The appellants instituted proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court. The Annexure to the uplinking permission prescribes the following conditions: On the same day, MIB issued a registration certificate for downlinking of the Media One channel for a period of five years according to the provisions of the ‘Policy Guidelines for Downlinking of Television Channels’. 4 On 12 February 2016, MIB issued a notice to show cause to MBL proposing to revoke the permission for uplinking and downlinking granted to Media One and Media One Life in view of the denial of security clearance by MHA.
6 On 5 January 2022, MIB issued another show cause notice to MBL invoking clause 9.2 of the Uplinking Guidelines and proposed to ‘revoke’ the permission granted to operate Media One. It was not made a party to the proceedings and no material in this regard was served upon them; PART A 9 (ii) The grounds for denial of security clearance were not intimated; (iii) MBL and Media One Channel have not indulged in any activity that would warrant the denial of security clearance; (iv) MBL was served with a similar show cause notice on 12 February 2016 with respect to Media One channel. The appellants sought in the petitions: (i) setting aside of the order dated 31 January 2022 revoking the permission granted to Media-One; (ii) a direction to MIB and MHA to provide MBL an opportunity to be PART A 11 heard before revoking the permission; and (iii) a declaration that there are no circumstances warranting a denial of security clearance or the revocation of the license since MBL has not violated any law or indulged in anti-national activity.
The Single Judge held that: (i) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that when the application for renewal of permission is considered, the eligibility criteria stipulating the net worth of the company and experience of the top management will not apply. Union of India ); and (iii) The files submitted by MHA indicate that the Committee of Officers took note of the inputs provided by intelligence agencies and “found that the inputs are of a serious nature and fall under the security rating parameters. While the State cannot ordinarily interfere with the freedom of the press, the scope of judicial review in matters involving national security is limited; PART A 13 (iii) The Union of India may decline to provide information when “constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute”. Submissions 14 Mr Dushyant Dave, Senior Counsel appearing on behalf of MBL made the following submissions: (i) The order issued by MIB revoking the permission granted to uplink and downlink the channel, Media One, is unconstitutional for the following reasons: (a) Security Clearance is a pre-condition only for the grant of permission to operate the channel and not for the renewal of the existing permission. It pre- supposes that security clearance as required under Paragraphs 9.3 and 9.4 of the Uplinking Guidelines was granted before the permission was granted.
The renewal should have been granted automatically, more so because the show cause notice does not allege any violation of the conditions set down under Paragraph 10.2 of the Uplinking Guidelines; and (iii) MBL was not provided access to the material which MIB submitted before the High Court to support the allegations made in the show cause notice. It was also observed that ‘too many details are not available in the files produced before us”; and PART B 18 (d) This Court has consistently frowned upon the overbroad use of ‘national security’ to abridge fundamental rights. On the disclosure of relevant material to the High Court in a sealed cover, it was submitted that if there was sensitive information in the material, the respondent could have redacted it before allowing the appellants to peruse the file. Issues 18 The following issues arise in the course of determining the validity of the order issued by MIB refusing to renew the uplinking and downlinking permission granted to MBL to operate the television channel, Media One: (i) Whether security clearance is one of the conditions required to be fulfilled for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) In the statement filed by the ASG before the Kerala High Court, it was submitted that: (i) the application for ‘renewal’ filed by the MBL was forwarded by MIB to MHA; and (ii) by a letter dated 29 December 2021, MHA denied security clearance to MBL for ‘renewal’ of uplinking and downlinking permission. Though the show cause notice stated that security clearance which is a requirement for ‘renewal’ of license is denied, MIB was asked to show cause as to why its license should not be ‘revoked’. Paragraph 10.4 stipulates that the terms and conditions applicable at the time when permission is granted would be applicable at the time of renewal, subject to modifications made by the terms of the permission. The conditions stipulated in paragraph 10 for the renewal of uplinking and downlinking are : (i) The channel should not have violated the programme and advertisement code on five or more occasions; (ii) The channel should not have been found guilty of violating the terms and conditions of permission; and (iii) The channel must fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. 25
By an order dated 6 March 2020, MIB in exercise of powers conferred by Section 20(2) and 20(3) of the Cable television Networks (Regulation) Act 1995 and paragraphs 8.1 & 8.2 of the Uplinking Guidelines ordered the prohibition on the transmission and retransmission of Media-One channel for forty eight hours. Paragraph 3 of the Uplinking Guidelines (and paragraph 2 of the Downlinking Guidelines) prescribe the eligibility criteria for uplinking and downlinking a news and current affairs TV channel. Paragraphs 3 and 9 indicate that upon the receipt of the application form, MIB will undertake an exercise to determine if the PART D 25 conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled.
