TMI Blog2023 (7) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... eathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees; (b) The appellants have proved that MBL s right to a fair hearing has been infringed by the unreasoned order of the MIB dated 31 January 2022, and the non-disclosure of relevant material to the appellants, and its disclosure solely to the court. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure. (c) The judgments of this court in EX. ARMYMEN'S PROTECTION SERVICES P. LTD. VERSUS UNION OF INDIA (UOI) AND ORS. [ 2014 (2) TMI 1422 - SUPREME COURT] and DIGI CABLE NETWORK (INDIA) PVT. LTD. AND ORS. VERSUS UNION OF INDIA AND ORS. [ 2019 (1) TMI 2026 - SUPREME COURT] held that the principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged. MIB shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall co-operate in issuing necessary approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted - appeal allowed. - Appeal No. 8129 of 2022, 8130 of 2022 and 8131 of 2022 - - - Dated:- 5-4-2023 - DR DHANANJAYA Y CHANDRACHUD, C JI For the Appellants : Ms. Pallavi Pratap, AOR and Mr. Radha Shyam Jena, AOR For the Respondent : Mr. Amrish Kumar, AOR and Ms. Pallavi Pratap, AOR 1 The Union Ministry of Information and Broadcasting ( MIB ) revoked the permission which it had granted to Madhyamam Broadcasting Limited ( MBL ) to uplink and downlink a news and current affairs television channel called Media One . The appellants, comprising of MBL, the trade union of working journalists, and the editor, Senior Web Designer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislation and licensing agreements. (IX) The applicant would make available to the licensing Authority the detailed technical information about the equipment to be used. (emphasis supplied) On the same day, MIB issued a registration certificate for downlinking of the Media One channel for a period of five years according to the provisions of the Policy Guidelines for Downlinking of Television Channels ( Downlinking Guidelines ). The downlinking permission stipulated that in addition to complying with the terms and conditions set out in the Annexure extracted above, the channel was required to comply with the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act 1995 and the Rules framed under it. 3 In 2012, MBL applied for uplinking and downlinking of a non-news television channel called Media One Life , and news television channel, Media One Global . MBL withdrew the application for Media One Global . On 26 August 2015, MIB granted permission to uplink and downlink Media One Life for a period of ten years. 4 On 12 February 2016, MIB issued a notice to show cause to MBL proposing to revoke the permission f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd uplinking permissions granted to operate Media One since they were to expire on 30 September 2021 and 29 September 2021. 6 On 5 January 2022, MIB issued another show cause notice to MBL invoking clause 9.2 of the Uplinking Guidelines and proposed to revoke the permission granted to operate Media One. The show cause notice specified that (i) according to Clause 9.2 of the Uplinking Guidelines, security clearance is a pre-condition for the grant of permission and that security-related conditions are annexed to the letter granting permission ; (ii) MHA has denied security clearance in the past to the proposals of MBL and that it may be considered as denied in the present case also ; (iii) since security clearance has been denied, MBL has ceased to fulfill the eligibility condition for renewal of permission of uplinking and downlinking. The relevant extract of the show cause notice is set out below: SHOW CAUSE NOTICE [ ] 3. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite for grant of permission for TV channels. [ ] 5. Whereas the security related conditions annexed with the permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels. 3. Whereas, the company M/s Madhyamam Broadcasting Limited vide application dated 03.05.2021 had applied for renewal of permission to its one permitted News Current Affairs TV channel namely, Media One for a period of 10 yeas (i.1 from 30.09.2021 to 29.09.2021) 4. Whereas, as per the clause 9.2 of the policy guidelines for Uplinking of Television channels from India- 2011 and para 8.3 of the Downlinking guidelines, 2011, Ministry of Home Affairs was requested to give security clearance of the company (M/s Madhyamam Broadcasting Limited) for renewal of permission of News Current Affairs TV Channel namely, Media One for a period of 10 years. 5. Whereas, the Ministry of Home Affairs has denied the security clearance to M/s Madhyamam Broadcasting Limited for renewal of permission for uplinking and downlinking of News Current Affairs TV channel Media One . 6. Accordingly, a Show Cause Notice (SCN) dated 05.01.2022 was given to the company as to why the permission granted to them should not be revoked or cancelled, for Uplinking and Downlinking of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not apply. However, other terms and conditions that are applicable to permission for uplinking are applicable to renewal. Thus, a security clearance is a factor which must be considered at the time of renewal of the existing permission as well; (ii) The principles of natural justice are not applicable in matters concerning national security (relied on Ex-Armymen s protection Services Private Limited v. Union of India (2014) 5 SCC 409 and Digi Cable Network (India) Private v. Union of India (AIR 2019 SC 455)); and (iii) The files submitted by MHA indicate that the Committee of Officers ( CoO ) took note of the inputs provided by intelligence agencies and found that the inputs are of a serious nature and fall under the security rating parameters. In those circumstances, the Committee of Officers advised not to renew the licence . The recommendations of the Committee of Officers were accepted by MHA and are fortified by supporting material. 12 The Division Bench of the High Court directed that the files submitted by MHA shall be placed before it since the Single Judge dismissed the petition by relying upon the files . On perusing the files, the Division Bench held that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been perused by the Court. 9. We accordingly order and direct that pending further orders, the orders of the Union government dated 31 January 2022 revoking the security clearance which was granted to the petitioner, Madhyamam Broadcasting Limited, shall remain stayed. The petitioners shall be permitted to continue operating the news and current affairs TV channel called Media One on the same basis on which the channel was being operated immediately prior to the revocation of the clearance on 31 January 2022. This Court also observed that the issue of whether the contents of the files should be disclosed to the appellants is expressly kept open: 11. The issue as to whether the contents of the files should be disclosed to the petitioners in order to enable them to effectively pursue their challenge in these proceedings is expressly kept open to be resolved before the petitions are taken up for final disposal. [ ] 13. We clarify that perusal of the files by the Court at this stage is not an expression on the tenability of the contentions of the petitioners that they would be entitled to inspect the files. The issue is kept open to be resolved at the stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. This procedure is violative of the principle of an open court and of fairness to parties. 