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2023 (7) TMI 1010
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....ated 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 Affairs ("MHA"). The appellants instituted proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court. A. Facts 2 On 19 May 2010, MBL applied for permission to uplink and downlink a news and current affairs television channel named 'Media One'. On 7 February 2011, MHA granted a security clearance for the operation of the channel. By an order dated 30 September 2011, MIB gave MBL permission to uplink 'Media One' for a period of ten years under the 'Policy Guidelines for Uplinking of Television Channels from India' ("Uplinking Guidelines"). 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 l....
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....0.09.2011 to uplink and downlink one News and current affairs channel, namely, "Media One" and on 26.08.2015 one Non-News & Current Affairs Channel, namely, "Media One Life" into India. Whereas, the permissions so granted by this Ministry are governed by the Uplinking and Downlinking Guidelines as amended from time to time. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels. Whereas the security related conditions annexed with the permission letter stipulates that the license/ permission can be revoked on the grounds of national security and public order. Whereas the Ministry of Home Affairs has recently conveyed denial of the security clearance. Whereas due to withdrawal of security clearance, the company would cease to fulfil the very basic pre-requisite for grant of permission of uplinking & downlinking TV Channels. The company is also in violation of the security related conditions conveyed through the permission letters issued by the Ministry. Whereas due to the above-non-compliances, the permissio....
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....med 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) ....
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....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 direc....
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....are clear indications that the security of the state and public order would be impacted if the permission granted to MBL to operate the channel is renewed; (ii) While the State cannot ordinarily interfere with the freedom of the press, the scope of judicial review in matters involving national security is limited; (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 India (AIR 2021 SC 5396)); 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 initiat....
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.... Submissions 14 Mr Dushyant Dave, Senior Counsel appearing on behalf of MBL made the following submissions: (i) The order issued by MIB revoking the permission granted to uplink and downlink the channel, Media One, is unconstitutional for the following reasons: (a) Security Clearance is a pre-condition only for the grant of permission to operate the channel and not for the renewal of the existing permission. Under Clause 10.2 of the Uplinking Guidelines, the renewal of the existing permission is subject only to the channel not having been found guilty of violating the terms and conditions of the Programme and Advertising Code on five occasions or more; (b) Without prejudice to the above argument, security clearance cannot be denied on grounds that exceed the reasonable restrictions on the freedom of the press prescribed under Article 19(2) of the Constitution. The order revoking the permission refers to paragraph 9.2 of the Uplinking Guidelines. Paragraph 9.2 is a part of the 'procedure for obtaining permission' which provides that an application for permission will be sent to the Ministry of Home Affairs for security clearance. The procedure to grant ....
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.... 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 India ((2020) 3 SCC 637) and KS Puttaswamy (9J) v. Union of India ((2017) 10 SCC 1)) The Uplinking and Downlinking Guidelines contemplate suspension of the licence to operate for varied time periods. The revocation of the permission was not the least restrictive means available at the disposal of MIB; and (iii) The High Court relied on material that was placed in a sealed cover to reject the challenge to the revocation order. This course of action undertaken by the High Court violates the principles of natural justice. 16 Mr Mukul Rohatgi, senior counsel appearing for the Kerala Union of Working Journalists (SLP (C) No. 4678 of 2022) 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 cond....
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....HA; and (ii) by a letter dated 29 December 2021, MHA denied security clearance to MBL for 'renewal' of uplinking and downlinking permission. 20 MIB issued a show cause notice stating that, MBL has "ceased to fulfil the eligibility requirement for 'renewal' of permission for uplinking and downlinking" due to the denial of security clearance. MBL was asked to show cause as to why the 'permission granted to them should not be revoked or cancelled'. By its letter dated 31 January 2022, MIB ordered that the permission granted to MBL to uplink and downlink Media One be 'revoked'. Though the show cause notice stated that security clearance which is a requirement for 'renewal' of license is denied, MIB was asked to show cause as to why its license should not be 'revoked'. A similar phraseology of 'revocation' was used in MIB's order dated 31 January 2022. The Division Bench of the High Court in its judgment dated 2 March 2022 noted the inconsistency between the phraseology used in the 'renewal' application and 'revocation' order. 21 The notice to show cause and the order of revocation refer to the 'revocation of license'. However, both the former and the latter note that MBL....
