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TMI Blog2023 (7) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 licence on grounds of national security and public order. (iii) The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Whereas due to the above-non-compliances, the permissions are liable to be withdrawn/cancelled.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 thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 General ("ASG") of India filed a statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderations 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing permission is subject only to the channel not having been found guilty of violating the terms and conditions of the Programme and Advertising Code on five occasions or more; (b) Without prejudice to the above argument, security clearance cannot be denied on grounds that exceed the reasonable restrictions on the freedom of the press prescribed under Article 19(2) of the Constitution. The order revoking the permission refers to paragraph 9.2 of the Uplinking Guidelines. Paragraph 9.2 is a part of the 'procedure for obtaining permission' which provides that an application for permission will be sent to the Ministry of Home Affairs for security clearance. The procedure to grant or refuse security clearance must be subject to the limitations prescribed in 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 Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 has not fulfilled one of the conditions for renewal of license since it was denied a security clearance by the MHA. Counsel for the appellants have not made submissions on the inconsistency arising out of the use of the phrases 'renewal' and 'revocation' interchangeably. Thus, we will proceed on the understanding that the order of MIB dated 31 January 2022 rejected the application for renewal of the licence to operate the channel. D. Requirement of security clearance for renewal of permission 22 Paragraph 10 of the Uplinking Guidelines stipulates the conditions for renewal of existing permissions. According to paragraph 10, renewal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 9,namely, "procedure for obtaining permission,' does not detract from the prescription of a substantive condition. Paragraph 10.4 excludes the eligibility criteria of net worth of the company and managerial experience from the consideration of the renewal application. All other conditions prescribed by the guidelines for permission are applicable for renewal of permission. The requirement of security clearance arises at a stage subsequent to the fulfilment of conditions prescribed under Paragraphs 2 and 3. If the preliminary conditions prescribed are applicable at the time of renewal, there is no reason to exclude the application of the requirement of the security clearance for renewal of permission. 30 Further, Paragraph 10. 4 of the Uplinking Guidelines stipulates that the conditions 'as modified by the permission letter' are applicable at the time of renewal of the license. The annexure to the 'permission letter' does not specify any condition modifying or eliminating the condition of security clearance. Rather, the annexure provides that the licence shall be revoked on grounds of 'public order and national security'. Though in view of Paragraph 10 of the Uplinking Guideline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayutham, (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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eem to have influenced him, the appellant says in his affidavit: "Further, it became known" (sic) "to senior officers that the applicant and his wife had lived a 'hippy' type life-style at Tyddyn Mynyddig Farm, Bangor." This had never been put to the respondent at all, and had the appellant or his deputy to whom he delegated the inquiry taken the trouble to ask the respondent about it, he would have discovered at once that this allegedly clinching allegation was palpably untrue, and simply the result of a mistaken address. It was, in short, an utterly incorrect statement relied upon precisely owing to the failure of natural justice of which complaint is made." 38 Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end in itself. Fair procedure induces equality in the proceedings. The proceedings 'seem' to be and are seen to be fair. In Kanda v. Government of Malaya ((1962) 28 MLJ 169), 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 conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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. (TRS Allan, Procedural Fairness and the Duty of Respect (Oxford Journal of Legal Studies) p. 510 PART E) 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-judicial (The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expansion of the meaning of the expression 'procedure established by law' as it finds place in Article 21 of the Constitution to include procedural due process. The second, is the shift from reading the provisions of Part III of the Constitution as isolated silos to understanding the overlapping tendencies of fundamental rights. 44 In AK Gopalan v. State of Madras (AIR 1950 SC 27), 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) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hearing (See Zahira Habibulla H Sheikh v. State of Gujarat, (2004) 4 SCC 158, where this Court recognized the right to fair trial.) