Constitution of India – Art. 19(1)(a) and 19(2) – Freedom of Speech and Expression – Freedom of Press – Reasonable Restriction – National Security – The Union Ministry of Information and Broadcasting (MIB) revoked the permission which it had granted to Madhyamam Broadcasting Limited to uplink and downlink a news and current affairs television channel called “Media One” – MIB revoked the permission that was granted to uplink and downlink ‘Media One’ because of the denial of a security clearance – Appellants initiated proceedings under Article 226 of the Constitution before the High Court for challenging the action of the first respondent – A Single Judge dismissed the petitions – Writ appeal was dismissed by the Division Bench of the High Court – The High Court relied on material which was disclosed solely to the Court in a sealed cover by the second respondent, the Union Ministry of Home Affairs – Held: The challenge to the order of the MIB and judgment of the High Court on procedural grounds is allowed – The core of the principles of natural justice breathes reasonableness into procedure – The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees – The appellants have proved that MBL’s right to a fair hearing has been infringed by the unreasoned order of the MIB, and the non-disclosure of relevant material to the appellants, and its disclosure solely to the court – The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution – Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario – A blanket immunity from disclosure of all investigative reports cannot be granted – The validity of the claim of involvement of national security considerations must be assessed on the test of (i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record– Even assuming that non-disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard – The nondisclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong – The challenge to the order of MIB is allowed on substantive grounds – The non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution – The reasons for denying a security clearance to MBL, that is, its alleged anti-establishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution – In any event, there was no material to demonstrate any link of the shareholders, as was alleged. National Security – Concerns of – Held: Do not permit an absolute abrogation of the principles of natural justice – The mere involvement of issues concerning national security would not preclude the state’s duty to act fairly – However, the principle of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness – Thus, national security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted – If the State discards its duty to act fairly, then it must be justified before the court on the facts of the case – Firstly, the State must satisfy the Court that national security concerns are involved – Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified – These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard – The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs – It is not sufficient for the State to identify its purpose in broad conceptual terms such as national security and public order – Rather, it is imperative for the State to prove through the submission of cogent material that non-disclosure is in the interest of national security – It is the Court’s duty to assess if there is sufficient material for forming such an opinion – A claim cannot be made out of thin air without material backing for such a conclusion – The Court must determine if the State makes the claim in a bona fide manner – The Court must assess the validity of the claim of purpose by determining (i) whether there is material to conclude that the nondisclosure of the information is in the interest of national security; and (ii) whether a reasonable prudent person would arrive at the same conclusion based on the material – The court allows due deference to the State to form its opinion but reviews the opinion on limited grounds of whether there is nexus between the material and the conclusion – The Court cannot second-guess the judgment of the State that the purpose identified would violate India’s national security – It is the executive wing and not the judicial wing that has the knowledge of India’s geo-political relationships to assess if an action is in the interest of India’s national security – Natural Justice.
Investigative agencies – Reports of – Held: The reports of the intelligence agencies are not merely fact-finding reports – To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that the all such reports are confidential is another – Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values – The reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system – A blanket immunity from disclosure of all investigative reports cannot be granted. Practice and Procedure – Disclosure of Relevant Material – Open Justice – Sealed cover procedure – Effect of – Less Restrictive Means – Public interest immunity claim – Suggestive Course of Action – Held: Sealed cover procedures violate both principles of natural justice and open justice – When relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated – First, the documents are not available to the affected party – Second, the documents are relied upon by the opposite party (which is most often the State) in the course of the arguments, and the court arrives at a finding by relying on the material – In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any inferences from the material before the adjudicating authority – This form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge – The affected party would be unable to “contradict errors, identify omissions, challenge the credibility of informants or refute false allegations” – The right to seek judicial review which has now been read into Arts. 14 and 21 is restricted – A corresponding effect of the sealed cover procedure is a nonreasoned order – If the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted – The court should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted – The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim.
Practice and Procedure – Difference between sealed cover procedure and public interest immunity claims – Held: One crucial difference between the sealed cover procedure and public interest immunity claims is that in the former, the court relies on the material that is disclosed in a sealed cover in the course of the proceedings, as opposed to the latter where the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such material – The courts assess the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the structured proportionality standard – The power of courts to secure material in a sealed cover when contradistinguished with the scope of assessment of public interest immunity claims is rather unguided and ad-hoc – The standard of review that is used by the courts in public interest immunity claims and the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means – Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles natural justice and open justice.
Practice and Procedure – Public interest immunity claim – Held: While Public interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Court – The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim.
