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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MADHYAMAM BROADCASTING LIMITED
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 8129 of 2022)
APRIL 05, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI AND
HIMA KOHLI, J.]
Constitution of India – Art. 19(1)(a) and 19(2) – Freedom of
Speech and Expression – Freedom of Press – Reasonable Restriction
– National Security – The Union Ministry of Information and
Broadcasting (MIB) revoked the permission which it had granted
to Madhyamam Broadcasting Limited to uplink and downlink a news
and current affairs television channel called “Media One” – MIB
revoked the permission that was granted to uplink and downlink
‘Media One’ because of the denial of a security clearance –
Appellants initiated proceedings under Article 226 of the
Constitution before the High Court for challenging the action of
the first respondent – A Single Judge dismissed the petitions – Writ
appeal was dismissed by the Division Bench of the High Court –
The High Court relied on material which was disclosed solely to the
Court in a sealed cover by the second respondent, the Union Ministry
of Home Affairs – Held: The challenge to the order of the MIB and
judgment of the High Court on procedural grounds is allowed –
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 – The appellants have proved that MBL’s right to a fair
hearing has been infringed by the
unreasoned order of the MIB,
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 – 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
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[2023] 10 S.C.R.
immunity from disclosure of all investigative reports cannot be
granted – 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–
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 –
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.
National Security – Concerns of – Held: Do not permit an
absolute abrogation of the principles of natural justice – The mere
involvement of issues concerning national security would not
preclude the state’s duty to act fairly – However, the principle of
natural justice may be excluded when on the facts of the case,
national security concerns outweigh the duty of fairness – Thus,
national security is one of the few grounds on which the right to a
reasonable procedural guarantee may be restricted – If the State
discards its duty to act fairly, then it must be justified before the
court on the facts of the case – Firstly, the State must satisfy the
Court that national security concerns are involved – Secondly, the
State must satisfy the court that an abrogation of the principle(s) of
natural justice is justified – These two standards that have emerged
from the jurisprudence abroad resemble the proportionality standard
– The first test resembles the legitimate aim prong, and the second
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test of justification resembles the necessity and the balancing prongs
– It is not sufficient for the State to identify its purpose in broad
conceptual terms such as national security and public order – Rather,
it is imperative for the State to prove through the submission of
cogent material that non-disclosure is in the interest of national
security – It is the Court’s duty to assess if there is sufficient material
for forming such an opinion – A claim cannot be made out of thin
air without material backing for such a conclusion – The Court
must determine if the State makes the claim in a bona fide manner –
The Court must assess the validity of the claim of purpose by
determining (i) whether there is material to conclude that the non-
disclosure of the information is in the interest of national security;
and (ii) whether a reasonable prudent person would arrive at the
same conclusion based on the material – 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 – Natural Justice.
Investigative agencies – Reports of – Held: The
reports of
the intelligence agencies are not merely fact-finding reports – 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 – A blanket immunity from
disclosure of all investigative reports cannot be granted.
Practice and Procedure – Disclosure of Relevant Material –
Open Justice – Sealed cover procedure – Effect of – Less Restrictive
Means – Public interest immunity claim – Suggestive Course of Action
– Held: Sealed cover procedures violate both principles of natural
justice and open justice – When relevant material is disclosed in a
sealed cover, there are two injuries that are perpetuated – First, the
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documents are not available to the affected party – Second, the
documents are relied upon by the opposite party (which is most
often the State) in the course of the arguments, and the court arrives
at a finding by relying on the material – In such a case, the affected
party does not have any recourse to legal remedies because it would
be unable to (dis)prove any inferences from the material before the
adjudicating authority – This form of adjudication perpetuates a
culture of secrecy and opaqueness, and places the judgment beyond
the reach of challenge – The affected party would be unable to
“contradict errors, identify omissions, challenge the credibility of
informants or refute false allegations” – The right to seek judicial
review which has now been read into Arts. 14 and 21 is restricted –
A corresponding effect of the sealed cover procedure is a non-
reasoned order – 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
– 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.
Practice and Procedure – Difference between sealed cover
procedure and public interest immunity claims – Held: 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 – 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
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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.
Practice and Procedure – Public interest immunity claim –
Held: While Public interest immunity claim is a less restrictive means,
the dilution of procedural guarantees while hearing the claim cannot
be ignored by the Court – 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.
Media – Press – Role and independence of – Held: 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 – On facts, 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 Union Ministry of Information and Broadcasting (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 within the fold of any of the grounds
stipulated in Article 19(2) – Constitution of India – Art.19(2).
Policy – Union Ministry of Information and Broadcasting
(MIB) – Policy Guidelines for Uplinking of Television Channels
from India – Paragraph 10.4 of the Uplinking Guidelines as
modified by the ‘permission letter’ indicates that the Union Ministry
of Home Affairs (MHA) could deny security clearance on the
grounds of national security and public order – Thus, according to
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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.
Doctrines / Principles – Natural Justice – Requirement of
reasoned order – Held: The principles of natural justice ensure
that justice is not only done but it is seen to be done as well – A
reasoned order is one of the fundamental requirements of fair
administration – A non-reasoned order perpetuates the non-
application of judicial mind in assessing the veracity of the inputs
– The nexus of the reasons to the order cannot be adjudicated upon
if the reasons are not disclosed.
Words and Phrases – Expression “national security” –
Meaning of – Held: The expression national security does not have
a fixed meaning – While courts have attempted to conceptually
distinguish national security from public order, it is impossible (and
perhaps unwise) to lay down a text-book definition of the expression
which can help the courts decide if the factual situation is covered
within the meaning of the phrase – The phrase derives its meaning
from the context .
Allowing the appeals, the Court
HELD: 1. 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. The findings are summarized
as follows: (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. The effect is that the courts have recognised
that there is an inherent value in securing compliance with the
principles of natural justice independent of the outcome of the
case. Actions which violate procedural guarantees can be struck
down even if non-compliance does not prejudice the outcome of
the case. The core of the principles of natural justice breathes
reasonableness into procedure. The burden is on the claimant to
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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 and Digi Cable
Network held that the principles of natural justice may be excluded
when on the facts of the case, national security concerns
overweigh the duty of fairness; (d) Though confidentiality and
national security are legitimate aims for the purpose of limiting
procedural guarantees, the state has been unable to prove that
these considerations arise in the present factual scenario. A
blanket immunity from disclosure of all investigative reports
cannot be granted; (e) The validity of the claim of involvement of
national security considerations must be assessed on the test of
(i) whether there is material to conclude that the non-disclosure
of information is in the interest of national security; and (ii)
whether a reasonable prudent person would draw the same
inference from the material
on record; (f) Even assuming that
non-disclosure is in the interest of confidentiality and national
security, the means adopted by the respondents do not satisfy
the other prongs of the proportionality standard. The
nondisclosure of a summary of the reasons for the denial of security
clearance to MBL, which constitutes the core irreducible
minimum of procedural guarantees, does not satisfy the suitability
prong; (g) The courts assess the validity of public interest
immunity claims, which address the same harms as the sealed
cover procedure, based on the structured proportionality
standard. The power of courts to secure material in a sealed cover
when contradistinguished with the scope of assessment of public
interest immunity claims is rather unguided and ad-hoc. The
standard of review that is used by the courts in public interest
immunity claims and the lack of such a standard in sealed cover
proceedings to protect procedural safeguards indicates that public
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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 antiestablishment stance and the alleged link of the
shareholders to JEI-H, are not legitimate purposes for the
restriction of the right of freedom of speech protected under
Article 19(1)(a) of the Constitution. In any event, there was no
material to demonstrate any link of the shareholders, as was
alleged. 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. [Paras 170 and 174][708-E-H;
709-A-
H; 710-A-F; 711-H; 712-A]
2. 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. In
addition to the above grounds, administrative action can be
reviewed on the ground of proportionality if it affects freedoms
that are guaranteed under Articles 19 and 21 of the Constitution.
The principle of natural justice that is derived from common law
has two primary facets- Audi Alterum Partem and Nemo Judex In
Causa Sua. Audi Alterum Partem encapsulates the rule of fair
hearing. Nemo Judex In Causa Sua encapsulates the rule against
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bias, that is, no person should be a judge of their own case. [Paras
31 and 32][630-H; 631-A-C]
3. 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’ and that it is incapable of a ‘precise
definition’. Courts have undertaken an ends-based reasoning to
test if the action violates the common law principle of natural
justice. The party alleging a violation of a principle of natural
justice has to prove that the administrative action violated the
principles of natural justice and that non compliance with natural
justice prejudiced the party. The courts, while assessing
prejudice, determine if compliance of the principles of natural
justice could have benefitted the party in securing a just outcome.
[Para 42][635-B-D]
4. Reasonableness is a normative concept that is identified
by an evaluation of the relevant considerations and balancing them
in accordance with their weight. 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. 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. The proportionality analysis assesses both the
object and the means utilised, which are pertinent requirements
while testing an infringement of fundamental rights. This Court
has held that the proportionality standard can be used to assess
the validity of administrative action infringing upon fundamental
freedoms. The standard of proportionality must be used to assess
the reasonableness of the limitation of procedural rights as well.
The courts have to undeniably undertake a balancing exercise
while deciding if the limitation on the right is valid. [Paras 49-
51][639-D; 640-B-C, D]
5. On the facts of the case, MIB has denied to disclose
even the summary of the reasoning denying security clearance.
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This has necessarily left MBL with no remedy. 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. MHA disclosed the material forming the opinion for
denying of security clearance solely to the High Court. The High
Court instead of deciding if any other less restrictive but equally
effective means could have been employed, straight away received
the material in a sealed cover without any application of mind. It
is now an established principle of natural justice that relevant
material must be disclosed to the affected party. This rule ensures
that the affected party is able to effectively exercise their right to
appeal. When the state government claims non-disclosure on the
ground of public interest under Section 124 of the Evidence Act,
the material is removed from the trial itself. As opposed to this
method, when relevant material is disclosed in a sealed cover,
there are two
injuries that are perpetuated. First, the documents
are not available to the affected party. Second, the documents are
relied upon by the opposite party (which is most often the state)
in the course of the arguments, and the court arrives at a finding
by relying on the material. In such a case, the affected party does
not have any recourse to legal remedies because it would be
unable to (dis)prove any inferences from the material before the
adjudicating authority. This form of adjudication perpetuates a
culture of secrecy and opaqueness, and places the judgment
beyond the reach of challenge. The affected party would be unable
to “contradict errors, identify omissions, challenge the credibility
of informants or refute false allegations”. The right to seek judicial
review which has now been read into Articles 14 and 21 is
restricted. A corresponding effect of the sealed cover procedure
is a non-reasoned order. [Paras 57-59][643-F; 644-A-G]
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6. National security is one of the few grounds on which the
right to a reasonable procedural guarantee may be restricted.
The mere involvement of issues concerning national security
would not preclude the state’s duty to act fairly. If the State
discards its duty to act fairly, then it must be justified before the
court on the facts of the case. Firstly, the State must satisfy the
Court that national security concerns are involved. Secondly, the
State must satisfy the court that an abrogation of the principle(s)
of natural justice is justified. These two standards that have
emerged from the jurisprudence abroad resemble the
proportionality standard. The first test resembles the legitimate
aim prong, and the second test of justification resembles the
necessity and the balancing prongs. [Para 75][656-D-F]
7. A claim cannot be made out of thin air without material
backing for such a conclusion. The Court must determine if the
State makes the claim in a bona fide manner. The Court must
assess the validity of the claim of purpose by determining (i)
whether there is material to conclude that the non-disclosure of
the information is in the interest of national security; and (ii)
whether a reasonable prudent person would arrive at the same
conclusion based on the material. The reasonable prudent person
standard which is one of the lowest standards to test the
reasonableness of an action is used to test national security claims
by courts across jurisdictions
because of their deferential
perception towards such claims. This is because courts recognise
that the State is best placed to decide if the interest of national
security would be served. The court allows due deference to the
State to form its opinion but reviews the opinion on limited
grounds of whether there is nexus between the material and the
conclusion. The Court cannot second-guess the judgment of the
State that the purpose identified would violate India’s national
security. It is the executive wing and not the judicial wing that
has the knowledge of India’s geo-political relationships to assess
if an action is in the interest of India’s national security. [Para
84][661-E-G; 662-A-B]
8. The respondents by not providing a reasoned order
denying the renewal of license, not disclosing the relevant
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material, and by disclosing the material only to the court in a
sealed cover have violated the appellant’s right to a fair hearing
protected under Article 21 of the Constitution. The respondents
were unable to prove that the restrictions on the appellants’ right
to a fair hearing were reasonable. Therefore, the order of MIB
dated 31 January 2022 denying permission for renewal of the
license and the judgment of the Division Bench of the High Court
dated 2 March 2022 must be set aside on the ground of the
infringement of procedural guarantees. [Para 159][704-G-H; 705-
A-B]
9. 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 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. [Para 168][707-F-H; 708-A-B]
Ex-Armymen’s protection Services Private Limited v.
Union of India (2014) 5 SCC 409 : [2014] 3 SCR 359
and Digi Cable Network (India) Private v. Union of India
AIR 2019 SC 455 : [2019] 1 SCR 88- explained.
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KS Puttaswamy (9J) v. Union of India (2017) 10 SCC
1 : [2017] 10 SCR 569; Maneka Gandhi v. Union of
India (1978) 1 SCC 248 : [1978] 2 SCR 621; RC
Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3
SCR 530; State of Punjab v. Sodhi Sukhdev Singh
[1961] 2 SCR 371 and SP Gupta v. Union of India
(1981) Supp SCC 87 : [1982] 2 SCR 365 - followed.
Anuradha Bhasin v. Union of India (2020) 3 SCC 637
and Manohar Lal Sharma v. Union of India (2021) SCC
OnLine SC 985 - relied on.
State of Andhra Pradesh v. McDowell (1996) 3 SCC
709 : [1996] 3 SCR 721; Tata Cellular v. Union of India
(1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122; Council
of Civil Service Unions v. Minister for Civil Service
(1985) A.C 374; Om Kumar v. Union of India (2001) 2
SCC 386 : [2000] 4 Suppl. SCR 693; Union of India v.
G. Ganayutham (1997) 7 SCC 463 : [1997] 3 Suppl.
SCR 549; N K Prasada v. Government of India (2004)
6 SCC 299 : [2004] 3 SCR 1178; Automotive Tyre
Manufacturers Association v. Designated Authority
(2011) 2 SCC 258 : [2011] 1 SCR 198; A K Gopalan v.
State of Madras AIR 1950 SC 27 : [1950] SCR 88;
Zahira Habibulla H Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; S L Kapoor v.
Jagmohan (1980) 4 SCC 379 : [1981] 1 SCR 746;
Swadeshi Cotton Mills v. Union of India AIR 1981 SC
818 : [1981] 2 SCR 533; Olga Tellis v. Bombay
Municipal Corporation (1985) 3 SCC 545 : [1985] 2
Suppl. SCR 51; C B Gautam v. Union of India (1993) 1
SCC 78 : [1992] 3 Suppl. SCR 12; Sahara India
(Firm),
Lucknow v. Commissioner of Income Tax, Central-I
(2008) 14 SCC 151 : [2008] 6 SCR 427; Kesar
Enterprises Ltd v. State of Uttar Pradesh (2011) 13 SCC
733 : [2011] 9 SCR 19; Modern Dental College &
Research Centre v. State of Madhya Pradesh (2016) 4
SCC 346 : [2016] 3 SCR 575; Teri Oat Estates (P) Ltd.
v. UT, Chandigarh (2004) 2 SCC 130 : [2003] 6 Suppl.
SCR 1235; MH Hoskot v. State of Maharashtra (1978)
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3 SCC 544 : [1979] 1 SCR 192; Modern Dental College
& Research Centre v. State of Madhya Pradesh (2016)
7 SCC 353 : [2016] 3 SCR 579; S N Mukherjee v. Union
of India (1990) 4 SCC 594 : [1990] 1 Suppl. SCR 44;
Seimens Engineering and Manufacturing Company v.
Union of India (1976) 2 SCC 981 : [1976] Suppl.
SCR 489; CCI v. SAIL (2010) 10 SCC 744 : [2010]
11 SCR 112; Kranti Associates v. Masood Ahmed Khan
(2010) 9 SCC 496 : [2010] 10 SCR 1070; Rani Lakshmi
Bai Kshetriya Gramin Bank v. Jagdish Dharan Varshney
(2009) 4 SCC 240 : [2009] 5 SCR 326; State of West
Bengal v. Alpana Roy (2005) 8 SCC 296 : [2005] 3
Suppl. SCR 482; L. Chandra Kumar v. Union of India
(1995) 1 SCC 400 : [1994] 6 Suppl. SCR 261; Justice
K S Puttaswamy (5J) v. Union of India (2019) 1 SCC 1
: [2018] 8 SCR 1; State of Uttar Pradesh v. Raj Narain
(1975) 4 SCC 428 : [1975] 3 SCR 333; Om Kumar v.
Union of India (2001) 2 SCC 386 : [2000] 4 Suppl.
SCR 693; Union of India v. Ganayutham (1997) 7 SCC
463 : [1997] 3 Suppl. SCR 549; Romesh Thappar v.
State of Madras (1950) SCC 436; Ram Manohar Lohia
v. State of Bihar AIR 1966 SC 740 : [1966] 1 SCR
709; B P Singhal v. Union of India (2010) 6 SCC 331;
Commander Amit Kumar Sharma v. Union of India
(2022) SCC OnLine SC 1570 - referred to.