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....er. The conditions stipulated in paragraph 10 for the renewal of uplinking and downlinking are : (i) The channel should not have violated the programme and advertisement code on five or more occasions; (ii) The channel should not have been found guilty of violating the terms and conditions of permission; and (iii) The channel must fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. 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 Guidel....
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....ent 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 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 th....
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....e guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety. (See State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709; Tata Cellular v. Union of India, (1994) 6 SCC 651; and Council of Civil Service Unions v. Minister for Civil Service, (1985) A.C 374) 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. (See Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G. Ganayutham, (1997) 7 SCC 463) 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....
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....the Code of Criminal Procedure 1973 to secure the 'correct' outcome and to identify the 'truth'. 37 In Chief Constable of North Wales Police v. Evans ((1982) 1 WLR 1155), the appellant was a probationary member of the North Wales Police Force. He was removed from the force without putting forth the allegations against him. The House of Lords set aside the decision on the ground that the non-disclosure of allegations was violative of the principles of natural justice. The Court cautioned that there was an extreme danger in proceeding without putting forth the allegations against him because the veracity of the allegations could never be tested: "As an example of the extreme danger of proceeding in this way, it must be observed that, as one of the two clinching matters which seem to have influenced him, the appellant says in his affidavit: "Further, it became known" (sic) "to senior officers that the applicant and his wife had lived a 'hippy' type life-style at Tyddyn Mynyddig Farm, Bangor." This had never been put to the respondent at all, and had the appellant or his deputy to whom he delegated the inquiry taken the trouble to ask the respondent about it, he would have ....
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....ness 'express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one'. (Laurence Tribe, American Constitution Law (2 nd ed.). Pg. 666) D.J Galligan in his book "Due Process and Fair Procedures: A Study of Administrative Procedures" (DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon Press 1996)) 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 resp....
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....on law principle of natural justice (Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural Justice and Fundamental Rights, (Volume 16, Issue 2, International Journal of Constitutional Law, 2018, p. 475-502). The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice and that non-compliance with natural justice prejudiced the party. (NK Prasada (n 27)) 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 India (Maneka Gandhi (n 26)). 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 expansio....
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....ntal rights are not water- tight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 of the Constitution projects on the procedure that is contemplated by Article 21. Thus, every individual has a right to a reasonable hearing: "[..] we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by 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, ....
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....1; Kesar Enterprises Ltd v. State of Uttar Pradesh (2011) 13 SCC 733) Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement 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. (See paragraph 12 of Justice Bhagwati's judgment in Maneka Gandhi.) E. 3 Standard to test reasonableness of procedure: proportional....
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....The link between reasonableness and proportionality and the necessity of using the proportionality standard to test the limitation on fundamental rights has been captured by Justice Jackson in the course of the Canadian Supreme Court's judgment in R v. Oakes ((1986) 1 SCR 103; This passage was quoted with affirmation in the judgment of the Constitution bench in Modern Dental.): "To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be "of" sufficient importance to warrant overriding a constitutionally protected right or freedom...Second ... the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test." (emphasis supplied) 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 va....
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....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 decisi....
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....that the effect of non-compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed while making an argument from a component-facet perspective. The procedure followed must not infringe upon the core which secures reasonableness of a procedure. 55 The appellants have discharged their burden by proving that the non-compliance of the above three principles infringed the core of the principles of natural justice: the right to a fair and reasonable hearing. 56 The principles of natural justice ensure that justice is not only done but it is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. It holds utmost significance in ensuring fairness; scholars and courts now term it as the third principle of natural justice. (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) The rule of a reasoned order serves five important purposes. Firstly, it ensures transparency and accountability. It places a check on arbitrary....
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....llenge 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 wou....
