2023 (7) TMI 1010

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... mpliance 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 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. (c) The judgments of this court in EX. ARMYMEN S PROTECTION SERVICES P. LTD. VERSUS UNION OF INDIA (UOI) AND ORS. [ 2014 (2) TMI 1422 - SUPREME COURT] and DIGI CABLE NETWORK (INDIA) PVT. LTD. AND ORS. VERSUS UNION OF INDIA AND ORS. [ 2019 (1) TMI 2026 - SUPREME COURT] 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rance to MBL, that is, its alleged anti- establishment 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. 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 - appeal allowed.
DR DHANANJAYA Y CHANDRACHUD, C JI For the Appellants : Ms. Pallavi Pratap, AOR and Mr. Radha Shyam Jena, AOR For the Respondent : Mr. Amrish Kumar, AOR and Ms. Pallavi Pratap, AOR 1 The Union Ministry of Information and Broadcasting ("MIB") revoked the permission which it had granted to Madhyamam Broadcasting Limited ("MBL") 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 Planetcas .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ) 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' ("Downlinking Guidelines"). 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 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 Medi .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... o 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 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 revoke .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... r 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) 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 Comp .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 Services Private Limited v. Union of India (2014) 5 SCC 409 and Digi Cable Network (India) Private v. Union of India (AIR 2019 SC 455)); and (iii) The files submitted by MHA indicate that the Committee of Officers ("CoO") 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 in .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ers 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." B. Submissions 14 Mr Dushyant Dave, Senior Counsel appearing on behalf of MBL made t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... or counsel appearing on behalf of the editor, Senior Web Designer and Senior Camera Man of Media One (SLP (C) No. 4331 of 2922) 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"; (c) The Division Bench of the High Court acknowledges that the '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 (d) This Court has consistently frowned upon the overbroad use of 'national security' to abridge fundament .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... lled 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 (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 req .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... s of the programme and advertisement code on five occasions or more. What should constitute a violation would be determined in consultation with the established self- regulating 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 violati .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 indica .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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) procedural impropriety. (See State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709; Tata Cellular v. U .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... pose 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 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. Evans ((1982) 1 WLR 1155), 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 th .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... f 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. (Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials (3rd ed. Oxford University Press)) 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'. (Laurence Tribe, American Constitution Law (2 nd ed.). Pg. 666) D.J Galligan in his book "Due Process and Fair Procedures: A Study of Administrative Procedures" (DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendo .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... it, "fair-action in play". (Justice Bhagwati in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (paragraph 9)) 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 fine-tuning them to situational variations. This Court has observed earlier that the concept of natural justice cannot be put into a 'straitjacket formula' (NK Prasada v. Government of India, (2004) 6 SCC 299) and that it is incapable of a 'precise definition' (Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC 258). Courts have undertaken an ends-based reasoning to test if the action violates the common law principle of natural justice (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). The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... n 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 India ((1970) 1 SCC 248) which had held that fundamental rights are not water- tight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 of the Constitution projects on the procedure that is 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 Articl .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ) 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.) 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.( 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) 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 entrenche .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ron Barak, Proportionality: Constitutional Rights and their limitations (Cambridge University Press, 2012), 374.) 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. (Giacinto della Cananea, Reasonableness in Administrative law in Reasonableness and Law (ed. by Giorgio Boniovanni, Giovanni Sartar, Chiara Valentini)) 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 proportionality (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). 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. Oakes ((1986) 1 SCR 103; This passage was quoted with affirmation in the judgment of the Constitution bench in Modern Dental.): "To establish that a limit is reaso .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rpose of the restrictions and the prevailing conditions." 52 The judgments of this Court in Justice KS Puttaswamy (9J) (supra) and Modern Dental College & Research Centre v. State of Madhya Pradesh ((2016) 7 SCC 353), 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. (See Justice Chandrachud's opinion in Justice KS Puttaswamy (5J) v. Union of India (5 J), (2019) 1 SCC 1 (para 310)) 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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. (A & Ors. v. The United Kingdom, Application no. 3455/05) 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 just .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... B 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... s 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 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... lants 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 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 considerati .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rict 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 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. I .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 India ((2019) 1 SCC 1) 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). 67 In The Zamora (supra), a ship that was captured contained contraband in the .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 ci .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ary 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 su .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ice 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 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 b .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... shold question whether in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action. (Aharon Barak (n 38) 247;Justice Sikri in Modern Dental (paragraph 55)) 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. (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.) 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... gative agencies are confidential. We are unable 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. .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... d 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, ecological balance cultural cohesiveness and external peace. Justice Patanjali Sastri writing for the majority in Romesh Thappar v. State of Madras (1950 SCC 436) 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 Bihar (AIR 1966 SC 740), 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 Cou .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 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, th .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... mam 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... y 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... y be requested that the proposals for renewal of security clearance in the cases where security clearance has already been denied to the company, 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, a .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... s the State to assess whether the means used are rationally connected to the purpose. At this 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. (Aharon Barak (n 38) 305) 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, informa .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... have been adopted by the State; (b) Whether the alternative means identified realise the objective in a 'real and substantial manner'; (c) Whether the alternative identified and the means used by the State impact 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) ((2007) 1 SCR 350), the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 2001 ("2001 Act") 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 Freedom (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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... of Human Rights ("ECHR") 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. (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.") 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-cle .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... sure. 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... n 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... e 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 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 non- .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... d 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." 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 Ju .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ho 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 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 p .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 jud .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... rest 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 public interest in disclosure is 'so strong' that it must prevail .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... se 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. Rimmer ([1968] AC 910). 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 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 w .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... doing. 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 re- evaluate 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: (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 judge .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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. 129 The US Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen Dataplan (614 F 3d 1070 (9 th Cir 2010) (United States)) 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 relat .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... public interest in disclosure outweighs public interest in non-disclosure (Section 38.06(2) of the Canada Evidence Act). If it does, then the information must be disclosed. The Court must consider the following factors while undertaking the balancing exercise (R v. Ahmad, (2011) SCC 6): (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; (c) whether there are higher interests such as human rights issues, the 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. 133 On the basis of the discussion on the public interest immunity claims for non-disclosure 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ng 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 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 proc .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... hat 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 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, inspe .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... y 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: (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) balancin .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... he 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 i .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... sclosure 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 i .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 immun .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... information 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 proce .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... oken 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 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 lear .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... t 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 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ir 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. 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... nse. 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. 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. (Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. Ganayutham, (1997) 7 SCC 463) hus, the action of the MIB denying renewal of permission will be judici .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 non-disclosure of a summary of the reasons for the denial of security 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 immun .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... 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 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 cu .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X