Charkaoui v. Canada (Citizenship and Immigration)
[2007] 1 SCR 350; Secretary of State for Home
Department v. Rehman (2003) 1 AC 153; Council of
Civil Service Unions v. Minister of
Civil Service 1985
AC 374; Chief Constable of North Wales Police v. Evans
(1982) 1 WLR 1155; Kanda v. Government of Malaya
(1962) 28 MLJ 169; The King v. Inspector of Leman
Street Police Station, Ex Parte Venicoff (1920) 3 K.B.
72; Nakkuda Ali v. MF De S Jayaratne [1951] AC 66;
Ridge v. Baldwin [1964] A.C 40; R v. Oakes [1986] 1
SCR 103; A v. The United Kingdom, Application no.
3455/05; Secretary of State for the Home Department
v. AF [2009] UKHL 28; Totten v. United States 92 US
105, 107 (1876); Chahal v. United Kingdom (1996) 23
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EHRR 413; Roberts v. Parole Board (2005) 2 AC 738;
R v. H (2004) AC 134; Duncan v. Cammell Laird [1942]
AC 624; Conway v. Rimmer [1968] AC 910; Reg v.
Chief Constable, W.Midlands, Ex p. Wiley [1994] WLR
433; R (Mohamed) v. Secretary of State for Foreign and
Commonwealth Affairs [2009] EWHC 152 (Admins);
United States v. Reynolds 345 US 1 (1953); Binyam
Mohamed v. Jeppesen Dataplan 614 F 3d 1070; Carey
v. Majesty (1986), 72 N.R 81 (SCC); Ribic v. Canada
(Attorney General) 2003 FCA 246; R v. Ahmad (2011)
SCC 6; Al Rawi v. The Security Service (2011) UKSC
34 and A & Ors. v. The United Kingdom, Application
no. 3455/05 - referred to.
Mark Elliotts, Jack Beatson, Martin Mathews,
Administrative Law: text and Materials (3rd ed.
Oxford University Press); Laurence Tribe, American
Constitution Law (2nd ed.). Pg. 666 21; DJ Galligan,
Due Process and Fair Procedures: A Study of
Administrative Procedures (Clarendon Press 1996)
22 TRS Allan, Procedural Fairness and the Duty of
Respect (Oxford Journal of Legal Studies) p. 510;
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; Aharon Barak, Proportionality:
Constitutional Rights and their limitations (Cambridge
University Press, 2012), 374. 39 Giacinto della
Cananea, Reasonableness in Administrative law in
Reasonableness and Law (ed. by Giorgio Boniovanni,
Giovanni
Sartar, Chiara Valentini); Sir Alfred Denning,
Freedom Under the Law (Stevens and Sons 1949) p.
92; Dr BR Ambedkar, Constituent Assembly of India
Debates (Vol. VII, 9 December 1948; David Bilchitz,
‘Necessity and Proportionality: Towards a Balanced
Approach? in Liora Lazarus et al (eds), Reasoning
Rights: Comparative Judicial Engagement (Hart
2014) 49.; Martin Chamberlain, Special Advocates and
Amici Curiae in National Security proceedings in the
MADHYAMAM BROADCASTING LIMITED v. UNION OF
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United Kingdom, The University of Toronto Law
Journal, Summer 2018, Vol. 68, No. 3, Special Issue
on Indigenous Law (Summer 2018), pp. 496-510 -
referred to.
Case Law Reference
[2014] 3 SCR 359
explained
Para 11(ii)
[2019] 1 SCR 88 
explained
Para 11(ii)
(2020) 3 SCC 637
relied on
Para 15(ii)
[2017]10 SCR 569
followed
Para 15(ii)
[1996] 3 SCR 721
referred to
Para 31
[1994] 2 Suppl. SCR 122
referred to
Para 31
[2000] 4 Suppl. SCR 693
referred to
Para 31
[1997] 3 Suppl. SCR 549
referred to
Para 31
[1978] 2 SCR 621
followed
Para 41
[2004] 3 SCR 1178 
referred to
Para 42
[2011] 1 SCR 198
referred to
Para 42
[1950] SCR 88
referred to
Para 44
[1970] 3 SCR 530
followed
Para 45
[2004 ] 3 SCR 1050
referred to
Para 45
[1981] 1 SCR 746
referred to
Para 47
[1981] 2 SCR 533
referred to
Para 47
[1985] 2 Suppl. SCR 51
referred to
Para 47
[1992] 3 Suppl. SCR 12
referred to
Para 47
[2008] 6 SCR 427
referred to
Para 47
[2011] 9 SCR 19
referred to
Para 47
[1986] 1 SCR 103
referred to
Para 49
[2016] 3 SCR 575
referred to
Para 49
[2003] 6 Suppl. SCR 1235 
referred to
Para 51
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D
E
F
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H
611
[1979] 1 SCR 192 
referred to
Para 51
[2016] 3 SCR 579
referred to
Para 52
[2018] 8 SCR 1
referred to
Para 52
[1990] 1 Suppl. SCR 44
referred to
Para 56
[1976] Suppl. SCR 489
referred to
Para 56
[2010] 11 SCR 112
referred to
Para 56
[2010] 10 SCR 1070
referred to
Para 56
[2009] 5 SCR 326
referred to
Para 56
[2005] 3 Suppl. SCR 482
referred to
Para 56
[2007] 1 SCR 350
referred to
Para 59
[1994] 6 Suppl. SCR 261
referred to
Para 61
[1982] 2 SCR 272
referred to
Para 83
(1950) SCC 436
referred to
Para 83
[1966] 1 SCR 709
referred to
Para 83
(2010) 6 SCC 331
referred to
Para 84
[1961] 2 SCR 371
followed
Para 115
[1975] 3 SCR 333
referred to
Para 117
[1982] 2 SCR 365
followed
Para 118
[2000] 4 Suppl. SCR 693
referred to
Para 164
[1997] 3 Suppl. SCR 549
referred to
Para 164
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8129
of 2022.
From the Judgment and Order dated 02.03.2022 of the High Court
of Kerala at Ernakulam in WA No. 218 of 2022.
With
Civil Appeal Nos. 8130 and 8131 of 2022.
K.M. Nataraj, ASG, Dushyant A Dave, Huzefa A Ahmadi, Mukul
Rohatgi, Sr. Advs., Haris Beeran, Mushtaq Salim, Usman Ghani Khan,
Azhar Assees, Ameen Hassan, Ms. Sharukh Alam, Akshat Malpani,
MADHYAMAM BROADCASTING LIMITED v. UNION OF
INDIA & ORS.
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Ms. Pallavi Pratap, Radha Shyam Jena, Shailesh Madiyal, Ms.
Swarupama Chaturvedi, Apoorv Kurup, Rajat Nair, T.S. Sabarish,
Anirudh Sharma - II, Amrish Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, CJI
This judgment consists of the following sections:
A. Facts ................................................................................ 4*
B. Submissions ................................................................... 15*
C. Issues ............................................................................. 19*
D. Requirement of security clearance for renewal of
permission ........................................................................... 21*
E. Judicial Review on procedural grounds ......................... 26*
E. 1 Principles of natural justice: purpose and content.. 28*
E. 2 Constitutionalizing principles of natural justice:
the impact of Maneka Gandhi ....................................... 33*
E. 3 Standard to test reasonableness of procedure:
proportionality as reasonableness .................................. 37*
F. Infringement of MBL’s right to a fair hearing ................ 40*
G. Whether the infringement of MBL’s right to a fair hearing
     is justified ...................................................................... 46*
G. 1 Natural justice and national security: decisions in Digi and
Ex-armymen
.................................................................. 47*
G.2 Application of the proportionality standard.............. 59*
G. 2 (a) Legitimate Goal Stage ................................. 60*
(I) Confidentiality and IB Reports ............................ 62*
(II) National Security ............................................... 63*
(III) Opening the sealed cover ................................. 67*
G.2 (b) Suitability ...................................................... 76*
Ed. Note : Pagination is as per the original judgment.
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G. 3 (c) Least restrictive means ............................... 78*
(I) Totten claim: non-justiciability of the issue .......... 80*
(II) Closed Material Procedure and Special
Advocates ................................................................ 81*
(III) Public Interest Immunity .................................. 82*
H. Jurisprudence on public interest immunity claims.......... 88*
H.1 India ........................................................................ 88*
H. 2 United Kingdom .................................................... 96*
H. 3 United States ....................................................... 100*
H. 4 Canada ................................................................ 101*
I. Proportionality standard to test public interest immunity
claims ................................................................................ 109*
J. Public interest immunity or sealed cover: the less restrictive
means.................................................................................113*
K. Substantive Challenge: the validity of the action of the
MIB in denying to renew the permission ......................... 124*
L. Conclusion and Directions ........................................... 129*
1. The Union Ministry of Information and Broadcasting1 revoked
the permission which it had granted to Madhyamam Broadcasting Limited2
to uplink and downlink a news and current affairs television channel
called “Media One”. The appellants,
comprising of MBL, the trade union
of working journalists, and the editor, Senior Web Designer and Senior
Cameraman of Planetcast Media Services Ltd, initiated proceedings under
Article 226 of the Constitution before the High Court of Kerala for
challenging the action of the first respondent. By a judgment dated 8
February 2022, a Single Judge dismissed the petitions. The writ appeal
was dismissed by the Division Bench of the High Court by a judgment
dated 2 March 2022. The High Court relied on material which was
disclosed solely to the Court in a sealed cover by the second respondent,
the Union Ministry of Home Affairs3. The appellants instituted
1 “MIB”
2 “MBL”
3 “MHA”
MADHYAMAM BROADCASTING LIMITED v. UNION OF
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proceedings under Article 136 of the Constitution to challenge the
correctness of the judgment of the Division Bench of the High Court.
A. Facts
2. On 19 May 2010, MBL applied for permission to uplink and
downlink a news and current affairs television channel named ‘Media
One’. On 7 February 2011, MHA granted a security clearance for the
operation of the channel. By an order dated 30 September 2011, MIB
gave MBL permission to uplink ‘Media One’ for a period of ten years
under the ‘Policy Guidelines for Uplinking of Television Channels from
India’4. The permission was granted subject inter alia, to compliance
with the terms and conditions set out in the Annexure to the letter. The
Annexure to the uplinking permission prescribes the following conditions:
“(i) The Licensing Authority shall be empowered to impose such
restrictions as may be necessary as and when required.
(ii) The Licensing Authority shall have the power to revoke
the licence on grounds of national security and public order.
(iii) The Licensing Authority shall have the power to prohibit
transmission of programmes considered to be prejudicial
to friendly relations with foreign governments, public order,
security of state, communal harmony etc.
(iv) Licence should provide access facilities of all equipment and
records/system to the Licensing Authority or its representative;
(v) License should make available detailed information about
equipment and its
location;
(vi) Licensing Authority shall be legally competent to take over
the stations on the occurrence of public emergency or in the interest
of public safety/order;
(VII) Monitoring stations should be set up so as to facilitate prompt
intervention for deterrent action against violations of technical
parameters and provision laid down in the legislation and licensing
agreements.
(IX) The applicant would make available to the licensing Authority
the detailed technical information about the equipment to be used.”
(emphasis supplied)
4 “Uplinking Guidelines”
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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’5. 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 Media One Life in view of the denial of
security clearance by MHA. The show cause notice is extracted below:
SHOW CAUSE NOTICE
Whereas Ministry of Information and Broadcasting has granted
permission to M/s Madhyamam Broadcasting Limited on
30.09.2011 to uplink and downlink one News and current affairs
channel, namely, “Media One” and on 26.08.2015 one Non-News
& Current Affairs Channel, namely, “Media One Life” into India.
Whereas, the permissions so granted
by this Ministry are governed
by the Uplinking and Downlinking Guidelines as amended from
time to time.
Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security
clearance to the company and its directors is pre-requisite condition
for grant of permission for TV channels.
Whereas the security related conditions annexed with the
permission letter stipulates that the license/ permission can be
revoked on the grounds of national security and public order.
Whereas the Ministry of Home Affairs has recently conveyed
denial of the security clearance.
5 “Downlinking Guidelines”
MADHYAMAM BROADCASTING LIMITED v. UNION OF
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Whereas due to withdrawal of security clearance, the company
would cease to fulfil the very basic pre-requisite for grant of
permission of uplinking & downlinking TV Channels. The company
is also in violation of the security related conditions conveyed
through the permission letters issued by the Ministry.
Whereas due to the above-non-compliances, the permissions are
liable to be withdrawn/cancelled.
Now, therefore, M/s Madhyamam Broadcasting Limited is hereby
called upon to show cause, within 15 days of receipt of this notice,
why their permission should not be revoked or cancelled, in view
of the denial of security clearance.”
Meanwhile, seven days after the show cause notice was issued,
MBL applied to renew the licence to downlink the channel Media One
since the license which was initially granted for five years had expired.
By an order dated 11 July 2019, MIB renewed the downlinking permission
of ‘Media One’ for a further period of five years. By an order dated 11
September 2019, MIB cancelled the uplinking and downlinking permission
to Media-One Life. It is crucial to note that though the show cause
notice was issued to both Media -One Life and Media One, only the
permission granted to the former was revoked.
5. On 3 May 2021, MBL applied to renew the downlinking and
uplinking permissions granted to operate Media One since they were to
expire on 30 September 2021 and 29 September 2021.
6. On 5 January 2022, MIB
issued another show cause notice to
MBL invoking clause 9.2 of the Uplinking Guidelines and proposed to
‘revoke’ the permission granted to operate Media One. The show cause
notice specified that (i) according to Clause 9.2 of the Uplinking
Guidelines, security clearance is a pre-condition for the grant of permission
and that security-related conditions are annexed to the letter granting
permission ; (ii) MHA has denied security clearance in the past to the
proposals of 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:
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“SHOW CAUSE NOTICE
[…]
3. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that
security clearance to the company and its directors is pre-requisite
for grant of permission for TV channels.
[…]
5. Whereas the security related conditions annexed with the
permission letter stipulates that the license/permission can be
revoked on grounds of national security and public order.
6. Whereas the Company vide letter dated 03.05.2021 applied for
renewal of permission. MHA has informed that the security
clearance has been denied in the past to the proposals of the
company and security clearance may be considered as denied in
the present case also.
7. Whereas due to denial of security clearance, the company
ceased to fulfil the eligibility requirement for renewal of permission
of uplinking & downlinking of TV Channels.
8. In view of the foregoing, M/s Madhyamam Broadcasting
Limited is hereby called upon to show cause, within 15 days of
receipt of this notice, why the permission granted to them should
not be revoked or cancelled, for uplinking and Downlinking of
above mentioned TV Channel with immediate effect.”
7. On 19 January 2022, MBL replied to the show cause notice,
submitting that:
(i)
It did not receive any intimation of the denial of security
clearance to its Media One Channel as stated in the show
cause notice. It was not made a party to the proceedings
and no material in this regard was served upon them;
(ii)
The grounds for denial of security
clearance were not
intimated;
(iii)
MBL and Media One Channel have not indulged in any
activity that would warrant the denial of security clearance;
(iv)
MBL was served with a similar show cause notice on 12
February 2016 with respect to Media One channel. After
MADHYAMAM BROADCASTING LIMITED v. UNION OF
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MBL submitted a reply on 11 July 2019, the licence was
renewed on 11 July 2019;
(v)
The actions of MIB are arbitrary and violative of Article 14
of the Constitution; and
(vi)
The action of MIB of denying renewal of the license is
violative of MBL’s right to the freedom of speech and
expression guaranteed under Article 19(1)(a) of the
Constitution.
8. By an order dated 31 January 2022, MIB revoked the permission
that was granted to uplink and downlink ‘Media One’ because of the
denial of a security clearance. The relevant portion of the order revoking
the permission is extracted below:
“Whereas Ministry of Information and Broadcasting granted
permission to M/s Madhyamam Broadcasting Limited on
30.09.2011 to uplink and downlink one News and current affairs
TV channel, namely, “Media One” which was valid upto 299.2021.
2. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that
security clearance to the company and its directors is pre-requisite
condition for grant of permission for TV channels.
3. Whereas, the company M/s Madhyamam Broadcasting Limited
vide application dated 03.05.2021 had applied for renewal of
permission to its one permitted News & Current Affairs TV
channel namely, “Media One” for a period of 10 yeas (i.1 from
30.09.2021 to 29.09.2021)
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”.
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6. Accordingly, a Show Cause Notice (SCN) dated 05.01.2022
was given to the company as to why the permission granted to
them should not be revoked or cancelled, for Uplinking and
Downlinking of above mentioned TV Channel. Copy of the SCN
is attached at Annexure-I.
7. The Company has replied to the SCN vide their letter dated
19.01.2022. In the reply, the company has inter-alia mentioned
that they are unaware of the grounds for denial of security
clearance and requested not to iniate any further proceedings in
the matter. The reply given by the company is attached at
Annexure-II.
8. The reply of the company has been examined. The
security clearance is based on security parameters of the
Ministry of Home Affairs. Since the Ministry of Home
Affairs has denied the security clearance. The channel
cannot be allowed to operate.
9. In view of the above, the permission granted to M/s
Madhyamam Broadcasting Limited to uplink and downlink a News
and Current Affairs TV Channel namely, “Media One” is revoked
with immediate effect and accordingly the name of this channel is
removed from the list of permitted channels.”
(emphasis supplied)
9. MBL initiated proceedings under Article 226 of the Constitution
before the High Court of Kerala to challenge MIB’s order ‘revoking’
the uplinking and downlinking permission granted to Media One. The
appellants sought in the petitions: (i) setting aside of the order dated 31
January 2022 revoking the permission granted to Media-One;
(ii) a
direction to MIB and MHA to provide MBL an opportunity to be heard
before revoking the permission; and (iii) a declaration that there are no
circumstances warranting a denial of security clearance or the revocation
of the license since MBL has not violated any law or indulged in anti-
national activity.
