MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS.

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118Copy pinpoint118. In SP Gupta v. Union of India91, a seven-Judge Bench of this Court settled the position of law on claims of non-disclosure on the grounds of public interest. In this case, the Union of India claimed immunity against the disclosure of the correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India. It was argued that the documents sought to be disclosed belong to a class that is immune from disclosure, and thus the courts ought to allow the claim for non-disclosure irrespective of its contents. Justice Bhagwati, whose view five other judges agreed to,92 rejected the claim for non-disclosure.93 Justice Bhagwati observed that claim of class immunity is not absolute: “The executive cannot by merely invoking the scriptural formula of class immunity defeat the cause of justice by withholding a document which is essential to do justice between the parties, for otherwise the doctrine of class immunity would become a frightful weapon in the hands of the executive for burying its mistakes, covering up its inefficiencies and sometimes even hiding its corruption. Every claim for immunity in respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the court with reference to one and only one test, namely, what does public interest require — disclosure or non-disclosure. The doctrine of class immunity is therefore no longer impregnable; it does not any more deny judicial scrutiny; it is no more a mantra to which the court pays obeisance. Whenever class immunity is claimed in respect of a document, the court has to weigh in the scales the one aspect of public interest which requires that the document should not be disclosed against the other that the court in performing its functions should not be denied access to relevant documents and decide which way the balance lies. And this exercise has to be performed in the context of the democratic ideal of an open Government.” G 91 1981 Supp SCC 87 92 Justice Gupta (paragraph 142); Justice Tulzapurka (paragraph 662); Justice Desai (paragraph 855); Justice Pathak (paragraphs 941 and 942). Justice Venkataramiah authored a concurring opinion. 93 Justice Fazl Ali dissented allowing the claim for non-disclosure. H

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119Copy pinpoint119. Justice Bhagwati further observed that the non-appointment of a Judge for an additional term, which was under challenge in this case, could only be challenged on the ground that there was no full and effective consultation between the three constitutional functionaries, or that the decision was mala fide. Hence, the correspondence that is sought is the only documentary evidence that would aid in establishing the claim. B On the other hand, the non-disclosure would have the effect of ensuring the dismissal of the writ petition. Moreover, it was held that other than the impact of non-disclosure on the applicant’s case, it would also affect the wider constitutional principles of independence of the judiciary if the appointment process is insulated from public view. Further, when the transfer of a High Court Judge is challenged, the burden to prove that the transfer was not mala fide is on the Union of India. It was observed that the Union of India cannot seek to discharge such a heavy burden by merely filing an affidavit for non-disclosure. Justice Bhagwati rejected the claim for non-disclosure by observing that the Union of India has been unable to prove its claim that the disclosure of the correspondence must be injurious to public interest.

120Copy pinpoint120. The view taken by Justice Mathew in Raj Narain (supra) and Justice Subba Rao in Sodhi Sukhdev Singh (supra) was partially adopted by Justice Bhagwati, writing for the majority in SP Gupta (supra) and was further developed upon. The principles elucidated in the judgment are summarised below: (i) Open government is one of the crucial components of a democratic form of government. Disclosure of information is advantageous to the affected party in the proceedings. In addition, it also furthers public interest in access to information and open government. The conflict which Sections 123 and 162 seek to redress is not between public interest and private interest but between two conflicting conceptions of public interest; (ii) The majority opinion in Sodhi Sukhdev Singh (supra) G perpetuates two inconsistencies. Firstly, it would be difficult to determine if a document relates to affairs of the state without inspecting it . The court determines the effect of its disclosure on public interest only after inspection. This conclusion is apparent since Sodhi Sukhdev Singh (supra) H has already held that only documents which affect public

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interest can be regarded as documents relating to state affairs; and secondly, the court and not the head of the department determines if the disclosure of the information would affect public interest. On an objection raised by the head of the department, the court conducts an exercise to determine if the document relates to affairs of the State by assessing the effect of disclosure on public interest. After the court undertakes this exercise, it would be futile for the head of the department to again decide if the disclosure would be injurious to public interest; (iii) The burden of establishing the claim for immunity is on the person making the claim; C

(iv) When a claim of public interest immunity is made, the court must on a perusal of the affidavit filed by the Minister or the head of the department decide if the disclosure would be injurious to public interest. The Court may inspect the document if it doubts the claim of the State and is unable to D satisfy itself on a perusal of the affidavit. This power of inspection of the Court is not excluded by the operation of Section 162 of the Evidence Act; (v) Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. E The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government; (vi) Disclosure cannot be denied per se merely because the documents belong to a noxious ‘class’. The court must still conduct a balancing exercise. Class immunity ‘is not absolute or inviolable’. It is not a rule of law to be applied mechanically in all cases; (vii) The court must determine if: (a) the disclosure of the document would in effect be against public interest (the effect test), and (b) if so, whether the public interest in disclosure is ‘so strong’ that it must prevail over the public interest in the administration of justice (the balancing test); and H

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A (viii) While undertaking the balancing test, the Court should consider the following lines of enquiry: (a) On facts: Whether the non-disclosure would injure the interest of the party of the case. Injury due to non-disclosure must be determined on the basis of B the nature of the proceedings in which the disclosure is sought, the relevance of the document, the degree of likelihood that the document will be of importance to the litigation, and whether allowing the claim of non-disclosure would render the issue non-justiciable; and C (b) On principle: Whether non-disclosure would affect a constitutional principle other than administration of justice.