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural 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: proportionality as reasonableness 48 Once the applicant proves that the procedure that was followed was not reasonable with reference to the core of the principles of natural justice, the burden shifts on the State to prove that the limitation of the right is justified and reasonable. The State usually claims that the limitation of the right is justified because following a fair procedure would, inter alia, be prejudicial to public interest. What standard of review should the courts employ to test the reasonableness of the limitation? Rights are not absolute in a constitutional democracy. The jurisprudence that has emanated from this Court is that rights can be limited but such a limitation must be justified on the ground of reasonableness. Though, only Article 19 of the constitution expressly prescribes that the limitation must be reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrably 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. (Om Kumar (n 16) ; Teri Oat Estates (P) Ltd. V. UT, Chandigarh, (2004) 2 SCC 130.) 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 Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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 exercise of power. Lord Denning observed that in giving reasons "lies a whole difference between a judicial decision and an arbitrary one". (Sir Alfred Denning, Freedom Under the Law (Stevens and Sons 1949) p. 92) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected 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". (Charkaoui v. Canada (Citizenship and Immigration), (2007) 1 S.C.R 350) 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 India ((2022) SCC OnLine SC 1570), 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, the Committee of Officers advised not to renew the licence". The Single Judge does not provide any clarity on the nature of the 'inputs that were of a serious nature'. Additionally, there is no mention of the security rating parameters that have been relied on. A non-reasoned order perpetuates the non-application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed. 61 On appeal, the Division Bench of the High Court observed that though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the state and public order would be impacted if the permission granted to MBL to operate the channel is renewed. The Division Bench has also 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party. 18. Be that as it may, on facts we find that the security clearance granted to the appellant by order dated 17-4-2007 for a period of five years has already expired. To quote: "I am directed to inform you that background check on the company has been conducted and nothing adverse has been found. The Company's security clearance shall be valid for a period of five years from the date of this letter at the end of which a fresh approval of this Bureau is mandatory." (emphasis supplied) 19. In that view of the matter, it has become unnecessary for this Court to go into more factual details and consideration of the appeal on merits. The same is accordingly disposed of. There is no order as to costs." (emphasis supplied) 64 In Digi Cable Network (supra), the permission that was granted to the appellant for operating as a Multi-Systems Operator in the Digital Addressable System was cancelled on the ground that MHA denied security clearance to the appellant. The High Court rejected the challenge to the order of cancellation. The Additional So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the right to requisition is that vessels must be urgently required in the defence of the realm or for matters involving national security. It was in this context that the Privy Council made the widely cited observation that: "With regard to the first of these limitations, their Lordships are of the opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which is sought to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact. [...] Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public." However, the Court put the affidavit that was filed by the Director of Army Contracts claiming exception to the right to requisition on the grounds of national security to the test of reason. It was observed that there was 'no satisfactory evidence' that such a right was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against the judgment of the Court of Appeal was dismissed by the House of Lords. Lord Slynn of Hadley observed in his opinion that: (i) where the liberty of the person and the opportunity of his family to remain in the country are at stake, and when specific actions which have already occurred are relied on, then it is fair that the civil standard of proof is applied; (ii) when the Secretary of State decides that a person must be deported for public good, he is entitled to have precautionary and preventive principles. There must be material on the basis on which he can reasonably and proportionately conclude that there is a real possibility that that the activities harm national security; (iii) the Secretary of State is in the best position to assess the security threat. Due weight must be given to his assessment. However, his decision is open to review on the above two grounds; and (iv) It was held in Council of Civil Service Unions (supra) that if it is contested that the deportation was not based on the grounds of national security, then the Government must produce evidence to satisfy the Court that the decision is based on the grounds of national security. However, 'that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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). (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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. (Article 