INTRODUCTION

Sir Mathew Hale a distinguished jurist of his time set out 18 tenets for dispensing of justice. The
sixth tenet read as follows1,

“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”

This principle can be boiled down to two ingredients which are required for a fair trial. First is that
the judge should not be predisposed to either of the parties involved and should not form an
opinion until all the parties have been heard. This obviously is very difficult to do as judges are
also mere humans and have their own views and opinions. However, over centuries, the defining
characteristic of an eminent member of the judiciary is the way in which he overcomes his innate
biases in order to ensure that the judicial adjudication is focused solely on the law, the facts based
solely on solid evidence produced before the court and their interplay. The second requirement is
that both parties to a dispute have the right to be heard and to make their own case known and
that no man should be condemned unheard. This is known as the maxim of “audi alteram partem”
which literally means listen to the other side. The tenet laid down by Sir Mathew Hale has become
axiomatic today as all functioning democracies have enshrined it as a constitutional right and an
essential for a fair trial.
The Supreme Court in the case of Swadeshi Cotton Mills v. Union of India2 held that there are two
essential facets of “audi alteram partem” which are: (a) notice of the case to be met; (b) opportunity
to explain. This principle of natural justice cannot be sacrificed at the altar of administrative
convenience and therefore, it must also be observed by administrative bodies.3 In a celebrated
case4 decided by the US Supreme court it was held that parties to a case have an inherent right to
defend against material supplied by the other party. The Supreme court in the case of Dhakeshwari
Cotton Mills Ltd. v. Commissioner of Income Tax5 also accepted this principle and held that every person
before an authority which exercises the powers of adjudication has the right to know the evidence
to be used against him. And therefore, a fair hearing is one that focuses not just on an indictment
or prosecution but also allows the defendant the right to present his case and to defend himself
effectively.6 However, like all rights even the right of “audi alteram partem” is not an absolute right.
In a situation concerned with national security, a party cannot demand that the standards of natural

1 https://corporate.cyrilamarchandblogs.com/2018/03/principles-natural-justice-origin-relevance/#more-2349
2 AIR 1981 SC 818.
3 Id.
4 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123.
5 (1955) 1 SCR 941.
6 State Bank of India v. S.K. Sharma, 1996 SCC (3) 364.
justice be strictly followed and therefore, in such situations, it is the responsibility of the court to
provide for statutory exclusion, unless specifically provided for in the rules governing the matter.7
In a situation where urgent action cannot tolerate any delay so as to avoid any imminent danger or
damage or danger to paramount public interests, the Audi alteram partem law can be disregarded.8
There are several exceptions to this general rule of “audi alteram partem” for e.g. where the disclosure
of evidence could cause significant injury to the individual directly or to other individuals
concerned, or where exposure would be in breach of confidence or would be injurious to the
public interest because it would require the disclosure of official secrets, hinder the openness of
comments and the prevention of crime, etc.9 Despite the extraordinary situations as listed above,
the court is bound to make an attempt to salvage this cardinal rule in its complete sense even with
a few adjustments and compromises if necessary. Where disclosure is not feasible, the concerned
party is entitled to examine, audit and, if possible, take notes of the content.10 Therefore, unless
the rules of principles of natural justice are specifically excluded through a piece of legislation, any
exercise of adjudicatory authority that results in legal penalties to the citizens shall abide by the
principles of natural justice.

