MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS.
Tools
- Court
- Supreme Court of India
- Decided
- Bench
- DR. DHANANJAYA Y CHANDRACHUD (CJI) and HIMA KOHLI
- Citation
- [2023] 10 S.C.R. 595 : 2023 INSC 324
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Constitution of India – Art. 19(1)(a) and 19(2) – Freedom of Speech and Expression – Freedom of Press – Reasonable Restriction C – 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 – D 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 E 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 H 595
A 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– B 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 non- disclosure 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. E 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 G 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 A – 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 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 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.
Catchwords
Practice and Procedure – Disclosure of Relevant Material – G 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
A 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 non- reasoned 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 G – 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 A 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 – B
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. C
Catchwords
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, E Media-One on policies of the government cannot be termed, ‘anti- establishment’ – The use of such a terminology in itself, represents an expectation that the press must support the establishment – The action of the 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 G (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
A 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 non- application of judicial mind in assessing the veracity of the inputs – The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed.
Catchwords
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 E 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 F 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
Reporter's headnote (continued) and case details
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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 D 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 H
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A 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-A- H; 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 H
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bias, that is, no person should be a judge of their own case. [Paras A 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. D [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. G The courts have to undeniably undertake a balancing exercise while deciding if the limitation on the right is valid. [Paras 49- 51][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. H
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A 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 B 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]
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6. National security is one of the few grounds on which the A 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 B 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 C 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) D 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 G 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
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A 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; 705- A-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 JEI- H. 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] G 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.
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KS Puttaswamy (9J) v. Union of India (2017) 10 SCC A 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 B (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. State of Andhra Pradesh v. McDowell (1996) 3 SCC C 709 : [1996] 3 SCR 721; Tata Cellular v. Union of India (1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122; Council of Civil Service Unions v. Minister for Civil Service (1985) A.C 374; Om Kumar v. Union of India (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693; Union of India v. G. Ganayutham (1997) 7 SCC 463 : [1997] 3 Suppl. D SCR 549; N K Prasada v. Government of India (2004) 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; E Zahira Habibulla H Sheikh v. State of Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050; S L Kapoor v. Jagmohan (1980) 4 SCC 379 : [1981] 1 SCR 746; Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818 : [1981] 2 SCR 533; Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 : [1985] 2 F Suppl. SCR 51; C B Gautam v. Union of India (1993) 1 SCC 78 : [1992] 3 Suppl. SCR 12; Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I (2008) 14 SCC 151 : [2008] 6 SCR 427; Kesar Enterprises Ltd v. State of Uttar Pradesh (2011) 13 SCC G 733 : [2011] 9 SCR 19; Modern Dental College & Research Centre v. State of Madhya Pradesh (2016) 4 SCC 346 : [2016] 3 SCR 575; Teri Oat Estates (P) Ltd. v. UT, Chandigarh (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235; MH Hoskot v. State of Maharashtra (1978) H
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A 3 SCC 544 : [1979] 1 SCR 192; Modern Dental College & Research Centre v. State of Madhya Pradesh (2016) 7 SCC 353 : [2016] 3 SCR 579; S N Mukherjee v. Union of India (1990) 4 SCC 594 : [1990] 1 Suppl. SCR 44; Seimens Engineering and Manufacturing Company v. Union of India (1976) 2 SCC 981 : [1976] Suppl. B SCR 489; CCI v. SAIL (2010) 10 SCC 744 : [2010] 11 SCR 112; Kranti Associates v. Masood Ahmed Khan (2010) 9 SCC 496 : [2010] 10 SCR 1070; Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Dharan Varshney (2009) 4 SCC 240 : [2009] 5 SCR 326; State of West C Bengal v. Alpana Roy (2005) 8 SCC 296 : [2005] 3 Suppl. SCR 482; L. Chandra Kumar v. Union of India (1995) 1 SCC 400 : [1994] 6 Suppl. SCR 261; Justice K S Puttaswamy (5J) v. Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1; State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428 : [1975] 3 SCR 333; Om Kumar v. D Union of India (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693; Union of India v. Ganayutham (1997) 7 SCC 463 : [1997] 3 Suppl. SCR 549; Romesh Thappar v. State of Madras (1950) SCC 436; Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 : [1966] 1 SCR E 709; B P Singhal v. Union of India (2010) 6 SCC 331; Commander Amit Kumar Sharma v. Union of India (2022) SCC OnLine SC 1570 - referred to. Charkaoui v. Canada (Citizenship and Immigration) [2007] 1 SCR 350; Secretary of State for Home F Department v. Rehman (2003) 1 AC 153; Council of