359 of the Constitution) Similarly, informational privacy and confidentiality are now values ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 India (2021 SCC OnLine SC 985), a three-Judge Bench of this Court held that though the extent of judicial review in matters concerning national security is limited, it does not mean that the State gets a free pass every time the argument of national security is made. This Court held that the State must plead on affidavit and prove that disclosure of information would injure national security. The court observed: "50. Of course, the Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Respondent-Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept in secret as their divulgence would affect national security concerns. They must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against MBL: (i) MBL is closely associated with 'Madhyamam Daily' which has links to Jamaat-e-Islami ("JEL/H"); (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-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 1967 ("UAPA"). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponse of MHA is extracted below: "Since the MHA has not withdrawn security clearance of existing News and Current Affairs TV channel 'Media One', it is Ministry of I&B which has to justify its action of issuing show-cause notice for withdrawal of permission. At the same time, since the MHA has given leverage to the nodal Ministry in the guidelines dated 30.06.2015 to take action for retrospective application of the guidelines in the discharge of its mandate and that the MIB has taken action in accordance with their own guidelines, we may not state that MHA has not withdrawn security clearance granted vide OM dated 17.2.2011. This would give impression if action of the nodal Ministry was not in conformity with MHA guidelines. We may simply mention the proposals to which security clearance was denied on 27.1.2016, and state that Ministry of I&B has issued SCN in discharge of its mandate it may defend its action. As regards sharing of reason for denial of clearance, it is informed that the denial is based on inputs from intelligence Agencies which are secret in nature and cannot be disclosed to the applicant." (emphasis supplied) The response of MHA further notes that the secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of the Annexure reads: "Terror funding, financial linkage with underworld, drug cartels, crime syndicates." Sl No. 20 reads as "Involvement in religious proselytization activities in India", and Sl. No. 22 reads as "Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public". 96 MBL filed an application for renewal of permission to uplink and downlink the Media-One channel. MIB forwarded the application for renewal to MHA for security clearance. MHA noted that there is no reason to consider the renewal of permission if security clearance has been denied to the company and its directors earlier: "3. It has been observed that Ministry of Information and Broadcasting has been forwarding the proposals for renewal of security clearance to MHA on routine basis including cases, where security clearance has already been denied to the company and its directors, If security clearance has been denied by MHA to a company and its directors. there is no reason to consider its renewal unless there are specific reasons to indicate that the situation has changed. The security clearance guidelines dated 25.06.2018, para 7.4 stipulates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kingdom (Application no. 3455/05), 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. AF (2009] UKHL 28, (paras 62-65, 81))) 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adjudication (Totten v. United States, 92 US 105,107 (1876)). If the subject matter is a matter of state secret then the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 proceedings (Roberts v. Parole Board, (2005) 2 AC 738), and in public interest immunity claims. (R v. H, (2004) AC 134) 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. (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) (III) Public Interest Immunity 109 The Evidence Act prescribes rules precluding disclosure of certain communications and evidence. Section 123 stipulates that no person shall be permitted to give any evidence that is derived from unpublished official records relating to affairs of the State. The evidence shall be disclosed only with the perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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 preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights of the applicant. In the next section, we will be discussing the jurisprudence on public interest immunity. A reference of how the courts have dealt with public interest immunity claims will allow us to analyse if the courts have employed sufficient procedural guarantees to protect the rights of the applicant or have on the contrary been deferential to the claims of the State. This analysis is important because it is only a comparative analysis of how the courts would deal with sealed cover and public interest immunity claims that would allow us to evaluate their relative effect on procedural rights. 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 Singh ((1961) 2 SCR 371), 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, writi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. 