is specifically noted that the Judge as not right in Sodhi Sukhdev Singhs case (supra) in observing that the interest which comes into conflict with the claim for nondisclosure is the private interest of the litigant in disclosure. The Court then noticed the three different views noticed in Sodhi Sukhdev Singhs case that were possible to see if the document is said to be relating to affairs of State. The first view as is noticed is that the documents relating to affairs of State are broadly divisible into two classes, one the disclosure of which will cause no injury to public interest and which may therefore be described as innocuous documents and the other disclosure of which may cause injury to public interest and may therefore be described as noxious documents. The second view was that documents relating to affairs of State should be confined only to the class of noxious documents and when the question arises, it is for the Court to determine the character of the document and if necessary, to enquire whether its disclosure would lead to injury to public interest. The third view was that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not. The Supreme Court then noticed that the learned Judge in the case of Sodhi Sukhdev Singh (supra) accepted the third view as correct and summarized his conclusion in the following words: Thus our conclusion is that reading Sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under Section 123 or not. In this enquiry the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State, it should leave it to the head of the department to decide whether he should permit its production or not. The above view taken in Sodhi Sukhdev Singhs case by the Honble Supreme Court was certainly influenced by the law laid down by the House of Lords in Duncans case (supra). As already noticed, the right of the Minister or head of the department to take a view in regard to the document has now been held to be not inviolate and the courts right to examine the document and then take a decision in this regard has very well been recognised in Conways case (supra). As already noticed, the right of the Minister or head of the department to take a view in regard to the document has now been held to be not inviolate and the courts right to examine the document and then take a decision in this regard has very well been recognised in Conways case (supra). This view of the Honble Supreme Court in Sodhis case accordingly also did not find approval in the case of S.P. Gupta (supra) as can be noticed. Having noticed the observations made in Sodhi Sukhdev Singhs case (supra), the Supreme Court in the case of S.P. Gupta went on to notice that the view taken by the Judge in the case of Sodhi Sukhdev Singh (supra) introduced a serious impediment in the way of the court for making determination by holding that the court cannot for this purpose inspect the document or hold an enquiry into the possible injury to public interest which may result from the disclosure of the document. It is then observed that if the court has no power to inspect the document, it is difficult to understand how the court can find without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest that the document is one relating to affairs of State as ex hypothesis a document can be said to relate to affairs of State only if its disclosure will cause injury to public interest. Another infirmity noticed in the view taken in Sodhi Sukhdev Singhs case (supra) was that no useful purpose would be served in leaving it to the head of the department to decide whether he should permit production or not once it was viewed that the court must first determine the character of a document and if its comes to the conclusion that the document relates to affairs of State, it would leave it to the head of department whether he should permit its production or not. It is noticed that, by and large, once the court has found that the document is of such a character that its disclosure will cause injury to public interest, it would be futile to leave to the head of the department to decide whether he should permit its production or not. It is noticed that, by and large, once the court has found that the document is of such a character that its disclosure will cause injury to public interest, it would be futile to leave to the head of the department to decide whether he should permit its production or not. Thus, the Court in the case of S.P. Gupta (supra) held we are therefore unable to accept the decision in Sodhi Sukhdev Singhs case (A.I.R. 1961 S.C. 493) (supra) as laying down the correct law on this point. Having said so, the Honble Supreme Court has held the law in this regard to be as under: The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document. The basic question to which the court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the court by reason of Section 162. 25. Honble Supreme Court in the case of S.P. Gupta (supra) has also classified the documents in regard to which the privilege could be claimed. In this regard, reference was made to large number of judgments. 