GOVERNMENT PRIVILEGES

Crown Privilege
In every democratic society, it is of utmost
importance that the citizens get sufficient
information and knowledge about the
functioning of the Government.
Democracy cannot survive without
accountability to public. The basic postulate of
accountability is openness of the Government.
• In England, the Crown has the special privilege of withholding
dis closure of documents, referred to as 'Crown Privilege'.
• It can refuse to disclose a document or to answer any
question if in its opinion such disclosure or answer would be
injurious to the public interest. This doctrine is based on the
well-known maxim salus populi est suprema lex (public
welfare is the highest law).
• The public interest requires that justice should be done, but it
may also require that the necessary evidence should be
suppressed. This right can be exercised by the Crown even in
those proceedings in which it is not a party.
Duncan v. Cammell, Laird & Co. Ltd
• At the time of the Second World War, the submarine Thetis
sank during her trials and 99 lives were lost. In an action for
negligence, the widow of one of the dead persons sought
discovery of certain documents in order to establish liability
against the government contractors. The Admiralty claimed
'Crown Privilege' which was upheld by the House of Lords. It
observed that the affidavit filed by the Minister that disclosure
would be against the 'public interest' could not be called into
question. Lord Simon observed:
"The principle to be applied in every case is that documents
otherwise relevant and liable to production must not be produced
if the public interest requires that they should be withheld.''
 Conway Vs. Rimmer
• The Court held that it is not an absolute
privilege of - Crown to decide whether a
document is a privileged or not. The Court
can see it and decide whether it privileged one
or not and it is the Court's prerogative decide
whether the document is privileged document
not.
• Some cases, the government requires to be
given special privileges in the interest of the
public.
• In some cases the government has claimed
the privileges which are not granted to it by
the courts. Those privileges are:
– Privilege of notice
– Privilege to withhold documents
– Immunity from operation of statutes
– Immunity from estoppel
– Longer periods of limitation in some cases etc.
 PRIVILEGE OF NOTICE
• Section 80 CPC – no suits shall be instituted against the
government or against a public official in respect of any act
done by him in the official capacity until after 2 months from
the date of notice in writing.
• The requirement of the notice may also not be necessary if
the officer acts within the jurisdiction but in a mala fide
manner
• The government may expressly or impliedly, waive the
requirement of notice.
• Requirement of notice is applicable to all kinds of reliefs of
civil nature. This requirement may cause hardship to the
parties in some cases
• In State of Orissa vs Madan Gopal, the government issued a
notice to certain lessors of mines under the government to
remove their assets within a fortnight. The lessees could not
file suit for injunction because of the requirement of the two
month notice. Therefore, they approached the High Court
for mandamus. The High Court granted the writ because
there was no effective alternative remedy. But the Supreme
Court reversed the order of the High Court. Therefore, the
Law Commission recommended an amendment to Sec. 80
whereby the requirement of notice could be dispensed with
in case of matters, which are urgent. So these
recommendations were accepted and sec. 80 was amended
in 1986 providing for the power of the court to dispense
with requirements of notice in urgent matters.
PRIVILEGE TO WITHHOLD DOCUMENTS
• Section 123 and 124 of Indian Evidence Act (129, 130 of
BSA) provides for the privilege to withhold documents
and information
• Section 123 lays down that no one shall be permitted to
give any evidence derived from unpublished official
records relating to the affairs of the State except with
the permission of the Head of the Department
• Section 124 provides that no one should be compelled
to give evidence as to confidential official communicates
unless the witness feels that it can be revealed in public
interest
• The Government misused these privileges in
many cases by trying to withhold any document
which was against its interest. Therefore the court
developed certain norms to prevent such misuse:
– The claim of privilege should be in the form of an
affidavit which must be signed by the Minister
concerned
– The affidavit must state permissible limits for the
grounds for withholding the documents
– If the court is not satisfied by the facts presented in
the affidavit, the court may summon the authority for
information
• Evidence Act provides that the officer who
claims the privilege should bring to the court
and then claim privilege.
• He cannot refuse to take the documents, to
the court, and he brings the document to the
court he must satisfy the court the grounds for
withholding the documents. If the court is not
satisfied, it may inspect the documents before
allowing the privilege
IMMUNITY FROM STATUTE OPERATION
• The government claims privileges of not being bound
by a statute on the strength of two well-known maxims:
– 1. The King can do no wrong.
– 2. The King cannot be tried in the court of his own creation
• Province of Bombay v. Municipal Corporation of Bombay – the
case was whether the government was bound by the
Municipalities Act. The court answered in the negative.