10. The Assistant Solicitor General6 of India filed a statement
before the High Court submitting that security clearance was denied on
the basis of intelligence inputs, which are “sensitive and secret in nature”.
6 “ASG”
MADHYAMAM BROADCASTING LIMITED v. UNION OF
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It was further submitted that MHA cannot disclose reasons for the denial
“as a matter of policy and in the interest of national security”.
11. By a judgment dated 8 February 2022, the Single Judge of the
High Court of Kerala dismissed the writ petition. The Single Judge held
that:
(i)
Paragraph 10.4 of the Uplinking Guidelines and paragraph
9.4 of the Downlinking Guidelines stipulate that when the
application for renewal of permission is considered, the
eligibility criteria stipulating the net worth of the company
and experience of the top management will not apply.
However, other terms and conditions that are applicable to
permission for uplinking are applicable to renewal. Thus, a
security clearance is a factor which must be considered at
the time of renewal of the existing permission as well;
(ii)
The principles of natural justice are not applicable in matters
concerning national security (relied on Ex-Armymen’s
protection Services Private Limited v. Union of India7
and Digi Cable Network (India) Private v. Union of
India8); and
(iii)
The files submitted by MHA indicate that the Committee
of Officers9 took note of the inputs provided by intelligence
agencies and “found that the inputs are of a serious nature
and fall under the security rating parameters. In those
circumstances, the Committee of Officers advised not to
renew the licence”. The recommendations of the Committee
of Officers were accepted by MHA and are
fortified by
supporting material.
12. The Division Bench of the High Court directed that the files
submitted by MHA shall be placed before it since the Single Judge
dismissed the petition by ‘relying upon the files’. On perusing the files,
the Division Bench held that:
(i)
Though the nature and gravity of the issue is not discernible
from the files, there are clear indications that the security
of the state and public order would be impacted if the
7 (2014) 5 SCC 409
8 AIR 2019 SC 455
9 “CoO”
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permission granted to MBL to operate the channel is
renewed;
(ii)
While the State cannot ordinarily interfere with the freedom
of the press, the scope of judicial review in matters involving
national security is limited;
(iii)
The Union of India may decline to provide information when
“constitutional considerations exist, such as those pertaining
to the security of the State, or when there is a specific
immunity under a specific statute”. It is not sufficient for
the State to plead immunity and it must be able to justify it
on affidavit in Court (relied on ML Sharma v. Union of
India10); and
(iv)
The State has justified the plea of non-disclosure since the
statement filed by the Union of India before the Single Judge,
indicates that “the Ministry of Home Affairs has informed
that denial of security clearance in the case on hand is based
on intelligence inputs, which are sensitive and secret in
nature, therefore, as a matter of policy and in the interest
of national security, MHA does not disclose reasons for
denial.”
13. The appellants initiated proceedings under Article 136 of the
Constitution against the judgment of the Division Bench of the High
Court. By an order dated 15 March 2022, this Court after perusing the
relevant files that were submitted before the High Court in a sealed
cover granted an interim stay on the order of MIB dated 31 January
2022 by which the permission to operate the Media One channel was
revoked. The relevant portion of the
order is extracted below:
“6. In pursuance of the earlier direction, the files were produced
in the Court.
7. Mr Dushyant A Dave, learned senior counsel appearing on
behalf of the petitioners, assailed the approach of the High Court
in declining to disclose the contents of the files to the petitioners.
Mr Dave pressed the application for interim relief and submits
that there is no objection to this Court perusing the files. Accordingly,
during the course of the hearing, the files have been perused by
the Court.
10 AIR 2021 SC 5396
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8. At the present stage, we are of the view that a case for the
grant of interim relief has been made out on behalf of the petitioners
having due regards to the contents of the files which have been
perused by the Court.
9. We accordingly order and direct that pending further orders,
the orders of the Union government dated 31 January 2022 revoking
the security clearance which was granted to the petitioner,
Madhyamam Broadcasting Limited, shall remain stayed. The
petitioners shall be permitted to continue operating the news and
current affairs TV channel called Media One on the same basis
on which the channel was being operated immediately prior to the
revocation of the clearance on 31 January 2022.”
This Court also observed that the issue of whether the contents
of the files should be disclosed to the appellants is expressly kept open:
“11. The issue as to whether the contents of the files should be
disclosed to the petitioners in order to enable them to effectively
pursue their challenge in these proceedings is expressly kept open
to be resolved before the petitions are taken up for final disposal.
[…]
13. We clarify that perusal of the files by the Court at this stage is
not an expression on the tenability of the contentions of the
petitioners that they would be entitled to inspect the files. The
issue is kept open to be resolved at the stage of the final disposal.”
B. Submissions
14. Mr Dushyant Dave, Senior
Counsel appearing on behalf of
MBL made the following submissions:
(i)
The order issued by MIB revoking the permission granted
to uplink and downlink the channel, Media One, is
unconstitutional for the following reasons:
(a) Security Clearance is a pre-condition only for the grant
of permission to operate the channel and not for the renewal
of the existing permission. Under Clause 10.2 of the
Uplinking Guidelines, the renewal of the existing permission
is subject only to the channel not having been found guilty
of violating the terms and conditions of the Programme and
Advertising Code on five occasions or more;
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(b) Without prejudice to the above argument, security
clearance cannot be denied on grounds that exceed the
reasonable restrictions on the freedom of the press
prescribed under Article 19(2) of the Constitution. The order
revoking the permission refers to paragraph 9.2 of the
Uplinking Guidelines. Paragraph 9.2 is a part of the
‘procedure for obtaining permission’ which provides that
an application for permission will be sent to the Ministry of
Home Affairs for security clearance. The procedure to grant
or refuse security clearance must be subject to the limitations
prescribed in Article 19(2) of the Constitution read with
Section 4(6) of the Cable Television Networks (Regulations)
Act 1995; and
(c) Paragraphs 5.2 and 5.9 of the Uplinking Guidelines
prescribe limited grounds of public interest and national
security to suspend the permission granted for a specified
period.
(ii)
In 2011, MIB granted permission to operate Media One. It
pre-supposes that security clearance as required under
Paragraphs 9.3 and 9.4 of the Uplinking Guidelines was
granted before the permission was granted. The security
clearance was not withdrawn between 2011 and 2022. The
renewal should have been granted automatically, more so
because the show cause notice does not allege any violation
of the conditions set down under Paragraph 10.2 of the
Uplinking Guidelines; and
(iii)
MBL was not provided access to the material which MIB
submitted before the High Court to support the
allegations
made in the show cause notice. The Union of India, by
submitting material in a ‘sealed cover,’ and the High Court,
by relying on it in the course of its judgment, negated the
principles of natural justice. This procedure is violative of
the principle of an open court and of fairness to parties.
15. Mr Huzefa A Ahmadi, senior counsel appearing on behalf of
the editor, Senior Web Designer and Senior Camera Man of Media One11
made the following submissions:
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(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
fundamental rights.
(ii)
The doctrine of proportionality envisages that the least
restrictive means for restraining fundamental rights ought
to be used. (Anuradha Bhasin v. Union of India12 and
KS Puttaswamy (9J) v. Union of India13) The Uplinking
and Downlinking Guidelines contemplate suspension of the
licence to operate for varied time periods. The revocation
of the permission was not the least restrictive means
available at the disposal of MIB; and
(iii)
The High Court relied on material that was placed in a sealed
cover to reject the challenge to the revocation order. This
course of action undertaken by the High Court violates the
principles of natural justice.
12 (2020) 3 SCC 637
13 (2017) 10 SCC 1
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16. Mr Mukul Rohatgi, senior counsel appearing for the Kerala
Union of Working Journalists14 submitted that the freedom of the press
protected under Article 19(1)(a) of the Constitution is one of the most
precious freedoms and must not be infringed callously. He contended
that though the conditions for renewal of permission are different from
the conditions for the grant of permission, the High Court applied the
same standard for both the grant of permission and renewal of license.
On the disclosure of relevant material to the High Court in a sealed
cover, it was submitted that if there was sensitive information in the
material, the respondent could have redacted it before allowing the
appellants to peruse the file. It was argued that the sensitivity of material
cannot preclude the affected party from viewing the remaining portions.
17. Mr K M Nataraj, Additional Solicitor General appearing on
behalf of the respondents made the following submissions:
(i)
Paragraphs 9.2 and 10 of the Uplinking Guidelines
demonstrate that security clearance is a pre-condition for
renewal of license;
(ii)
MIB was justified in revoking the permission granted to
Media One because MHA denied security clearance; and
(iii)
The principles of natural justice stand excluded when issues
of national security are involved (Ex-Armymen (supra)
and Digi Cable (supra)).
C. Issues
18. The following issues arise in the course of determining the
validity of the order issued by MIB refusing to
renew the uplinking and
downlinking permission granted to MBL to operate the television channel,
Media One:
(i)
Whether security clearance is one of the conditions required
to be fulfilled for renewal of permission under the Uplinking
and Downlinking Guidelines;
(ii)
Whether denying a renewal of license and the course of
action adopted by the Division Bench of the High Court
violated the appellants procedural guarantees under the
Constitution; and
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(iii)
Whether the order denying renewal of license is an arbitrary
restriction on MBL’s right to the freedom of speech and
expression under Article 19(1)(a) of the Constitution.
19. Before proceeding to the analysis, certain factual aspects need
to be noticed. On 3 May 2021, MBL submitted an application for renewal
of uplinking and downlinking permission to MIB. The application stated
that the uplinking and downlinking permissions granted to Media One
would expire on 30 September 2021 and 29 September 2021 respectively.
In the statement filed by the ASG before the Kerala High Court, it was
submitted that:
(i)
the application for ‘renewal’ filed by the MBL was
forwarded by MIB to MHA; and
(ii)
by a letter dated 29 December 2021, MHA denied security
clearance to MBL for ‘renewal’ of uplinking and downlinking
permission.
20. MIB issued a show cause notice stating that, MBL has “ceased
to fulfil the eligibility requirement for ‘renewal’ of permission for uplinking
and downlinking” due to the denial of security clearance. MBL was
asked to show cause as to why the ‘permission granted to them should
not be revoked or cancelled’. By its letter dated 31 January 2022, MIB
ordered that the permission granted to MBL to uplink and downlink Media
One be ‘revoked’. Though the show cause notice stated that security
clearance which is a requirement for ‘renewal’ of license is denied,
MIB was asked to show cause as to why its license
should not be
‘revoked’. A similar phraseology of ‘revocation’ was used in MIB’s
order dated 31 January 2022. TheDivision Bench of the High Court in
its judgment dated 2 March 2022 noted the inconsistency between the
phraseology used in the ‘renewal’ application and ‘revocation’ order.
21. The notice to show cause and the order of revocation refer to
the ‘revocation of license’. However, both the former and the latter note
that MBL has not fulfilled one of the conditions for renewal of license
since it was denied a security clearance by the MHA. Counsel for the
appellants have not made submissions on the inconsistency arising out
of the use of the phrases ‘renewal’ and ‘revocation’ interchangeably.
Thus, we will proceed on the understanding that the order of MIB dated
31 January 2022 rejected the application for renewal of the licence to
operate the channel.
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D. Requirement of security clearance for renewal of
permission
22. Paragraph 10 of the Uplinking Guidelines stipulates the
conditions for renewal of existing permissions. According to paragraph
10, renewal of permission is to be considered for ten years, subject to
the condition that the channel should not be found guilty of violating the
terms and conditions of permission, including any violation of the
programme and advertising code on five or more occasions. Paragraph
10.4 stipulates that the terms and conditions applicable at the time when
permission is granted would be applicable at the time of renewal, subject
to modifications made by the terms of the permission. The relevant
paragraphs of the provision are extracted below:
“ 10. RENEWAL OF EXISTING PERMISSIONS
10.2 Renewal of permission will be considered for a period of 10
years at a time, subject to the condition that the channel should
not have been found guilty of violating the terms and conditions of
permission including violations of the programme and advertisement
code on five occasions or more. What should constitute a violation
would be determined in consultation with the established 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;
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(ii)
The channel should not have been found guilty of violating
the terms and conditions of permission; and
(iii)
The channel must fulfil all the terms and conditions that
apply to the grant of permission as modified by the letter of
permission.
Condition 1: Violation of Programme Code
24. Media One has not been found guilty of violating the
programme and advertisement code on five or more occasions. On 28
February 2020, a show cause notice was issued by MIB alleging a violation
of the Cable Television Network Rules 1994 and Programme Code of
the Cable Television Networks (Regulation) Act 1995 while telecasting
reports on the violence which took place in North-East Delhi during the
protests organised against the Citizenship (Amendment) Act 2019.
25. By an order dated 6 March 2020, MIB in exercise of powers
conferred by Section 20(2) and 20(3) of the Cable television Networks
(Regulation) Act 1995 and paragraphs 8.1 & 8.2 of the Uplinking
Guidelines ordered the prohibition on the transmission and retransmission
of Media-One channel for forty eight hours.
26. However, by an order dated 7 March 2020, MIB directed that
MBL may resume uplinking the channel Media One from 9.30 am on
the same day. Other than this instance, there is nothing on record to
indicate that Media One violated the Programme Code. Paragraph 10.2
of the Uplinking Guidelines states that the channel should not have violated
the Programme Code on more
than five occasions. The solitary incident
of an alleged violation of the Programme Code does not fulfil the first
condition of Paragraph 10 of the guidelines.
Condition 2 and 3: requirement of security clearance for
renewal of license
27. Paragraph 10.4 of the Uplinking Guidelines stipulates that at
the time of considering the application for renewal, the channel should
fulfil all the terms and conditions that apply to the grant of permission as
modified by the letter of permission. The terms and conditions that are
applicable for the grant of permission are spread across the Uplinking
and Downlinking Guidelines and are not concentrated in a specific
paragraph or clause. Paragraph 2 of the Uplinking Guidelines (and
paragraph 1 of the Downlinking Guidelines) prescribes the criteria of
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eligibility applicable to applicant companies. The conditions, inter alia,
include minimum net worth and prior managerial experience. Paragraph
3 of the Uplinking Guidelines (and paragraph 2 of the Downlinking
Guidelines) prescribe the eligibility criteria for uplinking and downlinking
a news and current affairs TV channel. Paragraph 9 of the Uplinking
Guidelines (and Paragraph 8 of the Downlinking Guidelines) prescribe
the “procedure for grant of permission of channels”. The provision is
extracted below:
“9. PROCEDURE FOR GRANT OF PERMISSION OF
CHANNELS
9.1. The applicant company can apply to the Secretary, Ministry
of Information & Broadcasting, in triplicate, in the prescribed
format “Form 1” along with all requisite documents including a
demand draft for an amount equal to processing fee wherever
prescribed, payable at par at New Delhi, in favour of the Pay &
Accounts Officer, Ministry of Information & Broadcasting, Shastri
Bhawan, New Delhi.
9.2. On the basis of information furnished in the application form,
if the applicant is found eligible, its application will be sent for
security clearance to the Ministry of Home Affairs and for
clearance of satellite use to the Department of Space (wherever
required).
[…]”
 (emphasis supplied)
28. Paragraph 9.2 stipulates that an application which is found to
be eligible would be sent to MHA for security clearance. Paragraphs 3
and 9 indicate that upon the receipt of the application form, MIB will
undertake an
exercise to determine if the conditions of eligibility
prescribed in Paragraphs 2 and 3 are fulfilled. If the conditions are fulfilled,
the application is sent to MHA for security clearance. Thus, Paragraph
9.2 prescribes a condition in addition to those stipulated in Paragraphs 2
and 3 of the Uplinking guidelines.
29. The heading of Paragraph 9,namely, “procedure for obtaining
permission,’ does not detract from the prescription of a substantive
condition. Paragraph 10.4 excludes the eligibility criteria of net worth of
the company and managerial experience from the consideration of the
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renewal application. All other conditions prescribed by the guidelines for
permission are applicable for renewal of permission. The requirement
of security clearance arises at a stage subsequent to the fulfilment of
conditions prescribed under Paragraphs 2 and 3. If the preliminary
conditions prescribed are applicable at the time of renewal, there is no
reason to exclude the application of the requirement of the security
clearance for renewal of permission.
30. Further, Paragraph 10. 4 of the Uplinking Guidelines stipulates
that the conditions ‘as modified by the permission letter’ are applicable
at the time of renewal of the license. The annexure to the ‘permission
letter’ does not specify any condition modifying or eliminating the condition
of security clearance. Rather, the annexure provides that the licence
shall be revoked on grounds of ‘public order and national security’. Though
in view of Paragraph 10 of the Uplinking Guidelines, the licensee does
not have a vested interest for renewal of the permission, the grounds for
denying a renewal of license cannot be materially different from the
grounds for revoking the licence. This is because both non-renewal of
license and revocationof license are restrictions on the right to freedom
of press. The intent behind the exclusion of the eligibility criteria of net
worth and managerial experience for the purpose of a renewal application
is because the freedom of press
cannot be restricted on grounds other
than stipulations under Article 19(2) of the Constitution. Thus, Paragraph
10. 4 of the Uplinking Guidelines as modified by the ‘permission letter’
indicates that MHA could deny security clearance on the grounds of
national security and public order. Thus, according to the Uplinking and
Downlinking guidelines, security clearance from MHA is one of the
conditions that is required to be fulfilled for renewal of permission for
Uplinking and Downlinking of news channels.
