MADHYAMAM BROADCASTING LIMITED versus UNION OF INDIA & ORS.
[2023] 10 S.C.R. 595, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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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 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)
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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 non-disclosure.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 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.”
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.
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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 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
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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 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 public interest in
disclosure is ‘so strong’ that it must prevail over the public
interest in the administration of justice (the balancing test);
and
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(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 non-justiciable;
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.
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 Laird94.
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
94 [1942] AC 624
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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 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’:
95 [1968] AC 910
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
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?
97 [2009] EWHC 152 (Admins)
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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 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
98 United States v. Reynolds, 345 US 1 (1953)
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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.
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 non-disclosure of information has shifted away from
‘class’ scrutiny towards the scrutiny 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.
99 614 F 3d 1070 (9th Cir 2010) (United States)
100 Carey v. Majesty, (1986), 72 N.R 81 (SCC)
101 Ibid.
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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
(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;
102 Ribic v. Canada (Attorney General), 2003 FCA 246
103 Section 38.06(1) of the Canada Evidence Act
104 Ribic (n 102)
105 Section 38.06(2) of the Canada Evidence Act
106 R v. Ahmad, (2011) SCC 6
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(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 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 classclaims;
(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 interests of the party seeking
disclosure. The non-disclosure of information injures the
principle of open government which is one of the basic
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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 non-disclosure 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
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
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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 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:—
107 Order XI Rule 12 of CPC 1908
108 Order XI Rule 13 of CPC 1908
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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 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
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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 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 non-compliance 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:
(i)
Firstly, the state while making a claim for public interest
immunity seeks an accommodation to deviate from an
109 SP Gupta (Paragraph 77)
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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 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
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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 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
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Canada, considerations based on the facts of the case and on broader
questions of principle have to be assessed. 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 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:
110 “1966 Rules”
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“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 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
111 (2011) UKSC 34
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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 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 information.112 The first consideration is whether
the information should be disclosed to the party on a balance of
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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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 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
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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. 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,
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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 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
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
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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 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’
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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, 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.
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 anti-establishment 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”,
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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.
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
113 Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. Ganayutham,
(1997) 7 SCC 463
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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.
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 socio-
economic 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 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
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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.
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
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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 (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 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;
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(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 denying
a security clearance 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.
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
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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 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
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approvals. The interim order of this Court shall continue to operate until
the renewal permissions are granted.
175. Pending application(s), if any, stand disposed of.
Bibhuti Bhushan Bose
Appeals allowed.
(Assisted by : Shubhanshu Das, LCRA)