Summary
The Ministry of Information and Broadcasting refused to renew the uplinking and downlinking permission of the news channel Media One because the Home Ministry denied security clearance on undisclosed intelligence inputs; the Kerala High Court upheld the refusal after reading the files in a sealed cover. The Supreme Court held that security clearance is a condition for renewal, but that the unreasoned order, non-disclosure and the sealed cover procedure violated the right to a fair hearing under Articles 14 and 21. National security does not wholly exclude natural justice; the State must show through material that non-disclosure serves it, and public interest immunity with an amicus curiae is a less restrictive means than sealed covers. Criticism of government and alleged shareholder links to an unbanned organisation are no ground under Article 19(2). Renewal directed within four weeks.
Issues
- Whether security clearance from the Ministry of Home Affairs is a condition for renewal of permission under the Uplinking and Downlinking Guidelines.
- Whether denying renewal on undisclosed grounds and the High Court's reliance on material disclosed only in a sealed cover violated the appellants' procedural guarantees under Articles 14 and 21, and how claims of national security against disclosure are to be tested.
- Whether non-renewal based on the channel's alleged anti-establishment stance and its shareholders' alleged links to Jamaat-e-Islami Hind is a reasonable restriction on the freedom of the press under Article 19(2).
- What procedure courts should follow when the State seeks to withhold material on grounds of national security or confidentiality.
Provisions considered
- Articles 14 and 21, Constitution of IndiaNatural justice is constitutionalised; procedure must be fair and reasonable independent of outcome, and limitations on procedural rights are tested on the proportionality standard. The unreasoned order, non-disclosure of relevant material and sealed cover disclosure infringed the core of the right to a fair hearing. (¶¶ 43, 45, 47, 51, 54, 55, 57, 61, 159)
- Article 19(1)(a) and 19(2), Constitution of IndiaNon-renewal of a news channel's permission restricts the freedom of the press and is permissible only on the grounds in Article 19(2); critical reporting on government policy and shareholding by sympathisers of an organisation that is not banned are not legitimate purposes under that clause. (¶¶ 163, 165, 166, 167, 168, 169)
- Sections 123, 124 and 162, Indian Evidence Act, 1872Public interest immunity under these provisions removes the material from the proceedings altogether; a claim must be made by affidavit and tested on a proportionality standard adapted to Section 124, which permits non-disclosure only where disclosure would injure public interest. (¶¶ 109, 110, 111, 136, 139, 140, 141)
- Order XIII Rule 7 (read with Article 145 of the Constitution), Supreme Court Rules, 2013The source of the court's power to receive material in a sealed cover; the rule contemplates confidentiality and public interest harms already addressed by public interest immunity and prescribes no guidelines, so the sealed cover procedure cannot displace public interest immunity proceedings. (¶¶ 144, 145)
- Paragraphs 9.2, 10.2 and 10.4 (Uplinking) and corresponding paragraphs 8 and 9 (Downlinking), Policy Guidelines for Uplinking of Television Channels from India, 2011 and Policy Guidelines for Downlinking of Television Channels, 2011Renewal is not a vested right and all conditions for grant other than net worth and management experience apply at renewal, including security clearance under paragraph 9.2; but as the permission letter allows revocation only on national security and public order, clearance can be denied at renewal only on those grounds. (¶¶ 22, 23, 27, 28, 29, 30)
Held
- Security clearance is one of the conditions required for renewal of uplinking and downlinking permission: paragraph 10.4 of the Uplinking Guidelines applies all conditions of grant other than net worth and managerial experience at renewal, and the heading of paragraph 9 as procedure does not detract from the substantive condition in paragraph 9.2. The grounds for refusing renewal cannot differ materially from the grounds for revocation, since both restrict the freedom of the press. (¶¶ 27, 28, 29, 30)
- After Maneka Gandhi, procedural fairness has inherent value and a violation of the core of natural justice vitiates the action regardless of effect on outcome; the claimant must prove the procedure infringed that core, whereupon the burden shifts to the State to justify the limitation on the standard of proportionality, which applies to procedural as much as substantive rights. (¶¶ 45, 47, 48, 51, 54)
- The appellants proved infringement of the core of a fair hearing: the Ministry did not disclose even a summary of reasons for denying clearance, all relevant material was withheld, and the High Court received the files in a sealed cover without considering less restrictive means and rendered non-reasoned orders, leaving the appellants to fight in the dark and rendering the writ remedy a dry parchment. (¶¶ 55, 56, 57, 58, 59, 60, 61)
- Ex-Armymen's Protection Services and Digi Cable do not hold that natural justice is excluded whenever national security is invoked; they hold that it may be excluded where, on the facts, national security concerns outweigh the duty of fairness. The State must first satisfy the court that national security is involved and then that abrogation of natural justice is justified, a test resembling proportionality. (¶¶ 74, 75)
- Confidentiality and national security are legitimate aims, but a blanket claim that all intelligence reports are confidential is unacceptable; the court tests a national security claim by asking whether there is material to conclude that non-disclosure serves national security and whether a reasonable prudent person would draw that inference, giving due deference but not permitting claims made out of thin air. On the files, the material and the inference of a threat had no nexus, and the Union invoked national security in a cavalier manner. (¶¶ 80, 81, 84, 97, 98, 99)
- Even assuming a legitimate aim, non-disclosure of a summary of reasons fails the suitability prong because the essence of the case against a person is the core irreducible minimum of procedural guarantees under Article 14; and public interest immunity, under which the material is removed from the proceedings for all parties, is a less restrictive and equally effective means than the sealed cover procedure, which lets the State and the court rely on material the affected party cannot see and violates both natural justice and open justice. Where the purpose can be realised by public interest immunity or other less restrictive means, the sealed cover procedure should not be adopted. (¶¶ 101, 102, 111, 113, 145, 146, 156, 158)
- Public interest immunity claims are to be assessed on a structured proportionality standard adapted to Section 124 of the Evidence Act, the burden lying wholly on the party opposing disclosure: whether disclosure would injure public interest; whether a less restrictive but equally effective alternative exists; and whether the public interest in non-disclosure outweighs that in disclosure, considering relevance, potential non-justiciability and impact on other constitutional rights such as press freedom. Courts may redact confidential portions and supply a summary. (¶¶ 137, 138, 141, 142, 158)
- To safeguard the claimant in closed public interest immunity proceedings the court may appoint an amicus curiae who is given access to the withheld material, may interact with the applicant before but not after the proceedings begin, represents the applicant's interests and is bound by oath of non-disclosure; the court must pass a reasoned order in open court on the principles applied, with the protected material redacted but preserved on the record. (¶¶ 171, 172, 173)
- On the substantive challenge, denying security clearance for the channel's critical views on government policy, labelled anti-establishment, and for alleged shareholding by sympathisers of Jamaat-e-Islami Hind, an organisation whose bans were all lifted and whose link to the shareholders was unsupported by any material, serves no legitimate goal under Article 19(2), produces a chilling effect on press freedom, and has no rational nexus to the security parameters on religious proselytisation or endangering public safety. (¶¶ 163, 166, 167, 168, 169)
Result
Appeals allowed; order of the Ministry of Information and Broadcasting dated 31 January 2022 refusing renewal of permission for the Media One channel and the Kerala High Court judgment dated 2 March 2022 set aside on both procedural and substantive grounds; Ministry directed to issue renewal permissions within four weeks with all other authorities to cooperate; the interim order permitting the channel to operate to continue until renewal is granted; pending applications disposed of.