E. Judicial Review on procedural grounds
31. Article 13 of the Constitution states that all laws that are
inconsistent with fundamental rights enumerated in Part III of the
Constitution shall be void. Article 13(3)(a) states that for the purpose of
this provision, law includes ‘any ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law.’ It is, thus, a settled position of law that an administrative action can
be challenged on the ground of a violation of fundamental rights.
Following the expansion of the content of the right to equality under
Article 14 to include the guarantee against arbitrariness, the grounds for
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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.15 This Court
has also held that in addition to the above grounds, administrative action
can be reviewed on the ground of proportionality if it affects freedoms
that are guaranteed under Articles 19 and 21 of the Constitution.16
32. The principle of natural justice that is derived from common
law has two primary facets- Audi Alterum Partem and Nemo Judex In
Causa Sua. Audi Alterum Partem encapsulates the rule of fair hearing.
Nemo Judex In Causa Sua encapsulates the rule against bias, that is,
no person should be a judge of their own case. It is the case of MBL that
MIB did not comply with the principle of Audi Alterum Partem because
the reasons for the denial of security clearance and the material relevant
to the decision of revocation were not disclosed. This, it is argued, infringes
upon the right of MBL to a fair hearing. On the other hand, MIB contends
that it was not required to comply with the principles of natural justice
since the denial of security clearance is on a matter involving national
security, which is an established exception to the application of the
principles of natural justice.
33. There are three important considerations that have to be
answered in the context:
(i)
Whether the non-disclosure of reasons and relevant material
for the decision to deny security clearance infringes upon the
right to a fair hearing, that is protected under Articles 14 and
21;
(ii)
Whether the infringement of the right to a fair hearing would
render the decision void; and
(iii) If considerations of national security are an established
exception to principles of natural justice, how should the court
resolve the competing interests represented by the principles
of natural justice and national security.
15 See State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709; Tata Cellular v. Union
of India, (1994) 6 SCC 651; and Council of Civil Service Unions v. Minister for Civil
Service, (1985) A.C 374
16 See Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G. Ganayutham,
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34. This case presents the Court with an opportunity to clarify
and lay down the law on the applicability of the principles of natural
justice when issues of national security are involved. The Court must
choose between the two visions of either permitting a complete abrogation
of the principles of natural justice or attempting to balance the principles
of natural justice with concerns of national security. It is imperative that
we analyse the purpose natural justice serves, and the jurisprudential
development of procedural due process before choosing between these
two competing visions.
E. 1 Principles of natural justice: purpose and content
35. The principles of natural justice were read into the law and
conduct of judicial and administrative proceedings with an aim of securing
fairness. These principles seek to realise the following four momentous
purposes:
36. Fair Outcome: Procedural rules are established to prevent the
seepage of bias and unfairness in the process of decision making. A
decision that is reached after following the procedural rules is expected
to be fair. An outcome that is reached through a fair process is reliable
and accurate. In the context of criminal proceedings, procedural rules
are prescribed in the Indian Evidence Act 1872 and the Code of Criminal
Procedure 1973 to secure the ‘correct’ outcome and to identify the ‘truth’.
37. In Chief Constable of North Wales Police v. Evans17, the
appellant was a probationary member of the North Wales Police Force.
He was removed from the force without putting forth the allegations
against him. The House of Lords set aside the decision on the ground
that the non-disclosure of allegations was violative of the principles of
natural justice. The Court cautioned that there was an extreme danger
in proceeding without putting forth the allegations against him because
the veracity of the allegations could never be tested:
“As an example of the extreme danger of proceeding in this way,
it must be observed that, as one of the two clinching matters which
seem to have influenced him, the appellant says in his affidavit:
“Further, it became known” (sic) “to senior officers that the
applicant and his wife had lived a ‘hippy’ type life-style at Tyddyn
Mynyddig Farm, Bangor.” This had never been put to the
respondent at all, and had the appellant or his deputy to whom he
17 (1982) 1 WLR 1155
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delegated the inquiry taken the trouble to ask the respondent about
it, he would have discovered at once that this allegedly clinching
allegation was palpably untrue, and simply the result of a mistaken
address. It was, in short, an utterly incorrect statement relied upon
precisely owing to the failure of natural justice of which complaint
is made.”
38. Inherent value in fair procedure: Fair procedure is not only a
means to the end of achieving a fair outcome but is an end in itself. Fair
procedure induces equality in the proceedings. The proceedings ‘seem’
to be and are seen to be fair. In Kanda v. Government of Malaya18,
an Inspector of Police challenged his dismissal on the ground that the
disciplinary proceedings were not conducted in accordance with the
principles of natural justice. It was contended that he did not have
knowledge of the contents of the enquiry report that was before the
adjudicating officer. The crux of the case was whether his lack of
knowledge of the contents of the report led to a likelihood of bias – both
conscious and unconscious. The Court held that the likelihood of bias
test cannot be solely used to determine the violation of natural justice.
The Court held that it is not necessary that the accused must prove bias
or prejudice. Rather, it is sufficient if the non-disclosure would lead to a
possibility of bias and prejudice since “no one who has lost a case will
believe he has been fairly treated if the other side has had
access to the
judge without his knowing.” The House of Lords held that non-disclosure
of information is per se violative of the principles of fair trial.
39. Legitimacy of the decision and decision making authority: When
a decision is formed following the principles of natural justice, there is a
perception that the decision is accurate and just. It preserves the integrity
of the system as the decisions, in addition to being fair, also ‘appear’ to
be fair. The perception of the general public that the decisions appear to
be fair is important in building public confidence in institutions, which aid
in securing the legitimacy of the courts and other decision making bodies.19
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
18 (1962) 28 MLJ 169
19 Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials
(3rd ed. Oxford University Press)
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about what is done with one’.20 D.J Galligan in his book “Due Process
and Fair Procedures: A Study of Administrative Procedures”21 explains
that to insist on fair treatment is implicit on a renewed understanding of
the relationship between citizens and the State:
“ It builds on the idea of decision-making as a social process rather
than a purely logical activity, on the inherent indeterminacy and
contingency of standards… to insist on fair treatment of persons
by administrative bodies is to draw on those implicit commitments
and understandings at the very base of the relationship between
the citizen and the State.”
TRS Allan argues that more often than not, the right outcome is
itself a matter of controversy. It is possible to arrive at divergent views,
both of which are reasonable. He argues that when procedures allow
the genuine participation and contestation of ideas, a citizen is treated
with respect and dignity that they deserve in a society that is governed
by the rule of law.22
41. Indian Courts have been significantly influenced by the courts
in England on the interpretation, application, and content of natural justice,
primarily because the principles are derived from common law and are
grounded in the rule of law. The jurisprudential developments across
other common law jurisdictions relating to the principles of natural justice
usually, if not always, spill over to Indian jurisdiction. Our Courts were
soon
to follow suit when the courts in England made a functional distinction
between executive and non-judicial23 actions and between an action that
deprives rights and an action that deprives privilege24 for deciding the
applicability of the principles of natural justice. In Ridge v. Baldwin25,
the House of Lords repudiated the functional distinction based on the
nature of the adjudicating body and held that the duty to act judicially in
compliance with the principles of natural justice can be inferred from
20 Laurence Tribe, American Constitution Law (2nd ed.). Pg. 666
21 DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures
(Clarendon Press 1996)
22 TRS Allan, Procedural Fairness and the Duty of Respect (Oxford Journal of Legal
Studies) p. 510
23 The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff, (1920) 3
K.B. 72
24 Nakkuda Ali v. MF De S Jayaratne, [1951] AC 66
25 [1964] A.C 40
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the nature of the decision and not the nature of the decision-making
body. Courts have with time substituted the usage of the terminology of
the principles of natural justice with the doctrine of ‘fairness’ because
natural justice is encapsulated in the doctrine of fariness; as Justice
Bhagwati termed it, “fair-action in play”.26
42. The duty to act fairly that is derived from common law is not
exhaustively defined in a set of concrete principles. Courts, both in India
and abroad, have demonstrated considerable flexibility in the application
of the principles of natural justice by fine-tuning them to situational
variations. This Court has observed earlier that the concept of natural
justice cannot be put into a ‘straitjacket formula’27 and that it is incapable
of a ‘precise definition’28. Courts have undertaken an ends-based
reasoning to test if the action violates the common law principle of natural
justice29. The party alleging a violation of a principle of natural justice
has to prove that the administrative action violated the principles of natural
justice and that non-compliance with natural justice prejudiced the
party.30 The courts, while assessing prejudice, determine if compliance
of the principles of natural justice could have benefitted the party in
securing a just outcome. It needs to be seen if this content of natural
justice and the standard for judicial review of non-compliance has
undergone a change after principles of natural justice were
constitutionalized in Maneka Gandhi v. Union of India31 .
E. 2 Constitutionalizing principles of natural justice: the
impact of Maneka Gandhi
43. Two jurisprudential developments on the interpretation of Part
III of the Constitution must be noticed to understand the impact of
constitutionalising the principles of natural justice. The first, is the
expansion of the meaning of the expression ‘procedure established by
26 Justice Bhagwati in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (paragraph 
9)
27 NK Prasada v. Government of India, (2004) 6 SCC 299
28 Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC
258
29 Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court:
Natural Justice and Fundamental Rights, (Volume 16, Issue 2, International Journal of
Constitutional Law, 2018, p. 475–502
30 NK Prasada (n 27)
31 Maneka Gandhi (n 26)
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law’ as it finds place in Article 21 of the Constitution to include procedural
due process. The second, is the shift from reading the provisions of Part
III of the Constitution as isolated silos to understanding the overlapping
tendencies of fundamental rights.
44. In AK Gopalan v. State of Madras32, the appellant contended
that the phrase ‘procedure established by law’ as it finds place in Article
21 includes within its ambit the principles of natural justice. While the
majority rejected this contention, Justice Fazl Ali in his celebrated dissent
held that the expression ‘procedure established by law’ cannot be given
a limited meaning. The learned Judge observed that the phrase must
include procedural due process which includes (i) issuance of a notice
(ii) an opportunity to be heard; (iii) an impartial tribunal; and (iv) an
orderly course of procedure. Justice Fazl Ali’s opinion was followed by
this Court in Maneka Gandhi (supra). In Maneka Gandhi (supra), it
was held that the life and liberty of a person cannot be restricted by any
procedure that is established by law but only by a procedure that is just,
fair, and reasonable. In that case, the appellant challenged the order of
the Regional Passport Officer impounding her passport. The impounding
order did not disclose the reasons for such action. The Government of
India declined to disclose its reasons for the action by relying on Section
10(5) of the Passports
Act 1967 which stipulates that the reason for
impounding the passport may not be given where the passport authority
is of the opinion that the disclosure of reasons is not in the interests of
the sovereignty and integrity of India, security of India, friendly relations
of India with any foreign country or in the interest of general public. The
appellant filed a writ petition, inter alia, challenging the action of the
Government of India declining to give reasons.
45. This Court observed that the right to go abroad is an extension
of the right to life and personal liberty protected under Article 21 of the
Constitution. This right, it was observed, can only be taken away by a
procedure that is not unfair, arbitrary, and unreasonable. Relying on the
judgment of a Constitution Bench of this Court in RC Cooper v. Union
of India33 which had held that fundamental rights are not water-tight
compartments, it was observed that the principle of reasonableness that
is guaranteed under Article 14 of the Constitution projects on the
32 AIR 1950 SC 27
33 (1970) 1 SCC 248
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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 Article 21,
having regard to the impact of Article 14 on Article 21. […] The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the
test of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary, fanciful
or oppressive; otherwise, it .would be no procedure at all and the
requirement of Article 21 would not be satisfied.”
This Court held that principles of natural justice infuse
reasonableness into the procedure. However, the court noted that the
principles of natural justice are not set-in stone and are by their very
nature modifiable. So, the violation of every conception of natural justice
will not necessarily render the procedure unreasonable and violative of
Articles 21 and 14. The court held that the test that must be followed to
determine if non-compliance of natural justice has led to an unreasonable
procedure is whether the procedure that was followed (or the procedure
that was not followed) violates the core of the primary tenets of natural
justice- the right to a fair hearing34 and the
right against bias.
46. On the facts of the case, Justice Bhagwati held that the
procedure for impounding a passport under the provisions of the Passport
Act 1967 was fair and just. The learned Judge held that the denial of
pre-decisional hearing was justified because otherwise, the purpose of
impounding the passport which is to take prompt action would be defeated,
and that the exceptional circumstances reasonably justified the departure
from the settled principle of pre-decisional hearing.
47. The judgment of this Court in Maneka Gandhi (supra)
spearheaded two doctrinal shifts on procedural fairness because of the
constitutionalising of natural justice. Firstly, procedural fairness was no
longer viewed merely as a means to secure a just outcome but a
requirement that holds an inherent value in itself. In view of this shift,
34 See Zahira Habibulla H Sheikh v. State of Gujarat, (2004) 4 SCC 158, where this
Court recognized the right to fair trial.
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the Courts are now precluded from solely assessing procedural
infringements based on whether the procedure would have prejudiced
the outcome of the case.35 Instead, the courts would have to decide if
the procedure that was followed infringed upon the right to a fair and
reasonable procedure, independent of the outcome. In compliance with
this line of thought, the courts have read the principles of natural justice
into an enactment to save it from being declared unconstitutional on
procedural grounds.36 Secondly, natural justice principles breathe
reasonableness into the procedure. Responding to the argument that the
principles of natural justice are not static but are capable of being moulded
to the circumstances, it was held that the core of natural justice guarantees
a reasonable procedure which is a constitutional requirement entrenched
in Articles 14,19 and 21. The facet of audi alterum partem encompasses
the components of notice, contents of the notice, reports of inquiry, and
materials that are available for perusal. While situational modifications
are permissible, the rules of natural justice cannot be modified to suit the
needs of the situation to such an extent that the core of the principle is
abrogated because it is the core that infuses procedural reasonableness.
The burden is on the applicant to prove that the procedure that was
followed (or not followed) by the adjudicating authority, in effect,
infringes
upon the core of the right to a fair and reasonable hearing.37
E. 3 Standard to test reasonableness of procedure:
proportionality as reasonableness
48. Once the applicant proves that the procedure that was followed
was not reasonable with reference to the core of the principles of natural
justice, the burden shifts on the State to prove that the limitation of the
right is justified and reasonable. The State usually claims that the limitation
of the right is justified because following a fair procedure would, inter
alia, be prejudicial to public interest. What standard of review should
the courts employ to test the reasonableness of the limitation? Rights
35 SL Kapoor v. Jagmohan, (1980) 4 SCC 379; “The non-observance of natural justice
is itself prejudice to any man and proof of prejudice independently of proof of denial
of natural justice is unnecessary; also see Swadeshi Cotton Mills v. Union of India, AIR
1981 SC 818.
36 Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545); C B Gautam v.
Union of India (1993) 1 SCC 78; Sahara India (Firm), Lucknow v. Commissioner of
Income Tax, Central-I (2008) 14 SCC 151; Kesar Enterprises Ltd v. State of Uttar
Pradesh (2011) 13 SCC 733
37 See paragraph 12 of Justice Bhagwati’s judgment in Maneka Gandhi.
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are not absolute in a constitutional democracy. The jurisprudence that
has emanated from this Court is that rights can be limited but such a
limitation must be justified on the ground of reasonableness. Though,
only Article 19 of the constitution expressly prescribes that the limitation
must be reasonable, after the judgments of this Court in RC Cooper
(supra) and Maneka Gandhi (supra) it is conclusive that the thread of
reasonableness runs through the entire chapter on fundamental rights
guiding the exercise of procedural and substantive limitations. That leaves
us to answer the question of the standard used to assess the
‘reasonableness’ of the limitation. The text of the Constitution does not
prescribe a standard of review. Much ink has flowed from this Court in
laying down the varying standards to test reasonability: rationality,
Wednesbury unreasonableness, proportionality, and strict scrutiny.
49. Reasonableness is a normative concept that is identified by an
evaluation of the relevant considerations and balancing them in
accordance with their weight.38 It is value oriented and not purpose
oriented. That is why the courts have been more than open in identifying
that the action is unreasonable rather than identifying if the action is
reasonable.39 This is also why the courts while assessing the
reasonableness of limitations on fundamental rights have adopted a higher
standard of scrutiny in the form of proportionality40. The link between
reasonableness and proportionality and the necessity of using the
proportionality standard to test the limitation on fundamental rights has
been captured by Justice Jackson in the course of the Canadian Supreme
Court’s judgment in R v. Oakes41:
“To establish that a limit is reasonable and demonstrably justified
in a free and democratic society, two central criteria must be
satisfied. First, the objective, which the measures, responsible for
a limit on a Charter right or freedom are designed to serve, must
be “of” sufficient importance to warrant overriding a
constitutionally protected right or freedom...Second … the party
38 Aharon Barak, Proportionality: Constitutional Rights and their limitations (Cambridge
University Press, 2012), 374.
39 Giacinto della Cananea, Reasonableness in Administrative law in Reasonableness
and Law (ed. by Giorgio Boniovanni, Giovanni Sartar, Chiara Valentini)
40 Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 4
SCC 346 , Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1
41 (1986) 1 SCR 103; This passage was quoted with affirmation in the judgment of the
Constitution bench in Modern Dental.
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invoking Section 1 must show that the means chosen are reasonable
and demonstrably justified. This involves “a form of proportionality
test.”
(emphasis supplied)
50. The proportionality analysis assesses both the object and the
means utilised, which are pertinent requirements while testing an
infringement of fundamental rights. This Court has held that the
proportionality standard can be used to assess the validity of administrative
action infringing upon fundamental freedoms.42 However, the courts have
till date used the proportionality standard to only test the infringement of
a substantive right such as the right to privacy protected under Article
21, and the freedoms protected under Article19. Courts have been using
a vague and unstructured standard of the reasonableness test to assess
the validity of limitations on procedural due process.
