New Delhi: The Supreme Court Wednesday tore into the practice of filing sealed-cover reports in courts, saying it was a “violation of principles of natural justice” as it curbed the “right to fair and reasonable proceedings”.
A bench of Chief Justice of India (CJI) D.Y. Chandrachud and Justice Hima Kohli also deprecated the state for using national security as a tool to deny information to the public, thereby restricting their rights to seek remedy provided under the law. This, the court noted, is “not compatible with the rule of law”.
If further declared that public-interest immunity proceeding should be adopted in cases where the government is hesitant to disclose the contents of its intelligence reports against an individual or entity on the ground of public interest and confidentiality.
A public-interest immunity proceeding is when the court redacts a confidential portion of a government document and provides a summary of its contents to both parties in a matter. With the permission of the court, the two parties are then allowed to rely upon the summary during the arguments.
The bench held that public-interest immunity proceeding is a less restrictive means to deal with issues involving national security concerns.
This is not the first time that CJI Chandrachud has deprecated the sealed-cover procedure. In the past, he has spoken verbally against it and refused to accept such reports submitted by the Centre.
The court’s remarks against the sealed-cover procedure and declaration on public-interest proceeding are part of the judgment delivered by the two judges on Malayalam news channel MediaOne’s petition challenging the Modi government’s refusal to renew its broadcasting licence.
The channel had moved the top court challenging a Kerala High Court division bench judgment that upheld the central government’s revocation of security clearance for renewal of the channel’s licence.
On 13 March, the SC had put a hold on the ban, allowing the channel to resume operations in the same manner in which it was being operated before the revocation of security clearance.
During the hearing of the matter, the government had placed certain facts before the court in a sealed-cover report. It was not keen to make the report public, claiming it would be a national security threat.
Wednesday’s SC verdict set aside the Centre’s order denying the channel licence on the basis of national security concerns. It extensively also commented on the sealed-cover procedure, which the top court has adopted under Order 13 Rule 7 of the Supreme Court rules.
“The sealed-cover procedure adopted has rendered the rights of the petitioner as a dry parchment and the procedural guarantees to the petitioners have been rendered otiose,” the court said.
Principles of natural justice cannot be done away with, the bench said, underscoring that “national security” is “being used to deny citizens their rights”, which cannot be permitted under the law.
“Blanket immunity to investigative reports cannot be granted and the state has not been able to prove that there is a national security threat. Power of courts to receive sealed covers is unguided,” the court said.
Also Read: ‘Sealed covers’ contrary to fair justice, observes Supreme Court, wants to end practice
‘Restricted principles of natural justice’
The verdict said that non-disclosure of a government document and its disclosure solely to the court on the ground of national security has “restricted the principles of natural justice, right to a fair and reasonable” hearing.
Although national security concern is one of the few grounds on which the right to reasonable procedure may be restricted and principles of natural justice may be excluded, it can be only when the facts of the case establish that “national security outweighs fair procedure”, the court said.
However, this does not preclude the state to act fairly, and its fairness as well as “abrogation of principles of natural justice on the ground of national security” must be justified to the court in the facts of the case, in consonance with the proportionality standard.
The interaction between private individuals and the state has increased, by virtue of which the involvement of intelligence agencies has also proliferated, the court observed. These reports are, therefore, not merely fact-finding reports, but also make observations and provide inferences on the conduct of individuals on which decisionmaking authorities rely.
These reports impact life, liberty and profession of individuals and entities, and to give them complete immunity from disclosure is “antithetical to an accountable and transparent system”, held the court.
Hence, to argue that these reports are confidential is misplaced, added the bench, remarking that such an argument cannot be accepted on the touchstone of constitutional values.
The judgment also touched upon the evolution of sealed-cover jurisprudence, and observed that it is a court-created — and not a legislative — procedure.
The power under which the court started receiving material relevant to a proceeding in a sealed cover is exercised in line with Order 13, Rule 7 of the SC rules. This rule, the bench said, does not stipulate any guidelines for the exercise of power of the court to secure material in a sealed cover.
“However, the rule as a whole indicates that the court may exercise its power to secure the material in a sealed cover if it is confidential or its disclosure would injure public interest,” the court said. It never intended to replace the public-interest immunity proceedings, which constitute an established method for dealing with claims of confidentiality.
“Sealed-cover procedure cannot be introduced to cover harms (to public interest) that could not be remedied by public-interest immunity proceedings,” the judgment noted. This procedure, it said, fairly excludes confidential portion of the document from the proceedings in public interest.
‘Cavalier manner’
On the point of laying down possible situations when a sealed-cover procedure can be used, the bench said the same would be beyond the scope of the judgment.
But the verdict said : “…It is sufficient to state that if a purpose could be realised effectively through a public-interest immunity proceeding or any other less restrictive means then the sealed-cover procedure should not be adopted.”
The court should undertake the analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted, it held.
In the MediaOne case, the bench observed, the Centre had raised the national security concern in a “cavalier manner” to deny information to the company.
It faulted the Kerala HC for leaving the media company in a “maize” by deciding against it on the basis of the Centre’s sealed-cover report. The SC said non-disclosure of the report’s contents to the petitioner also denied it a remedy to file a writ — challenging the grounds on which it was denied the licence — in the court.
A writ under Article 32 or Article 226 of the Indian Constitution can be filed when there is violation of someone’s fundamental right. This, the court explained, has been described as the “heart and soul” as well as the basic feature of the Constitution.
Other than merely claiming national security is involved, no attempt was made to explain how non-disclosure of the Intelligence Bureau inputs against the company would protect national security, it said. This approach was adopted despite reiteration by the court that judicial review would not be excluded on mere mention of the phrase national security, it added.
“National security claims cannot be made out of thin air in the present case. It must be backed by material,” the bench said, observing that there was no nexus between the material presented to the court and the inference drawn out of it.
There was nothing secretive about the information to attract ground of confidentiality for its non-disclosure, it held.
(Edited by Sunanda Ranjan)
Also Read: Why CJI has again advocated ending ‘sealed cover’ practice in SC: ‘There can’t be secrecy in court’