Civil Service Unions v. Minister of Civil Service 1985
AC 374; Chief Constable of North Wales Police v. Evans (1982) 1 WLR 1155; Kanda v. Government of Malaya (1962) 28 MLJ 169; The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff (1920) 3 K.B. G 72; Nakkuda Ali v. MF De S Jayaratne [1951] AC 66; Ridge v. Baldwin [1964] A.C 40; R v. Oakes [1986] 1 SCR 103; A v. The United Kingdom, Application no. 3455/05; Secretary of State for the Home Department v. AF [2009] UKHL 28; Totten v. United States 92 US H 105, 107 (1876); Chahal v. United Kingdom (1996) 23
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EHRR 413; Roberts v. Parole Board (2005) 2 AC 738; A R v. H (2004) AC 134; Duncan v. Cammell Laird [1942] AC 624; Conway v. Rimmer [1968] AC 910; Reg v. Chief Constable, W.Midlands, Ex p. Wiley [1994] WLR 433; R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admins); B United States v. Reynolds 345 US 1 (1953); Binyam Mohamed v. Jeppesen Dataplan 614 F 3d 1070; Carey v. Majesty (1986), 72 N.R 81 (SCC); Ribic v. Canada (Attorney General) 2003 FCA 246; R v. Ahmad (2011) SCC 6; Al Rawi v. The Security Service (2011) UKSC 34 and A & Ors. v. The United Kingdom, Application C no. 3455/05 - referred to. Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials (3rd ed. Oxford University Press); Laurence Tribe, American Constitution Law (2nd ed.). Pg. 666 21; DJ Galligan, D Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon Press 1996) 22 TRS Allan, Procedural Fairness and the Duty of Respect (Oxford Journal of Legal Studies) p. 510; Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural Justice and E Fundamental Rights, (Volume 16, Issue 2, International Journal of Constitutional Law, 2018, p.475–502; Aharon Barak, Proportionality: Constitutional Rights and their limitations (Cambridge University Press, 2012), 374. 39 Giacinto della F Cananea, Reasonableness in Administrative law in Reasonableness and Law (ed. by Giorgio Boniovanni, Giovanni Sartar, Chiara Valentini); Sir Alfred Denning, Freedom Under the Law (Stevens and Sons 1949) p. 92; Dr BR Ambedkar, Constituent Assembly of India Debates (Vol. VII, 9 December 1948; David Bilchitz, G ‘Necessity and Proportionality: Towards a Balanced Approach? in Liora Lazarus et al (eds), Reasoning Rights: Comparative Judicial Engagement (Hart 2014) 49.; Martin Chamberlain, Special Advocates and Amici Curiae in National Security proceedings in the H
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A United Kingdom, The University of Toronto Law Journal, Summer 2018, Vol. 68, No. 3, Special Issue on Indigenous Law (Summer 2018), pp. 496-510 - referred to. Case Law Reference B [2014] 3 SCR 359 explained Para 11(ii) [2019] 1 SCR 88 explained Para 11(ii) (2020) 3 SCC 637 relied on Para 15(ii) [2017]10 SCR 569 followed Para 15(ii) C [1996] 3 SCR 721 referred to Para 31 [1994] 2 Suppl. SCR 122 referred to Para 31 [2000] 4 Suppl. SCR 693 referred to Para 31 [1997] 3 Suppl. SCR 549 referred to Para 31 D [1978] 2 SCR 621 followed Para 41 [2004] 3 SCR 1178 referred to Para 42 [2011] 1 SCR 198 referred to Para 42 [1950] SCR 88 referred to Para 44 E [1970] 3 SCR 530 followed Para 45 [2004 ] 3 SCR 1050 referred to Para 45 [1981] 1 SCR 746 referred to Para 47 F [1981] 2 SCR 533 referred to Para 47 [1985] 2 Suppl. SCR 51 referred to Para 47 [1992] 3 Suppl. SCR 12 referred to Para 47 [2008] 6 SCR 427 referred to Para 47 G [2011] 9 SCR 19 referred to Para 47 [1986] 1 SCR 103 referred to Para 49 [2016] 3 SCR 575 referred to Para 49 [2003] 6 Suppl. SCR 1235 referred to Para 51 H
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[1979] 1 SCR 192 referred to Para 51 A [2016] 3 SCR 579 referred to Para 52 [2018] 8 SCR 1 referred to Para 52 [1990] 1 Suppl. SCR 44 referred to Para 56 [1976] Suppl. SCR 489 referred to Para 56 B [2010] 11 SCR 112 referred to Para 56 [2010] 10 SCR 1070 referred to Para 56 [2009] 5 SCR 326 referred to Para 56 C [2005] 3 Suppl. SCR 482 referred to Para 56 [2007] 1 SCR 350 referred to Para 59 [1994] 6 Suppl. SCR 261 referred to Para 61 [1982] 2 SCR 272 referred to Para 83 D (1950) SCC 436 referred to Para 83 [1966] 1 SCR 709 referred to Para 83 (2010) 6 SCC 331 referred to Para 84 [1961] 2 SCR 371 followed Para 115 E [1975] 3 SCR 333 referred to Para 117 [1982] 2 SCR 365 followed Para 118 [2000] 4 Suppl. SCR 693 referred to Para 164 [1997] 3 Suppl. SCR 549 referred to Para 164 F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8129 of 2022. From the Judgment and Order dated 02.03.2022 of the High Court of Kerala at Ernakulam in WA No. 218 of 2022. G With Civil Appeal Nos. 8130 and 8131 of 2022. K.M. Nataraj, ASG, Dushyant A Dave, Huzefa A Ahmadi, Mukul Rohatgi, Sr. Advs., Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Azhar Assees, Ameen Hassan, Ms. Sharukh Alam, Akshat Malpani, H
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A Ms. Pallavi Pratap, Radha Shyam Jena, Shailesh Madiyal, Ms. Swarupama Chaturvedi, Apoorv Kurup, Rajat Nair, T.S. Sabarish, Anirudh Sharma - II, Amrish Kumar, Advs. for the appearing parties.
Judgment
The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, CJI B This judgment consists of the following sections: A. Facts ................................................................................ 4* B. Submissions ................................................................... 15* C. Issues ............................................................................. 19* C D. Requirement of security clearance for renewal of permission ........................................................................... 21* E. Judicial Review on procedural grounds ......................... 26* D E. 1 Principles of natural justice: purpose and content .. 28* E. 2 Constitutionalizing principles of natural justice: the impact of Maneka Gandhi ....................................... 33* E. 3 Standard to test reasonableness of procedure: E proportionality as reasonableness .................................. 37* F. Infringement of MBL’s right to a fair hearing ................ 40* G. Whether the infringement of MBL’s right to a fair hearing is justified ...................................................................... 46* F G. 1 Natural justice and national security: decisions in Digi and Ex-armymen .................................................................. 47* G.2 Application of the proportionality standard .............. 59* G. 2 (a) Legitimate Goal Stage ................................. 60* G (I) Confidentiality and IB Reports ............................ 62* (II) National Security ............................................... 63* (III) Opening the sealed cover ................................. 67* G.2 (b) Suitability ...................................................... 76* H Ed. Note : Pagination is as per the original judgment.
