Madhyamam Broadcasting Limited Versus Union of India & Ors.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8129 of 2022

Madhyamam Broadcasting Limited …Appellant

Versus

Union of India & Ors. …Respondents

With

Civil Appeal No. 8130 of 2022

And with

Civil Appeal No. 8131 of 2022

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

This judgment consists of the following sections:

A. Facts..................................................................................................................4

B. Submissions ....................................................................................................15

C. Issues..............................................................................................................19

D. Requirement of security clearance for renewal of permission.........................21

E. Judicial Review on procedural grounds...........................................................26

E. 1 Principles of natural justice: purpose and content.....................................28

E. 2 Constitutionalizing principles of natural justice: the impact of Maneka

Gandhi..............................................................................................................33

E. 3 Standard to test reasonableness of procedure: proportionality as

reasonableness ................................................................................................37

F. Infringement of MBL’s right to a fair hearing....................................................40

G. Whether the infringement of MBL’s right to a fair hearing is justified..............47

G. 1 Natural justice and national security: decisions in Digi and Ex-armymen.48

G.2 Application of the proportionality standard ................................................59

G. 2 (a) Legitimate Goal Stage .....................................................................60

(I) Confidentiality and IB Reports ............................................................62

(II) National Security ................................................................................63

(III) Opening the sealed cover ...............................................................67

G.2 (b) Suitability ..........................................................................................76

G. 3 (c) Least restrictive means ....................................................................78

(I) Totten claim: non-justiciability of the issue .........................................80

(II) Closed Material Procedure and Special Advocates............................81

(III) Public Interest Immunity..................................................................82

H. Jurisprudence on public interest immunity claims ...........................................88

H.1 India...........................................................................................................88

H. 2 United Kingdom ........................................................................................96

H. 3 United States ..........................................................................................100

H. 4 Canada ...................................................................................................101

I. Proportionality standard to test public interest immunity claims .....................109

J Public interest immunity or sealed cover: the less restrictive means ..............113

K Substantive Challenge: the validity of the action of the MIB in denying to renew

the permission ...................................................................................................124

L Conclusion and Directions ..............................................................................129

PART A

1 The Union Ministry of Information and Broadcasting1 revoked the permission which

it had granted to Madhyamam Broadcasting Limited2 to uplink and downlink a news

and current affairs television channel called “Media One”. The appellants,

comprising of MBL, the trade union of working journalists, and the editor, Senior

Web Designer and Senior Cameraman of Planetcast Media Services Ltd, initiated

proceedings under Article 226 of the Constitution before the High Court of Kerala

for challenging the action of the first respondent. By a judgment dated 8 February

2022, a Single Judge dismissed the petitions. The writ appeal was dismissed by

the Division Bench of the High Court by a judgment dated 2 March 2022. The High

Court relied on material which was disclosed solely to the Court in a sealed cover

by the second respondent, the Union Ministry of Home Affairs3

. The appellants

instituted proceedings under Article 136 of the Constitution to challenge the

correctness of the judgment of the Division Bench of the High Court.

A. Facts

2 On 19 May 2010, MBL applied for permission to uplink and downlink a news and

current affairs television channel named ‘Media One’. On 7 February 2011, MHA

granted a security clearance for the operation of the channel. By an order dated 30

September 2011, MIB gave MBL permission to uplink ‘Media One’ for a period of

ten years under the ‘Policy Guidelines for Uplinking of Television Channels from

India’

. The permission was granted subject inter alia, to compliance with the terms

1 “MIB”

2 “MBL”

3 “MHA”

4 “Uplinking Guidelines”

PART A

and conditions set out in the Annexure to the letter. The Annexure to the uplinking

permission prescribes the following conditions:

“(i) The Licensing Authority shall be empowered to impose

such restrictions as may be necessary as and when

required.

(ii) The Licensing Authority shall have the power to

revoke the licence on grounds of national security and

public order.

(iii) The Licensing Authority shall have the power to

prohibit transmission of programmes considered to

be prejudicial to friendly relations with foreign

governments, public order, security of state,

communal harmony etc.

(iv) Licence should provide access facilities of all

equipment and records/system to the Licensing Authority

or its representative;

(v) License should make available detailed information

about equipment and its location;

(vi) Licensing Authority shall be legally competent to take

over the stations on the occurrence of public emergency

or in the interest of public safety/order;

(VII) Monitoring stations should be set up so as to facilitate

prompt intervention for deterrent action against violations

of technical parameters and provision laid down in the

legislation and licensing agreements.

(IX) The applicant would make available to the licensing

Authority the detailed technical information about the

equipment to be used.”

(emphasis supplied)

On the same day, MIB issued a registration certificate for downlinking of the Media

One channel for a period of five years according to the provisions of the ‘Policy

Guidelines for Downlinking of Television Channels’

. The downlinking permission

stipulated that in addition to complying with the terms and conditions set out in the

Annexure extracted above, the channel was required to comply with the

5 “Downlinking Guidelines”

PART A

Programme and Advertising Code prescribed under the Cable Television

Networking (Regulation) Act 1995 and the Rules framed under it.

3 In 2012, MBL applied for uplinking and downlinking of a ‘non-news television

channel’ called ‘Media One Life’, and news television channel, ‘Media One Global’.

MBL withdrew the application for ‘Media One Global’. On 26 August 2015, MIB

granted permission to uplink and downlink ‘Media One Life’ for a period of ten

years.

4 On 12 February 2016, MIB issued a notice to show cause to MBL proposing to

revoke the permission for uplinking and downlinking granted to Media One and

Media One Life in view of the denial of security clearance by MHA. The show cause

notice is extracted below:

SHOW CAUSE NOTICE

Whereas Ministry of Information and Broadcasting has

granted permission to M/s Madhyamam Broadcasting

Limited on 30.09.2011 to uplink and downlink one News

and current affairs channel, namely, “Media One” and on

26.08.2015 one Non-News & Current Affairs Channel,

namely, “Media One Life” into India.

Whereas, the permissions so granted by this Ministry are

governed by the Uplinking and Downlinking Guidelines as

amended from time to time.

Whereas, Clause 9.2 of Uplinking Guidelines stipulates

that security clearance to the company and its directors is

pre-requisite condition for grant of permission for TV

channels.

Whereas the security related conditions annexed with the

permission letter stipulates that the license/ permission

can be revoked on the grounds of national security and

public order.

Whereas the Ministry of Home Affairs has recently

conveyed denial of the security clearance.

Whereas due to withdrawal of security clearance, the

company would cease to fulfil the very basic pre-requisite

for grant of permission of uplinking & downlinking TV

Channels. The company is also in violation of the security

PART A

related conditions conveyed through the permission letters

issued by the Ministry.

Whereas due to the above-non-compliances, the

permissions are liable to be withdrawn/cancelled.

Now, therefore, M/s Madhyamam Broadcasting Limited is

hereby called upon to show cause, within 15 days of

receipt of this notice, why their permission should not be

revoked or cancelled, in view of the denial of security

clearance.”

Meanwhile, seven days after the show cause notice was issued, MBL applied to

renew the licence to downlink the channel Media One since the license which was

initially granted for five years had expired. By an order dated 11 July 2019, MIB

renewed the downlinking permission of ‘Media One’ for a further period of five

years. By an order dated 11 September 2019, MIB cancelled the uplinking and

downlinking permission to Media-One Life. It is crucial to note that though the show

cause notice was issued to both Media -One Life and Media One, only the

permission granted to the former was revoked.

5 On 3 May 2021, MBL applied to renew the downlinking and uplinking permissions

granted to operate Media One since they were to expire on 30 September 2021

and 29 September 2021.

6 On 5 January 2022, MIB issued another show cause notice to MBL invoking clause

9.2 of the Uplinking Guidelines and proposed to ‘revoke’ the permission granted to

operate Media One. The show cause notice specified that (i) according to Clause

9.2 of the Uplinking Guidelines, security clearance is a pre-condition for the grant

of permission and that security-related conditions are annexed to the letter granting

permission ; (ii) MHA has denied security clearance in the past to the proposals of

PART A

MBL and that it ‘may be considered as denied in the present case also’; (iii) since

security clearance has been denied, MBL has ceased to fulfill the eligibility

condition for renewal of permission of uplinking and downlinking. The relevant

extract of the show cause notice is set out below:

“ SHOW CAUSE NOTICE

[…]

3. Whereas, Clause 9.2 of Uplinking Guidelines stipulates

that security clearance to the company and its directors is

pre-requisite for grant of permission for TV channels.

[…]

5. Whereas the security related conditions annexed with

the permission letter stipulates that the license/permission

can be revoked on grounds of national security and public

order.

6. Whereas the Company vide letter dated 03.05.2021

applied for renewal of permission. MHA has informed that

the security clearance has been denied in the past to the

proposals of the company and security clearance may be

considered as denied in the present case also.

7. Whereas due to denial of security clearance, the

company ceased to fulfil the eligibility requirement for

renewal of permission of uplinking & downlinking of TV

Channels.

8. In view of the foregoing, M/s Madhyamam Broadcasting

Limited is hereby called upon to show cause, within 15

days of receipt of this notice, why the permission granted

to them should not be revoked or cancelled, for uplinking

and Downlinking of above mentioned TV Channel with

immediate effect.”

7 On 19 January 2022, MBL replied to the show cause notice, submitting that:

(i) It did not receive any intimation of the denial of security clearance to

its Media One Channel as stated in the show cause notice. It was not

made a party to the proceedings and no material in this regard was

served upon them;

PART A

(ii) The grounds for denial of security clearance were not intimated;

(iii) MBL and Media One Channel have not indulged in any activity that

would warrant the denial of security clearance;

(iv) MBL was served with a similar show cause notice on 12 February

2016 with respect to Media One channel. After MBL submitted a reply

on 11 July 2019, the licence was renewed on 11 July 2019;

(v) The actions of MIB are arbitrary and violative of Article 14 of the

Constitution; and

(vi) The action of MIB of denying renewal of the license is violative of

MBL’s right to the freedom of speech and expression guaranteed

under Article 19(1)(a) of the Constitution.

8 By an order dated 31 January 2022, MIB revoked the permission that was granted

to uplink and downlink ‘Media One’ because of the denial of a security clearance.

The relevant portion of the order revoking the permission is extracted below:

“ Whereas Ministry of Information and Broadcasting

granted permission to M/s Madhyamam Broadcasting

Limited on 30.09.2011 to uplink and downlink one News

and current affairs TV channel, namely, “Media One”

which was valid upto 299.2021.

2. Whereas, Clause 9.2 of Uplinking Guidelines stipulates

that security clearance to the company and its directors is

pre-requisite condition for grant of permission for TV

channels.

3. Whereas, the company M/s Madhyamam Broadcasting

Limited vide application dated 03.05.2021 had applied for

renewal of permission to its one permitted News & Current

Affairs TV channel namely, “Media One” for a period of 10

yeas (i.1 from 30.09.2021 to 29.09.2021)

PART A

4. Whereas, as per the clause 9.2 of the policy guidelines

for Uplinking of Television channels from India- 2011 and

para 8.3 of the Downlinking guidelines, 2011, Ministry of

Home Affairs was requested to give security clearance of

the company (M/s Madhyamam Broadcasting Limited) for

renewal of permission of News & Current Affairs TV

Channel namely, “Media One” for a period of 10 years.

5. Whereas, the Ministry of Home Affairs has denied the

security clearance to M/s Madhyamam Broadcasting

Limited for renewal of permission for uplinking and

downlinking of News & Current Affairs TV channel “Media

One”.

6. Accordingly, a Show Cause Notice (SCN) dated

05.01.2022 was given to the company as to why the

permission granted to them should not be revoked or

cancelled, for Uplinking and Downlinking of above

mentioned TV Channel. Copy of the SCN is attached at

Annexure-I.

7. The Company has replied to the SCN vide their letter

dated 19.01.2022. In the reply, the company has inter-alia

mentioned that they are unaware of the grounds for denial

of security clearance and requested not to iniate any

further proceedings in the matter. The reply given by the

company is attached at Annexure-II.

8. The reply of the company has been examined. The

security clearance is based on security parameters of

the Ministry of Home Affairs. Since the Ministry of

Home Affairs has denied the security clearance. The

channel cannot be allowed to operate.

9. In view of the above, the permission granted to M/s

Madhyamam Broadcasting Limited to uplink and downlink

a News and Current Affairs TV Channel namely, “Media

One” is revoked with immediate effect and accordingly the

name of this channel is removed from the list of permitted

channels.”

(emphasis supplied)

9 MBL initiated proceedings under Article 226 of the Constitution before the High

Court of Kerala to challenge MIB’s order ‘revoking’ the uplinking and downlinking

permission granted to Media One. The appellants sought in the petitions: (i) setting

aside of the order dated 31 January 2022 revoking the permission granted to

Media-One; (ii) a direction to MIB and MHA to provide MBL an opportunity to be

PART A

heard before revoking the permission; and (iii) a declaration that there are no

circumstances warranting a denial of security clearance or the revocation of the

license since MBL has not violated any law or indulged in anti-national activity.

10 The Assistant Solicitor General6 of India filed a statement before the High Court

submitting that security clearance was denied on the basis of intelligence inputs,

which are “sensitive and secret in nature”. It was further submitted that MHA cannot

disclose reasons for the denial “as a matter of policy and in the interest of national

security”.

11 By a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala

dismissed the writ petition. The Single Judge held that:

(i) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the

Downlinking Guidelines stipulate that when the application for

renewal of permission is considered, the eligibility criteria stipulating

the net worth of the company and experience of the top management

will not apply. However, other terms and conditions that are applicable

to permission for uplinking are applicable to renewal. Thus, a security

clearance is a factor which must be considered at the time of renewal

of the existing permission as well;

(ii) The principles of natural justice are not applicable in matters

concerning national security (relied on Ex-Armymen’s protection

6 “ASG”

PART A

Services Private Limited v. Union of India7 and Digi Cable

Network (India) Private v. Union of India8

); and

(iii) The files submitted by MHA indicate that the Committee of Officers9

took note of the inputs provided by intelligence agencies and “found

that the inputs are of a serious nature and fall under the security rating

parameters. In those circumstances, the Committee of Officers

advised not to renew the licence”. The recommendations of the

Committee of Officers were accepted by MHA and are fortified by

supporting material.

12 The Division Bench of the High Court directed that the files submitted by MHA shall

be placed before it since the Single Judge dismissed the petition by ‘relying upon

the files’. On perusing the files, the Division Bench held that:

(i) Though the nature and gravity of the issue is not discernible from the

files, there are clear indications that the security of the state and

public order would be impacted if the permission granted to MBL to

operate the channel is renewed;

(ii) While the State cannot ordinarily interfere with the freedom of the

press, the scope of judicial review in matters involving national

security is limited;

7 (2014) 5 SCC 409 8 AIR 2019 SC 455

9 “CoO”

PART A

(iii) The Union of India may decline to provide information when

“constitutional considerations exist, such as those pertaining to the

security of the State, or when there is a specific immunity under a

specific statute”. It is not sufficient for the State to plead immunity and

it must be able to justify it on affidavit in Court (relied on ML Sharma

v. Union of India10); and

(iv) The State has justified the plea of non-disclosure since the statement

filed by the Union of India before the Single Judge, indicates that “the

Ministry of Home Affairs has informed that denial of security clearance

in the case on hand is based on intelligence inputs, which are

sensitive and secret in nature, therefore, as a matter of policy and in

the interest of national security, MHA does not disclose reasons for

denial.”

13 The appellants initiated proceedings under Article 136 of the Constitution against

the judgment of the Division Bench of the High Court. By an order dated 15 March

2022, this Court after perusing the relevant files that were submitted before the

High Court in a sealed cover granted an interim stay on the order of MIB dated 31

January 2022 by which the permission to operate the Media One channel was

revoked. The relevant portion of the order is extracted below:

“ 6. In pursuance of the earlier direction, the files were

produced in the Court.

7. Mr Dushyant A Dave, learned senior counsel appearing

on behalf of the petitioners, assailed the approach of the

High Court in declining to disclose the contents of the files

to the petitioners. Mr Dave pressed the application for

10 AIR 2021 SC 5396

PART A

interim relief and submits that there is no objection to this

Court perusing the files. Accordingly, during the course of

the hearing, the files have been perused by the Court.

8. At the present stage, we are of the view that a case for

the grant of interim relief has been made out on behalf of

the petitioners having due regards to the contents of the

files which have been perused by the Court.

9. We accordingly order and direct that pending further

orders, the orders of the Union government dated 31

January 2022 revoking the security clearance which was

granted to the petitioner, Madhyamam Broadcasting

Limited, shall remain stayed. The petitioners shall be

permitted to continue operating the news and current

affairs TV channel called Media One on the same basis on

which the channel was being operated immediately prior

to the revocation of the clearance on 31 January 2022.”

This Court also observed that the issue of whether the contents of the files should

be disclosed to the appellants is expressly kept open:

“11. The issue as to whether the contents of the files

should be disclosed to the petitioners in order to enable

them to effectively pursue their challenge in these

proceedings is expressly kept open to be resolved before

the petitions are taken up for final disposal.

[…]

13. We clarify that perusal of the files by the Court at this

stage is not an expression on the tenability of the

contentions of the petitioners that they would be entitled to

inspect the files. The issue is kept open to be resolved at

the stage of the final disposal.”

PART B

B. Submissions

14 Mr Dushyant Dave, Senior Counsel appearing on behalf of MBL made the following

submissions:

(i) The order issued by MIB revoking the permission granted to uplink

and downlink the channel, Media One, is unconstitutional for the

following reasons:

(a) Security Clearance is a pre-condition only for the grant of

permission to operate the channel and not for the renewal of the

existing permission. Under Clause 10.2 of the Uplinking

Guidelines, the renewal of the existing permission is subject only

to the channel not having been found guilty of violating the terms

and conditions of the Programme and Advertising Code on five

occasions or more;

(b) Without prejudice to the above argument, security clearance

cannot be denied on grounds that exceed the reasonable

restrictions on the freedom of the press prescribed under Article

19(2) of the Constitution. The order revoking the permission refers

to paragraph 9.2 of the Uplinking Guidelines. Paragraph 9.2 is a

part of the ‘procedure for obtaining permission’ which provides that

an application for permission will be sent to the Ministry of Home

Affairs for security clearance. The procedure to grant or refuse

security clearance must be subject to the limitations prescribed in

PART B

Article 19(2) of the Constitution read with Section 4(6) of the Cable

Television Networks (Regulations) Act 1995; and

limited grounds of public interest and national security to suspend

the permission granted for a specified period.

(ii) In 2011, MIB granted permission to operate Media One. It presupposes that security clearance as required under Paragraphs 9.3

and 9.4 of the Uplinking Guidelines was granted before the

permission was granted. The security clearance was not withdrawn

between 2011 and 2022. The renewal should have been granted

automatically, more so because the show cause notice does not

allege any violation of the conditions set down under Paragraph 10.2

of the Uplinking Guidelines; and

(iii) MBL was not provided access to the material which MIB submitted

before the High Court to support the allegations made in the show

cause notice. The Union of India, by submitting material in a ‘sealed

cover,’ and the High Court, by relying on it in the course of its

judgment, negated the principles of natural justice. This procedure is

violative of the principle of an open court and of fairness to parties.

PART B

15 Mr Huzefa A Ahmadi, senior counsel appearing on behalf of the editor, Senior Web

Designer and Senior Camera Man of Media One11 made the following

submissions:

(i) The order issued by MIB violates MBL’s freedom protected under

Article 19(1)(a) of the Constitution. The action of MIB denying the

renewal of permission is not protected by reasonable restrictions

prescribed in Article 19(2). The fundamental rights of MBL cannot be

abridged on an arbitrary hypothesis:

(a) The show cause notice and the order revoking the permission are

bereft of reasons and details;

(b) In the counter affidavit filed before the High Court, MIB only

contended that the material is sensitive and ‘as a matter of policy,

and in the interests of national security, Ministry of Home Affairs

does not disclose reasons for the denial”;

‘gravity’, ‘impact’, ‘nature’, and ‘depth’ of the issue are not

discernible from the files produced by MIB. It was also observed

that ‘too many details are not available in the files produced

before us”; and

11 SLP (C) No. 4331 of 2922

PART B

(d) This Court has consistently frowned upon the overbroad use of

‘national security’ to abridge fundamental rights.

(ii) The doctrine of proportionality envisages that the least restrictive

means for restraining fundamental rights ought to be used.

(Anuradha Bhasin v. Union of India12 and KS Puttaswamy (9J) v.

Union of India13) The Uplinking and Downlinking Guidelines

contemplate suspension of the licence to operate for varied time

periods. The revocation of the permission was not the least restrictive

means available at the disposal of MIB; and

(iii) The High Court relied on material that was placed in a sealed cover

to reject the challenge to the revocation order. This course of action

undertaken by the High Court violates the principles of natural justice.

16 Mr Mukul Rohatgi, senior counsel appearing for the Kerala Union of Working

Journalists14 submitted that the freedom of the press protected under Article

19(1)(a) of the Constitution is one of the most precious freedoms and must not be

infringed callously. He contended that though the conditions for renewal of

permission are different from the conditions for the grant of permission, the High

Court applied the same standard for both the grant of permission and renewal of

license. On the disclosure of relevant material to the High Court in a sealed cover,

it was submitted that if there was sensitive information in the material, the

respondent could have redacted it before allowing the appellants to peruse the file.

12 (2020) 3 SCC 637 13 (2017) 10 SCC 1 14 SLP (C) No. 4678 of 2022

PART B

It was argued that the sensitivity of material cannot preclude the affected party from

viewing the remaining portions.

17 Mr K M Nataraj, Additional Solicitor General appearing on behalf of the

respondents made the following submissions:

(i) Paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that

security clearance is a pre-condition for renewal of license;

(ii) MIB was justified in revoking the permission granted to Media One

because MHA denied security clearance; and

(iii) The principles of natural justice stand excluded when issues of

national security are involved (Ex-Armymen (supra) and Digi Cable

(supra)).

C. Issues

18 The following issues arise in the course of determining the validity of the order

issued by MIB refusing to renew the uplinking and downlinking permission granted

to MBL to operate the television channel, Media One:

(i) Whether security clearance is one of the conditions required to be

fulfilled for renewal of permission under the Uplinking and

Downlinking Guidelines;

(ii) Whether denying a renewal of license and the course of action

adopted by the Division Bench of the High Court violated the

appellants procedural guarantees under the Constitution; and

PART C

(iii) Whether the order denying renewal of license is an arbitrary

restriction on MBL’s right to the freedom of speech and expression

under Article 19(1)(a) of the Constitution.