121Copy pinpoint121. We think that it is important to refer to the approach of courts D across jurisdictions towards balancing the different conceptions of public interest in the context of public interest immunity claims. This is necessary because the law on public interest immunity that was developed in India in SP Gupta (supra) heavily relied on the jurisprudence emanating from other common law countries. In fact, Chief Justice Ray records in paragraph 41 of the Constitution Bench judgment in Raj Narain (supra) E that the foundation of the law behind Section 123 and Section 162 of the Evidence Act is the same as in English law. H. 2 United Kingdom

122Copy pinpoint122. The account of this subject in the United Kingdom began F with the decision of the House of Lords in Duncan v. Cammell Laird94. The House of Lords in this case gave precedence to form over substance while assessing a public interest immunity claim for non-disclosure. Lord Simon framed two issues: (i) the form in which an objection to disclosure has to be made; and (ii) if the objection is made in a proper form, whether the court ought to treat the objection as conclusive without scrutiny. The G Law Lord held that the claim for non-disclosure must be allowed if the form of the objection is valid, and the interests of a private citizen may have to be subsumed by public interest. Consequently, courts cannot examine the documents while determining the validity of the claim because it would violate the ‘first principle of justice that the Judge should H 94 [1942] AC 624

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have no dealings on the matter in hand with one of the litigants save in the presence of and to the equal knowledge of the other.’ Thus, the House of Lords did not frame the issue as a conflict between conceptions of public interest but that of private interest and public interest. The House of Lords established two principles for the application of public interest immunity: that the interest of a litigant must give way to the secrecy of the government, and the Minister has the sole power to decide if the document ought to be withheld.

123Copy pinpoint123. The House of Lords altered its approach in Conway v. Rimmer95. Lord Reid observed that that impact of non-disclosure must not be viewed through the narrow lens of private interest and it is public interest in the administration of justice that is injured due to non-disclosure of documents. The House of Lords established three principles of seminal importance. Firstly, the power to decide if evidence has to be withheld from the court resides with the court and not the executive. Secondly, the court while exercising this power must balance the potential harm to the public interest due to disclosure with the court’s inability to administer justice. The Court while determining the later harm must assess the effect of non-disclosure on ascertaining the ‘true facts’ and on the wider principle of public confidence in the court system. Thirdly, the court is entitled to inspect, in private, the material on which immunity is claimed. On scrutinising the material, the court has to determine if non-disclosure is necessary due to public interest, and not merely advantageous to the functioning of public service. Lord Hudson held that the Court in its scrutiny must discard the generalities of classes and must weigh the injuries to the public ‘of a denial of justice on the one side and, on the other, a revelation of governmental documents which were never intended to be made public and which might be inhibited by an unlikely possibility of disclosure.’ The conflict of the claims of public interest must be determined based on the importance of the documents sought to be withheld in the case before the court (a question of outcome), and whether the non-disclosure would result in a ‘complete’ or ‘partial’ denial of justice (a question of process and outcome). G

124Copy pinpoint124. In Reg v. Chief Constable, W.Midlands, Ex p. Wiley96, Lord Woolf speaking for the House of Lords observed that while determining the balance on the scale, the Court should also enquire if the interest in disclosure could be effectuated through ‘other alternate means’: 95 [1968] AC 910 96 [1994] WLR 433 H

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A “[…] It may be possible to provide any necessary information without producing the actual document. It may be possible to disclose a part of the document of a document on a restricted basis. […] There is usually a spectrum of action which can be taken if the parties are sensible which will mean that any prejudice due to non-disclosure is reduced to the B minimum.” (emphasis supplied)

125Copy pinpoint125. The Queen’s Bench Division in R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs97 applied a four- C pronged test to determine the validity of a public interest claim. In this case, an Ethiopian national who was a former resident of the United Kingdom was held by the authorities of the United States in a detention facility in Cuba where he was alleged to have been treated inhumanly. He sought the disclosure of the information in the possession of the United Kingdom Government which may have supported his defence that the confessions he made while in detention were inadmissible. The Court held that the Security Service of the United Kingdom had facilitated the wrongdoing. In the course of the judgment, the reports by the United States Government to the United Kingdom security and intelligence services were summarised in seven paragraphs. These seven paragraphs were sought to be redacted by the Court by claiming public interest immunity. It was contended that the United States Government would re-evaluate its intelligence sharing relationship with the United Kingdom if the paragraphs were published, which would in turn prejudice the national security of the United Kingdom. The Court applied a four-pronged test to decide the claim of whether the paragraphs had to be redacted: F (i) Is there a public interest in bringing the redacted paragraphs into the public domain? (ii) Will the disclosure cause serious harm to an important public interest, and if so which interest? G (iii) Can the injury to the public interest in disclosure be prevented by other methods of limited disclosure? (iv) If the alternatives are insufficient, where does the balance of public interest lie?

H 97 [2009] EWHC 152 (Admins)

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126Copy pinpoint126. While answering the first test, the Court identified the impact A of disclosure on public confidence in the judiciary to the principles of public hearing and reasoned judgement; and the role of information in furthering public debate which promotes a healthy democracy. In the specific context of the case, it was observed that the disclosure would further public discourse on torture and inhuman treatment. Due B weightage was given to the affidavit filed. The Court scrutinised the reasons in the affidavit and concluded that the assessment of public injury was made in good faith. This conclusion was arrived at based on the public statements that were made by members at the highest level of the United States Government. Applying the facts to the ‘alternate means test’, the court observed that the paragraphs that were sought to be C redacted did not disclose all the information but the redacted portions of the information; and that it would not be possible to further redact the information without engendering national security and violating the constitutional principles of open justice. While answering this test, the court looked at whether the interest of both the litigant and the State D could be secured by means other than the full disclosure of information. While applying the balancing test, the court held that the democratic principles which the disclosure of information serves can be protected by information that has already been placed in the public forum. H. 3 United States E

127Copy pinpoint127. Judicial decisions 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 example of the application of this principle is the Reynolds privilege. Reynolds privilege is an evidentiary principle where the successful assertion of the privilege will remove the privileged evidence from litigation. The test propounded in Reynolds is “if there is reasonable danger that compulsion of evidence will expose….matters which, in the interest of national security, should not be divulged.” The privileged evidence is excluded from the case which may incidentally also result in the dismissal of the claims98.