15 Mr Huzefa A Ahmadi, senior counsel appearing on behalf of the editor, Senior Web Designer and Senior Camera Man of Media One (SLP (C) No. 4331 of 2922) made the following submissions: (i) The order issued by MIB violates MBL s freedom protected under Article 19(1)(a) of the Constitution. The action of MIB denying the renewal of permission is not protected by reasonable restrictions prescribed in Article 19(2). The fundamental rights of MBL cannot be abridged on an arbitrary hypothesis: (a) The show cause notice and the order revoking the permission are bereft of reasons and details; (b) In the counter affidavit filed before the High Court, MIB only contended that the material is sensitive and as a matter of policy, and in the interests of national security, Ministry of Home Affairs does not disclose reasons for the denial ; (c) The Division Bench of the High Court acknowledges that the gravity , impact , nature , and depth of the issue are not discernible from the files produced by MIB. It was also observed that too many details are not available in the files produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion granted to MBL to operate the television channel, Media One: (i) Whether security clearance is one of the conditions required to be fulfilled for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) Whether denying a renewal of license and the course of action adopted by the Division Bench of the High Court violated the appellants procedural guarantees under the Constitution; and (iii) Whether the order denying renewal of license is an arbitrary restriction on MBL s right to the freedom of speech and expression under Article 19(1)(a) of the Constitution. 19 Before proceeding to the analysis, certain factual aspects need to be noticed. On 3 May 2021, MBL submitted an application for renewal of uplinking and downlinking permission to MIB. The application stated that the uplinking and downlinking permissions granted to Media One would expire on 30 September 2021 and 29 September 2021 respectively. In the statement filed by the ASG before the Kerala High Court, it was submitted that: (i) the application for renewal filed by the MBL was forwarded by MIB to MHA; and (ii) by a letter dated 29 December 2021, MHA denied security clearance to MB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears at a time, subject to the condition that the channel should not have been found guilty of violating the terms and conditions of permission including violations of the programme and advertisement code on five occasions or more. What should constitute a violation would be determined in consultation with the established self- regulating mechanisms. [ ] 10.4 At the time of considering the renewal of permission of the existing permission holders, the eligibility criteria of net worth of the company and experience of the top management will not apply. However, other terms and conditions would be applicable as per modified terms and conditions of the permission. 23 Paragraph 9 of the Downlinking Guidelines which stipulates the procedure for renewal of existing permissions for downlinking is similar in terms to paragraph 10 of the Uplinking Guidelines. The provision indicates that renewal of an existing permission is not a vested right. Paragraph 10.2 provides that the renewal of permission will be considered subject to the conditions spelt out thereafter. The conditions stipulated in paragraph 10 for the renewal of uplinking and downlinking are : (i) The channel shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, inter alia, include minimum net worth and prior managerial experience. Paragraph 3 of the Uplinking Guidelines (and paragraph 2 of the Downlinking Guidelines) prescribe the eligibility criteria for uplinking and downlinking a news and current affairs TV channel. Paragraph 9 of the Uplinking Guidelines (and Paragraph 8 of the Downlinking Guidelines) prescribe the procedure for grant of permission of channels . The provision is extracted below: 9. PROCEDURE FOR GRANT OF PERMISSION OF CHANNELS 9.1. The applicant company can apply to the Secretary, Ministry of Information Broadcasting, in triplicate, in the prescribed format Form 1 along with all requisite documents including a demand draft for an amount equal to processing fee wherever prescribed, payable at par at New Delhi, in favour of the Pay Accounts Officer, Ministry of Information Broadcasting, Shastri Bhawan, New Delhi. 9.2. On the basis of information furnished in the application form, if the applicant is found eligible, its application will be sent for security clearance to the Ministry of Home Affairs and for clearance of satellite use to the Department of Space (wherever required). [ ] (empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uplinking Guidelines as modified by the permission letter indicates that MHA could deny security clearance on the grounds of national security and public order. Thus, according to the Uplinking and Downlinking guidelines, security clearance from MHA is one of the conditions that is required to be fulfilled for renewal of permission for Uplinking and Downlinking of news channels. E. Judicial Review on procedural grounds 31 Article 13 of the Constitution states that all laws that are inconsistent with fundamental rights enumerated in Part III of the Constitution shall be void. Article 13(3)(a) states that for the purpose of this provision, law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is, thus, a settled position of law that an administrative action can be challenged on the ground of a violation of fundamental rights. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security. It is imperative that we analyse the purpose natural justice serves, and the jurisprudential development of procedural due process before choosing between these two competing visions. E. 1 Principles of natural justice: purpose and content 35 The principles of natural justice were read into the law and conduct of judicial and administrative proceedings with an aim of securing fairness. These principles seek to realise the following four momentous purposes: 36 Fair Outcome: Procedural rules are established to prevent the seepage of bias and unfairness in the process of decision making. A decision that is reached after following the procedural rules is expected to be fair. An outcome that is reached through a fair process is reliable and accurate. In the context of criminal proceedings, procedural rules are prescribed in the Indian Evidence Act 1872 and the Code of Criminal Procedure 1973 to secure the correct outcome and to identify the truth . 37 In Chief Constable of North Wales Police v. Evans ((1982) 1 WLR 1155), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated if the other side has had access to the judge without his knowing. The House of Lords held that non-disclosure of information is per se violative of the principles of fair trial. 