Indian Evidence Law | State Privilege

Section 123 of the Indian Evidence Act - Evidence as to Affairs of State

Section 123 of the Indian Evidence Act, 1872 protected unpublished official records concerning affairs of State from disclosure in evidence without the permission of the head of the department. The corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 129.

Legal framework updated: 20 October 2026

Section 123 of the Indian Evidence Act, 1872 - statutory text

This is the provision reproduced in the original article. It concerns evidence derived from unpublished official records connected with affairs of State, rather than creating an automatic exemption for every document held by a government office.

Meaning of the important legal expressions

Unpublished official records

These are official records not published or made generally available. Their unpublished status alone does not conclusively establish that their disclosure would harm a protected public interest; the connection with affairs of State and the legal basis of the privilege must be considered.

Affairs of State

The expression generally concerns governmental matters in which confidentiality may be justified by public interest, such as sensitive national security, diplomatic, intelligence or other protected governmental information. Not every administrative file qualifies merely because it was created by a public authority.

Head of the department

The statute identifies the officer heading the department concerned as the authority whose permission is required under the provision. A claim of privilege should identify the protected records and the public interest said to justify withholding them, subject to applicable procedural law.

How is State privilege considered by a court?

1. Identify the material: Determine whether the proposed testimony is derived from unpublished official records.
2. Assess the subject matter: Consider whether the records concern affairs of State and whether a legally recognised public-interest basis for non-disclosure is asserted.
3. Departmental permission: Section 123 of the 1872 Act, and corresponding BSA Section 129, require permission from the head of the concerned department.
4. Judicial determination: The assertion of privilege is not necessarily conclusive merely because a department claims it. Courts consider the governing evidence provisions and binding case law, including the distinction between genuine public-interest protection and an unsupported claim of secrecy.

Under the former Act, Section 162 addressed the procedure for dealing with objections to production of documents. Its interaction with Section 123 was considered in case law. Any request for production or disclosure should be assessed under the procedural rules applicable to the particular proceeding.

Illustrations of the principle

• Sensitive security material: A request to disclose an unpublished intelligence assessment may give rise to a claim of State privilege where disclosure would prejudice a protected public interest.
• Routine administrative records: A government office cannot assume that every unpublished file is privileged solely because it is marked confidential; the statutory conditions and public-interest claim matter.
• Already public information: Material officially published or lawfully available in the public domain raises different questions from evidence derived from unpublished official records.

These examples explain the legal principle; the outcome depends on the facts, the nature of the records, and the applicable judicial decisions.

Does the Right to Information Act override Section 123?

Requests for information under the Right to Information Act, 2005 are governed by that Act, including its exemptions and public-interest provisions. An RTI request and the admissibility or production of evidence in court are distinct legal processes. A disclosure decision under one framework does not automatically resolve every issue under the other.

Application after 1 July 2024

Section 129 of the BSA, 2023 addresses evidence as to affairs of State under the current evidence statute. Section 170 of the BSA repeals the Indian Evidence Act, 1872 and provides savings for proceedings pending immediately before commencement, subject to its terms. Therefore, the date and nature of a proceeding can affect which enactment governs it.

Related provisions and official legal sources

• Bharatiya Sakshya Adhiniyam, 2023 - India Code (see Sections 129 and 170).
• Indian Evidence Act, 1872 - India Code (see Sections 123 and 162).
• Supreme Court of India - judgments and court information.
• Section 124 - Official communications, concerning a distinct category of protected official communications.
• Indian Evidence Act overview.