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 Narain ((1975) 4 SCC 428), 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 documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be seen only by a handful of ministers or officials bound by oath of secrecy." (emphasis supplied) 118 In SP Gupta v. Union of India (1981 Supp SCC 87), a seven-Judge Bench of this Court settled the position of law on claims of non-disclosure on the grounds of public interest. In this case, the Union of India claimed immunity against the disclosure of the correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India. It was argued that the documents sought to be disclosed belong to a class that is immune from disclosure, and thus the courts ought to allow the claim for non-disclosure irrespective of its contents. Justice Bhagwati, whose view five other judges agreed to, (Justice Gupta (paragraph 142); Justice Tulzapurka (paragraph 662); Justice Desai (paragraph 855); Justice Pathak (paragraphs 941 and 942). Justice Venkataramiah authored a concurring opinion.) rejected the claim for non- disclosure. (Justice Fazl Ali dissented allowing the claim for non-disclosure.) Justice Bhagwati observed that claim of class immunity is not absolute: "The executive cannot by merely invoking the scriptural formula of class immunity defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im that the disclosure of the correspondence must be injurious to public interest. 120 The view taken by Justice Mathew in Raj Narain (supra) and Justice Subba Rao in Sodhi Sukhdev Singh (supra) was partially adopted by Justice Bhagwati, writing for the majority in SP Gupta (supra) and was further developed upon. The principles elucidated in the judgment are summarised below: (i) Open government is one of the crucial components of a democratic form of government. Disclosure of information is advantageous to the affected party in the proceedings. In addition, it also furthers public interest in access to information and open government. The conflict which Sections 123 and 162 seek to redress is not between public interest and private interest but between two conflicting conceptions of public interest; (ii) The majority opinion in Sodhi Sukhdev Singh (supra) perpetuates two inconsistencies. Firstly, it would be difficult to determine if a document relates to affairs of the state without inspecting it . The court determines the effect of its disclosure on public interest only after inspection. This conclusion is apparent since Sodhi Sukhdev Singh (supra) has already held that onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the document will be of importance to the litigation, and whether allowing the claim of non-disclosure would render the issue non-justiciable; and (b) On principle: Whether non-disclosure would affect a constitutional principle other than administration of justice. 121 We think that it is important to refer to the approach of courts across jurisdictions towards balancing the different conceptions of public interest in the context of public interest immunity claims. This is necessary because the law on public interest immunity that was developed in India in SP Gupta (supra) heavily relied on the jurisprudence emanating from other common law countries. In fact, Chief Justice Ray records in paragraph 41 of the Constitution Bench judgment in Raj Narain (supra) that the foundation of the law behind Section 123 and Section 162 of the Evidence Act is the same as in English law. H. 2 United Kingdom 122 The account of this subject in the United Kingdom began with the decision of the House of Lords in Duncan v. Cammell Laird ([1942] AC 624). The House of Lords in this case gave precedence to form over substance while assessing a public interest immunity claim for non-disclosure. Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denial of justice on the one side and, on the other, a revelation of governmental documents which were never intended to be made public and which might be inhibited by an unlikely possibility of disclosure.' The conflict of the claims of public interest must be determined based on the importance of the documents sought to be withheld in the case before the court (a question of outcome), and whether the non-disclosure would result in a 'complete' or 'partial' denial of justice (a question of process and outcome). 124 In Reg v. Chief Constable, W.Midlands, Ex p. Wiley ([1994] WLR 433), Lord Woolf speaking for the House of Lords observed that while determining the balance on the scale, the Court should also enquire if the interest in disclosure could be effectuated through 'other alternate means': "[...] It may be possible to provide any necessary information without producing the actual document. It may be possible to disclose a part of the document of a document on a restricted basis. [...] There is usually a spectrum of action which can be taken if the parties are sensible which will mean that any prejudice due to non-disclosure is reduced to the minimum." (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made by members at the highest level of the United States Government. Applying the facts to the 'alternate means test', the court observed that the paragraphs that were sought to be redacted did not disclose all the information but the redacted portions of the information; and that it would not be possible to further redact the information without engendering national security and violating the constitutional principles of open justice. While answering this test, the court looked at whether the interest of both the litigant and the State could be secured by means other than the full disclosure of information. While applying the balancing test, the court held that the democratic principles which the disclosure of information serves can be protected by information