19 Before proceeding to the analysis, certain factual aspects need to be noticed. On

3 May 2021, MBL submitted an application for renewal of uplinking and downlinking

permission to MIB. The application stated that the uplinking and downlinking

permissions granted to Media One would expire on 30 September 2021 and 29

September 2021 respectively. In the statement filed by the ASG before the Kerala

High Court, it was submitted that:

(i) the application for ‘renewal’ filed by the MBL was forwarded by MIB to

MHA; and

(ii) by a letter dated 29 December 2021, MHA denied security clearance to

MBL for ‘renewal’ of uplinking and downlinking permission.

20 MIB issued a show cause notice stating that, MBL has “ceased to fulfil the eligibility

requirement for ‘renewal’ of permission for uplinking and downlinking” due to the

denial of security clearance. MBL was asked to show cause as to why the

‘permission granted to them should not be revoked or cancelled’. By its letter dated

31 January 2022, MIB ordered that the permission granted to MBL to uplink and

downlink Media One be ‘revoked’. Though the show cause notice stated that

security clearance which is a requirement for ‘renewal’ of license is denied, MIB

was asked to show cause as to why its license should not be ‘revoked’. A similar

phraseology of ‘revocation’ was used in MIB’s order dated 31 January 2022. The

PART D

Division Bench of the High Court in its judgment dated 2 March 2022 noted the

inconsistency between the phraseology used in the ‘renewal’ application and

‘revocation’ order.

21 The notice to show cause and the order of revocation refer to the ‘revocation of

license’. However, both the former and the latter note that MBL has not fulfilled one

of the conditions for renewal of license since it was denied a security clearance by

the MHA. Counsel for the appellants have not made submissions on the

inconsistency arising out of the use of the phrases ‘renewal’ and ‘revocation’

interchangeably. Thus, we will proceed on the understanding that the order of MIB

dated 31 January 2022 rejected the application for renewal of the licence to operate

the channel.

D. Requirement of security clearance for renewal of permission

22 Paragraph 10 of the Uplinking Guidelines stipulates the conditions for renewal of

existing permissions. According to paragraph 10, renewal of permission is to be

considered for ten years, subject to the condition that the channel should not be

found guilty of violating the terms and conditions of permission, including any

violation of the programme and advertising code on five or more occasions.

Paragraph 10.4 stipulates that the terms and conditions applicable at the time when

permission is granted would be applicable at the time of renewal, subject to

modifications made by the terms of the permission. The relevant paragraphs of the

provision are extracted below:

“ 10. RENEWAL OF EXISTING PERMISSIONS

10.2 Renewal of permission will be considered for a period

of 10 years at a time, subject to the condition that the

PART D

channel should not have been found guilty of violating the

terms and conditions of permission including violations of

the programme and advertisement code on five occasions

or more. What should constitute a violation would be

determined in consultation with the established selfregulating mechanisms.

[…]

10.4 At the time of considering the renewal of permission

of the existing permission holders, the eligibility criteria of

net worth of the company and experience of the top

management will not apply. However, other terms and

conditions would be applicable as per modified terms and

conditions of the permission.”

23 Paragraph 9 of the Downlinking Guidelines which stipulates the procedure for

renewal of existing permissions for downlinking is similar in terms to paragraph 10

of the Uplinking Guidelines. The provision indicates that renewal of an existing

permission is not a vested right. Paragraph 10.2 provides that the ‘renewal of

permission will be considered…subject to the conditions…’ spelt out thereafter.

The conditions stipulated in paragraph 10 for the renewal of uplinking and

downlinking are :

(i) The channel should not have violated the programme and advertisement

code on five or more occasions;

(ii) The channel should not have been found guilty of violating the terms and

conditions of permission; and

(iii) The channel must fulfil all the terms and conditions that apply to the grant

of permission as modified by the letter of permission.

PART D

Condition 1: Violation of Programme Code

24 Media One has not been found guilty of violating the programme and

advertisement code on five or more occasions. On 28 February 2020, a show

cause notice was issued by MIB alleging a violation of the Cable Television

Network Rules 1994 and Programme Code of the Cable Television Networks

(Regulation) Act 1995 while telecasting reports on the violence which took place in

North-East Delhi during the protests organised against the Citizenship

(Amendment) Act 2019.

25 By an order dated 6 March 2020, MIB in exercise of powers conferred by Section

20(2) and 20(3) of the Cable television Networks (Regulation) Act 1995 and

paragraphs 8.1 & 8.2 of the Uplinking Guidelines ordered the prohibition on the

transmission and retransmission of Media-One channel for forty eight hours.

26 However, by an order dated 7 March 2020, MIB directed that MBL may resume

uplinking the channel Media One from 9.30 am on the same day. Other than this

instance, there is nothing on record to indicate that Media One violated the

Programme Code. Paragraph 10.2 of the Uplinking Guidelines states that the

channel should not have violated the Programme Code on more than five

occasions. The solitary incident of an alleged violation of the Programme Code

does not fulfil the first condition of Paragraph 10 of the guidelines.

Condition 2 and 3: requirement of security clearance for renewal of license

27 Paragraph 10.4 of the Uplinking Guidelines stipulates that at the time of

considering the application for renewal, the channel should fulfil all the terms and

PART D

conditions that apply to the grant of permission as modified by the letter of

permission. The terms and conditions that are applicable for the grant of

permission are spread across the Uplinking and Downlinking Guidelines and are

not concentrated in a specific paragraph or clause. Paragraph 2 of the Uplinking

Guidelines (and paragraph 1 of the Downlinking Guidelines) prescribes the criteria

of eligibility applicable to applicant companies. The conditions, inter alia, include

minimum net worth and prior managerial experience. Paragraph 3 of the Uplinking

Guidelines (and paragraph 2 of the Downlinking Guidelines) prescribe the eligibility

criteria for uplinking and downlinking a news and current affairs TV channel.

Paragraph 9 of the Uplinking Guidelines (and Paragraph 8 of the Downlinking

Guidelines) prescribe the “procedure for grant of permission of channels”. The

provision is extracted below:

“9. PROCEDURE FOR GRANT OF PERMISSION OF

CHANNELS

9.1. The applicant company can apply to the Secretary,

Ministry of Information & Broadcasting, in triplicate, in the

prescribed format “Form 1” along with all requisite

documents including a demand draft for an amount equal

to processing fee wherever prescribed, payable at par at

New Delhi, in favour of the Pay & Accounts Officer,

Ministry of Information & Broadcasting, Shastri Bhawan,

New Delhi.

9.2. On the basis of information furnished in the application

form, if the applicant is found eligible, its application will be

sent for security clearance to the Ministry of Home Affairs

and for clearance of satellite use to the Department of

Space (wherever required).

[…]”

(emphasis supplied)

28 Paragraph 9.2 stipulates that an application which is found to be eligible would be

sent to MHA for security clearance. Paragraphs 3 and 9 indicate that upon the

receipt of the application form, MIB will undertake an exercise to determine if the

PART D

conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled. If the

conditions are fulfilled, the application is sent to MHA for security clearance. Thus,

Paragraph 9.2 prescribes a condition in addition to those stipulated in Paragraphs

2 and 3 of the Uplinking guidelines.

29 The heading of Paragraph 9,namely, “procedure for obtaining permission,’ does

not detract from the prescription of a substantive condition. Paragraph 10.4

excludes the eligibility criteria of net worth of the company and managerial

experience from the consideration of the renewal application. All other conditions

prescribed by the guidelines for permission are applicable for renewal of

permission. The requirement of security clearance arises at a stage subsequent to

the fulfilment of conditions prescribed under Paragraphs 2 and 3. If the preliminary

conditions prescribed are applicable at the time of renewal, there is no reason to

exclude the application of the requirement of the security clearance for renewal of

permission.

30 Further, Paragraph 10. 4 of the Uplinking Guidelines stipulates that the conditions

‘as modified by the permission letter’ are applicable at the time of renewal of the

license. The annexure to the ‘permission letter’ does not specify any condition

modifying or eliminating the condition of security clearance. Rather, the annexure

provides that the licence shall be revoked on grounds of ‘public order and national

security’. Though in view of Paragraph 10 of the Uplinking Guidelines, the licensee

does not have a vested interest for renewal of the permission, the grounds for

denying a renewal of license cannot be materially different from the grounds for

revoking the licence. This is because both non-renewal of license and revocation

PART E

of license are restrictions on the right to freedom of press. The intent behind the

exclusion of the eligibility criteria of net worth and managerial experience for the

purpose of a renewal application is because the freedom of press cannot be

restricted on grounds other than stipulations under Article 19(2) of the Constitution.

Thus, Paragraph 10. 4 of the Uplinking Guidelines as modified by the ‘permission

letter’ indicates that MHA could deny security clearance on the grounds of national

security and public order. Thus, according to the Uplinking and Downlinking

guidelines, security clearance from MHA is one of the conditions that is required to

be fulfilled for renewal of permission for Uplinking and Downlinking of news

channels.

E. Judicial Review on procedural grounds

31 Article 13 of the Constitution states that all laws that are inconsistent with

fundamental rights enumerated in Part III of the Constitution shall be void. Article

13(3)(a) states that for the purpose of this provision, law includes ‘any ordinance,

order, bye-law, rule, regulation, notification, custom or usage having in the territory

of India the force of law.’ It is, thus, a settled position of law that an administrative

action can be challenged on the ground of a violation of fundamental rights.

Following the expansion of the content of the right to equality under Article 14 to

include the guarantee against arbitrariness, the grounds for judicial review of

administrative action have expanded. Administrative action is judicially reviewable

on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii)

PART E

procedural impropriety.15 This Court has also held that in addition to the above

grounds, administrative action can be reviewed on the ground of proportionality if

it affects freedoms that are guaranteed under Articles 19 and 21 of the

Constitution.16

32 The principle of natural justice that is derived from common law has two primary

facets- Audi Alterum Partem and Nemo Judex In Causa Sua. Audi Alterum Partem

encapsulates the rule of fair hearing. Nemo Judex In Causa Sua encapsulates the

rule against bias, that is, no person should be a judge of their own case. It is the

case of MBL that MIB did not comply with the principle of Audi Alterum Partem

because the reasons for the denial of security clearance and the material relevant

to the decision of revocation were not disclosed. This, it is argued, infringes upon

the right of MBL to a fair hearing. On the other hand, MIB contends that it was not

required to comply with the principles of natural justice since the denial of security

clearance is on a matter involving national security, which is an established

exception to the application of the principles of natural justice.

33 There are three important considerations that have to be answered in the context:

(i) Whether the non-disclosure of reasons and relevant material for the

decision to deny security clearance infringes upon the right to a fair

hearing, that is protected under Articles 14 and 21;

15 See State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709; Tata Cellular v. Union of India, (1994) 6 SCC

651; and Council of Civil Service Unions v. Minister for Civil Service, (1985) A.C 374 16 See Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G. Ganayutham, (1997) 7 SCC 463

PART E

(ii) Whether the infringement of the right to a fair hearing would render the

decision void; and

(iii) If considerations of national security are an established exception to

principles of natural justice, how should the court resolve the competing

interests represented by the principles of natural justice and national

security.

34 This case presents the Court with an opportunity to clarify and lay down the law on

the applicability of the principles of natural justice when issues of national security

are involved. The Court must choose between the two visions of either permitting

a complete abrogation of the principles of natural justice or attempting to balance

the principles of natural justice with concerns of national security. It is imperative

that we analyse the purpose natural justice serves, and the jurisprudential

development of procedural due process before choosing between these two

competing visions.

E. 1 Principles of natural justice: purpose and content

35 The principles of natural justice were read into the law and conduct of judicial and

administrative proceedings with an aim of securing fairness. These principles seek

to realise the following four momentous purposes:

36 Fair Outcome: Procedural rules are established to prevent the seepage of bias and

unfairness in the process of decision making. A decision that is reached after

following the procedural rules is expected to be fair. An outcome that is reached

through a fair process is reliable and accurate. In the context of criminal

PART E

proceedings, procedural rules are prescribed in the Indian Evidence Act 1872 and

the Code of Criminal Procedure 1973 to secure the ‘correct’ outcome and to identify

the ‘truth’.

37 In Chief Constable of North Wales Police v. Evans17, the appellant was a

probationary member of the North Wales Police Force. He was removed from the

force without putting forth the allegations against him. The House of Lords set aside

the decision on the ground that the non-disclosure of allegations was violative of

the principles of natural justice. The Court cautioned that there was an extreme

danger in proceeding without putting forth the allegations against him because the

veracity of the allegations could never be tested:

“As an example of the extreme danger of proceeding in

this way, it must be observed that, as one of the two

clinching matters which seem to have influenced him, the

appellant says in his affidavit: “Further, it became known”

(sic) “to senior officers that the applicant and his wife had

lived a ‘hippy’ type life-style at Tyddyn Mynyddig Farm,

Bangor.” This had never been put to the respondent at all,

and had the appellant or his deputy to whom he delegated

the inquiry taken the trouble to ask the respondent about

it, he would have discovered at once that this allegedly

clinching allegation was palpably untrue, and simply the

result of a mistaken address. It was, in short, an utterly

incorrect statement relied upon precisely owing to the

failure of natural justice of which complaint is made.”

38 Inherent value in fair procedure: Fair procedure is not only a means to the end of

achieving a fair outcome but is an end in itself. Fair procedure induces equality in

the proceedings. The proceedings 'seem’ to be and are seen to be fair. In Kanda

17 (1982) 1 WLR 1155

PART E

v. Government of Malaya18, an Inspector of Police challenged his dismissal on

the ground that the disciplinary proceedings were not conducted in accordance

with the principles of natural justice. It was contended that he did not have

knowledge of the contents of the enquiry report that was before the adjudicating

officer. The crux of the case was whether his lack of knowledge of the contents of

the report led to a likelihood of bias – both conscious and unconscious. The Court

held that the likelihood of bias test cannot be solely used to determine the violation

of natural justice. The Court held that it is not necessary that the accused must

prove bias or prejudice. Rather, it is sufficient if the non-disclosure would lead to a

possibility of bias and prejudice since “no one who has lost a case will believe he

has been fairly treated if the other side has had access to the judge without his

knowing.” The House of Lords held that non-disclosure of information is per se

violative of the principles of fair trial.

39 Legitimacy of the decision and decision making authority: When a decision is

formed following the principles of natural justice, there is a perception that the

decision is accurate and just. It preserves the integrity of the system as the

decisions, in addition to being fair, also ‘appear’ to be fair. The perception of the

general public that the decisions appear to be fair is important in building public

confidence in institutions, which aid in securing the legitimacy of the courts and

other decision making bodies.19

18 (1962) 28 MLJ 169 19 Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials (3rd ed. Oxford University

Press)

PART E

40 Dignity of individuals: Non-outcome values, that is, values that are independent of

the accuracy and soundness of the verdict, are intrinsically important. The

principles of fairness ‘express the elementary idea that to be a person, rather than

a thing, is at least to be consulted about what is done with one’.20 D.J Galligan in

his book “Due Process and Fair Procedures: A Study of Administrative

Procedures”21 explains that to insist on fair treatment is implicit on a renewed

understanding of the relationship between citizens and the State:

“ It builds on the idea of decision-making as a social

process rather than a purely logical activity, on the inherent

indeterminacy and contingency of standards… to insist on

fair treatment of persons by administrative bodies is to

draw on those implicit commitments and understandings

at the very base of the relationship between the citizen and

the State.”

TRS Allan argues that more often than not, the right outcome is itself a matter of

controversy. It is possible to arrive at divergent views, both of which are

reasonable. He argues that when procedures allow the genuine participation and

contestation of ideas, a citizen is treated with respect and dignity that they deserve

in a society that is governed by the rule of law.

41 Indian Courts have been significantly influenced by the courts in England on the

interpretation, application, and content of natural justice, primarily because the

principles are derived from common law and are grounded in the rule of law. The

jurisprudential developments across other common law jurisdictions relating to the

principles of natural justice usually, if not always, spill over to Indian jurisdiction.

20 Laurence Tribe, American Constitution Law (2nd ed.). Pg. 666 21 DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon Press 1996) 22 TRS Allan, Procedural Fairness and the Duty of Respect (Oxford Journal of Legal Studies) p. 510

PART E

Our Courts were soon to follow suit when the courts in England made a functional

distinction between executive and non-judicial23 actions and between an action that

deprives rights and an action that deprives privilege24 for deciding the applicability

of the principles of natural justice. In Ridge v. Baldwin25, the House of Lords

repudiated the functional distinction based on the nature of the adjudicating body

and held that the duty to act judicially in compliance with the principles of natural

justice can be inferred from the nature of the decision and not the nature of the

decision-making body. Courts have with time substituted the usage of the

terminology of the principles of natural justice with the doctrine of ‘fairness’

because natural justice is encapsulated in the doctrine of fariness; as Justice

Bhagwati termed it, “fair-action in play”.26

42 The duty to act fairly that is derived from common law is not exhaustively defined

in a set of concrete principles. Courts, both in India and abroad, have demonstrated

considerable flexibility in the application of the principles of natural justice by finetuning them to situational variations. This Court has observed earlier that the

concept of natural justice cannot be put into a ‘straitjacket formula’27 and that it is

incapable of a ‘precise definition’28. Courts have undertaken an ends-based

reasoning to test if the action violates the common law principle of natural justice29.

The party alleging a violation of a principle of natural justice has to prove that the

administrative action violated the principles of natural justice and that non23 The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff, (1920) 3 K.B. 72 24 Nakkuda Ali v. MF De S Jayaratne, [1951] AC 66 25 [1964] A.C 40 26 Justice Bhagwati in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (paragraph 9) 27 NK Prasada v. Government of India, (2004) 6 SCC 299 28 Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC 258 29 Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural Justice and

Fundamental Rights, (Volume 16, Issue 2, International Journal of Constitutional Law, 2018, p. 475–502

PART E

compliance with natural justice prejudiced the party.30 The courts, while assessing

prejudice, determine if compliance of the principles of natural justice could have

benefitted the party in securing a just outcome. It needs to be seen if this content

of natural justice and the standard for judicial review of non-compliance has

undergone a change after principles of natural justice were constitutionalized in

Maneka Gandhi v. Union of India31 .

E. 2 Constitutionalizing principles of natural justice: the impact of Maneka

Gandhi

43 Two jurisprudential developments on the interpretation of Part III of the Constitution

must be noticed to understand the impact of constitutionalising the principles of

natural justice. The first, is the expansion of the meaning of the expression

‘procedure established by law’ as it finds place in Article 21 of the Constitution to

include procedural due process. The second, is the shift from reading the

provisions of Part III of the Constitution as isolated silos to understanding the

overlapping tendencies of fundamental rights.

44 In AK Gopalan v. State of Madras32, the appellant contended that the phrase

‘procedure established by law’ as it finds place in Article 21 includes within its ambit

the principles of natural justice. While the majority rejected this contention, Justice

Fazl Ali in his celebrated dissent held that the expression ‘procedure established

by law’ cannot be given a limited meaning. The learned Judge observed that the

phrase must include procedural due process which includes (i) issuance of a notice

30 NK Prasada (n 27) 31 Maneka Gandhi (n 26) 32 AIR 1950 SC 27

PART E

(ii) an opportunity to be heard; (iii) an impartial tribunal; and (iv) an orderly course

of procedure. Justice Fazl Ali’s opinion was followed by this Court in Maneka

Gandhi (supra). In Maneka Gandhi (supra), it was held that the life and liberty of

a person cannot be restricted by any procedure that is established by law but only

by a procedure that is just, fair, and reasonable. In that case, the appellant

challenged the order of the Regional Passport Officer impounding her passport.

The impounding order did not disclose the reasons for such action. The

Government of India declined to disclose its reasons for the action by relying on

Section 10(5) of the Passports Act 1967 which stipulates that the reason for

impounding the passport may not be given where the passport authority is of the

opinion that the disclosure of reasons is not in the interests of the sovereignty and

integrity of India, security of India, friendly relations of India with any foreign country

or in the interest of general public. The appellant filed a writ petition, inter alia,

challenging the action of the Government of India declining to give reasons.

45 This Court observed that the right to go abroad is an extension of the right to life

and personal liberty protected under Article 21 of the Constitution. This right, it was

observed, can only be taken away by a procedure that is not unfair, arbitrary, and

unreasonable. Relying on the judgment of a Constitution Bench of this Court in RC

Cooper v. Union of India33 which had held that fundamental rights are not watertight compartments, it was observed that the principle of reasonableness that is

guaranteed under Article 14 of the Constitution projects on the procedure that is

33 (1970) 1 SCC 248

PART E

contemplated by Article 21. Thus, every individual has a right to a reasonable

hearing:

“[..] we find that even on principle the concept of

reasonableness must be projected in the procedure

contemplated by Article 21, having regard to the impact of

Article 14 on Article 21. […] The principle of

reasonableness, which legally as well as philosophically,

is an essential element of equality or non-arbitrariness

pervades Article 14 like a brooding omnipresence and the

procedure contemplated by Article 21 must answer the test

of reasonableness in order to be in conformity with Article

14. It must be “right and just and fair” and not arbitrary,

fanciful or oppressive; otherwise, it .would be no procedure

at all and the requirement of Article 21 would not be

satisfied.”

This Court held that principles of natural justice infuse reasonableness into the

procedure. However, the court noted that the principles of natural justice are not

set-in stone and are by their very nature modifiable. So, the violation of every

conception of natural justice will not necessarily render the procedure

unreasonable and violative of Articles 21 and 14. The court held that the test that

must be followed to determine if non-compliance of natural justice has led to an

unreasonable procedure is whether the procedure that was followed (or the

procedure that was not followed) violates the core of the primary tenets of natural

justice- the right to a fair hearing34 and the right against bias.

46 On the facts of the case, Justice Bhagwati held that the procedure for impounding

a passport under the provisions of the Passport Act 1967 was fair and just. The

learned Judge held that the denial of pre-decisional hearing was justified because

otherwise, the purpose of impounding the passport which is to take prompt action

34 See Zahira Habibulla H Sheikh v. State of Gujarat, (2004) 4 SCC 158, where this Court recognized the right to

fair trial.

PART E

would be defeated, and that the exceptional circumstances reasonably justified the

departure from the settled principle of pre-decisional hearing.

47 The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal

shifts on procedural fairness because of the constitutionalising of natural justice.

