Decoding the Supreme Court’s Media One judgement
The Supreme Court, in its judgment, said an independent press “shines a light on the functioning of the State”.
By striking down the action of the Union government in cancelling uplinking and downlinking permission to the Madhyamam Broadcasting Limited (MBL)-run Media One news channel, the Supreme Court on Wednesday may have set a precedent that could not only sound a virtual death knell on sealed cover procedures but also remind the other courts of their duty of ascertaining compliance with the principles of natural justice and the open court system.
Also read: 'Critical views can't be termed anti-establishment': SC cancels channel ban
The judgment of the Court while dealing with MBL’s arguments of being denied a fair hearing before the Kerala high court which accepted the Centre’s “sealed cover” to dismiss the company’s petition on February 8 and March 2 last year, said that sealed cover procedures result in a non-reasoned order giving no scope for the affected party to seek judicial redress.
In arriving at this conclusion, the bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice Hima Kohli had to wade through the prevailing practice in foreign jurisdictions on the issue of admissibility of documents on which privilege is claimed. The judges posed to themselves a question whether national security can be an overwhelming ground to deny procedural guarantees to a citizen and finally, in the event of concerns of national interest and principles of natural justice, which concern should prevail.
To understand this, a little background to the case is essential. MBL approached the top court claiming violation of principles of natural justice in three forms. The company which runs the news and current affairs channel Media One was not allowed to continue transmission of its channel on January 31 last year after it was denied security clearance by Ministry of Home Affairs. That this was a non-reasoned order which formed the first plank of its arguments. Second, the underlying material to deny it security clearance was never disclosed and finally, in the Kerala high court, when it asked to know the reasons, the same was again denied when the high court closed the matter after examining the material placed before it in a sealed cover.
Commenting on what went wrong in the case, the bench referred to international practices .
In its 134-page judgment, the bench traversed through jurisdictions of foreign countries to understand how they treated the subject.
The Court noted a 2011 judgment of the Supreme Court of United Kingdom which recognised that the closed material procedure causes a greater degree of harm as compared to so-called public interest immunity.
The court distinguished between a sealed cover procedure and a public interest immunity (PII) proceeding. In a sealed cover proceeding, there are more restrictions on disclosure compared to PII proceeding, as prevailing in some common law countries, which is less restrictive. The PII proceeding essentially meant that the confidential portions of the documents would be redacted from the file and a summary of the contents of the document be shared with the other side.
The bench found that 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 premises of a democracy... It denies the citizens an opportunity to initiate a discussion or question the functioning of the government,” the judgment said.
When it came to courts in the United States, the judgment found them to be “deferential to the claim of non-disclosure, particularly on the grounds of national security.” This was prevalent to such an extent 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,” the bench said.
It next examined Canada where the party seeking production of document 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, the top court observed. “Once the injury due to disclosure is proved, the Courts in the UK and Canada follow the structured proportionality test to balance the conflicting claims of public interest,” the top court noted.
Laying down the test for courts to determine where sealed cover vis-a-vis PII proceeding is to be resorted to, the judgment said, “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.”
National security claims
National security was one of the grounds cited by the government to deny disclosure of document to MBL. The court was clear that a claim cannot be made “out of thin air” without material backing . It examined the State’s claim and found that it had nothing to prove that non-disclosure was in the interest of national security.
As a rule of guidance for courts in future when confronted with this question, the Court formulated a two-step test. “The Court must assess the validity of the claim of purpose by determining whether there is material to conclude that the non-disclosure of the information is in the interest of national security and whether a reasonable prudent person would arrive at the same conclusion based on the material.”
In the case at hand, the court made it clear 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,” the bench said.
The security concern regarding MBL was its alleged link with Jamat-e-Islami- Hind, a socio-religious organisation. The Court on going through the MHA file found no evidence on the alleged link between the MBL shareholders and JEI-H. Even the other ground of confidentiality claimed by MHA to deny disclosure was not found by the court.
Referring to the Intelligence Bureau inputs, the court noted: “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.”
Although the Centre argued that reports of investigative agencies enjoy blanket immunity from disclosure, the Court rejected this outright. It said: “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.”
Natural justice principles
After finding no merit in the national security and confidentiality argument, the court was left to examine whether MBL made out a case of being denied a fair hearing based on priniciples of natural justice. The bench explained that these principles essentially require fulfilment of two rules – audi alteram partem (rule of fair hearing) and nemo judex in causa sua (no person should be a judge of their own cause).
MBL claimed that government did not comply with the first principle because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. The government claimed this was not essential as it concerned an issue of national security where the other side is not to be heard.
The bench formulated that principles of natural justice seek to achieve four purposes -- fair outcome, fair procedure, legitimacy of the decision and decision-making authority, and dignity of individuals. “Natural justice principles breathe reasonableness into the procedure,” it said.
It further held: “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.”