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G. 3 (c) Least restrictive means ............................... 78* A (I) Totten claim: non-justiciability of the issue .......... 80* (II) Closed Material Procedure and Special Advocates ................................................................ 81* (III) Public Interest Immunity .................................. 82* B H. Jurisprudence on public interest immunity claims .......... 88* H.1 India ........................................................................ 88* H. 2 United Kingdom .................................................... 96* C H. 3 United States ....................................................... 100* H. 4 Canada ................................................................ 101* I. Proportionality standard to test public interest immunity claims ................................................................................ 109* D J. Public interest immunity or sealed cover: the less restrictive means ................................................................................. 113* K. Substantive Challenge: the validity of the action of the MIB in denying to renew the permission ......................... 124* E L. Conclusion and Directions ........................................... 129*
11. The Union Ministry of Information and Broadcasting1 revoked the permission which it had granted to Madhyamam Broadcasting Limited2 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 and Senior Cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of the Constitution before the High Court of Kerala for challenging the action of the first respondent. By a judgment dated 8 February 2022, a Single Judge dismissed the petitions. The writ appeal was dismissed by the Division Bench of the High Court by a judgment dated 2 March 2022. The High Court relied on material which was disclosed solely to the Court in a sealed cover by the second respondent, the Union Ministry of Home Affairs 3. The appellants instituted 1 “MIB” 2 “MBL” 3 H “MHA”
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A proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court. A. Facts
22. On 19 May 2010, MBL applied for permission to uplink and downlink a news and current affairs television channel named ‘Media B One’. On 7 February 2011, MHA granted a security clearance for the operation of the channel. By an order dated 30 September 2011, MIB gave MBL permission to uplink ‘Media One’ for a period of ten years under the ‘Policy Guidelines for Uplinking of Television Channels from India’4. The permission was granted subject inter alia, to compliance with the terms and conditions set out in the Annexure to the letter. The Annexure to the uplinking permission prescribes the following conditions: “(i) The Licensing Authority shall be empowered to impose such restrictions as may be necessary as and when required. (ii) The Licensing Authority shall have the power to revoke the licence on grounds of national security and public order. (iii) The Licensing Authority shall have the power to prohibit transmission of programmes considered to be prejudicial to friendly relations with foreign governments, public order, security of state, communal harmony etc. E (iv) Licence should provide access facilities of all equipment and records/system to the Licensing Authority or its representative; (v) License should make available detailed information about equipment and its location; F (vi) Licensing Authority shall be legally competent to take over the stations on the occurrence of public emergency or in the interest of public safety/order; (VII) Monitoring stations should be set up so as to facilitate prompt intervention for deterrent action against violations of technical G parameters and provision laid down in 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.”
4 (emphasis supplied) “Uplinking Guidelines” H
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On the same day, MIB issued a registration certificate for A 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’5. 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 B Advertising Code prescribed under the Cable Television Networking (Regulation) Act 1995 and the Rules framed under it.
33. 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 C downlink ‘Media One Life’ for a period of ten years.
44. On 12 February 2016, MIB issued a notice to show cause to MBL proposing to revoke the permission for uplinking and downlinking granted to Media One and Media One Life in view of the denial of security clearance by MHA. The show cause notice is extracted below: D
SHOW CAUSE NOTICE Whereas Ministry of Information and Broadcasting has granted permission to M/s Madhyamam Broadcasting Limited on 30.09.2011 to uplink and downlink one News and current affairs E channel, namely, “Media One” and on 26.08.2015 one Non-News & Current Affairs Channel, namely, “Media One Life” into India. Whereas, the permissions so granted by this Ministry are governed by the Uplinking and Downlinking Guidelines as amended from time to time. F Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels. Whereas the security related conditions annexed with the permission letter stipulates that the license/ permission can be G revoked on the grounds of national security and public order. Whereas the Ministry of Home Affairs has recently conveyed denial of the security clearance. 5 “Downlinking Guidelines” H
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A Whereas due to withdrawal of security clearance, the company would cease to fulfil the very basic pre-requisite for grant of permission of uplinking & downlinking TV Channels. The company is also in violation of the security related conditions conveyed through the permission letters issued by the Ministry. B Whereas due to the above-non-compliances, the permissions are liable to be withdrawn/cancelled. Now, therefore, M/s Madhyamam Broadcasting Limited is hereby called upon to show cause, within 15 days of receipt of this notice, why their permission should not be revoked or cancelled, in view of the denial of security clearance.” Meanwhile, seven days after the show cause notice was issued, MBL applied to renew the licence to downlink the channel Media One since the license which was initially granted for five years had expired. By an order dated 11 July 2019, MIB renewed the downlinking permission of ‘Media One’ for a further period of five years. By an order dated 11 September 2019, MIB cancelled the uplinking and downlinking permission to Media-One Life. It is crucial to note that though the show cause notice was issued to both Media -One Life and Media One, only the permission granted to the former was revoked.
55. On 3 May 2021, MBL applied to renew the downlinking and uplinking permissions granted to operate Media One since they were to expire on 30 September 2021 and 29 September 2021.
