A recent judgement of the Supreme Court relating to the decision of the Union Ministry of Information and Broadcasting to revoke the permission which it had granted to a TV channel (MediaOne) to uplink and downlink the news platform, has broken new ground. In many senses, it is a seminal decision which is likely to change the landscape of judicial decision making in the context of the right to free speech and the extent of the Government's power to impose reasonable restrictions when government pleads security of state as a defence. To substantiate that plea, of late, a unique procedure has been adopted by the government by handing over to the court information that it relies upon to enforce restrictions on free speech. In the process, the judgement deals with the contours of natural justice, how they have been applied in the past and how the procedure adopted by the Government by giving information in a sealed cover to the Court without sharing it with the petitioner, apart from being anathema to the rule of law, also infringes the concept of natural justice. The judgement also deals with the true meaning of the concept of security of State when on such plea the State seeks to inhibit the right to free speech.
Under Article 19(2) of the Constitution, freedom of speech can be restricted when such speech jeopardises and is a threat to the security of the State. The court delineates the ground rules on the basis of which the security of State can be pleaded for restricting freedom of speech. It also rules on the procedure that is required to be followed by the court when dealing with that issue. In that context, the court also deals with the inputs of intelligence agencies and the extent to which they can be taken into account when it seeks to strike a balance between freedom of speech snd the security of the State when government uses that as the reason for imposing restrictions on free speech. The court applies the test of proportionality when dealing with reasonable restrictions on free spree and expression holding that a procedure less restrictive, in which the public interest can easily be served, should be embraced by the court rather than a procedure which shuts out the cause itself by relying upon the security of State doctrine.
When dealing with adoption of the sealed cover procedure in court proceedings, the court finds that such a procedure tends to violate the principles of natural justice for several reasons. In a judicial proceeding which essentially must be transparent, the petitioner is entitled to know the content in terms of documents or information otherwise relied upon by the government to shut out the individual's or an entity's right to freedom of speech. The sealed cover procedure, shuts out the aggrieved petitioner, while the government which has exclusive knowledge of that information shares it with the Judge dealing with the matter in issue. The court frowned upon adopting such a procedure which has, of late, gained currency in legal proceedings even in prosecutions by the CBI and the Enforcement Directorate. The logic is that a judicial proceeding premised on such confidential information being exchanged between the government and the Judge ex-facie violates the principles of natural justice for several reasons. First, that the decision to refuse disclosure of the information to the aggrieved petitioner while it is submitted by the State or the agencies to the court in a sealed cover would result in decision making behind the back of the petitioner, which per-se violates the principles of natural justice. Second, the petitioner is in no position to rebut the contents of the information supplied to the Judge. The court believes that in such a situation, the petitioner would also not be able to challenge the decision of the judge in the absence of knowledge of the grounds on which such decision has been taken because the information shared by the government with the judge in a sealed cover would not be available for scrutiny by the petitioner. Therefore, the sealed cover procedure would be per-se unconstitutional.
The court, however, was confronted with a situation wherein, in certain circumstances the security of the State could well be in jeopardy. What then should the court do while balancing the right of the individual to access the contents of documents as opposed to the harm to public interest since the said information, if put in the public domain, may jeopardise the security of the State. It states that in such a situation, to protect the security interests of the State a redacted version of the document could be provided to the petitioner. Alternatively, a summary of the contents without impacting the security of the State could be provided to the court as well as the petitioner so that the response of the petitioner is available for the consideration of the court in deciding the matter under adjudication.
Thereafter, the court went into the question as to whether a procedure consistent with the provisions of the Indian Evidence Act, 1872 and the Code of Civil Procedure, 1908 could be adopted which could better serve the larger public interest. In section 124 of the Indian Evidence Act, 1872, the government can claim privilege in respect of a document which it may chose not to disclose to a petitioner who seeks disclosure of the contents of the document. But even for doing that, the government has to provide that document to the court for it to apply its mind as to whether the government's claim to privilege is valid or not. If the government's claim to privilege is valid, then of course, the document cannot be disclosed except in the manner suggested by the court. If not valid, then the document should be passed on to the petitioner for the purpose of adjudication since its disclosure will not be adverse to the security of the State. The court chose a less cumbersome and more transparent procedure consistent with judicial decision-making rather than endorsing the new-found practice of documents being provided in a sealed cover, which naturally has the impact of prejudicing the petitioner, especially in the context of freedom of speech. The essential principle being, consistent with the rule of law, that decision-making on the basis of documents behind the back of the petitioner is anathema to the rule of law. The judiciary too administers justice in accordance with law.
In the context of deciding some of these complex issues, the court also relied upon the principles of proportionality in coming to an interpretation consistent with the rule of law. Such principles of proportionality have been applied in the past by the Supreme Court in several cases. In that context, it relied upon four distinct principles. First, that the measure restricting a right must have a legitimate goal. Second, the measure must be a suitable means for furthering this goal. Third, the measure must be less restrictive and equally effective and the last, that the measure must not have a disproportionate impact on the right holder. It is in the context of this principle of proportionality that the judgement represents a paradigm shift from the past.
The judgement represents a watershed in judicial decision-making. It embraces the principles of openness in judicial processes. It emphasises the significance of adopting less restrictive measures for adjudication. Finally, it endeavours to provide for a level playing field when the court is confronted with the interplay between the fundamental rights of citizens and the power of the state to restrict them.
This judgement opens up new vistas for judges who believe that judge made law inspires the confidence of the teeming millions who can only look up to the court for justice that often eludes them.
(Kapil Sibal is an eminent lawyer & member of parliament, Rajya Sabha)
Disclaimer: These are the personal opinions of the author.