39 Legitimacy of the decision and decision making authority: When a decision is formed following the principles of natural justice, there is a perception that the decision is accurate and just. It preserves the integrity of the system as the decisions, in addition to being fair, also appear to be fair. The perception of the general public that the decisions appear to be fair is important in building public confidence in institutions, which aid in securing the legitimacy of the courts and other decision making bodies. (Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials (3rd ed. Oxford University Press)) 40 Dignity of individuals: Non-outcome values, that is, values that are independent of the accuracy and soundness of the verdict, are intrinsically important. The principles of fairness express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one . (Laurence Tribe, American Constitution Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime substituted the usage of the terminology of the principles of natural justice with the doctrine of fairness because natural justice is encapsulated in the doctrine of fariness; as Justice Bhagwati termed it, fair-action in play . (Justice Bhagwati in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (paragraph 9)) 42 The duty to act fairly that is derived from common law is not exhaustively defined in a set of concrete principles. Courts, both in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine-tuning them to situational variations. This Court has observed earlier that the concept of natural justice cannot be put into a straitjacket formula (NK Prasada v. Government of India, (2004) 6 SCC 299) and that it is incapable of a precise definition (Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC 258). Courts have undertaken an ends-based reasoning to test if the action violates the common law principle of natural justice (Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural Justice and Fundamental Rights, (Volume 16, Issue 2, Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for such action. The Government of India declined to disclose its reasons for the action by relying on Section 10(5) of the Passports Act 1967 which stipulates that the reason for impounding the passport may not be given where the passport authority is of the opinion that the disclosure of reasons is not in the interests of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interest of general public. The appellant filed a writ petition, inter alia, challenging the action of the Government of India declining to give reasons. 45 This Court observed that the right to go abroad is an extension of the right to life and personal liberty protected under Article 21 of the Constitution. This right, it was observed, can only be taken away by a procedure that is not unfair, arbitrary, and unreasonable. Relying on the judgment of a Constitution Bench of this Court in RC Cooper v. Union of India ((1970) 1 SCC 248) which had held that fundamental rights are not water- tight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 of the Constitution projects on the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value in itself. In view of this shift, the Courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. (SL Kapoor v. Jagmohan, (1980) 4 SCC 379; The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary; also see Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.) Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds.( Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545); C B Gautam v. Union of India (1993) 1 SCC 78; Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I (2008) 14 SCC 151; Kesar Enterprises Ltd v. State of Uttar Pradesh (2011) 13 SCC 733) Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesbury unreasonableness, proportionality, and strict scrutiny. 49 Reasonableness is a normative concept that is identified by an evaluation of the relevant considerations and balancing them in accordance with their weight. (Aharon Barak, Proportionality: Constitutional Rights and their limitations (Cambridge University Press, 2012), 374.) It is value oriented and not purpose oriented. That is why the courts have been more than open in identifying that the action is unreasonable rather than identifying if the action is reasonable. (Giacinto della Cananea, Reasonableness in Administrative law in Reasonableness and Law (ed. by Giorgio Boniovanni, Giovanni Sartar, Chiara Valentini)) This is also why the courts while assessing the reasonableness of limitations on fundamental rights have adopted a higher standard of scrutiny in the form of proportionality (Modern Dental College Research Centre v. State of Madhya Pradesh, (2016) 4 SCC 346 , Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1). The link between reasonableness and proportionality and the necessity of using the proportionality standard to test the limitation on fundamental rights has been captured by Justice Jacks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions. 52 The judgments of this Court in Justice KS Puttaswamy (9J) (supra) and Modern Dental College Research Centre v. State of Madhya Pradesh ((2016) 7 SCC 353), establishing the proportionality standard to test the reasonableness of the infringements on substantive rights do not preclude the application of the proportionality standard to test the reasonableness of limitations on procedural guarantees. The standard of proportionality infuses a culture of justification, where the State has to discharge the burden of justifying that its action was reasonable and not arbitrary. (See Justice Chandrachud s opinion in Justice KS Puttaswamy (5J) v. Union of India (5 J), (2019) 1 SCC 1 (para 310)) Once the principle of reasonableness is read into procedural requirements, there is no reason for the court to use different standards to test the reasonability of substantive and procedural actions. F. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the adjudicating authority was not procedurally fair and reasonable without any reference to the impact on the outcome due to non-compliance. While doing so, it is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed. However, the court while undertaking the exercise of assessing the validity of such a claim must view violation claims from a holistic procedural perspective. This is for the simple reason that the principles of natural justice are mouldable. The requirement of procedural fairness does not impose a uniform, unvarying standard to be applied irrespective of the context, facts, and circumstances. (A Ors. v. The United Kingdom, Application no. 3455/05) Adjudicatory bodies must be provided sufficient flexibility in deciding procedural requirements. As observed above, a non-compliance of every facet and component of natural justice does not render the procedure unreasonable. The claimant must prove that the effect of non-compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed while making an argument from a component-facet perspective. The procedure fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtherance of the right to information and the constitutional goal of open government. Secrecy broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law. 57 On the facts of the case, MIB has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of a right to fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision. 58 MHA disclosed the material forming the opinion for denying of security clearance solely to the High Court. The High Court instead of deciding if any other less restrictive but eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence. 28. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sealed cover has rendered the appellant s procedural guarantees under the Constitution otiose. The appellants right to writ remedies has been denied through a formalistic order by the High Court. The procedure that was followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark. The non-disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of the natural justice - the right to a fair and reasonable proceeding. G. Whether the infringement of MBL s right to a fair hearing is justified 62 The ASG in the statement filed before the High Court stated that the reasons for denial of security clearance cannot be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are secret and sensitive ; and (ii) in the interest of national security. It has thus been submitted that the principles of natural justice stand abrogated because: firstly, the decision is based on intelligence inputs which are sensitive in nature from security and intelligence agencies; and secondly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al security are involved. However, it was held that the Court may call for records to satisfy itself that issues of national security are involved. Further, the judgment in Council of Civil Service Unions v. Minister of Civil Service (1985 AC 374) was relied on to hold that strict observance of the principles of natural justice may not be possible when national security is involved. It is important to note that this Court did not decide on the factual considerations in the matter because the security clearance that was granted to the appellant had already expired. The relevant observation is extracted below: 16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122 (HL)] : (AC p. 192C) [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question. 17. In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in Ex-Armymen s Protection Services (P) Ltd. Inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission. 65 The observation in Ex-Armymen s Protection Services (supra) that what is in national security is a question of policy and not law for the courts to decide was affirmed in the majority opinion in Justice KS Puttaswamy (5J) v. Union of India ((2019) 1 SCC 1) while deciding on the constitutional validity of Section 33 of the Aadhar Act. 66 It must be noted that this Court in Ex-Armymen s Protection Services (supra) referred to a series of judgments from the Courts in the United Kingdom to elucidate the principle that the government is best placed to decide whether national security concerns are involved; and that principles of natural justice may not be complied with when issues of national ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jesty to requisition the copper in question. It does not state that the copper is urgently required for national purposes. Further, the affidavit of Sven Hoglund, which is unanswered, so far from showing that there was any real case to be tried, suggests a case for immediate release. (emphasis supplied) 68 In Council of Civil Service Unions (supra), the Minister of Civil Service released an instruction that employees of the Government Communications Headquarters cannot be a part of trade unions. This decision was challenged on the ground that the employees and the trade unions were not consulted before the instruction was issued. It was submitted that it was a well-established practice for the trade unions to be consulted before conditions of service are altered. 69 The Government Communications Headquarters is a branch of the Foreign and Commonwealth Office which ensures the security of the United Kingdom military, and provides intelligence signals for the Government. The respondent defended its action on the ground that because prior consultation would involve a real risk that it would occasion the very kind of disruption [at GCHQ] which was a threat to national secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review. (emphasis supplied) On a perusal of the evidence, it was held that work at the headquarters involved matters of grave national security, and that if the employees and trade unions were consulted before the decision then the security would have been compromised. Lord Scarman observed that the Minister did not consult the employees because she feared that a union-organised disruption of services could occur. It was held that this conclusion by the Minister could have been reached reasonably. 71 In Rehman (supra), the appellant, a Pakistani National whose parents were British citizens, applied for indefinite leave to remain in the United Kingdom. The Secretary of State refused his application on the ground that he was involved with a ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Civil Service Unions (supra), it was held that the decision on the validity of deportation is not conceded to the Secretary of the State. The Commission has to determine (i) the factual basis for the executive s opinion that deportation would be in the interests of national security ; (ii) if the decision of the Secretary of the State was one which a reasonable minister would have arrived at; and (iii) any other legal defence that was available to the appellant. The relevant observations are extracted below: 54. This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to defeat the purpose for which the Commission was set up : see the Commission's decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler's case in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure was justified. For this purpose, the State must satisfy the Court that firstly, national security is involved; and secondly, whether on the facts of the case, the requirements of national security outweigh the duty of fairness. At this stage, the court must make its decision based on the component of natural justice that is sought to be abrogated; and (iv) While satisfying itself of the national security claim, the Courts must give due weightage to the assessment and the conclusion of the State. The Courts cannot disagree on the broad actions that invoke national security concerns - that is, a question of principle such as whether preparation of terrorist activities by a citizen in a foreign country amounts a threat of national security. However, the courts must review the assessment of the State to the extent of determining whether it has proved through cogent material that the actions of the aggrieved person fall within the principles established above. 75 The contention of the respondent that the judgment of this Court in Ex-Armymen s Protection Services (supra) held that the principles of natural justice shall be excluded when concerns of national security are involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed in the interest of national security and confidentiality of intelligence inputs. The State at this stage is required to prove that confidentiality and national security are legitimate aims, and that the purposes of confidentiality and national security are served by non-disclosure. 78 At this stage, the court has to examine the threshold question whether in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action. (Aharon Barak (n 38) 247;Justice Sikri in Modern Dental (paragraph 55)) The criteria for determining proper purpose differs from one legal system to another. For instance, the South African Constitution prescribes a general limitation clause which prescribes the general grounds to limit all fundamental rights. (Article 26(1) states that the limitation on human rights should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.) The Indian Constitution does not prescribe a general limitations clause. A few of the provisions in Part III such as Article 19 and 25 have a specific purpose based limitation clause. This does not mean that the provisions tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to now prove that these are the two purposes that the state action seeks to serve. MHA in response to MBL s request for disclosure of reasons for denial of security clearance states that the reasons cannot be disclosed because reports from investigative agencies are secret in nature. MHA has made a general claim that all reports of the investigative agencies are confidential. We are unable to accept such an argument. Investigative agencies such as the CBI and IB are required to conduct background checks on innumerable personnel and entities for a multitude of reasons. The interaction between private individuals and the State has increased by virtue of which the involvement of intelligence agencies has also proliferated. The reports of the intelligence agencies are not merely fact-finding reports. As it would be evident from the extractions of the material below, reports of investigative agencies make observations and provide inferences on the conduct of individuals which are then relied upon by the decision making authority. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that the all such reports are confide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerns are involved. It is necessary that we understand the meaning and implications of the term national security before embarking on an analysis of the issue. This Court has held that it is not possible to define national security in strict terms. (AK Roy v. Union of India, (1982) 1 SCC 271) National security has numerous facets, a few of which are recognised under Article 19(2) of the Constitution. In Ex-Armymen s Protection Services (supra), a two-Judge Bench of this Court observed that the phrase national security would include factors like socio-political stability, territorial integrity, economic stability and strength, ecological balance cultural cohesiveness and external peace. Justice Patanjali Sastri writing for the majority in Romesh Thappar v. State of Madras (1950 SCC 436) demarcated the fields of public order and security of state as they find place in Article 19 of the Constitution. This Court held that the expression security of the state was defined to include a distinct category of those offences against public order which aim at undermining the security of the State or overthrowing it . In Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), Justice M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review is derived from the standard that has been laid down on the limited extent of justiciability of the aid and advice of the council of ministers to the President/Governor. Refer to the judgment of the Constitution Bench in BP Singhal v. Union of India, (2010) 6 SCC 331: Paragraph 79.) The reasonable prudent person standard which is one of the lowest standards to test the reasonableness of an action is used to test national security claims by courts across jurisdictions because of their deferential perception towards such claims. This is because courts recognise that the State is best placed to decide if the interest of national security would be served. The court allows due deference to the State to form its opinion but reviews the opinion on limited grounds of whether there is nexus between the material and the conclusion. The Court cannot second-guess the judgment of the State that the purpose identified would violate India s national security. It is the executive wing and not the judicial wing that has the knowledge of India s geo-political relationships to assess if an action is in the interest of India s national security. 85 We now proceed to assess if on the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through hawala channels from the Gulf for launching a TV Channel. 88 The MHA considered the report and noted that these remarks were not so strongly adverse in nature to deny permission on the grounds of security, especially when the applicants were operating a newspaper with twelve editions. The IB report on Madhyamam Daily on the tenor of the articles is extracted below: Madhyamam Daily brings out 12 editions (published from 6 places in Kerala, 2 in Karnataka and 4 places abroad in Saudi Arabia, Qatar, Bahrain, and Dubai), which are published by JEI/H run Islamic Publishing House, Kozhikode, Kerala. The newspapers which have a combined circulation are of 1.75 lakhs approximately being used by JEI/H to air its views on various issues affecting the Muslim community. It has been highlighting the alleged discrimination against Muslims in India. Recently it had alleged targeted attack on [..] who is the prime accused in the Bangalore bomb blast, and his family members and vehemently criticised police action against [ ] for her alleged role in the Kalamassery bus burning case and has contrasted it with the alleged soft attitude taken against Hindu fundamentalists responsible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was noted that the security clearance granted in 2011 may not be withdrawn. The minutes of the meeting of CoO notes as follows: The MHA had issued policy guidelines for assessment of proposal for national security on 30.6.2015 which clearly prescribe security relating parameter for assessment of proposals. The CoO felt that adverse inputs against the company and its Directors are serious in nature (linkage with radical organization) and falls under security rating parameters mentioned in Sl No. 13 of Ministry of Home Affairs Policy guidelines issued vide OM dated 30.6.2015. Further, CoO observed that the policy mandates that the security clearance granted by the MHA will usually have prospective effect unless otherwise decided by the Ministry concerned in the discharge of its mandate. Therefore, the security clearance granted in 2011 may not be withdrawn. However, the future expansion of the company may be stopped in view of the adverse inputs. (emphasis supplied) 93 MHA denied security clearance for these two proposals based on the recommendation of the CoO. Though the order of MHA denying security clearance on such recommendation is not annexed to the file sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to furnish comments on the representation of MBL. IB concluded that the inputs attract parameters (Sl. Nos. 20 and 21) stipulated by the Guidelines issued on June 25 2018 ( 2018 Guidelines ) for assessment of proposals received in the Ministry of Home Affairs for national security clearance. IB made the following two adverse remarks: (i) Main source of income: MBL s main source of income is the shares invested by cadres of JEI-H through its sympathizers. Most of the Board of Directors are JEI-H sympathizers ; and (ii) Anti-establishment stance: Media One channel is learnt to be espousing its anti-establishment stance on various issues including UAPA, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, CAA/NPR/NRC . 95 The 2018 Guidelines stipulate that national security covers a wide range of issues but the principle focus, inter alia, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation and protecting the life, and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in response to MIB query on whether withdrawal of security clearance to company/individual entities in one sector would tantamount to withdrawal in other sectors also Since MIB has already been communicated denial of security clearance to the above mentioned companies, there is no need of fresh consideration for the cases as per security clearance guidelines. In view of the above, Ministry of Information and Broadcasting may be requested that the proposals for renewal of security clearance in the cases where security clearance has already been denied to the company, should not have forwarded to MHA, in a routine manner unless and until there is sufficient and proper reasons for the same. 97 Before addressing whether the non-disclosure of the relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which Union of India has raised the claim of national security. Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, the Union of India made no attempt to explain how non-disclosure would be in the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the material, no reasonable person would arrive at the conclusion that the non-disclosure of the relevant material would be in the interest of national security and confidentiality. G.2 (b) Suitability 100 We proceed to apply the subsequent prongs of the proportionality standard, even assuming that the action taken is in the interest of confidentiality and national security. The second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. At this stage, the court is required to assess whether the means, if realised, would increase the likelihood of protecting the interests of national security and confidentiality. It is not necessary that the means chosen should be the only means capable of realising the purpose of the state action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means used constitute one of the many methods by which the purpose 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 arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s propounded by David Bilchitz. (David Bilchitz, Necessity and Proportionality: Towards a Balanced Approach? in Liora Lazarus et al (eds), Reasoning Rights: Comparative Judicial Engagement (Hart 2014) 49.) The author sought to draw a middle ground between strong and weak forms of the necessity prong. The sub-components of the necessity prong as devised by Bilchitz are as follows: (ibid, p. 51.) (a) Whether there are other possible means which could have been adopted by the State; (b) Whether the alternative means identified realise the objective in a real and substantial manner ; (c) Whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) Whether on an overall comparison (and balancing ) of the measure and the alternative, the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights. 104 In Charkaoui v. Canada (Citizenship and Immigration) ((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. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Kingdom ((1996) 23 EHRR 413), the Home Secretary issued an order to deport the appellant, an Indian national and a Sikh separatist. One of the grounds of the appellant s challenge to the deportation order was that although the Home Secretary s decision is amenable to judicial review, the effective determination of his risk to national security was made by an internal Home Office advisory panel on the basis of material which was not disclosed to him. The European Court of Human Rights ( ECHR ) accepted the contention of the appellant and held that the procedure violated the rights under Article 5(4) of the European Convention on Human Rights. (Article 5(4): Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ) The court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. Section 124 provides that a public officer shall not be compelled to disclose communications made to him in official confidence if the disclosure affects public interest: 124. Official communications.- No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. 110 Section 162 stipulates that a witness who is summoned to produce a document in court shall bring the document to court notwithstanding any objection that is raised on its production and admissibility. The provision provides that the objection shall be decided by the Court. For this purpose, the court shall inspect the document, unless it refers to matters of state. The provision is extracted below: 162. Production of document.- A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation must be disclosed. Thus, the special advocates system is a means to counterbalance the effect of the limitation on procedural guarantees of the affected party. 113 When these three means identified are placed on the continuum, public interest immunity claims would be placed on one end as they have the least impact on rights as opposed to the Totten claim which would be placed on the other end. The closed material procedure would be placed in the middle because Special Advocates are used in an attempt to counterbalance the infringement of procedural rights. The difference in the impact must be determined firstly, based on the stage of consideration. The public interest immunity claim and closed material procedure claim are raised at the discovery stage. As opposed to this procedure, under the Totten claim, the claim is held to be non-justiciable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. It was observed that the court must assess if the disclosure that affects public interest would outweigh the concerns of private interest which disclosure of material to the litigant furthers: 13. The principle on which this departure can be and is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non-production of the relevant and material document may feel aggrieved by the result, and the court, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private good and private interest. The court held that when a claim of public interest immunity is made against disclosure, the Court must on a preliminary enquiry of the affidavit determine if the document rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat do not belong to noxious classes, the courts ought to survey aspects of public interest involved in both disclosure and non-disclosure to assess the relative claims of the different aspects of public interest: 71. Few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Court may not be the proper forum to weigh the matter and that is the reason why a minister's certificate is taken as conclusive. Those who are responsible for the national security must be the sole judges of what national security requires. [ Lord Parker of Weddington in The Zamora, (1916) 2 AC 77, 107] As the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. [ ] 72. The power reserved to the Court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive for burying its mistakes, covering up its inefficiencies and sometimes even hiding its corruption. Every claim for immunity in respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the court with reference to one and only one test, namely, what does public interest require disclosure or non-disclosure. The doctrine of class immunity is therefore no longer impregnable; it does not any more deny judicial scrutiny; it is no more a mantra to which the court pays obeisance. Whenever class immunity is claimed in respect of a document, the court has to weigh in the scales the one aspect of public interest which requires that the document should not be disclosed against the other that the court in performing its functions should not be denied access to relevant documents and decide which way the balance lies. And this exercise has to be performed in the context of the democratic ideal of an open Government. 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information would affect public interest. On an objection raised by the head of the department, the court conducts an exercise to determine if the document relates to affairs of the State by assessing the effect of disclosure on public interest. After the court undertakes this exercise, it would be futile for the head of the department to again decide if the disclosure would be injurious to public interest; (iii) The burden of establishing the claim for immunity is on the person making the claim; (iv) When a claim of public interest immunity is made, the court must on a perusal of the affidavit filed by the Minister or the head of the department decide if the disclosure would be injurious to public interest. The Court may inspect the document if it doubts the claim of the State and is unable to satisfy itself on a perusal of the affidavit. This power of inspection of the Court is not excluded by the operation of Section 162 of the Evidence Act; (v) Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the objection as conclusive without scrutiny. The Law Lord held that the claim for non-disclosure must be allowed if the form of the objection is valid, and the interests of a private citizen may have to be subsumed by public interest. Consequently, courts cannot examine the documents while determining the validity of the claim because it would violate the first principle of justice that the Judge should have no dealings on the matter in hand with one of the litigants save in the presence of and to the equal knowledge of the other. Thus, the House of Lords did not frame the issue as a conflict between conceptions of public interest but that of private interest and public interest. The House of Lords established two principles for the application of public interest immunity: that the interest of a litigant must give way to the secrecy of the government, and the Minister has the sole power to decide if the document ought to be withheld. 