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.... adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case to - case level and at an institutional level." 60 Upon a perusal of the material in sealed cover, the Single Judge of the High Court observed that the files submitted by MHA indicate that the Committee of Officers took note of the inputs provided by intelligence agencies and "found that the inputs are of a serious nature and fall under the security rating parameters." The Single judge observed that "in those circumstances, the Committee of Officers advised not to renew the licence". The Single Judge does not provide any clarity on the nature of the 'inputs that were of a serious nature'. Additionally, there is no mention of the security rating parameters that have been relied on. A non....
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....s been submitted that the principles of natural justice stand abrogated because: firstly, the decision is based on intelligence inputs which are 'sensitive' in nature from security and intelligence agencies; and secondly, these inputs are in the interest of national security. The Union of India has relied on the judgments of this Court in Ex-Armymen's Protection Services (supra) and Digi Cable Network (supra) to contend that the principles of natural justice will not apply when 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 be....
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....(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. 18. Be that as it may, on facts we find that the security clearance granted to the appellant by order....
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....ed 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 t....
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....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 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 de....
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.... 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 o....
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....tive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler's case in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the i....
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.... 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 proportio....
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....uld be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.) The Indian Constitution does not prescribe a general limitations' clause. A few of the provisions in Part III such as Article 19 and 25 have a specific purpose based limitation clause. This does not mean that the provisions that do not have an express limitation clause are absolute. Other rights that do not have an express limitation clause can be limited through an implied reading of the provisions of the Constitution. Our constitutional jurisprudence does not accept the theory that constitutionally protected rights live and survive in contextual isolation. Each is linked to the other. Hence, the entire text has to evolve in meaning and content with the canvas which bears the tapestry. 79 Aharon Barak argues that one of the accepted grounds of proper purpose for the limitation of rights is public interest (or public good). (Aharon Barak (n 38 ) 289) 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 w....
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....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 appro....
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....ity of state' as they find place in Article 19 of the Constitution. This Court held that the expression 'security of the state' was defined to include a 'distinct category of those offences against public order which aim at undermining the security of the State or overthrowing it'. In Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), Justice M Hidayatullah (as the learned Chief Justice then was) distinguished the expressions 'security of State', 'law and order', and 'public disorder'. He observed that disorders affecting the security of State are more aggravated than disorders that affect public order and law and order: 55. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not publi....
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....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. (Paragraph 9.2 of the Uplinking Guidelines and Paragraph 8.2 of the Downlinking Guidelines) MBL's application was sent for security clearance. Central Bureau of Investigation ("CBI") remarked that there was nothing adverse that was found on the record against MBL. However, the Intelligence Bureau ("IB") made the following adverse remarks agains....
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....has been highlighting the alleged discrimination against Muslims in India. Recently it had alleged targeted attack on [..] who is the prime accused in the Bangalore bomb blast, and his family members and vehemently criticised police action against [...] for her alleged role in the Kalamassery bus burning case and has contrasted it with the alleged soft attitude taken against Hindu fundamentalists responsible for bomb blasts in the country and Babri Masjid demolition." (emphasis supplied) 89 In 2014, when security clearance was again sought by MBL for uplinking and downlinking TV Channels Media-One Life and Media One Global, IB submitted a report stating that fresh enquiries corroborated the issues that were flagged earlier. The fresh enquiries were based on a 'scrutiny of the contents of programmes aired in the recent past by Media One TV'. On a scrutiny of the contents of the programmes that were telecast by Media One, IB opined that Media-One: (i) tends to propagate the ideology of JEI-H; (ii) portrays security forces and intelligence agencies of India in bad light; (iii) is overcritical of Government policies, especially vis-a-vis its handling of law and order issues invol....
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....ge 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 ....
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.... 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....
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....ure 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....
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....hould be the only means capable of realising the purpose of the state action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means used constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose. (Aharon Barak (n 38) 305) The Canadian Supreme Court in the case of Oakes (supra) emphasised that the means adopted must not be "arbitrary, unfair, or based on irrational connection". The requirements under this prong will not be fulfilled if the State uses constitutionally impermissible means. Though it is not necessary that the means opted should be the 'best possible means', the means must still pass the muster of the constitution. 101 The Ministry of Home Affairs disclosed the relevant material solely to the court in a sealed cover. By this method of disclosure, 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 permit....