Firstly, procedural fairness was no longer viewed merely as a means to secure a

just outcome but a requirement that holds an inherent value in itself. In view of this

shift, the Courts are now precluded from solely assessing procedural infringements

based on whether the procedure would have prejudiced the outcome of the case.

Instead, the courts would have to decide if the procedure that was followed

infringed upon the right to a fair and reasonable procedure, independent of the

outcome. In compliance with this line of thought, the courts have read the principles

of natural justice into an enactment to save it from being declared unconstitutional

on procedural grounds.36 Secondly, natural justice principles breathe

reasonableness into the procedure. Responding to the argument that the principles

of natural justice are not static but are capable of being moulded to the

circumstances, it was held that the core of natural justice guarantees a reasonable

procedure which is a constitutional requirement entrenched in Articles 14,19 and

21. The facet of audi alterum partem encompasses the components of notice,

contents of the notice, reports of inquiry, and materials that are available for

perusal. While situational modifications are permissible, the rules of natural justice

cannot be modified to suit the needs of the situation to such an extent that the core

35 SL Kapoor v. Jagmohan, (1980) 4 SCC 379; “The non-observance of natural justice is itself prejudice to any man

and proof of prejudice independently of proof of denial of natural justice is unnecessary; also see Swadeshi Cotton

Mills v. Union of India, AIR 1981 SC 818.

36 Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545); C B Gautam v. Union of India (1993) 1 SCC

78; Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I (2008) 14 SCC 151; Kesar Enterprises

Ltd v. State of Uttar Pradesh (2011) 13 SCC 733

PART E

of the principle is abrogated because it is the core that infuses procedural

reasonableness. The burden is on the applicant to prove that the procedure that

was followed (or not followed) by the adjudicating authority, in effect, infringes upon

the core of the right to a fair and reasonable hearing.

E. 3 Standard to test reasonableness of procedure: proportionality as

reasonableness

48 Once the applicant proves that the procedure that was followed was not reasonable

with reference to the core of the principles of natural justice, the burden shifts on

the State to prove that the limitation of the right is justified and reasonable. The

State usually claims that the limitation of the right is justified because following a

fair procedure would, inter alia, be prejudicial to public interest. What standard of

review should the courts employ to test the reasonableness of the limitation?

Rights are not absolute in a constitutional democracy. The jurisprudence that has

emanated from this Court is that rights can be limited but such a limitation must be

justified on the ground of reasonableness. Though, only Article 19 of the

constitution expressly prescribes that the limitation must be reasonable, after the

judgments of this Court in RC Cooper(supra) and Maneka Gandhi (supra) it is

conclusive that the thread of reasonableness runs through the entire chapter on

fundamental rights guiding the exercise of procedural and substantive limitations.

That leaves us to answer the question of the standard used to assess the

‘reasonableness’ of the limitation. The text of the Constitution does not prescribe a

standard of review. Much ink has flowed from this Court in laying down the varying

37 See paragraph 12 of Justice Bhagwati’s judgment in Maneka Gandhi.

PART E

standards to test reasonability: rationality, Wednesbury unreasonableness,

proportionality, and strict scrutiny.

49 Reasonableness is a normative concept that is identified by an evaluation of the

relevant considerations and balancing them in accordance with their weight.38 It is

value oriented and not purpose oriented. That is why the courts have been more

than open in identifying that the action is unreasonable rather than identifying if the

action is reasonable.39 This is also why the courts while assessing the

reasonableness of limitations on fundamental rights have adopted a higher

standard of scrutiny in the form of proportionality40. The link between

reasonableness and proportionality and the necessity of using the proportionality

standard to test the limitation on fundamental rights has been captured by Justice

Jackson in the course of the Canadian Supreme Court’s judgment in R v. Oakes41:

“To establish that a limit is reasonable and demonstrably

justified in a free and democratic society, two central

criteria must be satisfied. First, the objective, which the

measures, responsible for a limit on a Charter right or

freedom are designed to serve, must be “of” sufficient

importance to warrant overriding a constitutionally

protected right or freedom...Second … the party invoking

Section 1 must show that the means chosen are

reasonable and demonstrably justified. This involves “a

form of proportionality test.”

(emphasis supplied)

38 Aharon Barak, Proportionality: Constitutional Rights and their limitations (Cambridge University Press, 2012),

374.

39 Giacinto della Cananea, Reasonableness in Administrative law in Reasonableness and Law (ed. by Giorgio

Boniovanni, Giovanni Sartar, Chiara Valentini)

40 Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 4 SCC 346 , Justice KS

Puttaswamy v. Union of India, (2017) 10 SCC 1 41 (1986) 1 SCR 103; This passage was quoted with affirmation in the judgment of the Constitution bench in Modern

Dental.

PART E

50 The proportionality analysis assesses both the object and the means utilised, which

are pertinent requirements while testing an infringement of fundamental rights. This

Court has held that the proportionality standard can be used to assess the validity

of administrative action infringing upon fundamental freedoms.42 However, the

courts have till date used the proportionality standard to only test the infringement

of a substantive right such as the right to privacy protected under Article 21, and

the freedoms protected under Article19. Courts have been using a vague and

unstructured standard of the reasonableness test to assess the validity of

limitations on procedural due process.

51 We are of the opinion that the standard of proportionality must be used to assess

the reasonableness of the limitation of procedural rights as well. The courts have

to undeniably undertake a balancing exercise while deciding if the limitation on the

right is valid. A three-Judge Bench of this Court in MH Hoskot v. State of

Maharashtra43, observed that procedural reasonableness does not have an

abstract standard of reasonableness. It must be assessed on the touchstone of

numerous factors. The factors list the considerations that are undertaken in the

balancing stage. The relevant observations are extracted below:

“28. […] The nature of the right infringed, the underlying

purpose of the restrictions imposed, the extent and

urgency of the evil sought to be remedied thereby, the

disproportion of the imposition, the prevailing conditions at

the time, all provide the basis for considering the

reasonableness of a particular provision. The procedure

embodied in the Act has to be judged in the context of the

urgency and the magnitude of the problem, the underlying

purpose of the restrictions and the prevailing conditions.”

42 Om Kumar (n 16) ; Teri Oat Estates (P) Ltd. V. UT, Chandigarh, (2004) 2 SCC 130. 43 (1978) 3 SCC 544

PART F

52 The judgments of this Court in Justice KS Puttaswamy (9J) (supra) and Modern

Dental College & Research Centre v. State of Madhya Pradesh44, establishing

the proportionality standard to test the reasonableness of the infringements on

substantive rights do not preclude the application of the proportionality standard to

test the reasonableness of limitations on procedural guarantees. The standard of

proportionality infuses a culture of justification, where the State has to discharge

the burden of justifying that its action was reasonable and not arbitrary.45 Once the

principle of reasonableness is read into procedural requirements, there is no

reason for the court to use different standards to test the reasonability of

substantive and procedural actions.

F. Infringement of MBL’s right to a fair hearing

53 MBL contends that the principles of a reasoned order, disclosure of relevant

material, and open justice have been infringed by the order of the MIB and the

judgment of the High Court. It is contended that the abrogation of these three

principles infringe upon the right to a fair hearing which constitutes the core of the

procedural requirements protected under Article 21:

(i) Reasoned order: In the present case, the notice to show cause states

that MHA has denied security clearance to MBL to operate its channel,

Media One. However, it does not mention the reasons for the denial of

security clearance. Further, the order dated 31 January 2022 denying the

permission for renewal of license also does not provide reasons for the

44 (2016) 7 SCC 353 45 See Justice Chandrachud’s opinion in Justice KS Puttaswamy (5J) v. Union of India (5 J), (2019) 1 SCC 1 (para

310)

PART F

denial of security clearance. In such circumstances, MIB was put in a

precarious position without any actual recourse to defend the case

against them;

(ii) Disclosure of material relevant to the decision: MHA declined to disclose

any material that was relevant to its decision. The claim of non-disclosure

of relevant documents by MHA was not limited to a few ‘top secret’

documents. Rather, all documents that were relevant to the decision

have not been disclosed; and

(iii) Open Justice: MHA disclosed the documents in a sealed cover to the

High Court. The High Court dismissed the writ petition by relying on the

material that was disclosed solely to it in sealed cover. The relevant

material is not removed from the proceedings. The material is only

removed from the affected party’s docket. The party defending its

actions, which most often is the State, and adjudicating authority rely on

the material while making arguments and while reaching a finding

respectively.

54 An ancillary question that must be answered at this stage is whether the three

alleged procedural infractions have to be individually or collectively assessed to

decide if the right to a fair and reasonable hearing is violated. We are of the opinion

that the court must determine if the procedure that was followed as a whole is fair

and reasonable. After the judgment of this court in Maneka Gandhi (supra), where

this court prioritised the process (and the effect of the process) as opposed to the

outcome (and the objective of the outcome), it is sufficient if the affected party

PART F

proves that the procedure that was followed by the adjudicating authority was not

procedurally fair and reasonable without any reference to the impact on the

outcome due to non-compliance. While doing so, it is well within the power of the

claimant to argue that multiple facets of the right to a fair trial were infringed.

However, the court while undertaking the exercise of assessing the validity of such

a claim must view violation claims from a holistic procedural perspective. This is

for the simple reason that the principles of natural justice are mouldable. The

requirement of procedural fairness “does not impose a uniform, unvarying standard

to be applied irrespective of the context, facts, and circumstances.46 Adjudicatory

bodies must be provided sufficient flexibility in deciding procedural requirements.

As observed above, a non-compliance of every facet and component of natural

justice does not render the procedure unreasonable. The claimant must prove that

the effect of non-compliance of a component of natural justice is so grave that the

core of the right to a fair trial is infringed while making an argument from a

component-facet perspective. The procedure followed must not infringe upon the

core which secures reasonableness of a procedure.

55 The appellants have discharged their burden by proving that the non-compliance

of the above three principles infringed the core of the principles of natural justice:

the right to a fair and reasonable hearing.

56 The principles of natural justice ensure that justice is not only done but it is seen to

be done as well. A reasoned order is one of the fundamental requirements of fair

administration. It holds utmost significance in ensuring fairness; scholars and

46 A & Ors. v. The United Kingdom, Application no. 3455/05

PART F

courts now term it as the third principle of natural justice.

47 The rule of a reasoned

order serves five important purposes. Firstly, it ensures transparency and

accountability. It places a check on arbitrary exercise of power. Lord Denning

observed that in giving reasons “lies a whole difference between a judicial decision

and an arbitrary one”.48 Justice Bhagwati observed in Maneka Gandhi (supra) that

the rule is “designed to secure the rule of law and the court should not be too ready

to eschew it in its application to a given case.” Secondly, non-reasoned orders

have the practical effect of placing the decision out of the purview of judicial review.

A non-reasoned order limits the power of the courts to exercise judicial review

because the scope of judicial review is not limited to the final finding on law or facts

but extends to the reasons to arrive at the finding. A limitation on the right to appeal

necessarily means that the scope of judicial review is restricted. Thirdly, articulation

of reasons aids in arriving at a just decision by minimalizing concerns of arbitrary

state action.49 It introduces clarity of thought50 and eschews irrelevant and

extraneous considerations. Fourthly, it enhances the legitimacy of the institution

because decisions will appear to be fair. There is a higher probability that the

finding through a reasoned order is just. Fifthly, reasoned orders are in furtherance

of the right to information and the constitutional goal of open government. Secrecy

broods partiality, corruption and other vices that are antithetical to a governance

model that is premised on the rule of law.

47 See SN Mukherjee v. Union of India, (1990) 4 SCC 594; Seimens Engineering and Manufacturing Company v.

Union of India, (1976) 2 SCC 981; CCI v. SAIL (2010) 10 SCC 744; Kranti Associates v. Masood Ahmed Khan,

2010 9 SCC 496

48 Sir Alfred Denning, Freedom Under the Law (Stevens and Sons 1949) p. 92 49 Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Dharan Varshney, (2009) 4 SCC 240 50 State of West Bengal v. Alpana Roy, (2005) 8 SCC 296

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57 On the facts of the case, MIB has denied to disclose even the summary of the

reasoning denying security clearance. This has necessarily left MBL with no

remedy. It is crucial to note that the freedom of press which is protected under

Article 19(1)(a) has effectively been trumped without providing them with an

effective and reasonable avenue to challenge the decision. This infringes upon the

core of a right to fair hearing. The appellants have proved that the disclosure of

reasons is necessary for them to have a reasonable hearing. The reply to the show

cause notice and the writ petition challenging the validity of the revocation order

also indicate that the appellants have been constrained in a situation where they

are unable to effectively lay a challenge against the decision.

58 MHA disclosed the material forming the opinion for denying of security clearance

solely to the High Court. The High Court instead of deciding if any other less

restrictive but equally effective means could have been employed, straight away

received the material in a sealed cover without any application of mind. It is now

an established principle of natural justice that relevant material must be disclosed

to the affected party. This rule ensures that the affected party is able to effectively

exercise their right to appeal. When the state government claims non-disclosure

on the ground of public interest under Section 124 of the Evidence Act, the material

is removed from the trial itself. As opposed to this method, when relevant material

is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the

documents are not available to the affected party. Second, the documents are

relied upon by the opposite party (which is most often the state) in the course of

the arguments, and the court arrives at a finding by relying on the material. In such

a case, the affected party does not have any recourse to legal remedies because

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it would be unable to (dis)prove any inferences from the material before the

adjudicating authority.

59 This form of adjudication perpetuates a culture of secrecy and opaqueness, and

places the judgment beyond the reach of challenge. The affected party would be

unable to “contradict errors, identify omissions, challenge the credibility of

informants or refute false allegations”.51 The right to seek judicial review which has

now been read into Articles 14 and 21 is restricted. A corresponding effect of the

sealed cover procedure is a non-reasoned order. In Commander Amit Kumar

Sharma v. Union of India52, one of us (DY Chandrachud, J) speaking for the court

commented on the procedural infirmities which the procedure of sealed cover

perpetuates:

“27. The elementary principle of law is that all material

which is relied upon by either party in the course of a

judicial proceeding must be disclosed. Even if the

adjudicating authority does not rely on the material while

arriving at a finding, information that is relevant to the

dispute, which would with ‘reasonable probability’

influence the decision of the authority must be disclosed.

A one-sided submission of material which forms the

subject matter of adjudication to the exclusion of the other

party causes a serious violation of natural justice. In the

present case, this has resulted in grave prejudice to

officers whose careers are directly affected as a

consequence.

28. The non-disclosure of relevant material to the affected

party and its disclosure in a sealed-cover to the

adjudicating authority (in this case the AFT) sets a

dangerous precedent. The disclosure of relevant material

to the adjudicating authority in a sealed cover makes the

process of adjudication vague and opaque. The disclosure

in a sealed cover perpetuates two problems. Firstly, it

denies the aggrieved party their legal right to effectively

51 Charkaoui v. Canada (Citizenship and Immigration), (2007) 1 S.C.R 350 52 (2022) SCC OnLine SC 1570

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challenge an order since the adjudication of issues has

proceeded on the basis of unshared material provided in a

sealed cover. The adjudicating authority while relying on

material furnished in the sealed cover arrives at a finding

which is then effectively placed beyond the reach of

challenge. Secondly, it perpetuates a culture of

opaqueness and secrecy. It bestows absolute power in the

hands of the adjudicating authority. It also tilts the balance

of power in a litigation in favour of a dominant party which

has control over information. Most often than not this is the

state. A judicial order accompanied by reasons is the

hallmark of the justice system. It espouses the rule of law.

However, the sealed cover practice places the process by

which the decision is arrived beyond scrutiny. The sealed

cover procedure affects the functioning of the justice

delivery system both at an individual case to - case level

and at an institutional level.”

60 Upon a perusal of the material in sealed cover, the Single Judge of the High Court

observed that the files submitted by MHA indicate that the Committee of Officers

took note of the inputs provided by intelligence agencies and “found that the inputs

are of a serious nature and fall under the security rating parameters.” The Single

judge observed that “in those circumstances, the Committee of Officers advised

not to renew the licence”. The Single Judge does not provide any clarity on the

nature of the ‘inputs that were of a serious nature’. Additionally, there is no mention

of the security rating parameters that have been relied on. A non-reasoned order

perpetuates the non-application of judicial mind in assessing the veracity of the

inputs. The nexus of the reasons to the order cannot be adjudicated upon if the

reasons are not disclosed.

61 On appeal, the Division Bench of the High Court observed that though the nature

and gravity of the issue is not discernible from the files, there are clear indications

that the security of the state and public order would be impacted if the permission

granted to MBL to operate the channel is renewed. The Division Bench has also

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not disclosed the reasons for the denial of security clearance. There is no

explanation of what weighed in the mind of the court leading it to hold that the

denial of clearance was justified despite observing that the nature and gravity of

the issue is not discernible. The sealed cover procedure followed by the Single

Judge and the Division Bench have necessarily rendered the appellant’s right to

writ remedies, which has been described as the ‘heart and soul’ of the

Constitution53 and a basic feature of the constitution54, a dry parchment. The nondisclosure of reasons for the denial of security clearance which is the sole ground

for denying the permission to renew the license and the disclosure of relevant

material only to the court in a sealed cover has rendered the appellant’s procedural

guarantees under the Constitution otiose. The appellants’ right to writ remedies

has been denied through a formalistic order by the High Court. The procedure that

was followed by the High Court has left the appellants in a maze where they are

attempting strenuously to fight in the dark. The non-disclosure of reasons for denial

of security clearance to the appellants and the disclosure solely to the Court in a

sealed cover has restricted the core of the principles of the natural justice - the right

to a fair and reasonable proceeding.

G. Whether the infringement of MBL’s right to a fair hearing is justified

62 The ASG in the statement filed before the High Court stated that the reasons for

denial of security clearance cannot be disclosed because (i) intelligence inputs on

the basis of which security clearance was denied are ‘secret and sensitive’; and (ii)

in the interest of national security. It has thus been submitted that the principles of

53 Dr BR Ambedkar, Constituent Assembly of India Debates (Vol. VII, 9 December 1948 54 L. Chandra Kumar v. Union of India, (1995) 1 SCC 400

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natural justice stand abrogated because: firstly, the decision is based on

intelligence inputs which are ‘sensitive’ in nature from security and intelligence

agencies; and secondly, these inputs are in the interest of national security. The

Union of India has relied on the judgments of this Court in Ex-Armymen’s

Protection Services (supra) and Digi Cable Network (supra) to contend that the

principles of natural justice will not apply when considerations of national security

are involved. The validity of this argument has to be assessed before deciding if

the State has discharged its burden justifying that the infringements on procedural

guarantees are reasonable.

G. 1 Natural justice and national security: decisions in Digi and Ex-armymen

63 In Ex-Armymen’s Protection Services (supra), the appellant was granted the

business of ground handling services. Rule 92 of the Aircraft Rules 1937 stipulates

that the business shall be provided subject to security clearance. The appellant

was informed that security clearance was withdrawn on grounds of ‘national

interest’. The appellant initiated proceedings under Article 226 of the Constitution

before the High Court of Patna. The writ petition was disposed with a direction that

the appellant should be furnished materials that were relied on by the Central

Government for withdrawal of security clearance. However, the Central

Government passed an order that the documents in the file were classified as

‘secret’ and could not be shared with the appellant. The documents were placed in

a ‘sealed cover’ before the Single Judge of the High Court. On a perusal of the

documents, the Single Judge directed that a gist of the allegations be disclosed.

The Division Bench of the High Court allowed the appeal and held that the

materials could not be disclosed to the appellant in national interest. The appellant

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initiated proceedings under Article 136. A two-Judge Bench of this Court dismissed

the proceedings. Justice Kurian Joseph writing for the Bench observed that if

concerns of national security are involved, then the party cannot ‘insist on the strict

observance of the principles of natural justice’. It was further observed that it is

open to the Court to satisfy itself that the claim of the government that national

security is involved is indeed true. This Court relied on the judgments in the

Zamora55 and Secretary of State for Home Department v. Rehman56 to hold

that deference must be given to the Government’s decision when it is of the opinion

that issues of national security are involved. However, it was held that the Court

may call for records to satisfy itself that issues of national security are involved.

Further, the judgment in Council of Civil Service Unions v. Minister of Civil

Service57 was relied on to hold that strict observance of the principles of natural

justice may not be possible when national security is involved. It is important to

note that this Court did not decide on the factual considerations in the matter

because the security clearance that was granted to the appellant had already

expired. The relevant observation is extracted below:

“16. What is in the interest of national security is not a

question of law. It is a matter of policy. It is not for the court

to decide whether something is in the interest of the State

or not. It should be left to the executive. To quote Lord

Hoffman in Secy. of State for Home

Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 :

(2002) 1 All ER 122 (HL)] : (AC p. 192C)

“… [in the matter] of national security is not a question

of law. It is a matter of judgment and policy. Under the

Constitution of the United Kingdom and most other

countries, decisions as to whether something is or is not in

55 (1916) 2 AC 77(PC) 56 (2003) 1 AC 153 57 1985 AC 374

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the interests of national security are not a matter for judicial

decision. They are entrusted to the executive.”

17. Thus, in a situation of national security, a party cannot

insist for the strict observance of the principles of

natural justice. In such cases, it is the duty of the court to

read into and provide for statutory exclusion, if not

expressly provided in the rules governing the field.

Depending on the facts of the particular case, it will

however be open to the court to satisfy itself whether

there were justifiable facts, and in that regard, the

court is entitled to call for the files and see whether it

is a case where the interest of national security is

involved. Once the State is of the stand that the issue

involves national security, the court shall not disclose

the reasons to the affected party.

18. Be that as it may, on facts we find that the security

clearance granted to the appellant by order dated 17-4-

2007 for a period of five years has already expired. To

quote:

“I am directed to inform you that background check on the

company has been conducted and nothing adverse has

been found. The Company's security clearance shall

be valid for a period of five years from the date of this letter

at the end of which a fresh approval of this Bureau is

mandatory.”

(emphasis supplied)

19. In that view of the matter, it has become unnecessary

for this Court to go into more factual details and

consideration of the appeal on merits. The same is

accordingly disposed of. There is no order as to costs.”

