MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS.

p. 640 Copy page pinpoint

A invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test.” (emphasis supplied)

50Copy pinpoint50. The proportionality analysis assesses both the object and the B 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.42 However, the courts have till date used the proportionality standard to only test the infringement of C a substantive right such as the right to privacy protected under Article 21, and the freedoms protected under Article19. Courts have been using a vague and unstructured standard of the reasonableness test to assess the validity of limitations on procedural due process.

51Copy pinpoint51. We are of the opinion that the standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well. The courts have to undeniably undertake a balancing exercise while deciding if the limitation on the right is valid. A three- Judge Bench of this Court in MH Hoskot v. State of Maharashtra43, observed that procedural reasonableness does not have an abstract standard of reasonableness. It must be assessed on the touchstone of numerous factors. The factors list the considerations that are undertaken in the balancing stage. The relevant observations are extracted below: “28. […] The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.”52 G The judgments of this Court in Justice KS Puttaswamy (9J) (supra) and Modern Dental College & Research Centre v. State of Madhya Pradesh44, establishing the proportionality

42 Om Kumar (n 16) ; Teri Oat Estates (P) Ltd. V. UT, Chandigarh, (2004) 2 SCC 130. 43 (1978) 3 SCC 544 44 (2016) 7 SCC 353 H

p. 641 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

standard to test the reasonableness of the infringements on substantive rights do not preclude the application of the proportionality standard to test the reasonableness of limitations on procedural guarantees. The standard of proportionality infuses a culture of justification, where the State has to discharge the burden of justifying that its action was reasonable and not arbitrary.45 Once the principle of reasonableness is read into procedural requirements, there is no reason for the court to use different standards to test the reasonability of substantive and procedural actions. F. Infringement of MBL’s right to a fair hearing C

53Copy pinpoint53. MBL contends that the principles of a reasoned order, disclosure of relevant material, and open justice have been infringed by the order of the MIB and the judgment of the High Court. It is contended that the abrogation of these three principles infringe upon the right to a fair hearing which constitutes the core of the procedural requirements protected under Article 21: D

(i) Reasoned order: In the present case, the notice to show cause states that MHA has denied security clearance to MBL to operate its channel, Media One. However, it does not mention the reasons for the denial of security clearance. Further, the order dated 31 January 2022 denying the E permission for renewal of license also does not provide reasons for the denial of security clearance. In such circumstances, MIB was put in a precarious position without any actual recourse to defend the case against them; (ii) Disclosure of material relevant to the decision: MHA F declined to disclose any material that was relevant to its decision. The claim of non-disclosure of relevant documents by MHA was not limited to a few ‘top secret’ documents. Rather, all documents that were relevant to the decision have not been disclosed; and G (iii) Open Justice: MHA disclosed the documents in a sealed cover to the High Court. The High Court dismissed the writ petition by relying on the material that was disclosed 45See Justice Chandrachud’s opinion in Justice KS Puttaswamy (5J) v. Union of India (5 J), (2019) 1 SCC 1 (para 310) H

p. 642 Copy page pinpoint

A solely to it in sealed cover. The relevant material is not removed from the proceedings. The material is only removed from the affected party’s docket. The party defending its actions, which most often is the State, and adjudicating authority rely on the material while making arguments and while reaching a finding respectively. B

54Copy pinpoint54. An ancillary question that must be answered at this stage is whether the three alleged procedural infractions have to be individually or collectively assessed to decide if the right to a fair and reasonable hearing is violated. We are of the opinion that the court must determine if the procedure that was followed as a whole is fair and reasonable. C After the judgment of this court in Maneka Gandhi (supra), where this court prioritised the process (and the effect of the process) as opposed to the outcome (and the objective of the outcome), it is sufficient if the affected party proves that the procedure that was followed by the adjudicating authority was not procedurally fair and reasonable without any reference to the impact on the outcome due to non-compliance. While doing so, it is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed. However, the court while undertaking the exercise of assessing the validity of such a claim must view violation claims from a holistic procedural perspective. This is for the simple reason that the principles of natural justice are mouldable. The requirement of procedural fairness “does not impose a uniform, unvarying standard to be applied irrespective of the context, facts, and circumstances. 46 Adjudicatory bodies must be provided sufficient flexibility in deciding procedural requirements. As observed above, a non-compliance of every facet and component of natural justice does not render the procedure unreasonable. The claimant must prove that the effect of non-compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed while making an argument from a component-facet perspective. The procedure followed must not infringe upon the core which secures reasonableness of a procedure. G

55Copy pinpoint55. The appellants have discharged their burden by proving that the non-compliance of the above three principles infringed the core of the principles of natural justice: the right to a fair and reasonable hearing.

H 46 A & Ors. v. The United Kingdom, Application no. 3455/05

p. 643 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

56Copy pinpoint56. 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. It holds utmost significance in ensuring fairness; scholars and courts now term it as the third principle of natural justice.47 The rule of a reasoned order serves five important purposes. Firstly, it ensures transparency and accountability. It places a check on arbitrary exercise of power. Lord Denning observed that in giving reasons “lies a whole difference between a judicial decision and an arbitrary one”.48 Justice Bhagwati observed in Maneka Gandhi (supra) that the rule is “designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case.” Secondly, non-reasoned orders have the practical effect of placing the decision out of the purview of judicial review. A non-reasoned order limits the power of the courts to exercise judicial review because the scope of judicial review is not limited to the final finding on law or facts but extends to the reasons to arrive at the finding. A limitation on the right to appeal necessarily means that the scope of judicial review is restricted. Thirdly, articulation of reasons aids in arriving at a just decision by minimalizing concerns of arbitrary state action.49 It introduces clarity of thought50 and eschews irrelevant and extraneous considerations. Fourthly, it enhances the legitimacy of the institution because decisions will appear to be fair. There is a higher probability that the finding through a reasoned order is just. Fifthly, reasoned orders are in furtherance of the right to information and the constitutional goal of open government. Secrecy broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law.

57Copy pinpoint57. On the facts of the case, MIB has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue 47 See SN Mukherjee v. Union of India, (1990) 4 SCC 594; Seimens Engineering and G Manufacturing Company v. Union of India, (1976) 2 SCC 981; CCI v. SAIL (2010) 10 SCC 744; Kranti Associates v. Masood Ahmed Khan, 2010 9 SCC 496 48 Sir Alfred Denning, Freedom Under the Law (Stevens and Sons 1949) p. 92

49 Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Dharan Varshney, (2009) 4 SCC

240 50 State of West Bengal v. Alpana Roy, (2005) 8 SCC 296 H

p. 644 Copy page pinpoint

A to challenge the decision. This infringes upon the core of a right to fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision. B

58Copy pinpoint58. 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.

59Copy pinpoint59. 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”.51 The right to seek judicial review which has now been read into Articles 14 and 21 is restricted. A corresponding effect of the sealed cover procedure is a non-reasoned order. In Commander Amit Kumar Sharma v. Union of India52, one of us (DY Chandrachud, J) G speaking for the court commented on the procedural infirmities which the procedure of sealed cover perpetuates: “27. The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding 51 Charkaoui v. Canada (Citizenship and Immigration), (2007) 1 S.C.R 350 H 52 (2022) SCC OnLine SC 1570

p. 645 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed. A one- sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.

28. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a E litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. F The sealed cover procedure affects the functioning of the justice delivery system both at an individual case to - case level and at an institutional level.”