Though in view of Paragraph 10 of the Uplinking Guidelines, the licensee does not have a vested interest for renewal of the permission, the grounds for denying a renewal of license cannot be materially different from the grounds for revoking the licence. Thus, according to the Uplinking and Downlinking guidelines, security clearance from MHA is one of the conditions that is required to be fulfilled for renewal of permission for Uplinking and Downlinking of news channels. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. 33 There are three important considerations that have to be answered in the context: (i) Whether the non-disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing, that is protected under Articles 14 and 21; PART E 28 (ii) Whether the infringement of the right to a fair hearing would render the decision void; and (iii) If considerations of national security are an established exception to principles of natural justice, how should the court resolve the competing interests represented by the principles of natural justice and national security. The Court must choose between the two visions of either permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security.
The Court cautioned that there was an extreme danger in proceeding without putting forth the allegations against him because the veracity of the allegations could never be tested: 38 Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end in itself. The crux of the case was whether his lack of knowledge of the contents of the report led to a likelihood of bias – both conscious and unconscious. The perception of the general public that the decisions appear to be fair is important in building public confidence in institutions, which aid in securing the legitimacy of the courts and other decision making bodies. 41 Indian Courts have been significantly influenced by the courts in England on the interpretation, application, and content of natural justice, primarily because the principles are derived from common law and are grounded in the rule of law. Courts have with time substituted the usage of the terminology of the principles of natural justice with the doctrine of ‘fairness’ because natural justice is encapsulated in the doctrine of fariness; as Justice Bhagwati termed it, “fair-action in play”. The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice and that non- PART E 33 compliance with natural justice prejudiced the party.
The first, is the expansion of the meaning of the expression ‘procedure established by law’ as it finds place in Article 21 of the Constitution to include procedural due process. The Government of India declined to disclose its reasons for the action by relying on Section 10(5) of the Passports Act 1967 which stipulates that the reason for impounding the passport may not be given where the passport authority is of the opinion that the disclosure of reasons is not in the interests of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interest of general public. Union of India which had held that fundamental rights are not water- tight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 of the Constitution projects on the procedure that is PART E 35 contemplated by Article 21. The court held that the test that must be followed to determine if non-compliance of natural justice has led to an unreasonable procedure is whether the procedure that was followed (or the procedure that was not followed) violates the core of the primary tenets of natural justice- the right to a fair hearing and the right against bias. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14,19 and 21.
3 Standard to test reasonableness of procedure: proportionality as reasonableness 48 Once the applicant proves that the procedure that was followed was not reasonable with reference to the core of the principles of natural justice, the burden shifts on the State to prove that the limitation of the right is justified and reasonable. Though, only Article 19 of the constitution expressly prescribes that the limitation must be reasonable, after the judgments of this Court in RC Cooper (supra) and Maneka Gandhi (supra) it is conclusive that the thread of reasonableness runs through the entire chapter on fundamental rights guiding the exercise of procedural and substantive limitations. The link between reasonableness and proportionality and the necessity of using the proportionality standard to test the limitation on fundamental rights has been captured by Justice Jackson in the course of the Canadian Supreme Court’s judgment in R v. 51 We are of the opinion that the standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well. State of Madhya Pradesh establishing the proportionality standard to test the reasonableness of the infringements on substantive rights do not preclude the application of the proportionality standard to test the reasonableness of limitations on procedural guarantees. In such circumstances, MIB was put in a precarious position without any actual recourse to defend the case against them; (ii) Disclosure of material relevant to the decision: MHA declined to disclose any material that was relevant to its decision.
After the judgment of this court in Maneka Gandhi (supra), where this court prioritised the process (and the effect of the process) as opposed to the outcome (and the objective of the outcome), it is sufficient if the affected party PART F 42 proves that the procedure that was followed by the adjudicating authority was not procedurally fair and reasonable without any reference to the impact on the outcome due to non-compliance. The claimant must prove that the effect of non-compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed while making an argument from a component-facet perspective. 55 The appellants have discharged their burden by proving that the non-compliance of the above three principles infringed the core of the principles of natural justice: the right to a fair and reasonable hearing. A non-reasoned order limits the power of the courts to exercise judicial review because the scope of judicial review is not limited to the final finding on law or facts but extends to the reasons to arrive at the finding.