66. On 5 January 2022, MIB issued another show cause notice to MBL invoking clause 9.2 of the Uplinking Guidelines and proposed to F ‘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 G 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:
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“SHOW CAUSE NOTICE A […]
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. B […]
5. Whereas the security related conditions annexed with the permission letter stipulates that the license/permission can be revoked on grounds of national security and public order.
6. Whereas the Company vide letter dated 03.05.2021 applied for renewal of permission. MHA has informed that the security clearance has been denied in the past to the proposals of the company and security clearance may be considered as denied in the present case also.
77. Whereas due to denial of security clearance, the company ceased to fulfil the eligibility requirement for renewal of permission of uplinking & downlinking of TV Channels.
88. In view of the foregoing, M/s Madhyamam Broadcasting Limited is hereby called upon to show cause, within 15 days of receipt of this notice, why the permission granted to them should not be revoked or cancelled, for uplinking and Downlinking of above mentioned TV Channel with immediate effect.”
7. On 19 January 2022, MBL replied to the show cause notice, submitting that: (i) It did not receive any intimation of the denial of security clearance to its Media One Channel as stated in the show cause notice. It was not made a party to the proceedings and no material in this regard was served upon them; (ii) The grounds for denial of security clearance were not intimated; G
(iii) MBL and Media One Channel have not indulged in any activity that would warrant the denial of security clearance; (iv) MBL was served with a similar show cause notice on 12 February 2016 with respect to Media One channel. After H
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A MBL submitted a reply on 11 July 2019, the licence was renewed on 11 July 2019; (v) The actions of MIB are arbitrary and violative of Article 14 of the Constitution; and (vi) The action of MIB of denying renewal of the license is violative of MBL’s right to the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
8. By an order dated 31 January 2022, MIB revoked the permission that was granted to uplink and downlink ‘Media One’ because of the denial of a security clearance. The relevant portion of the order revoking the permission is extracted below: “Whereas Ministry of Information and Broadcasting granted permission to M/s Madhyamam Broadcasting Limited on 30.09.2011 to uplink and downlink one News and current affairs D TV channel, namely, “Media One” which was valid upto 299.2021.
2. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels.
3. Whereas, the company M/s Madhyamam Broadcasting Limited E 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 F 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 G 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”. H
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6. Accordingly, a Show Cause Notice (SCN) dated 05.01.2022 A was given to the company as to why the permission granted to them should not be revoked or cancelled, for Uplinking and Downlinking of above mentioned TV Channel. Copy of the SCN is attached at Annexure-I.
7. The Company has replied to the SCN vide their letter dated B 19.01.2022. In the reply, the company has inter-alia mentioned that they are unaware of the grounds for denial of security clearance and requested not to iniate any further proceedings in the matter. The reply given by the company is attached at Annexure-II. C
8. The reply of the company has been examined. The security clearance is based on security parameters of the Ministry of Home Affairs. Since the Ministry of Home Affairs has denied the security clearance. The channel cannot be allowed to operate. D
99. In view of the above, the permission granted to M/s Madhyamam Broadcasting Limited to uplink and downlink a News and Current Affairs TV Channel namely, “Media One” is revoked with immediate effect and accordingly the name of this channel is removed from the list of permitted channels.” E (emphasis supplied)
9. MBL initiated proceedings under Article 226 of the Constitution before the High Court of Kerala to challenge MIB’s order ‘revoking’ the uplinking and downlinking permission granted to Media One. The appellants sought in the petitions: (i) setting aside of the order dated 31 F January 2022 revoking the permission granted to Media-One; (ii) a direction to MIB and MHA to provide MBL an opportunity to be heard before revoking the permission; and (iii) a declaration that there are no circumstances warranting a denial of security clearance or the revocation of the license since MBL has not violated any law or indulged in anti- national activity. G
1010. The Assistant Solicitor General6 of India filed a statement before the High Court submitting that security clearance was denied on the basis of intelligence inputs, which are “sensitive and secret in nature”. 6 “ASG” H
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A It was further submitted that MHA cannot disclose reasons for the denial “as a matter of policy and in the interest of national security”.
1111. By a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala dismissed the writ petition. The Single Judge held that: B (i) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that when the application for renewal of permission is considered, the eligibility criteria stipulating the net worth of the company and experience of the top management will not apply. C 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 D concerning national security (relied on Ex-Armymen’s protection Services Private Limited v. Union of India7 and Digi Cable Network (India) Private v. Union of India8); and (iii) The files submitted by MHA indicate that the Committee E of Officers9 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 F supporting material.
1212. 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: G (i) Though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the state and public order would be impacted if the 7 (2014) 5 SCC 409 8 AIR 2019 SC 455 H 9 “CoO”
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permission granted to MBL to operate the channel is A renewed; (ii) While the State cannot ordinarily interfere with the freedom of the press, the scope of judicial review in matters involving national security is limited; (iii) The Union of India may decline to provide information when B “constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute”. It is not sufficient for the State to plead immunity and it must be able to justify it on affidavit in Court (relied on ML Sharma v. Union of C India10); and (iv) The State has justified the plea of non-disclosure since the statement filed by the Union of India before the Single Judge, indicates that “the Ministry of Home Affairs has informed that denial of security clearance in the case on hand is based D on intelligence inputs, which are sensitive and secret in nature, therefore, as a matter of policy and in the interest of national security, MHA does not disclose reasons for denial.”
1313. The appellants initiated proceedings under Article 136 of the E Constitution against the judgment of the Division Bench of the High Court. By an order dated 15 March 2022, this Court after perusing the relevant files that were submitted before the High Court in a sealed cover granted an interim stay on the order of MIB dated 31 January 2022 by which the permission to operate the Media One channel was revoked. The relevant portion of the order is extracted below: F “6. In pursuance of the earlier direction, the files were produced in the Court.