60Copy pinpoint60. Upon a perusal of the material in sealed cover, the Single Judge of the High Court observed that the files submitted by MHA G indicate that the Committee of Officers 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.” The Single judge observed that “in those circumstances, the Committee of Officers advised not to renew the licence”. The Single Judge does not provide any clarity on the H

p. 646 Copy page pinpoint

A nature of the ‘inputs that were of a serious nature’. Additionally, there is no mention of the security rating parameters that have been relied on. A non-reasoned order perpetuates the non-application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed.

61Copy pinpoint61. On appeal, the Division Bench of the High Court observed that though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the state and public order would be impacted if the permission granted to MBL to operate the channel is renewed. The Division Bench has also not disclosed the reasons for the denial of security clearance. There is no explanation of what weighed in the mind of the court leading it to hold that the denial of clearance was justified despite observing that the nature and gravity of the issue is not discernible. The sealed cover procedure followed by the Single Judge and the Division Bench have necessarily rendered the appellant’s right to writ remedies, which has been described as the ‘heart and soul’ of the Constitution53 and a basic feature of the constitution54, a dry parchment. The non-disclosure of reasons for the denial of security clearance which is the sole ground for denying the permission to renew the license and the disclosure of relevant material only to the court in a sealed cover has rendered the appellant’s procedural guarantees under the Constitution otiose. The appellants’ right to writ remedies has been denied through a formalistic order by the High Court. The procedure that was followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark. The non- disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of the natural justice - the right to a fair and reasonable proceeding. G. Whether the infringement of MBL’s right to a fair hearing is justified

62Copy pinpoint62. The ASG in the statement filed before the High Court stated that the reasons for denial of security clearance cannot be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are ‘secret and sensitive’; and (ii) in the interest of national security. It has thus been submitted that the principles of natural justice 53 Dr BR Ambedkar, Constituent Assembly of India Debates (Vol. VII, 9 December 1948 H 54 L. Chandra Kumar v. Union of India, (1995) 1 SCC 400

p. 647 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

stand abrogated because: firstly, the decision is based on intelligence inputs which are ‘sensitive’ in nature from security and intelligence agencies; and secondly, these inputs are in the interest of national security. The Union of India has relied on the judgments of this Court in Ex- Armymen’s Protection Services (supra) and Digi Cable Network (supra) to contend that the principles of natural justice will not apply when considerations of national security are involved. The validity of this argument has to be assessed before deciding if the State has discharged its burden justifying that the infringements on procedural guarantees are reasonable. G. 1 Natural justice and national security: decisions in Digi and Ex-armymen C

63Copy pinpoint63. In Ex-Armymen’s Protection Services (supra), the appellant was granted the business of ground handling services. Rule 92 of the Aircraft Rules 1937 stipulates that the business shall be provided subject to security clearance. The appellant was informed that security clearance was withdrawn on grounds of ‘national interest’. The appellant initiated proceedings under Article 226 of the Constitution before the High Court of Patna. The writ petition was disposed with a direction that the appellant should be furnished materials that were relied on by the Central Government for withdrawal of security clearance. However, the Central Government passed an order that the documents in the file were classified as ‘secret’ and could not be shared with the appellant. The documents were placed in a ‘sealed cover’ before the Single Judge of the High Court. On a perusal of the documents, the Single Judge directed that a gist of the allegations be disclosed. The Division Bench of the High Court allowed the appeal and held that the materials could not be disclosed to the appellant in national interest. The appellant initiated proceedings under Article 136. A two-Judge Bench of this Court dismissed the proceedings. Justice Kurian Joseph writing for the Bench observed that if concerns of national security are involved, then the party cannot ‘insist on the strict observance of the principles of natural justice’. It was further observed that it is open to the Court to satisfy itself that the claim of the government that national security is involved is indeed true. This Court relied on the judgments in the Zamora55 and Secretary of State for Home Department v. Rehman56 to hold that 55 (1916) 2 AC 77(PC) 56 (2003) 1 AC 153 H

p. 648 Copy page pinpoint

A deference must be given to the Government’s decision when it is of the opinion that issues of national security are involved. However, it was held that the Court may call for records to satisfy itself that issues of national security are involved. Further, the judgment in Council of Civil Service Unions v. Minister of Civil Service57 was relied on to hold that strict observance of the principles of natural justice may not be possible when national security is involved. It is important to note that this Court did not decide on the factual considerations in the matter because the security clearance that was granted to the appellant had already expired. The relevant observation is extracted below: “16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122 (HL)] : (AC p. 192C) D “… [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.

H 57 1985 AC 374

p. 649 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

18. Be that as it may, on facts we find that the security clearance granted to the appellant by order dated 17-4-2007 for a period of five years has already expired. To quote: “I am directed to inform you that background check on the company has been conducted and nothing adverse has been found. The Company’s security clearance shall be valid for a period of five years from the date of this letter at the end of which a fresh approval of this Bureau is mandatory.” (emphasis supplied)

19. In that view of the matter, it has become unnecessary for this Court to go into more factual details and consideration of the appeal on merits. The same is accordingly disposed of. There is no order as to costs.” (emphasis supplied)

64Copy pinpoint64. In Digi Cable Network (supra), the permission that was granted to the appellant for operating as a Multi-Systems Operator in the Digital Addressable System was cancelled on the ground that MHA denied security clearance to the appellant. The High Court rejected the challenge to the order of cancellation. The Additional Solicitor General filed a copy of the reasons for the denial of security clearance in a sealed cover before this Court. A two-Judge Bench of this Court dismissed the appeal by relying on the judgment in Ex-Armymen’s Protection Services (supra) holding that the appellant was not entitled to claim any prior notice before the order cancelling the permission was passed : “16. Having perused the note filed by the Union of India, which resulted in the cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question.

17. In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in Ex-Armymen’s Protection Services (P) Ltd. Inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission.”

65Copy pinpoint65. The observation in Ex-Armymen’s Protection Services (supra) that what is in national security is a question of policy and not H

p. 650 Copy page pinpoint

A law for the courts to decide was affirmed in the majority opinion in Justice KS Puttaswamy (5J) v. Union of India58 while deciding on the constitutional validity of Section 33 of the Aadhar Act.

66Copy pinpoint66. It must be noted that this Court in Ex-Armymen’s Protection Services (supra) referred to a series of judgments from the Courts in B the United Kingdom to elucidate the principle that the government is best placed to decide whether national security concerns are involved; and that principles of natural justice may not be complied with when issues of national security are involved. The evidentiary principle laid down by the Courts in the United Kingdom needs to be elucidated in order to understand the scope of the observations in Ex-Armymen’s C Protection Services (supra).

67Copy pinpoint67. In The Zamora (supra), a ship that was captured contained contraband in the cargo. The cargo belonged to the Austrian Government, and was imported into Sweden. The ship was chartered to a German, who was acting as an agent for the Austrian Government, and the Swedish D consignees were merely playing a part in the transaction. The right to requisition exists in international law, that is, the right to requisition vessels pending a decision on whether it must be condemned or released. One of the limitations to the right to requisition is that vessels must be urgently required in the defence of the realm or for matters involving national security. It was in this context that the Privy Council made the widely cited observation that: “With regard to the first of these limitations, their Lordships are of the opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which is sought to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact. […] G Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.”