51. We are of the opinion that the standard of proportionality must
be used to assess the reasonableness of the limitation of procedural
rights as well. The courts have to undeniably undertake a balancing
exercise while deciding if the limitation on the right is valid. A three-
Judge Bench of this Court in MH Hoskot v. State of Maharashtra43,
observed that procedural reasonableness does not have an abstract
standard of reasonableness. It must be assessed on the touchstone of
numerous factors. The factors list the considerations that are undertaken
in the balancing stage. The
relevant observations are extracted below:
“28. […] The nature of the right infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time, all provide the basis for
considering the reasonableness of a particular provision. The
procedure embodied in the Act has to be judged in the context of
the urgency and the magnitude of the problem, the underlying
purpose of the restrictions and the prevailing conditions.”52
The judgments of this Court in Justice KS Puttaswamy (9J)
(supra) and Modern Dental College & Research Centre v.
State of Madhya Pradesh44, establishing the proportionality
42 Om Kumar (n 16) ; Teri Oat Estates (P) Ltd. V. UT, Chandigarh, (2004) 2 SCC 130.
43 (1978) 3 SCC 544
44 (2016) 7 SCC 353
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standard to test the reasonableness of the infringements on
substantive rights do not preclude the application of the
proportionality standard to test the reasonableness of limitations
on procedural guarantees. The standard of proportionality infuses
a culture of justification, where the State has to discharge the
burden of justifying that its action was reasonable and not
arbitrary.45 Once the principle of reasonableness is read into
procedural requirements, there is no reason for the court to use
different standards to test the reasonability of substantive and
procedural actions.
F. Infringement of MBL’s right to a fair hearing
53. MBL contends that the principles of a reasoned order,
disclosure of relevant material, and open justice have been infringed by
the order of the MIB and the judgment of the High Court. It is contended
that the abrogation of these three principles infringe upon the right to a
fair hearing which constitutes the core of the procedural requirements
protected under Article 21:
(i)
Reasoned order: In the present case, the notice to show
cause states that MHA has denied security clearance to
MBL to operate its channel, Media One. However, it does
not mention the reasons for the denial of security clearance.
Further, the order dated 31 January 2022 denying the
permission for renewal of license also does not provide
reasons for the denial of security clearance. In such
circumstances, MIB was put in a precarious position without
any
actual recourse to defend the case against them;
(ii)
Disclosure of material relevant to the decision: MHA
declined to disclose any material that was relevant to its
decision. The claim of non-disclosure of relevant documents
by MHA was not limited to a few ‘top secret’ documents.
Rather, all documents that were relevant to the decision
have not been disclosed; and
(iii)
 Open Justice: MHA disclosed the documents in a sealed
cover to the High Court. The High Court dismissed the
writ petition by relying on the material that was disclosed
45 See Justice Chandrachud’s opinion in Justice KS Puttaswamy (5J) v. Union of India
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solely to it in sealed cover. The relevant material is not
removed from the proceedings. The material is only
removed from the affected party’s docket. The party
defending its actions, which most often is the State, and
adjudicating authority rely on the material while making
arguments and while reaching a finding respectively.
54. An ancillary question that must be answered at this stage is
whether the three alleged procedural infractions have to be individually
or collectively assessed to decide if the right to a fair and reasonable
hearing is violated. We are of the opinion that the court must determine
if the procedure that was followed as a whole is fair and reasonable.
After the judgment of this court in Maneka Gandhi (supra), where this
court prioritised the process (and the effect of the process) as opposed
to the outcome (and the objective of the outcome), it is sufficient if the
affected party proves that the procedure that was followed by the
adjudicating authority was not procedurally fair and reasonable without
any reference to the impact on the outcome due to non-compliance.
While doing so, it is well within the power of the claimant to argue that
multiple facets of the right to a fair trial were infringed. However, the
court while undertaking the exercise of assessing the validity of such a
claim must view violation claims from a holistic procedural perspective.
This is for the simple reason that the
principles of natural justice are
mouldable. The requirement of procedural fairness “does not impose a
uniform, unvarying standard to be applied irrespective of the context,
facts, and circumstances.46 Adjudicatory bodies must be provided
sufficient flexibility in deciding procedural requirements. As observed
above, a non-compliance of every facet and component of natural justice
does not render the procedure unreasonable. The claimant must prove
that the effect of non-compliance of a component of natural justice is so
grave that the core of the right to a fair trial is infringed while making an
argument from a component-facet perspective. The procedure followed
must not infringe upon the core which secures reasonableness of a
procedure.
55. The appellants have discharged their burden by proving that
the non-compliance of the above three principles infringed the core of
the principles of natural justice: the right to a fair and reasonable hearing.
46 A & Ors. v. The United Kingdom, Application no. 3455/05
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56. The principles of natural justice ensure that justice is not only
done but it is seen to be done as well. A reasoned order is one of the
fundamental requirements of fair administration. It holds utmost
significance in ensuring fairness; scholars and courts now term it as the
third principle of natural justice.47 The rule of a reasoned order serves
five important purposes. Firstly, it ensures transparency and
accountability. It places a check on arbitrary exercise of power. Lord
Denning observed that in giving reasons “lies a whole difference between
a judicial decision and an arbitrary one”.48 Justice Bhagwati observed in
Maneka Gandhi (supra) that the rule is “designed to secure the rule of
law and the court should not be too ready to eschew it in its application
to a given case.” Secondly, non-reasoned orders have the practical
effect of placing the decision out of the purview of judicial review. A
non-reasoned order limits the power of the courts to exercise judicial
review because the scope of judicial review is not limited to the final
finding on law or facts but extends to the reasons to arrive at the finding.
A limitation on the right to appeal necessarily means that the scope of
judicial review is restricted. Thirdly, articulation of reasons aids in arriving
at a just decision by minimalizing concerns of arbitrary state action.49 It
introduces clarity of thought50 and eschews irrelevant and extraneous
considerations. Fourthly, it enhances the
legitimacy of the institution
because decisions will appear to be fair. There is a higher probability
that the finding through a reasoned order is just. Fifthly, reasoned orders
are in furtherance of the right to information and the constitutional goal
of open government. Secrecy broods partiality, corruption and other vices
that are antithetical to a governance model that is premised on the rule
of law.
57. On the facts of the case, MIB has denied to disclose even the
summary of the reasoning denying security clearance. This has
necessarily left MBL with no remedy. It is crucial to note that the freedom
of press which is protected under Article 19(1)(a) has effectively been
trumped without providing them with an effective and reasonable avenue
47 See SN Mukherjee v. Union of India, (1990) 4 SCC 594; Seimens Engineering and
Manufacturing Company v. Union of India, (1976) 2 SCC 981; CCI v. SAIL (2010) 10
SCC 744; Kranti Associates v. Masood Ahmed Khan, 2010 9 SCC 496
48 Sir Alfred Denning, Freedom Under the Law (Stevens and Sons 1949) p. 92
49 Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Dharan Varshney, (2009) 4 SCC
240
50 State of West Bengal v. Alpana Roy, (2005) 8 SCC 296
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to challenge the decision. This infringes upon the core of a right to fair
hearing. The appellants have proved that the disclosure of reasons is
necessary for them to have a reasonable hearing. The reply to the show
cause notice and the writ petition challenging the validity of the revocation
order also indicate that the appellants have been constrained in a situation
where they are unable to effectively lay a challenge against the decision.
58. MHA disclosed the material forming the opinion for denying
of security clearance solely to the High Court. The High Court instead
of deciding if any other less restrictive but equally effective means could
have been employed, straight away received the material in a sealed
cover without any application of mind. It is now an established principle
of natural justice that relevant material must be disclosed to the affected
party. This rule ensures that the affected party is able to effectively
exercise their right to appeal. When the state government claims non-
disclosure on the ground of public interest under Section 124 of the
Evidence Act, the material is removed from the trial itself. As opposed
to this method, when relevant material is disclosed in a sealed cover,
there are two injuries that are perpetuated. First, the documents are not
available to the affected party. Second, the documents are relied upon
by the opposite party (which is most often the state) in the course
of the
arguments, and the court arrives at a finding by relying on the material.
In such a case, the affected party does not have any recourse to legal
remedies because it would be unable to (dis)prove any inferences from
the material before the adjudicating authority.
59. This form of adjudication perpetuates a culture of secrecy
and opaqueness, and places the judgment beyond the reach of challenge.
The affected party would be unable to “contradict errors, identify
omissions, challenge the credibility of informants or refute false
allegations”.51 The right to seek judicial review which has now been
read into Articles 14 and 21 is restricted. A corresponding effect of the
sealed cover procedure is a non-reasoned order. In Commander Amit
Kumar Sharma v. Union of India52, one of us (DY Chandrachud, J)
speaking for the court commented on the procedural infirmities which
the procedure of sealed cover perpetuates:
“27. The elementary principle of law is that all material which is
relied upon by either party in the course of a judicial proceeding
51 Charkaoui v. Canada (Citizenship and Immigration), (2007) 1 S.C.R 350
52 (2022) SCC OnLine SC 1570
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must be disclosed. Even if the adjudicating authority does not rely
on the material while arriving at a finding, information that is
relevant to the dispute, which would with ‘reasonable probability’
influence the decision of the authority must be disclosed. A one-
sided submission of material which forms the subject matter of
adjudication to the exclusion of the other party causes a serious
violation of natural justice. In the present case, this has resulted in
grave prejudice to officers whose careers are directly affected
as a consequence.
28. The non-disclosure of relevant material to the affected party
and its disclosure in a sealed-cover to the adjudicating authority
(in this case the AFT) sets a dangerous precedent. The disclosure
of relevant material to the adjudicating authority in a sealed cover
makes the process of adjudication vague and opaque. The
disclosure in a sealed cover perpetuates two problems. Firstly, it
denies the aggrieved party their legal right to effectively challenge
an order since the adjudication of issues has proceeded on the
basis of unshared material provided in a sealed cover. The
adjudicating authority while relying on material furnished in the
sealed cover arrives at a finding which is then effectively placed
beyond the reach of challenge. Secondly, it perpetuates a culture
of opaqueness and secrecy. It bestows absolute power in the hands
of the adjudicating authority. It also tilts the balance of power in a
litigation
in favour of a dominant party which has control over
information. Most often than not this is the state. A judicial order
accompanied by reasons is the hallmark of the justice system. It
espouses the rule of law. However, the sealed cover practice
places the process by which the decision is arrived beyond scrutiny.
The sealed cover procedure affects the functioning of the justice
delivery system both at an individual case to - case level and at an
institutional level.”
60. Upon a perusal of the material in sealed cover, the Single
Judge of the High Court observed that the files submitted by MHA
indicate that the Committee of Officers took note of the inputs provided
by intelligence agencies and “found that the inputs are of a serious nature
and fall under the security rating parameters.” The Single judge observed
that “in those circumstances, the Committee of Officers advised not to
renew the licence”. The Single Judge does not provide any clarity on the
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nature of the ‘inputs that were of a serious nature’. Additionally, there is
no mention of the security rating parameters that have been relied on. A
non-reasoned order perpetuates the non-application of judicial mind in
assessing the veracity of the inputs. The nexus of the reasons to the
order cannot be adjudicated upon if the reasons are not disclosed.
61. On appeal, the Division Bench of the High Court observed
that though the nature and gravity of the issue is not discernible from the
files, there are clear indications that the security of the state and public
order would be impacted if the permission granted to MBL to operate
the channel is renewed. The Division Bench has also not disclosed the
reasons for the denial of security clearance. There is no explanation of
what weighed in the mind of the court leading it to hold that the denial of
clearance was justified despite observing that the nature and gravity of
the issue is not discernible. The sealed cover procedure followed by the
Single Judge and the Division Bench have necessarily rendered the
appellant’s right to writ remedies, which has been described as the ‘heart
and soul’ of the Constitution53 and a basic feature of the constitution54, a
dry parchment. The non-disclosure of reasons for the denial of security
clearance which is the sole ground for denying the permission to renew
the license and the disclosure of relevant material only to the court in a
sealed cover has rendered the appellant’s procedural guarantees under
the Constitution otiose. The appellants’ right to writ remedies has been
denied through a formalistic order by the High Court. The procedure
that was followed by the High Court has left the appellants in a maze
where they are attempting strenuously to fight in the dark. The non-
disclosure of reasons for denial of security clearance to the appellants
and the disclosure solely to the Court in a sealed cover has restricted the
core of the principles of the natural justice - the right to a fair and
reasonable proceeding.
G.  Whether the infringement of MBL’s right to a fair hearing
is justified
62. The ASG in the statement filed before the High Court stated
that the reasons for denial of security clearance cannot be disclosed
because (i) intelligence inputs on the basis of which security clearance
was denied are ‘secret and sensitive’; and (ii) in the interest of national
security. It has thus been submitted that the principles of natural justice
53 Dr BR Ambedkar, Constituent Assembly of India Debates (Vol. VII, 9 December 1948
54 L. Chandra Kumar v. Union of India, (1995) 1 SCC 400
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stand abrogated because: firstly, the decision is based on intelligence
inputs which are ‘sensitive’ in nature from security and intelligence
agencies; and secondly, these inputs are in the interest of national security.
The Union of India has relied on the judgments of this Court in Ex-
Armymen’s Protection Services (supra) and Digi Cable Network
(supra) to contend that the principles of natural justice will not apply
when considerations of national security are involved. The validity of
this argument has to be assessed before deciding if the State has
discharged its burden justifying that the infringements on procedural
guarantees are reasonable.
G. 1 Natural justice and national security: decisions in Digi
and Ex-armymen
63. In Ex-Armymen’s Protection Services (supra), the
appellant was granted the business of ground handling services. Rule 92
of the Aircraft Rules 1937 stipulates that the business shall be provided
subject to security clearance. The appellant was informed that security
clearance was withdrawn on grounds of ‘national interest’. The appellant
initiated proceedings under Article 226 of the Constitution before the
High Court of Patna. The writ petition was disposed with a direction
that the appellant should be furnished materials that were relied on by
the Central Government for withdrawal of security clearance. However,
the Central Government passed an order that the documents in the file
were classified as ‘secret’ and could not be
shared with the appellant.
The documents were placed in a ‘sealed cover’ before the Single Judge
of the High Court. On a perusal of the documents, the Single Judge
directed that a gist of the allegations be disclosed. The Division Bench
of the High Court allowed the appeal and held that the materials could
not be disclosed to the appellant in national interest. The appellant initiated
proceedings under Article 136. A two-Judge Bench of this Court
dismissed the proceedings. Justice Kurian Joseph writing for the Bench
observed that if concerns of national security are involved, then the
party cannot ‘insist on the strict observance of the principles of natural
justice’. It was further observed that it is open to the Court to satisfy
itself that the claim of the government that national security is involved
is indeed true. This Court relied on the judgments in the Zamora55 and
Secretary of State for Home Department v. Rehman56 to hold that
55 (1916) 2 AC 77(PC)
56 (2003) 1 AC 153
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deference must be given to the Government’s decision when it is of the
opinion that issues of national security are involved. However, it was
held that the Court may call for records to satisfy itself that issues of
national security are involved. Further, the judgment in Council of Civil
Service Unions v. Minister of Civil Service57 was relied on to hold
that strict observance of the principles of natural justice may not be
possible when national security is involved. It is important to note that
this Court did not decide on the factual considerations in the matter
because the security clearance that was granted to the appellant had
already expired. The relevant observation is extracted below:
“16. What is in the interest of national security is not a question
of law. It is a matter of policy. It is not for the court to decide
whether something is in the interest of the State or not. It should
be left to the executive. To quote Lord Hoffman in Secy. of State
for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR
877 : (2002) 1 All ER 122 (HL)] : (AC p. 192C)
“… [in the matter] of national security is not a question of
law. It is a matter of judgment and policy. Under the Constitution
of the United Kingdom and most other countries, decisions as to
whether something is or is not in the interests of national security
are not a matter for judicial decision. They are entrusted to the
executive.”
17. Thus, in a
situation of national security, a party cannot insist
for the strict observance of the principles of natural justice.
In such cases, it is the duty of the court to read into and provide
for statutory exclusion, if not expressly provided in the rules
governing the field. Depending on the facts of the particular case,
it will however be open to the court to satisfy itself whether
there were justifiable facts, and in that regard, the court is
entitled to call for the files and see whether it is a case
where the interest of national security is involved. Once
the State is of the stand that the issue involves national
security, the court shall not disclose the reasons to the
affected party.
57 1985 AC 374
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18. Be that as it may, on facts we find that the security clearance
granted to the appellant by order dated 17-4-2007 for a period of
five years has already expired. To quote:
“I am directed to inform you that background check on the
company has been conducted and nothing adverse has been found.
The Company’s security clearance shall be valid for a period
of five years from the date of this letter at the end of which a
fresh approval of this Bureau is mandatory.”
(emphasis supplied)
19. In that view of the matter, it has become unnecessary for this
Court to go into more factual details and consideration of the appeal
on merits. The same is accordingly disposed of. There is no order
as to costs.”
(emphasis supplied)
64. In Digi Cable Network (supra), the permission that was
granted to the appellant for operating as a Multi-Systems Operator in
the Digital Addressable System was cancelled on the ground that MHA
denied security clearance to the appellant. The High Court rejected the
challenge to the order of cancellation. The Additional Solicitor General
filed a copy of the reasons for the denial of security clearance in a
sealed cover before this Court. A two-Judge Bench of this Court dismissed
the appeal by relying on the judgment in Ex-Armymen’s Protection
Services (supra) holding that the appellant was not entitled to claim any
prior notice before the order cancelling the permission was passed :
“16. Having perused the note filed by the Union of India,
which
resulted in the cancellation of permission, we are of the considered
opinion that in the facts of this case, the appellant was not entitled
to claim any prior notice before passing of the cancellation order
in question.
