| Headnote |
Constitution of India – Art. 19(1)(a) and 19(2) – Freedom ofSpeech and Expression – Freedom of Press – Reasonable Restriction– National Security – The Union Ministry of Information andBroadcasting (MIB) revoked the permission which it had grantedto Madhyamam Broadcasting Limited to uplink and downlink a newsand current affairs television channel called “Media One” – MIBrevoked the permission that was granted to uplink and downlink‘Media One’ because of the denial of a security clearance –Appellants initiated proceedings under Article 226 of theConstitution before the High Court for challenging the action ofthe first respondent – A Single Judge dismissed the petitions – Writappeal was dismissed by the Division Bench of the High Court –The High Court relied on material which was disclosed solely to theCourt in a sealed cover by the second respondent, the Union Ministryof Home Affairs – Held: The challenge to the order of the MIB andjudgment of the High Court on procedural grounds is allowed –The core of the principles of natural justice breathes reasonablenessinto procedure – The burden is on the claimant to prove that theprocedure followed infringes upon the core of proceduralguarantees – The appellants have proved that MBL’s right to a fairhearing has been infringed by the unreasoned order of the MIB,and the non-disclosure of relevant material to the appellants, andits disclosure solely to the court – The burden then shifts on therespondents to prove that the procedure that was followed wasreasonable and in compliance with the requirements of Articles 14and 21 of the Constitution – Though confidentiality and nationalsecurity are legitimate aims for the purpose of limiting proceduralguarantees, the state has been unable to prove that theseconsiderations arise in the present factual scenario – A blanket immunity from disclosure of all investigative reports cannot begranted – The validity of the claim of involvement of national securityconsiderations must be assessed on the test of (i) whether there ismaterial to conclude that the non-disclosure of information is in theinterest of national security; and (ii) whether a reasonable prudentperson would draw the same inference from the material on record–Even assuming that non-disclosure is in the interest of confidentialityand national security, the means adopted by the respondents do notsatisfy the other prongs of the proportionality standard – The nondisclosureof a summary of the reasons for the denial of securityclearance to MBL, which constitutes the core irreducible minimumof procedural guarantees, does not satisfy the suitability prong –The challenge to the order of MIB is allowed on substantive grounds– The non-renewal of permission to operate a media channel is arestriction on the freedom of the press which can only be reasonablyrestricted on the grounds stipulated in Article 19(2) of theConstitution – The reasons for denying a security clearance to MBL,that is, its alleged anti-establishment stance and the alleged link ofthe shareholders to JEI-H, are not legitimate purposes for therestriction of the right of freedom of speech protected under Article19(1)(a) of the Constitution – In any event, there was no material todemonstrate any link of the shareholders, as was alleged.National Security – Concerns of – Held: Do not permit anabsolute abrogation of the principles of natural justice – The mereinvolvement of issues concerning national security would notpreclude the state’s duty to act fairly – However, the principle ofnatural justice may be excluded when on the facts of the case,national security concerns outweigh the duty of fairness – Thus,national security is one of the few grounds on which the right to areasonable procedural guarantee may be restricted – If the Statediscards its duty to act fairly, then it must be justified before thecourt on the facts of the case – Firstly, the State must satisfy theCourt that national security concerns are involved – Secondly, theState must satisfy the court that an abrogation of the principle(s) ofnatural justice is justified – These two standards that have emergedfrom 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– It is not sufficient for the State to identify its purpose in broadconceptual terms such as national security and public order – Rather,it is imperative for the State to prove through the submission ofcogent material that non-disclosure is in the interest of nationalsecurity – It is the Court’s duty to assess if there is sufficient materialfor forming such an opinion – A claim cannot be made out of thinair without material backing for such a conclusion – The Courtmust determine if the State makes the claim in a bona fide manner –The Court must assess the validity of the claim of purpose bydetermining (i) whether there is material to conclude that the nondisclosureof the information is in the interest of national security;and (ii) whether a reasonable prudent person would arrive at thesame conclusion based on the material – The court allows duedeference to the State to form its opinion but reviews the opinion onlimited grounds of whether there is nexus between the material andthe conclusion – The Court cannot second-guess the judgment ofthe State that the purpose identified would violate India’s nationalsecurity – It is the executive wing and not the judicial wing that hasthe knowledge of India’s geo-political relationships to assess if anaction is in the interest of India’s national security – Natural Justice.Investigative agencies – Reports of – Held: The reports ofthe intelligence agencies are not merely fact-finding reports – Toargue that reports of the intelligence agencies may containconfidential information is one thing but to argue that the all suchreports are confidential is another – Such an argument is misplacedand cannot be accepted on the touchstone of constitutional values– The reports by investigative agencies impact decisions on the life,liberty, and profession of individuals and entities, and to give suchreports absolute immunity from disclosure is antithetical to atransparent and accountable system – A blanket immunity fromdisclosure of all investigative reports cannot be granted.Practice and Procedure – Disclosure