(emphasis supplied)

64 In Digi Cable Network (supra), the permission that was granted to the appellant

for operating as a Multi-Systems Operator in the Digital Addressable System was

cancelled on the ground that MHA denied security clearance to the appellant. The

High Court rejected the challenge to the order of cancellation. The Additional

Solicitor General filed a copy of the reasons for the denial of security clearance in

a sealed cover before this Court. A two-Judge Bench of this Court dismissed the

appeal by relying on the judgment in Ex-Armymen’s Protection Services (supra)

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holding that the appellant was not entitled to claim any prior notice before the order

cancelling the permission was passed :

“16. Having perused the note filed by the Union of India,

which resulted in the cancellation of permission, we are of

the considered opinion that in the facts of this case, the

appellant was not entitled to claim any prior notice before

passing of the cancellation order in question.

17. In other words, we are of the view that the principles of

natural justice were not violated in this case in the light of

the law laid down by this Court in Ex-Armymen’s Protection

Services (P) Ltd. Inasmuch as the appellant was not

entitled to claim any prior notice before cancellation of

permission.”

65 The observation in Ex-Armymen’s Protection Services (supra) that what is in

national security is a question of policy and not law for the courts to decide was

affirmed in the majority opinion in Justice KS Puttaswamy (5J) v. Union of India58

while deciding on the constitutional validity of Section 33 of the Aadhar Act.

66 It must be noted that this Court in Ex-Armymen’s Protection Services (supra)

referred to a series of judgments from the Courts in the United Kingdom to elucidate

the principle that the government is best placed to decide whether national security

concerns are involved; and that principles of natural justice may not be complied

with when issues of national security are involved. The evidentiary principle laid

down by the Courts in the United Kingdom needs to be elucidated in order to

understand the scope of the observations in Ex-Armymen’s Protection Services

(supra).

58 (2019) 1 SCC 1

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67 In The Zamora (supra), a ship that was captured contained contraband in the

cargo. The cargo belonged to the Austrian Government, and was imported into

Sweden. The ship was chartered to a German, who was acting as an agent for the

Austrian Government, and the Swedish consignees were merely playing a part in

the transaction. The right to requisition exists in international law, that is, the right

to requisition vessels pending a decision on whether it must be condemned or

released. One of the limitations to the right to requisition is that vessels must be

urgently required in the defence of the realm or for matters involving national

security. It was in this context that the Privy Council made the widely cited

observation that:

“With regard to the first of these limitations, their Lordships

are of the opinion that the judge ought, as a rule, to treat

the statement on oath of the proper officer of the Crown to

the effect that the vessel or goods which is sought to

requisition are urgently required for use in connection with

the defence of the realm, the prosecution of the war, or

other matters involving national security, as conclusive of

the fact.

[…]

Those who are responsible for the national security must

be the sole judges of what the national security requires. It

would be obviously undesirable that such matters should

be made the subject of evidence in a court of law or

otherwise discussed in public.”

However, the Court put the affidavit that was filed by the Director of Army Contracts

claiming exception to the right to requisition on the grounds of national security to

the test of reason. It was observed that there was ‘no satisfactory evidence’ that

such a right was exercisable:

“In their Lordships’ opinion the order appealed from was

wrong, not because, as contended by the appellants, there

is by international law no right at all to requisition ships or

goods in the custody of the Court, but because the judge

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has before him no satisfactory evidence that such a right

was exercisable. The affidavit of the Director of Army

Contracts, following the words of Order XXIX, merely

states that it is desired on behalf of His Majesty to

requisition the copper in question. It does not state

that the copper is urgently required for national

purposes. Further, the affidavit of Sven Hoglund,

which is unanswered, so far from showing that there

was any real case to be tried, suggests a case for

immediate release.”

(emphasis supplied)

68 In Council of Civil Service Unions (supra), the Minister of Civil Service released

an instruction that employees of the Government Communications Headquarters

cannot be a part of trade unions. This decision was challenged on the ground that

the employees and the trade unions were not consulted before the instruction was

issued. It was submitted that it was a well-established practice for the trade unions

to be consulted before conditions of service are altered.

69 The Government Communications Headquarters is a branch of the Foreign and

Commonwealth Office which ensures the security of the United Kingdom military,

and provides intelligence signals for the Government. The respondent defended

its action on the ground that because “prior consultation would involve a real risk

that it would occasion the very kind of disruption [at GCHQ] which was a threat to

national security and which it was intended to avoid.” The House of Lords observed

that generally the decision of whether the requirements of national security

outweigh the duty of fairness is for the Government and not the courts to decide.

However, this observation was qualified. It was held that the Government is under

an obligation to produce evidence that the decision was based on the grounds of

national security which warranted the departure from the rule of fairness if the

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decision is successfully challenged on the ground that it was arrived by an unfair

process:

“The question is one of evidence. The decision on whether

the requirements of national security outweigh the duty of

fairness in any particular case is for the Government and

not for the courts; the Government alone has access to the

necessary information, and in any event the judicial

process is unsuitable for reaching decisions on national

security. But if the decision is successfully challenged, on

the ground that it has been reached by a process which is

unfair, then the Government is under an obligation to

produce evidence that the decision was in fact based on

grounds of national security. Authority for both these points

is found in The Zamora [1916] 2 A.C. 77.”

On a perusal of the evidence on record, the Court was satisfied that the departure

was justified because it involved national security concerns.

70 Lord Scarman in his opinion observed that the observations in The Zamora (supra)

were not indicative of an abdication of judicial function but were an indication that

evidence was required by the Court. In this context, it was observed that it has to

be established by evidence that the interest of national security arises in judicial

proceedings:

“My Lords, I conclude, therefore, that where a question as

to the interest of national security arises in judicial

proceedings the court has to act on evidence. In some

cases a judge or jury is required by law to be satisfied that

the interest is proved to exist: in others, the interest is a

factor to be considered in the review of the exercise of an

executive discretionary power. Once the factual basis is

established by evidence so that the court is satisfied

that the interest of national security is a relevant factor

to be considered in the determination of the case, the

court will accept the opinion of the Crown or its

responsible officer as to what is required to meet it,

unless it is possible to show that the opinion was one

which no reasonable minister advising the Crown

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could in the circumstances reasonably have held.

There is no abdication of the judicial function, but there is

a common sense limitation recognised by the judges as to

what is justiciable: and the limitation is entirely consistent

with the general development of the modern case law of

judicial review.”

(emphasis supplied)

On a perusal of the evidence, it was held that work at the headquarters involved

matters of grave national security, and that if the employees and trade unions were

consulted before the decision then the security would have been compromised.

Lord Scarman observed that the Minister did not consult the employees because

she feared that a union-organised disruption of services could occur. It was held

that this conclusion by the Minister could have been reached reasonably.

71 In Rehman (supra), the appellant, a Pakistani National whose parents were British

citizens, applied for indefinite leave to remain in the United Kingdom. The Secretary

of State refused his application on the ground that he was involved with a terrorist

organization. The Secretary of State also added that his deportation from the

United Kingdom would be conducive to public good and ‘in the interests of national

security’. The Special Immigration Appeals Commission allowed the appeal

against the decision of the Secretary of State observing that the standard of civil

balance of probabilities had not been satisfied. The Commission observed that

though it was not disputed that the appellant provided sponsorship, information

and advice to persons going to Pakistan for training which may have included

militant training, it could not be concluded that these actions constituted a threat to

‘national security’. The Court of Appeal allowed the appeal against the judgment of

the Commission.

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72 The appeal against the judgment of the Court of Appeal was dismissed by the

House of Lords. Lord Slynn of Hadley observed in his opinion that: (i) where the

liberty of the person and the opportunity of his family to remain in the country are

at stake, and when specific actions which have already occurred are relied on, then

it is fair that the civil standard of proof is applied; (ii) when the Secretary of State

decides that a person must be deported for public good, he is entitled to have

precautionary and preventive principles. There must be material on the basis on

which he can reasonably and proportionately conclude that there is a real

possibility that that the activities harm national security; (iii) the Secretary of State

is in the best position to assess the security threat. Due weight must be given to

his assessment. However, his decision is open to review on the above two

grounds; and (iv) It was held in Council of Civil Service Unions (supra) that if it

is contested that the deportation was not based on the grounds of national security,

then the Government must produce evidence to satisfy the Court that the decision

is based on the grounds of national security. However, ‘that is not the issue in the

present case’.

73 Lord Hoffman in his opinion observed that the Commission cannot differ from the

opinion of the Secretary of State on the meaning of national security. That is, the

question of whether for example, the promotion of terrorism in a foreign country by

a United Kingdom resident would be contrary to the interests of national security is

for the Government to decide. Relying on the judgment in Council of Civil Service

Unions (supra), it was held that the decision on the validity of deportation is not

conceded to the Secretary of the State. The Commission has to determine (i) the

factual basis for the executive’s opinion that deportation would be in the interests

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of national security’; (ii) if the decision of the Secretary of the State was one which

a reasonable minister would have arrived at; and (iii) any other legal defence that

was available to the appellant. The relevant observations are extracted below:

54. This does not mean that the whole decision on whether

deportation would be in the interests of national security is

surrendered to the Home Secretary, so as to "defeat the

purpose for which the Commission was set up": see the

Commission's decision. It is important neither to blur nor to

exaggerate the area of responsibility entrusted to the

executive. The precise boundaries were analysed by Lord

Scarman, by reference to Chandler's case in his speech

in Council of Civil Service Unions v Minister for the Civil

Service [1985] AC 374, 406. His analysis shows that the

Commission serves at least three important functions

which were shown to be necessary by the decision

in Chahal. First, the factual basis for the executive's

opinion that deportation would be in the interests of

national security must be established by evidence. It

is therefore open to the Commission to say that there

was no factual basis for the Home Secretary's opinion

that Mr Rehman was actively supporting terrorism in

Kashmir. In this respect the Commission's ability to differ

from the Home Secretary's evaluation may be limited, as I

shall explain, by considerations inherent in an appellate

process but not by the principle of the separation of

powers. The effect of the latter principle is only, subject

to the next point, to prevent the Commission from

saying that although the Home Secretary's opinion

that Mr Rehman was actively supporting terrorism in

Kashmir had a proper factual basis, it does not accept

that this was contrary to the interests of national

security. Secondly, the Commission may reject the Home

Secretary's opinion on the ground that it was "one which

no reasonable minister advising the Crown could in the

circumstances reasonably have held". Thirdly, an appeal

to the Commission may turn upon issues which at no point

lie within the exclusive province of the executive. A good

example is the question, which arose in Chahal itself, as to

whether deporting someone would infringe his rights under

article 3 of the Convention because there was a substantial

risk that he would suffer torture or inhuman or degrading

treatment. The European jurisprudence makes it clear that

whether deportation is in the interests of national security

is irrelevant to rights under article 3. If there is a danger of

torture, the Government must find some other way of

dealing with a threat to national security. Whether a

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sufficient risk exists is a question of evaluation and

prediction based on evidence. In answering such a

question, the executive enjoys no constitutional

prerogative.

(emphasis supplied)

74 The following principles emerge from the above judgements:

(i) The party affected by the decision must establish that the decision was

reached by a process that was unfair without complying with the

principles of natural justice;

(ii) The State can claim that the principles of natural justice could not be

followed because issues concerning national security were involved;

(iii) The Courts have to assess if the departure was justified. For this

purpose, the State must satisfy the Court that firstly, national security is

involved; and secondly, whether on the facts of the case, the

requirements of national security outweigh the duty of fairness. At this

stage, the court must make its decision based on the component of

natural justice that is sought to be abrogated; and

(iv) While satisfying itself of the national security claim, the Courts must give

due weightage to the assessment and the conclusion of the State. The

Courts cannot disagree on the broad actions that invoke national security

concerns - that is, a question of principle such as whether preparation of

terrorist activities by a citizen in a foreign country amounts a threat of

national security. However, the courts must review the assessment of the

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State to the extent of determining whether it has proved through cogent

material that the actions of the aggrieved person fall within the principles

established above.

75 The contention of the respondent that the judgment of this Court in Ex-Armymen’s

Protection Services (supra) held that the principles of natural justice shall be

excluded when concerns of national security are involved is erroneous. The

principle that was expounded in that case was that the principles of natural justice

may be excluded when on the facts of the case, national security concerns

outweigh the duty of fairness. Thus, national security is one of the few grounds on

which the right to a reasonable procedural guarantee may be restricted. The mere

involvement of issues concerning national security would not preclude the state’s

duty to act fairly. If the State discards its duty to act fairly, then it must be justified

before the court on the facts of the case. Firstly, the State must satisfy the Court

that national security concerns are involved. Secondly, the State must satisfy the

court that an abrogation of the principle(s) of natural justice is justified. These two

standards that have emerged from the jurisprudence abroad resemble the

proportionality standard. The first test resembles the legitimate aim prong, and the

second test of justification resembles the necessity and the balancing prongs.

G.2 Application of the proportionality standard

76 Having held that the concerns of national security do not permit an absolute

abrogation of the principles of natural justice, we are now required to assess if the

restriction on procedural guarantees is reasonable on an application of the

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proportionality standard. The proportionality standard as laid down by this Court in

Modern Dental (supra) is as follows:

(i) The measure restricting a right must have a legitimate goal (legitimate

goal stage).

(ii) The measure must be a suitable means for furthering this goal (suitability

or rational connection stage).

(iii) The measure must be least restrictive and equally effective (necessity

stage).

(iv) The measure must not have a disproportionate impact on the right holder

(balancing stage).

G. 2 (a) Legitimate Goal Stage

77 This prong requires an analysis of the legitimacy of the aim that restricts rights. The

aim must be of sufficient importance to override fundamental rights. At this stage,

the State is required to discharge the burden of proving that the action is in

furtherance of an aim that is legitimate. The State is also required to discharge the

additional burden of proving that the action is indeed in furtherance of the legitimate

aim that is contended to be served. The Union of India claims that the reasons and

the documents cannot be disclosed in the interest of national security and

confidentiality of intelligence inputs. The State at this stage is required to prove that

confidentiality and national security are legitimate aims, and that the purposes of

confidentiality and national security are served by non-disclosure.

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78 At this stage, the court has to examine the threshold question whether in a

constitutional democracy, a fundamental right can be limited to realise the purpose

underlying the law or action.59 The criteria for determining proper purpose differs

from one legal system to another. For instance, the South African Constitution

prescribes a general limitation clause which prescribes the general grounds to limit

all fundamental rights.60 The Indian Constitution does not prescribe a general

limitations’ clause. A few of the provisions in Part III such as Article 19 and 25 have

a specific purpose based limitation clause. This does not mean that the provisions

that do not have an express limitation clause are absolute. Other rights that do not

have an express limitation clause can be limited through an implied reading of the

provisions of the Constitution. Our constitutional jurisprudence does not accept the

theory that constitutionally protected rights live and survive in contextual isolation.

Each is linked to the other. Hence, the entire text has to evolve in meaning and

content with the canvas which bears the tapestry.

79 Aharon Barak argues that one of the accepted grounds of proper purpose for the

limitation of rights is public interest (or public good).

61 Though the existence of such

a purpose is never in contention, the content of public interest is unclear. Public

interest, he argues, must reflect the notions of justice and tolerance shared by the

society. The courts while identifying if the purpose is legitimate must not fall into

the den of dominant impulses but instead prioritise purposes in furtherance of

constitutional ideals and values. However, the court must necessarily be cautious

59 Aharon Barak (n 38) 247;Justice Sikri in Modern Dental (paragraph 55) 60 Article 26(1) states that the limitation on human rights should be reasonable and justifiable in an open and

democratic society based on human dignity, equality and freedom.

61 Aharon Barak (n 38 ) 289

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to not cross the thin line between adjudication and policy making. Certain purposes

are absolutely antithetical to public interest in a constitutional democracy. The

Constitution, as we all know, is a living document. Its meaning and the values it

espouses develop with time. The court while determining the purpose must be

cognizant of such developments and must read the Constitution in the sociopolitical context – bearing in mind both history and the prospect of societal change

at the time of interpretation.

80 The Constitution prescribes national security as one of the grounds which can be

used to reasonably restrict rights expressly in the context of Article 19. Further,

other provisions of the Constitution prescribe a departure from principles during

emergency situations that impact national security.

62 Similarly, informational

privacy and confidentiality are now values that have been read into the

Constitution, particularly in view of the decision of a nine Judge Bench in Justice

KS Puttaswamy (9J) (supra) and the enactment of the Right to Information Act

2005. Thus, confidentiality and national security are legitimate goals recognised by

the Constitution for the purpose of limiting procedural rights.

(I) Confidentiality and IB Reports

81 The state has to now prove that these are the two purposes that the state action

seeks to serve. MHA in response to MBL’s request for disclosure of reasons for

denial of security clearance states that the reasons cannot be disclosed because

reports from investigative agencies are “secret” in nature. MHA has made a general

claim that all reports of the investigative agencies are confidential. We are unable

62 Article 359 of the Constitution

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to accept such an argument. Investigative agencies such as the CBI and IB are

required to conduct background checks on innumerable personnel and entities for

a multitude of reasons. The interaction between private individuals and the State

has increased by virtue of which the involvement of intelligence agencies has also

proliferated. The reports of the intelligence agencies are not merely fact-finding

reports. As it would be evident from the extractions of the material below, reports

of investigative agencies make observations and provide inferences on the

conduct of individuals which are then relied upon by the decision making authority.

To argue that reports of the intelligence agencies may contain confidential

information is one thing but to argue that the all such reports are confidential is

another. Such an argument is misplaced and cannot be accepted on the

touchstone of constitutional values. The reports by investigative agencies impact

decisions on the life, liberty, and profession of individuals and entities, and to give

such reports absolute immunity from disclosure is antithetical to a transparent and

accountable system.

(II) National Security

82 The MHA also opined that the relevant material must not be disclosed in the

interest of national security. The issue before us is whether the court can judicially

review this inference, and if it can, the extent of such review. We must refer to the

jurisprudence on the extent of judicial review of national security claims before

assessing if the action serves the purpose of national security.

83 It is now settled that the Courts do not resort to a hands-off approach when it is

claimed that national security implications are involved. In Manohar Lal Sharma

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v. Union of India63, a three-Judge Bench of this Court held that though the extent

of judicial review in matters concerning national security is limited, it does not mean

that the State gets a free pass every time the argument of national security is made.

This Court held that the State must plead on affidavit and prove that disclosure of

information would injure national security. The court observed:

“50. Of course, the Respondent-Union of India may decline

to provide information when constitutional considerations

exist, such as those pertaining to the security of the State,

or when there is a specific immunity under a specific

statute. However, it is incumbent on the State to not only

specifically plead such constitutional concern or statutory

immunity but they must also prove and justify the same in

Court on affidavit. The Respondent-Union of India must

necessarily plead and prove the facts which indicate that

the information sought must be kept in secret as their

divulgence would affect national security concerns. They

must justify the stand that they take before a Court. The

mere invocation of national security by the State does not

render the Court a mute spectator.”

The issue is not whether the inference that national security concerns are involved

is judicially reviewable. It is rather on the standard of proof that is required to be

discharged by the State to prove that national security concerns are involved. It is

necessary that we understand the meaning and implications of the term national

security before embarking on an analysis of the issue. This Court has held that it

is not possible to define national security in strict terms.64 National security has

numerous facets, a few of which are recognised under Article 19(2) of the

Constitution. In Ex-Armymen’s Protection Services (supra), a two-Judge Bench

of this Court observed that the phrase national security would include factors like

‘socio-political stability, territorial integrity, economic stability and strength,

63 2021 SCC OnLine SC 985 64 AK Roy v. Union of India, (1982) 1 SCC 271

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ecological balance cultural cohesiveness and external peace. Justice Patanjali

Sastri writing for the majority in Romesh Thappar v. State of Madras65

demarcated the fields of ‘public order’ and ‘security of state’ as they find place in

Article 19 of the Constitution. This Court held that the expression ‘security of the

state’ was defined to include a ‘distinct category of those offences against public

order which aim at undermining the security of the State or overthrowing it’. In Ram

Manohar Lohia v. State of Bihar66, Justice M Hidayatullah (as the learned Chief

Justice then was) distinguished the expressions ‘security of State’, ‘law and order’,

and ‘public disorder’. He observed that disorders affecting the security of State are

more aggravated than disorders that affect public order and law and order:

55. It will thus appear that just as “public order” in the

rulings of this Court (earlier cited) was said to comprehend

disorders of less gravity than those affecting “security of

State”, “law and order” also comprehends disorders of less

gravity than those affecting “public order”. One has to

imagine three concentric circles. Law and order

represents the largest circle within which is the next

circle representing public order and the smallest circle

represents security of State. It is then easy to see that

an act may affect law and order but not public order

just as an act may affect public order but not security

of the State. By using the expression “maintenance of law

and order” the District Magistrate was widening his own

field of action and was adding a clause to the Defence of

India Rules.

(emphasis supplied)

84 Thus, the expression national security does not have a fixed meaning. While courts

have attempted to conceptually distinguish national security from public order, it is

impossible (and perhaps unwise) to lay down a text-book definition of the

65 1950 SCC 436 66 AIR 1966 SC 740

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expression which can help the courts decide if the factual situation is covered within

the meaning of the phrase. The phrase derives its meaning from the context. It is

not sufficient for the State to identify its purpose in broad conceptual terms such

as national security and public order. Rather, it is imperative for the State to prove

through the submission of cogent material that non-disclosure is in the interest of

national security. It is the Court’s duty to assess if there is sufficient material for

forming such an opinion. A claim cannot be made out of thin air without material

backing for such a conclusion. The Court must determine if the State makes the

claim in a bona fide manner. The Court must assess the validity of the claim of

purpose by determining (i) whether there is material to conclude that the nondisclosure of the information is in the interest of national security; and (ii) whether

a reasonable prudent person would arrive at the same conclusion based on the

material67. The reasonable prudent person standard which is one of the lowest

standards to test the reasonableness of an action is used to test national security

claims by courts across jurisdictions because of their deferential perception

towards such claims. This is because courts recognise that the State is best placed

to decide if the interest of national security would be served. The court allows due

deference to the State to form its opinion but reviews the opinion on limited grounds

of whether there is nexus between the material and the conclusion. The Court

cannot second-guess the judgment of the State that the purpose identified would

violate India’s national security. It is the executive wing and not the judicial wing

67 This standard of judicial review is derived from the standard that has been laid down on the limited extent of

justiciability of the aid and advice of the council of ministers to the President/Governor. Refer to the judgment of

the Constitution Bench in BP Singhal v. Union of India, (2010) 6 SCC 331: Paragraph 79.

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that has the knowledge of India’s geo-political relationships to assess if an action

is in the interest of India’s national security.