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.... overall comparison (and balancing ) of the measure and the alternative, the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights. 104 In Charkaoui v. Canada (Citizenship and Immigration) ((2007) 1 SCR 350), the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 2001 ("2001 Act") suffered from procedural infirmities. Under the 2001 Act, a person may be deprived of some or all of the information on the basis of which the detention was ordered. The Canadian Supreme Court held that the provisions of the 2001 Act unjustifiably violate Section 7 of the Canadian Charter of Rights and Freedom (Section 7 of the Canadian Charter of Rights and Freedoms stipulates that the right to life, liberty, and security of a person shall not be deprived except in accordance with the principles of fundamental justice.) 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 thi....
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.... be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.") The court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal Court judge holds an in - camera hearing of all the evidence; the applicant is provided a statement summarising the case that is made against them; and the confidential material is then disclosed to a security-cleared counsel who assists the court in testing the strength of the State's case. 108 In response to the judgment in Chahal (supra), the Government of the United Kingdom passed the Special Immigration Appeals Commission Act 1997 which paved the way for security-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 ar....
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....at the objection shall be decided by the Court. For this purpose, the court shall inspect the document, unless it refers to matters of state. The provision is extracted below: 162. Production of document.- A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. 111 The claim of public interest immunity allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. All three parties to the proceeding, that is, the applicant, the state, and the court cannot refer to or rely on the documents for substantive hearings in the course of the proceedings if the court allows the public interest immunity claim at the discovery stage. In effect, the public interest immunity claim renders the relevant document non-existent for the purposes of the pr....
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....l procedure claim are raised at the discovery stage. As opposed to this procedure, under the Totten claim, the claim is held to be non-justiciable at the pleading stage if the State contends that the proceedings are premised on state secrets. Secondly, the Totten claim limits the fundamental right to judicial review since claims based on state secrets are rendered non-justiciable. However, in a public interest immunity claim, whichever way the claim is decided, the parties will have equality of arms because the same evidence will have to be relied on in the course of the proceedings. It may be argued that the removal of the documents from the proceedings would, in effect, render the claim non-justiciable if the documents that are sought to be not disclosed are closely intertwined with the cause of action. We have addressed this argument in detail in Section J of this judgment. Similar to the sealed cover procedure, in the closed material proceeding, the non-disclosable evidence that is used in a substantive hearing of the case is excluded for the claimant. However, the closed material procedure in the United Kingdom does not exist independent of special advocates who aim to provide....
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.... 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) ....
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....n-production of the relevant and material document may feel aggrieved by the result, and the court, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private good and private interest." The court held that when a claim of public interest immunity is made against disclosure, the Court must on a preliminary enquiry of the affidavit determine if the document relates to affairs of the State. If the document relates to state affairs, then the decision of the head of the department on whether the disclosure would violate public interest would be final. The document must be disclosed if on a preliminary enquiry the court is of the opinion that the document does not relate to 'State affairs'. The court would only possess the power to scrutinise the affidavit and not inspect the document on which immunity is claimed to determine if the document 'relates to affairs of state'. 116 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 publ....
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....the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. [...] 72. The power reserved to the Court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of Government for which the minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspects of public interest. While there are overwhelming arguments for giving to the Executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may aff....
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....of public interest which requires that the document should not be disclosed against the other that the court in performing its functions should not be denied access to relevant documents and decide which way the balance lies. And this exercise has to be performed in the context of the democratic ideal of an open Government." 119 Justice Bhagwati further observed that the non-appointment of a Judge for an additional term, which was under challenge in this case, could only be challenged on the ground that there was no full and effective consultation between the three constitutional functionaries, or that the decision was mala fide. Hence, the correspondence that is sought is the only documentary evidence that would aid in establishing the claim. On the other hand, the non-disclosure would have the effect of ensuring the dismissal of the writ petition. Moreover, it was held that other than the impact of non-disclosure on the applicant's case, it would also affect the wider constitutional principles of independence of the judiciary if the appointment process is insulated from public view. Further, when the transfer of a High Court Judge is challenged, the burden to prove that the tr....