17. In other words, we are of the view that the principles of natural
justice were not violated in this case in the light of the law laid
down by this Court in Ex-Armymen’s Protection Services (P)
Ltd. Inasmuch as the appellant was not entitled to claim any prior
notice before cancellation of permission.”
65. The observation in Ex-Armymen’s Protection Services
(supra) that what is in national security is a question of policy and not
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law for the courts to decide was affirmed in the majority opinion in
Justice KS Puttaswamy (5J) v. Union of India58 while deciding on
the constitutional validity of Section 33 of the Aadhar Act.
66. It must be noted that this Court in Ex-Armymen’s Protection
Services (supra) referred to a series of judgments from the Courts in
the United Kingdom to elucidate the principle that the government is
best placed to decide whether national security concerns are involved;
and that principles of natural justice may not be complied with when
issues of national security are involved. The evidentiary principle laid
down by the Courts in the United Kingdom needs to be elucidated in
order to understand the scope of the observations in Ex-Armymen’s
Protection Services (supra).
67. In The Zamora (supra), a ship that was captured contained
contraband in the cargo. The cargo belonged to the Austrian Government,
and was imported into Sweden. The ship was chartered to a German,
who was acting as an agent for the Austrian Government, and the Swedish
consignees were merely playing a part in the transaction. The right to
requisition exists in international law, that is, the right to requisition vessels
pending a decision on whether it must be condemned or released. One
of the limitations to the right to requisition is that vessels must be urgently
required in the defence of the realm or for matters involving national
security. It was in
this context that the Privy Council made the widely
cited observation that:
“With regard to the first of these limitations, their Lordships are of
the opinion that the judge ought, as a rule, to treat the statement
on oath of the proper officer of the Crown to the effect that the
vessel or goods which is sought to requisition are urgently required
for use in connection with the defence of the realm, the prosecution
of the war, or other matters involving national security, as
conclusive of the fact.
[…]
Those who are responsible for the national security must be the
sole judges of what the national security requires. It would be
obviously undesirable that such matters should be made the subject
of evidence in a court of law or otherwise discussed in public.”
58 (2019) 1 SCC 1
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However, the Court put the affidavit that was filed by the Director
of Army Contracts claiming exception to the right to requisition on the
grounds of national security to the test of reason. It was observed that
there was ‘no satisfactory evidence’ that such a right was exercisable:
“In their Lordships’ opinion the order appealed from was wrong,
not because, as contended by the appellants, there is by international
law no right at all to requisition ships or goods in the custody of
the Court, but because the judge has before him no satisfactory
evidence that such a right was exercisable. The affidavit of the
Director of Army Contracts, following the words of Order
XXIX, merely states that it is desired on behalf of His
Majesty to requisition the copper in question. It does not
state that the copper is urgently required for national
purposes. Further, the affidavit of Sven Hoglund, which is
unanswered, so far from showing that there was any real
case to be tried, suggests a case for immediate release.”
(emphasis supplied)
68. In Council of Civil Service Unions (supra), the Minister of
Civil Service released an instruction that employees of the Government
Communications Headquarters cannot be a part of trade unions. This
decision was challenged on the ground that the employees and the trade
unions were not consulted before the instruction was issued. It was
submitted that it was a well-established practice for the trade unions to
be consulted before
conditions of service are altered.
69. The Government Communications Headquarters is a branch
of the Foreign and Commonwealth Office which ensures the security of
the United Kingdom military, and provides intelligence signals for the
Government. The respondent defended its action on the ground that
because “prior consultation would involve a real risk that it would occasion
the very kind of disruption [at GCHQ] which was a threat to national
security and which it was intended to avoid.” The House of Lords
observed that generally the decision of whether the requirements of
national security outweigh the duty of fairness is for the Government
and not the courts to decide. However, this observation was qualified. It
was held that the Government is under an obligation to produce evidence
that the decision was based on the grounds of national security which
warranted the departure from the rule of fairness if the decision is
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successfully challenged on the ground that it was arrived by an unfair
process:
“The question is one of evidence. The decision on whether the
requirements of national security outweigh the duty of fairness in
any particular case is for the Government and not for the courts;
the Government alone has access to the necessary information,
and in any event the judicial process is unsuitable for reaching
decisions on national security. But if the decision is successfully
challenged, on the ground that it has been reached by a process
which is unfair, then the Government is under an obligation to
produce evidence that the decision was in fact based on grounds
of national security. Authority for both these points is found in The
Zamora [1916] 2 A.C. 77.”
On a perusal of the evidence on record, the Court was satisfied
that the departure was justified because it involved national security
concerns.
70. Lord Scarman in his opinion observed that the observations in
The Zamora (supra) were not indicative of an abdication of judicial
function but were an indication that evidence was required by the Court.
In this context, it was observed that it has to be established by evidence
that the interest of national security arises in judicial proceedings:
“My Lords, I conclude, therefore, that where a question as to the
interest of national security arises in judicial proceedings the court
has to act on evidence. In some cases a judge or
jury is required
by law to be satisfied that the interest is proved to exist: in others,
the interest is a factor to be considered in the review of the exercise
of an executive discretionary power. Once the factual basis is
established by evidence so that the court is satisfied that
the interest of national security is a relevant factor to be
considered in the determination of the case, the court will
accept the opinion of the Crown or its responsible officer
as to what is required to meet it, unless it is possible to
show that the opinion was one which no reasonable minister
advising the Crown could in the circumstances reasonably
have held. There is no abdication of the judicial function, but
there is a common sense limitation recognised by the judges as to
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what is justiciable: and the limitation is entirely consistent with the
general development of the modern case law of judicial review.”
(emphasis supplied)
On a perusal of the evidence, it was held that work at the
headquarters involved matters of grave national security, and that if the
employees and trade unions were consulted before the decision then the
security would have been compromised. Lord Scarman observed that
the Minister did not consult the employees because she feared that a
union-organised disruption of services could occur. It was held that this
conclusion by the Minister could have been reached reasonably.
71. In Rehman (supra), the appellant, a Pakistani National whose
parents were British citizens, applied for indefinite leave to remain in the
United Kingdom. The Secretary of State refused his application on the
ground that he was involved with a terrorist organization. The Secretary
of State also added that his deportation from the United Kingdom would
be conducive to public good and ‘in the interests of national security’.
The Special Immigration Appeals Commission allowed the appeal against
the decision of the Secretary of State observing that the standard of civil
balance of probabilities had not been satisfied. The Commission observed
that though it was not disputed that the appellant provided sponsorship,
information and advice to persons going to Pakistan for training which
may have included militant training, it could not be
concluded that these
actions constituted a threat to ‘national security’. The Court of Appeal
allowed the appeal against the judgment of the Commission.
72. The appeal against the judgment of the Court of Appeal was
dismissed by the House of Lords. Lord Slynn of Hadley observed in his
opinion that: (i) where the liberty of the person and the opportunity of his
family to remain in the country are at stake, and when specific actions
which have already occurred are relied on, then it is fair that the civil
standard of proof is applied; (ii) when the Secretary of State decides
that a person must be deported for public good, he is entitled to have
precautionary and preventive principles. There must be material on the
basis on which he can reasonably and proportionately conclude that
there is a real possibility that that the activities harm national security;
(iii) the Secretary of State is in the best position to assess the security
threat. Due weight must be given to his assessment. However, his decision
is open to review on the above two grounds; and (iv) It was held in
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Council of Civil Service Unions (supra) that if it is contested that the
deportation was not based on the grounds of national security, then the
Government must produce evidence to satisfy the Court that the decision
is based on the grounds of national security. However, ‘that is not the
issue in the present case’.
73. Lord Hoffman in his opinion observed that the Commission
cannot differ from the opinion of the Secretary of State on the meaning
of national security. That is, the question of whether for example, the
promotion of terrorism in a foreign country by a United Kingdom resident
would be contrary to the interests of national security is for the
Government to decide. Relying on the judgment in Council of Civil
Service Unions (supra), it was held that the decision on the validity of
deportation is not conceded to the Secretary of the State. The Commission
has to determine (i) the factual basis for the executive’s opinion that
deportation would be in the interests of national security’; (ii) if the
decision of the Secretary of the State was one which a reasonable minister
would have arrived at; and (iii) any other legal defence that was available
to the appellant. The relevant observations are extracted below:
54. This does not mean that the whole decision on whether
deportation would be in the interests of national security is
surrendered to the Home Secretary, so as to “defeat the purpose
for which the
Commission was set up”: see the Commission’s
decision. It is important neither to blur nor to exaggerate the area
of responsibility entrusted to the executive. The precise boundaries
were analysed by Lord Scarman, by reference to Chandler’s case
in his speech in Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374, 406. His analysis shows that
the Commission serves at least three important functions which
were shown to be necessary by the decision in Chahal. First,
the factual basis for the executive’s opinion that deportation
would be in the interests of national security must be
established by evidence. It is therefore open to the
Commission to say that there was no factual basis for the
Home Secretary’s opinion that Mr Rehman was actively
supporting terrorism in Kashmir. In this respect the
Commission’s ability to differ from the Home Secretary’s
evaluation may be limited, as I shall explain, by considerations
inherent in an appellate process but not by the principle of the
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separation of powers. The effect of the latter principle is only,
subject to the next point, to prevent the Commission from
saying that although the Home Secretary’s opinion that Mr
Rehman was actively supporting terrorism in Kashmir had
a proper factual basis, it does not accept that this was
contrary to the interests of national security. Secondly, the
Commission may reject the Home Secretary’s opinion on the
ground that it was “one which no reasonable minister advising the
Crown could in the circumstances reasonably have held”. Thirdly,
an appeal to the Commission may turn upon issues which at no
point lie within the exclusive province of the executive. A good
example is the question, which arose in Chahal itself, as to
whether deporting someone would infringe his rights under article
3 of the Convention because there was a substantial risk that he
would suffer torture or inhuman or degrading treatment. The
European jurisprudence makes it clear that whether deportation
is in the interests of national security is irrelevant to rights under
article 3. If there is a danger of torture, the Government must find
some other way of dealing with a threat to national security.
Whether a sufficient risk exists is a question of evaluation and
prediction based on evidence. In answering such a question, the
executive enjoys no constitutional prerogative.
(emphasis supplied)
74. The following principles emerge from the above judgements:
(i)
The party affected by the
decision must establish that the
decision was reached by a process that was unfair without
complying with the principles of natural justice;
(ii)
The State can claim that the principles of natural justice
could not be followed because issues concerning national
security were involved;
(iii)
The Courts have to assess if the departure was justified.
For this purpose, the State must satisfy the Court that firstly,
national security is involved; and secondly, whether on the
facts of the case, the requirements of national security
outweigh the duty of fairness. At this stage, the court must
make its decision based on the component of natural justice
that is sought to be abrogated; and
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(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 be restricted.
The mere involvement of issues concerning national security would not
preclude the state’s duty to act fairly. If the State discards its duty to act
fairly, then it must be justified before the court on the facts of the case.
Firstly, the State must satisfy the Court
that national security concerns
are involved. Secondly, the State must satisfy the court that an abrogation
of the principle(s) of natural justice is justified. These two standards that
have emerged from the jurisprudence abroad resemble the proportionality
standard. The first test resembles the legitimate aim prong, and the second
test of justification resembles the necessity and the balancing prongs.
G.2 Application of the proportionality standard
76. Having held that the concerns of national security do not permit
an absolute abrogation of the principles of natural justice, we are now
required to assess if the restriction on procedural guarantees is reasonable
on an application of the proportionality standard. The proportionality
standard as laid down by this Court in Modern Dental (supra) is as
follows:
(i)
The measure restricting a right must have a legitimate goal
(legitimate goal stage).
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(ii)
The measure must be a suitable means for furthering this
goal (suitability or rational connection stage).
(iii)
The measure must be least restrictive and equally effective
(necessity stage).
(iv)
The measure must not have a disproportionate impact on
the right holder (balancing stage).
G. 2 (a) Legitimate Goal Stage
77. This prong requires an analysis of the legitimacy of the aim
that restricts rights. The aim must be of sufficient importance to override
fundamental rights. At this stage, the State is required to discharge the
burden of proving that the action is in furtherance of an aim that is
legitimate. The State is also required to discharge the additional burden
of proving that the action is indeed in furtherance of the legitimate aim
that is contended to be served. The Union of India claims that the reasons
and the documents cannot be disclosed in the interest of national security
and confidentiality of intelligence inputs. The State at this stage is required
to prove that confidentiality and national security are legitimate aims,
and that the purposes of confidentiality and national security are served
by non-disclosure.
78. At this stage, the court has to examine the threshold question
whether in a constitutional democracy, a fundamental right can be limited
to realise the purpose underlying the law or action.59 The criteria for
determining proper purpose differs from one legal system to another.
For instance, the South African Constitution
prescribes a general limitation
clause which prescribes the general grounds to limit all fundamental
rights.60 The Indian Constitution does not prescribe a general limitations’
clause. A few of the provisions in Part III such as Article 19 and 25 have
a specific purpose based limitation clause. This does not mean that the
provisions that do not have an express limitation clause are absolute.
Other rights that do not have an express limitation clause can be limited
through an implied reading of the provisions of the Constitution. Our
constitutional jurisprudence does not accept the theory that constitutionally
protected rights live and survive in contextual isolation. Each is linked to
59 Aharon Barak (n 38) 247; Justice Sikri in Modern Dental (paragraph 55)
60 Article 26(1) states that the limitation on human rights should be reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom.
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the other. Hence, the entire text has to evolve in meaning and content
with the canvas which bears the tapestry.
79. Aharon Barak argues that one of the accepted grounds of
proper purpose for the limitation of rights is public interest (or public
good).61 Though the existence of such a purpose is never in contention,
the content of public interest is unclear. Public interest, he argues, must
reflect the notions of justice and tolerance shared by the society. The
courts while identifying if the purpose is legitimate must not fall into the
den of dominant impulses but instead prioritise purposes in furtherance
of constitutional ideals and values. However, the court must necessarily
be cautious to not cross the thin line between adjudication and policy
making. Certain purposes are absolutely antithetical to public interest in
a constitutional democracy. The Constitution, as we all know, is a living
document. Its meaning and the values it espouses develop with time.
The court while determining the purpose must be cognizant of such
developments and must read the Constitution in the socio-political context
– bearing in mind both history and the prospect of societal change at the
time of interpretation.
80. The Constitution prescribes national security as one of the
grounds which can be used to reasonably restrict rights expressly in the
context of Article 19. Further, other provisions of the Constitution prescribe
a
departure from principles during emergency situations that impact
national security.62 Similarly, informational privacy and confidentiality
are now values that have been read into the Constitution, particularly in
view of the decision of a nine Judge Bench in Justice KS Puttaswamy
(9J) (supra) and the enactment of the Right to Information Act 2005.
Thus, confidentiality and national security are legitimate goals recognised
by the Constitution for the purpose of limiting procedural rights.
(I) Confidentiality and IB Reports
81. The state has to now prove that these are the two purposes
that the state action seeks to serve. MHA in response to MBL’s request
for disclosure of reasons for denial of security clearance states that the
reasons cannot be disclosed because reports from investigative agencies
are “secret” in nature. MHA has made a general claim that all reports
of the investigative agencies are confidential. We are unable to accept
61 Aharon Barak (n 38 ) 289
62 Article 359 of the Constitution
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such an argument. Investigative agencies such as the CBI and IB are
required to conduct background checks on innumerable personnel and
entities for a multitude of reasons. The interaction between private
individuals and the State has increased by virtue of which the involvement
of intelligence agencies has also proliferated. The reports of the
intelligence agencies are not merely fact-finding reports. As it would be
evident from the extractions of the material below, reports of investigative
agencies make observations and provide inferences on the conduct of
individuals which are then relied upon by the decision making authority.
To argue that reports of the intelligence agencies may contain confidential
information is one thing but to argue that the all such reports are
confidential is another. Such an argument is misplaced and cannot be
accepted on the touchstone of constitutional values. The reports by
investigative agencies impact decisions on the life, liberty, and profession
of individuals and entities, and to give such reports absolute immunity
from disclosure is antithetical to a transparent and accountable system.
(II) National Security
82. The MHA also opined that the relevant material must not be
disclosed in the interest of national security. The issue before us is
whether the court can judicially review this inference, and if it can, the
extent of such review. We must refer to the jurisprudence on the extent
of judicial review of national
security claims before assessing if the action
serves the purpose of national security.
83. It is now settled that the Courts do not resort to a hands-off
approach when it is claimed that national security implications are
involved. In Manohar Lal Sharma v. Union of India63, a three-Judge
Bench of this Court held that though the extent of judicial review in
matters concerning national security is limited, it does not mean that the
State gets a free pass every time the argument of national security is
made. This Court held that the State must plead on affidavit and prove
that disclosure of information would injure national security. The court
observed:
“50. Of course, the Respondent-Union of India may decline to
provide information when constitutional considerations exist, such
as those pertaining to the security of the State, or when there is a
specific immunity under a specific statute. However, it is incumbent
63 2021 SCC OnLine SC 985
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on the State to not only specifically plead such constitutional
concern or statutory immunity but they must also prove and justify
the same in Court on affidavit. The Respondent-Union of India
must necessarily plead and prove the facts which indicate that
the information sought must be kept in secret as their divulgence
would affect national security concerns. They must justify the
stand that they take before a Court. The mere invocation of national
security by the State does not render the Court a mute spectator.”