85 We now proceed to assess if on the facts of the case, there is sufficient material to

conclude that the action is in furtherance of the interests of confidentiality and

national security, as contended.

(III) Opening the sealed cover

86 In 2010, MBL applied for permission to uplink and downlink the news and current

affairs television channel ‘Media One’. According to the Uplinking and Downlinking

Guidelines, the application would be sent for security clearance if the applicant is

eligible according to the information provided.68 MBL’s application was sent for

security clearance. Central Bureau of Investigation69 remarked that there was

nothing adverse that was found on the record against MBL. However, the

Intelligence Bureau70 made the following adverse remarks against MBL:

(i) MBL is closely associated with ‘Madhyamam Daily’ which has links to

Jamaat-e-Islami71;

(ii) The tenor of articles carried out by ‘Madhyamam Daily’ was of an adverse

nature from the security perspective;

(iii) A few of the key executives of the applicant had associated with JEI-H;

and

68 Paragraph 9.2 of the Uplinking Guidelines and Paragraph 8.2 of the Downlinking Guidelines 69 “CBI” 70 “IB” 71 “JEL/H”

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(iv) The proposed TV channel may espouse the ideology of JEI/H if

permitted to operate.

87 IB also submitted a note on the alleged role and activities of JEI-H. The note stated

that:

(i) JEI-H was formed in 1941 with the objective of securing the rule of Allah.

After the partition of the Indian sub-continent, JEI formed units in India,

Pakistan, and Kashmir. JEI-H is opposed to secularism, democracy, and

socialism;

(ii) JEI-H was banned: (i) In 1955 for anti-national activities in Kashmir. The

ban was lifted in 1955; (ii) In 1975 under the Defence and Internal

Security Rules 1971. The ban was lifted in 1977; and (iii) In 1992, under

the Unlawful Activities (Prevention) Act 196772. The Supreme Court

nullified the ban in 1994;

(iii) JEI-H plays a crucial role in attracting and channelizing foreign funds to

Islamic institutions in the country through official and clandestine

channels; and

(iv) JEI-H through its publication, Madhyamam Daily has been “critical of

India’s foreign policy, besides indulging in anti-US propaganda. It has

also been critical of security agencies/judiciary and often presents news

from a communal perspective. Senior functionaries of JEI, Kerala are

72 “UAPA”

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learnt to be mobilizing funds through hawala channels from the Gulf for

launching a TV Channel.”

88 The MHA considered the report and noted that these remarks were not so strongly

adverse in nature to deny permission on the grounds of security, especially when

the applicants were operating a newspaper with twelve editions. The IB report on

Madhyamam Daily on the ‘tenor’ of the articles is extracted below:

“Madhyamam Daily brings out 12 editions (published from

6 places in Kerala, 2 in Karnataka and 4 places abroad in

Saudi Arabia, Qatar, Bahrain, and Dubai), which are

published by JEI/H run Islamic Publishing House,

Kozhikode, Kerala. The newspapers which have a

combined circulation are of 1.75 lakhs approximately being

used by JEI/H to air its views on various issues affecting

the Muslim community. It has been highlighting the

alleged discrimination against Muslims in India.

Recently it had alleged targeted attack on [..] who is the

prime accused in the Bangalore bomb blast, and his family

members and vehemently criticised police action against

[…] for her alleged role in the Kalamassery bus burning

case and has contrasted it with the alleged soft attitude

taken against Hindu fundamentalists responsible for

bomb blasts in the country and Babri Masjid

demolition.”

(emphasis supplied)

89 In 2014, when security clearance was again sought by MBL for uplinking and

downlinking TV Channels Media-One Life and Media One Global, IB submitted a

report stating that fresh enquiries corroborated the issues that were flagged earlier.

The fresh enquiries were based on a ‘scrutiny of the contents of programmes aired

in the recent past by Media One TV’. On a scrutiny of the contents of the

programmes that were telecast by Media One, IB opined that Media-One: (i) tends

to propagate the ideology of JEI-H; (ii) portrays security forces and intelligence

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agencies of India in bad light; (iii) is overcritical of Government policies, especially

vis-a-vis its handling of law and order issues involving minorities and militancy’.

90 MHA sought fresh comments from IB after receiving the above report. In the

subsequent report, IB made three findings. Firstly, that the major source of funding

for MBL is through shares in which JEI/H cadres and sympathizers have reportedly

invested. IB submitted a comprehensive list of shareholders who have invested in

MBL. We have not extracted the list of the shareholders to protect their privacy and

confidentiality. Secondly, that enquiries have confirmed that Media One airs

provocative programmes such as: (i) On 5 August 2015, the channel reportedly

made attempts to denigrate the Indian Judiciary for alleged adoption of double

standards in dealing with terrorism related cases; (ii) It blames US and Israel for

the misery of the Muslims across the world; and (iii) a publication of MBL

‘Prabodhanam Weekly’, propagates fundamental Islamic viewpoint through its

editorials.

91 On 24 July 2014, a CoO recommended that security clearance may be denied with

respect to the proposals to uplink and downlink ‘Media-One Life’ and ‘Media One

Global’, and security clearance maybe withdrawn to MBL based on the adverse

remarks by IB in 2011 and 2014. MHA sought fresh comments and multiple CoO

meetings were held to discuss the same. On 26 August 2015, MIB granted

permission to uplink and downlink ‘Media One Life’.

92 However, on 22 January 2015, CoO recommended denial of security clearance to

two proposals (A) to Uplink/downlink non-news and current affairs TV channel

Media-One Life and Media-One Global; (B) for the appointment of two directors.

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However, it was noted that the security clearance granted in 2011 may not be

withdrawn. The minutes of the meeting of CoO notes as follows:

“The MHA had issued policy guidelines for

assessment of proposal for national security on

30.6.2015 which clearly prescribe security relating

parameter for assessment of proposals. The CoO

felt that adverse inputs against the company and

its Directors are serious in nature (linkage with

radical organization) and falls under security rating

parameters mentioned in Sl No. 13 of Ministry of

Home Affairs Policy guidelines issued vide OM

dated 30.6.2015. Further, CoO observed that the

policy mandates that the security clearance

granted by the MHA will usually have prospective

effect unless otherwise decided by the Ministry

concerned in the discharge of its mandate.

Therefore, the security clearance granted in

2011 may not be withdrawn. However, the

future expansion of the company may be

stopped in view of the adverse inputs.”

(emphasis supplied)

93 MHA denied security clearance for these two proposals based on the

recommendation of the CoO. Though the order of MHA denying security clearance

on such recommendation is not annexed to the file submitted, it finds mention in

the internal notes on the file. It seems that the MHA was not aware that MIB had

by then already granted the permission to uplink and downlink Media One Life.

Further, in spite of the observations of CoO that the revocation may not be

retrospective, MIB issued a show cause notice to MIB for revocation of the

permission granted to Media One and Media One Life. The MIB requested MHA to

consider the response of MBL against the show cause notice. In this regard, MHA

observed that though it had not withdrawn security clearance of the existing News

and Current Affairs Channel ‘Media One’, the actions of MIB were in compliance

of the guidelines dated 30 June 2015. It is crucial to note that as on the date when

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security clearance was denied by MHA, both Media One and Media One Life were

existing news channels. The relevant extract of the response of MHA is extracted

below:

“Since the MHA has not withdrawn security clearance of

existing News and Current Affairs TV channel ‘Media One’,

it is Ministry of I&B which has to justify its action of issuing

show-cause notice for withdrawal of permission. At the

same time, since the MHA has given leverage to the nodal

Ministry in the guidelines dated 30.06.2015 to take action

for retrospective application of the guidelines in the

discharge of its mandate and that the MIB has taken action

in accordance with their own guidelines, we may not state

that MHA has not withdrawn security clearance granted

vide OM dated 17.2.2011. This would give impression if

action of the nodal Ministry was not in conformity with MHA

guidelines.

We may simply mention the proposals to which security

clearance was denied on 27.1.2016, and state that

Ministry of I&B has issued SCN in discharge of its mandate

it may defend its action. As regards sharing of reason

for denial of clearance, it is informed that the denial is

based on inputs from intelligence Agencies which are

secret in nature and cannot be disclosed to the

applicant.”

(emphasis supplied)

The response of MHA further notes that the security clearance was denied based

on ‘inputs from intelligence agencies which are secret and cannot be disclosed to

the applicant.’

94 On 11 September 2019, MIB revoked the uplinking and downlinking permission

which was granted to Media One life. MBL submitted a representation against the

revocation. MHA requested IB to furnish comments on the representation of MBL.

IB concluded that the inputs attract parameters (Sl. Nos. 20 and 21) stipulated by

the Guidelines issued on June 25 201873 for assessment of proposals received in

73 “2018 Guidelines”

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the Ministry of Home Affairs for national security clearance. IB made the following

two adverse remarks:

(i) “Main source of income: MBL’s main source of income is the shares

invested by cadres of JEI-H through its sympathizers. Most of the Board

of Directors are JEI-H sympathizers”; and

(ii) “Anti-establishment stance: Media One channel is learnt to be espousing

its anti-establishment stance on various issues ‘including UAPA, Armed

Forces (Special Power) Act, developmental projects of the Government,

encounter killings, Citizenship (Amendment) Act, CAA/NPR/NRC”.

95 The 2018 Guidelines stipulate that national security covers a wide range of issues

but the principle focus, inter alia, is on (i) matters relating to preserving the unity,

territorial integrity and sovereignty of the nation and protecting the life, and liberty

of its citizens; and (ii) matters vital to economic security, protection of critical

infrastructure, and development and prosperity of the country and its citizens.

Clause 3.2 stipulates that sector sensitive proposals emanating from, inter alia,

MIB shall be assessed in accordance with the Guidelines. According to Clause 4

national security verification will be done through “record checks/field enquiries and

other means for the vetting of the company, entity and the persons associated with

the same.” The provision stipulates that on receipt of a proposal from the

concerned ministry (in this case, MIB), MHA would seek inputs from security and

law enforcement agencies. Clause 5 stipulates that the intelligence and law

enforcement agencies will conduct an assessment based on the list of security

parameters set out in in Annexure C. The assessment will be done on the basis of

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the reported threat, probability of materialization, and overall impact. Annexure C

prescribes the security parameters. Sl. No 13 of the Annexure reads: “Terror

funding, financial linkage with underworld, drug cartels, crime syndicates.” Sl No.

20 reads as “Involvement in religious proselytization activities in India”, and Sl. No.

22 reads as “Intentional or systemic infringement of safety concerns or security

systems endangering the safety of the public”.

96 MBL filed an application for renewal of permission to uplink and downlink the

Media-One channel. MIB forwarded the application for renewal to MHA for security

clearance. MHA noted that there is no reason to consider the renewal of permission

if security clearance has been denied to the company and its directors earlier:

“3. It has been observed that Ministry of Information and

Broadcasting has been forwarding the proposals for

renewal of security clearance to MHA on routine basis

including cases, where security clearance has already

been denied to the company and its directors, If security

clearance has been denied by MHA to a company and its

directors. there is no reason to consider its renewal unless

there are specific reasons to indicate that the situation has

changed.

The security clearance guidelines dated 25.06.2018, para

7.4 stipulates that the decision on security clearance by

the MHA will have prospective effect unless otherwise

decided by the ministry /department concerned in the

discharge of its mandate. This was explicitly clarified in the

meeting dated 21.01.2016 of the then Home Secretary and

Secretary of Information & Broadcasting in response to

MIB query on whether withdrawal of security clearance to

company/individual entities in one sector would

tantamount to withdrawal in other sectors also

Since MIB has already been communicated denial of

security clearance to the above mentioned companies,

there is no need of fresh consideration for the cases as per

security clearance guidelines.

In view of the above, Ministry of Information and

Broadcasting may be requested that the proposals for

renewal of security clearance in the cases where security

clearance has already been denied to the company,

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should not have forwarded to MHA, in a routine manner

unless and until there is sufficient and proper reasons for

the same.”

97 Before addressing whether the non-disclosure of the relevant material would be in

the interest of national security, it is our constitutional duty to mention the cavalier

manner in which Union of India has raised the claim of national security. Other than

merely claiming that national security is involved, both in the affidavit that was filed

before the High Court and in the submissions before us, the Union of India made

no attempt to explain how non-disclosure would be in the interest of national

security. The Union of India has adopted this approach inspite of reiterations by

this Court that judicial review would not be excluded on a mere mention of the

phrase ‘national security’. The State is using national security as a tool to deny

citizens remedies that are provided under the law. This is not compatible with the

rule of law.

98 Security clearance was denied to MBL because of its alleged link with JEI-H, and

its alleged anti-establishment stance. To conclude that MBL is linked to JEI-H, IB

has relied on the ‘tenor’ of the articles published by dailies of MBL, and the

shareholding pattern of MBL. To conclude that JEI-H has an anti-establishment

stance, IB has solely relied upon the programmes that were broadcast by MediaOne. Some of the views that were highlighted in the IB report to conclude that MBL

has an anti-establishment stand are that (i) it portrays security forces and the

judiciary in a bad light; (ii) it highlighted the discrimination faced by minorities in the

country and contrasted it with the State’s alleged soft attitude towards the Hindus

who were involved in the destruction of Babri Masjid; and (iii) its comments on

UAPA, Armed Forces (Special Power) Act, developmental projects of the

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Government, encounter killings, Citizenship (Amendment) Act, and

CAA/NPR/NRC.

99 Significantly, with respect to the list of shareholders who are alleged sympathizers

of JEI-H, the file does not contain any evidence on the alleged link between the

shareholders and JEI-H. The report of IB is purely an inference drawn from

information that is already in the public domain. There is nothing ‘secretive’ about

this information to attract the ground of confidentiality. Additionally, it cannot be

argued that the purpose of national security will be served by non-disclosure

merely by alleging that MBL is involved with JEI-H which is an organisation with

alleged terrorist links. While we have held above that it would be impractical and

unwise for the courts to define the phrase national security, we also hold that

national security claims cannot be made out of thin air. There must be material

backing such an inference. The material on the file and the inference drawn from

such material have no nexus. The non-disclosure of this information would not be

in the interest of any facet of public interest, much less national security. On a

perusal of the material, no reasonable person would arrive at the conclusion that

the non-disclosure of the relevant material would be in the interest of national

security and confidentiality.

G.2 (b) Suitability

100 We proceed to apply the subsequent prongs of the proportionality standard, even

assuming that the action taken is in the interest of confidentiality and national

security. The second prong of the proportionality analysis requires the State to

assess whether the means used are rationally connected to the purpose. At this

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stage, the court is required to assess whether the means, if realised, would

increase the likelihood of protecting the interests of national security and

confidentiality. It is not necessary that the means chosen should be the only means

capable of realising the purpose of the state action. This stage of the analysis does

not prescribe an efficiency standard. It is sufficient if the means used constitute

one of the many methods by which the purpose can be realised, even if it only

partially gives effect to the purpose.74 The Canadian Supreme Court in the case of

Oakes (supra) emphasised that the means adopted must not be “arbitrary, unfair,

or based on irrational connection”. The requirements under this prong will not be

fulfilled if the State uses constitutionally impermissible means. Though it is not

necessary that the means opted should be the ‘best possible means’, the means

must still pass the muster of the constitution.

101 The Ministry of Home Affairs disclosed the relevant material solely to the court in

a sealed cover. By this method of disclosure, information that is claimed to be

confidential and in the interests of national security is sought to be protected by not

disclosing it to the public and the claimant. The means that are used may not

necessarily be the best possible means to protect the interest involved because

the sealed cover procedure permits partial disclosure as opposed to complete nondisclosure. However, it still shares a rational connection to the purpose that is

sought to be achieved.

102 On the other hand, the non-disclosure of even a summary of reasons for denying

security clearance does not share a rational connection with the purpose identified.

74 Aharon Barak (n 38) 305

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In A v. The United Kingdom75, the ECHR held that there must always be ‘equality

of arms’ between the parties. The court held that if procedural guarantees are

restricted, then the limitation must be sufficiently counterbalanced. In Secretary of

State for the Home Department v. AF76 the House of Lords while interpreting the

judgment of the ECHR in A (supra) held that there is a ‘core irreducible minimum’

of procedural guarantees which cannot be infringed. The House of Lords observed

that the ‘essence of the case against the applicant’ is a core irreducible minimum

which has to be disclosed. We are in agreement with the observations of the House

of Lords and ECHR in AF (supra) and A (supra) respectively. MHA by not

disclosing the reasons for denying security clearance has rendered MBL’s

procedural guarantees otiose. The summary of reasons for denying security

clearance constitute the ‘core irreducible minimum’ of the procedural guarantees

under Article 14. By not disclosing the summary of reasons, the MHA has

undertaken an unreasonable and arbitrary means to fulfil its purpose.

G. 3 (c) Least restrictive means

103 The judgment of the majority in Justice KS Puttaswamy (5J) (supra) adopted the

‘moderate interpretation of necessity’ that was propounded by David Bilchitz.77 The

author sought to draw a middle ground between strong and weak forms of the

necessity prong. The sub-components of the necessity prong as devised by Bilchitz

are as follows:78

75 Application no. 3455/05 76 2009] UKHL 28, (paras 62-65, 81)) 77 David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach? in Liora Lazarus et al (eds),

Reasoning Rights: Comparative Judicial Engagement (Hart 2014) 49. 78 ibid, p. 51.

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(a) Whether there are other possible means which could have been adopted by

the State;

(b) Whether the alternative means identified realise the objective in a ‘real and

substantial manner’;

fundamental rights differently; and

(d) Whether on an overall comparison (and balancing ) of the measure and the

alternative, the alternative is better suited considering the degree of

realising the government objective and the impact on fundamental rights.

104 In Charkaoui v. Canada (Citizenship and Immigration)79, the Canadian

Supreme Court held that the procedure for detention prescribed under the

Immigration and Refugee Protection Act 200180 suffered from procedural

infirmities. Under the 2001 Act, a person may be deprived of some or all of the

information on the basis of which the detention was ordered. The Canadian

Supreme Court held that the provisions of the 2001 Act unjustifiably violate Section

7 of the Canadian Charter of Rights and Freedom81 because State action is

judicially reviewed based on secret material without devising any means to protect

the affected person’s procedural rights. The court referred to the system of special

advocates in the United Kingdom and observed that this system protects the

interests of the affected party. The court concluded that the procedure prescribed

79 (2007) 1 SCR 350 80 “2001 Act” 81 Section 7 of the Canadian Charter of Rights and Freedoms stipulates that the right to life, liberty, and security of

a person shall not be deprived except in accordance with the principles of fundamental justice.

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in the statute cannot be ‘justified as minimum impairment of the individual’s right to

a judicial determination on the facts and the law, and right to know and meet the

case.’

105 The Canadian Supreme Court referred to the jurisprudence on the procedure

followed by courts across various jurisdictions to decide claims that involve State

secrets and held that there were other lesser restrictive means that could have

been employed, as in the United Kingdom. As a part of the analysis of the least

restrictive means prong, we deem it necessary to refer to alternative procedures

that are available in India and in other countries that substantially aid in realising

the objective and which protects the interest of the affected party in a better

fashion.

(I) Totten claim: non-justiciability of the issue

106 The Courts in the United States have recognised that in exceptional circumstances,

the court must act in the interest of national security to prevent the disclosure of

state secrets. One of the applications of this principle is through the Totten claim.

According to the Totten claim, if claims are premised on state secrets, then they

are barred from adjudication82. If the subject matter is a matter of state secret then

the action may be dismissed on pleadings before the proceedings could reach the

stage of evidence. The Totten claim, if allowed, permits the dismissal of the suit in

the pre-discovery stage.

82 Totten v. United States, 92 US 105,107 (1876)

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(II) Closed Material Procedure and Special Advocates

107 In Chahal v. United Kingdom83, the Home Secretary issued an order to deport

the appellant, an Indian national and a Sikh separatist. One of the grounds of the

appellant’s challenge to the deportation order was that although the Home

Secretary’s decision is amenable to judicial review, the effective determination of

his risk to national security was made by an internal Home Office advisory panel

on the basis of material which was not disclosed to him. The European Court of

Human Rights84 accepted the contention of the appellant and held that the

procedure violated the rights under Article 5(4) of the European Convention on

Human Rights.85 The court observed that there are other less restrictive methods

which could be employed to accommodate legitimate concerns of national security

and procedural justice. The Court referred to the procedure that is applied in

Canada under the Canadian Immigration Act 1976 under which a Federal Court

judge holds an in - camera hearing of all the evidence; the applicant is provided a

statement summarising the case that is made against them; and the confidential

material is then disclosed to a security-cleared counsel who assists the court in

testing the strength of the State’s case.

108 In response to the judgment in Chahal (supra), the Government of the United

Kingdom passed the Special Immigration Appeals Commission Act 1997 which

paved the way for security-cleared Special Advocates to represent the applicant in

substantive proceedings that take place behind closed doors. The material is not

83 (1996) 23 EHRR 413 84 “ECHR” 85 Article 5(4): “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings

by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention

is not lawful.”

PART G

disclosed to the claimant. However, the Special Advocate represents the interest

of the party before the court though they are not permitted to interact with to the

claimant about the non-disclosable security evidence in the closed proceedings.

For all purposes, closed material proceedings are similar to the sealed cover

procedure, except that a security cleared lawyer is appointed to counterbalance

the limitations on procedural guarantees. The Terrorism Act 2000 prescribes a

similar procedure. Since then the Courts in the United Kingdom have been using

Special Advocates in civil proceedings, quasi-criminal proceedings86, and in public

interest immunity claims.

87 The Special Advocate serves two purposes : firstly, to

seek maximum possible disclosure of closed material; and secondly, to test by

cross-examination and make submissions on any material that remains closed.88

(III) Public Interest Immunity

109 The Evidence Act prescribes rules precluding disclosure of certain

communications and evidence. Section 123 stipulates that no person shall be

permitted to give any evidence that is derived from unpublished official records

relating to affairs of the State. The evidence shall be disclosed only with the

permission of the officer at the head of the department:

123. Evidence as to affairs of State.- 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.

86 Roberts v. Parole Board, (2005) 2 AC 738 87 R v. H, (2004) AC 134 88 Martin Chamberlain, Special Advocates and Amici Curiae in National Security proceedings in the United

Kingdom, The University of Toronto Law Journal , Summer 2018, Vol. 68, No. 3, Special Issue on Indigenous Law

(Summer 2018), pp. 496-510

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Section 124 provides that a public officer shall not be compelled to disclose

communications made to him in official confidence if the disclosure affects public

interest:

124. Official communications.- No public officer shall be

compelled to disclose communications made to him in

official confidence, when he considers that the public

interests would suffer by the disclosure.