7 Ex-Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409.
8 Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.
9 Natwar Singh v. Director of Enforcement, (2010) 13 SCC 255.
10 State Bank of Patiala v. S. K. Sharma, (1996) 3 SCC 364.
 I. THE VEIL OF PUBLIC INTEREST

Public interest immunity (hereafter referred to as PII) is an exception to the general rule of
disclosure of evidence. PII in essence is a framework to prevent the disclosure of classified
information raised by the government in order to restrict the access to information that cause harm
to the larger public interest. The judge uses classified evidence presented before him to determine
whether the public interest in transparency outweighs the public interest in confidentiality. On
grounds of that decision, the prosecutions begin with or without the records in question. The
Indian Evidence Act of 1872 grants the government the power, depending on public interest, to
claim privilege from disclosure of records.11 The reason government is enshrined with the power
to deny production of documents is that the production of such document might prove to be
detrimental to the larger public interest and it has been time and again established that private
interests always yields to the public interests when a conflict arises between the two.12 This
statutory exclusion allows for a general non-compliance with the standards of natural justice to the
degree that, once the State takes the view that the issue concerns national security, the court does
not reveal the reasons to the party concerned. Ultimately what it boils down to is the public interest
that nation must not be put in harm’s way due to the disclosure of certain documents versus the
public interest that the non-disclosure of certain documents should not frustrate administration of
justice and rule of law.13 The court therefore has to weight public interest against the right of a
citizen to question and counter the evidence presented against him.
The courts however, are not free to ponder upon the ramifications or the consequences of
disclosure and its effect on the public interest. On a simple reading of Sections 123 and 162 of
Indian Evidence Act together, the Supreme court observed that the court cannot conduct an
investigation into a potential harm to the public interest which may arise from the disclosure of
the document in question; it is a matter for the competent authority to determine.14 The courts
have noted that, if they have took upon themselves the task of deciding the nature of the
document, the power to prohibit its creation by the head of the department would inevitably
become illusory.15 Therefore though the courts are enshrined with the authority to hold a
preliminary enquiry, the ultimate discretion lay in the hands of the head of the department.
However, this unfettered discretion bestowed upon the ministries hits on another principle of
natural justice which is enshrined in the maxim “nemo judex in causa sua” which means that no one

11 Indian Evidence Act, §123, No. 1, Acts of Parliament, 1872 (India).

12 R.K. Jain v. Union of India, (1993) 4 SCC 119.
13 S.P. Gupta v. Union of India, 1981 Supp. SCC 87.
14 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.
15 Id.
can be a judge in their own case. Therefore, the Supreme Court through its decision in State of
Punjab v. Sodhi Sukhdev Singh16 has not only thwarted the power of inquiry commanded by the
judiciary but also has also undermined a principle of natural justice. Another significant problem
is the lack of a definition of "national security" in the Indian context. Although the courts have
sought to incorporate socio-political stability, territorial integrity, ecological balance, cultural
harmony, external peace, etc. within their definition, it has been stressed that what is in the interests
of national security is “not a matter of law,” but rather “a matter of policy.”17 The issues listed out
above create a doubt regarding the legitimacy and evidentiary value of the judgements passed
therein.

16 Id.
17 Ex-Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409.
 II. THE DILEMMA OF JUDGES

The public confidence in the judiciary is instilled when judiciary before delivering the judgement
takes into account the true and full disclosure of all facts within the framework of the rules of
evidence. The legal maxim aliquid statuerit, parte inaudita altera aequum licet dixerit, hand aequum fecerit
which means that “he who shall decide anything without the other side having been heard,
although he may have said what is right, will not have done what is right” has been accepted by
the Indian courts.18 No matter how astutely a judgement is delivered if one party is given the reins
of production of relevant material and the manner in which such material is presented. It is quite
unforeseeable to envision a judge delivering his judgement in a civil matter who is kept in the dark
regarding the defence and rebuttal of one party. Despite how diligently a judge may deliver a
judgement such a judgment will lack the quality of natural justice as it hinges upon the necessity
of the right to reason and to defend. If the court is not made aware of the defence of all parties
involved in the case, an utter travesty of the standards of natural justice will take place.19