58 (2019) 1 SCC 1 H

p. 651 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

However, the Court put the affidavit that was filed by the Director A of Army Contracts claiming exception to the right to requisition on the grounds of national security to the test of reason. It was observed that there was ‘no satisfactory evidence’ that such a right was exercisable: “In their Lordships’ opinion the order appealed from was wrong, not because, as contended by the appellants, there is by international law no right at all to requisition ships or goods in the custody of the Court, but because the judge has before him no satisfactory evidence that such a right was exercisable. The affidavit of the Director of Army Contracts, following the words of Order XXIX, merely states that it is desired on behalf of His Majesty to requisition the copper in question. It does not state that the copper is urgently required for national purposes. Further, the affidavit of Sven Hoglund, which is unanswered, so far from showing that there was any real case to be tried, suggests a case for immediate release.” (emphasis supplied) D

68Copy pinpoint68. In Council of Civil Service Unions (supra), the Minister of Civil Service released an instruction that employees of the Government Communications Headquarters cannot be a part of trade unions. This decision was challenged on the ground that the employees and the trade unions were not consulted before the instruction was issued. It was E submitted that it was a well-established practice for the trade unions to be consulted before conditions of service are altered.

69Copy pinpoint69. The Government Communications Headquarters is a branch of the Foreign and Commonwealth Office which ensures the security of the United Kingdom military, and provides intelligence signals for the F Government. The respondent defended its action on the ground that because “prior consultation would involve a real risk that it would occasion the very kind of disruption [at GCHQ] which was a threat to national security and which it was intended to avoid.” The House of Lords observed that generally the decision of whether the requirements of G national security outweigh the duty of fairness is for the Government and not the courts to decide. However, this observation was qualified. It was held that the Government is under an obligation to produce evidence that the decision was based on the grounds of national security which warranted the departure from the rule of fairness if the decision is H

p. 652 Copy page pinpoint

A successfully challenged on the ground that it was arrived by an unfair process: “The question is one of evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security. Authority for both these points is found in The Zamora [1916] 2 A.C. 77.” On a perusal of the evidence on record, the Court was satisfied that the departure was justified because it involved national security concerns. D

70Copy pinpoint70. Lord Scarman in his opinion observed that the observations in The Zamora (supra) were not indicative of an abdication of judicial function but were an indication that evidence was required by the Court. In this context, it was observed that it has to be established by evidence that the interest of national security arises in judicial proceedings: E “My Lords, I conclude, therefore, that where a question as to the interest of national security arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury is required by law to be satisfied that the interest is proved to exist: in others, the interest is a factor to be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to

p. 653 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review.” (emphasis supplied) On a perusal of the evidence, it was held that work at the headquarters involved matters of grave national security, and that if the employees and trade unions were consulted before the decision then the security would have been compromised. Lord Scarman observed that the Minister did not consult the employees because she feared that a union-organised disruption of services could occur. It was held that this conclusion by the Minister could have been reached reasonably.

71Copy pinpoint71. In Rehman (supra), the appellant, a Pakistani National whose parents were British citizens, applied for indefinite leave to remain in the United Kingdom. The Secretary of State refused his application on the ground that he was involved with a terrorist organization. The Secretary of State also added that his deportation from the United Kingdom would be conducive to public good and ‘in the interests of national security’. D The Special Immigration Appeals Commission allowed the appeal against the decision of the Secretary of State observing that the standard of civil balance of probabilities had not been satisfied. The Commission observed that though it was not disputed that the appellant provided sponsorship, information and advice to persons going to Pakistan for training which may have included militant training, it could not be concluded that these actions constituted a threat to ‘national security’. The Court of Appeal allowed the appeal against the judgment of the Commission.

72Copy pinpoint72. The appeal against the judgment of the Court of Appeal was dismissed by the House of Lords. Lord Slynn of Hadley observed in his opinion that: (i) where the liberty of the person and the opportunity of his family to remain in the country are at stake, and when specific actions which have already occurred are relied on, then it is fair that the civil standard of proof is applied; (ii) when the Secretary of State decides that a person must be deported for public good, he is entitled to have precautionary and preventive principles. There must be material on the basis on which he can reasonably and proportionately conclude that there is a real possibility that that the activities harm national security; (iii) the Secretary of State is in the best position to assess the security threat. Due weight must be given to his assessment. However, his decision is open to review on the above two grounds; and (iv) It was held in H

p. 654 Copy page pinpoint

A Council of Civil Service Unions (supra) that if it is contested that the deportation was not based on the grounds of national security, then the Government must produce evidence to satisfy the Court that the decision is based on the grounds of national security. However, ‘that is not the issue in the present case’.

73Copy pinpoint73. Lord Hoffman in his opinion observed that the Commission cannot differ from the opinion of the Secretary of State on the meaning of national security. That is, the question of whether for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security is for the Government to decide. Relying on the judgment in Council of Civil C Service Unions (supra), it was held that the decision on the validity of deportation is not conceded to the Secretary of the State. The Commission has to determine (i) the factual basis for the executive’s opinion that deportation would be in the interests of national security’; (ii) if the decision of the Secretary of the State was one which a reasonable minister would have arrived at; and (iii) any other legal defence that was available to the appellant. The relevant observations are extracted below:

54. This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to “defeat the purpose for which the Commission was set up”: see the Commission’s decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler’s case in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive’s opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the G Commission to say that there was no factual basis for the Home Secretary’s opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission’s ability to differ from the Home Secretary’s evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the H

p. 655 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

separation of powers. The effect of the latter principle is only, A subject to the next point, to prevent the Commission from saying that although the Home Secretary’s opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the B Commission may reject the Home Secretary’s opinion on the ground that it was “one which no reasonable minister advising the Crown could in the circumstances reasonably have held”. Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative. (emphasis supplied) E

74Copy pinpoint74. The following principles emerge from the above judgements: (i) The party affected by the decision must establish that the decision was reached by a process that was unfair without complying with the principles of natural justice; F (ii) The State can claim that the principles of natural justice could not be followed because issues concerning national security were involved; (iii) The Courts have to assess if the departure was justified. For this purpose, the State must satisfy the Court that firstly, G national security is involved; and secondly, whether on the facts of the case, the requirements of national security outweigh the duty of fairness. At this stage, the court must make its decision based on the component of natural justice that is sought to be abrogated; and H

p. 656 Copy page pinpoint

A (iv) While satisfying itself of the national security claim, the Courts must give due weightage to the assessment and the conclusion of the State. The Courts cannot disagree on the broad actions that invoke national security concerns - that is, a question of principle such as whether preparation of terrorist activities by a citizen in a foreign country amounts B a threat of national security. However, the courts must review the assessment of the State to the extent of determining whether it has proved through cogent material that the actions of the aggrieved person fall within the principles established above.

75Copy pinpoint75. The contention of the respondent that the judgment of this Court in Ex-Armymen’s Protection Services (supra) held that the principles of natural justice shall be excluded when concerns of national security are involved is erroneous. The principle that was expounded in that case was that the principles of natural justice may be excluded D 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. 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. E Firstly, the State must satisfy the Court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified. These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard. The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs. G.2 Application of the proportionality standard

76Copy pinpoint76. Having held that the concerns of national security do not permit an absolute abrogation of the principles of natural justice, we are now required to assess if the restriction on procedural guarantees is reasonable on an application of the proportionality standard. The proportionality standard as laid down by this Court in Modern Dental (supra) is as follows: (i) The measure restricting a right must have a legitimate goal (legitimate goal stage). H

p. 657 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

(ii) The measure must be a suitable means for furthering this A goal (suitability or rational connection stage). (iii) The measure must be least restrictive and equally effective (necessity stage). (iv) The measure must not have a disproportionate impact on the right holder (balancing stage). B

G. 2 (a) Legitimate Goal Stage

77Copy pinpoint77. This prong requires an analysis of the legitimacy of the aim that restricts rights. The aim must be of sufficient importance to override fundamental rights. At this stage, the State is required to discharge the burden of proving that the action is in furtherance of an aim that is legitimate. The State is also required to discharge the additional burden of proving that the action is indeed in furtherance of the legitimate aim that is contended to be served. The Union of India claims that the reasons and the documents cannot be disclosed in the interest of national security and confidentiality of intelligence inputs. The State at this stage is required to prove that confidentiality and national security are legitimate aims, and that the purposes of confidentiality and national security are served by non-disclosure.

