The Supreme Court on Wednesday, April 5 quashed the Information & Broadcasting (I&B) Ministry’s order refusing to renew the broadcast licence of Malayalam news channel Media One. A bench of Chief Justice of India DY Chandrachud and Justice Hima Kohli ordered the I&B Ministry to issue a renewed licence to the channel within four weeks. The court also observed that the unreasonable orders of the I&B Ministry, without disclosing the reasons behind the ban, infringed on the right to fair hearing of Media One’s owner, Madhyamam Broadcasting Limited. Apart from this, the apex court made some notable observations regarding press freedom and the non-disclosure of reasons for the ban citing national security.
The SC considered three important questions while delivering the judgement:
> Does the non-disclosure of reasons and relevant material for the decision to deny security clearance for the channel infringe upon the right to a fair hearing, that is protected under Articles 14 (equality before law) and 21 (guarantee of life and personal liberty);
> Does the infringement of the right to a fair hearing render the decision void; and
> If considerations of national security are an established exception to principles of natural justice, how should the court resolve the competing interests represented by the principles of natural justice and national security.
Madhyamam Broadcasting Limited (MBL) had contended that three principles were abrogated, leading to the infringement upon the right to a fair hearing, which constitutes the core of the procedural requirements protected under Article 21. The three principles mentioned were a reasoned order, disclosure of relevant material, and open justice.
> Reasoned order: While the I&B Ministry’s notice to show cause stated that the Ministry of Home Affairs (MHA) denied security clearance to operate the channel, it did not mention any reason for the denial. The January 31 order denying permission for renewal of licence also did not provide any reasons. The court thus observed that the channel was put in a precarious position without any recourse to defend the case against them.
> Disclosure of material relevant to the decision: Pointing out that the MHA declined to disclose any material that was relevant to its decision, the court observed that even though the decision was not limited to a few ‘top secret’ documents, none of them were disclosed.
> Open justice: The SC noted that the MHA disclosed the documents in a sealed cover to the High Court, which dismissed Media One’s plea relying on the material that was disclosed solely to it in the sealed cover. “The relevant material is not removed from the proceedings. The material is only removed from the affected party’s docket,” the SC said.
The SC observed that the I&B Ministry refused to disclose even the summary of the reasoning denying security clearance, which left MBL with no remedy. The justices also said that the freedom of press, which is protected under Article 19(1)(a), was “trumped” by not providing MBL an effective and reasonable avenue to challenge the decision. “This infringes upon the core of a right to fair hearing,” the court said, adding that the petitioners were constrained in a situation where they were unable to effectively challenge the decision of the I&B Ministry.
The apex court asserted that the mere involvement of issues concerning national security does not preclude the state from acting fairly. “If the State discards its duty to act fairly, then it must be justified before the court on the facts of the case,” the court said. Further, it laid down two conditions that must be fulfilled by the government in such cases.
“Firstly, the State must satisfy the Court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified,” the court said.
Pointing out that the MHA refused to disclose the reasons for banning the channel because reports from investigative agencies are ‘secret’ in nature, the court said, “MHA has made a general claim that all reports of investigative agencies are confidential. We are unable to accept such an argument.” The court added that reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system.
Stating that the expression ‘national security’ did not have a fixed meaning and that it was “impossible (and perhaps unwise) to lay down a textbook definition”, the court said that the phrase derives its meaning from the context and added that it was important for the State to prove that the non-disclosure was in the interest of national security by submitting relevant materials.
The court also said that the Union government raised the claim of national security in a cavalier manner and did not attempt to explain – in the Kerala courts as well as in the SC – how non-disclosure would be in the interest of national security. “The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law,” the court said.
Stating that the security clearance was denied to MBL because of its alleged links to Jamaat-e-Islami Hind (JEI-H), the court observed that the I&B Ministry used articles published by the dailies run by MBL, and MBL’s shareholding pattern. The court also observed that the Ministry solely relied upon programmes that were broadcast by Media One to conclude that JEI-H has an anti-establishment stance. Further, the court observed the views highlighted by the Ministry to come to this conclusion – that the channel portrayed security forces and the judiciary in a bad light; it highlighted the discrimination faced by minorities in the country and contrasted it with the State’s alleged soft attitude towards the Hindus who were involved in the destruction of Babri Masjid; as well as its comments on UAPA, Armed Forces (Special Power) Act, developmental projects of the government, encounter killings, Citizenship (Amendment) Act, and CAA/NPR/NRC.
Further, the court noted that there was no evidence to prove the link between MBL shareholders and JEI-H. “The IB report is purely an inference drawn from information that is already in the public domain. There is nothing ‘secretive’ about this information to attract the ground of confidentiality. We also hold that national security claims cannot be made out of thin air. There must be material backing such an inference,” the court said and added that the non-disclosure of this information is not in the interest of any facet of public interest, much less national security. “On a perusal of the material, no reasonable person would arrive at the conclusion that the non-disclosure of the relevant material would be in the interest of national security and confidentiality,” the bench concluded.
Observing that the security clearance was denied to Media One on the basis of two grounds: MBL’s alleged anti-establishment stand and its alleged links to JEI-H, the SC made certain important observations with regard to press freedom and to JEI-H.
“An independent press is vital for the robust functioning of a democratic republic. Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socio-economic polity to political ideologies would pose grave dangers to democracy. The critical views of the channel, Media One, on policies of the government cannot be termed ‘anti-establishment’. The use of such a terminology in itself represents an expectation that the press must support the establishment,” the court observed.
Further, it also said that the action of the I&B Ministry denying security clearance to a media channel based on material that the channel is constitutionally entitled to hold “produces a chilling effect on free speech, and in particular on press freedom”. The court also ruled that criticism of governmental policy cannot be brought under any of the grounds stipulated in Article 19(2).
On the I&B Ministry’s note on the alleged role and activities of JEI-H, the court said that the Ministry pointed out that the organisation was banned thrice. The court, however, stated that all the three bans were revoked. “Thus, when JEI-H is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with Foreign States, or public order,” the court said.
On the claim of alleged investment by JEI-H cadres in MBL shares, the court said that while the I&B Ministry has submitted a list of shareholders, there was no evidence on record to link them to JEI-H. “Thus, the allegation that MBL is linked to JEI-H is fallacious, firstly because JEI-H is not a banned organisation and there is no material to conclude that the investment by JEI-H sympathisers would affect India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathisers would affect the security of the State, there is no material to prove that the shareholders are sympathisers of JEI-H,” the court said, adding that the denial of security clearance does not have a legitimate goal or a proper purpose.
While making observations about confidentiality and non-disclosure of materials, the court said that the appointment of an amicus curiae will “balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.” An amicus curiae is someone who is not a party in the case, but who assists the court during the proceedings by giving information, insights, etc.
The amicus curiae appointed by the court can have access to materials that are said to be confidential, and they shall 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.”
“The amicus curiae shall to the best of their ability represent the interests of the applicant. They would be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel,” the court said.