that has already been placed in the public forum. H. 3 United States 127 Judicial decisions in the United States have recognised that in exceptional circumstances, the court must act in the interest of national security to prevent the disclosure of state secrets. One example of the application of this principle is the Reynolds privilege. Reynolds privilege is an evidentiary principle where the successful assertion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 131 Similar to the Courts in the United Kingdom, the Canadian jurisprudence on non-disclosure of information has shifted away from 'class' scrutiny towards the scrutiny of individual documents. (Carey v. Majesty, (1986), 72 N.R 81 (SCC)) The consistent view of the Canadian Courts has been that the documents maybe withheld only 'for the proper functioning of the executive branch and not to facilitate its improper conduct'. (Ibid.) 132 Section 38 of the Canada Evidence Act 1985 stipulates the conditions for disclosure of information that is sought to be protected. The Court undertakes the following analysis to determine the validity of the claim of non-disclosure filed by the Attorney General of Canada: (i) The relevancy test: Whether the information sought to be disclosed is relevant to the case. The burden of proof to prove relevancy of the information is on the party claiming disclosure (Ribic v. Canada (Attorney General), 2003 FCA 246); (ii) The injury test: Whether the disclosure would be injurious to international relations, national defence or national security. (Section 38.06(1) of the Canada Evidence Act) The burden of proving injury due to disclosure is on the party op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement to prove the claim; (iii) The identification of injury due to non-disclosure and the assessment of the ground for non-disclosure impacts the court's standard of assessment of the permissibility of class claims, the burden of proof and the evidentiary requirement. The standard of scrutiny is higher when the effect of non-disclosure of information is not identified based on a narrow reference to the facts before the court but on its wider implications to democratic governance and rule of law; (iv) The courts in India, the United Kingdom, and Canada have held that the non-disclosure of relevant material affects public interest, and the interests of the party seeking disclosure. The non-disclosure of information injures the principle of open government which is one of the basic premises of a democracy. It denies the citizens an opportunity to initiate a discussion or question the functioning of the government. However, the Courts in the United States have been deferential to the claim of non-disclosure, particularly on the ground of national security so much so that the court does not undertake a balancing exercise between the claims of disclosure and non-disclosure. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any affidavit, seeking a direction for disclosure of documents relating to any matter in question in the possession or power of the other party. The Court may either refuse or adjourn the application if it is satisfied on the hearing of the application that such discovery is not necessary at the stage of the suit. Additionally, the Court shall issue an order limiting the discovery to 'certain classes of documents'. The application shall be dismissed if the discovery of documents is not necessary for the fair disposal of the suit or for saving costs. It must be noted that the provision uses the phrase 'fair disposal of the suit'. The use of the said expression includes the spirit of the requirements of procedural and substantive fairness. If the Court allows the application considering that the discovery is necessary, the other party should file an affidavit listing the documents that are in their possession relating to the matter is question. The affidavit must be produced in the form specified in Form No. 5 in Appendix C, 'with such variations as circumstances may require.' (Order XI Rule 13 of CPC 1908) 108 The form in which the affidavit is required to be made is extracted bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o public interest, and to justify the claim of public interest immunity. It is of utmost importance that the burden that is placed on the party seeking production at the discovery stage is not conflated with the burden placed on the party opposing such discovery at the stage of objection to the discovery. 136 The Constitution Bench of this Court in SP Gupta (supra) has held that if the state objects to disclosure of documents on the ground of public interest immunity, then the Courts shall assess the validity of the objection based on the reasons in the affidavit. The Court has the power to inspect the document if on a perusal of the affidavit, the Court has 'any doubt on whether the document relates to the affairs of the state'. (SP Gupta (Paragraph 77)) It is therefore, of abundant importance that the affidavit stipulating the reasons of the non-disclosure (along with the grounds) is made in sufficient detail so as to enable the courts to assess the claim of PII. This Court in SP Gupta (supra) has observed that the claim has to be made by the minister who is the political head of the department concerned or, failing him, by the secretary of the department. The claim should alway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibing a standard four step test that must be satisfied also provides sufficient flexibility within each step for the courts to apply the jurisprudence that has already been evolved by the courts on the subject matter; and (iv) Lastly, PII claim is founded on common law doctrine. The jurisprudence that has emanated from various common law countries on the subject has been relied on by the Courts in India to the extent permitted by our constitutional scheme. The jurisprudence that has emanated from other common law countries on this subject has a persuasive value. The courts in both the United Kingdom and Canada use the proportionality standard to assess the validity of a PII claim. 