Article 22(6): The Privilege Against Disclosure
Chapter Twenty-Four
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 115 to 118 of 657
In one line
The authority may keep back facts it considers it would be against the public interest to disclose, but it may not keep back the grounds themselves.
In the wording a student can write in an exam: article 22(6) provides that nothing in clause (5) shall require the authority making a detention order to disclose facts which such authority considers to be against the public interest to disclose. It is an exception to the disclosure obligation in clause (5) and it is confined to facts; the grounds on which the order has been made must still be communicated, and the earliest opportunity of making a representation must still be afforded.
Why the clause exists
Because the material on which a preventive detention rests is often material that cannot be disclosed without destroying its source. An informer who reports that a person is arranging a consignment of explosives will not survive disclosure of his report. Intelligence obtained by interception cannot be produced without revealing what is being intercepted.
The clause therefore does for detention what public interest immunity does in ordinary litigation: it allows the decision to rest in part on material the other side does not see. That is a real departure from the ordinary rule that a person must be told the case he has to meet, and the whole question is how far it goes.
The clause taken apart
"Nothing in clause (5) shall require." It operates only as an exception to clause (5). It confers no power to do anything; it merely removes an obligation.
"To disclose facts." Facts, not grounds. This is the distinction the whole chapter turns on and it is set out below.
"Which such authority considers to be against the public interest to disclose." Three elements: the judgment is the authority's; it must be a judgment that disclosure would be against the public interest; and the word is "considers", which imports the subjective satisfaction discussed in [Subjective Satisfaction, and How Far a Court May Examine It].
Grounds and facts: the distinction that decides the cases
This is the point students most often blur, and it is worth stating twice.
Grounds are the conclusions of fact on which the satisfaction rests: that the detenu has been organising the smuggling of gold through a named creek, that he has on three occasions incited a crowd against a community. They must always be communicated. Clause (6) does not touch them.
Facts are the particulars behind those conclusions: the name of the informer, the date and place of an interception, the identity of a witness. Those the authority may withhold on a public interest judgment.
The material relied on occupies the space between the two, and it is where the litigation happens. Where the grounds refer to a document, the document is ordinarily part of the grounds rather than a mere fact behind them, because without it the detenu cannot answer. That is the reasoning in [The Documents Relied On, and the Right to an Effective Representation].
Article 22(6): The Privilege Against Disclosure
The statutory versions
Section 8(2) of the National Security Act 1980: nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
COFEPOSA 1974 contains the same protection in its own scheme, and section 3(3) of that Act frames the disclosure obligation expressly by reference to article 22(5).
Both are in the same words as the Constitution, so nothing turns on any difference between them.
What limits the clause
Four limits, and an answer that gives them shows that the clause is not a blank cheque.
1. It reaches facts only. An authority that withholds the grounds is not exercising clause (6); it is breaching clause (5).
2. There must be an actual judgment. The words are "which such authority considers". If nothing shows that the authority applied its mind to the public interest at all, the clause is not engaged, and this is the ordinary rule about non-application of mind applied here.
3. The public interest must be the reason. Administrative convenience, embarrassment, or a wish to avoid explaining a weak case are not the public interest.
4. It cannot be used to defeat clause (5) in substance. Clause (5) requires the earliest opportunity of making a representation. If what is withheld makes any effective representation impossible, the two clauses collide, and the resolution is that clause (6) is an exception to the disclosure of facts and not a licence to render the representation useless.
A worked example
The grounds served on Imran say that on three named dates he received consignments of foreign-marked gold at a jetty near Alibag, on the basis of information received. He asks for the informer's statement.
Can it be withheld? The identity of an informer, and the statement in so far as it would identify him, are classic clause (6) material, and the authority may withhold them on a recorded public interest judgment.
Must anything be given? Yes. The grounds already state the dates and the place. If there is a seizure panchnama or a customs report relied on, that is material behind the grounds and is ordinarily to be supplied, redacted so far as necessary to protect the source.
What if the whole ground is "information received" with no dates, no place and nothing else? Then the objection is not under clause (6) at all. The ground is vague, and a vague ground is no ground: see [The Grounds of Detention: Vague, Irrelevant and Stale].
Article 22(6): The Privilege Against Disclosure
Distinctions
| Clause (5) | Clause (6) | |
|---|---|---|
| What it deals with | grounds and the opportunity to represent | facts behind the grounds |
| Nature | an obligation on the authority | an exception to that obligation |
| Whose judgment | none; it is mandatory | the authority's, on the public interest |
| Reviewable | yes, fully, on the six rules | yes, but only as to whether a genuine judgment was made and on a proper ground |
What it does NOT mean
It does not permit withholding the grounds. Only facts.
It does not make the withholding unreviewable. A court may ask whether the authority considered the question at all and whether the reason given is a public interest reason.
It does not extend to the court. The clause relieves the authority of an obligation to the detenu. It is not a bar on the court calling for the record, and in habeas corpus the record is routinely placed before the court.
It is not the same as section 16A(9) of the repealed MISA. That provision went much further, making the grounds and the information confidential and not liable to be disclosed to any court, and it was upheld in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, in the very different constitutional atmosphere described in that chapter. Nothing like it is in the National Security Act.
Quick revision
- Article 22(6): nothing in clause (5) requires the authority to disclose facts which it considers to be against the public interest to disclose.
- Facts only. Grounds must always be communicated.
- NSA s.8(2) is in the same words.
- Four limits: facts only; an actual judgment must be made; the reason must be the public interest; and it cannot be used to make the representation useless.
- The middle category, material relied on, is ordinarily to be supplied because the representation depends on it.
Test yourself
1. What may be withheld under clause (6)? Facts which the authority making the order considers to be against the public interest to disclose.
2. May the grounds be withheld? No. Clause (6) is an exception to the disclosure of facts and does not touch the obligation in clause (5) to communicate the grounds.
3. Is the authority's judgment reviewable? Yes, though within limits: a court may ask whether the authority applied its mind to the question and whether the reason is genuinely a public interest reason, but it will not substitute its own view of where the public interest lies.
4. How does clause (6) differ from section 16A(9) of the repealed Maintenance of Internal Security Act? Clause (6) relieves the authority of an obligation to the detenu in respect of facts. Section 16A(9) went much further and made the grounds and the information confidential and not liable to be disclosed to any court.
Article 22(6): The Privilege Against Disclosure
5. A ground reads only "on the basis of information received, the detenu is engaged in smuggling". Is clause (6) the answer to a complaint about it? No. The complaint is that the ground is vague and cannot be answered, which is a breach of clause (5), and clause (6) has nothing to say about it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.