110 Section 162 stipulates that a witness who is summoned to produce a document in

court shall bring the document to court notwithstanding any objection that is raised

on its production and admissibility. The provision provides that the objection shall

be decided by the Court. For this purpose, the court shall inspect the document,

unless it refers to matters of state. The provision is extracted below:

162. Production of document.- A witness summoned to

produce a document shall, if it is in his possession or

power, bring it to Court, notwithstanding any objection

which there may be to its production or to its admissibility.

The validity of any such objection shall be decided on by

the Court.

The court, if it sees fit, may inspect the document, unless

it refers to matters of State, or take other evidence to

enable it to determine on its admissibility.

111 The claim of public interest immunity allows the State to remove the material from

the proceedings on the ground that its disclosure would injure public interest. All

three parties to the proceeding, that is, the applicant, the state, and the court

cannot refer to or rely on the documents for substantive hearings in the course of

the proceedings if the court allows the public interest immunity claim at the

discovery stage. In effect, the public interest immunity claim renders the relevant

document non-existent for the purposes of the proceedings. Public interest

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immunity substantially realises the objective of protecting the interests of

confidentiality and national security.

112 All the three alternatives identified above realise the objective in a real and

substantive manner in as much as it furthers non-disclosure. However, each of the

alternative means have a different effect on fundamental rights because they

operate in different penumbrae. In a public interest immunity claim, the material is

not relied on by both the parties and the court in the course of the substantive

hearings. The court removes the material from the proceeding, and the public

interest immunity proceedings are conducted in a closed setting. In a Totten claim,

the court at the admission stage itself declares that the issue is non-justiciable if

the material on state secrets may have to be disclosed. The court does not

undertake any balancing exercise to decide if the injury due to the disclosure of

information is heavier than the injury due to non-disclosure. Rather, if the material

is, according to the state, related to a state secret then the applicant is deprived of

the remedy of judicial review. Under the closed material procedure, nondisclosable material is relied on by the State and referred to by the court in the

course of the substantive hearing. The special advocate would represent the

interests of the affected party. However, the special advocate would be precluded

from discussing the evidence with the affected party. It must be noted that special

advocates are involved even in public interest immunity claims to represent the

affected party in the closed hearing to decide if the relevant information must be

disclosed. Thus, the special advocates’ system is a means to counterbalance the

effect of the limitation on procedural guarantees of the affected party.

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113 When these three means identified are placed on the continuum, public interest

immunity claims would be placed on one end as they have the least impact on

rights as opposed to the Totten claim which would be placed on the other end. The

closed material procedure would be placed in the middle because Special

Advocates are used in an attempt to counterbalance the infringement of procedural

rights. The difference in the impact must be determined firstly, based on the stage

of consideration. The public interest immunity claim and closed material procedure

claim are raised at the discovery stage. As opposed to this procedure, under the

Totten claim, the claim is held to be non-justiciable at the pleading stage if the State

contends that the proceedings are premised on state secrets. Secondly, the Totten

claim limits the fundamental right to judicial review since claims based on state

secrets are rendered non-justiciable. However, in a public interest immunity claim,

whichever way the claim is decided, the parties will have equality of arms because

the same evidence will have to be relied on in the course of the proceedings. It

may be argued that the removal of the documents from the proceedings would, in

effect, render the claim non-justiciable if the documents that are sought to be not

disclosed are closely intertwined with the cause of action. We have addressed this

argument in detail in Section J of this judgment. Similar to the sealed cover

procedure, in the closed material proceeding, the non-disclosable evidence that is

used in a substantive hearing of the case is excluded for the claimant. However,

the closed material procedure in the United Kingdom does not exist independent

of special advocates who aim to provide sufficient counterbalance. The closed

material proceeding is more injurious to the claimant’s procedural guarantees as

compared to public interest immunity because non-disclosed material is used by

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the State to defend its actions and relied on by the court to arrive at a conclusion.

As compared to this, in public interest immunity, the non-disclosable evidence is

completely removed at the discovery stage. Though the Special Advocates aim to

provide sufficient counterbalance, the process still causes prejudice to the claimant

since the security cleared advocates are not permitted to interact with the claimant

about the evidence. The (in)sufficiency of the counterbalance provided by special

advocates largely depends on the facts of the case, particularly on the material that

is sought to be unrevealed and revealed. The interrelationship between the

allegations, open material, and closed material was aptly addressed by the ECHR

in A (supra). The relevant observations are extracted below:

“ 220. The Court further considers that the special advocate

could perform an important role in counterbalancing the lack of

full disclosure and the lack of a full, open, adversarial hearing

by testing the evidence and putting arguments on behalf of the

detainee during the closed hearings. However, the special

advocate could not perform this function in any useful way

unless the detainee was provided with sufficient information

about the allegations against him to enable him to give effective

instructions to the special advocate. While this question must

be decided on a case-by-case basis, the Court observes

generally that, where the evidence was to a large extent

disclosed and the open material played the predominant role in

the determination, it could not be said that the applicant was

denied an opportunity effectively to challenge the

reasonableness of the Secretary of State's belief and

suspicions about him. In other cases, even where all or most of

the underlying evidence remained undisclosed, if the

allegations contained in the open material were sufficiently

specific, it should have been possible for the applicant to

provide his representatives and the special advocate with

information with which to refute them, if such information

existed, without his having to know the detail or sources of the

evidence which formed the basis of the allegations. An

example would be the allegation made against several of

the applicants that they had attended a terrorist training

camp at a stated location between stated dates; given the

precise nature of the allegation, it would have been

possible for the applicant to provide the special advocate

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with exonerating evidence, for example of an alibi or of an

alternative explanation for his presence there, sufficient to

permit the advocate effectively to challenge the allegation.

Where, however, the open material consisted purely of general

assertions and SIAC's decision to uphold the certification and

maintain the detention was based solely or to a decisive

degree on closed material, the procedural requirements of

Article 5 § 4 would not be satisfied.”

(emphasis supplied)

In view of the above discussion, public interest immunity is perhaps a less

restrictive means of the alternative methods listed above.

114 Having held that there are alternative means which further the purpose of nondisclosure at the disposal of the State, we shall now undertake a comparative

analysis of the impact of the alternative means identified (public interest immunity)

and the means used (sealed cover) on fundamental rights. In section F, we have

already discussed the effect of the disclosure of material solely to the courts in a

sealed cover on the fundamental precepts of procedural fairness and how the

courts do not employ any safeguards to protect the procedural rights of the

applicant. In the next section, we will be discussing the jurisprudence on public

interest immunity. A reference of how the courts have dealt with public interest

immunity claims will allow us to analyse if the courts have employed sufficient

procedural guarantees to protect the rights of the applicant or have on the contrary

been deferential to the claims of the State. This analysis is important because it is

only a comparative analysis of how the courts would deal with sealed cover and

public interest immunity claims that would allow us to evaluate their relative effect

on procedural rights.

PART H

H. Jurisprudence on public interest immunity claims

H.1 India

115 This Court has on earlier occasions interpreted Sections 124 and 164 of the

Evidence Act. In State of Punjab v. Sodhi Sukhdev Singh89, the respondent, a

District and Sessions Judge, who was removed from service and later re-employed

sought the report of the Public Service Commission and the proceedings of the

Council of Ministers. The Chief Secretary filed an affidavit claiming privilege under

Section 123 of the Evidence Act. The claim for privilege was allowed. Justice

Gajendragadkar, writing the majority opinion of the Constitution Bench, laid down

the scope of review of a claim of non-disclosure. Sections 164 and 123 were

construed to deal with the conflict between public interest and private interest. It

was observed that the court must assess if the disclosure that affects public interest

would outweigh the concerns of private interest which disclosure of material to the

litigant furthers:

“13. The principle on which this departure can be and is

justified is the principle of the overriding and paramount

character of public interest. A valid claim for privilege made

under Section 123 proceeds on the basis of the theory that

the production of the document in question would cause

injury to public interest, and that, where a conflict arises

between public interest and private interest, the latter must

yield to the former. No doubt the litigant whose claim may

not succeed as a result of the non-production of the

relevant and material document may feel aggrieved by the

result, and the court, in reaching the said decision, may

feel dissatisfied; but that will not affect the validity of the

basic principle that public good and interest must override

considerations of private good and private interest.”

89 (1961) 2 SCR 371

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The court held that when a claim of public interest immunity is made against

disclosure, the Court must on a preliminary enquiry of the affidavit determine if the

document relates to affairs of the State. If the document relates to state affairs,

then the decision of the head of the department on whether the disclosure would

violate public interest would be final. The document must be disclosed if on a

preliminary enquiry the court is of the opinion that the document does not relate to

‘State affairs’. The court would only possess the power to scrutinise the affidavit

and not inspect the document on which immunity is claimed to determine if the

document ‘relates to affairs of state’.

116 Justice Subba Rao in his opinion differed from the majority opinion on this point of

law. The divergence was one of principle. While the majority pitted the issues on

the lines of public interest and private interest, Justice Subba Rao held that both

disclosure and non-disclosure further public interest. It was held that the disclosure

of information aids the party in the proceedings but beyond that the disclosure also

serves the purpose of administration of justice. On the extent of scrutiny by the

Court, Justice Subba Rao observed that the Court has the power to disallow a

claim of privilege. For this purpose, the court has to determine if the public interest

in disclosure outweighs the public interest in non-disclosure. It was observed that

the Courts should ordinarily accept the affidavit of the Minister claiming privilege

but when the court has reason to disbelieve the claim, it can examine the Minister.

Justice Subba Rao agreed with the opinion of Justice Gajendragadkar that the

court shall not inspect the document that is sought to be protected from disclosure.

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117 In State of Uttar Pradesh v. Raj Narain90, the respondent sought to summon

documents in an election petition. The State made a claim for immunity. Justice K

K Mathew in his concurring opinion for the Constitution Bench raised doubts on the

observation in Sodhi Sukhdev Singh (supra) that the Court does not have the

power to inspect documents for which the claim of privilege is made. It was held

that it would be difficult to determine the effect of the disclosure on public interest

without inspecting the document. The learned Judge classified such documents as

those belonging to noxious classes and others. It was held that if the documents

belong to noxious classes (such as national security), it would per se infringe on

public interest. For other documents that do not belong to noxious classes, the

courts ought to survey aspects of public interest involved in both disclosure and

non-disclosure to assess the relative claims of the different aspects of public

interest:

“71. Few would question the necessity of the rule to

exclude that which would cause serious prejudice to the

State. When a question of national security is involved, the

Court may not be the proper forum to weigh the matter and

that is the reason why a minister's certificate is taken as

conclusive. “Those who are responsible for the national

security must be the sole judges of what national security

requires.” [ Lord Parker of Weddington in The Zamora,

(1916) 2 AC 77, 107] As the Executive is solely responsible

for national security including foreign relations, no other

organ could judge so well of such matters. Therefore,

documents in relation to these matters might fall into

a class which per se might require protection. […]

72. The power reserved to the Court is a power to order

production even though public interest is to some extent

prejudicially affected. This amounts to a recognition that

more than one aspect of public interest will have to be

surveyed. The interests of Government for which the

minister speaks do not exhaust the whole public

interest. Another aspect of that interest is seen in the

90 (1975) 4 SCC 428

PART H

need for impartial administration of justice. It seems

reasonable to assume that a court is better qualified

than the minister to measure the importance of the

public interest in the case before it. The court has to

make an assessment of the relative claims of these

different aspects of public interest. While there are

overwhelming arguments for giving to the Executive the

power to determine what matters may prejudice public

security, those arguments give no sanction to giving the

executive an exclusive power to determine what matters

may affect public interest. Once considerations of national

security are left out, there are few matters of public interest

which cannot safely be discussed in public. The

administration itself knows of many classes of security

documents ranging from those merely reserved for official

use to those which can be seen only by a handful of

ministers or officials bound by oath of secrecy.”

(emphasis supplied)

118 In SP Gupta v. Union of India91, a seven-Judge Bench of this Court settled the

position of law on claims of non-disclosure on the grounds of public interest. In this

case, the Union of India claimed immunity against the disclosure of the

correspondence between the Law Minister, the Chief Justice of the Delhi High

Court and the Chief Justice of India. It was argued that the documents sought to

be disclosed belong to a class that is immune from disclosure, and thus the courts

ought to allow the claim for non-disclosure irrespective of its contents. Justice

Bhagwati, whose view five other judges agreed to,

92 rejected the claim for nondisclosure.93 Justice Bhagwati observed that claim of class immunity is not

absolute:

“The executive cannot by merely invoking the scriptural

formula of class immunity defeat the cause of justice by

withholding a document which is essential to do justice

between the parties, for otherwise the doctrine of class

91 1981 Supp SCC 87 92 Justice Gupta (paragraph 142); Justice Tulzapurka (paragraph 662); Justice Desai (paragraph 855); Justice

Pathak (paragraphs 941 and 942). Justice Venkataramiah authored a concurring opinion. 93 Justice Fazl Ali dissented allowing the claim for non-disclosure.

PART H

immunity would become a frightful weapon in the hands of

the executive for burying its mistakes, covering up its

inefficiencies and sometimes even hiding its corruption.

Every claim for immunity in respect of a document,

whatever be the ground on which the immunity is claimed

and whatever be the nature of the document, must stand

scrutiny of the court with reference to one and only one

test, namely, what does public interest require —

disclosure or non-disclosure. The doctrine of class

immunity is therefore no longer impregnable; it does not

any more deny judicial scrutiny; it is no more a mantra to

which the court pays obeisance. Whenever class immunity

is claimed in respect of a document, the court has to weigh

in the scales the one aspect of public interest which

requires that the document should not be disclosed

against the other that the court in performing its functions

should not be denied access to relevant documents and

decide which way the balance lies. And this exercise has

to be performed in the context of the democratic ideal of

an open Government.”

119 Justice Bhagwati further observed that the non-appointment of a Judge for an

additional term, which was under challenge in this case, could only be challenged

on the ground that there was no full and effective consultation between the three

constitutional functionaries, or that the decision was mala fide. Hence, the

correspondence that is sought is the only documentary evidence that would aid in

establishing the claim. On the other hand, the non-disclosure would have the effect

of ensuring the dismissal of the writ petition. Moreover, it was held that other than

the impact of non-disclosure on the applicant’s case, it would also affect the wider

constitutional principles of independence of the judiciary if the appointment process

is insulated from public view. Further, when the transfer of a High Court Judge is

challenged, the burden to prove that the transfer was not mala fide is on the Union

of India. It was observed that the Union of India cannot seek to discharge such a

heavy burden by merely filing an affidavit for non-disclosure. Justice Bhagwati

rejected the claim for non-disclosure by observing that the Union of India has been

PART H

unable to prove its claim that the disclosure of the correspondence must be

injurious to public interest.

120 The view taken by Justice Mathew in Raj Narain (supra) and Justice Subba Rao

in Sodhi Sukhdev Singh (supra) was partially adopted by Justice Bhagwati,

writing for the majority in SP Gupta (supra) and was further developed upon. The

principles elucidated in the judgment are summarised below:

(i) Open government is one of the crucial components of a democratic form

of government. Disclosure of information is advantageous to the affected

party in the proceedings. In addition, it also furthers public interest in

access to information and open government. The conflict which Sections

123 and 162 seek to redress is not between public interest and private

interest but between two conflicting conceptions of public interest;

(ii) The majority opinion in Sodhi Sukhdev Singh (supra) perpetuates two

inconsistencies. Firstly, it would be difficult to determine if a document

relates to affairs of the state without inspecting it . The court determines

the effect of its disclosure on public interest only after inspection. This

conclusion is apparent since Sodhi Sukhdev Singh (supra) has already

held that only documents which affect public interest can be regarded as

documents relating to state affairs; and secondly, the court and not the

head of the department determines if the disclosure of the information

would affect public interest. On an objection raised by the head of the

department, the court conducts an exercise to determine if the document

relates to affairs of the State by assessing the effect of disclosure on

PART H

public interest. After the court undertakes this exercise, it would be futile

for the head of the department to again decide if the disclosure would be

injurious to public interest;

(iii) The burden of establishing the claim for immunity is on the person

making the claim;

(iv) When a claim of public interest immunity is made, the court must on a

perusal of the affidavit filed by the Minister or the head of the department

decide if the disclosure would be injurious to public interest. The Court

may inspect the document if it doubts the claim of the State and is unable

to satisfy itself on a perusal of the affidavit. This power of inspection of

the Court is not excluded by the operation of Section 162 of the Evidence

Act;

(v) Protection from disclosure must not be granted to documents merely

because disclosure would lead to political criticism. The right to access

information cannot be limited due to fear of criticism of actions of the

government in a democratic society premised on open government;

(vi) Disclosure cannot be denied per se merely because the documents

belong to a noxious ‘class’. The court must still conduct a balancing

exercise. Class immunity ‘is not absolute or inviolable’. It is not a rule of

law to be applied mechanically in all cases;

(vii) The court must determine if: (a) the disclosure of the document would in

effect be against public interest (the effect test), and (b) if so, whether the

PART H

public interest in disclosure is ‘so strong’ that it must prevail over the

public interest in the administration of justice (the balancing test); and

(viii) While undertaking the balancing test, the Court should consider the

following lines of enquiry:

(a) On facts: Whether the non-disclosure would injure the interest of the

party of the case. Injury due to non-disclosure must be determined on

the basis of the nature of the proceedings in which the disclosure is

sought, the relevance of the document, the degree of likelihood that

the document will be of importance to the litigation, and whether

allowing the claim of non-disclosure would render the issue nonjusticiable; and

(b) On principle: Whether non-disclosure would affect a constitutional

principle other than administration of justice.

121 We think that it is important to refer to the approach of courts across jurisdictions

towards balancing the different conceptions of public interest in the context of

public interest immunity claims. This is necessary because the law on public

interest immunity that was developed in India in SP Gupta (supra) heavily relied

on the jurisprudence emanating from other common law countries. In fact, Chief

Justice Ray records in paragraph 41 of the Constitution Bench judgment in Raj

Narain (supra) that the foundation of the law behind Section 123 and Section 162

of the Evidence Act is the same as in English law.

PART H

H. 2 United Kingdom

122 The account of this subject in the United Kingdom began with the decision of the

House of Lords in Duncan v. Cammell Laird 94. The House of Lords in this case

gave precedence to form over substance while assessing a public interest

immunity claim for non-disclosure. Lord Simon framed two issues: (i) the form in

which an objection to disclosure has to be made; and (ii) if the objection is made in

a proper form, whether the court ought to treat the objection as conclusive without

scrutiny. The Law Lord held that the claim for non-disclosure must be allowed if the

form of the objection is valid, and the interests of a private citizen may have to be

subsumed by public interest. Consequently, courts cannot examine the documents

while determining the validity of the claim because it would violate the ‘first principle

of justice that the Judge should have no dealings on the matter in hand with one of

the litigants save in the presence of and to the equal knowledge of the other.’ Thus,

the House of Lords did not frame the issue as a conflict between conceptions of

public interest but that of private interest and public interest. The House of Lords

established two principles for the application of public interest immunity: that the

interest of a litigant must give way to the secrecy of the government, and the

Minister has the sole power to decide if the document ought to be withheld.

123 The House of Lords altered its approach in Conway v. Rimmer95. Lord Reid

observed that that impact of non-disclosure must not be viewed through the narrow

lens of private interest and it is public interest in the administration of justice that is

injured due to non-disclosure of documents. The House of Lords established three

94 [1942] AC 624 95 [1968] AC 910

PART H

principles of seminal importance. Firstly, the power to decide if evidence has to be

withheld from the court resides with the court and not the executive. Secondly, the

court while exercising this power must balance the potential harm to the public

interest due to disclosure with the court’s inability to administer justice. The Court

while determining the later harm must assess the effect of non-disclosure on

ascertaining the ‘true facts’ and on the wider principle of public confidence in the

court system. Thirdly, the court is entitled to inspect, in private, the material on

which immunity is claimed. On scrutinising the material, the court has to determine

if non-disclosure is necessary due to public interest, and not merely advantageous

to the functioning of public service. Lord Hudson held that the Court in its scrutiny

must discard the generalities of classes and must weigh the injuries to the public

‘of a denial of justice on the one side and, on the other, a revelation of governmental

documents which were never intended to be made public and which might be

inhibited by an unlikely possibility of disclosure.’ The conflict of the claims of public

interest must be determined based on the importance of the documents sought to

be withheld in the case before the court (a question of outcome), and whether the

non-disclosure would result in a ‘complete’ or ‘partial’ denial of justice (a question

of process and outcome).

124 In Reg v. Chief Constable, W.Midlands, Ex p. Wiley96, Lord Woolf speaking for

the House of Lords observed that while determining the balance on the scale, the

Court should also enquire if the interest in disclosure could be effectuated through

‘other alternate means’:

96 [1994] WLR 433

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“[…] It may be possible to provide any necessary

information without producing the actual document. It may

be possible to disclose a part of the document of a

document on a restricted basis. […] There is usually a

spectrum of action which can be taken if the parties

are sensible which will mean that any prejudice due to

non-disclosure is reduced to the minimum.”

(emphasis supplied)

125 The Queen’s Bench Division in R (Mohamed) v. Secretary of State for Foreign

and Commonwealth Affairs97 applied a four-pronged test to determine the validity

of a public interest claim. In this case, an Ethiopian national who was a former

resident of the United Kingdom was held by the authorities of the United States in

a detention facility in Cuba where he was alleged to have been treated inhumanly.

He sought the disclosure of the information in the possession of the United

Kingdom Government which may have supported his defence that the confessions

he made while in detention were inadmissible. The Court held that the Security

Service of the United Kingdom had facilitated the wrongdoing. In the course of the

judgment, the reports by the United States Government to the United Kingdom

security and intelligence services were summarised in seven paragraphs. These

seven paragraphs were sought to be redacted by the Court by claiming public

interest immunity. It was contended that the United States Government would reevaluate its intelligence sharing relationship with the United Kingdom if the

paragraphs were published, which would in turn prejudice the national security of

the United Kingdom. The Court applied a four-pronged test to decide the claim of

whether the paragraphs had to be redacted:

97 [2009] EWHC 152 (Admins)

PART H

(i) Is there a public interest in bringing the redacted paragraphs into the

public domain?

(ii) Will the disclosure cause serious harm to an important public interest,

and if so which interest?