139 The structured proportionality standard used by the courts to test the infringement of fundamental rights has to be remodelled along the lines of the jurisprudence on public interest immunity, if need be. It is crucial to note the difference in the terminology between Article 19(2) to Article 19(6) of the Constitution and Section 124 of the Evidence Act. The reasonable restriction clauses in Article 19 stipulate that the right can be 'reasonably restricted' in the interests of sovereignty and integ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against the claimant, among others. On questions of principles, the Court shall consider the impact of non-disclosure on other constitutional rights such as the freedom of press. J. Public interest immunity or sealed cover: the less restrictive means 143 The court must follow the structured proportionality standard, modified on the basis of the content of Section 124 of the Evidence Act, to assess claims of public interest immunity. Under the structured proportionality standard, the court places the burden of proof on the party opposing disclosure of documents to prove the claim of public interest in non-disclosure. The proportionality test prescribes a strict standard to test the reasonableness of an action. As opposed to the structured standard of proportionality which must be used by the court to assess public interest immunity claims, the exercise of power by courts to secure material in a sealed cover has rather been ad-hoc and extemporaneous. 144 Article 145 of the Constitution grants the Supreme Court the power to make rules for regulating the practice and procedure of the Court. In pursuance of its power under Article 145, the Supreme Court Rules 1966 (1966 Rules") ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l replace public interest immunity proceedings which constitute an established method for dealing with claims of confidentiality. The sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings. 146 In both the sealed cover procedure and public interest immunity claims, the documents that are sought to be withheld from disclosure are not revealed to the counsel for the applicant. The proceedings, in effect, are conducted ex-parte where the counsel for the party claiming disclosure is precluded from accessing a part of the record in the proceedings. However, one crucial difference between the sealed cover procedure and public interest immunity claims is that in the former, the court relies on the material that is disclosed in a sealed cover in the course of the proceedings, as opposed to the latter where the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such material. Sealed cover procedures violate both principles of natural justice and open justice. In Al Rawi v. The Security Service ((2011) UKSC 34), the Supreme Court of the United Kingdom reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2015, Wellington, New Zealand) Report 135) The first consideration is whether the information should be disclosed to the party on a balance of considerations. The second consideration is whether the information can be fairly excluded from the proceedings. The Commission recommended that the court should opt for the closed material proceedings only if the material is 'sufficiently relevant to the proceedings that it would be in the interest of justice to use a closed procedure rather than to exclude the information and proceed without it." That is, the court concludes that national security considerations are so high that they trump over the relevancy of the document in proceedings but the information cannot be fairly excluded from the proceedings because it would cause one of the two injuries recognised above. The Commission recommends that it would be in the interest of justice to follow the closed proceedings to obviate such unfairness. The report recommended that the closed material procedure was to be used in addition to the public interest immunity procedure to protect the interest of justice. The report of the Law Commission of New Zealand also recognised that though the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure can be used in addition, and not in alternative, to the public interest immunity procedure. 150 Lord Dyson in his opinion held that the court does not have the power to direct closed material procedure in addition to public interest immunity claim because: (i) closed material procedure is the antithesis of public interest immunity procedure. There is no equality of arms in closed material procedure; (ii) the party in possession of the document possesses sole knowledge of whether the document would be beneficial in their case. The claimant, who does not have access to the material would not be aware if the material would affect their case. It would thus put them in a disadvantageous position making the procedure inherently unfair to the one of the parties; and (iii) the courts should not be called to perform the exercise of deciding the relevance of a document to the case of claimant and the defendant. 