78Copy pinpoint78. At this stage, the court has to examine the threshold question whether in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action.59 The criteria for determining proper purpose differs from one legal system to another. For instance, the South African Constitution prescribes a general limitation clause which prescribes the general grounds to limit all fundamental rights.60 The Indian Constitution does not prescribe a general limitations’ F clause. A few of the provisions in Part III such as Article 19 and 25 have a specific purpose based limitation clause. This does not mean that the provisions that do not have an express limitation clause are absolute. Other rights that do not have an express limitation clause can be limited through an implied reading of the provisions of the Constitution. Our constitutional jurisprudence does not accept the theory that constitutionally G protected rights live and survive in contextual isolation. Each is linked to 59Aharon Barak (n 38) 247; Justice Sikri in Modern Dental (paragraph 55) 60Article 26(1) states that the limitation on human rights should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. H

p. 658 Copy page pinpoint

A the other. Hence, the entire text has to evolve in meaning and content with the canvas which bears the tapestry.

79Copy pinpoint79. Aharon Barak argues that one of the accepted grounds of proper purpose for the limitation of rights is public interest (or public good).61 Though the existence of such a purpose is never in contention, the content of public interest is unclear. Public interest, he argues, must reflect the notions of justice and tolerance shared by the society. The courts while identifying if the purpose is legitimate must not fall into the den of dominant impulses but instead prioritise purposes in furtherance of constitutional ideals and values. However, the court must necessarily be cautious to not cross the thin line between adjudication and policy making. Certain purposes are absolutely antithetical to public interest in a constitutional democracy. The Constitution, as we all know, is a living document. Its meaning and the values it espouses develop with time. The court while determining the purpose must be cognizant of such developments and must read the Constitution in the socio-political context D – bearing in mind both history and the prospect of societal change at the time of interpretation.

80Copy pinpoint80. The Constitution prescribes national security as one of the grounds which can be used to reasonably restrict rights expressly in the context of Article 19. Further, other provisions of the Constitution prescribe E a departure from principles during emergency situations that impact national security.62 Similarly, informational privacy and confidentiality are now values that have been read into the Constitution, particularly in view of the decision of a nine Judge Bench in Justice KS Puttaswamy (9J) (supra) and the enactment of the Right to Information Act 2005. Thus, confidentiality and national security are legitimate goals recognised by the Constitution for the purpose of limiting procedural rights. (I) Confidentiality and IB Reports

81Copy pinpoint81. The state has to now prove that these are the two purposes that the state action seeks to serve. MHA in response to MBL’s request for disclosure of reasons for denial of security clearance states that the reasons cannot be disclosed because reports from investigative agencies are “secret” in nature. MHA has made a general claim that all reports of the investigative agencies are confidential. We are unable to accept 61 Aharon Barak (n 38 ) 289 H 62 Article 359 of the Constitution

p. 659 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

such an argument. Investigative agencies such as the CBI and IB are required to conduct background checks on innumerable personnel and entities for a multitude of reasons. The interaction between private individuals and the State has increased by virtue of which the involvement of intelligence agencies has also proliferated. The reports of the intelligence agencies are not merely fact-finding reports. As it would be evident from the extractions of the material below, reports of investigative agencies make observations and provide inferences on the conduct of individuals which are then relied upon by the decision making authority. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that the all such reports are 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. (II) National Security D

82Copy pinpoint82. The MHA also opined that the relevant material must not be disclosed in the interest of national security. The issue before us is whether the court can judicially review this inference, and if it can, the extent of such review. We must refer to the jurisprudence on the extent of judicial review of national security claims before assessing if the action serves the purpose of national security.

83Copy pinpoint83. It is now settled that the Courts do not resort to a hands-off approach when it is claimed that national security implications are involved. In Manohar Lal Sharma v. Union of India63, a three-Judge Bench of this Court held that though the extent of judicial review in matters concerning national security is limited, it does not mean that the State gets a free pass every time the argument of national security is made. This Court held that the State must plead on affidavit and prove that disclosure of information would injure national security. The court observed: G “50. Of course, the Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent 63 2021 SCC OnLine SC 985 H

p. 660 Copy page pinpoint

A on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Respondent-Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept in secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator.” The issue is not whether the inference that national security concerns are involved is judicially reviewable. It is rather on the standard of proof that is required to be discharged by the State to prove that national security concerns are involved. It is necessary that we understand the meaning and implications of the term national security before embarking on an analysis of the issue. This Court has held that it is not possible to define national security in strict terms.64 National security has numerous facets, a few of which are recognised under Article 19(2) D of the Constitution. In Ex-Armymen’s Protection Services (supra), a two-Judge Bench of this Court observed that the phrase national security would include factors like ‘socio-political stability, territorial integrity, economic stability and strength, ecological balance cultural cohesiveness and external peace. Justice Patanjali Sastri writing for the majority in Romesh Thappar v. State of Madras65 demarcated the fields of ‘public E order’ and ‘security of state’ as they find place in Article 19 of the Constitution. This Court held that the expression ‘security of the state’ was defined to include a ‘distinct category of those offences against public order which aim at undermining the security of the State or overthrowing it’. In Ram Manohar Lohia v. State of Bihar66, Justice F M Hidayatullah (as the learned Chief Justice then was) distinguished the expressions ‘security of State’, ‘law and order’, and ‘public disorder’. He observed that disorders affecting the security of State are more aggravated than disorders that affect public order and law and order:

55. It will thus appear that just as “public order” in the rulings of G this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those

64 AK Roy v. Union of India, (1982) 1 SCC 271 65 1950 SCC 436 H 66 AIR 1966 SC 740

p. 661 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. (emphasis supplied)

84Copy pinpoint84. Thus, the expression national security does not have a fixed meaning. While courts have attempted to conceptually distinguish national security from public order, it is impossible (and perhaps unwise) to lay down a text-book definition of the expression which can help the courts decide if the factual situation is covered within the meaning of the phrase. The phrase derives its meaning from the context. It is not sufficient for the State to identify its purpose in broad conceptual terms such as national security and public order. Rather, it is imperative for the State to prove through the submission of cogent material that non-disclosure is in the interest of national security. It is the Court’s duty to assess if there is sufficient material for forming such an opinion. A claim cannot be made out of thin air without material backing for such a conclusion. The Court E 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 material67. The reasonable prudent person standard which is one F 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 G to form its opinion but reviews the opinion on limited grounds of whether

67This standard of judicial review is derived from the standard that has been laid down on the limited extent of justiciability of the aid and advice of the council of ministers to the President/Governor. Refer to the judgment of the Constitution Bench in BP Singhal v. Union of India, (2010) 6 SCC 331: Paragraph 79. H

p. 662 Copy page pinpoint

A 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.

