‘Sealed Covers violate natural and open justice’: The Why-What-How of ‘Public Interest Immunity proceedings’, the ‘fairer’ alternative suggested by Supreme Court

Sealed Cover

Supreme Court: In a case where the Union Ministry of Information and Broadcasting had revoked the permission granted to Madhyamam Broadcasting Limited (MBL) to uplink and downlink a news and current affairs television channel called “Media One”, the bench of Dr DY Chandrachud*, CJ and Hima Kohli, J has held that by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover, the Union of India has violated the MBL’s right to a fair hearing protected under Article 21 of the Constitution.

Why Public Interest Immunity proceedings to be preferred over Sealed Cover Procedure

This case led to the Supreme Court laying down the procedure for conducting public interest immunity proceedings which, it opined, was a better alternative to the sealed cover procedure which does not ensure a fairer proceeding. The Court stated that the effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State in making restricted claims of public interest immunity.

The Court explained that the power of the court to receive material relevant to a proceeding in a sealed cover is read from Order XIII Rule 7. Unlike the closed material procedure in the United Kingdom and Canada, the sealed cover procedure is not a creation of the legislature but of the courts. In fact, Rule 7 while prescribing the power of the court to receive material in a sealed cover also recognises non-disclosure on the ground of public interest immunity. The provision does not stipulate any guidelines for the exercise of power by 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 material in a sealed cover if the material is confidential or the disclosure of which would injure public interest. The public interest immunity claims also seek to address the same harms.

“It was not intended that the sealed cover procedure shall replace public interest immunity proceedings which constitute an established method for dealing with claims of confidentiality. The sealed cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings.”

Explaining the procedure for conducting the public interest immunity proceedings, the Court explained that,

“The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both the parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding.”

The Court also explained the difference between the two and said that in both the sealed cover procedure and public interest immunity claims, the documents that are sought to be withheld from disclosure are not revealed to the counsel for the applicant. The proceedings, in effect, are conducted ex-parte where the counsel for the party claiming disclosure is precluded from accessing a part of the record in the proceedings. However, one crucial difference between the sealed cover procedure and public interest immunity claims is that in the former, the court relies on the material that is disclosed in a sealed cover in the course of the proceedings, as opposed to the latter where the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such material. Sealed cover procedures violate both principles of natural justice and open justice.

Hence, it could be seen that the public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality.

Scope of use of sealed cover procedure

On the issues as to whether the procedure of sealed cover can be used at all, and if so, in what circumstances would it be permissible for the court to exercise its power to secure evidence in a sealed cover, the Court observed that while it cannot 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.

Will Public Interest Immunity proceedings render proceedings non-justiciable?

On the argument that the removal of the documents from the proceedings would render the proceedings non-justiciable if the documents that are sought to be protected are so closely intertwined with the cause of action, the Court held that the same does not hold water as one of the relevant considerations for the court in the balancing stage of adjudicating the public interest immunity claim is whether the non-disclosure of the material would render the issue non-justiciable. The court while analysing the relevancy of the material and the potential non-justiciability of the issue due to non-disclosure may direct that the material should be disclosed. The purpose of the balancing prong is to weigh in the conflicting claims and effects of such claims.

“Even if the disclosure would conceivably injure public interest, the courts may still dismiss the claim of public interest immunity if the non-disclosure would render the issue non-justiciable, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure.”

Amicus curiae’s role

On the issue of dilution of procedural guarantees while hearing the claim, the Court made clear that it is only the Court and the party seeking non-disclosure of the material who are privy to the public interest immunity proceedings. The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim.

“While there may be material on serious concerns of national security which cannot be disclosed; the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict.”

Observing that the applicant who is unrepresented in the proceedings would be effectively impaired, the Court held that to safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, the Court has the power to appoint an amicus curiae, which will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.

The amicus curiae appointed by the Court shall,

  1. Be given access to the materials sought to be withheld by the State; and
  2. Be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure.
  3. Be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel.

However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun, and the counsel has viewed the document sought to be withheld.

Reasoned Order

The Court observed that while Article 145 of the Constitution stipulates that all judgments of the Supreme Court shall only be delivered in open court, though public interest immunity proceedings will take place in a closed setting, the Court is required to pass a reasoned order for allowing or dismissing the claim in open court. Being cognizant of the objection that may be raised that an order justifying the reasons for allowing the claim would have to inevitably disclose information on the very material that it seeks to protect, the Court explained that the Court in such cases is still required to provide a reasoned order on the principles that it had considered and applied, even if the material that is sought to not be disclosed is redacted from the reasoned order. However, the redacted material from the reasoned order shall be preserved in the court records which may be accessed by the courts in the future, if the need arises.

National Security

The Court also held that tough confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, a blanket immunity to State from disclosure of all investigative reports cannot be granted.

The Court, hence, made clear that the validity of the claim of involvement of national security considerations must be assessed on the test of

(i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and

(ii) whether a reasonable prudent person would draw the same inference from the material on record.

[Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366, decided on 05-04-2023]

*Judgment authored by CJI Dr DY Chandrachud.

Not here to do miracles but to work on bringing institutional changes: Justice DY Chandrachud shares his to-do list as the 50th CJI

Advocates who appeared in this case :

For MBL: Senior Advocate Dushyant Dave;

For editor, Senior Web Designer and Senior Camera Man of Media One: Senior Advocate Huzefa A Ahmedi;

For Kerala Union of Working Journalists: Senior Advocate Mukul Rohatgi.

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