It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. It is now an established principle of natural justice that relevant material must be disclosed to the affected party. Union of India, one of us (DY Chandrachud, J) speaking for the court commented on the procedural infirmities which the procedure of sealed cover perpetuates: PART F 46 60 Upon a perusal of the material in sealed cover, the Single Judge of the High Court observed that the files submitted by MHA indicate that the Committee of Officers took note of the inputs provided by intelligence agencies and “found that the inputs are of a serious nature and fall under the security rating parameters.” The Single judge observed that “in those circumstances, the Committee of Officers advised not to renew the licence”. 61 On appeal, the Division Bench of the High Court observed that though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the state and public order would be impacted if the permission granted to MBL to operate the channel is renewed. The non-disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of the natural justice – the right to a fair and reasonable proceeding. 1 Natural justice and national security: decisions in Digi and Ex-armymen 63 In Ex-Armymen’s Protection Services (supra), the appellant was granted the business of ground handling services. The Division Bench of the High Court allowed the appeal and held that the materials could not be disclosed to the appellant in national interest. Minister of Civil Service was relied on to hold that strict observance of the principles of natural justice may not be possible when national security is involved. A two-Judge Bench of this Court dismissed the appeal by relying on the judgment in Ex-Armymen’s Protection Services (supra) PART G 51 holding that the appellant was not entitled to claim any prior notice before the order cancelling the permission was passed : 65 The observation in Ex-Armymen’s Protection Services (supra) that what is in national security is a question of policy and not law for the courts to decide was affirmed in the majority opinion in Justice KS Puttaswamy (5J) v.
66 It must be noted that this Court in Ex-Armymen’s Protection Services (supra) referred to a series of judgments from the Courts in the United Kingdom to elucidate the principle that the government is best placed to decide whether national security concerns are involved; and that principles of natural justice may not be complied with when issues of national security are involved. It was observed that there was ‘no satisfactory evidence’ that such a right was exercisable: “I PART G 53 68 In Council of Civil Service Unions (supra), the Minister of Civil Service released an instruction that employees of the Government Communications Headquarters cannot be a part of trade unions. The respondent defended its action on the ground that because “prior consultation would involve a real risk that it would occasion the very kind of disruption [at GCHQ] which was a threat to national security and which it was intended to avoid.” The House of Lords observed that generally the decision of whether the requirements of national security outweigh the duty of fairness is for the Government and not the courts to decide. In this context, it was observed that it has to be established by evidence that the interest of national security arises in judicial proceedings: PART G 55 On a perusal of the evidence, it was held that work at the headquarters involved matters of grave national security, and that if the employees and trade unions were consulted before the decision then the security would have been compromised. The Secretary of State also added that his deportation from the United Kingdom would be conducive to public good and ‘in the interests of national security’.
However, his decision is open to review on the above two grounds; and (iv) It was held in Council of Civil Service Unions (supra) that if it is contested that the deportation was not based on the grounds of national security, then the Government must produce evidence to satisfy the Court that the decision is based on the grounds of national security. The Commission has to determine (i) the factual basis for the executive’s opinion that deportation would be in the interests PART G 57 of national security’; (ii) if the decision of the Secretary of the State was one which a reasonable minister would have arrived at; and (iii) any other legal defence that was available to the appellant. At this stage, the court must make its decision based on the component of natural justice that is sought to be abrogated; and (iv) While satisfying itself of the national security claim, the Courts must give due weightage to the assessment and the conclusion of the State. The principle that was expounded in that case was that the principles of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness. The proportionality standard as laid down by this Court in Modern Dental (supra) is as follows: (i) The measure restricting a right must have a legitimate goal (legitimate goal stage). The State is also required to discharge the additional burden of proving that the action is indeed in furtherance of the legitimate aim that is contended to be served. For instance, the South African Constitution prescribes a general limitation clause which prescribes the general grounds to limit all fundamental rights. 79
Aharon Barak argues that one of the accepted grounds of proper purpose for the limitation of rights is public interest (or public good).