128Copy pinpoint128. Unlike the standard in the United Kingdom, even the ‘most compelling necessity’ in disclosure cannot overcome the claim of privilege if the court is satisfied that state secrets are at stake. Ordinarily, the evidence is excluded unlike a Totten bar where the issue is declared

98 United States v. Reynolds, 345 US 1 (1953) H

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A non-justiciable, if the information relates to a class of protected evidence. However, in some cases, the application of ‘privilege may require dismissal of the action and at this point, the Reynolds privilege converges with the Totten bar.

129Copy pinpoint129. The US Court of Appeals for the Ninth Circuit in Binyam B Mohamed v. Jeppesen Dataplan 99 observed that in three circumstances, the termination of the case is justified on the application of Reynolds privilege: (i) if the plaintiff cannot prove their case prima facie; (ii) if the plaintiff prima facie proves their case but if the privilege deprives the defendant of information that would provide the defendant a valid defence, then the court may grant a summary judgment to the defendant; and (iii) even if the claims might be theoretically established without relying on privileged evidence, it may be impossible to proceed since the privileged evidence is inseparable from the non-privileged.

130Copy pinpoint130. The standard of scrutiny followed by the courts in the United States is different from the United Kingdom on three basic principles: firstly, the standard established in Reynolds privilege is to identify if the information relates to ‘protected classes’; secondly, the court does not conduct the exercise of balancing the claims of disclosure and non- disclosure. If the information relates to the protected class, the claim is allowed irrespective of the effect of non-disclosure on the case and broader constitutional principles; and thirdly, the burden of proof is on the affected party to prove its case with non-privileged evidence and not on the State to prove the necessity of non-disclosure. H. 4 Canada

131Copy pinpoint131. Similar to the Courts in the United Kingdom, the Canadian F jurisprudence on non-disclosure of information has shifted away from ‘class’ scrutiny towards the scrutiny of individual documents. 100 The consistent view of the Canadian Courts has been that the documents maybe withheld only ‘for the proper functioning of the executive branch and not to facilitate its improper conduct’.101

132Copy pinpoint132. Section 38 of the Canada Evidence Act 1985 stipulates the conditions for disclosure of information that is sought to be protected.

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The Court undertakes the following analysis to determine the validity of A the claim of non-disclosure filed by the Attorney General of Canada: (i) The relevancy test: Whether the information sought to be disclosed is relevant to the case. The burden of proof to prove relevancy of the information is on the party claiming disclosure102; B (ii) The injury test: Whether the disclosure would be injurious to international relations, national defence or national security.103 The burden of proving injury due to disclosure is on the party opposing disclosure. 104 The Court must assess if the executive’s claim of injury has a factual basis. The court at C this stage must consider the nature of the information, and the nature of the injury that is sought to be protected; (a) The Court should order disclosure if the State is unable to discharge its burden of proving it to the court that the disclosure of information is injurious; and D (b) The court must undertake a balancing exercise if the State has proved that the disclosure would be injurious to national security; (iii) The alternative test: Whether there are alternatives to full disclosure that would protect a fair trial. E (iv) The balancing test: The Court must determine if public interest in disclosure outweighs public interest in non-disclosure105. If it does, then the information must be disclosed. The Court must consider the following factors while undertaking the balancing exercise106: F (a) The ‘relative importance’ of the information in proving or defending the claim- that is, whether the information is ‘necessary’ and ‘crucial’ to the case; (b) the extent of injury that would be caused by the disclosure; G

102 Ribic v. Canada (Attorney General), 2003 FCA 246 103 Section 38.06(1) of the Canada Evidence Act 104 Ribic (n 102)

105 Section 38.06(2) of the Canada Evidence Act

106 R v. Ahmad, (2011) SCC 6 H

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A (c) whether there are higher interests such as human rights issues, the right to make a full answer and defence in the criminal context at stake; (d) the importance of the open court principle; and (e) whether the redacted information is already known to B the public.

133Copy pinpoint133. On the basis of the discussion on the public interest immunity claims for non-disclosure in the above-mentioned jurisdictions, the following conclusions emerge:

C (i) The earlier position of law across all jurisdictions was that the courts should be deferential to the claim of the government that the disclosure of document(s) would be injurious to public interest. However, this position has undergone a sea-change. It is now a settled position of law that courts possess the power to assess the validity of public interest immunity claims. The extent of such power is the bone of contention; (ii) The extent of scrutiny of public interest immunity claims by the courts hinges on four primary factors: (a) the identification of the injury that is caused due to non-disclosure of information; (b) the extent of permissibility of class claims; (c) the burden of proof; and (d) evidentiary requirement to prove the claim; (iii) The identification of injury due to non-disclosure and the assessment of the ground for non-disclosure impacts the court’s standard of assessment of the permissibility of class claims, the burden of proof and the evidentiary requirement. The standard of scrutiny is higher when the effect of non- disclosure of information is not identified based on a narrow reference to the facts before the court but on its wider implications to democratic governance and rule of law; G (iv) The courts in India, the United Kingdom, and Canada have held that the non-disclosure of relevant material affects public interest, and the interests of the party seeking disclosure. The non-disclosure of information injures the principle of open government which is one of the basic H

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premises of a democracy. It denies the citizens an opportunity to initiate a discussion or question the functioning of the government. However, the Courts in the United States have been deferential to the claim of non-disclosure, particularly on the ground of national security so much so that the court does not undertake a balancing exercise between the claims of disclosure and non-disclosure. This is also because the courts in the United States give prominence to the objective of non-disclosure as opposed to its effect; (v) The standard laid down in India (in SP Gupta), United Kingdom, and Canada on the assessment of PII claims is similar to the extent that the impact of non-disclosure on broader principles of constitutional governance is also considered; (vi) In Canada, the party seeking production is required to prove relevancy of the material sought after the PII claim is made by the state. The inclusion of the relevancy test as one of the tests imposes a heightened burden of proof than what is required otherwise. This is because the court is at that stage aware that the state is contesting the production on grounds of national security. Such claims are always met with a deferential tone by the courts. Secondly, and most importantly, this leads to an integration of the discovery stages and the objection stages. This integration is problematic because the considerations of the court at the discovery stage and objection stage are distinct. The party seeking discovery of documents must prima facie prove the relevance of the document to the proceedings. Once the party discharges this burden, and the court orders disclosure, the state may object to disclosure on the ground that it would injure public interest. At this stage, the burden is wholly on the state to prove injury to public interest. After G the objection is raised, the relevancy of the disclosure must only be weighed at the balancing stage. Identifying the relevancy of the document even before the state is required to discharge the burden of proving public interest introduces a fundamental misconception in the application of public H

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A interest immunity which is an exception to the production of documents. Furthermore, at an elementary level, it would be impossible to prove the relevancy of the document to the proceedings without the party having viewed it; and (vii) Once the injury due to disclosure is proved, the Courts in B the UK and Canada follow the structured proportionality test to balance the conflicting claims of public interest.

