2023 Supreme(SC) 304

SUPREME COURT OF INDIA
D.Y. Chandrachud, CJI., Hima Kohli, J.
Madhyamam Broadcasting Limited – Appellant
Versus
Union of India & Ors. – Respondents
Civil Appeal No. 8129 of 2022 with Civil Appeal No. 8130 of 2022 and with Civil Appeal No. 8131 of 2022
Decided On : 05-04-2023

IMPORTANT POINTS
(1) Sealed Cover Procedure violate both principles of natural justice and open justice.
(2) It is executive wing and not judicial wing that has knowledge of India’s geo-political relationships to assess if an action is in interest of India’s national security – Court cannot second-guess judgment of State that purpose identified would violate India’s national security.

Headnote:

(A) Cable Television Networks (Regulations) Act 1995 – Section 4(6) read with Article 19(2) of Constitution of India – Refusal to renew permission for Uplinking and Downlinking on the ground security clearance – Though licensee does not have a vested interest for renewal of permission, grounds for denying renewal of license cannot be materially different from grounds for revoking licence – Both non-renewal of license and revocation of license are restrictions on right to freedom of press – Intent behind exclusion of eligibility criteria of net worth and managerial experience for the purpose of a renewal application is because freedom of press cannot be restricted on grounds other than stipulations under Article 19(2) of Constitution – MHA disclosed material forming opinion for denying of security clearance solely to High Court – High Court instead of deciding if any other less restrictive but equally effective means could have been employed, straight away received material in a sealed cover without any application of mind – This form of adjudication perpetuates a culture of secrecy and opaqueness and places judgment beyond reach of challenge – Corresponding effect of sealed cover procedure is a non-reasoned order. (Paras 30, 58, 59, 60 and 170)

(B) Cable Television Networks (Regulations) Act 1995 – Section 4(6) read with Article 19(2) of Constitution of India – Refusal to renew permission for Uplinking and Downlinking on the ground security clearance – Security clearance was denied to MBL because of its alleged link with JEI-H, and its alleged anti-establishment stance – Respondents by not providing a reasoned order denying renewal of license, not disclosing relevant material and by disclosing material only to court in a sealed cover have violated appellant’s right to a fair hearing protected under Article 21 of Constitution – IB has solely relied upon programmes that were broadcast by Media – Critical views of Channel, Media-One on policies of Government cannot be termed, ‘anti-establishment’ – Use of such a terminology in itself, represents an expectation that Press must support establishment – Action of MIB by denying a security clearance to a media channel on basis of views which channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom – Order of MIB set aside. (Paras 98, 99, 100, 159 and 167)

(C) Judicial review of administrative action – Parameters – An administrative action can be challenged on the ground of violation of fundamental rights – Following expansion of content of right to equality under Article 14 to include guarantee against arbitrariness, grounds for judicial review of administrative action have expanded – Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety – Administrative action can also be reviewed on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of Constitution. (Paras 31 and 170)

(D) Natural Justice – Principles of natural justice ensure that justice is not only done but it is seen to be done as well – They seek to realise Fair Outcome; Inherent value in fair procedure; Legitimacy of decision and decision making authority and Dignity of Individuals – Once applicant proves that procedure that was followed was not reasonable with reference to core of principles of natural justice, burden shifts on State to prove that limitation of right is justified and reasonable – Non-compliance of every facet and component of natural justice does not render procedure unreasonable – Claimant must prove that effect of non-compliance of a component of natural justice is so grave that core of right to a fair trial is infringed while making argument from a component-facet perspective – Procedure followed must not infringe upon core which secures reasonableness of a procedure. (Paras 35, 36, 38, 39, 40, 48, 54 and 56)

(E) Sealed Cover Procedure – National Security – A claim cannot be made out of thin air without material backing for such a conclusion – Court must determine if State makes claim in a bona fide manner – Courts do not resort to a hands-off approach when it is claimed that national security implications are involved – Expression national security does not have a fixed meaning – It is imperative for State to prove through submission of cogent material that non-disclosure is in interest of national security – It is Court’s duty to assess if there is sufficient material for forming such an opinion – Court allows due deference to State to form its opinion but reviews the opinion on limited grounds of whether there is nexus between material and conclusion – Court cannot second-guess judgment of State that purpose identified would violate India’s national security – It is executive wing and not judicial wing that has knowledge of India’s geo-political relationships to assess if an action is in interest of India’s national security. (Paras 83 and 84)

(F) Indian Evidence Act, 1872 – Sections 123, 124 and 162 – Public Interest Immunity – Conflict of claims of public interest must be determined based on importance of documents sought to be withheld in the case before court – Substance of a public interest immunity claim is to seek exception to compliance of principles of natural justice – Claim of public interest immunity allows State to remove material from proceedings on the ground that its disclosure would injure public interest – In a public interest immunity claim, material is not relied on by both parties and court in course of substantive hearings – Totten claim limits fundamental right to judicial review since claims based on State secrets are rendered non-justiciable – However, in a public interest immunity claim, whichever way claim is decided, parties will have equality of arms because same evidence will have to be relied on in course of proceedings. (Paras 111, 112, 113, 123, 137 and 138)

(G) Supreme Court Rules, 1966 – Order XIII Rule 7 – Sealed Cover Procedure – Court may exercise its power to secure material in a sealed cover if material is confidential or disclosure of which would injure public interest – Public interest immunity claims also seek to address same harms – Sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings – One crucial difference between sealed cover procedure and public interest immunity claims is that in the former, court relies on material that is disclosed in a sealed cover in course of proceedings, as opposed to latter where documents are completely removed from proceedings and both parties and adjudicator cannot rely on such material – Sealed cover procedures violate both principles of natural justice and open justice. (Paras 145, 146, 156 and 173)

Facts of the case:

Union Ministry of Information and Broadcasting, “MIB”, revoked the permission which it had granted to Madhyamam Broadcasting Limited, “MBL”, to uplink and downlink a news and current affairs television channel called “Media One”. Appellants, comprising of MBL, trade union of working journalists, and editor, Senior Web Designer and Senior Cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of Constitution before High Court of Kerala for challenging the action of the first respondent. By a judgment dated 8 February 2022, a Single Judge dismissed the petitions. Writ appeal was dismissed by the Division Bench of the High Court by a Judgment dated 2 March 2022. High Court relied on material which was disclosed solely to the Court in a sealed cover by second respondent, Union Ministry of Home Affairs, “MHA”. Appellants instituted proceedings under Article 136 of Constitution to challenge correctness of Judgment of Division Bench of High Court.

Findings of Court:

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

Result : Civil Appeals allowed.