85Copy pinpoint85. We now proceed to assess if on the facts of the case, there is sufficient material to conclude that the action is in furtherance of the interests of confidentiality and national security, as contended. (III) Opening the sealed cover

86Copy pinpoint86. In 2010, MBL applied for permission to uplink and downlink the news and current affairs television channel ‘Media One’. According to the Uplinking and Downlinking Guidelines, the application would be sent for security clearance if the applicant is eligible according to the information provided. 68 MBL’s application was sent for security clearance. Central Bureau of Investigation69 remarked that there was nothing adverse that was found on the record against MBL. However, the Intelligence Bureau70 made the following adverse remarks against MBL: (i) MBL is closely associated with ‘Madhyamam Daily’ which has links to Jamaat-e-Islami71; E (ii) The tenor of articles carried out by ‘Madhyamam Daily’ was of an adverse nature from the security perspective; (iii) A few of the key executives of the applicant had associated with JEI-H; and (iv) The proposed TV channel may espouse the ideology of F JEI/H if permitted to operate.

87Copy pinpoint87. IB also submitted a note on the alleged role and activities of JEI-H. The note stated that: (i) JEI-H was formed in 1941 with the objective of securing G the rule of Allah. After the partition of the Indian sub-

68 Paragraph 9.2 of the Uplinking Guidelines and Paragraph 8.2 of the Downlinking Guidelines 69 “CBI”

H 71 “JEL/H”

p. 663 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

continent, JEI formed units in India, Pakistan, and Kashmir. A JEI-H is opposed to secularism, democracy, and socialism; (ii) JEI-H was banned: (i) In 1955 for anti-national activities in Kashmir. The ban was lifted in 1955; (ii) In 1975 under the Defence and Internal Security Rules 1971. The ban was lifted in 1977; and (iii) In 1992, under the Unlawful Activities B (Prevention) Act 196772. The Supreme Court nullified the ban in 1994; (iii) JEI-H plays a crucial role in attracting and channelizing foreign funds to Islamic institutions in the country through official and clandestine channels; and C (iv) JEI-H through its publication, Madhyamam Daily has been “critical of India’s foreign policy, besides indulging in anti- US propaganda. It has also been critical of security agencies/judiciary and often presents news from a communal perspective. Senior functionaries of JEI, Kerala D are learnt to be mobilizing funds through hawala channels from the Gulf for launching a TV Channel.”

88Copy pinpoint88. The MHA considered the report and noted that these remarks were not so strongly adverse in nature to deny permission on the grounds of security, especially when the applicants were operating a newspaper E with twelve editions. The IB report on Madhyamam Daily on the ‘tenor’ of the articles is extracted below: “Madhyamam Daily brings out 12 editions (published from 6 places in Kerala, 2 in Karnataka and 4 places abroad in Saudi Arabia, Qatar, Bahrain, and Dubai), which are published by JEI/H run F Islamic Publishing House, Kozhikode, Kerala. The newspapers which have a combined circulation are of 1.⁷⁵ lakhs approximately being used by JEI/H to air its views on various issues affecting the Muslim community. It has been highlighting the alleged discrimination against Muslims in India. Recently it had alleged targeted attack on [..] who is the prime accused in the G Bangalore bomb blast, and his family members and vehemently criticised police action against […] for her alleged role in the Kalamassery bus burning case and has contrasted it with the alleged soft attitude taken against Hindu fundamentalists 72 “UAPA” H

p. 664 Copy page pinpoint

A responsible for bomb blasts in the country and Babri Masjid demolition.” (emphasis supplied)

89Copy pinpoint89. In 2014, when security clearance was again sought by MBL for uplinking and downlinking TV Channels Media-One Life and Media B One Global, IB submitted a report stating that fresh enquiries corroborated the issues that were flagged earlier. The fresh enquiries were based on a ‘scrutiny of the contents of programmes aired in the recent past by Media One TV’. On a scrutiny of the contents of the programmes that were telecast by Media One, IB opined that Media-One: (i) tends to propagate the ideology of JEI-H; (ii) portrays security forces and intelligence agencies of India in bad light; (iii) is overcritical of Government policies, especially vis-a-vis its handling of law and order issues involving minorities and militancy’.

90Copy pinpoint90. MHA sought fresh comments from IB after receiving the above report. In the subsequent report, IB made three findings. Firstly, that the major source of funding for MBL is through shares in which JEI/H cadres and sympathizers have reportedly invested. IB submitted a comprehensive list of shareholders who have invested in MBL. We have not extracted the list of the shareholders to protect their privacy and confidentiality. Secondly, that enquiries have confirmed that Media E One airs provocative programmes such as: (i) On 5 August 2015, the channel reportedly made attempts to denigrate the Indian Judiciary for alleged adoption of double standards in dealing with terrorism related cases; (ii) It blames US and Israel for the misery of the Muslims across the world; and (iii) a publication of MBL ‘Prabodhanam Weekly’, F propagates fundamental Islamic viewpoint through its editorials.

91Copy pinpoint91. On 24 July 2014, a CoO recommended that security clearance may be denied with respect to the proposals to uplink and downlink ‘Media-One Life’ and ‘Media One Global’, and security clearance maybe withdrawn to MBL based on the adverse remarks by IB in 2011 and

G 2014. MHA sought fresh comments and multiple CoO meetings were held to discuss the same. On 26 August 2015, MIB granted permission to uplink and downlink ‘Media One Life’.

92Copy pinpoint92. However, on 22 January 2015, CoO recommended denial of security clearance to two proposals (A) to Uplink/downlink non-news and current affairs TV channel Media-One Life and Media-One Global; H

p. 665 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

(B) for the appointment of two directors. However, it was noted that the security clearance granted in 2011 may not be withdrawn. The minutes of the meeting of CoO notes as follows: “The MHA had issued policy guidelines for assessment of proposal for national security on 30.6.2015 which clearly prescribe security relating parameter for assessment of proposals. The CoO felt that adverse inputs against the company and its Directors are serious in nature (linkage with radical organization) and falls under security rating parameters mentioned in Sl No. 13 of Ministry of Home Affairs Policy guidelines issued vide OM dated 30.6.2015. Further, CoO observed that the policy mandates that the security clearance granted by the MHA will usually have prospective effect unless otherwise decided by the Ministry concerned in the discharge of its mandate. Therefore, the security clearance granted in 2011 may not be withdrawn. However, the future expansion of the company may be stopped in view of the adverse inputs.” D (emphasis supplied)

93Copy pinpoint93. MHA denied security clearance for these two proposals based on the recommendation of the CoO. Though the order of MHA denying security clearance on such recommendation is not annexed to the file submitted, it finds mention in the internal notes on the file. It seems that E the MHA was not aware that MIB had by then already granted the permission to uplink and downlink Media One Life. Further, in spite of the observations of CoO that the revocation may not be retrospective, MIB issued a show cause notice to MIB for revocation of the permission granted to Media One and Media One Life. The MIB requested MHA F to consider the response of MBL against the show cause notice. In this regard, MHA observed that though it had not withdrawn security clearance of the existing News and Current Affairs Channel ‘Media One’, the actions of MIB were in compliance of the guidelines dated 30 June 2015. It is crucial to note that as on the date when security clearance was denied by MHA, both Media One and Media One Life were existing G news channels. The relevant extract of the response of MHA is extracted below: “Since the MHA has not withdrawn security clearance of existing News and Current Affairs TV channel ‘Media One’, it is Ministry of I&B which has to justify its action of issuing show-cause notice H

p. 666 Copy page pinpoint

A for withdrawal of permission. At the same time, since the MHA has given leverage to the nodal Ministry in the guidelines dated 30.06.2015 to take action for retrospective application of the guidelines in the discharge of its mandate and that the MIB has taken action in accordance with their own guidelines, we may not state that MHA has not withdrawn security clearance granted B vide OM dated 17.2.2011. This would give impression if action of the nodal Ministry was not in conformity with MHA guidelines. We may simply mention the proposals to which security clearance was denied on 27.1.2016, and state that Ministry of I&B has issued SCN in discharge of its mandate it may defend its action. As C regards sharing of reason for denial of clearance, it is informed that the denial is based on inputs from intelligence Agencies which are secret in nature and cannot be disclosed to the applicant.” (emphasis supplied) D The response of MHA further notes that the security clearance was denied based on ‘inputs from intelligence agencies which are secret and cannot be disclosed to the applicant.’