134Copy pinpoint134. According to the Code of Civil Procedure 1908, a party to a proceeding may file an application for discovery to secure knowledge of information that the other party holds. A party may file an application, 107 C without filing any affidavit, seeking a direction for disclosure of documents relating to any matter in question in the possession or power of the other party. The Court may either refuse or adjourn the application if it is satisfied on the hearing of the application that such discovery is not necessary at the stage of the suit. Additionally, the Court shall issue an order limiting the discovery to ‘certain classes of documents’. The D application shall be dismissed if the discovery of documents is not necessary for the fair disposal of the suit or for saving costs. It must be noted that the provision uses the phrase ‘fair disposal of the suit’. The use of the said expression includes the spirit of the requirements of procedural and substantive fairness. If the Court allows the application E considering that the discovery is necessary, the other party should file an affidavit listing the documents that are in their possession relating to the matter is question. The affidavit must be produced in the form specified in Form No. 5 in Appendix C, ‘with such variations as circumstances may require.’ 108 The form in which the affidavit is required to be made is extracted below: F No. 5 AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 13.) (Title as in No. 1, supra) I, the above-named defendant C. D., make oath and say as G follows:—

107 Order XI Rule 12 of CPC 1908 H 108 Order XI Rule 13 of CPC 1908

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1. I have in my possession or power the documents relating to the A matters in question in this suit set forth in the first and second parts of the first schedule hereto.

2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection.] B

3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.

4. The last-mentioned documents were last in my possession or power on. [State when and what has become of them and in whose possession they now are.]

5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto. (emphasis supplied)

135Copy pinpoint135. After the court has directed disclosure of all documents, the party who is directed to disclose all the relevant documents may object to the disclosure of specific documents in its possession in the form prescribed in Annexure C of the Code. It must be noted that Order XI Rule 13 CPC stipulates that the form of discovery may be changed if circumstances require. The purpose of referring to the provisions of the CPC on discovery, inspection, and production is to elucidate and expand upon the principle that guides these provisions. That is, while a party seeks discovery of documents that are in the possession of the other party, it is not necessary to prove that disclosure of the documents would be relevant to the outcome of the proceedings. Such a consideration does not arise at the stage of discovery. It is only justified that the burden H

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A of proof lies entirely on the party objecting disclosure to prove injury to public interest, and to justify the claim of public interest immunity. It is of utmost importance that the burden that is placed on the party seeking production at the discovery stage is not conflated with the burden placed on the party opposing such discovery at the stage of objection to the discovery. B

136Copy pinpoint136. The Constitution Bench of this Court in SP Gupta (supra) has held that if the state objects to disclosure of documents on the ground of public interest immunity, then the Courts shall assess the validity of the objection based on the reasons in the affidavit. The Court has the power to inspect the document if on a perusal of the affidavit, the Court C has ‘any doubt on whether the document relates to the affairs of the state’. 109 It is therefore, of abundant importance that the affidavit stipulating the reasons of the non-disclosure (along with the grounds) is made in sufficient detail so as to enable the courts to assess the claim of PII. This Court in SP Gupta (supra) has observed that the claim has to D be made by the minister who is the political head of the department concerned or, failing him, by the secretary of the department. The claim should always be made in the form of an affidavit. The extent of information required to be placed in the affidavit to enable the government to discharge the onus of justification is based on the standard of scrutiny that the Court applies to assess public interest immunity claims. E I. Proportionality standard to test public interest immunity claims

137Copy pinpoint137. The substance of a public interest immunity claim is to seek an exception to the compliance of principles of natural justice. We have already held above that a departure from compliance of principles of procedural fairness, after it has been proved that the party has been denied a fair and reasonable hearing due to non-compliance must be tested on the proportionality standard.

138Copy pinpoint138. In addition to the above discussion, we are of the opinion that the courts must use the proportionality standard to assess claims of public interest immunity for the following reasons: (i) Firstly, the state while making a claim for public interest immunity seeks an accommodation to deviate from an

H 109 SP Gupta (Paragraph 77)

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established principle of natural justice, that is, the right to know the case that is made against a person due to non- disclosure of relevant material. This claim by its very nature infringes upon the right to a fair trial or hearing that flows from Article 21 of the Constitution. The role of the courts while assessing the validity of the claim of public interest immunity is restricted to determining if the infringement of the right that is protected under Article 21 of the Constitution is reasonable; (ii) Secondly, though the Constitution Bench of this Court in SP Gupta (supra) did not use the standard of structured proportionality as it exists in the present form to assess the claim of PII, the standard that was laid down resembled the sub-facets of the proportionality standard as the focus was on: (i) effect and not the purpose of non-disclosure; and (ii) balancing the effects of disclosure and non-disclosure (both on facts and principle). This Court shifted the focus away from the claim based on ‘class of documents’ and towards the impact of non-disclosure of individual material. These two principles are important components of the standard of structured proportionality that was laid down by this Court in Justice KS Puttaswamy (9J) (supra); E (iii) The proportionality standard in addition to introducing a culture of justification by prescribing a standard four step test that must be satisfied also provides sufficient flexibility within each step for the courts to apply the jurisprudence that has already been evolved by the courts on the subject matter; and F

(iv) Lastly, PII claim is founded on common law doctrine. The jurisprudence that has emanated from various common law countries on the subject has been relied on by the Courts in India to the extent permitted by our constitutional scheme. The jurisprudence that has emanated from other common G law countries on this subject has a persuasive value. The courts in both the United Kingdom and Canada use the proportionality standard to assess the validity of a PII claim.