Thus, confidentiality and national security are legitimate goals recognised by the Constitution for the purpose of limiting procedural rights. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that the all such reports are confidential is another. Union of India, a three-Judge Bench of this Court held that though the extent of judicial review in matters concerning national security is limited, it does not mean that the State gets a free pass every time the argument of national security is made. The court observed: The issue is not whether the inference that national security concerns are involved is judicially reviewable. He observed that disorders affecting the security of State are more aggravated than disorders that affect public order and law and order: 84 Thus, the expression national security does not have a fixed meaning. The Court must assess the validity of the claim of purpose by determining (i) whether there is material to conclude that the non- disclosure of the information is in the interest of national security; and (ii) whether a reasonable prudent person would arrive at the same conclusion based on the material.
It is the executive wing and not the judicial wing PART G 67 that has the knowledge of India’s geo-political relationships to assess if an action is in the interest of India’s national security. However, the Intelligence Bureau made the following adverse remarks against MBL: (i) MBL is closely associated with ‘Madhyamam Daily’ which has links to Jamaat-e-Islami ; (ii) The tenor of articles carried out by ‘Madhyamam Daily’ was of an adverse nature from the security perspective; (iii) A few of the key executives of the applicant had associated with JEI-H; and PART G 68 (iv) The proposed TV channel may espouse the ideology of JEI/H if permitted to operate. The Supreme Court nullified the ban in 1994; (iii) JEI-H plays a crucial role in attracting and channelizing foreign funds to Islamic institutions in the country through official and clandestine channels; and (iv) JEI-H through its publication, Madhyamam Daily has been “critical of India’s foreign policy, besides indulging in anti-US propaganda. The IB report on Madhyamam Daily on the ‘tenor’ of the articles is extracted below: 89 In 2014, when security clearance was again sought by MBL for uplinking and downlinking TV Channels Media-One Life and Media One Global, IB submitted a report stating that fresh enquiries corroborated the issues that were flagged earlier.
Secondly, that enquiries have confirmed that Media One airs provocative programmes such as: (i) On 5 August 2015, the channel reportedly made attempts to denigrate the Indian Judiciary for alleged adoption of double standards in dealing with terrorism related cases; (ii) It blames US and Israel for the misery of the Muslims across the world; and (iii) a publication of MBL ‘Prabodhanam Weekly’, propagates fundamental Islamic viewpoint through its editorials.
92 However, on 22 January 2015, CoO recommended denial of security clearance to two proposals (A) to Uplink/downlink non-news and current affairs TV channel Media-One Life and Media-One Global; (B) for the appointment of two directors. It is crucial to note that as on the date when PART G 72 security clearance was denied by MHA, both Media One and Media One Life were existing news channels.
95
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The 2018 Guidelines stipulate that national security covers a wide range of issues but the principle focus, inter alia, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation and protecting the life, and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and prosperity of the country and its citizens. Clause 5 stipulates that the intelligence and law enforcement agencies will conduct an assessment based on the list of security parameters set out in in Annexure C. MHA noted that there is no reason to consider the renewal of permission if security clearance has been denied to the company and its directors earlier: PART G 75 97 Before addressing whether the non-disclosure of relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which Union of India has raised the claim of national security.
Some of the views that were highlighted in the IB report to conclude that MBL has an anti-establishment stand are that (i) it portrays security forces and the judiciary in a bad light; (ii) it highlighted the discrimination faced by minorities in the country and contrasted it with the State’s alleged soft attitude towards the Hindus who were involved in the destruction of Babri Masjid; and (iii) its comments on UAPA, Armed Forces (Special Power) Act, developmental projects of the PART G 76 Government, encounter killings, Citizenship (Amendment) Act, and CAA/NPR/NRC. Additionally, it cannot be argued that the purpose of national security will be served by non-disclosure merely by alleging that MBL is involved with JEI-H which is an organisation with alleged terrorist links. At this PART G 77 stage, the court is required to assess whether the means, if realised, would increase the likelihood of protecting the interests of national security and confidentiality. Though it is not necessary that the means opted should be the ‘best possible means’, the means must still pass the muster of the constitution. AF the House of Lords while interpreting the judgment of the ECHR in A (supra) held that there is a ‘core irreducible minimum’ of procedural guarantees which cannot be infringed. The sub-components of the necessity prong as devised by Bilchitz are as follows: PART G 79 (a) Whether there are other possible means which could have been adopted by the State; (b) Whether the alternative means identified realise the objective in a ‘real and substantial manner’; (c) Whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) Whether on an overall comparison (and balancing ) of the measure and the alternative, the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights.