25. Honble Supreme Court in the case of S.P. Gupta (supra) has also classified the documents in regard to which the privilege could be claimed. In this regard, reference was made to large number of judgments. By referring to the case of U.P. v. Raj Narain, it is observed that it is settled law that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of document which may be in the public interest should be immune from disclosure. Specifying the documents falling within this clause and which are granted immunity from disclosure not because of their contents but because of the class to which they belong, it is mentioned that cabinet minutes, minutes of discussions between heads of departments, high level interdepartmental communications and dispatches from ambassadors abroad would fall in this category. Reliance has been placed on the case of Conway v. Rimmer 1968 A.C. 910 and Reg v. Lewes J.J. ex parte Home Secy. 1973 A.C. 388. Another class of documents falling in this category are papers brought into existence for the purpose of preparing a submission to cabinet and indeed any documents which relate to framing of government policy at high level. This class, as noticed by the Supreme Court, may extend to notes and minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached. 26. Thus, it can be noticed that whenever an objection to disclosure of a document is raised under Section 123 of the Evidence Act, two questions would fall for determination before the court. The court would be first called upon to see whether the document relates to affairs of State and secondly if the disclosure would be injurious to public interest. While deciding this, the court has to balance two competing aspects of public interest, as the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State. On the other hand, if it is not disclosed, its nondisclosure would thwart the administration of justice by keeping back from the court a material document. On the other hand, if it is not disclosed, its nondisclosure would thwart the administration of justice by keeping back from the court a material document. As noticed by the Honble Supreme Court, the approach to this problem is admirably set out in the judgment of Lord Reid in Conways case (supra): It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is 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. 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 document 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 on would think that it would be proper to balance the public interests involved. 27. Even the class immunity as advocated was not held to be sacrosanct or that the same was absolute or inviolable in all circumstances. This can be seen from the observations of the Supreme Court, which are: It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it should be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the courts in all cases. From the law, as it would emerge from the judgments noticed above, it can be said that the claim of immunity can justifiably be made only, if it is felt that the disclosure of the document would be injurious to public interest. This is a balancing task which has to be performed by the courts in all cases. From the law, as it would emerge from the judgments noticed above, it can be said that the claim of immunity can justifiably be made only, if it is felt that the disclosure of the document would be injurious to public interest. While emphasizing this aspect of the case, the Honble Supreme Court held in S.P. Guptas case (supra) as under: Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence-should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court. 28. It is now to be seen whether the claim of privilege as made by the petitioner-corporation to withhold the Annual Confidential Reports of respondent No. 1 can be sustained or not. As already noticed, the main emphasis of the counsel for the petitioner in support of his submission has been the Single Bench decision of this Court in the case of Surjit Singh (supra). The Full Bench decision of this Court in the case of Mohd. Khuda Bux and Single Bench decision of this Court in the cases of Raj Kumar Gujral, and H.L. Rodhey (supra) were said to be no longer a good law in view of the decision of the Honble Supreme Court rendered in the case of Sodhi Sukhdev Singh (supra). The law laid down in Sodhi Sukhdev Singhs case (supra) has not been fully approved by the Honble Supreme Court in S.P. Guptas case. The law laid down in Sodhi Sukhdev Singhs case (supra) has not been fully approved by the Honble Supreme Court in S.P. Guptas case. It has been noticed by the Honble Supreme Court that the Judge is called upon to perform a creative function and is required to harmonize the law with the prevailing concept. Demand of democracy in this country and openness of the government is now the basic principle and is widely accepted. As observed by the Honble Supreme Court, the democracy does not consist merely in people exercising their franchise once in five years. The secrecy in the government functions has been held to be injurious and this aspect is well reflected from the legislative provisions, like Right to Information Act, which has made it incumbent upon the government authorities to provide all the requisite information unless it is statutorily prohibited. Accordingly, the prayer made in the present revision petition is required to be appreciated in the background of law and the concept that is now prevailing. 