139Copy pinpoint139. The structured proportionality standard used by the courts to test the infringement of fundamental rights has to be remodelled along H

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A the lines of the jurisprudence on public interest immunity, if need be. It is crucial to note the difference in the terminology between Article 19(2) to Article 19(6) of the Constitution and Section 124 of the Evidence Act. The reasonable restriction clauses in Article 19 stipulate that the right can be ‘reasonably restricted’ in the interests of sovereignty and integrity of India […]. Section 124 stipulates that the restriction to disclosure is only justified if public interest is injured. Section 124, thus, prescribes a heightened standard for the application of public interest immunity.

140Copy pinpoint140. The proportionality standard tests the effect of the infringement only at the balancing stage. Both the suitability prong and legitimate aim prong of the proportionality standard are framed in the language of purpose as opposed to effects. Section 124 of the Evidence Act stipulates that the right to fair trial and the right to information protected under Articles 21 and 19(1)(a) cannot be restricted to advance a public interest. The principle implicit in Section 124 of the Evidence D Act is that no purpose could be of sufficient importance to override the right to a fair hearing. Such a restriction is unjustified. It is only an injury of public interest that justifies the non-disclosure of documents.

141Copy pinpoint141. In view of the above discussion, the proportionality standard laid down by this Court in Modern Dental (supra) has to be nuanced keeping in view the standard that is prescribed by the provisions of Section 124 of the Evidence Act and the observations of this Court in SP Gupta (supra). Apart from the measure being in furtherance of a legitimate goal, there must be an injury to a legitimate goal. The burden is on the party opposing disclosure of material to prove all the sub-facets of the proportionality standard. The structured proportionality standard based on the principles in Section 124 of the Evidence Act is as follows: (i) Whether the disclosure of information would injure public interest (injury stage); (ii) Whether there is a less restrictive but equally effective alternative means; by which the injury to public interest could be protected (necessity stage); and (iii) Whether the public interest in non-disclosure outweighs the public interest in disclosure (balancing stage).

142Copy pinpoint142. In the balancing stage, as has already been laid down by this court in SP Gupta (supra) and the courts in the United Kingdom and

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Canada, considerations based on the facts of the case and on broader questions of principle have to be assessed. The Court has to consider if non-disclosure would render the issue non-justiciable, the relative relevancy of the material - on whether the material is ‘crucial’ or ‘necessary’, or is the essence of the case against the claimant, among others. On questions of principles, the Court shall consider the impact of non-disclosure on other constitutional rights such as the freedom of press. J. Public interest immunity or sealed cover: the less restrictive means

143Copy pinpoint143. The court must follow the structured proportionality standard, modified on the basis of the content of Section 124 of the Evidence Act, C to assess claims of public interest immunity. Under the structured proportionality standard, the court places the burden of proof on the party opposing disclosure of documents to prove the claim of public interest in non-disclosure. The proportionality test prescribes a strict standard to test the reasonableness of an action. As opposed to the structured standard of proportionality which must be used by the court D to assess public interest immunity claims, the exercise of power by courts to secure material in a sealed cover has rather been ad-hoc and extemporaneous.

144Copy pinpoint144. Article 145 of the Constitution grants the Supreme Court the power to make rules for regulating the practice and procedure of the E Court. In pursuance of its power under Article 145, the Supreme Court Rules 1966110 were notified. These Rules did not contain any provision on disclosure of documents to the court in a sealed cover. The 1966 Rules were substituted by the Supreme Court of India Rules 2013. Order XIII Rule 1 of the Supreme Court Rules 2013 stipulates that a party to a F proceeding in the Supreme Court shall be entitled to apply for and receive certified copies of all pleadings, judgments, decrees or orders, documents and deposition of witnesses made or exhibited in the proceeding. Rule 7 provides an exception to the rule. The rule stipulates that no person has a right to documents that are (i) confidential; (ii) directed to be placed in a sealed cover by the court or the Chief Justice; and (iii) the disclosure G of which is not in public interest. The rule states that documents that fall within any of the above clauses can be disclosed only with the permission of the court or the Chief Justice. Order XIII Rule 7 is extracted below for reference: 110 “1966 Rules” H

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A “7. Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in a sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order made by the Chief Justice or by the Court.”

145Copy pinpoint145. The power of the court to receive material relevant to a proceeding in a sealed cover is read from Order XIII Rule 7. Unlike the closed material procedure in the United Kingdom and Canada, the sealed cover procedure is not a creation of the legislature but of the courts. In fact, Rule 7 while prescribing the power of the court to receive material in a sealed cover also recognises non-disclosure on the ground of public interest immunity. The provision does not stipulate any guidelines for the exercise of power by the court to secure material in a sealed cover. D However, the Rule as a whole indicates that the court may exercise its power to secure material in a sealed cover if the material is confidential or the disclosure of which would injure public interest. As discussed above, public interest immunity claims also seek to address the same harms. It was not intended that the sealed cover procedure shall replace public interest immunity proceedings which constitute an established method for dealing with claims of confidentiality. The sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings.