123 The House of Lords altered its approach in Conway v. 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 administratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the validity of a public interest claim. In this case, an Ethiopian national who was a former resident of the United Kingdom was held by the authorities of the United States in a detention facility in Cuba where he was alleged to have been treated inhumanly. He sought the disclosure of the information in the possession of the United Kingdom Government which may have supported his defence that the confessions he made while in detention were inadmissible. The Court held that the Security Service of the United Kingdom had facilitated the wrongdoing. In the course of the judgment, the reports by the United States Government to the United Kingdom security and intelligence services were summarised in seven paragraphs. These seven paragraphs were sought to be redacted by the Court by claiming public interest immunity. It was contended that the United States Government would re- evaluate its intelligence sharing relationship with the United Kingdom if the paragraphs were published, which would in turn prejudice the national security of the United Kingdom. The Court applied a four-pronged test to decide the claim of whether the paragraphs had to be redacted: (i) Is there a publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence will expose .matters which, in the interest of national security, should not be divulged. The privileged evidence is excluded from the case which may incidentally also result in the dismissal of the claims (United States v. Reynolds, 345 US 1 (1953)) 128 Unlike the standard in the United Kingdom, even the most compelling necessity in disclosure cannot overcome the claim of privilege if the court is satisfied that state secrets are at stake. Ordinarily, the evidence is excluded unlike a Totten bar where the issue is declared non-justiciable, if the information relates to a class of protected evidence. However, in some cases, the application of privilege may require dismissal of the action and at this point, the Reynolds privilege converges with the Totten bar. 129 The US Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust consider the nature of the information, and the nature of the injury that is sought to be protected; (a) The Court should order disclosure if the State is unable to discharge its burden of proving it to the court that the disclosure of information is injurious; and (b) The court must undertake a balancing exercise if the State has proved that the disclosure would be injurious to national security; (iii) The alternative test: Whether there are alternatives to full disclosure that would protect a fair trial. (iv) The balancing test: The Court must determine if public interest in disclosure outweighs public interest in non-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 answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect; (v) The standard laid down in India (in SP Gupta), United Kingdom, and Canada on the assessment of PII claims is similar to the extent that the impact of non-disclosure on broader principles of constitutional governance is also considered; (vi) In Canada, the party seeking production is required to prove relevancy of the material sought after the PII claim is made by the state. The inclusion of the relevancy test as one of the tests imposes a heightened burden of proof than what is required otherwise. This is because the court is at that stage aware that the state is contesting the production on grounds of national security. Such claims are always met with a deferential tone by the courts. Secondly, and most importantly, this leads to an integration of the discovery stages and the objection stages. This integration is problematic because the considerations of the court at the discovery stage and objection stage are distinct. The party seeking discovery of documents must prima facie prove the relevance of the document to the proceedings. Once the party discharges this burden, and the court orders disclosure, the state may object to disclosure on the ground that it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant C. D., make oath and say as follows : 1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection.] 3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. 4. The last-mentioned documents were last in my possession or power on. [State when and what has become of them and in whose possession they now are.] 5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit to enable the government to discharge the onus of justification is based on the standard of scrutiny that the Court applies to assess public interest immunity claims. I. Proportionality standard to test public interest immunity claims 137 The substance of a public interest immunity claim is to seek an exception to the compliance of principles of natural justice. We have already held above that a departure from compliance of principles of procedural fairness, after it has been proved that the party has been denied a fair and reasonable hearing due to non- compliance must be tested on the proportionality standard. 138 In addition to the above discussion, we are of the opinion that the courts must use the proportionality standard to assess claims of public interest immunity for the following reasons: (i) Firstly, the state while making a claim for public interest immunity seeks an accommodation to deviate from an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified if public interest is injured. Section 124, thus, prescribes a heightened standard for the application of public interest immunity. 140 The proportionality standard tests the effect of the infringement only at the balancing stage. Both the suitability prong and legitimate aim prong of the proportionality standard are framed in the language of purpose as opposed to effects. Section 124 of the Evidence Act stipulates that the right to fair trial and the right to information protected under Articles 21 and 19(1)(a) cannot be restricted to advance a public interest. The principle implicit in Section 124 of the Evidence Act is that no purpose could be of sufficient importance to override the right to a fair hearing. Such a restriction is unjustified. It is only an injury of public interest that justifies the non-disclosure of documents. 