29. It has long been recognised that the fair administration of justice is itself a public interest of great importance. Thus, when there is a conflict about the document to be produced or not, it is essentially not a conflict between a public and a private interest, but between two competing public interests. Of course certain public interests are of such an importance like national defence, diplomatic relations etc. that even fair administration of justice must be subordinated to them. Same may be the position where privilege has always been accorded to a class of documents, as for example, information given by police informants etc. In all such cases, the question of inspecting the document may not arise. The difficulty would arise when there is a conflict between the two competing public interests. In such cases, it may not be possible to say, without inspection, whether non-disclosure or disclosure would cause greater injury to the public interest. It is in such kind of cases that the effect of Section 123 read with Section 162 of the Evidence Act is required to be considered more closely. In such cases, it may not be possible to say, without inspection, whether non-disclosure or disclosure would cause greater injury to the public interest. It is in such kind of cases that the effect of Section 123 read with Section 162 of the Evidence Act is required to be considered more closely. The observation of Lord Morris, as reproduced in the foregoing paragraphs, that the court possessed such wide powers of over-" ruling an objection to production, it would seem only reasonable and natural that the court should also have the duty of assessing the weight of competing public interests. As per H.M. Seervai, these objections would apply with greater force in India for whether any guideline provided by a statute has been actually followed is a justiciable issue under Article 14 and under Article 19 and of that issue, the Supreme Court and the High Courts are made the judges by Articles 32 and 226. The Author further adds that the constitutional validity of Section 123 can be saved only by holding that the discretion of the head of the department is not absolute, but is guided by considerations of injury to the public interest of which, in certain situations, the court is made the Judge. It is also observed that the prohibition against inspection contained in Section 162 can be upheld only by engrafting on it an exception, namely, that it does not apply to those cases in which the court considers it necessary in the interest of fair administration of justice to inspect documents in private in order to balance the claims of competing public interests. It can, thus, safely be stated that Bhagwati J. while adopting the view of public interest immunity rightly brought the law into conformity with the law developed by the House of Lords in Con-ways case and several other decisions. 30. Information is not protected from disclosure merely because it has been supplied in confidence. One would have some precedents to refer to see if the extent of public interest immunity can be made applicable to confidential reports by employers on their employees. In Science Research Council v. Nasse (1979)1 Q.B. 144 an attempt was made to extend the public interest immunity to confidential reports. Mrs. Nasse employed in the Research Council was passed over for promotion and filed an complaint with the Industrial Tribunal alleging discrimination. In Science Research Council v. Nasse (1979)1 Q.B. 144 an attempt was made to extend the public interest immunity to confidential reports. Mrs. Nasse employed in the Research Council was passed over for promotion and filed an complaint with the Industrial Tribunal alleging discrimination. She applied for discovery and inspection of recent Annual Confidential Reports not only on herself but also on her other colleagues. This was objected to by the counsel. In holding the balance between disclosure and nondisclosure, Lord Denning said that he was much impressed by the evidence adduced before the court which showed that it was very important in the public interest that the confidential reports should not be disclosed. He stated the principle in the following words: The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interest of justice that the confidence should be overridden and then only subject to such conditions as to the divulging of it as he shall think of it. He might, for instance, limit the sight of it to counsel and solicitors on their undertaking that it should go no further. 31. The Court of Appeal considered this aspect in Leyland Cars Ltd. v. Vyas and allowed the appeal and set aside the order of disclosure. In the House of Lords, the view taken by the Court of Appeal was confirmed though with some modification in regard to the formulation of principle by Lord Denning. The House of Lords, however, declined to extend the public interest immunity to confidential reports made to or kept by the Science Research Council and Leyland case (supra) and relevant observations of Lord Wilberforce in this regard in Nasse case 1980 AC 1028 in the House of Lords are as under: I reject the contention of public interest immunity basically on three grounds. First, there is no acceptable analogy, still less any precedent, on which such a claim could be admitted. The area in which such an immunity is claimed is essentially one of private right even though interests beyond the particular employer concerned may be involved. First, there is no acceptable