146Copy pinpoint146. In both the sealed cover procedure and public interest immunity claims, the documents that are sought to be withheld from disclosure are not revealed to the counsel for the applicant. The proceedings, in effect, are conducted ex-parte where the counsel for the party claiming disclosure is precluded from accessing a part of the record in the proceedings. However, one crucial difference between the sealed cover procedure and public interest immunity claims is that in the former, the court relies on the material that is disclosed in a sealed cover in the course of the proceedings, as opposed to the latter where the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such material. Sealed cover procedures violate both principles of natural justice and open justice. In Al Rawi v. The Security Service111, the Supreme Court of the United H 111 (2011) UKSC 34

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Kingdom recognised that the closed material procedure causes a greater A degree of harm as compared to the public interest immunity. As held above, the closed material procedure is similar to the sealed cover procedure in as much as relevant material that is not disclosed to the applicant is used in the course of substantive hearings. In that case, the issue before the Court was whether the court has the power to order a B closed material procedure for the whole or a part of the trial. In a closed proceeding, the claimant would be represented by a Special Advocate who would be unable to take instructions from the claimant. The Supreme Court of the United Kingdom observed that a closed material procedure, unlike the law relating to public interest immunity, departs from the principles of both open justice and natural justice. Lord Dyson in his opinion observed as follows: “41. […]The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side’s special advocate and the court. I have already referred to the limits of the special advocate system.” E

147Copy pinpoint147. The total removal of the information from the proceedings has two impacts. First, it may lead to the dismissal of the proceedings instituted by the claimant, rendering the issue non-justiciable. Second, it may render the defendant (in this case, the State) defenceless. The court must also take into account these considerations while deciding if F a public interest immunity claim is a less restrictive means. Thus, at the second stage, the enquiry turns into whether the information excluded on a successful PII claim can be fairly removed from the proceeding.

148Copy pinpoint148. The report by the New Zealand Law Commission on National Security Information in Proceedings provides a two-step procedure for G dealing with sensitive information.112 The first consideration is whether the information should be disclosed to the party on a balance of 112 Law Commission, The Crown in Court: A review of the Court proceedings Act and

National Security Information in Proceedings (December 2015, Wellington, New Zealand) Report 135 H

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A considerations. The second consideration is whether the information can be fairly excluded from the proceedings. The Commission recommended that the court should opt for the closed material proceedings only if the material is ‘sufficiently relevant to the proceedings that it would be in the interest of justice to use a closed procedure rather than to exclude the information and proceed without it.” That is, the court concludes that national security considerations are so high that they trump over the relevancy of the document in proceedings but the information cannot be fairly excluded from the proceedings because it would cause one of the two injuries recognised above. The Commission recommends that it would be in the interest of justice to follow the closed proceedings to obviate such unfairness. The report recommended that the closed material procedure was to be used in addition to the public interest immunity procedure to protect the interest of justice. The report of the Law Commission of New Zealand also recognised that though the option of a closed procedure would be available to the State, it would be difficult for the State to prove that this would be in the interests of justice because it seeks to withhold information from the claimant and use it against them. The relevant observations of the Commission are extracted below : “5.51 At this second stage, the court determines whether to order the use of a closed procedure for part of the substantive hearing. The court should only order that part of the substantive hearing be closed where it is satisfied that the national security information is sufficiently relevant to the proceedings that it is in the interests of justice to use a closed procedure rather than to exclude the information and have the case proceed without it. Although a closed procedure would be available in cases where the national security information was beneficial to the Crown’s case, the interests of justice test will be much harder for the Crown to satisfy because it is seeking to withhold information from the other party but also use it against them. In some cases where the Crown is defending an action, the courts may consider that this is appropriate, but we would anticipate this would be quite rare. It is more likely that a G closed procedure would be in the interests of justice where it would prejudice the non-Crown party if the court excluded the national security information.”

149Copy pinpoint149. The Supreme Court of the United Kingdom dealt with the effect of exclusion of relevant material on a successful claim of public H

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interest immunity in Al Rawi (supra). In that case, it was argued by the A State that the Court must exercise its inherent power to order a closed material procedure in certain classes of cases, such as where the defendant cannot deploy its defence fully (or sometimes not at all) if an open procedure is followed. It was argued that exclusion of relevant material from the proceedings after the public interest immunity exercise reduces the chances of the court reaching a correct outcome. In other words, the case of the State was that the court has the power to substitute a closed material procedure for public interest immunity exercise in exceptional circumstances. While the Court unanimously agreed that the courts cannot substitute a public interest immunity procedure with the closed material procedure, the judges disagreed on whether a closed material procedure can be used in addition, and not in alternative, to the public interest immunity procedure.

150Copy pinpoint150. Lord Dyson in his opinion held that the court does not have the power to direct closed material procedure in addition to public interest immunity claim because: (i) closed material procedure is the antithesis of public interest immunity procedure. There is no equality of arms in closed material procedure; (ii) the party in possession of the document possesses sole knowledge of whether the document would be beneficial in their case. The claimant, who does not have access to the material would not be aware if the material would affect their case. It would thus put them in a disadvantageous position making the procedure inherently unfair to the one of the parties; and (iii) the courts should not be called to perform the exercise of deciding the relevance of a document to the case of claimant and the defendant.

151Copy pinpoint151. Lord Kerr in his opinion pointed out two additional problems with the argument of the State. He noted that the proposition that placing all evidence before the Judge is preferable to withholding potentially pivotal evidence from the proceedings is misleading. Lord Kerr observed that it cannot be assumed that the adjudicator would reach a fair result since the judge sees all the evidence because to be truly valuable, the evidence must be capable of withstanding challenge. The relevant observations are extracted below: “93. The appellants’ second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive - for what, the appellants imply, H

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A could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable B of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of C a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable.” D (emphasis supplied)

152Copy pinpoint152. Lord Kerr further observed that the State faces a healthy dilemma with public interest immunity claims since it will want to produce as much material as it can to defend its claim and would not resort to E public interest immunity claims comfortably because if their claim is allowed, then the material will be removed from the proceedings itself. The learned Judge observed that it would be tempting for the State to seek a closed material procedure claiming that all the documents when disclosed would injure national security.

