The words “National Security” have often been used by Governments and their lawyers as a magic incantation, to ward off courts from asking questions about the rights of seemingly deviant citizens. Governments claim in court that citizens' liberties must yield to the requirements of high state policy.
All too often, courts have fallen for this line of argument and ended up being more executive-minded than the executive itself. In the recent past, the Indian Supreme Court’s judgments in the Prevention of Money Laundering Act (PMLA) and Unlawful Activities (Prevention) Act (UAPA) cases, have empowered executive tyranny and left citizens bereft of any judicial intervention short of an ultimate acquittal after a prolonged trial.
Against this depressing backdrop, the Supreme Court's judgment in the MediaOne case, as Shakespeare would put it, “shines like a good deed in a naughty world.”
What Happened Before the Case Reached the Top Court?
MediaOne, a Malayalam news channel, was denied permission for uplinking and downlinking its satellite broadcasts under the cable TV rules. The Ministry of Information and Broadcasting (I&B Ministry) denied this permission, based on inputs from the Ministry of Home Affairs (MHA).
Intelligence agencies advising the MHA, basically felt that the shareholders of the company that ran the channel, were sympathisers of the Jamaat-e-Islami and that the channel itself had an anti-government stance.
Its coverage on issues involving the CAA-NRC, judicial verdicts involving Muslims and Islamic issues came under the scanner. These inputs led the Union of India to justify the ban by producing a report in a sealed cover to the Kerala High Court. Both the single judge and the division bench of the High Court, relied on the sealed cover reports, to uphold the ban.
Government Had No justification for Withholding Information
The channel’s appeal to the Supreme Court has succeeded because the Supreme Court looked into the cover and has now said that not only was there nothing much in the material, but that the government had no justification for withholding information from everyone but the courts.
The judgment by a bench of Chief Justice of India DY Chandrachud and Justice Hima Kohli begins by stating, “This case presents the Court with an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. 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.”
In choosing between the two, the court was of the opinion "...that the standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well. The courts have to undeniably undertake a balancing exercise while deciding if the limitation on the right is valid….The standard of proportionality infuses a culture of justification, where the State has to discharge the burden of justifying that its action was reasonable and not arbitrary.”
The court, when handed over a sealed cover, should not be satisfied by merely peeking into it and holding its peace.
The Kerala High Court was faulted because “instead of deciding if any other less restrictive but equally effective means could have been employed, (it) straight away received the material in a sealed cover without any application of mind."
The Ruling Frowns Upon Blind Faith in Sealed Cover Reports
The judgment cautions, “when relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the state) in the course of the arguments, and the court arrives at a finding by relying on the material. In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any material before the adjudication authority.”
Reliance on sealed covers have been disapproved because it “… perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge."
The judgment, further opposes sealed covers because the affected party would be unable to “contradict errors, identify omissions, challenge the credibility of informants or refute false allegations."
"The right to seek judicial review which has now been read into Articles 14 and 21 is restricted….., the sealed cover practice places the process by which the decision is arrived beyond scrutiny," the verdict adds.
The judgment thus frowns upon blind faith reposed in sealed cover reports furnished by the executive relying on its intelligence agencies.
It rules, “ If the State discards its duty to act fairly, then it must be justified before the court on the facts of the case. Firstly, the State must satisfy the Court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified…..To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that all such reports are confidential is another."
"Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values. 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….," the verdict adds.
The judgment does not totally rule out claims of non-disclosure on grounds of national security. The court requires a higher degree of effort before such a claim is accepted:
“…it is imperative for the State to prove through the submission of cogent material that non-disclosure is in the interest of national security. It is the Court’s duty to assess if there is sufficient material for forming such an opinion. A claim cannot be made out of thin air without material backing for such a conclusion. The Court must determine if the State makes the claim in a bona fide manner."
The judgment further notes that 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
Whether a reasonable prudent person would arrive at the same conclusion based on the material
Why This Judgment Will Be Celebrated
The court in no uncertain terms, has upheld the freedom of speech especially in the context of press freedom to dissent and criticise the government. It concluded that:
“An independent press is vital for the robust functioning of a 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."
In times to come, this judgment may well be celebrated as the Supreme court standing up in tough times, for free speech and against a rampant executive.
Excessive reliance on the national security mantra, has been repelled by a simple reliance on the standard of a reasonable man.
The court has simply asked the executive, to provide reasons for its actions and to tell it and the concerned citizen, why exactly the material it relies on, cannot be disclosed. On a case to case basis, the courts will be the ultimate arbiter of whether disclosure or non-disclosure better subserves the public interest.
While the state is entitled to keep its secrets, it cannot claim to be entitled to classify everything as a state secret. Courts will be entitled to scrutinise secret material, to judge the necessity for secrecy and also the extent and methods of disclosure.
Courts will have to strike a balance between the citizen’s right to know the prejudicial material against him and the state’s right to protect its secret information.
“…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 has chosen to maintain a fine balance.
(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)