94Copy pinpoint94. On 11 September 2019, MIB revoked the uplinking and downlinking permission which was granted to Media One life. MBL submitted a representation against the revocation. MHA requested IB to furnish comments on the representation of MBL. IB concluded that the inputs attract parameters (Sl. Nos. 20 and 21) stipulated by the Guidelines issued on June 25 201873 for assessment of proposals received in the Ministry of Home Affairs for national security clearance. IB made the following two adverse remarks: (i) “Main source of income: MBL’s main source of income is the shares invested by cadres of JEI-H through its sympathizers. Most of the Board of Directors are JEI-H sympathizers”; and G (ii) “Anti-establishment stance: Media One channel is learnt to be espousing its anti-establishment stance on various issues ‘including UAPA, Armed Forces (Special Power) Act,

H 73 “2018 Guidelines”

p. 667 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, CAA/NPR/NRC”.

95Copy pinpoint95. The 2018 Guidelines stipulate that national security covers a wide range of issues but the principle focus, inter alia, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation and protecting the life, and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and prosperity of the country and its citizens. Clause 3.2 stipulates that sector sensitive proposals emanating from, inter alia, MIB shall be assessed in accordance with the Guidelines. According to Clause 4 national security verification will be done through “record checks/field enquiries and other means for the vetting of the company, entity and the persons associated with the same.” The provision stipulates that on receipt of a proposal from the concerned ministry (in this case, MIB), MHA would seek inputs from security and law enforcement agencies. Clause 5 stipulates that the intelligence and law enforcement agencies will conduct an assessment based on the list of security parameters set out in in Annexure C. The assessment will be done on the basis of the reported threat, probability of materialization, and overall impact. Annexure C prescribes the security parameters. Sl. No 13 of the Annexure reads: “Terror funding, financial linkage with underworld, drug cartels, crime syndicates.” Sl No. 20 reads as “Involvement in religious proselytization activities in India”, and Sl. E No. 22 reads as “Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public”.

96Copy pinpoint96. MBL filed an application for renewal of permission to uplink and downlink the Media-One channel. MIB forwarded the application for renewal to MHA for security clearance. MHA noted that there is no reason to consider the renewal of permission if security clearance has been denied to the company and its directors earlier: “3. It has been observed that Ministry of Information and Broadcasting has been forwarding the proposals for renewal of security clearance to MHA on routine basis including cases, where security clearance has already been denied to the company and its directors, If security clearance has been denied by MHA to a company and its directors. there is no reason to consider its renewal unless there are specific reasons to indicate that the situation has changed. H

p. 668 Copy page pinpoint

A The security clearance guidelines dated 25.06.2018, para 7.4 stipulates that the decision on security clearance by the MHA will have prospective effect unless otherwise decided by the ministry /department concerned in the discharge of its mandate. This was explicitly clarified in the meeting dated 21.01.2016 of the then Home Secretary and Secretary of Information & Broadcasting in response to MIB query on whether withdrawal of security clearance to company/individual entities in one sector would tantamount to withdrawal in other sectors also Since MIB has already been communicated denial of security clearance to the above mentioned companies, there is no need of fresh consideration for the cases as per security clearance guidelines. In view of the above, Ministry of Information and Broadcasting may be requested that the proposals for renewal of security clearance in the cases where security clearance has already been denied to the company, should not have forwarded to MHA, in a routine manner unless and until there is sufficient and proper reasons for the same.”

97Copy pinpoint97. Before addressing whether the non-disclosure of the relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which Union of India has raised the claim of national security. Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, the Union of India made no attempt to explain how non-disclosure would be in the interest of national security. The Union of India has adopted this approach inspite of reiterations by this Court that judicial review would not be excluded on a mere mention of the phrase ‘national security’. The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law.

98Copy pinpoint98. Security clearance was denied to MBL because of its alleged link with JEI-H, and its alleged anti-establishment stance. To conclude that MBL is linked to JEI-H, IB has relied on the ‘tenor’ of the articles published by dailies of MBL, and the shareholding pattern of MBL. To conclude that JEI-H has an anti-establishment stance, IB has solely relied upon the programmes that were broadcast by Media-One. Some of the H

p. 669 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

views that were highlighted in the IB report to conclude that MBL has A an anti-establishment stand are that (i) it portrays security forces and the judiciary in a bad light; (ii) it highlighted the discrimination faced by minorities in the country and contrasted it with the State’s alleged soft attitude towards the Hindus who were involved in the destruction of Babri Masjid; and (iii) its comments on UAPA, Armed Forces (Special B Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, and CAA/NPR/NRC.

99Copy pinpoint99. Significantly, with respect to the list of shareholders who are alleged sympathizers of JEI-H, the file does not contain any evidence on the alleged link between the shareholders and JEI-H. The report of IB is purely an inference drawn from information that is already in the public domain. There is nothing ‘secretive’ about this information to attract the ground of confidentiality. Additionally, it cannot be argued that the purpose of national security will be served by non-disclosure merely by alleging that MBL is involved with JEI-H which is an organisation with alleged terrorist links. While we have held above that it would be impractical and unwise for the courts to define the phrase national security, we also hold that national security claims cannot be made out of thin air. There must be material backing such an inference. The material on the file and the inference drawn from such material have no nexus. The non-disclosure of this information would not be in the interest of any facet of public interest, much less national security. On a perusal of the material, no reasonable person would arrive at the conclusion that the non-disclosure of the relevant material would be in the interest of national security and confidentiality. G.2 (b) Suitability F

100Copy pinpoint100. We proceed to apply the subsequent prongs of the proportionality standard, even assuming that the action taken is in the interest of confidentiality and national security. The second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. At this stage, the court is required to assess whether the means, if realised, would increase the G likelihood of protecting the interests of national security and confidentiality. It is not necessary that the means chosen should be the only means capable of realising the purpose of the state action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means used constitute one of the many methods by which the purpose H

p. 670 Copy page pinpoint

A can be realised, even if it only partially gives effect to the purpose. 74 The Canadian Supreme Court in the case of Oakes (supra) emphasised that the means adopted must not be “arbitrary, unfair, or based on irrational connection”. The requirements under this prong will not be fulfilled if the State uses constitutionally impermissible means. Though it is not necessary that the means opted should be the ‘best possible means’, the means must still pass the muster of the constitution.

101Copy pinpoint101. The Ministry of Home Affairs disclosed the relevant material solely to the court in a sealed cover. By this method of disclosure, information that is claimed to be confidential and in the interests of national security is sought to be protected by not disclosing it to the public and the claimant. The means that are used may not necessarily be the best possible means to protect the interest involved because the sealed cover procedure permits partial disclosure as opposed to complete non-disclosure. However, it still shares a rational connection to the purpose that is sought to be achieved.