151 Lord Kerr in his opinion pointed out two additional problems with the argument of the State. He noted that the proposition that placing all evidence before the Judge is preferable to withholding potentially pivotal evidence from the proceedings is misleading. Lord Kerr obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic interest immunity claim is allowed, the court may order a closed material procedure if the material is in the defendant's possession and the claimant consents for such a procedure to avoid their claim from being struck out. In Lord Clarke's view, after the public interest immunity process has been completed, the parties should consider their respective positions and make representations to the judge who may order a closed material procedure depending on the facts of the case. 154 The recommendations of the Law Commission of New Zealand and the opinions of Lord Clarke and Lord Mance in Al Rawi (supra) introduce closed material proceedings as an additional step after the completion of public interest immunity proceedings. The court in a closed material procedure, similar to the sealed cover process, relies on the material that the claimant is not privy to while disposing the proceedings. The closed material proceedings are sought to be introduced to counterbalance the injustice(s) caused on the conclusion of the public interest immunity proceedings. 155 The claimant would be jumping into a pit of fire with their eyes closed even if they consent to a sealed cover procedure. As Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure. 158 The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both the parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding. In view of the above discussion, we are of the opinion that public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality. This leaves the final issue to be answered: if public interest immunity is a less restrictive means, then whether the procedure of sealed cover can be used at all, and if so, in what circumstances would it be permissible for the court to exercise its power to secure evidence in a sealed cover. While it would be beyond the scope of this judgment to lay down the possible situations when the sealed cover procedure can be used, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Madhyamam Daily on the alleged discrimination against Muslims in India and the allegedly soft attitude taken against "Hindu fundamentalists responsible for bomb blasts as opposed to the view taken against Muslim fundamentalists". MHA considered the report and concluded that the remarks were not strong enough to deny permission on security grounds, thereby granting security clearance to MBL. 162 Between 2014-2019, similar reports were submitted by IB when security clearance was sought for other proposals of MBL. IB made adverse remarks on MBL's main source of income which was alleged to be from JEI-H sympathizers, and its anti- establishment stance. To substantiate its conclusion that MBL has been taking an anti-establishment stance, references were made to its reports on UAPA, Armed Forces (Special Powers) Act, development projects of the Government, encounter killings, Citizenship (Amendment) Act, NRC, NPR, the Indian Judiciary's alleged "double standards in terrorism cases", and the alleged portrayal of security forces in a bad light. MHA denied security clearance based on the IB reports. We are required to decide if these reasons provide a justifiable ground for the denial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds stipulated in Article 19(2) to test if the freedom of press has been reasonably restricted. Security clearance was denied on the basis of two grounds: the alleged anti-establishment stand of MBL, and the alleged link of MBL with JEI-H. 166 An independent press is vital for the robust functioning of a democratic republic. Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socio- economic polity to political ideologies would pose grave dangers to democracy. 167 The critical views of the Channel, Media-One on policies of the government cannot be termed, 'anti-establishment'. The use of such a terminology in itself, represents an expectation that the press must support the establishment. The action of the MIB by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a mere reference to the shareholding pattern of MBL. L Conclusion and Directions 170 In view of the discussion above, the appeals are allowed and the order of the MIB dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 are set aside. We summarise our findings below: (i) Security clearance is one of the conditions required to be fulfilled for renewal of permission under Uplinking and Downlinking Guidelines; (ii) The challenge to the order of the MIB and judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgement of this Court in Maneka Gandhi (supra). The effect is that the courts have recognised that there is an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case. Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case. The core of the principles of natural justice breathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t public interest immunity claims constitute less restrictive means. Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles natural justice and open justice; (h) The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim; and (iii) The challenge to the order of MIB is allowed on substantive grounds. The non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged anti- establishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged. 171 While we have concluded that a pub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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