Media – Press – Role and independence of – Held: An independent press is vital for the robust functioning of a democratic republic – Its role in a democratic society is crucial for it shines a light on the functioning of the state – The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction – The restriction on the freedom of the press compels citizens to think along the same tangent – A homogenised view on issues that range from socio-economic polity to political ideologies would pose grave dangers to democracy – On facts, the critical views of the Channel, Media-One on policies of the government cannot be termed, ‘antiestablishment’ – The use of such a terminology in itself, represents an expectation that the press must support the establishment – The action of the Union Ministry of Information and Broadcasting (MIB) by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom – Criticism of governmental policy can by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2) – Constitution of India – Art.19(2). Policy – Union Ministry of Information and Broadcasting (MIB) – Policy Guidelines for Uplinking of Television Channels from India – Paragraph 10.4 of the Uplinking Guidelines as modified by the ‘permission letter’ indicates that the Union Ministry of Home Affairs (MHA) could deny security clearance on the grounds of national security and public order – Thus, according to the Uplinking and Downlinking guidelines, security clearance from MHA is one of the conditions that is required to be fulfilled for renewal of permission for Uplinking and Downlinking of news channels.
Doctrines / Principles – Natural Justice – Requirement of reasoned order – Held: The principles of natural justice ensure that justice is not only done but it is seen to be done as well – A reasoned order is one of the fundamental requirements of fair administration – A non-reasoned order perpetuates the nonapplication of judicial mind in assessing the veracity of the inputs – The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed.
Words and Phrases – Expression “national security” – Meaning of – Held: The expression national security does not have a fixed meaning – While courts have attempted to conceptually distinguish national security from public order, it is impossible (and perhaps unwise) to lay down a text-book definition of the expression which can help the courts decide if the factual situation is covered within the meaning of the phrase – The phrase derives its meaning from the context .
Allowing the appeals, the Court
HELD: 1. The appeals are allowed and the order of the MIB dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 are set aside. The findings are summarized as follows: (i) Security clearance is one of the conditions required to be fulfilled for renewal of permission under Uplinking and Downlinking Guidelines; (ii) The challenge to the order of the MIB and judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgement of this Court in Maneka Gandhi. The effect is that the courts have recognised that there is an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case. Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case. The core of the principles of natural justice breathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees; (b) The appellants have proved that MBL’s right to a fair hearing has been infringed by the unreasoned order of the MIB dated 31 January 2022, and the non-disclosure of relevant material to the appellants, and its disclosure solely to the court. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure. (c) The judgments of this court in Ex-Armymen’s Protection Services and Digi Cable Network held that the principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; (e) The validity of the claim of involvement of national security considerations must be assessed on the test of
(i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record; (f) Even assuming that non-disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard. The nondisclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong; (g) The courts assess the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the structured proportionality standard. The power of courts to secure material in a sealed cover when contradistinguished with the scope of assessment of public interest immunity claims is rather unguided and ad-hoc. The standard of review that is used by the courts in public interest immunity claims and the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means. Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles natural justice and open justice; (h) The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim; and (iii) The challenge to the order of MIB is allowed on substantive grounds. The non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged antiestablishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged. MIB shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall co-operate in issuing necessary approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted. [Paras 170 and 174][708-E-H; 709-AH; 710-A-F; 711-H; 712-A]
2. An administrative action can be challenged on the ground of a violation of fundamental rights. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety. In addition to the above grounds, administrative action can be reviewed on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution. The principle of natural justice that is derived from common law has two primary facets- Audi Alterum Partem and Nemo Judex In Causa Sua. Audi Alterum Partem encapsulates the rule of fair hearing. Nemo Judex In Causa Sua encapsulates the rule against bias, that is, no person should be a judge of their own case. [Paras
31 and 32][630-H; 631-A-C]
3. The duty to act fairly that is derived from common law is not exhaustively defined in a set of concrete principles. Courts, both in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine tuning them to situational variations. This Court has observed earlier that the concept of natural justice cannot be put into a ‘straitjacket formula’ and that it is incapable of a ‘precise definition’. Courts have undertaken an ends-based reasoning to test if the action violates the common law principle of natural justice. The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice and that non compliance with natural justice prejudiced the party. The courts, while assessing prejudice, determine if compliance of the principles of natural justice could have benefitted the party in securing a just outcome. [Para 42][635-B-D]