102Copy pinpoint102. On the other hand, the non-disclosure of even a summary of reasons for denying security clearance does not share a rational connection with the purpose identified. In A v. The United Kingdom⁷⁵, the ECHR held that there must always be ‘equality of arms’ between the parties. The court held that if procedural guarantees are restricted, then the limitation must be sufficiently counterbalanced. In Secretary of State for the Home Department v. AF76 the House of Lords while interpreting the judgment of the ECHR in A (supra) held that there is a ‘core irreducible minimum’ of procedural guarantees which cannot be infringed. The House of Lords observed that the ‘essence of the case against the applicant’ is a core irreducible minimum which has to be disclosed. We are in agreement with the observations of the House of Lords and ECHR in AF (supra) and A (supra) respectively. MHA by not disclosing the reasons for denying security clearance has rendered MBL’s procedural guarantees otiose. The summary of reasons for denying security clearance constitute the ‘core irreducible minimum’ of the procedural guarantees under Article 14. By not disclosing the summary of reasons, the MHA has undertaken an unreasonable and arbitrary means to fulfil its purpose.

p. 671 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

G. 3 (c) Least restrictive means A

103Copy pinpoint103. The judgment of the majority in Justice KS Puttaswamy (5J) (supra) adopted the ‘moderate interpretation of necessity’ that was propounded by David Bilchitz.77 The author sought to draw a middle ground between strong and weak forms of the necessity prong. The sub-components of the necessity prong as devised by Bilchitz are as B follows:78 (a) Whether there are other possible means which could have been adopted by the State; (b) Whether the alternative means identified realise the objective in a ‘real and substantial manner’; C

(c) Whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) Whether on an overall comparison (and balancing ) of the measure and the alternative, the alternative is better suited D considering the degree of realising the government objective and the impact on fundamental rights.

104Copy pinpoint104. In Charkaoui v. Canada (Citizenship and Immigration)79, the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 200180 E suffered from procedural infirmities. Under the 2001 Act, a person may be deprived of some or all of the information on the basis of which the detention was ordered. The Canadian Supreme Court held that the provisions of the 2001 Act unjustifiably violate Section 7 of the Canadian Charter of Rights and Freedom81 because State action is judicially reviewed based on secret material without devising any means to protect F the affected person’s procedural rights. The court referred to the system of special advocates in the United Kingdom and observed that this system 77 David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach? in Liora Lazarus et al (eds), Reasoning Rights: Comparative Judicial Engagement (Hart 2014) 49. G 78 ibid, p. 51.

79 (2007) 1 SCR 350

80 “2001 Act”

81 Section 7 of the Canadian Charter of Rights and Freedoms stipulates that the right to

life, liberty, and security of a person shall not be deprived except in accordance with the principles of fundamental justice. H

p. 672 Copy page pinpoint

A protects the interests of the affected party. The court concluded that the procedure prescribed in the statute cannot be ‘justified as minimum impairment of the individual’s right to a judicial determination on the facts and the law, and right to know and meet the case.’

105Copy pinpoint105. The Canadian Supreme Court referred to the jurisprudence on the procedure followed by courts across various jurisdictions to decide claims that involve State secrets and held that there were other lesser restrictive means that could have been employed, as in the United Kingdom. As a part of the analysis of the least restrictive means prong, we deem it necessary to refer to alternative procedures that are available in India and in other countries that substantially aid in realising the objective and which protects the interest of the affected party in a better fashion. (I) Totten claim: non-justiciability of the issue

106Copy pinpoint106. The Courts in the United States have recognised that in exceptional circumstances, the court must act in the interest of national security to prevent the disclosure of state secrets. One of the applications of this principle is through the Totten claim. According to the Totten claim, if claims are premised on state secrets, then they are barred from adjudication82. If the subject matter is a matter of state secret then the action may be dismissed on pleadings before the proceedings could reach the stage of evidence. The Totten claim, if allowed, permits the dismissal of the suit in the pre-discovery stage. (II) Closed Material Procedure and Special Advocates

107Copy pinpoint107. In Chahal v. United Kingdom83, the Home Secretary issued an order to deport the appellant, an Indian national and a Sikh separatist. One of the grounds of the appellant’s challenge to the deportation order was that although the Home Secretary’s decision is amenable to judicial review, the effective determination of his risk to national security was made by an internal Home Office advisory panel on the basis of material which was not disclosed to him. The European Court of Human Rights84 G accepted the contention of the appellant and held that the procedure violated the rights under Article 5(4) of the European Convention on

82 Totten v. United States, 92 US 105,107 (1876) 83 (1996) 23 EHRR 413 84 “ECHR” H

p. 673 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Human Rights.85 The court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal Court judge holds an in - camera hearing of all the evidence; the applicant is provided a statement summarising the case that is made against them; and the confidential material is then disclosed to a security-cleared counsel who assists the court in testing the strength of the State’s case.

108Copy pinpoint108. In response to the judgment in Chahal (supra), the Government of the United Kingdom passed the Special Immigration Appeals Commission Act 1997 which paved the way for security-cleared C Special Advocates to represent the applicant in substantive proceedings that take place behind closed doors. The material is not disclosed to the claimant. However, the Special Advocate represents the interest of the party before the court though they are not permitted to interact with to the claimant about the non-disclosable security evidence in the closed proceedings. For all purposes, closed material proceedings are similar to the sealed cover procedure, except that a security cleared lawyer is appointed to counterbalance the limitations on procedural guarantees. The Terrorism Act 2000 prescribes a similar procedure. Since then the Courts in the United Kingdom have been using Special Advocates in civil proceedings, quasi-criminal proceedings86, and in public interest immunity claims.87 The Special Advocate serves two purposes : firstly, to seek maximum possible disclosure of closed material; and secondly, to test by cross-examination and make submissions on any material that remains closed.88 (III) Public Interest Immunity F

109Copy pinpoint109. The Evidence Act prescribes rules precluding disclosure of certain communications and evidence. Section 123 stipulates that no

85 Article 5(4): “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided G speedily by a court and his release ordered if the detention is not lawful.” 86 Roberts v. Parole Board, (2005) 2 AC 738

87 R v. H, (2004) AC 134

88 Martin Chamberlain, Special Advocates and Amici Curiae in National Security

proceedings in the United Kingdom, The University of Toronto Law Journal , Summer 2018, Vol. 68, No. 3, Special Issue on Indigenous Law (Summer 2018), pp. 496-510 H

p. 674 Copy page pinpoint

A person shall be permitted to give any evidence that is derived from unpublished official records relating to affairs of the State. The evidence shall be disclosed only with the permission of the officer at the head of the department:

123. Evidence as to affairs of State.- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. Section 124 provides that a public officer shall not be compelled to disclose communications made to him in official confidence if the disclosure affects public interest:

124. Official communications.- No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

110Copy pinpoint110. Section 162 stipulates that a witness who is summoned to produce a document in court shall bring the document to court notwithstanding any objection that is raised on its production and admissibility. The provision provides that the objection shall be decided by the Court. For this purpose, the court shall inspect the document, unless it refers to matters of state. The provision is extracted below:

162. Production of document.- A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

111Copy pinpoint111. The claim of public interest immunity allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. All three parties to the proceeding, that is, the applicant, the state, and the court cannot refer to or rely on the documents for substantive hearings in the course of the proceedings if the court allows the public interest immunity claim at the discovery stage. H

p. 675 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

In effect, the public interest immunity claim renders the relevant document A non-existent for the purposes of the proceedings. Public interest immunity substantially realises the objective of protecting the interests of confidentiality and national security.

