Government Privileges: Means and Methods

General Position
The Constitution of India seeks to establish a Democratic Republic where
under the equality clause there is no question of privileged position or immunity in
favour of the State. There are numerous privileges and immunities which are legally
recognised and enforced in favour of the government. Here, some of them are being
discussed.

Liability of State Regarding Statute

As the governmental activities have considerably increased, the State performs
not only 'sovereign functions' but as a 'Welfare State' has undertaken numerous
non-sovereign and commercial activities also.
In such a context, the question arises, whether the State is subject to the same
rights and liabilities which the statute seeks to impose on a person. In other words,
whether a State is bound by a statute, and if it is, to what extent the provisions of
status can be applied to the State. This point is discussed with reference to English
law and Indian law.

English Law
In England, the crown enjoys the common law privilege that it is not bound by
statute unless it is expressly, named or is bound by necessary implication. Thus, Wade
states, 'an Act of Parliament is presumed not to bind the crown in absence of an
express provision or necessary implication.' This principle is clearly based on the
well-known maxim 'The king can do no wrong.' In theory, it is inconceivable that the
status made by the crown for its subject could bind the crown itself. This position is
preserved even under the provisions of the 1947 Act.

Indian Law
The English common law rule of sovereign immunity from statute operation
was allowed in India prior to 1947 and even after the Constitution till I960. In the
Province of Bombay v. Municipal Corporation of Bombay, the Corporation of
Bombay wanted to lay water mains through land which belonged to the Government.

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The Government agreed to this proposal upon certain conditions. Accordingly, the
crown acquired the said land under provisions of the Municipal Act. As provided
under the Municipal Act, the municipality had power to carry water mains within or
without the city.' The question for consideration was whether the crown was bound by
the statute, i.e., the Municipal Act. Following the doctrine of English law, the Privy
Council held that the government was not bound by the statute.

Government Privilege to Withhold Documents

i) Position in England
In England, the Crown enjoys special privilege of withholding disclosure
documents, referred to as the rule of "Crown Privilege." It can refuse to disclose arm
evidence or to answer any question if in its opinion such disclosure or answer would
be injurious to the public interest. - This right can be exercised by the Crown even in
those proceedings in which it is not a party.
(ii) Position in America
In America, 'government privilege' is termed as 'executive privilege'. The
American Courts never abandoned their control over the executive for privilege. The
leading case on the point is United States v. Reynolds which arose out of the crash of
a military aircraft on a flight to test secret electronic equipment. Certain Civilian
observers aboard were killed and their widows sued the government under the Federal
Tort Claims Act, 1946. Plaintiffs moved for discovery of the Air Force's official
accident investigation report, Government filed a claim for privilege objecting to
production of the report recognizing that there are State secrets which need not be
disclosed, the Supreme Court adopted the view that the determination of whether such
secrets are involved in a judicial function.
In New York Times Co. v. United States, the United States sought an
injunction against the New York Times and Washington Post prohibiting them from
publishing contents of a classified study entitled 'History of U.S. Decision Making
Process on Vietnam Policy'. The Defence Department had prepared the History
classifying it as' Secret'. It was contended by the Government that its disclosure would
jeopardise National Security and National Defence. The Court refused to grant
injunction.

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 The position in America is not the same as in England. Distinguishing Duncan
v. Cammel Laird and Co. the U.S. Supreme Court in U.S. v. Reynolds held:
“Neither the executive nor the legislative branch of the government may
constitutionally encroach upon the field which the Constitution has reserved for the
judiciary by transferring to itself the power to decide justiciable questions which arise
in cases of controversies submitted to the judicial branch for decision nor is there any
danger to the public interest in submitting the question of privilege to the decision of
Courts. The Judges of the United States are public officers whose responsibility under
the Constitution is just as great as that of the heads of the executive departments".