A. When Natural Justice was Sacrificed at the Altar of Public Interest

The Indian judiciary has supplemented the evidentiary disclosure process for a long time,
hardly having managed to deal with the principle of fair trial in its true sense. However, the
judiciary had failed to deal with the complicated topic of disclosure following a rejection by
the State on the grounds public interest. Hence, if the party concerned is disqualified to the
point that it is sent away without any recourse at all, it would result in an outlawing. The
following cases present the problems that emerge in the absence of a definitive statutory model
of disclosure against the claim of national security and/or public interest.
a) Ex-Armymen's Protection Services (P) Ltd. v. Union of India20
In the event where the denial of security clearance for ground handling facilities at various airports was
contested on the basis of public interest, the court opined that the claim of “national interest” falls
within the scope of the exceptions to the standards of natural justice. The court also assumed the
authority to decide if the invocation of national security was warranted. The court ruled that, once the
State had taken the position that the matters involved national security considerations, it cannot under
any circumstances be forced to reveal the reasons to the party concerned.

18 Union of India v. Tulsiram Patel, (1985) 3 SCC 398.

19 Id.
20 (2014) 5 SCC 409.
 b) Satish Nambiar v. Union of India21
Where an adverse report was issued by a Central Government security agency which advised
the government to cancel an Overseas Citizenship of India registration given to the petitioner,
the validity of the order was challenged on the basis that a hearing was not granted prior to
the passage of such a prejudicial order which is an obvious violation of the principles of natural
justice. After reviewing the documents, the court found that, since the government had acted
on the aid and advice of the intelligence service to protect the security and integrity of the
country and its foreign relations, it could hardly be expected to provide for a hearing. The
court, in the opinion of the author, wrongly decided that the Petitioner had hardly suffered
any prejudice.
c) SCOD 18 Networking Pvt. Ltd. v. Ministry of Information & Broadcasting22
In the other case, a Multi Service Operator ("MSO") who operated a TV cable service,
demanded that the Ministry of Home Affairs and the Ministry of Information and
Broadcasting produce the files dealing with the termination of his security clearance. Although
the petitioner was focused on transparency, it subsequently consented to an exclusive review
of the files by the judge. An opportunity to a hearing, as stated by the Court, would not allow
the MSO concerned to investigate confidential or hidden details that cannot be revealed at any
expense. It was stressed that, since it is the primary responsibility of the Ministry to safeguard
security interests, its findings and findings should not be allowed to be examined in the manner
requested by the MSO concerned. The Court therefore found that nothing would culminate
by holding a hearing based on the content found to be relevant for the protection interests of
the country.
In essence, therefore, the judiciary is burdened with the responsibility to fortify two competing
interests which are
1. Upholding the natural principles of justice and the right of the litigant to a fair trial.
2. The interest of the state to safeguard the national secrets, protect the sovereignty and
integrity of India and preserve social peace and political stability.
The presence of a suitable comprehensive piece of legislation would offer a lot of support to an
over-worked judiciary which is currently burdened with making difficult decision who, after being
pleased with the adverse content, unreservedly sanction non-disclosure on grounds of public
interest, even though it means depriving the equal trial of a charge.

21 AIR 2008 SC 158.

22 Writ Petition No. 2459 of 2015.
 III. POSITION IN THE UNITED KINGDOM

In order to resolve the above-mentioned quandary, the author proposes that India should review
the “closed proceeding” model as followed in the United Kingdom and adopt the same in the
Indian legal system. This section outlines the procedure adopted by the United Kingdom in the
handling of its civil cases pertaining to matters of national concern, the public interest privilege
clause of common law, the emerging definition of the appointment of a special advocate, and the
Justice and Security Act of 2013.

Before Justice and Security Act, 2013 was given royal assent the UK civil procedural rules preclude
public authorities from disclosing material which could be proved to be of national importance.
The judiciary of the UK also supported this common law principle of PII. Lord Simon in a case23
said
“After all, the public interest is also the interest of every subject of the realm, and while, in these exceptional cases, the private
citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting
the interests of the country as a whole were not ranked as a prior obligation.”