112Copy pinpoint112. All the three alternatives identified above realise the objective in a real and substantive manner in as much as it furthers non-disclosure. B However, each of the alternative means have a different effect on fundamental rights because they operate in different penumbrae. In a public interest immunity claim, the material is not relied on by both the parties and the court in the course of the substantive hearings. The court removes the material from the proceeding, and the public interest immunity proceedings are conducted in a closed setting. In a Totten C claim, the court at the admission stage itself declares that the issue is non-justiciable if the material on state secrets may have to be disclosed. The court does not undertake any balancing exercise to decide if the injury due to the disclosure of information is heavier than the injury due to non-disclosure. Rather, if the material is, according to the state, related to a state secret then the applicant is deprived of the remedy of judicial review. Under the closed material procedure, non-disclosable material is relied on by the State and referred to by the court in the course of the substantive hearing. The special advocate would represent the interests of the affected party. However, the special advocate would be precluded from discussing the evidence with the affected party. It must be noted that special advocates are involved even in public interest immunity claims to represent the affected party in the closed hearing to decide if the relevant information must be disclosed. Thus, the special advocates’ system is a means to counterbalance the effect of the limitation on procedural guarantees of the affected party. F

113Copy pinpoint113. When these three means identified are placed on the continuum, public interest immunity claims would be placed on one end as they have the least impact on rights as opposed to the Totten claim which would be placed on the other end. The closed material procedure would be placed in the middle because Special Advocates are used in an G attempt to counterbalance the infringement of procedural rights. The difference in the impact must be determined firstly, based on the stage of consideration. The public interest immunity claim and closed material procedure claim are raised at the discovery stage. As opposed to this procedure, under the Totten claim, the claim is held to be non-justiciable H

p. 676 Copy page pinpoint

A at the pleading stage if the State contends that the proceedings are premised on state secrets. Secondly, the Totten claim limits the fundamental right to judicial review since claims based on state secrets are rendered non-justiciable. However, in a public interest immunity claim, whichever way the claim is decided, the parties will have equality of arms because the same evidence will have to be relied on in the course of the proceedings. It may be argued that the removal of the documents from the proceedings would, in effect, render the claim non-justiciable if the documents that are sought to be not disclosed are closely intertwined with the cause of action. We have addressed this argument in detail in Section J of this judgment. Similar to the sealed cover procedure, in the closed material proceeding, the non-disclosable evidence that is used in a substantive hearing of the case is excluded for the claimant. However, the closed material procedure in the United Kingdom does not exist independent of special advocates who aim to provide sufficient counterbalance. The closed material proceeding is more injurious to the claimant’s procedural guarantees as compared to public interest immunity because non-disclosed material is used by the State to defend its actions and relied on by the court to arrive at a conclusion. As compared to this, in public interest immunity, the non-disclosable evidence is completely removed at the discovery stage. Though the Special Advocates aim to provide sufficient counterbalance, the process still causes prejudice to the claimant since the security cleared advocates are not permitted to interact with the claimant about the evidence. The (in)sufficiency of the counterbalance provided by special advocates largely depends on the facts of the case, particularly on the material that is sought to be unrevealed and revealed. The interrelationship between the allegations, open material, and closed material was aptly addressed by the ECHR in F A (supra). The relevant observations are extracted below: “ 220. The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was

p. 677 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 E would not be satisfied.” (emphasis supplied) In view of the above discussion, public interest immunity is perhaps a less restrictive means of the alternative methods listed above. F

114Copy pinpoint114. Having held that there are alternative means which further the purpose of non-disclosure at the disposal of the State, we shall now undertake a comparative analysis of the impact of the alternative means identified (public interest immunity) and the means used (sealed cover) on fundamental rights. In section F, we have already discussed the effect of the disclosure of material solely to the courts in a sealed cover on the G fundamental precepts of procedural fairness and how the courts do not employ any safeguards to protect the procedural rights of the applicant. In the next section, we will be discussing the jurisprudence on public interest immunity. A reference of how the courts have dealt with public interest immunity claims will allow us to analyse if the courts have H

p. 678 Copy page pinpoint

A employed sufficient procedural guarantees to protect the rights of the applicant or have on the contrary been deferential to the claims of the State. This analysis is important because it is only a comparative analysis of how the courts would deal with sealed cover and public interest immunity claims that would allow us to evaluate their relative effect on procedural rights. B H. Jurisprudence on public interest immunity claims H.1 India

115Copy pinpoint115. This Court has on earlier occasions interpreted Sections 124 and 164 of the Evidence Act. In State of Punjab v. Sodhi Sukhdev C Singh89, the respondent, a District and Sessions Judge, who was removed from service and later re-employed sought the report of the Public Service Commission and the proceedings of the Council of Ministers. The Chief Secretary filed an affidavit claiming privilege under Section 123 of the Evidence Act. The claim for privilege was allowed. Justice D Gajendragadkar, writing the majority opinion of the Constitution Bench, laid down the scope of review of a claim of non-disclosure. Sections 164 and 123 were construed to deal with the conflict between public interest and private interest. It was observed that the court must assess if the disclosure that affects public interest would outweigh the concerns of private interest which disclosure of material to the litigant furthers: E “13. The principle on which this departure can be and is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non-production of the relevant and material document may feel aggrieved by the result, and the court, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private good and private interest.” The court held that when a claim of public interest immunity is made against disclosure, the Court must on a preliminary enquiry of the H 89 (1961) 2 SCR 371

p. 679 Copy page pinpoint

INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

affidavit determine if the document relates to affairs of the State. If the document relates to state affairs, then the decision of the head of the department on whether the disclosure would violate public interest would be final. The document must be disclosed if on a preliminary enquiry the court is of the opinion that the document does not relate to ‘State affairs’. The court would only possess the power to scrutinise the affidavit and not inspect the document on which immunity is claimed to determine if the document ‘relates to affairs of state’.

116Copy pinpoint116. Justice Subba Rao in his opinion differed from the majority opinion on this point of law. The divergence was one of principle. While the majority pitted the issues on the lines of public interest and private interest, Justice Subba Rao held that both disclosure and non-disclosure further public interest. It was held that the disclosure of information aids the party in the proceedings but beyond that the disclosure also serves the purpose of administration of justice. On the extent of scrutiny by the Court, Justice Subba Rao observed that the Court has the power to disallow a claim of privilege. For this purpose, the court has to determine if the public interest in disclosure outweighs the public interest in non- disclosure. It was observed that the Courts should ordinarily accept the affidavit of the Minister claiming privilege but when the court has reason to disbelieve the claim, it can examine the Minister. Justice Subba Rao agreed with the opinion of Justice Gajendragadkar that the court shall not inspect the document that is sought to be protected from disclosure. E

117Copy pinpoint117. In State of Uttar Pradesh v. Raj Narain90, the respondent sought to summon documents in an election petition. The State made a claim for immunity. Justice K K Mathew in his concurring opinion for the Constitution Bench raised doubts on the observation in Sodhi Sukhdev Singh (supra) that the Court does not have the power to inspect documents for which the claim of privilege is made. It was held that it would be difficult to determine the effect of the disclosure on public interest without inspecting the document. The learned Judge classified such documents as those belonging to noxious classes and others. It was held that if the documents belong to noxious classes (such as national security), it would per se infringe on public interest. For other documents that do not belong to noxious classes, the courts ought to survey aspects of public interest involved in both disclosure and non-

90 (1975) 4 SCC 428 H

p. 680 Copy page pinpoint

A disclosure to assess the relative claims of the different aspects of public interest: “71. Few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Court may not be the proper forum to weigh the matter and that is the reason why a minister’s certificate is taken as conclusive. “Those who are responsible for the national security must be the sole judges of what national security requires.” [ Lord Parker of Weddington in The Zamora, (1916) 2 AC 77, 107] As the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. […]

72. The power reserved to the Court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of Government for which the minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspects of public interest. While there are overwhelming arguments for giving to the Executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few matters of public interest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of ministers or officials bound by oath of secrecy.” (emphasis supplied) H