(iii) Can the injury to the public interest in disclosure be prevented by other

methods of limited disclosure?

(iv) If the alternatives are insufficient, where does the balance of public

interest lie?

126 While answering the first test, the Court identified the impact of disclosure on public

confidence in the judiciary to the principles of public hearing and reasoned

judgement; and the role of information in furthering public debate which promotes

a healthy democracy. In the specific context of the case, it was observed that the

disclosure would further public discourse on torture and inhuman treatment. Due

weightage was given to the affidavit filed. The Court scrutinised the reasons in the

affidavit and concluded that the assessment of public injury was made in good

faith. This conclusion was arrived at based on the public statements that were

made by members at the highest level of the United States Government. Applying

the facts to the ‘alternate means test’, the court observed that the paragraphs that

were sought to be redacted did not disclose all the information but the redacted

portions of the information; and that it would not be possible to further redact the

information without engendering national security and violating the constitutional

principles of open justice. While answering this test, the court looked at whether

PART H

100

the interest of both the litigant and the State could be secured by means other than

the full disclosure of information. While applying the balancing test, the court held

that the democratic principles which the disclosure of information serves can be

protected by information that has already been placed in the public forum.

H. 3 United States

127 Judicial decisions in the United States have recognised that in exceptional

circumstances, the court must act in the interest of national security to prevent the

disclosure of state secrets. One example of the application of this principle is the

Reynolds privilege. Reynolds privilege is an evidentiary principle where the

successful assertion of the privilege will remove the privileged evidence from

litigation. The test propounded in Reynolds is “if there is reasonable danger that

compulsion of evidence will expose….matters which, in the interest of national

security, should not be divulged.” The privileged evidence is excluded from the

case which may incidentally also result in the dismissal of the claims98.

128 Unlike the standard in the United Kingdom, even the ‘most compelling necessity’

in disclosure cannot overcome the claim of privilege if the court is satisfied that

state secrets are at stake. Ordinarily, the evidence is excluded unlike a Totten bar

where the issue is declared non-justiciable, if the information relates to a class of

protected evidence. However, in some cases, the application of ‘privilege may

require dismissal of the action and at this point, the Reynolds privilege converges

with the Totten bar.

98 United States v. Reynolds, 345 US 1 (1953)

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129 The US Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen

Dataplan99 observed that in three circumstances, the termination of the case is

justified on the application of Reynolds privilege: (i) if the plaintiff cannot prove their

case prima facie; (ii) if the plaintiff prima facie proves their case but if the privilege

deprives the defendant of information that would provide the defendant a valid

defence, then the court may grant a summary judgment to the defendant; and (iii)

even if the claims might be theoretically established without relying on privileged

evidence, it may be impossible to proceed since the privileged evidence is

inseparable from the non-privileged.

130 The standard of scrutiny followed by the courts in the United States is different from

the United Kingdom on three basic principles: firstly, the standard established in

Reynolds privilege is to identify if the information relates to ‘protected classes’;

secondly, the court does not conduct the exercise of balancing the claims of

disclosure and non-disclosure. If the information relates to the protected class, the

claim is allowed irrespective of the effect of non-disclosure on the case and broader

constitutional principles; and thirdly, the burden of proof is on the affected party to

prove its case with non-privileged evidence and not on the State to prove the

necessity of non-disclosure.

H. 4 Canada

131 Similar to the Courts in the United Kingdom, the Canadian jurisprudence on nondisclosure of information has shifted away from ‘class’ scrutiny towards the scrutiny

99 614 F 3d 1070 (9th Cir 2010) (United States)

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of individual documents.100 The consistent view of the Canadian Courts has been

that the documents maybe withheld only ‘for the proper functioning of the executive

branch and not to facilitate its improper conduct’.101

132 Section 38 of the Canada Evidence Act 1985 stipulates the conditions for

disclosure of information that is sought to be protected. The Court undertakes the

following analysis to determine the validity of the claim of non-disclosure filed by

the Attorney General of Canada:

(i) The relevancy test: Whether the information sought to be disclosed is

relevant to the case. The burden of proof to prove relevancy of the

information is on the party claiming disclosure102;

(ii) The injury test: Whether the disclosure would be injurious to international

relations, national defence or national security.103 The burden of proving

injury due to disclosure is on the party opposing disclosure.104 The Court

must assess if the executive’s claim of injury has a factual basis. The

court at this stage must consider the nature of the information, and the

nature of the injury that is sought to be protected;

(a) The Court should order disclosure if the State is unable to discharge

its burden of proving it to the court that the disclosure of information

is injurious; and

100 Carey v. Majesty, (1986), 72 N.R 81 (SCC) 101 Ibid. 102 Ribic v. Canada (Attorney General), 2003 FCA 246 103 Section 38.06(1) of the Canada Evidence Act 104 Ribic (n 102)

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(b) The court must undertake a balancing exercise if the State has proved

that the disclosure would be injurious to national security;

(iii) The alternative test: Whether there are alternatives to full disclosure that

would protect a fair trial.

(iv) The balancing test: The Court must determine if public interest in

disclosure outweighs public interest in non-disclosure105. If it does, then

the information must be disclosed. The Court must consider the following

factors while undertaking the balancing exercise106:

(a) The ‘relative importance’ of the information in proving or defending

the claim- that is, whether the information is ‘necessary’ and ‘crucial’

to the case;

(b) the extent of injury that would be caused by the disclosure;

right to make a full answer and defence in the criminal context at

stake;

(d) the importance of the open court principle; and

(e) whether the redacted information is already known to the public.

105 Section 38.06(2) of the Canada Evidence Act 106 R v. Ahmad, (2011) SCC 6

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133 On the basis of the discussion on the public interest immunity claims for nondisclosure in the above-mentioned jurisdictions, the following conclusions emerge:

(i) The earlier position of law across all jurisdictions was that the courts

should be deferential to the claim of the government that the disclosure

of document(s) would be injurious to public interest. However, this

position has undergone a sea-change. It is now a settled position of law

that courts possess the power to assess the validity of public interest

immunity claims. The extent of such power is the bone of contention;

(ii) The extent of scrutiny of public interest immunity claims by the courts

hinges on four primary factors: (a) the identification of the injury that is

caused due to non-disclosure of information; (b) the extent of

permissibility of class claims; (c) the burden of proof; and (d) evidentiary

requirement to prove the claim;

(iii) The identification of injury due to non-disclosure and the assessment of

the ground for non-disclosure impacts the court’s standard of

assessment of the permissibility of class claims, the burden of proof and

the evidentiary requirement. The standard of scrutiny is higher when the

effect of non-disclosure of information is not identified based on a narrow

reference to the facts before the court but on its wider implications to

democratic governance and rule of law;

(iv) The courts in India, the United Kingdom, and Canada have held that the

non-disclosure of relevant material affects public interest, and the

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interests of the party seeking disclosure. The non-disclosure of

information injures the principle of open government which is one of the

basic premises of a democracy. It denies the citizens an opportunity to

initiate a discussion or question the functioning of the government.

However, the Courts in the United States have been deferential to the

claim of non-disclosure, particularly on the ground of national security so

much so that the court does not undertake a balancing exercise between

the claims of disclosure and non-disclosure. This is also because the

courts in the United States give prominence to the objective of nondisclosure as opposed to its effect;

(v) The standard laid down in India (in SP Gupta), United Kingdom, and

Canada on the assessment of PII claims is similar to the extent that the

impact of non-disclosure on broader principles of constitutional

governance is also considered;

(vi) In Canada, the party seeking production is required to prove relevancy

of the material sought after the PII claim is made by the state. The

inclusion of the relevancy test as one of the tests imposes a heightened

burden of proof than what is required otherwise. This is because the court

is at that stage aware that the state is contesting the production on

grounds of national security. Such claims are always met with a

deferential tone by the courts. Secondly, and most importantly, this leads

to an integration of the discovery stages and the objection stages. This

integration is problematic because the considerations of the court at the

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discovery stage and objection stage are distinct. The party seeking

discovery of documents must prima facie prove the relevance of the

document to the proceedings. Once the party discharges this burden,

and the court orders disclosure, the state may object to disclosure on the

ground that it would injure public interest. At this stage, the burden is

wholly on the state to prove injury to public interest. After the objection is

raised, the relevancy of the disclosure must only be weighed at the

balancing stage. Identifying the relevancy of the document even before

the state is required to discharge the burden of proving public interest

introduces a fundamental misconception in the application of public

interest immunity which is an exception to the production of documents.

Furthermore, at an elementary level, it would be impossible to prove the

relevancy of the document to the proceedings without the party having

viewed it; and

(vii) Once the injury due to disclosure is proved, the Courts in the UK and

Canada follow the structured proportionality test to balance the

conflicting claims of public interest.

134 According to the Code of Civil Procedure 1908, a party to a proceeding may file an

application for discovery to secure knowledge of information that the other party

holds. A party may file an application,107 without filing any affidavit, seeking a

direction for disclosure of documents relating to any matter in question in the

possession or power of the other party. The Court may either refuse or adjourn the

107 Order XI Rule 12 of CPC 1908

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application if it is satisfied on the hearing of the application that such discovery is

not necessary at the stage of the suit. Additionally, the Court shall issue an order

limiting the discovery to ‘certain classes of documents’. The application shall be

dismissed if the discovery of documents is not necessary for the fair disposal of the

suit or for saving costs. It must be noted that the provision uses the phrase ‘fair

disposal of the suit’. The use of the said expression includes the spirit of the

requirements of procedural and substantive fairness. If the Court allows the

application considering that the discovery is necessary, the other party should file

an affidavit listing the documents that are in their possession relating to the matter

is question. The affidavit must be produced in the form specified in Form No. 5 in

Appendix C, ‘with such variations as circumstances may require.’108 The form in

which the affidavit is required to be made is extracted below:

No. 5

AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 13.)

(Title as in No. 1, supra)

I, the above-named defendant C. D., make oath and say

as follows : —

1. I have in my possession or power the documents

relating to the matters in question in this suit set forth in the

first and second parts of the first schedule hereto.

2. I object to produce the said documents set forth in

the second part of the first schedule hereto [state

grounds of objection.]

3. I have had but have not now, in my possession or power

the documents relating to the matters in question in this

suit set forth in the second schedule hereto.

4. The last-mentioned documents were last in my

possession or power on. [State when and what has

become of them and in whose possession they now are.]

5. According to the best of my knowledge, information and

belief I have not now, and never had, in my possession,

custody or power, or in the possession, custody or power

of my pleader or agent, or in the possession, custody or

power of any other person on my behalf, any account, book

108 Order XI Rule 13 of CPC 1908

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of account, voucher, receipt, letter, memorandum, paper or

writing, or any copy of or extract from any such document,

or any other documents whatsoever, relating to the matters

in question in this suit or any of them, or wherein any entry

has been made relative to such matters or any of them,

other than and except the documents set forth in the said

first and second schedules hereto.

(emphasis supplied)

135 After the court has directed disclosure of all documents, the party who is directed

to disclose all the relevant documents may object to the disclosure of specific

documents in its possession in the form prescribed in Annexure C of the Code. It

must be noted that Order XI Rule 13 CPC stipulates that the form of discovery may

be changed if circumstances require. The purpose of referring to the provisions of

the CPC on discovery, inspection, and production is to elucidate and expand upon

the principle that guides these provisions. That is, while a party seeks discovery of

documents that are in the possession of the other party, it is not necessary to prove

that disclosure of the documents would be relevant to the outcome of the

proceedings. Such a consideration does not arise at the stage of discovery. It is

only justified that the burden of proof lies entirely on the party objecting disclosure

to prove injury to public interest, and to justify the claim of public interest immunity.

It is of utmost importance that the burden that is placed on the party seeking

production at the discovery stage is not conflated with the burden placed on the

party opposing such discovery at the stage of objection to the discovery.

136 The Constitution Bench of this Court in SP Gupta (supra) has held that if the state

objects to disclosure of documents on the ground of public interest immunity, then

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the Courts shall assess the validity of the objection based on the reasons in the

affidavit. The Court has the power to inspect the document if on a perusal of the

affidavit, the Court has ‘any doubt on whether the document relates to the affairs

of the state’.

109 It is therefore, of abundant importance that the affidavit stipulating

the reasons of the non-disclosure (along with the grounds) is made in sufficient

detail so as to enable the courts to assess the claim of PII. This Court in SP Gupta

(supra) has observed that the claim has to be made by the minister who is the

political head of the department concerned or, failing him, by the secretary of the

department. The claim should always be made in the form of an affidavit. The

extent of information required to be placed in the affidavit to enable the government

to discharge the onus of justification is based on the standard of scrutiny that the

Court applies to assess public interest immunity claims.

I. Proportionality standard to test public interest immunity claims

137 The substance of a public interest immunity claim is to seek an exception to the

compliance of principles of natural justice. We have already held above that a

departure from compliance of principles of procedural fairness, after it has been

proved that the party has been denied a fair and reasonable hearing due to noncompliance must be tested on the proportionality standard.

138 In addition to the above discussion, we are of the opinion that the courts must use

the proportionality standard to assess claims of public interest immunity for the

following reasons:

109 SP Gupta (Paragraph 77)

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(i) Firstly, the state while making a claim for public interest immunity seeks

an accommodation to deviate from an established principle of natural

justice, that is, the right to know the case that is made against a person

due to non-disclosure of relevant material. This claim by its very nature

infringes upon the right to a fair trial or hearing that flows from Article 21

of the Constitution. The role of the courts while assessing the validity of

the claim of public interest immunity is restricted to determining if the

infringement of the right that is protected under Article 21 of the

Constitution is reasonable;

(ii) Secondly, though the Constitution Bench of this Court in SP Gupta

(supra) did not use the standard of structured proportionality as it exists

in the present form to assess the claim of PII, the standard that was laid

down resembled the sub-facets of the proportionality standard as the

focus was on: (i) effect and not the purpose of non-disclosure; and (ii)

balancing the effects of disclosure and non-disclosure (both on facts and

principle). This Court shifted the focus away from the claim based on

‘class of documents’ and towards the impact of non-disclosure of

individual material. These two principles are important components of the

standard of structured proportionality that was laid down by this Court in

Justice KS Puttaswamy (9J) (supra);

(iii) The proportionality standard in addition to introducing a culture of

justification by prescribing a standard four step test that must be satisfied

also provides sufficient flexibility within each step for the courts to apply

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the jurisprudence that has already been evolved by the courts on the

subject matter; and

(iv) Lastly, PII claim is founded on common law doctrine. The jurisprudence

that has emanated from various common law countries on the subject

has been relied on by the Courts in India to the extent permitted by our

constitutional scheme. The jurisprudence that has emanated from other

common law countries on this subject has a persuasive value. The courts

in both the United Kingdom and Canada use the proportionality standard

to assess the validity of a PII claim.

139 The structured proportionality standard used by the courts to test the infringement

of fundamental rights has to be remodelled along the lines of the jurisprudence on

public interest immunity, if need be. It is crucial to note the difference in the

terminology between Article 19(2) to Article 19(6) of the Constitution and Section

124 of the Evidence Act. The reasonable restriction clauses in Article 19 stipulate

that the right can be ‘reasonably restricted’ in the interests of sovereignty and

integrity of India […]. Section 124 stipulates that the restriction to disclosure is only

justified if public interest is injured. Section 124, thus, prescribes a heightened

standard for the application of public interest immunity.

140 The proportionality standard tests the effect of the infringement only at the

balancing stage. Both the suitability prong and legitimate aim prong of the

proportionality standard are framed in the language of purpose as opposed to

effects. Section 124 of the Evidence Act stipulates that the right to fair trial and the

right to information protected under Articles 21 and 19(1)(a) cannot be restricted to

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advance a public interest. The principle implicit in Section 124 of the Evidence Act

is that no purpose could be of sufficient importance to override the right to a fair

hearing. Such a restriction is unjustified. It is only an injury of public interest that

justifies the non-disclosure of documents.

141 In view of the above discussion, the proportionality standard laid down by this Court

in Modern Dental (supra) has to be nuanced keeping in view the standard that is

prescribed by the provisions of Section 124 of the Evidence Act and the

observations of this Court in SP Gupta (supra). Apart from the measure being in

furtherance of a legitimate goal, there must be an injury to a legitimate goal. The

burden is on the party opposing disclosure of material to prove all the sub-facets

of the proportionality standard. The structured proportionality standard based on

the principles in Section 124 of the Evidence Act is as follows:

(i) Whether the disclosure of information would injure public interest (injury

stage);

(ii) Whether there is a less restrictive but equally effective alternative means;

by which the injury to public interest could be protected (necessity stage);

and

(iii) Whether the public interest in non-disclosure outweighs the public

interest in disclosure (balancing stage).

142 In the balancing stage, as has already been laid down by this court in SP Gupta

(supra) and the courts in the United Kingdom and Canada, considerations based

on the facts of the case and on broader questions of principle have to be assessed.

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The Court has to consider if non-disclosure would render the issue non-justiciable,

the relative relevancy of the material - on whether the material is ‘crucial’ or

‘necessary’, or is the essence of the case against the claimant, among others. On

questions of principles, the Court shall consider the impact of non-disclosure on

other constitutional rights such as the freedom of press.

J. Public interest immunity or sealed cover: the less restrictive means

143 The court must follow the structured proportionality standard, modified on the

basis of the content of Section 124 of the Evidence Act, to assess claims of public

interest immunity. Under the structured proportionality standard, the court places

the burden of proof on the party opposing disclosure of documents to prove the

claim of public interest in non-disclosure. The proportionality test prescribes a strict

standard to test the reasonableness of an action. As opposed to the structured

standard of proportionality which must be used by the court to assess public

interest immunity claims, the exercise of power by courts to secure material in a

sealed cover has rather been ad-hoc and extemporaneous.

144 Article 145 of the Constitution grants the Supreme Court the power to make rules

for regulating the practice and procedure of the Court. In pursuance of its power

under Article 145, the Supreme Court Rules 1966110 were notified. These Rules

did not contain any provision on disclosure of documents to the court in a sealed

cover. The 1966 Rules were substituted by the Supreme Court of India Rules 2013.

Order XIII Rule 1 of the Supreme Court Rules 2013 stipulates that a party to a

proceeding in the Supreme Court shall be entitled to apply for and receive certified

110 “1966 Rules”

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copies of all pleadings, judgments, decrees or orders, documents and deposition

of witnesses made or exhibited in the proceeding. Rule 7 provides an exception to

the rule. The rule stipulates that no person has a right to documents that are (i)

confidential; (ii) directed to be placed in a sealed cover by the court or the Chief

Justice; and (iii) the disclosure of which is not in public interest. The rule states that

documents that fall within any of the above clauses can be disclosed only with the

permission of the court or the Chief Justice. Order XIII Rule 7 is extracted below

for reference:

“7. Notwithstanding anything contained in this order, no

party or person shall be entitled as of right to receive

copies of or extracts from any minutes, letter or document

of any confidential nature or any paper sent, filed or

produced, which the Chief Justice or the Court directs to

keep in a sealed cover or considers to be of confidential

nature or the publication of which is considered to be not

in the interest of the public, except under and in

accordance with an order made by the Chief Justice or by

the Court.”

145 The power of the court to receive material relevant to a proceeding in a sealed

cover is read from Order XIII Rule 7. Unlike the closed material procedure in the

United Kingdom and Canada, the sealed cover procedure is not a creation of the

legislature but of the courts. In fact, Rule 7 while prescribing the power of the court

to receive material in a sealed cover also recognises non-disclosure on the ground

of public interest immunity. The provision does not stipulate any guidelines for the

exercise of power by the court to secure material in a sealed cover. However, the

Rule as a whole indicates that the court may exercise its power to secure material

in a sealed cover if the material is confidential or the disclosure of which would

injure public interest. As discussed above, public interest immunity claims also

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seek to address the same harms. It was not intended that the sealed cover

procedure shall replace public interest immunity proceedings which constitute an

established method for dealing with claims of confidentiality. The sealed cover

procedure cannot be introduced to cover harms that could not have been remedied

by public interest immunity proceedings.

146 In both the sealed cover procedure and public interest immunity claims, the

documents that are sought to be withheld from disclosure are not revealed to the

counsel for the applicant. The proceedings, in effect, are conducted ex-parte where

the counsel for the party claiming disclosure is precluded from accessing a part of

the record in the proceedings. However, one crucial difference between the sealed

cover procedure and public interest immunity claims is that in the former, the court

relies on the material that is disclosed in a sealed cover in the course of the

proceedings, as opposed to the latter where the documents are completely

removed from the proceedings and both the parties and the adjudicator cannot rely

on such material. Sealed cover procedures violate both principles of natural justice

and open justice. In Al Rawi v. The Security Service111, the Supreme Court of the

United Kingdom recognised that the closed material procedure causes a greater

degree of harm as compared to the public interest immunity. As held above, the

closed material procedure is similar to the sealed cover procedure in as much as

relevant material that is not disclosed to the applicant is used in the course of

substantive hearings. In that case, the issue before the Court was whether the

court has the power to order a closed material procedure for the whole or a part of

111 (2011) UKSC 34

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the trial. In a closed proceeding, the claimant would be represented by a Special

Advocate who would be unable to take instructions from the claimant. The

Supreme Court of the United Kingdom observed that a closed material procedure,

unlike the law relating to public interest immunity, departs from the principles of

both open justice and natural justice. Lord Dyson in his opinion observed as

follows:

“41. […]The PII procedure respects the common law

principles to which I have referred. If documents are

disclosed as a result of the process, they are available to

both parties and to the court. If they are not disclosed, they

are available neither to the other parties nor to the court.

Both parties are entitled to full participation in all aspects

of the litigation. There is no unfairness or inequality of

arms. The effect of a closed material procedure is that

closed documents are only available to the party which

possesses them, the other side’s special advocate and the

court. I have already referred to the limits of the special

advocate system.”

147 The total removal of the information from the proceedings has two impacts. First,

it may lead to the dismissal of the proceedings instituted by the claimant, rendering

the issue non-justiciable. Second, it may render the defendant (in this case, the

State) defenceless. The court must also take into account these considerations

while deciding if a public interest immunity claim is a less restrictive means. Thus,

at the second stage, the enquiry turns into whether the information excluded on a

successful PII claim can be fairly removed from the proceeding.

