Enlarging the Core Values: Re-Structuring Proportionality?
By Prof Upendra Baxi
Chief Justice of India (CJI) Dr Dhananjaya Y Chandrachud (in a Bench also comprising Justice Hima Kohli) wrote a compact and extremely well-organised opinion (Sections A-L) in Madhyamam Broadcasting Limited vs Union of India1 consisting only of 133 pages—a versatile juridical achievement in itself! Thus, we have an elegantly expounded judicious perspective for balancing concerns of unity and integrity of the nation with the requirements of procedural and substantive aspects of natural justice.
At stake, of course, was media freedom to be firmly protected against blanket summary and arbitrary executive decisions concerning State security. The Court hails an “independent press” as “vital for the robust functioning of a democratic republic”. However, when it fails to perform “a duty to speak truth to power”, the media assists a slow democide by presenting a “homogenized view on issues that range from economic polity to political ideologies” that pose “grave dangers to democracy” [Para 166].
Taking the case as an “opportunity” to clarify and consolidate the law “for renewal of permission for Uplinking and Downlinking of news channels”, the Court holds that all administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality and (iii)“procedural impropriety”. In addition, it is open to judicial review on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution [Para 31].
Re-affirming that “every individual has a right to a reasonable hearing”, the Court holds that the “rules of natural justice cannot be modified to suit the needs of the situation to such an extent as to violate the core of the primary tenets of natural justice—the right to a fair hearing, and the right against bias”. In other words, “natural justice principles breathe reasonableness into the procedure” so much so that “the right to a fair and reasonable procedure, independent of the outcome” is judicially read “into an enactment to save it from being declared unconstitutional on procedural grounds” [Para 47]. When the applicant proves that the procedure followed was not reasonable (being violative of the core principles of natural justice), the “burden of proving otherwise shifts to the State” [Para 48].
Following these principles, the appeals were allowed and the Ministry of Information and Broadcasting order (dated January 31, 2022) and the judgment of the High Court (dated March 2, 2022) were set aside. The involvement of national security considerations must be assessed on the twin tests 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”. True, “national security concerns overweigh the duty of fairness” but mere criticism of governmental policy as “anti-establishment” can “by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2)” [Para 167]. Nor is it open to the Union Ministry of Home Affairs to overlook the judicial invalidation of the past three orders banning an organisation labeled as “terrorist” [Para 168]. The Court further innovates a special investigatory role for an amicus curie to assist it on such matters in the future, to “balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process” [Para 171].
This is as good a place as any to ponder over two matters. The first concerns the repeated slippage between core “rules” and “principles”, which probably occurs because public law, especially administrative law, discourse speaks of the “rules of natural justice”. But the slippage is all the same worrisome jurisprudentially. For example, while HLA Hart spoke about law as a system of rules, Ronald Dworkin offered a view of law as a system of principles. The difference is enormously pertinent and in my view, this decision is best read as a discourse on principles, rather than on rules.
Second, such jurisprudential exits are not simply available when confined to two basic or core principles of administrative law. It is not self-evident to regard only Audi alteram partem and Nomo judex sua causa as constituting the “core”, as there exist many more ways of speaking about the “core” and “peripheral” principles,2 Probably that is one reason why the Court insists elsewhere that the “standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well” [Para 51], and from then on “there is no reason for the court to use different standards to test the reasonability of substantive and procedural actions” [Para 52]. Is it then “unreasonable” to elevate “reasonableness” and “proportionality” as among the core principles.
Further, the perplexity almost vanishes when we realize that the two core principles extend to the “constitutionalization” of the “core” [Section E of the judgment] thus encapsulating “natural justice” in the doctrine of fairness or as Justice Bhagwati named it, “fair action in play” [Para 41]. Such constitutionization involves, first, the expanded “meaning of the expression ‘procedure established by law’ in Article 21 of the Constitution to include procedural due process” and second, “the shift from reading the provisions of Part III of the Constitution as isolated silos” towards an understanding of “the overlapping tendencies of fundamental rights”[Para 43].
This approach is manifestly “value oriented and not purpose oriented”, a reason why “the courts have been more than open in identifying that the action is unreasonable rather than identifying if the action is reasonable” and why the courts “have adopted a higher standard of scrutiny in the form of proportionality” [Para 49]. Accepting it entails that it “is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed”3 [Para 54].
All this ensures transparency and accountability by placing a check on “arbitrary exercise of power”, and secures “the rule of law”. It provides an “articulation of reasons aids in arriving at a just decision by minimalizing concerns of arbitrary state action”, and for the exclusion of “irrelevant and extraneous considerations”. And “reasoned orders” further “the right to information and the constitutional goal of open government” [Para 56].