A. The Guantanamo Bay Case

Justice and Security Act of 2013, was enacted in the wake of the UK Supreme Court’s 2011 ruling
in Al Rawi v. Security Service.24 The Al Rawi lawsuit was a tort suit seeking damages. Six plaintiffs
who had been held (among others) at Guantanamo Bay had filed the lawsuit. They had claimed
damages from the the Secret Intelligence Service, the Solicitor General, the Foreign and
Commonwealth Office and the Home Office in the English courts on the grounds that any of
these departments or entities of the Government of the United Kingdom led to the arrest,
surrender and supposed mistreatment of the claimants. The charges were placed under the
following heads: false imprisonment, conspiracy to kill, coercion, negligence and violation of the
1998 Human Rights Act.25 The government attempted to execute the trial according to
emergent standards of closed material procedure (hereafter referred to as CMP). This was the first
time that the use of CMP in a civil suit for damages had been proposed. While CMP was used in
the United Kingdom in some types of litigation, it was not otherwise widely used and definitely
had never been before recognised for an action for damages under the rule of tort. The Al Rawi
claimants rejected the government's plan and claimed that, instead, the ordinary PII rules should
apply. Referring to the appeal of the State, which was an alternative to the assertion of privilege in

23 Duncan v. Cammell Laird, [1942] AC 624 (HL).

24 [2011] UKSC 34.
25 Id.
the public interest, the majority considered that PII should not be replaced in such a way as to
apply to closed-court trials, but that a particular piece of legislation was required for such a
substantive departure from the standards of procedural justice of common law.26 This case
therefore became the foundation of the Justice and Security Act of 2013.

B. Closed Material Procedure and the Justice and Security Act of 2013

Closed material procedure permits the state to present to the judge confidential information which
other parties to the case are unable to investigate. Special Advocates are appointed to analyse the
fragile facts and represent the needs of parties that are exempt from examining the confidential
evidence themselves. Justice and Security Act of 2013 provides that any court with regards to a
civil proceeding has the authority to make a declaration that a particular case is the one in which a
closed material application may be made in relation to certain evidentiary material.27 The applicants
can be “party to the proceedings,” “the Secretary of State,” or by the court “of its own motion.”28
The application may or may not be supported by some of the adverse secret material to
demonstrate the sensitivity and relevance of the documents. The applicant would need to prove
to the court that if certain evidentiary material were to be disclosed it would harm the national
security29 and that only a closed proceeding and nothing else would be able to deliver justice. The
closed material bundles would then be represented by special advocates who would help in
representing the needs of the excluded party. The purpose of the appointment of a special advocate
is to allow representation in closed material proceedings of the rights of the excluded party.

C. The Other Side of the Coin

Despite the fact that CMP might be the most viable solution it has a few downsides which the
author believes the reader must be cautioned against. The main problem with CMP is that it
proposes the idea of “secret justice” which in itself is an oxymoron.
Lord Woolf in R v. Legal Aid Board30 cautioning against “secret justice” said
“… it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing.
It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also
maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being
administered impartially. It can result in evidence becoming available which would not become available if the

26 Id at 186.
27 Justice and Security Act 2013, §6(1).
28 Id. § 6(2).
29 Id. § 11(1).
30 [1999] QB 966.
proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It
makes uninformed and inaccurate comment about the proceedings less likely.”

