Proportionality, Sealed Covers and the Supreme Court’s Media One Judgment

In early 2022, this author discussed the travails of the MediaOne TV channel in battling a government ban before the Kerala high court. The judgments of the single judge and division bench of the high court – both of which upheld the government’s ban on the TV channel – had seen two of the most egregious instances of “sealed cover” jurisprudence in Indian courtrooms. MediaOne had been banned without being informed why and without a hearing. When it challenged the ban in court, it was unable to argue its case because the government claimed – and the court indulged it – “national security”, and submitted material in a “sealed cover.” Things reached a truly farcical pass when the division bench perused the material in the sealed cover, openly admitted in its judgment that the impact on national security was not “discernible”, but went ahead and upheld the ban anyway.

A measure of sanity prevailed in the Supreme Court, when the ban was stayed while the court heard the matter at length. And sanity was restored (at least in this case!) on April 5, when the Supreme Court delivered its judgment striking down the ban on both substantive and procedural grounds.

As the sealed cover played so important a part in proceedings before the high court, the division bench of the Supreme Court – Chief Justice of India (CJI) D.Y. Chandrachud and Justice Hima Kohli – spends a substantive part of its judgment on this issue.

Sealed cover jurisprudence has become something of an epidemic in Indian courts in recent times, especially in civil rights cases: challenges to civil rights violations are routinely knocked back because the government claims – and the court indulges it – “national security”, and submits material in sealed covers.

Frequently, when an organisation is banned under the Unlawful Activities Prevention Act (UAPA), and invokes the statutory procedure of challenging the ban before a UAPA tribunal, the state produces “evidence” in a sealed cover, which even the banned organisation’s lawyers are not allowed to see, thus making any meaningful defence a non-starter. The “sealed cover” is thus used by the state in two distinct kinds of civil rights proceedings: first, when it has banned, censored, or otherwise punitively acted against someone, and invokes the sealed cover so that that person cannot defend themselves; and secondly, when someone challenges state action for a rights violation, but to make good their challenge, requires information in the possession of the state.

In the present judgment, the Supreme Court articulates a set of principles that will, ostensibly, apply to both sets of situations. Before examining what, precisely, the judgment holds in that regard, it is important to note the overarching principles that the court sets out. Naturally, the refusal to disclose evidence on grounds of national security violates an individual’s due process rights under Article 21. CJI Chandrachud holds that much like a substantive violation of Article 21 must be adjudicated on the touchstone of the four-pronged proportionality standard, the violation of constitutional procedural rights must also be adjudicated with regard to the proportionality standard. Importantly, this applies not simply to the question of the sealed cover, but to principles of natural justice generally, including the right to a hearing and to a reasoned order; indeed, in this case, the state was unable to justify why it refused a hearing to MediaOne, and why it did not provide a reasoned order. The explicit application of proportionality to the denial of the principles of natural justice is an important development, and I will leave it to my administrative law colleagues to parse the implications in greater detail. I will, here, note that the court’s analysis of the values underlying principles of open justice repays close study.

Let us pause here for a quick recap of the proportionality test. The test has four prongs. A rights-infringing measure – to be justified – must (a) have a legitimate aim, (b) the measure must be suitable for achieving that aim; (c) it must be the least restrictive alternative (‘necessity’) available; and (d) there must be a balance between the extent of the restriction and the importance of the goal (proportionality stricto sensu). As an example, if referee Paul Tierney shows a red card to Leandro Trossard for questioning his decision not to award a penalty for a blatant handball by Virgil Van Dijk in the box – as he has been bribed by agents from Manchester – then that decision fails the proportionality test, and – in an ideal world – would be reviewed and set aside.

Back to the case. Having established that MediaOne’s right to a fair hearing was breached, the court turns to the question of justification. The Union of India – and indeed, the high court – had argued that the Supreme Court’s prior judgments in Ex-Armymen’s Protection Services and Digi Cable Network essentially shut out any scope for the principles of natural justice once national security was claimed. CJI Chandrachud notes, however, that this is a misreading of the two cases: there may, on occasion, be less scope for the application of natural justice in national security cases, but there is no blanket exclusion. This then raises the question: on what legal basis is the denial of natural justice to be adjudicated? CJI Chandrachud answers it thus:

“The mere involvement of issues concerning national security would not preclude the state’s duty to act fairly. 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. These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard. The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs.”