153Copy pinpoint153. Lord Mance (with whom Lord Hale agreed) and Lord Clarke held that the court has the power to order a closed material procedure in certain circumstances after the public interest immunity claim is decided. However, they disagreed on what those certain circumstances would be. In Lord Mance’s view, after the public interest immunity claim is allowed, the court may order a closed material procedure if the material is in the defendant’s possession and the claimant consents for such a procedure to avoid their claim from being struck out. In Lord Clarke’s view, after the public interest immunity process has been completed, the parties should consider their respective positions and make representations to the judge who may order a closed material procedure depending on the facts of the case.

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154Copy pinpoint154. The recommendations of the Law Commission of New A Zealand and the opinions of Lord Clarke and Lord Mance in Al Rawi (supra) introduce closed material proceedings as an additional step after the completion of public interest immunity proceedings. The court in a closed material procedure, similar to the sealed cover process, relies on the material that the claimant is not privy to while disposing the proceedings. The closed material proceedings are sought to be introduced to counterbalance the injustice(s) caused on the conclusion of the public interest immunity proceedings.

155Copy pinpoint155. The claimant would be jumping into a pit of fire with their eyes closed even if they consent to a sealed cover procedure. As Lord Kerr remarked in Al Rawi (supra), the claim that closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. However, beyond this assumption, it must be recognised that the court could be misled by the material that is not subject to inspection and examination. This would lead a situation where the court renders an unfair judgment and such an unfair decision would not be amenable to both judicial review and public criticism on merits.

156Copy pinpoint156. While it cannot be denied that allowing a public interest immunity claim may cause some degree of injury to the procedural guarantees of the claimant and the defendant, a sealed cover procedure will not ensure a fairer proceeding. The purpose of public interest immunity proceedings would become redundant if the defendant is provided the option of requesting a closed material procedure after the conclusion of public interest immunity proceedings, which the defendant makes, is allowed. Rather, we are of the opinion that the effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State in making restricted claims of public interest immunity. Further, as Lord Dyson remarked, the procedure would be inherently disadvantageous to the claimant because they are unaware of the contents of the document.

157Copy pinpoint157. It may be argued that the removal of the documents from the proceedings would render the proceedings non-justiciable if the documents that are sought to be protected are so closely intertwined with the cause of action. Though the argument holds merit on a cursory glance, it does not hold water when delved into deeper. As observed above, one of the relevant considerations for the court in the balancing H

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A stage of adjudicating the public interest immunity claim is whether the non-disclosure of the material would render the issue non-justiciable. The court while analysing the relevancy of the material and the potential non-justiciability of the issue due to non-disclosure may direct that the material should be disclosed. The purpose of the balancing prong is to weigh in the conflicting claims and effects of such claims. Even if the B disclosure would conceivably injure public interest, the courts may still dismiss the claim of public interest immunity if the non-disclosure would render the issue non-justiciable, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure.

158Copy pinpoint158. The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both the parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding. In view of the above discussion, we are of the opinion that public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality. This leaves the final issue to be answered: if public interest immunity is a less restrictive means, then whether the procedure of sealed cover can be used at all, and if so, in what circumstances would it be permissible for the court to exercise its power to secure evidence in a sealed cover. While it would be beyond the scope of this judgment to lay down the possible situations when the sealed cover procedure can be used, it is sufficient to state that if the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. The court should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted.

159Copy pinpoint159. In view of the observations above, we are of the opinion that the respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover have violated the appellant’s right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellants’ H

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right to a fair hearing were reasonable. Therefore, the order of MIB A dated 31 January 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees. K Substantive Challenge: the validity of the action of the MIB in denying to renew the permission B

160Copy pinpoint160. In the course of his arguments, Mr Huzefa A Ahmadi, in addition to arguments on the violation of procedural guarantees, requested the court to peruse the material that was disclosed solely to the court in a sealed cover to decide if there was sufficient material to justify the non-renewal of permission. Thus, notwithstanding the conclusion that we have reached above setting aside the order of the MIB dated 31 C January 2022 and the judgment of the High Court dated 2 March 2022 on procedural grounds, we will proceed to decide the substantive challenge to the order denying renewal of permission on the ground of denial of security clearance by the MHA.

161Copy pinpoint161. In 2010, MBL applied for permission to uplink and downlink the news and current affairs television channel, ‘Media One’. MHA sought reports from IB and CBI for granting security clearance. CBI remarked that there was nothing adverse on record against MBL. IB reported that MBL shares a close association with ‘Madhyamam Daily’, and that the tenor of the articles carried out by Madhyamam Daily are adverse. To substantiate its conclusion on the adverse tenor of the articles, IB referred to reports of Madhyamam Daily on the alleged discrimination against Muslims in India and the allegedly soft attitude taken against “Hindu fundamentalists responsible for bomb blasts as opposed to the view taken against Muslim fundamentalists”. MHA considered the report and concluded that the remarks were not strong enough to deny permission on security grounds, thereby granting security clearance to MBL.

162Copy pinpoint162. Between 2014-2019, similar reports were submitted by IB when security clearance was sought for other proposals of MBL. IB made adverse remarks on MBL’s main source of income which was alleged to be from JEI-H sympathizers, and its anti-establishment stance. G To substantiate its conclusion that MBL has been taking an anti- establishment stance, references were made to its reports on UAPA, Armed Forces (Special Powers) Act, development projects of the Government, encounter killings, Citizenship (Amendment) Act, NRC, NPR, the Indian Judiciary’s alleged “double standards in terrorism cases”, H

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A and the alleged portrayal of security forces in a bad light. MHA denied security clearance based on the IB reports. We are required to decide if these reasons provide a justifiable ground for the denial of security clearance, and consequently, restricting MBL’s right to the freedom of press under Article 19(1)(a) of the Constitution.

163Copy pinpoint163. The freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The grounds stipulated in Article 19(2) include the “sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an C offence.” We have already held in Part C of this judgment that security clearance is a requirement for renewal of an Uplinking and Downlinking license. The denial of security clearance to operate a news channel is a restriction on the freedom of press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2) of the D Constitution.

