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What is the SC’s public interest immunity claim procedure?

  • Published
    11th Apr, 2023
Context

In the recent MediaOne judgment, the Supreme Court has devised a ‘procedure to balance the principles of justice’ with non-disclosure of information on grounds of national security.

Background:
  • MediaOne TV, a channel of Madhyamam Broadcasting Limited, is owned by Jamaat-e-Islami Hind, which makes it one of the few Indian news channels whose ownership lies with an Islamic organization.
  • MediaOne TV first received its license from the Ministry of Information and Broadcasting (I&B Ministry) in 2011 and was launched in 2013.
  • In January this year, the I&B Ministry refused to renew the Kerala-based TV channel’s transmission license and issued an order asking the company to halt its operations.
  • The I&B Ministry claimed that this was because the Ministry of Home Affairs (MHA) had denied security clearance to the channel.
  • In its communication to MediaOne TV, the I&B Ministry cited considerations of ‘national security’ and public order in its refusal to renew the channel’s license.
About the case:
  • The Supreme Court has set aside the Central government’s order imposing a broadcast ban on the Malayalam news channel MediaOne.
  • The top court has also rejected the judgment of the Kerala High Court that had upheld the I&B Ministry’s order.
  • In making its decision, the High Court had relied on material disclosed solely to it by the Home Ministry in a ‘sealed cover’.

Sealed cover jurisprudence is the practice followed by the Supreme Court and High Court of seeking and accepting information from government agencies in sealed envelopes that can only be perused by the judges.

  • The SC, which has repeatedly expressed unhappiness with so-called “sealed cover jurisprudence” and against it has also devised a procedure for “public interest immunity claim” as a less restrictive alternative to sealed covers for deciding claims involving state secrets.
  • According to the SC, the validity of a claim involving national security considerations must be based on the test of :
  • Whether there is material to conclude that the non-disclosure of information is in the interest of national security; and
  • Whether a reasonable prudent person would draw the same inference from the material on record.
  • However, in the MediaOne case, even if one assumes that the non-disclosure was in the interests of confidentiality and national security, the means adopted by the government did not satisfy the proportionality standard.

The Public interest immunity claims:

  • The court has mentioned that it assesses the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the “structured proportionality” standard.
  • This is essentially a “standard of review” used by courts in public interest immunity claims — and “the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means”.

Constitutional backing:

  • Public interest immunity claims secure/support Article 145 of the Constitution, which warrants that all judgments of SC to be delivered in open court.
  • Article 145(4) lays down that “No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court”.
Significance of the step:
  • To safeguard the “claimant against a potential injury to procedural guarantees in public interest immunity proceeding”, the court reiterated its power to appoint amicus curiae.

The amicus curiae will be allowed to interact with the applicant and their lawyer before the proceedings to ascertain their case, and enable them to make effective submissions on the necessity of disclosure.

  • The appointment of amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.

Supreme Court’s argument against sealed cover jurisprudence:

  • The court added that while public interest immunity claims also impact the principles of natural justice, sealed cover proceedings go a step ahead and infringe on the principles of natural justice as well as the principles of open justice.
  • Alternatively, the court suggested that confidential portions of the document could be redacted, and a summary of the document’s contents could be provided to fairly exclude materials after a successful public interest immunity claim.
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