Not only does an open court system serve a broader purpose by maintaining the public Trust in
the legal system, but also in the administration, instils discipline. Public trials within the courts
guarantee performance, expertise and dignity of implantation. In closed material proceedings, all
of these underpinned fundamentals are lost. Therefore, the downside of CMP is that it represents
a departure from the very established principle of justice being open, public and transparent.
 IV. LESSON FROM THE UNITED KINGDOM
a. It is important that a model of an equal structure be explored instead of disavowing the
need for a process that would revoke a litigant his simple common law right. Currently
there is a no process in India to have a CMP, let alone special advocates assigned to remedy
the defects thereof. In order to encourage the courts to conduct the balancing exercise, the
use of special advocates will undoubtedly be appropriate. While the appointment of a
special advocate is contradictory to an individual's freedom to be able to deal individually
with the evidence, it undoubtedly presents a possible solution, that is, a right to an effective
remedy. This solution, however, lies strictly within Parliament's domain. If Parliament
approves this alteration to the trial process, the intricacies inherent in the process should
not be overlooked. The challenge is always to differentiate between a simple irregularity
and what makes a divergence from a procedure an illegal. The court will not be able to
order any rejection or departure from the right to defend and disclose to the excluded
party, without the presence of any legislative model, which might coerce prosecutions
towards illegality. Any prosecutions which impede fair hearing principles and directly affect
the interest of the affected party will therefore be illegal without a governing rule. There is
a fine line of difference between making, on a case-by - case basis, procedural
modifications with minimal consequences, such as allowing the excluded person to take
notes rather than providing all the information that does not influence the content of a fair
trial process, and larger breaches of the rights of a fair trial. However, a considerable
usurpation of the right to investigate and delegate it to a special counsel would require a
statutory sanction.
b. Another important change that must be brought is that “public interest” and “national
security” should be defined, and such a definition should be different than the current
extremely broad definition. That would include the scope of a fair prosecution process and
the degree to which the public interest would weigh on it. This is imperative because the
weight maintained in the public interest by national security will allow a blanket argument
to hinder justice. As the safeguarding of national security is a matter of public concern, it
is important to identify two principles that may include socio-political stability, territorial
integrity, external solidarity, crime prevention, identification and coercion of witnesses, etc.
c. The special advocates who are appointed must be reputed lawyer of high integrity and an
officer of the government such as the attorney general should not be allowed to appoint
or nominate the special advocate since the government would be an interested party. The
court must be granted ample power to determine whether or not the information could be
 relied on or whether it should be made available to the court alone in order to arrive at a
reasoned order. Therefore, it would not matter if a closed proceeding is preferred, because
each substance or record will be open to the balance test against the principle of fair trial.
without disclosing the contents of it, the judges rendering a decision relating to closed
documents should freely talk about the evidence relied on. Third, it would be assumed that
the judge's impeccable impartiality would point out all information that is in favour of the
disqualified party and against the state. Fourth, if the court determines that the aims of
justice will be served by the participation of the special advocate alone, the exclusion of
the disqualified party can be ordered or sanctioned. There should be no concession,
though, on the right to rebut and cross-examine the witnesses.
d. The integrity of the courts will, arguably, be maintained only if the courts will analyse
whether the evidence satisfies the thresholds of public interest and national security. Upon
their satisfaction, the ultimate decision-making jurisdiction must remain with the Courts,
reviewing the material recorded by the State. When a state department decides against
publication, final decision-making authority should not rest with it as it will fall foul of the
theory of nemo judex in causa sua, that is, in his own case, no one can be a judge.
 V. CONCLUSION

Public interest immunity is an unruly horse and seldom has any court been able to tame it. It is not
solely the duty of the courts to deal with the daunting weapon public policy; it is also the duty of
the parliament, which has a heightened responsibility, to take responsibility for the required
changes of the legislation. Undisclosed and unchallenged evidence will never satisfy the demands
of a fair scheme of justice administration successfully. Nevertheless, communication between an
attorney and his client will always be greater than no contact at all without disclosing the precise
specifics of the facts. This at least enhances the opportunity and capacity of the complainant to
make his case. This protection of natural justice has the ability to produce good when defending
our constitutional and civil rights, and if it is used improperly for vested rights and to hinder the
course of justice, it creates equal damage and much confusion. While it is difficult for the ideals of
natural justice to set down straightjacket laws, their scope should not be reduced to the point of
excluding the right to a fair trial. It is, therefore, the need of the hour to revolutionize the principles
of natural justice into serving public interest, so that it encompasses the requirement of a fair
decision-making mechanism within its realm.