Canada (Citizenship and Immigration), the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 2001 suffered from procedural infirmities. (I) Totten claim: non-justiciability of the issue 106 The Courts in the United States have recognised that in exceptional circumstances, the court must act in the interest of national security to prevent the disclosure of state secrets. The European Court of Human Rights accepted the contention of the appellant and held that the procedure violated the rights under Article 5(4) of the European Convention on Human Rights. The court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal Court judge holds an in – camera hearing of all the evidence; the applicant is provided a statement summarising the case that is made against them; and the confidential material is then disclosed to a security-cleared counsel who assists the court in testing the strength of the State’s case.
(III) Public Interest Immunity 109
The Evidence Act prescribes rules precluding disclosure of certain communications and evidence. The evidence shall be disclosed only with the permission of the officer at the head of the department: PART G 83 Section 124 provides that a public officer shall not be compelled to disclose communications made to him in official confidence if the disclosure affects public interest: 110 Section 162 stipulates that a witness who is summoned to produce a document in court shall bring the document to court notwithstanding any objection that is raised on its production and admissibility.
In a public interest immunity claim, the material is not relied on by both the parties and the court in the course of the substantive hearings.
It must be noted that special advocates are involved even in public interest immunity claims to represent the affected party in the closed hearing to decide if the relevant information must be disclosed. As opposed to this procedure, under the Totten claim, the claim is held to be non-justiciable at the pleading stage if the State contends that the proceedings are premised on state secrets. The closed material proceeding is more injurious to the claimant’s procedural guarantees as compared to public interest immunity because non-disclosed material is used by PART G 86 the State to defend its actions and relied on by the court to arrive at a conclusion. The relevant observations are extracted below: PART G 87 degree on closed material, the procedural requirements of Article 5 4 would not be satisfied.” (emphasis supplied) In view of the above discussion, public interest immunity is perhaps a less restrictive means of the alternative methods listed above. A reference jurisprudence of how the courts have dealt with public interest immunity claims will allow us to analyse if the courts have employed sufficient procedural guarantees to protect the rights of the applicant or have on the contrary been deferential to the claims of the State. It was observed that the court must assess if the disclosure that affects public interest would outweigh the concerns of private interest which disclosure of material to the litigant furthers: PART H 89 The court held that when a claim of public interest immunity is made against disclosure, the Court must on a preliminary enquiry of the affidavit determine if the document relates to affairs of the State. While the majority pitted the issues on the lines of public interest and private interest, Justice Subba Rao held that both disclosure and non-disclosure further public interest. Justice K K Mathew in his concurring opinion for the Constitution Bench raised doubts on the observation in Sodhi Sukhdev Singh (supra) that the Court does not have the power to inspect documents for which the claim of privilege is made. For other documents that do not belong to noxious classes, the courts ought to survey aspects of public interest involved in both disclosure and non-disclosure to assess the relative claims of the different aspects of public interest: PART H 91 118 In SP Gupta v. Justice Bhagwati observed that claim of class immunity is not absolute: PART H 92 119 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. Justice Bhagwati rejected the claim for non-disclosure by observing that the Union of India has been PART H 93 unable to prove its claim that the disclosure of the correspondence must be injurious to public interest.
This conclusion is apparent since Sodhi Sukhdev Singh (supra) has already held that only documents which affect public 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. 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. Injury due to non-disclosure must be determined on the basis of 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 (b) On principle: Whether non-disclosure would affect a constitutional principle other than administration of justice. The House of Lords in this case gave precedence to form over substance while assessing a public interest immunity claim for non-disclosure. 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 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. 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. 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). 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. 126 While answering the first test, the Court identified the impact 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. Applying the facts to the ‘alternate means test’, the court observed that the paragraphs that were sought to be 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. 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. 130 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.
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4 Canada 131 Similar to the Courts in the United Kingdom, the Canadian jurisprudence on non- disclosure of information has shifted away from ‘class’ scrutiny towards the scrutiny PART H 102 of individual documents. The court at 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 PART H 103 (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. The Court must consider the following factors while undertaking the balancing exercise : (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; (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 the public. 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. 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. 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. A party may file an application, 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 application shall be dismissed if the discovery of documents is not necessary for the fair disposal of the suit or for saving costs. 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.
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Case Title: MADHYAMAM BROADCASTING LIMITED Vs. UNION OF INDIA (2023 INSC 324)
Case Number: C.A. No.-008129-008129 / 2022
