Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Evidence Relating to Affairs of State [Section 129]

Introduction
​Certain documents and records maintained by the State are of such a sensitive nature that their disclosure in judicial proceedings may harm national security, public administration, or public interest. Recognising this, the Bharatiya Sakshya Adhiniyam, 2023 incorporates a specific privilege relating to unpublished official records connected with affairs of the State.
Section 129 embodies this privilege and restricts the use of such evidence, subject to limited exceptions.

Statutory Provision Explained
Section 129 provides that:

• No person shall be permitted to give evidence derived from unpublished official records relating to the affairs of the State.
• Exception: Such evidence may be given only with the permission of the Head of the Department concerned.
• The Head of the Department has complete discretion to grant or refuse permission, having regard to official and public interest.

This provision places public welfare above individual litigative interests.

Underlying Principle
Section 129 is founded on the maxim:
Salus populi est suprema lex
(The welfare of the people is the supreme law)
The idea is that administration of justice must not endanger the larger public interest. Along with Sections 130 and 165 of the BSA, this provision reflects the balance between judicial transparency and State confidentiality.

Scope of Section 129

• The Section applies only to unpublished official records.
• It covers records relating specifically to affairs of the State, such as:
  • Cabinet papers,
  • Policy deliberations,
  • Sensitive governmental correspondence,
  • Documents affecting national security or governance.
• Once privilege is properly claimed, the court ordinarily respects the decision, subject to limited judicial scrutiny.

Matters of State referred to in Section 165(2) of the BSA are treated as identical to “affairs of State” under Section 129.

Essential Conditions for Application
For Section 129 to operate, the following essentials must exist:

1. Unpublished Official Record
   • The document must not be in the public domain.
2. Affairs of the State
   • The record must relate to matters affecting State functions, governance, or public interest.
3. Attempt to Derive Evidence
   • A party must seek to produce evidence derived from such record.
4. Absence of Permission
   • Evidence is barred unless the Head of the Department permits disclosure.

The absence of any one condition makes Section 129 inapplicable.

Meaning of “Affairs of the State”

• The expression is not rigidly defined and depends on the nature of the document.
• Generally includes:
  • Cabinet notes,
  • High-level policy communications,
  • Strategic or security-related documents.

Judicial InterpretationIn S.P. Gupta v. Union of India, the Supreme Court clarified that:

• The final authority to decide the validity of privilege does not lie exclusively with the Head of the Department.
• The court must determine:
  • Whether the document relates to affairs of State, and
  • Whether disclosure would be injurious to public interest.

Thus, judicial review acts as a safeguard against misuse of privilege.

Balancing Competing Public Interests
When a claim under Section 129 is raised, the court balances two competing public interests:

• Interest in Non-Disclosure
  • Protection of State functions,
  • Preservation of confidentiality,
  • Avoidance of administrative harm.
• Interest in Disclosure
  • Fair trial,
  • Administration of justice,
  • Access to material evidence.

The court must decide which interest predominates in the given circumstances.

Documents Not Covered as Affairs of State
Judicial decisions have clarified that not all official communications qualify as affairs of State.
For instance:

• Correspondence between the Law Minister, Chief Justice of a High Court, and State Government has been held not to constitute affairs of State, and therefore not entitled to privilege under Section 129.

Relation with Section 165 (Court’s Power to Inspect Documents)

• Ordinarily, under Section 165, the court may inspect documents to decide admissibility.
• However, where a document clearly relates to affairs of State, the court cannot inspect it.
• If there is doubt about the nature of the document, the court may inspect it only to determine whether it truly relates to affairs of State and whether disclosure would harm public interest.

This principle was reaffirmed in S.P. Gupta v. Union of India.

Public Domain and Loss of PrivilegeIn Yashwant Sinha v. Central Bureau of Investigation, it was held that:

• If documents are already in the public domain,
• And accessible to the general public through newspapers or other means,
• Then a claim of privilege under Section 129 cannot be sustained.

Privilege is judged solely on public interest, and secrecy cannot be claimed once confidentiality is lost.

Nature of the Privilege

• The privilege under Section 129:
  • Is mandatory in nature, subject to judicial scrutiny,
  • Operates only in respect of unpublished records,
  • Exists to protect State interest, not individual officers.

Conclusion
Section 129 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in safeguarding State confidentiality and public interest. While it restricts the production of evidence derived from unpublished official records relating to affairs of the State, it does not place such records beyond judicial oversight.
By allowing courts to weigh competing public interests and by denying privilege where documents are already public, Section 129 ensures a careful balance between secrecy necessary for governance and transparency essential for justice.