analogy, still less any precedent, on which such a claim could be admitted. The area in which such an immunity is claimed is essentially one of private right even though interests beyond the particular employer concerned may be involved. Secondly, to admit such a claim in the field would conflict with the clear public interest accepted and emphasised by Parliament in the Sex Discrimination Act, 1975, and the Race Relations Act, 1976, that the fullest information should be before the Tribunal. Thirdly, to admit such a claim would produce most undesirable results in excluding classes of documents from use in the proceedings, since documents covered by immunity on grounds of public interest not only may but must be withheld. Lord Edmund Davies amplified the italicized words by saying: To hold that public interest immunity applied here would mean that whatever the attitude of the parties concerned it could never be waived and would indeed have to be raised by the chairman or judge himself if not taken by the parties or by the Crown: R. v. Lewes Justices (1973) A.C. 388. The manifest intention of Parliament could thereby be frustrated. 32. The law in our country being in line with English law also does not seem to be different. The public interest immunity principle obviously may not be extended to confidential reports. Confidentiality here also is not separate head and privilege may otherwise be available to be claimed on the ground of public interest. It certainly cannot be called such a document which would relate to affairs of State. As observed by Honble Supreme Court in S.P. Guptas case (supra), the sole and only consideration must be to see if the disclosure would be detrimental to public interest or not and it would matter not if the disclosure would affect the Govt. or Minister or it may provoke public censure. Such considerations are to be kept out of consideration and also any consideration that disclosure would hurt the State in its defence. The aspect of freedom and candour of expression of opinion can only be consideration which can be pressed to treat the ACR as a class of documents to prevent their disclosure for avoiding possible injury to public interest. Fair administration of justice has itself been recognised as public interest of great importance. The aspect of freedom and candour of expression of opinion can only be consideration which can be pressed to treat the ACR as a class of documents to prevent their disclosure for avoiding possible injury to public interest. Fair administration of justice has itself been recognised as public interest of great importance. The House of Lords rejected the contention regarding public interest immunity in regard to confidential reports on three grounds. It was noticed that there is no acceptable analogy on which this claim can be admitted. The area in this regard was found essentially one of private right. It was noticed that to admit such a claim would produce undesirable result in excluding classes of documents from use. As observed in Conways case, which was applied by the Honble Supreme Court in S.P. Guptas case, there are two types of public interests which may clash. It was rightly noticed that there are many 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 interest involved. The smallest probability of injury to the public service must always outweigh the gravest frustration of administration of justice. 33. In the present case claim for immunity is made on the ground that the document is a confidential report. This is neither a separate head to claim immunity for production nor the document is of a class which is immune from production on the ground of public interest immunity or injury to public interest. In fact, it is not even argued or pleaded before me that disclosure of the ACR would lead to any injury to public interest. The argument relating to freedom and candour of expression in itself has not been approved as a ground for privilege and disclosure can be prevented only where it is shown to be leading to injury to public interest. As already noticed, information can not be protected from disclosure merely because it has been supplied in confidence. The claim of privilege in regard to class of document known as Annual Confidential Report, thus, cannot be upheld. To read such document as privileged from disclosure would, in the words of Lord Edmund Davies, mean that whatever the attitude of the parties concerned, it could never be waived. Disclosure can always be ordered where demand of justice would require it. To read such document as privileged from disclosure would, in the words of Lord Edmund Davies, mean that whatever the attitude of the parties concerned, it could never be waived. Disclosure can always be ordered where demand of justice would require it. Accordingly, it would not be possible to hold that Annual Confidential Report is such a document as a class which can be withheld from production. The views, which have been canvassed before me contrary to this, are on the basis of judgment in Surjit Singhs case (supra) which had basically followed Sodhi Sukhdev Singhs case (supra) which is seen to be overruled by subsequent judgment in S.P. Guptas case (supra). There is, thus, no reason to interfere in the order passed in this case. There is no merit in the pleas raised in the revision. 34. The revision petition is dismissed.