Section 129 Bharatiya Sakshya Adhiniyam, 2023: Evidence as to affairs of State

Section 129 of Bharatiya Sakshya Adhiniyam, 2023: Evidence as to affairs of State

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.

Legal Commentary & Landmark Judgments: Section 129

Section 129 protects unpublished official records relating to any affairs of State, providing that no one shall be permitted to give any evidence derived therefrom without the permission of the head of the department.

Affairs of State Privilege: Applies to high-level state secrets, cabinet papers, intelligence dossiers, and national defense strategies.
Department Head Discretion: The officer at the head of the department gives or withholds permission as they think fit.
Judicial Inspection Power: The court has the ultimate power to inspect the document under Section 165 BSA to determine whether state security is genuinely implicated.

Key Landmark Precedents:

State of Punjab v. Sodhi Sukhdev Singh (AIR 1961 SC 493): A Constitution Bench held that the privilege under Section 123 IEA (Section 129 BSA) is based on public interest; the court has the power to inspect the document to determine whether its disclosure would injure the public service.
S.P. Gupta v. Union of India (1981) Supp SCC 87 (First Judges Case): Seven-judge bench ruled that the open society principle demands disclosure of official papers unless high-level injury to national security or international relations is established.

Courtroom Practice & Strategic Litigation Guidance:

When claiming state privilege in government litigation, file a personal affidavit by the Secretary to Government detailing the specific public injury that would result from disclosure; a routine junior officer affidavit will be rejected.