By striking down the action of the Union government in cancelling uplinking and downlinking permission to the Madhyamam Broadcasting Limited (MBL)-run Media One news channel, the Supreme Court on Wednesday may have set a precedent that could not only sound a virtual death knell on sealed cover procedures but also remind the other courts of their duty of ascertaining compliance with the principles of natural justice and the open court system.
Also read: 'Critical views can't be termed anti-establishment': SC cancels channel ban
The judgment of the Court while dealing with MBL’s arguments of being denied a fair hearing before the Kerala high court which accepted the Centre’s “sealed cover” to dismiss the company’s petition on February 8 and March 2 last year, said that sealed cover procedures result in a non-reasoned order giving no scope for the affected party to seek judicial redress.
In arriving at this conclusion, the bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice Hima Kohli had to wade through the prevailing practice in foreign jurisdictions on the issue of admissibility of documents on which privilege is claimed. The judges posed to themselves a question whether national security can be an overwhelming ground to deny procedural guarantees to a citizen and finally, in the event of concerns of national interest and principles of natural justice, which concern should prevail.
To understand this, a little background to the case is essential. MBL approached the top court claiming violation of principles of natural justice in three forms. The company which runs the news and current affairs channel Media One was not allowed to continue transmission of its channel on January 31 last year after it was denied security clearance by Ministry of Home Affairs. That this was a non-reasoned order which formed the first plank of its arguments. Second, the underlying material to deny it security clearance was never disclosed and finally, in the Kerala high court, when it asked to know the reasons, the same was again denied when the high court closed the matter after examining the material placed before it in a sealed cover.
Commenting on what went wrong in the case, the bench referred to international practices .
In its 134-page judgment, the bench traversed through jurisdictions of foreign countries to understand how they treated the subject.
The Court noted a 2011 judgment of the Supreme Court of United Kingdom which recognised that the closed material procedure causes a greater degree of harm as compared to so-called public interest immunity.
Also read: Supreme Court refuses to entertain plea of 14 parties alleging misuse of CBI, ED
The court distinguished between a sealed cover procedure and a public interest immunity (PII) proceeding. In a sealed cover proceeding, there are more restrictions on disclosure compared to PII proceeding, as prevailing in some common law countries, which is less restrictive. The PII proceeding essentially meant that the confidential portions of the documents would be redacted from the file and a summary of the contents of the document be shared with the other side.
The bench found that 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 premises of a democracy... It denies the citizens an opportunity to initiate a discussion or question the functioning of the government,” the judgment said.
When it came to courts in the United States, the judgment found them to be “deferential to the claim of non-disclosure, particularly on the grounds of national security.” This was prevalent to such an extent 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,” the bench said.
It next examined Canada where the party seeking production of document 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, the top court observed. “Once the injury due to disclosure is proved, the Courts in the UK and Canada follow the structured proportionality test to balance the conflicting claims of public interest,” the top court noted.
Laying down the test for courts to determine where sealed cover vis-a-vis PII proceeding is to be resorted to, the judgment said, “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.”
National security claims
National security was one of the grounds cited by the government to deny disclosure of document to MBL. The court was clear that a claim cannot be made “out of thin air” without material backing . It examined the State’s claim and found that it had nothing to prove that non-disclosure was in the interest of national security.
As a rule of guidance for courts in future when confronted with this question, the Court formulated a two-step test. “The Court must assess the validity of the claim of purpose by determining whether there is material to conclude that the non-disclosure of the information is in the interest of national security and whether a reasonable prudent person would arrive at the same conclusion based on the material.”
In the case at hand, the court made it clear 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,” the bench said.
The security concern regarding MBL was its alleged link with Jamat-e-Islami- Hind, a socio-religious organisation. The Court on going through the MHA file found no evidence on the alleged link between the MBL shareholders and JEI-H. Even the other ground of confidentiality claimed by MHA to deny disclosure was not found by the court.
Referring to the Intelligence Bureau inputs, the court noted: “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.”
Although the Centre argued that reports of investigative agencies enjoy blanket immunity from disclosure, the Court rejected this outright. It said: “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.”
Natural justice principles
After finding no merit in the national security and confidentiality argument, the court was left to examine whether MBL made out a case of being denied a fair hearing based on priniciples of natural justice. The bench explained that these principles essentially require fulfilment of two rules – audi alteram partem (rule of fair hearing) and nemo judex in causa sua (no person should be a judge of their own cause).
MBL claimed that government did not comply with the first principle because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. The government claimed this was not essential as it concerned an issue of national security where the other side is not to be heard.
Also read: ‘17 courts working in one court’: Justice Gavai on benches of Supreme Court
The bench formulated that principles of natural justice seek to achieve four purposes -- fair outcome, fair procedure, legitimacy of the decision and decision-making authority, and dignity of individuals. “Natural justice principles breathe reasonableness into the procedure,” it said.
It further held: “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.”
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