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....the disclosure would be injurious to public interest. The Court may inspect the document if it doubts the claim of the State and is unable to satisfy itself on a perusal of the affidavit. This power of inspection of the Court is not excluded by the operation of Section 162 of the Evidence Act; (v) Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government; (vi) Disclosure cannot be denied per se merely because the documents belong to a noxious 'class'. The court must still conduct a balancing exercise. Class immunity 'is not absolute or inviolable'. It is not a rule of law to be applied mechanically in all cases; (vii) The court must determine if: (a) the disclosure of the document would in effect be against public interest (the effect test), and (b) if so, whether the public interest in disclosure is 'so strong' that it must prevail over the public interest in the administration of justice (the balancing test); and (viii) While und....
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....terest but that of private interest and public interest. The House of Lords established two principles for the application of public interest immunity: that the interest of a litigant must give way to the secrecy of the government, and the Minister has the sole power to decide if the document ought to be withheld. 123 The House of Lords altered its approach in Conway v. Rimmer ([1968] AC 910). Lord Reid observed that that impact of non-disclosure must not be viewed through the narrow lens of private interest and it is public interest in the administration of justice that is injured due to non-disclosure of documents. The House of Lords established three principles of seminal importance. Firstly, the power to decide if evidence has to be withheld from the court resides with the court and not the executive. Secondly, the court while exercising this power must balance the potential harm to the public interest due to disclosure with the court's inability to administer justice. The Court while determining the later harm must assess the effect of non-disclosure on ascertaining the 'true facts' and on the wider principle of public confidence in the court system. Thirdly, the court is e....
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....ent to the United Kingdom security and intelligence services were summarised in seven paragraphs. These seven paragraphs were sought to be redacted by the Court by claiming public interest immunity. It was contended that the United States Government would re- evaluate its intelligence sharing relationship with the United Kingdom if the paragraphs were published, which would in turn prejudice the national security of the United Kingdom. The Court applied a four-pronged test to decide the claim of whether the paragraphs had to be redacted: (i) Is there a public interest in bringing the redacted paragraphs into the public domain? (ii) Will the disclosure cause serious harm to an important public interest, and if so which interest? (iii) Can the injury to the public interest in disclosure be prevented by other methods of limited disclosure? (iv) If the alternatives are insufficient, where does the balance of public interest lie? 126 While answering the first test, the Court identified the impact of disclosure on public confidence in the judiciary to the principles of public hearing and reasoned judgement; and the role of information in furthering ....
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.... evidence. However, in some cases, the application of 'privilege may require dismissal of the action and at this point, the Reynolds privilege converges with the Totten bar. 129 The US Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen Dataplan (614 F 3d 1070 (9 th Cir 2010) (United States)) observed that in three circumstances, the termination of the case is justified on the application of Reynolds privilege: (i) if the plaintiff cannot prove their case prima facie; (ii) if the plaintiff prima facie proves their case but if the privilege deprives the defendant of information that would provide the defendant a valid defence, then the court may grant a summary judgment to the defendant; and (iii) even if the claims might be theoretically established without relying on privileged evidence, it may be impossible to proceed since the privileged evidence is inseparable from the non-privileged. 130 The standard of scrutiny followed by the courts in the United States is different from the United Kingdom on three basic principles: firstly, the standard established in Reynolds privilege is to identify if the information relates to 'protected classes'; secondly, the co....
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....e if public interest in disclosure outweighs public interest in non-disclosure (Section 38.06(2) of the Canada Evidence Act). If it does, then the information must be disclosed. The Court must consider the following factors while undertaking the balancing exercise (R v. Ahmad, (2011) SCC 6): (a) The 'relative importance' of the information in proving or defending the claim- that is, whether the information is 'necessary' and 'crucial' to the case; (b) the extent of injury that would be caused by the disclosure; (c) whether there are higher interests such as human rights issues, the right to make a full answer and defence in the criminal context at stake; (d) the importance of the open court principle; and (e) whether the redacted information is already known to the public. 133 On the basis of the discussion on the public interest immunity claims for non-disclosure in the above-mentioned jurisdictions, the following conclusions emerge: (i) The earlier position of law across all jurisdictions was that the courts should be deferential to the claim of the government that the disclosure of document(s) would be injurious to public ....