Position in India
(i) Priority to Public Interest - In India, the government privilege to withhold
documents from the Courts is claimed on basis of section 123 of the Indian Evidence
Act, 1872 which reads as under:
"No one shall be permitted to give any evidence derived from un-published
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."
As a general rule, the requirement is that both the parties to the dispute must
produce all the relevant and material evidence in their possession. If any party fails to
produce such evidence, an adverse inference can be drawn under section 114 of the
Evidence Act. Section 123 gives a great advantage to the Government in as much as
in spite of non-production of relevant evidence before the Court, no adverse inference
can be drawn against it if the claim of privilege is upheld by the Court. This thing
undoubtedly constitutes a very serious departure from the ordinary rules of evidence.
The basis on which this departure can be justified is the principle of the 'overriding
and paramount character of public interest' i.e., when the public interest served by
disclosure is outweighed by the public interest served by non-disclosure of
documents. A valid claim for the privilege under section 123 proceeds on the
assumption that the production of an unpublished record would cause injury to public
interest, and that where a conflict arises between the public interest and the private
interest, the latter must yield to the former. It is that the litigant whose claim may not

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succeed as a result of non-production of the relevant and material document may feel
aggrieved by the result, and the Court in teaching the decision may feel dissatisfied,
but that fact will not affect the validity of the basic principle that public interest must
override considerations of private interest.
The leading case on the subject is State of Punjab v. Sodhi Sukhdev Singh
decided by the Supreme Court. In this case, the respondent who was a District and
Sessions Judge was removed from service by the President of India. He made a
representation against his removal. In pursuance of the representation, the Council of
ministers secured the advice of the Public Service Commission and therefore decided
to re-employ him. He then filed a suit for declaration that his removal was illegal and
void. He wanted production of certain documents. The State claimed privilege in
respect of them. The Supreme Court by majority held that the documents in question
were protected under section 123 of the Evidence Act and could be withheld from
production on the ground of public interest.
(ii) Balancing of public interests. —In the U.P. v. Raj Narain had filed an
election petition against the then Prime Minister Smt. Indira Nehru Gandhi. During
the trial, he made an application for production of certain documents. The U.P.
Government claimed privilege in respect of those documents. The Allahabad High
Court rejected the claim for privilege. On appeal, the Supreme Court set aside the
Allahabad Judgment.
In the State of U.P. v. Chandra Mohan Nigam the Supreme Court ruled that
when an under of compulsory retirement is challenged as arbitrary or mala fide by
clear and pacific allegations, it was necessary for the Government to produce all the
relevant materials to rebut such pleas to satisfy the Court by voluntarily producing
such documents as will be complete answer to the plea. "Ordinarily, the service record
of a government servant in a proceeding of this nature cannot be said to be a
privileged document which should be shut out from inspection."
Again, there was a similar question in the well-known case of S.P. Gupta v.
Union of India popularly known as the Judges Transfer Case. In this case, the
Government Maimed privilege over the correspondence between the Law Minister of
the Government India and the Chief Justices of the Supreme Court and respective
High Courts relating to transfer and non-extension of two judges of High Courts.

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After studying the Documents in chamber, the Judges came to the conclusion that
their disclosure would not injure public interest. Rejecting the claim of privilege, the
Supreme Court held that the provisions of the Evidence Act, 1872 should be
construed keeping in view our new Democracy wedded to the basic values enshrined
in the Constitution. In a democracy, citizens ought to know what their government is
doing. No democratic government can survive without accountability and the basic
postulate of accountability is that the people would have information about the
functioning of the government. Therefore, disclosure of information in regard to
functioning of government must be the rule and secrecy an exception justified only
where the strictest requirement of public interest so demands.
Whenever an objection is taken against the disclosure of any document, 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 to the conclusion that the document does not relate to affairs of State or that
public interest does not compel its non-disclosure or that the public interest in the
administration of justice in a particular case before it overrides all other aspects of
public interest, it will overrule the objection and order disclosure of the document.
Undoubtedly there must be such affairs of State involving security of the
nation and reign affairs where public interest requires that the disclosure should not be
ordered.
(iii) Ideal of Open Government as Ultimate Measure. —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 102. The Court is not bound by
the assertions made by the government in support of plea against non-disclosure. The
Court has the power to balance the injury to the State or the public service against the
risk of injustice, before reaching the decision.