The issue is not whether the inference that national security
concerns are involved is judicially reviewable. It is rather on the standard
of proof that is required to be discharged by the State to prove that
national security concerns are involved. It is necessary that we understand
the meaning and implications of the term national security before
embarking on an analysis of the issue. This Court has held that it is not
possible to define national security in strict terms.64 National security
has numerous facets, a few of which are recognised under Article 19(2)
of the Constitution. In Ex-Armymen’s Protection Services (supra), a
two-Judge Bench of this Court observed that the phrase national security
would include factors like ‘socio-political stability, territorial integrity,
economic stability and strength, ecological balance cultural cohesiveness
and external peace. Justice Patanjali Sastri writing for
the majority in
Romesh Thappar v. State of Madras65 demarcated the fields of ‘public
order’ and ‘security of state’ as they find place in Article 19 of the
Constitution. This Court held that the expression ‘security of the state’
was defined to include a ‘distinct category of those offences against
public order which aim at undermining the security of the State or
overthrowing it’. In Ram Manohar Lohia v. State of Bihar66, Justice
M Hidayatullah (as the learned Chief Justice then was) distinguished
the expressions ‘security of State’, ‘law and order’, and ‘public disorder’.
He observed that disorders affecting the security of State are more
aggravated than disorders that affect public order and law and order:
55. It will thus appear that just as “public order” in the rulings of
this Court (earlier cited) was said to comprehend disorders of
less gravity than those affecting “security of State”, “law and
order” also comprehends disorders of less gravity than those
64 AK Roy v. Union of India, (1982) 1 SCC 271
65 1950 SCC 436
66 AIR 1966 SC 740
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affecting “public order”. One has to imagine three concentric
circles. Law and order represents the largest circle within
which is the next circle representing public order and the
smallest circle represents security of State. It is then easy
to see that an act may affect law and order but not public
order just as an act may affect public order but not security
of the State. By using the expression “maintenance of law and
order” the District Magistrate was widening his own field of action
and was adding a clause to the Defence of India Rules.
(emphasis supplied)
84. Thus, the expression national security does not have a fixed
meaning. While courts have attempted to conceptually distinguish national
security from public order, it is impossible (and perhaps unwise) to lay
down a text-book definition of the expression which can help the courts
decide if the factual situation is covered within the meaning of the phrase.
The phrase derives its meaning from the context. It is not sufficient for
the State to identify its purpose in broad conceptual terms such as national
security and public order. Rather, it is imperative for the State to prove
through the submission of cogent material that non-disclosure is in the
interest of national security. It is the Court’s duty to assess if there is
sufficient material for forming such an opinion. A claim cannot be made
out of thin air without material backing for such a conclusion. The Court
must determine if the State
makes the claim in a bona fide manner. The
Court must assess the validity of the claim of purpose by determining (i)
whether there is material to conclude that the non-disclosure of the
information is in the interest of national security; and (ii) whether a
reasonable prudent person would arrive at the same conclusion based
on the material67. The reasonable prudent person standard which is one
of the lowest standards to test the reasonableness of an action is used to
test national security claims by courts across jurisdictions because of
their deferential perception towards such claims. This is because courts
recognise that the State is best placed to decide if the interest of national
security would be served. The court allows due deference to the State
to form its opinion but reviews the opinion on limited grounds of whether
67 This standard of judicial review is derived from the standard that has been laid down
on the limited extent of justiciability of the aid and advice of the council of ministers to
the President/Governor. Refer to the judgment of the Constitution Bench in BP Singhal
v. Union of India, (2010) 6 SCC 331: Paragraph 79.
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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, the application would be
sent for security clearance if the applicant is eligible according to the
information provided.68 MBL’s application was sent for security
clearance. Central Bureau of Investigation69 remarked that there was
nothing adverse that was found on the record against MBL. However,
the Intelligence Bureau70 made the following adverse remarks against
MBL:
(i)
MBL is closely associated with ‘Madhyamam Daily’ which
has links to Jamaat-e-Islami71;
(ii)
The tenor of articles carried out by ‘Madhyamam Daily’
was of an adverse nature from the security perspective;
(iii)
A few of the key executives of the applicant had associated
with JEI-H;
and
(iv)
 The proposed TV channel may espouse the ideology of
JEI/H if permitted to operate.
87. IB also submitted a note on the alleged role and activities of
JEI-H. The note stated that:
(i)
JEI-H was formed in 1941 with the objective of securing
the rule of Allah. After the partition of the Indian sub-
68 Paragraph 9.2 of the Uplinking Guidelines and Paragraph 8.2 of the Downlinking
Guidelines
69 “CBI”
70 “IB”
71 “JEL/H”
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continent, JEI formed units in India, Pakistan, and Kashmir.
JEI-H is opposed to secularism, democracy, and socialism;
(ii)
JEI-H was banned: (i) In 1955 for anti-national activities in
Kashmir. The ban was lifted in 1955; (ii) In 1975 under the
Defence and Internal Security Rules 1971. The ban was
lifted in 1977; and (iii) In 1992, under the Unlawful Activities
(Prevention) Act 196772. The Supreme Court nullified the
ban in 1994;
(iii)
JEI-H plays a crucial role in attracting and channelizing
foreign funds to Islamic institutions in the country through
official and clandestine channels; and
(iv)
JEI-H through its publication, Madhyamam Daily has been
“critical of India’s foreign policy, besides indulging in anti-
US propaganda. It has also been critical of security
agencies/judiciary and often presents news from a
communal perspective. Senior functionaries of JEI, Kerala
are learnt to be mobilizing funds through hawala channels
from the Gulf for launching a TV Channel.”
88. The MHA considered the report and noted that these remarks
were not so strongly adverse in nature to deny permission on the grounds
of security, especially when the applicants were operating a newspaper
with twelve editions. The IB report on Madhyamam Daily on the ‘tenor’
of the articles is extracted below:
“Madhyamam Daily brings out 12 editions (published from 6 places
in Kerala, 2 in Karnataka and 4 places abroad in Saudi Arabia,
Qatar, Bahrain, and Dubai), which are published by
JEI/H run
Islamic Publishing House, Kozhikode, Kerala. The newspapers
which have a combined circulation are of 1.75 lakhs approximately
being used by JEI/H to air its views on various issues affecting
the Muslim community. It has been highlighting the alleged
discrimination against Muslims in India. Recently it had
alleged targeted attack on [..] who is the prime accused in the
Bangalore bomb blast, and his family members and vehemently
criticised police action against […] for her alleged role in the
Kalamassery bus burning case and has contrasted it with the
alleged soft attitude taken against Hindu fundamentalists
72 “UAPA”
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responsible for bomb blasts in the country and Babri Masjid
demolition.”
(emphasis supplied)
89. In 2014, when security clearance was again sought by MBL
for uplinking and downlinking TV Channels Media-One Life and Media
One Global, IB submitted a report stating that fresh enquiries corroborated
the issues that were flagged earlier. The fresh enquiries were based on
a ‘scrutiny of the contents of programmes aired in the recent past by
Media One TV’. On a scrutiny of the contents of the programmes that
were telecast by Media One, IB opined that Media-One: (i) tends to
propagate the ideology of JEI-H; (ii) portrays security forces and
intelligence agencies of India in bad light; (iii) is overcritical of Government
policies, especially vis-a-vis its handling of law and order issues involving
minorities and militancy’.
90. MHA sought fresh comments from IB after receiving the
above report. In the subsequent report, IB made three findings. Firstly,
that the major source of funding for MBL is through shares in which
JEI/H cadres and sympathizers have reportedly invested. IB submitted
a comprehensive list of shareholders who have invested in MBL. We
have not extracted the list of the shareholders to protect their privacy
and confidentiality. Secondly, that enquiries have confirmed that Media
One airs provocative programmes such as: (i) On 5 August 2015, the
channel reportedly made attempts to denigrate the Indian Judiciary
for
alleged adoption of double standards in dealing with terrorism related
cases; (ii) It blames US and Israel for the misery of the Muslims across
the world; and (iii) a publication of MBL ‘Prabodhanam Weekly’,
propagates fundamental Islamic viewpoint through its editorials.
91. On 24 July 2014, a CoO recommended that security clearance
may be denied with respect to the proposals to uplink and downlink
‘Media-One Life’ and ‘Media One Global’, and security clearance maybe
withdrawn to MBL based on the adverse remarks by IB in 2011 and
2014. MHA sought fresh comments and multiple CoO meetings were
held to discuss the same. On 26 August 2015, MIB granted permission
to uplink and downlink ‘Media One Life’.
92. However, on 22 January 2015, CoO recommended denial of
security clearance to two proposals (A) to Uplink/downlink non-news
and current affairs TV channel Media-One Life and Media-One Global;
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(B) for the appointment of two directors. However, it was noted that the
security clearance granted in 2011 may not be withdrawn. The minutes
of the meeting of CoO notes as follows:
“The MHA had issued policy guidelines for assessment of proposal
for national security on 30.6.2015 which clearly prescribe security
relating parameter for assessment of proposals. The CoO felt
that adverse inputs against the company and its Directors are
serious in nature (linkage with radical organization) and falls under
security rating parameters mentioned in Sl No. 13 of Ministry of
Home Affairs Policy guidelines issued vide OM dated 30.6.2015.
Further, CoO observed that the policy mandates that the security
clearance granted by the MHA will usually have prospective effect
unless otherwise decided by the Ministry concerned in the
discharge of its mandate. Therefore, the security clearance
granted in 2011 may not be withdrawn. However, the future
expansion of the company may be stopped in view of the
adverse inputs.”
(emphasis supplied)
93. MHA denied security clearance for these two proposals based
on the recommendation of the CoO. Though the order of MHA denying
security clearance on such recommendation is not annexed to the file
submitted, it finds mention in the internal notes on the file. It seems that
the MHA was not aware that MIB had by then already granted the
permission to uplink and downlink Media One Life. Further, in spite of
the observations of CoO that the
revocation may not be retrospective,
MIB issued a show cause notice to MIB for revocation of the permission
granted to Media One and Media One Life. The MIB requested MHA
to consider the response of MBL against the show cause notice. In this
regard, MHA observed that though it had not withdrawn security
clearance of the existing News and Current Affairs Channel ‘Media
One’, the actions of MIB were in compliance of the guidelines dated 30
June 2015. It is crucial to note that as on the date when security clearance
was denied by MHA, both Media One and Media One Life were existing
news channels. The relevant extract of the response of MHA is extracted
below:
“Since the MHA has not withdrawn security clearance of existing
News and Current Affairs TV channel ‘Media One’, it is Ministry
of I&B which has to justify its action of issuing show-cause notice
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for withdrawal of permission. At the same time, since the MHA
has given leverage to the nodal Ministry in the guidelines dated
30.06.2015 to take action for retrospective application of the
guidelines in the discharge of its mandate and that the MIB has
taken action in accordance with their own guidelines, we may not
state that MHA has not withdrawn security clearance granted
vide OM dated 17.2.2011. This would give impression if action of
the nodal Ministry was not in conformity with MHA guidelines.
We may simply mention the proposals to which security clearance
was denied on 27.1.2016, and state that Ministry of I&B has issued
SCN in discharge of its mandate it may defend its action. As
regards sharing of reason for denial of clearance, it is
informed that the denial is based on inputs from intelligence
Agencies which are secret in nature and cannot be disclosed
to the applicant.”
(emphasis supplied)
The response of MHA further notes that the security clearance
was denied based on ‘inputs from intelligence agencies which are secret
and cannot be disclosed to the applicant.’
94. On 11 September 2019, MIB revoked the uplinking and
downlinking permission which was granted to Media One life. MBL
submitted a representation against the revocation. MHA requested IB
to furnish comments on the representation of MBL. IB concluded that
the inputs attract parameters (Sl. Nos. 20 and 21) stipulated by the
Guidelines issued on
June 25 201873 for assessment of proposals received
in the Ministry of Home Affairs for national security clearance. IB made
the following two adverse remarks:
(i)
“Main source of income: MBL’s main source of income is
the shares invested by cadres of JEI-H through its
sympathizers. Most of the Board of Directors are JEI-H
sympathizers”; and
(ii)
“Anti-establishment stance: Media One channel is learnt to
be espousing its anti-establishment stance on various issues
‘including UAPA, Armed Forces (Special Power) Act,
73 “2018 Guidelines”
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developmental projects of the Government, encounter
killings, Citizenship (Amendment) Act, CAA/NPR/NRC”.
95. The 2018 Guidelines stipulate that national security covers a
wide range of issues but the principle focus, inter alia, is on (i) matters
relating to preserving the unity, territorial integrity and sovereignty of the
nation and protecting the life, and liberty of its citizens; and (ii) matters
vital to economic security, protection of critical infrastructure, and
development and prosperity of the country and its citizens. Clause 3.2
stipulates that sector sensitive proposals emanating from, inter alia,
MIB shall be assessed in accordance with the Guidelines. According to
Clause 4 national security verification will be done through “record
checks/field enquiries and other means for the vetting of the company,
entity and the persons associated with the same.” The provision stipulates
that on receipt of a proposal from the concerned ministry (in this case,
MIB), MHA would seek inputs from security and law enforcement
agencies. Clause 5 stipulates that the intelligence and law enforcement
agencies will conduct an assessment based on the list of security
parameters set out in in Annexure C. The assessment will be done on
the basis of the reported threat, probability of materialization, and overall
impact. Annexure C prescribes the security parameters. Sl. No 13 of
the Annexure reads: “Terror funding, financial linkage with
underworld, drug cartels,
crime syndicates.” Sl No. 20 reads as
“Involvement in religious proselytization activities in India”, and Sl.
No. 22 reads as “Intentional or systemic infringement of safety
concerns or security systems endangering the safety of the public”.
96. MBL filed an application for renewal of permission to uplink
and downlink the Media-One channel. MIB forwarded the application
for renewal to MHA for security clearance. MHA noted that there is no
reason to consider the renewal of permission if security clearance has
been denied to the company and its directors earlier:
“3. It has been observed that Ministry of Information and
Broadcasting has been forwarding the proposals for renewal of
security clearance to MHA on routine basis including cases, where
security clearance has already been denied to the company and
its directors, If security clearance has been denied by MHA to a
company and its directors. there is no reason to consider its renewal
unless there are specific reasons to indicate that the situation has
changed.
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The security clearance guidelines dated 25.06.2018, para 7.4
stipulates that the decision on security clearance by the MHA will
have prospective effect unless otherwise decided by the ministry
/department concerned in the discharge of its mandate. This was
explicitly clarified in the meeting dated 21.01.2016 of the then
Home Secretary and Secretary of Information & Broadcasting in
response to MIB query on whether withdrawal of security
clearance to company/individual entities in one sector would
tantamount to withdrawal in other sectors also
Since MIB has already been communicated denial of security
clearance to the above mentioned companies, there is no need of
fresh consideration for the cases as per security clearance
guidelines.
In view of the above, Ministry of Information and Broadcasting
may be requested that the proposals for renewal of security
clearance in the cases where security clearance has already been
denied to the company, should not have forwarded to MHA, in a
routine manner unless and until there is sufficient and proper
reasons for the same.”
97. Before addressing whether the non-disclosure of the relevant
material would be in the interest of national security, it is our constitutional
duty to mention the cavalier manner in which Union of India has raised
the claim of national security. Other than merely claiming that national
security is involved, both in the affidavit that was filed before the
High
Court and in the submissions before us, the Union of India made no
attempt to explain how non-disclosure would be in the interest of national
security. The Union of India has adopted this approach inspite of
reiterations by this Court that judicial review would not be excluded on a
mere mention of the phrase ‘national security’. The State is using national
security as a tool to deny citizens remedies that are provided under the
law. This is not compatible with the rule of law.
98. Security clearance was denied to MBL because of its alleged
link with JEI-H, and its alleged anti-establishment stance. To conclude
that MBL is linked to JEI-H, IB has relied on the ‘tenor’ of the articles
published by dailies of MBL, and the shareholding pattern of MBL. To
conclude that JEI-H has an anti-establishment stance, IB has solely relied
upon the programmes that were broadcast by Media-One. Some of the
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views that were highlighted in the IB report to conclude that MBL has
an anti-establishment stand are that (i) it portrays security forces and
the judiciary in a bad light; (ii) it highlighted the discrimination faced by
minorities in the country and contrasted it with the State’s alleged soft
attitude towards the Hindus who were involved in the destruction of
Babri Masjid; and (iii) its comments on UAPA, Armed Forces (Special
Power) Act, developmental projects of the Government, encounter killings,
Citizenship (Amendment) Act, and CAA/NPR/NRC.
99. Significantly, with respect to the list of shareholders who are
alleged sympathizers of JEI-H, the file does not contain any evidence on
the alleged link between the shareholders and JEI-H. The report of IB is
purely an inference drawn from information that is already in the public
domain. There is nothing ‘secretive’ about this information to attract the
ground of confidentiality. Additionally, it cannot be argued that the purpose
of national security will be served by non-disclosure merely by alleging
that MBL is involved with JEI-H which is an organisation with alleged
terrorist links. While we have held above that it would be impractical
and unwise for the courts to define the phrase national security, we also
hold that national security claims cannot be made out of thin air. There
must be material backing such an inference. The material on the file and
the inference drawn from such material have no nexus.
The non-disclosure
of this information would not be in the interest of any facet of public
interest, much less national security. On a perusal of the material, no
reasonable person would arrive at the conclusion that the non-disclosure
of the relevant material would be in the interest of national security and
confidentiality.