148 The report by the New Zealand Law Commission on National Security Information

in Proceedings provides a two-step procedure for dealing with sensitive

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information.112 The first consideration is whether the information should be

disclosed to the party on a balance of considerations. The second consideration is

whether the information can be fairly excluded from the proceedings. The

Commission recommended that the court should opt for the closed material

proceedings only if the material is ‘sufficiently relevant to the proceedings that it

would be in the interest of justice to use a closed procedure rather than to exclude

the information and proceed without it.” That is, the court concludes that national

security considerations are so high that they trump over the relevancy of the

document in proceedings but the information cannot be fairly excluded from the

proceedings because it would cause one of the two injuries recognised above. The

Commission recommends that it would be in the interest of justice to follow the

closed proceedings to obviate such unfairness. The report recommended that the

closed material procedure was to be used in addition to the public interest immunity

procedure to protect the interest of justice. The report of the Law Commission of

New Zealand also recognised that though the option of a closed procedure would

be available to the State, it would be difficult for the State to prove that this would

be in the interests of justice because it seeks to withhold information from the

claimant and use it against them. The relevant observations of the Commission are

extracted below :

“5.51 At this second stage, the court determines whether

to order the use of a closed procedure for part of the

substantive hearing. The court should only order that part

of the substantive hearing be closed where it is satisfied

that the national security information is sufficiently relevant

to the proceedings that it is in the interests of justice to use

a closed procedure rather than to exclude the information

112 Law Commission, The Crown in Court: A review of the Court proceedings Act and National Security Information

in Proceedings (December 2015, Wellington, New Zealand) Report 135

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and have the case proceed without it. Although a closed

procedure would be available in cases where the national

security information was beneficial to the Crown’s case,

the interests of justice test will be much harder for the

Crown to satisfy because it is seeking to withhold

information from the other party but also use it against

them. In some cases where the Crown is defending an

action, the courts may consider that this is appropriate, but

we would anticipate this would be quite rare. It is more

likely that a closed procedure would be in the interests of

justice where it would prejudice the non-Crown party if the

court excluded the national security information.”

149 The Supreme Court of the United Kingdom dealt with the effect of exclusion of

relevant material on a successful claim of public interest immunity in Al Rawi

(supra). In that case, it was argued by the State that the Court must exercise its

inherent power to order a closed material procedure in certain classes of cases,

such as where the defendant cannot deploy its defence fully (or sometimes not at

all) if an open procedure is followed. It was argued that exclusion of relevant

material from the proceedings after the public interest immunity exercise reduces

the chances of the court reaching a correct outcome. In other words, the case of

the State was that the court has the power to substitute a closed material procedure

for public interest immunity exercise in exceptional circumstances. While the Court

unanimously agreed that the courts cannot substitute a public interest immunity

procedure with the closed material procedure, the judges disagreed on whether a

closed material procedure can be used in addition, and not in alternative, to the

public interest immunity procedure.

150 Lord Dyson in his opinion held that the court does not have the power to direct

closed material procedure in addition to public interest immunity claim because: (i)

closed material procedure is the antithesis of public interest immunity procedure.

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There is no equality of arms in closed material procedure; (ii) the party in

possession of the document possesses sole knowledge of whether the document

would be beneficial in their case. The claimant, who does not have access to the

material would not be aware if the material would affect their case. It would thus

put them in a disadvantageous position making the procedure inherently unfair to

the one of the parties; and (iii) the courts should not be called to perform the

exercise of deciding the relevance of a document to the case of claimant and the

defendant.

151 Lord Kerr in his opinion pointed out two additional problems with the argument of

the State. He noted that the proposition that placing all evidence before the Judge

is preferable to withholding potentially pivotal evidence from the proceedings is

misleading. Lord Kerr observed that it cannot be assumed that the adjudicator

would reach a fair result since the judge sees all the evidence because to be truly

valuable, the evidence must be capable of withstanding challenge. The relevant

observations are extracted below:

“ 93. The appellants’ second argument proceeds on the

premise that placing before a judge all relevant material is,

in every instance, preferable to having to withhold

potentially pivotal evidence. This proposition is deceptively

attractive - for what, the appellants imply, could be fairer

than an independent arbiter having access to all the

evidence germane to the dispute between the parties? The

central fallacy of the argument, however, lies in the

unspoken assumption that, because the judge sees

everything, he is bound to be in a better position to reach

a fair result. That assumption is misplaced. To be truly

valuable, evidence must be capable of withstanding

challenge. I go further. Evidence which has been

insulated from challenge may positively mislead. It is

precisely because of this that the right to know the

case that one’s opponent makes and to have the

opportunity to challenge it occupies such a central

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place in the concept of a fair trial. However astute and

assiduous the judge, the proposed procedure hands

over to one party considerable control over the

production of relevant material and the manner in

which it is to be presented. The peril that such a

procedure presents to the fair trial of contentious

litigation is both obvious and undeniable.”

(emphasis supplied)

152 Lord Kerr further observed that the State faces a healthy dilemma with public

interest immunity claims since it will want to produce as much material as it can to

defend its claim and would not resort to public interest immunity claims comfortably

because if their claim is allowed, then the material will be removed from the

proceedings itself. The learned Judge observed that it would be tempting for the

State to seek a closed material procedure claiming that all the documents when

disclosed would injure national security.

153 Lord Mance (with whom Lord Hale agreed) and Lord Clarke held that the court has

the power to order a closed material procedure in certain circumstances after the

public interest immunity claim is decided. However, they disagreed on what those

certain circumstances would be. In Lord Mance’s view, after the public interest

immunity claim is allowed, the court may order a closed material procedure if the

material is in the defendant’s possession and the claimant consents for such a

procedure to avoid their claim from being struck out. In Lord Clarke’s view, after

the public interest immunity process has been completed, the parties should

consider their respective positions and make representations to the judge who may

order a closed material procedure depending on the facts of the case.

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154 The recommendations of the Law Commission of New Zealand and the opinions

of Lord Clarke and Lord Mance in Al Rawi (supra) introduce closed material

proceedings as an additional step after the completion of public interest immunity

proceedings. The court in a closed material procedure, similar to the sealed cover

process, relies on the material that the claimant is not privy to while disposing the

proceedings. The closed material proceedings are sought to be introduced to

counterbalance the injustice(s) caused on the conclusion of the public interest

immunity proceedings.

155 The claimant would be jumping into a pit of fire with their eyes closed even if they

consent to a sealed cover procedure. As Lord Kerr remarked in Al Rawi (supra),

the claim that closed material procedure would provide a fairer outcome is

premised on the assumption that the adjudicator is impartial. However, beyond this

assumption, it must be recognised that the court could be misled by the material

that is not subject to inspection and examination. This would lead a situation where

the court renders an unfair judgment and such an unfair decision would not be

amenable to both judicial review and public criticism on merits.

156 While it cannot be denied that allowing a public interest immunity claim may cause

some degree of injury to the procedural guarantees of the claimant and the

defendant, a sealed cover procedure will not ensure a fairer proceeding. The

purpose of public interest immunity proceedings would become redundant if the

defendant is provided the option of requesting a closed material procedure after

the conclusion of public interest immunity proceedings, which the defendant

makes, is allowed. Rather, we are of the opinion that the effect of public interest

PART J

122

immunity proceedings of removing the evidence completely from the proceedings

would persuade the State in making restricted claims of public interest immunity.

Further, as Lord Dyson remarked, the procedure would be inherently

disadvantageous to the claimant because they are unaware of the contents of the

document.

157 It may be argued that the removal of the documents from the proceedings would

render the proceedings non-justiciable if the documents that are sought to be

protected are so closely intertwined with the cause of action. Though the argument

holds merit on a cursory glance, it does not hold water when delved into deeper.

As observed above, one of the relevant considerations for the court in the

balancing stage of adjudicating the public interest immunity claim is whether the

non-disclosure of the material would render the issue non-justiciable. The court

while analysing the relevancy of the material and the potential non-justiciability of

the issue due to non-disclosure may direct that the material should be disclosed.

The purpose of the balancing prong is to weigh in the conflicting claims and effects

of such claims. Even if the disclosure would conceivably injure public interest, the

courts may still dismiss the claim of public interest immunity if the non-disclosure

would render the issue non-justiciable, and on the facts of the case it is decided

that the injury due to non-disclosure overweighs the injury due to disclosure.

158 The courts could adopt the course of action of redacting the confidential portions

of the document and providing a summary of the contents of the document instead

of opting for the sealed cover procedure to fairly exclude the document from the

proceedings on a successful public interest immunity claim. Both the parties can

PART J

123

then only be permitted to refer to the redacted version of the document or the

summary in the proceeding. In view of the above discussion, we are of the opinion

that public interest immunity proceeding is a less restrictive means to deal with

non-disclosure on the grounds of public interest and confidentiality. This leaves the

final issue to be answered: if public interest immunity is a less restrictive means,

then whether the procedure of sealed cover can be used at all, and if so, in what

circumstances would it be permissible for the court to exercise its power to secure

evidence in a sealed cover. While it would be beyond the scope of this judgment

to lay down the possible situations when the sealed cover procedure can be used,

it is sufficient to state that if the purpose could be realised effectively by public

interest immunity proceedings or any other less restrictive means, then the sealed

cover procedure should not be adopted. The court should undertake an analysis

of the possible procedural modalities that could be used to realise the purpose,

and the means that are less restrictive of the procedural guarantees must be

adopted.

159 In view of the observations above, we are of the opinion that the respondents by

not providing a reasoned order denying the renewal of license, not disclosing the

relevant material, and by disclosing the material only to the court in a sealed cover

have violated the appellant’s right to a fair hearing protected under Article 21 of the

Constitution. The respondents were unable to prove that the restrictions on the

appellants’ right to a fair hearing were reasonable. Therefore, the order of MIB

dated 31 January 2022 denying permission for renewal of the license and the

judgment of the Division Bench of the High Court dated 2 March 2022 must be set

aside on the ground of the infringement of procedural guarantees.

PART K

124

K Substantive Challenge: the validity of the action of the MIB in denying to

renew the permission

160 In the course of his arguments, Mr Huzefa A Ahmadi, in addition to arguments on

the violation of procedural guarantees, requested the court to peruse the material

that was disclosed solely to the court in a sealed cover to decide if there was

sufficient material to justify the non-renewal of permission. Thus, notwithstanding

the conclusion that we have reached above setting aside the order of the MIB dated

31 January 2022 and the judgment of the High Court dated 2 March 2022 on

procedural grounds, we will proceed to decide the substantive challenge to the

order denying renewal of permission on the ground of denial of security clearance

by the MHA.

161 In 2010, MBL applied for permission to uplink and downlink the news and current

affairs television channel, ‘Media One’. MHA sought reports from IB and CBI for

granting security clearance. CBI remarked that there was nothing adverse on

record against MBL. IB reported that MBL shares a close association with

‘Madhyamam Daily’, and that the tenor of the articles carried out by Madhyamam

Daily are adverse. To substantiate its conclusion on the adverse tenor of the

articles, IB referred to reports of Madhyamam Daily on the alleged discrimination

against Muslims in India and the allegedly soft attitude taken against “Hindu

fundamentalists responsible for bomb blasts as opposed to the view taken against

Muslim fundamentalists”. MHA considered the report and concluded that the

remarks were not strong enough to deny permission on security grounds, thereby

granting security clearance to MBL.

PART K

125

162 Between 2014-2019, similar reports were submitted by IB when security clearance

was sought for other proposals of MBL. IB made adverse remarks on MBL’s main

source of income which was alleged to be from JEI-H sympathizers, and its antiestablishment stance. To substantiate its conclusion that MBL has been taking an

anti-establishment stance, references were made to its reports on UAPA, Armed

Forces (Special Powers) Act, development projects of the Government, encounter

killings, Citizenship (Amendment) Act, NRC, NPR, the Indian Judiciary’s alleged

“double standards in terrorism cases”, and the alleged portrayal of security forces

in a bad light. MHA denied security clearance based on the IB reports. We are

required to decide if these reasons provide a justifiable ground for the denial of

security clearance, and consequently, restricting MBL’s right to the freedom of

press under Article 19(1)(a) of the Constitution.

163 The freedom of the press which is protected as a component of Article 19(1)(a) can

only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The

grounds stipulated in Article 19(2) include the “sovereignty and integrity of India,

the security of the State, friendly relations with Foreign States, public order,

decency or morality or in relation to contempt of court, defamation or incitement to

an offence.” We have already held in Part C of this judgment that security clearance

is a requirement for renewal of an Uplinking and Downlinking license. The denial

of security clearance to operate a news channel is a restriction on the freedom of

press, and such restriction is constitutionally permissible only on the grounds

stipulated in Article 19(2) of the Constitution.

PART K

126

164 Though the courts have been using the proportionality standard to test the

reasonableness of restrictions on fundamental rights after the decisions in Modern

Dental (supra) and Justice KS Puttaswamy (9J) (supra), this has generally been

deployed in the area of legislative action. The position laid down by this court is

that all violations of fundamental rights have to be tested on the standard of

proportionality. The court under Article 13 of the Constitution has the power to

declare ‘laws’ that violate fundamental rights to be void. For the purpose of the

provision, ‘law’ includes administrative action. The position of law that

administrative action infringing fundamental freedoms has to be tested on the

proportionality standard has been established by this court in its earlier

judgments.

113 Thus, the action of the MIB denying renewal of permission will be

judicially reviewed based on the proportionality standard.

165 The first test of the proportionality standard as laid down by this Court in Modern

Dental (supra) requires the court to assess if the measure restricting the right has

a legitimate goal. Article 19, unlike other provisions of Part III of the Constitution,

prescribes the purposes for which the rights recognised can be reasonably

restricted. Thus, the purpose of the state action that is challenged must necessarily

be traceable to the grounds stipulated in Article 19(2) to test if the freedom of press

has been reasonably restricted. Security clearance was denied on the basis of two

grounds: the alleged anti-establishment stand of MBL, and the alleged link of MBL

with JEI-H.

113 Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. Ganayutham, (1997) 7 SCC 463

PART K

127

166 An independent press is vital for the robust functioning of a democratic republic.

Its role in a democratic society is crucial for it shines a light on the functioning of

the state. The press has a duty to speak truth to power, and present citizens with

hard facts enabling them to make choices that propel democracy in the right

direction. The restriction on the freedom of the press compels citizens to think

along the same tangent. A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy.

167 The critical views of the Channel, Media-One on policies of the government cannot

be termed, ‘anti-establishment’. The use of such a terminology in itself, represents

an expectation that the press must support the establishment. The action of the

MIB by denying a security clearance to a media channel on the basis of the views

which the channel is constitutionally entitled to hold produces a chilling effect on

free speech, and in particular on press freedom. Criticism of governmental policy

can by no stretch of imagination be brought withing the fold of any of the grounds

stipulated in Article 19(2).

168 The note that was submitted by the IB on the alleged role and activities of JEI-H

states that the organisation was banned thrice and all the three bans were revoked.

The organisation was banned last in 1992 under the Unlawful Activities

(Prevention) Act 1947. This Court had nullified the ban in 1994. Thus, when JEI-H

is not a banned organisation, it would be rather precarious for the State to contend

that the links with the organisation would affect the sovereignty and integrity of the

nation, the security of the State, friendly relations with Foreign States, or public

order. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the

PART K

128

alleged investment in the shares of MBL by cadres of JEI-H. In the support of this,

IB has submitted a list of shareholders. However, there is no evidence on record

to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious,

firstly, because JEI-H is not a banned organisation and there is no material to

conclude that the investment by JEI-H sympathizers would affect India’s security,

and secondly, even if it is accepted that the investment by JEI-H sympathizers

would affect the security of the State, there is no material to prove that the

shareholders are sympathizers of JEI-H. In view of the discussion above, the

purpose of denying security clearance does not have a legitimate goal or a proper

purpose.

169 The IB has noted that the above material against MIB attracts Sl. No. 20 and 22 of

the security parameters annexed to the 2018 Guidelines which are used to assess

security clearance proposals. Sl No. 20 reads as “Involvement in religious

proselytization activities in India”, and Sl. No. 22 reads as “Intentional or systemic

infringement of safety concerns or security systems endangering the safety of the

public”. There is no rational nexus between the material submitted against MBL to

the security parameters in Sl. No 20 and 22 of the security parameters. MBL cannot

be said to be indulging in religious proselytization for merely publishing reports on

the alleged discrimination against the Muslim community in India, or infringing

safety concerns by a mere reference to the shareholding pattern of MBL.

PART L

129

L Conclusion and Directions

170 In view of the discussion above, the appeals are allowed and the order of the MIB

dated 31 January 2022 and the judgment of the High Court dated 2 March 2022

are set aside. We summarise our findings below:

(i) Security clearance is one of the conditions required to be fulfilled for

renewal of permission under Uplinking and Downlinking Guidelines;

(ii) The challenge to the order of the MIB and judgment of the High Court on

procedural grounds is allowed for the following reasons:

(a) The principles of natural justice were constitutionalised by the

judgement of this Court in Maneka Gandhi (supra). The effect is that

the courts have recognised that there is an inherent value in securing

compliance with the principles of natural justice independent of the

outcome of the case. Actions which violate procedural guarantees

can be struck down even if non-compliance does not prejudice the

outcome of the case. The core of the principles of natural justice

breathes reasonableness into procedure. The burden is on the

claimant to prove that the procedure followed infringes upon the core

of procedural guarantees;

(b) The appellants have proved that MBL’s right to a fair hearing has

been infringed by the unreasoned order of the MIB dated 31 January

2022, and the non-disclosure of relevant material to the appellants,

and its disclosure solely to the court. The burden then shifts on the

PART L

130

respondents to prove that the procedure that was followed was

reasonable and in compliance with the requirements of Articles 14

and 21 of the Constitution. The standard of proportionality has been

used to test the reasonableness of the procedure.

(supra) and Digi Cable Network (supra) held that the principles of

natural justice may be excluded when on the facts of the case,

national security concerns overweigh the duty of fairness;

(d) Though confidentiality and national security are legitimate aims for

the purpose of limiting procedural guarantees, the state has been

unable to prove that these considerations arise in the present factual

scenario. A blanket immunity from disclosure of all investigative

reports cannot be granted;

(e) The validity of the claim of involvement of national security

considerations must be assessed on the test of (i) whether there is

material to conclude that the non-disclosure of information is in the

interest of national security; and (ii) whether a reasonable prudent

person would draw the same inference from the material on record;

(f) Even assuming that non-disclosure is in the interest of confidentiality

and national security, the means adopted by the respondents do not

satisfy the other prongs of the proportionality standard. The nondisclosure of a summary of the reasons for the denial of security

PART L

131

clearance to MBL, which constitutes the core irreducible minimum of

procedural guarantees, does not satisfy the suitability prong;

(g) The courts assess the validity of public interest immunity claims,

which address the same harms as the sealed cover procedure, based

on the structured proportionality standard. The power of courts to

secure material in a sealed cover when contradistinguished with the

scope of assessment of public interest immunity claims is rather

unguided and ad-hoc. The standard of review that is used by the

courts in public interest immunity claims and the lack of such a

standard in sealed cover proceedings to protect procedural

safeguards indicates that public interest immunity claims constitute

less restrictive means. Additionally, while public interest immunity

claims conceivably impact the principles of natural justice, sealed

cover proceedings infringe the principles natural justice and open

justice;

(h) The courts could take the course of redacting confidential portions of

the document and providing a summary of the contents of the

document to fairly exclude materials after a successful public interest

immunity claim; and

(iii) The challenge to the order of MIB is allowed on substantive grounds. The

non-renewal of permission to operate a media channel is a restriction on

the freedom of the press which can only be reasonably restricted on the

grounds stipulated in Article 19(2) of the Constitution. The reasons for

PART L

132

denying a security clearance to MBL, that is, its alleged antiestablishment stance and the alleged link of the shareholders to JEI-H,

are not legitimate purposes for the restriction of the right of freedom of

speech protected under Article 19(1)(a) of the Constitution. In any event,

there was no material to demonstrate any link of the shareholders, as

was alleged.

171 While we have concluded that a public interest immunity claim is a less restrictive

means, the dilution of procedural guarantees while hearing the claim cannot be

ignored by the Court. It is only the Court and the party seeking non-disclosure of

the material who are privy to the public interest immunity proceedings. The court

has a duty to consider factors such as the relevance of the material to the case of

the applicant while undertaking the proportionality standard to test the public

interest immunity claim. However, the applicant who is unrepresented in the

proceedings would be effectively impaired. While there may be material on serious

concerns of national security which cannot be disclosed; the constitutional principle

of procedural guarantees is equally important and it cannot be turned into a dead

letter. As the highest constitutional court, it is our responsibility to balance these

two considerations when they are in conflict. To safeguard the claimant against a

potential injury to procedural guarantees in public interest immunity proceedings,

we have recognised a power in the court to appoint an amicus curiae. The

appointment of an amicus curiae will balance concerns of confidentiality with the

need to preserve public confidence in the objectivity of the justice delivery process.

172 The amicus curiae appointed by the Court shall be given access to the materials

sought to be withheld by the State. The amicus curiae shall be allowed to interact

PART L

133

with the applicant and their counsel before the proceedings to ascertain their case

to enable them to make effective submissions on the necessity of disclosure.

However, the amicus curiae shall not interact with the applicant or their counsel

after the public interest immunity proceeding has begun and the counsel has

viewed the document sought to be withheld. The amicus curiae shall to the best of

their ability represent the interests of the applicant. The amicus curiae would be

bound by oath to not disclose or discuss the material with any other person,

including the applicant or their counsel.

173 Article 145 of the Constitution stipulates that all judgments of the Supreme Court

shall only be delivered in open court. Though public interest immunity proceedings

will take place in a closed setting, the Court is required to pass a reasoned order

for allowing or dismissing the claim in open court. We are cognizant of the objection

that may be raised that an order justifying the reasons for allowing the claim would

have to inevitably disclose information on the very material that it seeks to protect.

The Court in such cases is still required to provide a reasoned order on the

principles that it had considered and applied, even if the material that is sought to

not be disclosed is redacted from the reasoned order. However, the redacted

material from the reasoned order shall be preserved in the court records which may

be accessed by the courts in the future, if the need arises.

174 The Civil Appeals are accordingly allowed. MIB shall now proceed to issue renewal

permissions in terms of this judgment within four weeks and all other authorities

shall co-operate in issuing necessary approvals. The interim order of this Court

shall continue to operate until the renewal permissions are granted.

PART L

134

175 Pending application(s), if any, stand disposed of.

……………………………………………CJI

[Dr Dhananjaya Y Chandrachud]

……………………………………………….J

[Hima Kohli]

New Delhi;

April 05, 2023

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