4. Reasonableness is a normative concept that is identified by an evaluation of the relevant considerations and balancing them in accordance with their weight. It is value oriented and not purpose oriented. That is why the courts have been more than open in identifying that the action is unreasonable rather than identifying if the action is reasonable. This is also why the courts while assessing the reasonableness of limitations on fundamental rights have adopted a higher standard of scrutiny in the form of proportionality. The proportionality analysis assesses both the object and the means utilised, which are pertinent requirements while testing an infringement of fundamental rights. This Court has held that the proportionality standard can be used to assess the validity of administrative action infringing upon fundamental freedoms. The standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well. The courts have to undeniably undertake a balancing exercise while deciding if the limitation on the right is valid. [Paras 4951][639-D; 640-B-C, D]
5. On the facts of the case, MIB has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. The freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of a right to fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision. MHA disclosed the material forming the opinion for denying of security clearance solely to the High Court. The High Court instead of deciding if any other less restrictive but equally effective means could have been employed, straight away received the material in a sealed cover without any application of mind. It is now an established principle of natural justice that relevant material must be disclosed to the affected party. This rule ensures that the affected party is able to effectively exercise their right to appeal. When the state government claims non-disclosure on the ground of public interest under Section 124 of the Evidence Act, the material is removed from the trial itself. As opposed to this method, when relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the state) in the course of the arguments, and the court arrives at a finding by relying on the material. In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any inferences from the material before the adjudicating authority. This form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge. The affected party would be unable to “contradict errors, identify omissions, challenge the credibility of informants or refute false allegations”. The right to seek judicial review which has now been read into Articles 14 and 21 is restricted. A corresponding effect of the sealed cover procedure is a non-reasoned order. [Paras 57-59][643-F; 644-A-G]
6. National security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted. The mere involvement of issues concerning national security would not preclude the state’s duty to act fairly. If the State discards its duty to act fairly, then it must be justified before the court on the facts of the case. Firstly, the State must satisfy the Court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified. These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard. The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs. [Para 75][656-D-F]
7. A claim cannot be made out of thin air without material backing for such a conclusion. The Court must determine if the State makes the claim in a bona fide manner. The Court must assess the validity of the claim of purpose by determining (i) whether there is material to conclude that the non-disclosure of the information is in the interest of national security; and (ii) whether a reasonable prudent person would arrive at the same conclusion based on the material. The reasonable prudent person standard which is one of the lowest standards to test the reasonableness of an action is used to test national security claims by courts across jurisdictions because of their deferential perception towards such claims. This is because courts recognise that the State is best placed to decide if the interest of national security would be served. The court allows due deference to the State to form its opinion but reviews the opinion on limited grounds of whether there is nexus between the material and the conclusion. The Court cannot second-guess the judgment of the State that the purpose identified would violate India’s national security. It is the executive wing and not the judicial wing that has the knowledge of India’s geo-political relationships to assess if an action is in the interest of India’s national security. [Para 84][661-E-G; 662-A-B]
8. The respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover have violated the appellant’s right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellants’ right to a fair hearing were reasonable. Therefore, the order of MIB dated 31 January 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees. [Para 159][704-G-H; 705A-B]
9. The note that was submitted by the IB on the alleged role and activities of JEI-H states that the organisation was banned thrice and all the three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court had nullified the ban in 1994. Thus, when JEI-H is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with Foreign States, or public order. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by cadres of JEI-H. In the support of this, IB has submitted a list of shareholders. However, there is no evidence on record to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious, firstly, because JEI-H is not a banned organisation and there is no material to conclude that the investment by JEI-H sympathizers would affect India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathizers would affect the security of the State, there is no material to prove that the shareholders are sympathizers of JEIH. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose. [Para 168][707-F-H; 708-A-B]
Ex-Armymen’s protection Services Private Limited v. Union of India (2014) 5 SCC 409 : [2014] 3 SCR 359 and Digi Cable Network (India) Private v. Union of India AIR 2019 SC 455 : [2019] 1 SCR 88- explained. KS Puttaswamy (9J) v. Union of India (2017) 10 SCC
1 : [2017] 10 SCR 569; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; RC Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; State of Punjab v. Sodhi Sukhdev Singh [1961] 2 SCR 371 and SP Gupta v. Union of India (1981) Supp SCC 87 : [1982] 2 SCR 365 - followed.
Anuradha Bhasin v. Union of India (2020) 3 SCC 637 and Manohar Lal Sharma v. Union of India (2021) SCC OnLine SC 985 - relied on.
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6 SCC 299 : [2004] 3 SCR 1178; Automotive Tyre Manufacturers Association v. Designated Authority (2011) 2 SCC 258 : [2011] 1 SCR 198; A K Gopalan v. State of Madras AIR 1950 SC 27 : [1950] SCR 88; Zahira Habibulla H Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; S L Kapoor v.
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As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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