Further arrested are the habits of secrecy that “broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law”. Moreover, a “non-reasoned order” is not allowed to limit the exercise of judicial review process and power and any limitation on the right to appeal necessarily means that the scope of judicial review is restricted [Para 56].
Thus, contrary to a hurried reading (such a reading is no reading at all!], reading slowly demonstrates that the “core” is very large, thus encoding “values from a modern perspective, not out of philosophical dogmatism but because a modern understanding of the values coheres better with the development of administrative law.”4 Administrative law values preserve judicial “due deference to the State to form its opinion”, allowing courts little power to “second guess the judgment of the State” about security matters [Para 84]. Courts may review “the opinion on limited grounds of whether there is nexus between the material and the conclusion”. At the same time, it cannot allow any “cavalier manner” [Para 91] which excludes judicial review on the ground of security “on a mere mention” of that phrase. It is “rule of law” incompatible to use “national security as a tool to deny citizens remedies that are provided under the law” [Para 97].
In an advisory to the Court itself, the Bench insists that it “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” [Para 158]. One hopes that this matter would soon be followed upon, as the sealed cover jurisprudence is becoming rapidly rampant throughout the judicial system in ways that amount to the violation of the values of public law as a whole.5 The Bench itself noted alarmingly that “ad-hoc and extemporaneous” deployment [Para 143] and urged re-visitation of the “exercise of power…to secure material in a sealed cover” which has adverse impact on other constitutional rights such as the freedom of press [Para 142]. Courts “must follow the structured proportionality standard”, under which “the court places the burden of proof on the party opposing disclosure of documents to prove the claim of public interest in non-disclosure”. It also prescribes “a strict standard to test the reasonableness of an action”, which the sealed cover procedure altogether violates [Para 143].
In any event, the sealed cover procedure came into being only in 2013 by an amendment to the Supreme Court rules which merely say 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”. But this does not “stipulate any guidelines for the exercise of power by the court to secure material in a sealed cover”. [Para 145].
In the instant case, the sealed cover procedure as followed by the single judge and the Division Bench has “necessarily rendered the appellant’s right to writ remedies, …“the ‘heart and soul’ of the Constitution and a basic feature of the constitution”, a dry parchment” [Para 60]. Harsh words, but surely warranted by a situation of a “non-reasoned order” that “perpetuates the non-application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed” [Para 60].
Interestingly, the date of this MBC judgment (reported on April 5, 2023) is the same as the Bench presided over by the learned CJI which dismissed as withdrawn, the well-crafted petition by 14 Opposition parties expressing constitutional concerns about the alleged targeted and secretive prosecution against their leaders, and others who criticised the ruling regime. Characterising as “dangerous” the idea of prescribing general guidelines in the abstract about arrest, remand, and bail without concrete contexts of the facts of the cases, the Court asked learned Counsel to “come back when you have an individual criminal case or a group of cases”.
Perhaps, one reason was the Court was then aware of the MBC decision, while understandably, neither counsel nor the litigating public, were. But the elaborate immanent administrative judicial values and virtues of constitutional judicial review process and power urged in this case leave sufficient scope for cogent arguments for un-constitutionalizing persecution, while allowing just prosecution that respects fair trial and due process of law.6
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1 Civil Appeal No. 8129 of 2022, referred to hereafter in the text simply by Paragraph Numbers Madhyamam Broadcasting Limited will be referred to as MBC. The opinion was written by Chief Justice D. Chandrachud.
2 See, for example, Kevin M. Stack, “An Administrative Jurisprudence: The Rule of Law In The Administrative State”, Columbia Law Review 115: 1189-2002 (1985); Cass R. Sunstein & Adrian Vermeule, “The Morality of Administrative Law”, Harvard Law Review, 134:1923-1978 (1978). See also footnote 4, infra.
3 See Upendra Baxi, “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial”, National Human Rights Commission Journal, 1-22(2020).
4 See Paul Daly, “Administrative Law: a Values-Based Approach”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930233, 1 (2021). He calls values as the “motor for administrative law”(p. 3).
5 See also, Aryan Ahmed, “Can Trial Court Accept Evidence In Sealed Cover In A Criminal Trial?”, India Legal, 3 April, 2023.
6 As we go to press, an eloquent plea for achieving this goal is made by Senior Advocate Sriram Panchu, Indian Express, 14 April, 2013.