164Copy pinpoint164. Though the courts have been using the proportionality standard to test the reasonableness of restrictions on fundamental rights after the decisions in Modern Dental (supra) and Justice KS Puttaswamy (9J) (supra), this has generally been deployed in the area of legislative action. The position laid down by this court is that all violations of fundamental rights have to be tested on the standard of proportionality. The court under Article 13 of the Constitution has the power to declare ‘laws’ that violate fundamental rights to be void. For the purpose of the provision, ‘law’ includes administrative action. The position of law that administrative action infringing fundamental freedoms has to be tested on the proportionality standard has been established by this court in its earlier judgments.113 Thus, the action of the MIB denying renewal of permission will be judicially reviewed based on the proportionality standard.

165Copy pinpoint165. The first test of the proportionality standard as laid down by this Court in Modern Dental (supra) requires the court to assess if the measure restricting the right has a legitimate goal. Article 19, unlike other provisions of Part III of the Constitution, prescribes the purposes for which the rights recognised can be reasonably restricted. Thus, the 113 Om Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. Ganayutham, (1997) 7 SCC 463 H

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purpose of the state action that is challenged must necessarily be A traceable to the grounds stipulated in Article 19(2) to test if the freedom of press has been reasonably restricted. Security clearance was denied on the basis of two grounds: the alleged anti-establishment stand of MBL, and the alleged link of MBL with JEI-H.

166Copy pinpoint166. An independent press is vital for the robust functioning of a B democratic republic. Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socio- C economic polity to political ideologies would pose grave dangers to democracy.

167Copy pinpoint167. The critical views of the Channel, Media-One on policies of the government cannot be termed, ‘anti-establishment’. The use of such a terminology in itself, represents an expectation that the press must support the establishment. The action of the MIB by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. Criticism of governmental policy can by no stretch of imagination be brought withing the fold of any of the grounds stipulated in Article 19(2).

168Copy pinpoint168. The note that was submitted by the IB on the alleged role and activities of JEI-H states that the organisation was banned thrice and all the three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court F had nullified the ban in 1994. Thus, when JEI-H is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with Foreign States, or public order. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by G cadres of JEI-H. In the support of this, IB has submitted a list of shareholders. However, there is no evidence on record to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious, firstly, because JEI-H is not a banned organisation and there is no material to conclude that the investment by JEI-H sympathizers would affect H

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A India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathizers would affect the security of the State, there is no material to prove that the shareholders are sympathizers of JEI-H. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose.

169Copy pinpoint169. The IB has noted that the above material against MIB attracts Sl. No. 20 and 22 of the security parameters annexed to the 2018 Guidelines which are used to assess security clearance proposals. Sl No. 20 reads as “Involvement in religious proselytization activities in India”, and Sl. No. 22 reads as “Intentional or systemic infringement of safety concerns or security systems endangering the safety of C the public”. There is no rational nexus between the material submitted against MBL to the security parameters in Sl. No 20 and 22 of the security parameters. MBL cannot be said to be indulging in religious proselytization for merely publishing reports on the alleged discrimination against the Muslim community in India, or infringing safety concerns by D a mere reference to the shareholding pattern of MBL. L. Conclusion and Directions

170Copy pinpoint170. In view of the discussion above, the appeals are allowed and the order of the MIB dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 are set aside. We summarise our findings E below: (i) Security clearance is one of the conditions required to be fulfilled for renewal of permission under Uplinking and Downlinking Guidelines;

F (ii) The challenge to the order of the MIB and judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgement of this Court in Maneka Gandhi (supra). The effect is that the courts have recognised that there is G an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case. Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case. The core of the principles of natural H

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justice breathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees; (b) The appellants have proved that MBL’s right to a fair hearing has been infringed by the unreasoned order of the MIB dated 31 January 2022, and the non-disclosure of relevant material to the appellants, and its disclosure solely to the court. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure. C

(c) The judgments of this court in Ex-Armymen’s Protection Services (supra) and Digi Cable Network (supra) held that the principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness; D

(d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; E

(e) The validity of the claim of involvement of national security considerations must be assessed on the test of (i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record; (f) Even assuming that non-disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard. The non-disclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong;

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A (g) The courts assess the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the structured proportionality standard. The power of courts to secure material in a sealed cover when contradistinguished with the scope of assessment of public interest immunity claims is rather unguided and ad- B hoc. The standard of review that is used by the courts in public interest immunity claims and the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means. Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles natural justice and open justice; (h) The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim; and (iii) The challenge to the order of MIB is allowed on substantive grounds. The non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged anti- establishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article F 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged.

171Copy pinpoint171. While we have concluded that a public interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Court. It is only the Court and the party seeking non-disclosure of the material who are privy to the public interest immunity proceedings. The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in

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the proceedings would be effectively impaired. While there may be A material on serious concerns of national security which cannot be disclosed; the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict. To safeguard the claimant against B a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.

172Copy pinpoint172. The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun and the counsel has viewed the document sought to be withheld. The amicus curiae shall to the best of their ability represent the interests of the applicant. The amicus curiae would be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel. E

173Copy pinpoint173. Article 145 of the Constitution stipulates that all judgments of the Supreme Court shall only be delivered in open court. Though public interest immunity proceedings will take place in a closed setting, the Court is required to pass a reasoned order for allowing or dismissing the claim in open court. We are cognizant of the objection that may be raised that an order justifying the reasons for allowing the claim would have to inevitably disclose information on the very material that it seeks to protect. The Court in such cases is still required to provide a reasoned order on the principles that it had considered and applied, even if the material that is sought to not be disclosed is redacted from the reasoned order. However, the redacted material from the reasoned order shall be preserved in the court records which may be accessed by the courts in the future, if the need arises.

174Copy pinpoint174. The Civil Appeals are accordingly allowed. MIB shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall co-operate in issuing necessary H

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A approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted.

175Copy pinpoint175. Pending application(s), if any, stand disposed of.

Bibhuti Bhushan Bose Appeals allowed. B (Assisted by : Shubhanshu Das, LCRA)