7. Mr Dushyant A Dave, learned senior counsel appearing on behalf of the petitioners, assailed the approach of the High Court G in declining to disclose the contents of the files to the petitioners. Mr Dave pressed the application for interim relief and submits that there is no objection to this Court perusing the files. Accordingly, during the course of the hearing, the files have been perused by the Court. 10 AIR 2021 SC 5396 H
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A 8. At the present stage, we are of the view that a case for the grant of interim relief has been made out on behalf of the petitioners having due regards to the contents of the files 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 of the final disposal.” B. Submissions
1414. Mr Dushyant Dave, Senior Counsel appearing on behalf of F MBL made the following submissions: (i) The order issued by MIB revoking the permission granted to uplink and downlink the channel, Media One, is unconstitutional for the following reasons: G (a) Security Clearance is a pre-condition only for the grant of permission to operate the channel and not for the renewal of the existing permission. Under Clause 10.2 of the Uplinking Guidelines, the renewal of the existing permission is subject only to the channel not having been found guilty of violating the terms and conditions of the Programme and H Advertising Code on five occasions or more;
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(b) Without prejudice to the above argument, security A clearance cannot be denied on grounds that exceed the reasonable restrictions on the freedom of the press prescribed under Article 19(2) of the Constitution. The order revoking the permission refers to paragraph 9.2 of the Uplinking Guidelines. Paragraph 9.2 is a part of the B ‘procedure for obtaining permission’ which provides that an application for permission will be sent to the Ministry of Home Affairs for security clearance. The procedure to grant or refuse security clearance must be subject to the limitations prescribed in Article 19(2) of the Constitution read with Section 4(6) of the Cable Television Networks (Regulations) C Act 1995; and (c) Paragraphs 5.2 and 5.9 of the Uplinking Guidelines prescribe limited grounds of public interest and national security to suspend the permission granted for a specified period. D (ii) In 2011, MIB granted permission to operate Media One. It pre-supposes that security clearance as required under Paragraphs 9.3 and 9.4 of the Uplinking Guidelines was granted before the permission was granted. The security clearance was not withdrawn between 2011 and 2022. The E renewal should have been granted automatically, more so because the show cause notice does not allege any violation of the conditions set down under Paragraph 10.2 of the Uplinking Guidelines; and (iii) MBL was not provided access to the material which MIB F submitted before the High Court to support the allegations made in the show cause notice. The Union of India, by submitting material in a ‘sealed cover,’ and the High Court, by relying on it in the course of its judgment, negated the principles of natural justice. This procedure is violative of the principle of an open court and of fairness to parties. G
1515. Mr Huzefa A Ahmadi, senior counsel appearing on behalf of the editor, Senior Web Designer and Senior Camera Man of Media One11 made the following submissions: 11 SLP (C) No. 4331 of 2922 H
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A (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: B (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 C ‘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 produced before us”; and (d) This Court has consistently frowned upon the overbroad use of ‘national security’ to abridge fundamental rights. (ii) The doctrine of proportionality envisages that the least restrictive means for restraining fundamental rights ought to be used. (Anuradha Bhasin v. Union of India12 and KS Puttaswamy (9J) v. Union of India13) The Uplinking F and Downlinking Guidelines contemplate suspension of the licence to operate for varied time periods. The revocation of the permission was not the least restrictive means available at the disposal of MIB; and (iii) The High Court relied on material that was placed in a sealed cover to reject the challenge to the revocation order. This G course of action undertaken by the High Court violates the principles of natural justice.
12 (2020) 3 SCC 637 H 13 (2017) 10 SCC 1
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1616. Mr Mukul Rohatgi, senior counsel appearing for the Kerala A Union of Working Journalists14 submitted that the freedom of the press protected under Article 19(1)(a) of the Constitution is one of the most precious freedoms and must not be infringed callously. He contended that though the conditions for renewal of permission are different from the conditions for the grant of permission, the High Court applied the B same standard for both the grant of permission and renewal of license. On the disclosure of relevant material to the High Court in a sealed cover, it was submitted that if there was sensitive information in the material, the respondent could have redacted it before allowing the appellants to peruse the file. It was argued that the sensitivity of material cannot preclude the affected party from viewing the remaining portions. C
1717. Mr K M Nataraj, Additional Solicitor General appearing on behalf of the respondents made the following submissions: (i) Paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that security clearance is a pre-condition for renewal of license; D
(ii) MIB was justified in revoking the permission granted to Media One because MHA denied security clearance; and (iii) The principles of natural justice stand excluded when issues of national security are involved (Ex-Armymen (supra) E and Digi Cable (supra)). C. Issues
1818. The following issues arise in the course of determining the validity of the order issued by MIB refusing to renew the uplinking and downlinking permission granted to MBL to operate the television channel, F 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 G action adopted by the Division Bench of the High Court violated the appellants procedural guarantees under the Constitution; and
14 SLP (C) No. 4678 of 2022 H
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A (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.
1919. Before proceeding to the analysis, certain factual aspects need to be noticed. On 3 May 2021, MBL submitted an application for renewal B 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: C (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 MBL for ‘renewal’ of uplinking and downlinking permission.
2020. MIB issued a show cause notice stating that, MBL has “ceased to fulfil the eligibility requirement for ‘renewal’ of permission for uplinking and downlinking” due to the denial of security clearance. MBL was asked to show cause as to why the ‘permission granted to them should not be revoked or cancelled’. By its letter dated 31 January 2022, MIB E ordered that the permission granted to MBL to uplink and downlink Media One be ‘revoked’. Though the show cause notice stated that security clearance which is a requirement for ‘renewal’ of license is denied, MIB was asked to show cause as to why its license should not be ‘revoked’. A similar phraseology of ‘revocation’ was used in MIB’s order dated 31 January 2022. TheDivision Bench of the High Court in its judgment dated 2 March 2022 noted the inconsistency between the phraseology used in the ‘renewal’ application and ‘revocation’ order.