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....herwise. This is because the court is at that stage aware that the state is contesting the production on grounds of national security. Such claims are always met with a deferential tone by the courts. Secondly, and most importantly, this leads to an integration of the discovery stages and the objection stages. This integration is problematic because the considerations of the court at the discovery stage and objection stage are distinct. The party seeking discovery of documents must prima facie prove the relevance of the document to the proceedings. Once the party discharges this burden, and the court orders disclosure, the state may object to disclosure on the ground that it would injure public interest. At this stage, the burden is wholly on the state to prove injury to public interest. After the objection is raised, the relevancy of the disclosure must only be weighed at the balancing stage. Identifying the relevancy of the document even before the state is required to discharge the burden of proving public interest introduces a fundamental misconception in the application of public interest immunity which is an exception to the production of documents. Furthermore, at an element....
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.... this suit set forth in the second schedule hereto. 4. The last-mentioned documents were last in my possession or power on. [State when and what has become of them and in whose possession they now are.] 5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto. (emphasis supplied) 135 After the court has directed disclosure of all documents, the party who is directed to disclose all the relevant documents may object to the disclosure of specific documents in its possession in the form prescribed in Annexure C of the Code. It must be noted that Order XI Rul....
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.... procedural fairness, after it has been proved that the party has been denied a fair and reasonable hearing due to non- compliance must be tested on the proportionality standard. 138 In addition to the above discussion, we are of the opinion that the courts must use the proportionality standard to assess claims of public interest immunity for the following reasons: (i) Firstly, the state while making a claim for public interest immunity seeks an accommodation to deviate from an established principle of natural justice, that is, the right to know the case that is made against a person due to non-disclosure of relevant material. This claim by its very nature infringes upon the right to a fair trial or hearing that flows from Article 21 of the Constitution. The role of the courts while assessing the validity of the claim of public interest immunity is restricted to determining if the infringement of the right that is protected under Article 21 of the Constitution is reasonable; (ii) Secondly, though the Constitution Bench of this Court in SP Gupta (supra) did not use the standard of structured proportionality as it exists in the present form to assess the claim of....
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....tes that the right to fair trial and the right to information protected under Articles 21 and 19(1)(a) cannot be restricted to advance a public interest. The principle implicit in Section 124 of the Evidence Act is that no purpose could be of sufficient importance to override the right to a fair hearing. Such a restriction is unjustified. It is only an injury of public interest that justifies the non-disclosure of documents. 141 In view of the above discussion, the proportionality standard laid down by this Court in Modern Dental (supra) has to be nuanced keeping in view the standard that is prescribed by the provisions of Section 124 of the Evidence Act and the observations of this Court in SP Gupta (supra). Apart from the measure being in furtherance of a legitimate goal, there must be an injury to a legitimate goal. The burden is on the party opposing disclosure of material to prove all the sub-facets of the proportionality standard. The structured proportionality standard based on the principles in Section 124 of the Evidence Act is as follows: (i) Whether the disclosure of information would injure public interest (injury stage); (ii) Whether there is a les....
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..... Rule 7 provides an exception to the rule. The rule stipulates that no person has a right to documents that are (i) confidential; (ii) directed to be placed in a sealed cover by the court or the Chief Justice; and (iii) the disclosure of which is not in public interest. The rule states that documents that fall within any of the above clauses can be disclosed only with the permission of the court or the Chief Justice. Order XIII Rule 7 is extracted below for reference: "7. Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in a sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order made by the Chief Justice or by the Court." 145 The power of the court to receive material relevant to a proceeding in a sealed cover is read from Order XIII Rule 7. Unlike the closed material procedure in the United Kingdom and Canada....