141 In view of the above discussion, the proportionality standard laid down by this Court in Modern Dental (supra) has to be nuanced keeping in view the standard that is prescribed by the provisions of Section 124 of the Evidence Act and the observations of this Court in SP Gupta (supra). Apart from the measure being in furtherance of a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of documents to the court in a sealed cover. The 1966 Rules were substituted by the Supreme Court of India Rules 2013. Order XIII Rule 1 of the Supreme Court Rules 2013 stipulates that a party to a proceeding in the Supreme Court shall be entitled to apply for and receive certified copies of all pleadings, judgments, decrees or orders, documents and deposition of witnesses made or exhibited in the proceeding. Rule 7 provides an exception to the rule. The rule stipulates that no person has a right to documents that are (i) confidential; (ii) directed to be placed in a sealed cover by the court or the Chief Justice; and (iii) the disclosure of which is not in public interest. The rule states that documents that fall within any of the above clauses can be disclosed only with the permission of the court or the Chief Justice. Order XIII Rule 7 is extracted below for reference: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of harm as compared to the public interest immunity. As held above, the closed material procedure is similar to the sealed cover procedure in as much as relevant material that is not disclosed to the applicant is used in the course of substantive hearings. In that case, the issue before the Court was whether the court has the power to order a closed material procedure for the whole or a part of the trial. In a closed proceeding, the claimant would be represented by a Special Advocate who would be unable to take instructions from the claimant. The Supreme Court of the United Kingdom observed that a closed material procedure, unlike the law relating to public interest immunity, departs from the principles of both open justice and natural justice. Lord Dyson in his opinion observed as follows: 41. [ ]The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be difficult for the State to prove that this would be in the interests of justice because it seeks to withhold information from the claimant and use it against them. The relevant observations of the Commission are extracted below : 5.51 At this second stage, the court determines whether to order the use of a closed procedure for part of the substantive hearing. The court should only order that part of the substantive hearing be closed where it is satisfied that the national security information is sufficiently relevant to the proceedings that it is in the interests of justice to use a closed procedure rather than to exclude the information and have the case proceed without it. Although a closed procedure would be available in cases where the national security information was beneficial to the Crown s case, the interests of justice test will be much harder for the Crown to satisfy because it is seeking to withhold information from the other party but also use it against them. In some cases where the Crown is defending an action, the courts may consider that this is appropriate, but we would anticipate this would be quite rare. It is more likely that a closed procedure would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach a fair result since the judge sees all the evidence because to be truly valuable, the evidence must be capable of withstanding challenge. The relevant observations are extracted below: 93. The appellants second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive - for what, the appellants imply, 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. However, beyond this assumption, it must be recognised that the court could be misled by the material that is not subject to inspection and examination. This would lead a situation where the court renders an unfair judgment and such an unfair decision would not be amenable to both judicial review and public criticism on merits. 156 While it cannot be denied that allowing a public interest immunity claim may cause some degree of injury to the procedural guarantees of the claimant and the defendant, a sealed cover procedure will not ensure a fairer proceeding. The purpose of public interest immunity proceedings would become redundant if the defendant is provided the option of requesting a closed material procedure after the conclusion of public interest immunity proceedings, which the defendant makes, is allowed. Rather, we are of the opinion that the effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State in making restricted claims of public interest immunity. Further, as Lord Dyson r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. The court should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted. 159 In view of the observations above, we are of the opinion that the respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover have violated the appellant s right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, restricting MBL s right to the freedom of press under Article 19(1)(a) of the Constitution. 163 The freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The grounds stipulated in Article 19(2) include the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. We have already held in Part C of this judgment that security clearance is a requirement for renewal of an Uplinking and Downlinking license. The denial of security clearance to operate a news channel is a restriction on the freedom of press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2) of the Constitution. 164 Though the courts have been using the proportionality standard to test the reasonableness of restrictions on fundamental rights after the decisions in Modern Dental (supra) and Justice KS Puttaswamy (9J) (supra), this has generally been deployed in the area of legislative action. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illing effect on free speech, and in particular on press freedom. Criticism of governmental policy can by no stretch of imagination be brought withing the fold of any of the grounds stipulated in Article 19(2). 168 The note that was submitted by the IB on the alleged role and activities of JEI-H states that the organisation was banned thrice and all the three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court had nullified the ban in 1994. Thus, when JEI-H is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with Foreign States, or public order. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by cadres of JEI-H. In the support of this, IB has submitted a list of shareholders. However, there is no evidence on record to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious, firstly, because JEI-H is not a banned organisation and there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; (b) The appellants have proved that MBL s right to a fair hearing has been infringed by the unreasoned order of the MIB dated 31 January 2022, and the non-disclosure of relevant material to the appellants, and its disclosure solely to the court. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure. (c) The judgments of this court in Ex-Armymen s Protection Services (supra) and Digi Cable Network (supra) held that the principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; (e) The validity of the claim of involvement of national security considerations must be assessed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Court. It is only the Court and the party seeking non-disclosure of the material who are privy to the public interest immunity proceedings. The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in 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 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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