2121. The notice to show cause and the order of revocation refer to the ‘revocation of license’. However, both the former and the latter note that MBL has not fulfilled one of the conditions for renewal of license since it was denied a security clearance by the MHA. Counsel for the appellants have not made submissions on the inconsistency arising out of the use of the phrases ‘renewal’ and ‘revocation’ interchangeably. Thus, we will proceed on the understanding that the order of MIB dated 31 January 2022 rejected the application for renewal of the licence to operate the channel. H
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D. Requirement of security clearance for renewal of permission
2222. Paragraph 10 of the Uplinking Guidelines stipulates the conditions for renewal of existing permissions. According to paragraph 10, renewal of permission is to be considered for ten years, subject to the condition that the channel should not be found guilty of violating the terms and conditions of permission, including any violation of the programme and advertising code on five or more occasions. Paragraph 10.4 stipulates that the terms and conditions applicable at the time when permission is granted would be applicable at the time of renewal, subject to modifications made by the terms of the permission. The relevant paragraphs of the provision are extracted below: C
“ 10. RENEWAL OF EXISTING PERMISSIONS 10.2 Renewal of permission will be considered for a period of 10 years at a time, subject to the condition that the channel should not have been found guilty of violating the terms and conditions of D 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. […] E 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.” F
2323. 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 G 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 should not have violated the programme and advertisement code on five or more occasions; H
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A (ii) The channel should not have been found guilty of violating the terms and conditions of permission; and (iii) The channel must fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. B Condition 1: Violation of Programme Code
2424. Media One has not been found guilty of violating the programme and advertisement code on five or more occasions. On 28 February 2020, a show cause notice was issued by MIB alleging a violation of the Cable Television Network Rules 1994 and Programme Code of C the Cable Television Networks (Regulation) Act 1995 while telecasting reports on the violence which took place in North-East Delhi during the protests organised against the Citizenship (Amendment) Act 2019.
2525. By an order dated 6 March 2020, MIB in exercise of powers conferred by Section 20(2) and 20(3) of the Cable television Networks D (Regulation) Act 1995 and paragraphs 8.1 & 8.2 of the Uplinking Guidelines ordered the prohibition on the transmission and retransmission of Media-One channel for forty eight hours.
2626. However, by an order dated 7 March 2020, MIB directed that MBL may resume uplinking the channel Media One from 9.30 am on the same day. Other than this instance, there is nothing on record to indicate that Media One violated the Programme Code. Paragraph 10.2 of the Uplinking Guidelines states that the channel should not have violated the Programme Code on more than five occasions. The solitary incident of an alleged violation of the Programme Code does not fulfil the first condition of Paragraph 10 of the guidelines. Condition 2 and 3: requirement of security clearance for renewal of license
2727. Paragraph 10.4 of the Uplinking Guidelines stipulates that at the time of considering the application for renewal, the channel should fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. The terms and conditions that are applicable for the grant of permission are spread across the Uplinking and Downlinking Guidelines and are not concentrated in a specific paragraph or clause. Paragraph 2 of the Uplinking Guidelines (and paragraph 1 of the Downlinking Guidelines) prescribes the criteria of H
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eligibility applicable to applicant companies. The conditions, 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 C 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. D
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). E
[…]” (emphasis supplied)
2828. Paragraph 9.2 stipulates that an application which is found to be eligible would be sent to MHA for security clearance. Paragraphs 3 F and 9 indicate that upon the receipt of the application form, MIB will undertake an exercise to determine if the conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled. If the conditions are fulfilled, the application is sent to MHA for security clearance. Thus, Paragraph 9.2 prescribes a condition in addition to those stipulated in Paragraphs 2 G and 3 of the Uplinking guidelines.
2929. The heading of Paragraph 9,namely, “procedure for obtaining permission,’ does not detract from the prescription of a substantive condition. Paragraph 10.4 excludes the eligibility criteria of net worth of the company and managerial experience from the consideration of the H
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A renewal application. All other conditions prescribed by the guidelines for permission are applicable for renewal of permission. The requirement of security clearance arises at a stage subsequent to the fulfilment of conditions prescribed under Paragraphs 2 and 3. If the preliminary conditions prescribed are applicable at the time of renewal, there is no reason to exclude the application of the requirement of the security clearance for renewal of permission.
3030. Further, Paragraph 10. 4 of the Uplinking Guidelines stipulates that the conditions ‘as modified by the permission letter’ are applicable at the time of renewal of the license. The annexure to the ‘permission letter’ does not specify any condition modifying or eliminating the condition of security clearance. Rather, the annexure provides that the licence shall be revoked on grounds of ‘public order and national security’. Though in view of Paragraph 10 of the Uplinking Guidelines, the licensee does not have a vested interest for renewal of the permission, the grounds for denying a renewal of license cannot be materially different from the grounds for revoking the licence. This is because both non-renewal of license and revocationof license are restrictions on the right to freedom of press. The intent behind the exclusion of the eligibility criteria of net worth and managerial experience for the purpose of a renewal application is because the freedom of press cannot be restricted on grounds other than stipulations under Article 19(2) of the Constitution. Thus, Paragraph
E 10. 4 of the 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 F Uplinking and Downlinking of news channels. E. Judicial Review on procedural grounds
3131. 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 G 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 H Article 14 to include the guarantee against arbitrariness, the grounds for
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judicial review of administrative action have expanded. Administrative A action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety.15 This Court has also held that in addition to the above grounds, administrative action can be reviewed on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution. 16 B
3232. The principle of natural justice that is derived from common law has two primary facets- Audi Alterum Partem and Nemo Judex In Causa Sua. Audi Alterum Partem encapsulates the rule of fair hearing. Nemo Judex In Causa Sua encapsulates the rule against bias, that is, no person should be a judge of their own case. It is the case of MBL that MIB did not comply with the principle of Audi Alterum Partem because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. This, it is argued, infringes upon the right of MBL to a fair hearing. On the other hand, MIB contends that it was not required to comply with the principles of natural justice since the denial of security clearance is on a matter involving national security, which is an established exception to the application of the principles of natural justice.