G.2 (b) Suitability
100. We proceed to apply the subsequent prongs of the
proportionality standard, even assuming that the action taken is in the
interest of confidentiality and national security. The second prong of the
proportionality analysis requires the State to assess whether the means
used are rationally connected to the purpose. At this 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
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can be realised, even if it only partially gives effect to the purpose.74 The
Canadian Supreme Court in the case of Oakes (supra) emphasised that
the means adopted must not be “arbitrary, unfair, or based on irrational
connection”. The requirements under this prong will not be fulfilled if
the State uses constitutionally impermissible means. Though it is not
necessary that the means opted should be the ‘best possible means’, the
means must still pass the muster of the constitution.
101. The Ministry of Home Affairs disclosed the relevant material
solely to the court in a sealed cover. By this method of disclosure,
information that is claimed to be confidential and in the interests of national
security is sought to be protected by not disclosing it to the public and the
claimant. The means that are used may not necessarily be the best possible
means to protect the interest involved because the sealed cover procedure
permits partial disclosure as opposed to complete non-disclosure.
However, it still shares a rational connection to the purpose that is sought
to be achieved.
102. On the other hand, the non-disclosure of even a summary of
reasons for denying security clearance does not share a rational
connection with the purpose identified. In A v. The United Kingdom75,
the ECHR held that there must always be ‘equality of arms’ between
the parties. The court held that if procedural guarantees are restricted,
then the
limitation must be sufficiently counterbalanced. In Secretary
of State for the Home Department v. AF76 the House of Lords while
interpreting the judgment of the ECHR in A (supra) held that there is a
‘core irreducible minimum’ of procedural guarantees which cannot be
infringed. The House of Lords observed that the ‘essence of the case
against the applicant’ is a core irreducible minimum which has to be
disclosed. We are in agreement with the observations of the House of
Lords and ECHR in AF (supra) and A (supra) respectively. MHA by not
disclosing the reasons for denying security clearance has rendered MBL’s
procedural guarantees otiose. The summary of reasons for denying
security clearance constitute the ‘core irreducible minimum’ of the
procedural guarantees under Article 14. By not disclosing the summary
of reasons, the MHA has undertaken an unreasonable and arbitrary
means to fulfil its purpose.
74 Aharon Barak (n 38) 305
75 Application no. 3455/05
76 2009] UKHL 28, (paras 62-65, 81))
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G. 3 (c) Least restrictive means
103. The judgment of the majority in Justice KS Puttaswamy
(5J) (supra) adopted the ‘moderate interpretation of necessity’ that was
propounded by David Bilchitz.77 The author sought to draw a middle
ground between strong and weak forms of the necessity prong. The
sub-components of the necessity prong as devised by Bilchitz are as
follows:78
(a)
Whether there are other possible means which could have
been adopted by the State;
(b)
Whether the alternative means identified realise the
objective in a ‘real and substantial manner’;
(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)79,
the Canadian Supreme Court held that the procedure for detention
prescribed under the Immigration and Refugee Protection Act 200180
suffered from procedural infirmities. Under the 2001 Act, a person may
be deprived of some or all of the information on the basis of which the
detention was ordered. The Canadian Supreme Court held that the
provisions of the 2001 Act unjustifiably violate Section 7 of the Canadian
Charter of Rights and Freedom81 because State action is judicially
reviewed based on secret material
without devising any means to protect
the affected person’s procedural rights. The court referred to the system
of special advocates in the United Kingdom and observed that this system
77 David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach? in
Liora Lazarus et al (eds), Reasoning Rights: Comparative Judicial Engagement (Hart
2014) 49.
78 ibid, p. 51.
79 (2007) 1 SCR 350
80 “2001 Act”
81 Section 7 of the Canadian Charter of Rights and Freedoms stipulates that the right to
life, liberty, and security of a person shall not be deprived except in accordance with the
principles of fundamental justice.
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protects the interests of the affected party. The court concluded that the
procedure prescribed in the statute cannot be ‘justified as minimum
impairment of the individual’s right to a judicial determination on the
facts and the law, and right to know and meet the case.’
105. The Canadian Supreme Court referred to the jurisprudence
on the procedure followed by courts across various jurisdictions to decide
claims that involve State secrets and held that there were other lesser
restrictive means that could have been employed, as in the United
Kingdom. As a part of the analysis of the least restrictive means prong,
we deem it necessary to refer to alternative procedures that are available
in India and in other countries that substantially aid in realising the
objective and which protects the interest of the affected party in a better
fashion.
(I) Totten claim: non-justiciability of the issue
106. The Courts in the United States have recognised that in
exceptional circumstances, the court must act in the interest of national
security to prevent the disclosure of state secrets. One of the applications
of this principle is through the Totten claim. According to the Totten
claim, if claims are premised on state secrets, then they are barred
from adjudication82. If the subject matter is a matter of state secret then
the action may be dismissed on pleadings before the proceedings could
reach the stage of evidence. The Totten
claim, if allowed, permits the
dismissal of the suit in the pre-discovery stage.
(II) Closed Material Procedure and Special Advocates
107. In Chahal v. United Kingdom83, the Home Secretary issued
an order to deport the appellant, an Indian national and a Sikh separatist.
One of the grounds of the appellant’s challenge to the deportation order
was that although the Home Secretary’s decision is amenable to judicial
review, the effective determination of his risk to national security was
made by an internal Home Office advisory panel on the basis of material
which was not disclosed to him. The European Court of Human Rights84
accepted the contention of the appellant and held that the procedure
violated the rights under Article 5(4) of the European Convention on
82 Totten v. United States, 92 US 105,107 (1876)
83 (1996) 23 EHRR 413
84 “ECHR”
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Human Rights.85 The court observed that there are other less restrictive
methods which could be employed to accommodate legitimate concerns
of national security and procedural justice. The Court referred to the
procedure that is applied in Canada under the Canadian Immigration
Act 1976 under which a Federal Court judge holds an in - camera hearing
of all the evidence; the applicant is provided a statement summarising
the case that is made against them; and the confidential material is then
disclosed to a security-cleared counsel who assists the court in testing
the strength of the State’s case.
108. In response to the judgment in Chahal (supra), the
Government of the United Kingdom passed the Special Immigration
Appeals Commission Act 1997 which paved the way for security-cleared
Special Advocates to represent the applicant in substantive proceedings
that take place behind closed doors. The material is not disclosed to the
claimant. However, the Special Advocate represents the interest of the
party before the court though they are not permitted to interact with to
the claimant about the non-disclosable security evidence in the closed
proceedings. For all purposes, closed material proceedings are similar to
the sealed cover procedure, except that a security cleared lawyer is
appointed to counterbalance the limitations on procedural guarantees.
The Terrorism Act 2000 prescribes a similar procedure. Since then the
Courts in the United Kingdom have been using
Special Advocates in
civil proceedings, quasi-criminal proceedings86, and in public interest
immunity claims.87 The Special Advocate serves two purposes : firstly,
to seek maximum possible disclosure of closed material; and secondly,
to test by cross-examination and make submissions on any material that
remains closed.88
(III) Public Interest Immunity
109. The Evidence Act prescribes rules precluding disclosure of
certain communications and evidence. Section 123 stipulates that no
85 Article 5(4): “Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful.”
86 Roberts v. Parole Board, (2005) 2 AC 738
87 R v. H, (2004) AC 134
88 Martin Chamberlain, Special Advocates and Amici Curiae in National Security
proceedings in the United Kingdom, The University of Toronto Law Journal , Summer
2018, Vol. 68, No. 3, Special Issue on Indigenous Law (Summer 2018), pp. 496-510
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person shall be permitted to give any evidence that is derived from
unpublished official records relating to affairs of the State. The evidence
shall be disclosed only with the permission of the officer at the head of
the department:
123. Evidence as to affairs of State.- No one shall be permitted
to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit.
Section 124 provides that a public officer shall not be compelled
to disclose communications made to him in official confidence if the
disclosure affects public interest:
124. Official communications.- No public officer shall be
compelled to disclose communications made to him in official
confidence, when he considers that the public interests would suffer
by the disclosure.
110. Section 162 stipulates that a witness who is summoned to
produce a document in court shall bring the document to court
notwithstanding any objection that is raised on its production and
admissibility. The provision provides that the objection shall be decided
by the Court. For this purpose, the court shall inspect the document,
unless it refers to matters of state. The provision is extracted below:
162. Production of document.- A witness summoned to produce
a document shall, if it is in his possession or power,
bring it to
Court, notwithstanding any objection which there may be to its
production or to its admissibility. The validity of any such objection
shall be decided on by the Court.
The court, if it sees fit, may inspect the document, unless it refers
to matters of State, or take other evidence to enable it to determine
on its admissibility.
111. The claim of public interest immunity allows the State to
remove the material from the proceedings on the ground that its disclosure
would injure public interest. All three parties to the proceeding, that is,
the applicant, the state, and the court cannot refer to or rely on the
documents for substantive hearings in the course of the proceedings if
the court allows the public interest immunity claim at the discovery stage.
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In effect, the public interest immunity claim renders the relevant document
non-existent for the purposes of the proceedings. Public interest immunity
substantially realises the objective of protecting the interests of
confidentiality and national security.
112. All the three alternatives identified above realise the objective
in a real and substantive manner in as much as it furthers non-disclosure.
However, each of the alternative means have a different effect on
fundamental rights because they operate in different penumbrae. In a
public interest immunity claim, the material is not relied on by both the
parties and the court in the course of the substantive hearings. The court
removes the material from the proceeding, and the public interest
immunity proceedings are conducted in a closed setting. In a Totten
claim, the court at the admission stage itself declares that the issue is
non-justiciable if the material on state secrets may have to be disclosed.
The court does not undertake any balancing exercise to decide if the
injury due to the disclosure of information is heavier than the injury due
to non-disclosure. Rather, if the material is, according to the state, related
to a state secret then the applicant is deprived of the remedy of judicial
review. Under the closed material procedure, non-disclosable material
is relied on by the State and referred to by the court in the course of the
substantive hearing. The special advocate would represent the
interests
of the affected party. However, the special advocate would be precluded
from discussing the evidence with the affected party. It must be noted
that special advocates are involved even in public interest immunity claims
to represent the affected party in the closed hearing to decide if the
relevant information must be disclosed. Thus, the special advocates’
system is a means to counterbalance the effect of the limitation on
procedural guarantees of the affected party.
113. When these three means identified are placed on the
continuum, public interest immunity claims would be placed on one end
as they have the least impact on rights as opposed to the Totten claim
which would be placed on the other end. The closed material procedure
would be placed in the middle because Special Advocates are used in an
attempt to counterbalance the infringement of procedural rights. The
difference in the impact must be determined firstly, based on the stage
of consideration. The public interest immunity claim and closed material
procedure claim are raised at the discovery stage. As opposed to this
procedure, under the Totten claim, the claim is held to be non-justiciable
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at the pleading stage if the State contends that the proceedings are
premised on state secrets. Secondly, the Totten claim limits the
fundamental right to judicial review since claims based on state secrets
are rendered non-justiciable. However, in a public interest immunity claim,
whichever way the claim is decided, the parties will have equality of
arms because the same evidence will have to be relied on in the course
of the proceedings. It may be argued that the removal of the documents
from the proceedings would, in effect, render the claim non-justiciable if
the documents that are sought to be not disclosed are closely intertwined
with the cause of action. We have addressed this argument in detail in
Section J of this judgment. Similar to the sealed cover procedure, in the
closed material proceeding, the non-disclosable evidence that is used in
a substantive hearing of the case is excluded for the claimant. However,
the closed material procedure in the United Kingdom does not exist
independent of special advocates who aim to provide sufficient
counterbalance. The closed material proceeding is more injurious to the
claimant’s procedural guarantees as compared to public interest immunity
because non-disclosed material is used by the State to defend its actions
and relied on by the court to arrive at a conclusion. As compared to this,
in public interest immunity, the non-disclosable evidence is completely
removed
at the discovery stage. Though the Special Advocates aim to
provide sufficient counterbalance, the process still causes prejudice to
the claimant since the security cleared advocates are not permitted to
interact with the claimant about the evidence. The (in)sufficiency of the
counterbalance provided by special advocates largely depends on the
facts of the case, particularly on the material that is sought to be
unrevealed and revealed. The interrelationship between the allegations,
open material, and closed material was aptly addressed by the ECHR in
A (supra). The relevant observations are extracted below:
“ 220. The Court further considers that the special advocate could
perform an important role in counterbalancing the lack of full
disclosure and the lack of a full, open, adversarial hearing by testing
the evidence and putting arguments on behalf of the detainee
during the closed hearings. However, the special advocate could
not perform this function in any useful way unless the detainee
was provided with sufficient information about the allegations
against him to enable him to give effective instructions to the special
advocate. While this question must be decided on a case-by-case
basis, the Court observes generally that, where the evidence was
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to a large extent disclosed and the open material played the
predominant role in the determination, it could not be said that the
applicant was denied an opportunity effectively to challenge the
reasonableness of the Secretary of State’s belief and suspicions
about him. In other cases, even where all or most of the underlying
evidence remained undisclosed, if the allegations contained in the
open material were sufficiently specific, it should have been possible
for the applicant to provide his representatives and the special
advocate with information with which to refute them, if such
information existed, without his having to know the detail or sources
of the evidence which formed the basis of the allegations. An
example would be the allegation made against several of
the applicants that they had attended a terrorist training
camp at a stated location between stated dates; given the
precise nature of the allegation, it would have been possible
for the applicant to provide the special advocate 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-disclosure at the disposal of the State, we shall now
undertake a comparative analysis of the impact of the alternative means
identified (public interest immunity) and the means used (sealed cover)
on fundamental rights. In section F, we have already discussed the effect
of the disclosure of material solely to the courts in a sealed cover on the
fundamental precepts of procedural fairness and how the courts do not
employ any safeguards to protect the procedural rights of the applicant.
In the next section, we will be discussing the jurisprudence on public
interest immunity. A reference of how the courts have dealt with public
interest immunity claims will allow us to analyse if the courts have
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employed sufficient procedural guarantees to protect the rights of the
applicant or have on the contrary been deferential to the claims of the
State. This analysis is important because it is only a comparative analysis
of how the courts would deal with sealed cover and public interest
immunity claims that would allow us to evaluate their relative effect on
procedural rights.
H. Jurisprudence on public interest immunity claims
H.1 India
115. This Court has on earlier occasions interpreted Sections 124
and 164 of the Evidence Act. In State of Punjab v. Sodhi Sukhdev
Singh89, the respondent, a District and Sessions Judge, who was removed
from service and later re-employed sought the report of the Public Service
Commission and the proceedings of the Council of Ministers. The Chief
Secretary filed an affidavit claiming privilege under Section 123 of the
Evidence Act. The claim for privilege was allowed. Justice
Gajendragadkar, writing the majority opinion of the Constitution Bench,
laid down the scope of review of a claim of non-disclosure. Sections 164
and 123 were construed to deal with the conflict between public interest
and private interest. It was observed that the court must assess if the
disclosure that affects public interest would outweigh the concerns of
private interest which disclosure of material to the litigant furthers:
“13. The principle on which this departure can be and is justified
is the principle of
the overriding and paramount character of public
interest. A valid claim for privilege made under Section 123
proceeds on the basis of the theory that the production of the
document in question would cause injury to public interest, and
that, where a conflict arises between public interest and private
interest, the latter must yield to the former. No doubt the litigant
whose claim may not succeed as a result of the non-production of
the relevant and material document may feel aggrieved by the
result, and the court, in reaching the said decision, may feel
dissatisfied; but that will not affect the validity of the basic principle
that public good and interest must override considerations of private
good and private interest.”
The court held that when a claim of public interest immunity is
made against disclosure, the Court must on a preliminary enquiry of the
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affidavit determine if the document relates to affairs of the State. If the
document relates to state affairs, then the decision of the head of the
department on whether the disclosure would violate public interest would
be final. The document must be disclosed if on a preliminary enquiry the
court is of the opinion that the document does not relate to ‘State affairs’.
The court would only possess the power to scrutinise the affidavit and
not inspect the document on which immunity is claimed to determine if
the document ‘relates to affairs of state’.
116.  Justice Subba Rao in his opinion differed from the majority
opinion on this point of law. The divergence was one of principle. While
the majority pitted the issues on the lines of public interest and private
interest, Justice Subba Rao held that both disclosure and non-disclosure
further public interest. It was held that the disclosure of information aids
the party in the proceedings but beyond that the disclosure also serves
the purpose of administration of justice. On the extent of scrutiny by the
Court, Justice Subba Rao observed that the Court has the power to
disallow a claim of privilege. For this purpose, the court has to determine
if the public interest in disclosure outweighs the public interest in non-
disclosure. It was observed that the Courts should ordinarily accept the
affidavit of the Minister claiming privilege but when the court has reason
to disbelieve the claim, it can examine the
Minister. Justice Subba Rao
agreed with the opinion of Justice Gajendragadkar that the court shall
not inspect the document that is sought to be protected from disclosure.
117. In State of Uttar Pradesh v. Raj Narain90, the respondent
sought to summon documents in an election petition. The State made a
claim for immunity. Justice K K Mathew in his concurring opinion for
the Constitution Bench raised doubts on the observation in Sodhi
Sukhdev Singh (supra) that the Court does not have the power to
inspect documents for which the claim of privilege is made. It was held
that it would be difficult to determine the effect of the disclosure on
public interest without inspecting the document. The learned Judge
classified such documents as those belonging to noxious classes and
others. It was held that if the documents belong to noxious classes (such
as national security), it would per se infringe on public interest. For other
documents that do not belong to noxious classes, the courts ought to
survey aspects of public interest involved in both disclosure and non-
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