National Security Concerns Won't Absolutely Abrogate Principles Of Natural Justice; No Blanket Immunity For IB Reports : Supreme Court

In a significant judgment boosting the interests of transparency, the Supreme Court held that the State cannot claim absolute immunity from disclosure of materials by merely claiming that they are related to national security.

Quashing the decision of the Ministry of Information and Broadcasting to refuse renewal of telecast license for the Malayalam news channel MediaOne, a bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli held that "concerns of national security do not permit an absolute abrogation of the principles of natural justice"(Para 76 of the judgment).

In this case, the renewal of license was refused on the ground that the Ministry of Home Affairs did not give security clearance. However, the exact reasons were not disclosed to the channel management. When the channel management approached the Kerala High Court, the MHA furnished the materials to the Court in a "sealed cover". Relying upon the sealed cover document, the High Court dismissed the channel's petition.

Mere involvement of national security issues won't preclude the State's duty to act fairly

The Centre raised the plea of "national security" to claim immunity for disclosure of the materials.  Therefore, one of the issues before the Supreme Court in the channel's appeal was whether national security was a complete exception to the principles of natural justice.

The Centre contended that decisions in Ex-Armymen's Protection Services Private Limited v. Union of India and others [(2014) 5 SCC 409] and  Digi Cable Network (India) Private Limited v. Union of India and others [AIR 2019 SC 455] have held that the principles of natural justice have no application when national security issues are involved.

However, the bench noted that these precedents did not provide an absolute exemption and have only held that 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 mere involvement of issues concerning national security would not preclude the state’s duty to act fairly", stated the judgment authored by CJI DY Chandrachud (Para 75).  

Court can examine if the State's claim for exemption on national security ground is justifiable

The judgment further held that a Constitutional Court can review if the State's claim for exemption from disclosure is justifiable. The test of proportionality will apply here.

While acknowledging that confidentiality and national security are legitimate goals, the Court went on to state that it can still review if the State's non-disclosure has nexus with national security. In this regard, reference was made to the Pegasus case (ML Sharma vs Union of India) where it was held that the Courts will not adopt a "hands-off" approach merely because national security claims are made.  

The State has duty to show that the materials are linked with national security.

"..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 held (Para 84).

The Court must assess the validity of the claim of purpose by determining :

(i) whether there is material to conclude that the nondisclosure 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.

No nexus with national security in MediaOne case

Applying the principles to the facts, the Court held that the materials have no nexus with national security concerns. The MHA objected to security clearance for the channel by citing its adverse reportage against the Central Government and the alleged links of shareholders to Jamaat-E-Islami Hind (JEIH).

According to the IB reports, the channel was espousing its "anti-establishment stance on various issues including UAPA, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, CAA/NPR/NRC”. It was also mentioned that the channel "portrays security forces and the judiciary in a bad light" and"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".

The Court emphatically stated that the channel cannot be termed "anti-establishment" merely because it is critical of the policies of the government. The bench further noted that there was no material to show the link between the shareholders and JEIH. Also, the bench specifically underscored that JEIH is not a banned organisation.

No reasonable person can conclude that the materials have nexus with national security

The Court wondered what was "secretive" about these materials as they were inferences from materials already in the public domain.

"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. While we have held above that it would be impractical and unwise for the courts to define the phrase national security, we also hold that national security claims cannot be made out of thin air. There must be material backing such an inference. The material on the file and the inference drawn from such material have no nexus. The non-disclosure of this information would not be in the interest of any facet of public interest, much less national security. On a perusal of the material, no reasonable person would arrive at the conclusion that the non-disclosure of the relevant material would be in the interest of national security and confidentiality", stated the judgment (Para 99).

In this backdrop, the Court faulted the "sealed cover procedure" adopted in the case. The judgment further stated that even in cases where confidentiality is justified, the Courts must adopt a recourse which is less restrictive than the "sealed cover procedure" and devised "public interest immunity claim procedure"(more on that can be read here).

Intelligence Bureau reports are not absolutely immune from disclosure

The Court also rejected the argument of the MHA that IB Reports are wholly immune from disclosure. "We are unable to accept such an argument", the bench responded to the general claim made by the MHA that all reports of the investigative agencies are confidential.

"Investigative agencies such as the CBI and IB are required to conduct background checks on innumerable personnel and entities for a multitude of reasons. The interaction between private individuals and the State has increased by virtue of which the involvement of intelligence agencies has also proliferated. The reports of the intelligence agencies are not merely fact-finding reports....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. 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 Court stated (Para 81).

"A blanket immunity from disclosure of all investigative reports cannot be granted", the judgment stated in its conclusions.