3333. There are three important considerations that have to be answered in the context: (i) Whether the non-disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing, that is protected under Articles 14 and 21; (ii) Whether the infringement of the right to a fair hearing would render the decision void; and F (iii) If considerations of national security are an established exception to principles of natural justice, how should the court resolve the competing interests represented by the principles of natural justice and national security. G 15 See State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709; Tata Cellular v. Union of India, (1994) 6 SCC 651; and Council of Civil Service Unions v. Minister for Civil Service, (1985) A.C 374 16 See Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G. Ganayutham,
(1997) 7 SCC 463 H
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3434. This case presents the Court with an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between the two visions of either permitting a complete 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 B 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
3535. 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:
3636. Fair Outcome: Procedural rules are established to prevent the D 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’. E
3737. In Chief Constable of North Wales Police v. Evans17, the appellant was a probationary member of the North Wales Police Force. He was removed from the force without putting forth the allegations against him. The House of Lords set aside the decision on the ground that the non-disclosure of allegations was violative of the principles of natural justice. The Court cautioned that there was an extreme danger in proceeding without putting forth the allegations against him because the veracity of the allegations could never be tested: “As an example of the extreme danger of proceeding in this way, it must be observed that, as one of the two clinching matters which seem to have influenced him, the appellant says in his affidavit: “Further, it became known” (sic) “to senior officers that the applicant and his wife had lived a ‘hippy’ type life-style at Tyddyn Mynyddig Farm, Bangor.” This had never been put to the respondent at all, and had the appellant or his deputy to whom he H 17 (1982) 1 WLR 1155
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delegated the inquiry taken the trouble to ask the respondent about A it, he would have discovered at once that this allegedly clinching allegation was palpably untrue, and simply the result of a mistaken address. It was, in short, an utterly incorrect statement relied upon precisely owing to the failure of natural justice of which complaint is made.” B
3838. Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end in itself. Fair procedure induces equality in the proceedings. The proceedings ‘seem’ to be and are seen to be fair. In Kanda v. Government of Malaya18, an Inspector of Police challenged his dismissal on the ground that the disciplinary proceedings were not conducted in accordance with the principles of natural justice. It was contended that he did not have knowledge of the contents of the enquiry report that was before the adjudicating officer. The crux of the case was whether his lack of knowledge of the contents of the report led to a likelihood of bias – both conscious and unconscious. The Court held that the likelihood of bias test cannot be solely used to determine the violation of natural justice. The Court held that it is not necessary that the accused must prove bias or prejudice. Rather, it is sufficient if the non-disclosure would lead to a possibility of bias and prejudice since “no one who has lost a case will believe he has been fairly 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.
3939. 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.19
4040. 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 18 (1962) 28 MLJ 169 19Mark Elliotts, Jack Beatson, Martin Mathews, Administrative Law: text and Materials (3 rd ed. Oxford University Press) H
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A about what is done with one’.20 D.J Galligan in his book “Due Process and Fair Procedures: A Study of Administrative Procedures”21 explains that to insist on fair treatment is implicit on a renewed understanding of the relationship between citizens and the State: “ It builds on the idea of decision-making as a social process rather B than a purely logical activity, on the inherent indeterminacy and contingency of standards… to insist on fair treatment of persons by administrative bodies is to draw on those implicit commitments and understandings at the very base of the relationship between the citizen and the State.” C TRS Allan argues that more often than not, the right outcome is itself a matter of controversy. It is possible to arrive at divergent views, both of which are reasonable. He argues that when procedures allow the genuine participation and contestation of ideas, a citizen is treated with respect and dignity that they deserve in a society that is governed by the rule of law.22 D
4141. Indian Courts have been significantly influenced by the courts in England on the interpretation, application, and content of natural justice, primarily because the principles are derived from common law and are grounded in the rule of law. The jurisprudential developments across other common law jurisdictions relating to the principles of natural justice E usually, if not always, spill over to Indian jurisdiction. Our Courts were soon to follow suit when the courts in England made a functional distinction between executive and non-judicial23 actions and between an action that deprives rights and an action that deprives privilege24 for deciding the applicability of the principles of natural justice. In Ridge v. Baldwin25, F the House of Lords repudiated the functional distinction based on the nature of the adjudicating body and held that the duty to act judicially in compliance with the principles of natural justice can be inferred from
Footnotes
Studies) p. 510 23 The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff, (1920) 3
K.B. 72 24 Nakkuda Ali v. MF De S Jayaratne, [1951] AC 66
H 25 [1964] A.C 40
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the nature of the decision and not the nature of the decision-making body. Courts have with time 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”.26
4242. 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’27 and that it is incapable of a ‘precise definition’28. Courts have undertaken an ends-based reasoning to test if the action violates the common law principle of natural justice29. 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.30 The courts, while assessing prejudice, determine if compliance of the principles of natural justice could have benefitted the party in securing a just outcome. It needs to be seen if this content of natural justice and the standard for judicial review of non-compliance has undergone a change after principles of natural justice were constitutionalized in Maneka Gandhi v. Union of India31 . E E. 2 Constitutionalizing principles of natural justice: the impact of Maneka Gandhi
4343. Two jurisprudential developments on the interpretation of Part III of the Constitution must be noticed to understand the impact of constitutionalising the principles of natural justice. The first, is the F expansion of the meaning of the expression ‘procedure established by
26 Justice Bhagwati in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (paragraph 9) 27 NK Prasada v. Government of India, (2004) 6 SCC 299
28 Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC G 258 29 Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court:
Natural Justice and Fundamental Rights, (Volume 16, Issue 2, International Journal of Constitutional Law, 2018, p. 475–502 30 NK Prasada (n 27)
31 Maneka Gandhi (n 26) H
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A law’ as it finds place in Article 21 of the Constitution to include procedural due process. The second, is the shift from reading the provisions of Part III of the Constitution as isolated silos to understanding the overlapping tendencies of fundamental rights.