of Relevant Material –Open Justice – Sealed cover procedure – Effect of – Less RestrictiveMeans – Public interest immunity claim – Suggestive Course of Action– Held: Sealed cover procedures violate both principles of naturaljustice and open justice – When relevant material is disclosed in asealed cover, there are two injuries that are perpetuated – First, the documents are not available to the affected party – Second, thedocuments are relied upon by the opposite party (which is mostoften the State) in the course of the arguments, and the court arrivesat a finding by relying on the material – In such a case, the affectedparty does not have any recourse to legal remedies because it wouldbe unable to (dis)prove any inferences from the material before theadjudicating authority – This form of adjudication perpetuates aculture of secrecy and opaqueness, and places the judgment beyondthe reach of challenge – The affected party would be unable to“contradict errors, identify omissions, challenge the credibility ofinformants or refute false allegations” – The right to seek judicialreview which has now been read into Arts. 14 and 21 is restricted –A corresponding effect of the sealed cover procedure is a nonreasonedorder – If the purpose could be realised effectively bypublic interest immunity proceedings or any other less restrictivemeans, then the sealed cover procedure should not be adopted –The court should undertake an analysis of the possible proceduralmodalities that could be used to realise the purpose, and the meansthat are less restrictive of the procedural guarantees must be adopted– The courts could take the course of redacting confidential portionsof the document and providing a summary of the contents of thedocument to fairly exclude materials after a successful public interestimmunity claim.Practice and Procedure – Difference between sealed coverprocedure and public interest immunity claims – Held: One crucialdifference between the sealed cover procedure and public interestimmunity claims is that in the former, the court relies on the materialthat is disclosed in a sealed cover in the course of the proceedings,as opposed to the latter where the documents are completely removedfrom the proceedings and both the parties and the adjudicator cannotrely on such material – The courts assess the validity of publicinterest immunity claims, which address the same harms as the sealedcover procedure, based on the structured proportionality standard– The power of courts to secure material in a sealed cover whencontradistinguished with the scope of assessment of public interestimmunity claims is rather unguided and ad-hoc – The standard ofreview that is used by the courts in public interest immunity claimsand the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunityclaims constitute less restrictive means – Additionally, while publicinterest immunity claims conceivably impact the principles of naturaljustice, sealed cover proceedings infringe the principles naturaljustice and open justice.Practice and Procedure – Public interest immunity claim –Held: While Public interest immunity claim is a less restrictive means,the dilution of procedural guarantees while hearing the claim cannotbe ignored by the Court – The court has a duty to consider factorssuch as the relevance of the material to the case of the applicantwhile undertaking the proportionality standard to test the publicinterest immunity claim.Media – Press – Role and independence of – Held: Anindependent press is vital for the robust functioning of a democraticrepublic – Its role in a democratic society is crucial for it shines alight on the functioning of the state – The press has a duty to speaktruth to power, and present citizens with hard facts enabling them tomake choices that propel democracy in the right direction – Therestriction on the freedom of the press compels citizens to think alongthe same tangent – A homogenised view on issues that range fromsocio-economic polity to political ideologies would pose gravedangers to democracy – On facts, the critical views of the Channel,Media-One on policies of the government cannot be termed, ‘antiestablishment’– The use of such a terminology in itself, representsan expectation that the press must support the establishment – Theaction of the Union Ministry of Information and Broadcasting (MIB)by denying a security clearance to a media channel on the basis ofthe views which the channel is constitutionally entitled to holdproduces a chilling effect on free speech, and in particular on pressfreedom – Criticism of governmental policy can by no stretch ofimagination be brought within the fold of any of the groundsstipulated in Article 19(2) – Constitution of India – Art.19(2).Policy – Union Ministry of Information and Broadcasting(MIB) – Policy Guidelines for Uplinking of Television Channelsfrom India – Paragraph 10.4 of the Uplinking Guidelines asmodified by the ‘permission letter’ indicates that the Union Ministryof Home Affairs (MHA) could deny security clearance on thegrounds of national security and public order – Thus, according to the Uplinking and Downlinking guidelines, security clearance fromMHA is one of the conditions that is required to be fulfilled forrenewal of permission for Uplinking and Downlinking of newschannels.Doctrines / Principles – Natural Justice – Requirement ofreasoned order – Held: The principles of natural justice ensurethat justice is not only done but it is seen to be done as well – Areasoned order is one of the fundamental requirements of fairadministration – A non-reasoned order perpetuates the nonapplicationof judicial mind in assessing the veracity of the inputs– The nexus of the reasons to the order cannot be adjudicated uponif the reasons are not disclosed.Words and Phrases – Expression “national security” –Meaning of – Held: The expression national security does not havea fixed meaning – While courts have attempted to conceptuallydistinguish national security from public order, it is impossible (andperhaps unwise) to lay down a text-book definition of the expressionwhich can help the courts decide if the factual situation is coveredwithin the meaning of the phrase – The phrase derives its meaningfrom the context . |