Doctrine of Estoppel
(A) Meaning of Estoppel
The doctrine of estoppel is well established in administrative law in India.
Estoppel is a rule by which a party is "precluded from denying the existence of some

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state of facts which he had previously asserted and on which other party has acted to
his detriment. Explaining the doctrine, Wade states:
"The basic principle of estoppel is that a person who by some statement or
representation of fact causes another to act to his detriment in reliance on the truth of
it is not allowed to deny it later, even though it is wrong. Justice here prevails over
truth".

Doctrine of Waiver
A waiver is an abandonment of right. The assumption behind waiver is that a
mar is the best judge of his interest. If he waives his right, he cannot claim it later. In
order to establish waiver, it is necessary to establish that the person waiving his right
had knowledge of the right or privilege, and that the right or privilege was conferred
principally for his benefit and not principally for the benefit of public, for in the latter
case it would aim against the policy of the law to allow him to waive it. As the
Supreme Court observed:
"A waiver is an intentional relinquishment of a known right. There can be no
unless the person against whom waiver is claimed had full knowledge of his rights
and facts enabling him to take effectual action for the enforcement of such right."
In Motilal Padampat Sugar Mills v. State of U.P., the government sought to
impose the sales-tax. The petitioners agreed to pay half of the normal rate. Thereafter
they challenged the levy. But the government took the plea for a waiver. Rejecting this
Bhagwati, J. stated that the government cannot be allowed to raise the plea of waive
first time at the hearing of the writ petition because it had not been taken in its
affidavits. He further stated that in the instant case, waiver could not apply as there
was nothing to show that the appellants had full knowledge of their right and that they
nationally abandoned it.

Miscellaneous Privileges of the Government

Besides the aforesaid privileges and immunities, the government enjoys many
other privileges also. Some of them are as follow:
As provided under section 80 of the Code of Civil Procedure, 1908, no suit
shall be instituted against the government or against a public officer in respect of any

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Act purporting to be done by such public officer in his official capacity until the
expiration of two months next after notice in writing in the manner provided in the
section has been given. Giving notice is a mandatory requirement which admits no
exception. However, the requirement of notice is not mandatory, if the public officer
has acted without jurisdiction. Thus, if a public officer seizes property without
authority or assaults a witness, notice is not necessary for filing a suit against him in
his official capacity.
The requirement of notice applies to all kinds of relief and forms of action
including injunction or declaration or contracts. Whatever else may be the merit of the
rule, it certainly creates hardships for the litigants seeking immediate relief against the
government. Keeping in view this hardship, the Law Commission recommended the
abolition of the requirement of notice against the government as required by section
80 of Civil Procedure Code.
Accordingly, the Civil Procedure Code (Amendment) Act, 1976 added clause
(2) to section 80 which lays down that the Court may grant leave to a person to file a
suit against the government or public officer without serving two months’ notice in
cases where relief claimed is immediate or urgent. However, before granting the
exemption the Court has to satisfy itself about the immediate or urgent need. If the
Court is satisfied, after hearing the parties, that no urgent or immediate relief need be
granted, it will return the plaint to the plaintiff for presentation to it after complying
with the requirement of two months’ notice.
The real object behind the privilege of notice is that the Government, if so
advised, may make amends and meet the claims of the person concerned and thus
avoid unnecessary litigation and wastage of public funds.

Limitation
Apart from the privilege under section 80, there is another privilege granted to
the government under section 82 of the Civil Procedure Code. Section 82 of the
C.P.C. provides that when a decree is passed against the Union of India or a State, it
shall not be executed unless it remains unsatisfied for a period of three months from
the date of such decree.

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 Under Article 112 of the Limitation Act, 1963, the government has been
allowed the benefit of 30 years' limitation for institution of suits by or on behalf of it.
The period of limitation given to the government is much longer than that given in
respect of suits by private individuals.
Conclusion
The government privileges and immunities have been designed for the purpose
of performing social function. The assumption behind these privileges is that they are
not so much for the protection of the government as for the benefit of the people. In
this area it is necessary that a pragmatic and not pedantic approach must guide judicial
behaviour. There is a need to balance public interest immunity with public interest in
administration of justice.