Now, it follows that national security is a “legitimate aim” (although – CJI Chandrachud is careful to note – it does not follow that all reports of investigative agencies are always confidential, especially given the vastly expanded role that investigative agencies play in society today). Indeed, in this case, the court finds that the materials on the basis of which the Intelligence Bureau recommended denial of security clearance to MediaOne were already in the public domain, and that therefore, even on the most deferential standard of review, no reasonable person could come to the conclusion that non-disclosure of this material would prejudice national security.

However, assuming that the legitimate goal of national security was indeed in play, the court then comes to stage 2 of the proportionality test – the suitability/rational connection stage. Here the court finds that while the state may validly resist complete disclosure by claiming a rational nexus with the legitimate goal, it cannot – at the very least – deny to the affected individual a summary of the reasons why their rights are being restricted.

We now come to the crucial part of the analysis, which is the stage of the “least restrictive alternative” (step 3 of the proportionality test). Here, the court marshals a range of alternatives that various jurisdictions apply, when faced with the question of non-disclosure of certain evidence on grounds of national security. First, a court could simply wash its hands of the issue, and hold that a claim of national security places an issue outside the pale of judicial review (for example, in the MediaOne case, once a claim of national security was made, the ban could not be reviewed on that ground, period); secondly, the court could engage in a “closed material procedure”, which is akin to sealed cover evidence, with one crucial distinction: in a “closed material procedure”, a “special advocate” is appointed on behalf of the affected individual, and this special advocate has access to the non-disclosed material; and thirdly, the court could engage in a “public interest immunity” proceeding, where the material in question is struck off the record altogether – that is, neither party can rely on it, and nor can the court. CJI Chandrachud arranges these alternatives in a descending order of how severely they impact natural justice, with declining judicial review the greatest restriction, and public interest immunity proceedings the least restrictive (relatively).

The court then goes into how – specifically – public interest immunity has been applied in India and in comparative jurisdictions. CJI Chandrachud notes that a public interest immunity claim is subject to judicial review; that the extent of scrutiny would depend on various factors, such as the injury caused by non-disclosure, the class of materials involved, the burden of proof, and evidentiary requirements; in particular, where non-disclosure impacts not just the parties, but has broader ramifications for open government and constitutional governance, the degree of scrutiny would be higher; and once injury is proven, proportionality is deployed.

Now, at this stage, proportionality is being deployed for a dizzying variety of purposes, so it is important to take a step back. At the macro level, at this point of the judgment, we are presently in the third stage of the proportionality test as applied to the denial of natural justice to an individual, affecting their procedural rights under Article 21. That is, the court is considering – and elaborating upon – the various, less restrictive alternatives to a sealed cover, in dealing with claims of non-disclosure due to national security. One of these lesser restrictive alternatives is the public interest immunity (PII) procedure. Now, when the state claims public interest immunity, proportionality makes a second appearance, that is, in adjudicating whether or not to allow the PII claim. This deployment of proportionality is internal to PII, which itself is nested within the third step of proportionality as applied to departures from natural justice.

It is vital to keep the two uses of proportionality separate in one’s mind, otherwise the judgment will very swiftly stop making sense, especially as the language used by the court in paragraph 138 seems to move between these two levels of analyses, as PII is – of course – also a departure from the principles of natural justice. Perhaps it may help to clarify – at this stage – that the court is involved in answering two separate questions here: first, using the proportionality standard to decide which proceeding (sealed cover, closed material, PII etc) it to be used, if any; and secondly, in the context of PII, using proportionality to decide the legitimacy of a State PII claim.

In this context – and drawing from Section 124 of the Evidence Act – CJI Chandrachud notes that in a claim for PII, the burden of satisfying all prongs of the proportionality test lie on the entity (read: the state) claiming non-disclosure. Based on Section 124 of the Evidence Act, he collapses the first two prongs of the standard into one (whether public interest will be injured by the disclosure), and then posits the necessity and the balancing prongs as the second and third steps of a “modified” proportionality test, as applicable to PII.