4444. In AK Gopalan v. State of Madras32, the appellant contended B that the phrase ‘procedure established by law’ as it finds place in Article 21 includes within its ambit the principles of natural justice. While the majority rejected this contention, Justice Fazl Ali in his celebrated dissent held that the expression ‘procedure established by law’ cannot be given a limited meaning. The learned Judge observed that the phrase must include procedural due process which includes (i) issuance of a notice C (ii) an opportunity to be heard; (iii) an impartial tribunal; and (iv) an orderly course of procedure. Justice Fazl Ali’s opinion was followed by this Court in Maneka Gandhi (supra). In Maneka Gandhi (supra), it was held that the life and liberty of a person cannot be restricted by any procedure that is established by law but only by a procedure that is just, fair, and reasonable. In that case, the appellant challenged the order of the Regional Passport Officer impounding her passport. The impounding order did not disclose the reasons 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.
4545. 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 G of India33 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
32 AIR 1950 SC 27 H 33 (1970) 1 SCC 248
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procedure that is contemplated by Article 21. Thus, every individual has A a right to a reasonable hearing: “[..] we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21. […] The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.” This Court held that principles of natural justice infuse reasonableness into the procedure. However, the court noted that the principles of natural justice are not set-in stone and are by their very nature modifiable. So, the violation of every conception of natural justice will not necessarily render the procedure unreasonable and violative of Articles 21 and 14. The court held that the test that must be followed to determine if non-compliance of natural justice has led to an unreasonable procedure is whether the procedure that was followed (or the procedure that was not followed) violates the core of the primary tenets of natural justice- the right to a fair hearing34 and the right against bias.
4646. On the facts of the case, Justice Bhagwati held that the procedure for impounding a passport under the provisions of the Passport Act 1967 was fair and just. The learned Judge held that the denial of pre-decisional hearing was justified because otherwise, the purpose of impounding the passport which is to take prompt action would be defeated, and that the exceptional circumstances reasonably justified the departure from the settled principle of pre-decisional hearing.
4747. The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In view of this shift, 34 See Zahira Habibulla H Sheikh v. State of Gujarat, (2004) 4 SCC 158, where this
Court recognized the right to fair trial. H
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A the Courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case.35 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 B into an enactment to save it from being declared unconstitutional on procedural grounds.36 Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees C a reasonable procedure which is a constitutional requirement entrenched in Articles 14,19 and 21. The facet of audi alterum partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness. The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing.37 E. 3 Standard to test reasonableness of procedure: proportionality as reasonableness
4848. Once the applicant proves that the procedure that was followed was not reasonable with reference to the core of the principles of natural justice, the burden shifts on the State to prove that the limitation of the right is justified and reasonable. The State usually claims that the limitation of the right is justified because following a fair procedure would, inter alia, be prejudicial to public interest. What standard of review should the courts employ to test the reasonableness of the limitation? Rights 35 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. 36 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 37 See paragraph 12 of Justice Bhagwati’s judgment in Maneka Gandhi. H
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are not absolute in a constitutional democracy. The jurisprudence that has emanated from this Court is that rights can be limited but such a limitation must be justified on the ground of reasonableness. Though, only Article 19 of the constitution expressly prescribes that the limitation must be reasonable, after the judgments of this Court in RC Cooper (supra) and Maneka Gandhi (supra) it is conclusive that the thread of reasonableness runs through the entire chapter on fundamental rights guiding the exercise of procedural and substantive limitations. That leaves us to answer the question of the standard used to assess the ‘reasonableness’ of the limitation. The text of the Constitution does not prescribe a standard of review. Much ink has flowed from this Court in laying down the varying standards to test reasonability: rationality, C Wednesbury unreasonableness, proportionality, and strict scrutiny.
4949. Reasonableness is a normative concept that is identified by an evaluation of the relevant considerations and balancing them in accordance with their weight.38 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. 39 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 proportionality40. The link between reasonableness and proportionality and the necessity of using the proportionality standard to test the limitation on fundamental rights has been captured by Justice Jackson in the course of the Canadian Supreme Court’s judgment in R v. Oakes41: “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for F a limit on a Charter right or freedom are designed to serve, must be “of” sufficient importance to warrant overriding a constitutionally protected right or freedom...Second … the party 38Aharon Barak, Proportionality: Constitutional Rights and their limitations (Cambridge University Press, 2012), 374. G 39 Giacinto della Cananea, Reasonableness in Administrative law in Reasonableness
and Law (ed. by Giorgio Boniovanni, Giovanni Sartar, Chiara Valentini) 40 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 41 (1986) 1 SCR 103; This passage was quoted with affirmation in the judgment of the
Constitution bench in Modern Dental. H
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