• Director of Rationing and Distribution v. Calcutta Corporation –
the court held that the government was not bound by a statute
unless the statute provides that it is binding the government
expressly by necessary implication.
• Superintendent and Legal Remembrancer to State of West Bengal vs
Corporation of Calcutta reconsider the decision in Director of Rationing
and Distribution vs Corporation of Calcutta, and he could persuade eight
of his colleagues that the common law theory of King can do no wrong
was not appropriate in a democratic country. Even in England, this
theory has been given up after the Crown Proceeding Act 1947. Hence
the court held that government is bound by a statute unless it is
expressly or by necessary implication been provided that the
government is not bound by the statutes. It was pointed out that
‘however high you may be the law is above you’.

• Union of India v. Jubbi - the statute provided that the tenants may
become owners by paying compensation to the landlord in the manner
provided in the Act. Jubbi who was a tenant, under the government
offered to pay the compensation to become the owner. But the
government rejected this offer on the ground that the statute is not
applicable to government lands. But the Supreme Court rejected this
contention holding that there is no expressed or implied provision to
exclude the government from its operation.
 IMMUNITY FROM ESTOPPEL
• Section 115 – estoppel
• Even though a case may not fall under Section 115, promissory estoppel
may still be invoked requiring a man to keep his order especially when it
is not a …………promise but made with an intention that the other party
should act upon it
• In the initial stages, the SC refused to apply estoppel against the
government especially in violation for statutes.
• Amar Singh v. State of Rajasthan – SC refused to apply the estoppel
against the government where the collector had given an assurance that
the petitioners land would not be acquired during his lifetime under the
Rajasthan Land Reforms Act. But since this promise was in clear violation
of the provisions of the statutes, the courts refused to apply the doctrine
of estoppel
• In cases where the application of estoppel jeopardizes the constitutional
powers of the government, the doctrine of estoppel is not applied
• C. Shankaranarayanan v. State of Kerala –
government issued a notification under Art.
309 raising the age of retirement but
subsequently by issuing another notification,
the age of retirement was brought down to 59
years. SC refused to prevent the government
from exercising its constitutional powers by
application of doctrine of estoppel.
• Motilal Padampat Sugar Mills v. State of
UP :SC laid down following propositions:
– the doctrine can be used as a shield or as a sword
– The doctrine was not based on any contract and
even when the contract was invalid under Art. 299
still, the government could be bound by estoppel
– The application of this doctrine cannot be
defeated on the plea of executive necessity on
freedom of future executive action
DOCTRINE OF PUBLIC ACCOUNTABILITY
• All the three organs of the government, viz. legislature,
executive and judiciary are subject to public accountability.
No matter what their post is, every person working in the public
sector in India has to follow the doctrine of public accountability.
• This doctrine keeps a check on the use or misuse of power by
public servants.
• The doctrine of public accountability states that administrative
power is a form of public trust placed in the hands of the
power holder.
• Therefore, the power holder must be accountable to the
general public.
• It is settled law that all discretionary powers must be
exercised reasonably and in larger public interest.
Before more than hundred years, in Henly v. Lyme
Corpn
"Now I take it to be perfectly clear, that if a public
officer, abuses his office, either by an act of omission or
commission, and the consequence of that is an injury to
an individual, an action may be maintained against such
public officer. The instances of this are so numerous
that it would be a waste of time to refer to them."
• In various cases, the Supreme Court has applied this principle by
granting appropriate relief to aggrieved parties or by directing
the defaulter to pay damages, compensation or costs to the
person who has suffered.
• Thus, in case of defective construction of houses by statutory
authorities, a complaint made by 'consumer' regarding use of
substandard material and delay in delivering possession was
held maintainable and the instrumentality of State was held
liable to pay compensation.
• Again, when illegal and unauthorised electric supply resulted in
breaking of fire causing death and destruction of property, it was
held that the administration was liable to pay compensation.
• In Common Cause, A Registered Society v. Union of India,
the Petroleum Minister made allotment of petrol pumps
arbitrarily in favour of his relatives and friends. Quashing
the action, the Supreme Court directed the Minister to
pay fifty lakh rupees as exemplary damages to public
exchequer and fifty thousand rupees towards costs.
• In Shiv Sagar Tiwari v. Union of India, allotment of
shops/stalls was made by the Housing Minister 'out of
quota' to her kith and kin. The Supreme Court not only
set aside the allotment but also ordered the Minister to
pay sixty lakh rupees to Government Exchequer.