Having done this analysis, the court then moves back one level, to its original analysis of the various options that must be considered at the necessity. Having noted that the sealed cover procedure infringes rights to a greater degree than PII, CJI Chandrachud therefore holds that “the sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings.” As he notes:

“The claimant would be jumping into a pit of fire with their eyes closed even if they consent to a sealed cover procedure. As Lord Kerr remarked in Al Rawi (supra), the claim that closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. However, beyond this assumption, it must be recognised that the court could be misled by the material that is not subject to inspection and examination. This would lead a situation where the court renders an unfair judgment and such an unfair decision would not be amenable to both judicial review and public criticism on merits.”

Having said this, however, the court does not explicitly rule out the use of sealed covers. Immediately after this, CJI Chandrachud notes that:

“While it would be beyond the scope of this judgment to lay down the possible situations when the sealed cover procedure can be used, it is sufficient to state that if the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. The court should undertake an 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.”

In the final – brief – part of the judgment, the court unseals the proverbial cover, and looks at the government’s substantive case for banning MediaOne (paragraphs 160 onwards). Unsurprisingly, the court finds that the government has failed to make out any case whatsoever, its concrete allegations not going beyond proximity to a previously banned – but not un-banned – group, and certain substantive content that it finds unpalatable. The court has little trouble in disposing of these contentions as manifestly ill-founded, and the ban – therefore – falls on substantive grounds as well

As a final, important point, in the dispositive part of its judgment, the court adds a component to PII proceedings. It holds that:

“To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.”

In conclusion, therefore, what is the importance of the judgment – other than the very important fact that MediaOne’s ban was struck down? We can summarise as follows:

1. If the government intends to deny the principles of natural justice to an individual (including on grounds of national security), it must justify the denial on the touchstone of proportionality.
2. The court must judicially review the claim to national security at the first step of the proportionality analysis, to ensure that the claim is indeed one of national security. This will ensure that utterly frivolous cases – such as MediaOne’s – fall at the first hurdle itself.
3. Non-disclosure of even a summary of reasons why an individual’s right is being infringed (such as, say, through a ban) fails the rational nexus prong of the proportionality standard.
4. If the government wishes to invoke non-disclosure on grounds of national security, and passes the first two prongs of the proportionality test, then a sealed cover is not the default option. The court must consider less restrictive alternatives – as part of the third prong of the proportionality test – such as PII proceedings, PII proceedings with redactions, or closed material proceedings. Notably, although the judgment does not say this, it follows that if indeed the court chooses the sealed cover it must show how this meets the “least restrictive standard.”
5. If it is the government that claims PII, then this claim must – in turn – be tested on grounds of proportionality, requiring – if necessary – a second application of the four-pronged test (note that the court must in any event apply the test to decide if non-disclosure is justified per se).
6. If PII is chosen, then the court must appoint an amicus curiae to represent the individual’s interests.

There is no doubt that this judgment is a valuable contribution to proportionality jurisprudence, that it attempts an inoculation against the sealed cover epidemic, and that it is pro-liberty in its outcome. However, the sheer complexity of the tests laid down makes this very much a case of “the proof of the pudding will be…”

Indeed, recall for a moment how eager the single judge and the division bench of the Kerala high court were in deferring to the state – so much so that even the Supreme Court finds it disquieting in its judgment. Now imagine these courts being asked to deploy this double-four-pronged test, designed to protect individual rights. Would they not find it easier to simply ignore the test – as so many courts have found it easier to simply ignore the proportionality standard itself, when it leads to inconvenient results (as in the recent demonetisation case)? One would hope not, but proportionality’s failure to take hold as a rights-protective test in India does make one worry about how successful more complex iterations of it will be. That, however, is a worry for another day! For now, MediaOne can celebrate a long-overdue and deserved vindication of its constitutional rights by the Supreme Court.

Gautam Bhatia is a lawyer.

This article was originally published on the author’s blog. It has been lightly edited for style.