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....al. In a closed proceeding, the claimant would be represented by a Special Advocate who would be unable to take instructions from the claimant. The Supreme Court of the United Kingdom observed that a closed material procedure, unlike the law relating to public interest immunity, departs from the principles of both open justice and natural justice. Lord Dyson in his opinion observed as follows: "41. [...]The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side's special advocate and the court. I have already referred to the limits of the special advocate system." 147 The total removal of the information from the proceedings has two impacts. First, it may lead to the dismissal of the proceeding....
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....d only order that part of the substantive hearing be closed where it is satisfied that the national security information is sufficiently relevant to the proceedings that it is in the interests of justice to use a closed procedure rather than to exclude the information and have the case proceed without it. Although a closed procedure would be available in cases where the national security information was beneficial to the Crown's case, the interests of justice test will be much harder for the Crown to satisfy because it is seeking to withhold information from the other party but also use it against them. In some cases where the Crown is defending an action, the courts may consider that this is appropriate, but we would anticipate this would be quite rare. It is more likely that a closed procedure would be in the interests of justice where it would prejudice the non-Crown party if the court excluded the national security information." 149 The Supreme Court of the United Kingdom dealt with the effect of exclusion of relevant material on a successful claim of public interest immunity in Al Rawi (supra). In that case, it was argued by the State that the Court must exercise its inhere....
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....vidence. This proposition is deceptively attractive - for what, the appellants imply, could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one's opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable." (emphasis supplied) 152 Lord Kerr further observed that the State faces a healthy dilemma with public inte....
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....not be amenable to both judicial review and public criticism on merits. 156 While it cannot be denied that allowing a public interest immunity claim may cause some degree of injury to the procedural guarantees of the claimant and the defendant, a sealed cover procedure will not ensure a fairer proceeding. The purpose of public interest immunity proceedings would become redundant if the defendant is provided the option of requesting a closed material procedure after the conclusion of public interest immunity proceedings, which the defendant makes, is allowed. Rather, we are of the opinion that the effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State in making restricted claims of public interest immunity. Further, as Lord Dyson remarked, the procedure would be inherently disadvantageous to the claimant because they are unaware of the contents of the document. 157 It may be argued that the removal of the documents from the proceedings would render the proceedings non-justiciable if the documents that are sought to be protected are so closely intertwined with the cause of action. Though the argument hold....
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....w of the observations above, we are of the opinion that the respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover have violated the appellant's right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellants' right to a fair hearing were reasonable. Therefore, the order of MIB dated 31 January 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees. K Substantive Challenge: the validity of the action of the MIB in denying to renew the permission 160 In the course of his arguments, Mr Huzefa A Ahmadi, in addition to arguments on the violation of procedural guarantees, requested the court to peruse the material that was disclosed solely to the court in a sealed cover to decide if there was sufficient material to justify the non-renewal of permission. Thus, notwithstanding the conclusion that we have reached above setting a....
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....State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." We have already held in Part C of this judgment that security clearance is a requirement for renewal of an Uplinking and Downlinking license. The denial of security clearance to operate a news channel is a restriction on the freedom of press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2) of the Constitution. 164 Though the courts have been using the proportionality standard to test the reasonableness of restrictions on fundamental rights after the decisions in Modern Dental (supra) and Justice KS Puttaswamy (9J) (supra), this has generally been deployed in the area of legislative action. The position laid down by this court is that all violations of fundamental rights have to be tested on the standard of proportionality. The court under Article 13 of the Constitution has the power to declare 'laws' that violate fundamental rights to be void. For the purpose of the provision, 'law' includes administrative action. The position of law that administrative action infringing....
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....he 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 ....
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....ompliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure. (c) The judgments of this court in Ex-Armymen's Protection Services (supra) and Digi Cable Network (supra) held that the principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; (e) The validity of the claim of involvement of national security considerations must be assessed on the test of (i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record; (f) Even assuming that non-disclosure is in the interest of confidentiality and national security, ....
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....ctors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in the proceedings would be effectively impaired. While there may be material on serious concerns of national security which cannot be disclosed; the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict. To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process. 172 The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertai....