The court was ruling on an appeal filed by the channel’s owner against the decision of the division Bench of the Kerala High Court upholding the order of the Union Ministry of Information and Broadcasting refusing to renew the channel’s licence.
IN a significant ruling, the Supreme Court has quashed the decision of the Union Ministry of Information and Broadcasting (MIB) to revoke the permission granted to Madhyamam Broadcasting Limited (MBL) to uplink and downlink the Malayalam language news and current affairs television channel called ‘MediaOne’.
The MIB had revoked the permission following the denial of security clearance to the channel on the ground of ‘national security’ by the Union Ministry of Home Affairs (MHA).
A division Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice Hima Kohli passed the judgment to this effect on Wednesday. The Bench also directed the MIB to issue renewal permissions to the channel within four weeks and directed all other authorities to cooperate in issuing the necessary approvals.
The court was ruling on an appeal filed by MBL against the decision of the division Bench of the Kerala High Court upholding the order of the MIB refusing to renew the license of the appellant company.
The judgment, authored by Chief Justice Dr Chandrachud, opined that the denial of security clearance to operate a news channel was a restriction on the freedom of the press, and such a restriction was constitutionally permissible only on the grounds stipulated in Article 19(2) of the Constitution.
The judgment quashed the MIB order on two grounds.Firstly, it flagged the non-adherence to procedural fairness in that MediaOne was not provided with the material relied upon by the Union government for revoking the permission granted to MBL to uplink and downlink the channel. Secondly, it found that the reasons for revoking the permission— the alleged anti-establishment stance of the channel and the alleged link of the shareholders of the MBL with the Islamic movement Jamaat-e-Islami— to not be a legitimate restriction on the freedom of speech and expression under Article 19(1)(a) of the Constitution, from which press derives its freedom.
In arriving at these findings, the judgment extensively cited precedents of the Supreme Court and also opened the sealed cover tendered to it during the course of the hearing. It extracted the contents of the ‘secretive inputs’ by the Intelligence Bureau (IB) which formed the basis for the MHA to deny security clearance to the channel.
The judgment held that the non-disclosure of reasons for the denial of security clearance, which was the sole ground for denying the permission to renew the channel’s licence, and the disclosure of relevant material only to the court in a sealed cover, had rendered the appellant’s procedural guarantees under the Constitution otiose. It added that the appellant’s right to writ remedies had been denied through a formalistic order by the Kerala High Court.
“The procedure that was followed by the high court had left the appellants in a maze where they are attempting strenuously to fight in the dark,” the judgment noted.
It added that the MIB denied disclosing even a summary of the reasoning for denying security clearance to the appellant. This, it held, trumped the freedom of the press without providing MBL with an effective and reasonable avenue to challenge the decision.
“This infringes upon the core of a right to fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision,”the judgment held.
The judgment thus recorded that there had been a violation of the principles of natural justice— the right to a fair and reasonable proceeding— by non-disclosure of reasons for denial of security clearance to MBL and tendering the material in sealed cover to the judges.
Though the judgment agreed that confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the State had been unable to prove that these considerations arise in the present factual scenario.
The Additional Solicitor General of India (ASG), for the Union government, argued that the reasons for denial of security clearance could not be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are ‘secret and sensitive’, and (ii) in the interest of national security.
The judgment rejected the argument of the ASG that in the present case, the reasons for the denial of security clearance could have been withheld. Citing a series of precedents, both national and international, the Bench opined that mere involvement of issues concerning national security would not preclude the State’s duty to act fairly.
If the State discards its duty to act fairly, then it must be justifiedbefore the court on the facts of the case.
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 first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs,” the judgment noted.
It then examined the claim of the government on proportionality standards. It refused to accept the claim of the MHA that allreports of investigative agencies are confidential.
“Investigative agencies such as the [Central Bureau of Investigation] and IB are required to conduct background checks on innumerable personnel and entities for a multitude of reasons. The interaction between private individuals and the State has increased by virtue of which the involvement of intelligence agencies has also proliferated. The reports of the intelligence agencies are not merely fact-finding reports. As it would be evident from the extractions of the material below, reports of investigative agencies make observations and provide inferences on the conduct of individuals which are then relied upon by the decision making authority. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that all such reports (sic) are confidential is another,” the judgment held.
It added that “such an argument was misplaced and could not be accepted on the touchstone of constitutional values.”
“The 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,”the judgment held.
In order to determine whether there was sufficient material to conclude that the action of the government was in furtherance of the interests of confidentiality and national security, the judgment revealed the content of the sealed envelope to explain its decision-making.
Contents of the sealed cover
On September 11, 2019, theMIB revoked the uplinking and downlinking permission which was granted to the MBL channel ‘Media One Life’. MBL submitted a representation against the revocation.
The MHA requested IB to furnish comments on the representation made by MBL. The IB made the following two adverse remarks:
Main source of income: MBL’s main source of income is the shares invested by cadres of Jamaat-e-Islami Hind (JEI-H), an Islamic organisation, through its sympathisers. Most of those on MBL’s Board of Directors are JEI-H sympathisers.
Anti-establishment stance: Media One channel was learnt to have been espousing an anti-establishment stance on various issues “including [Unlawful Activities (Prevention Act], Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, [Citizenship (Amendment) Act]/[National Population Register]/[National Register of Citizens].”
The IB thus concluded that the inputs attracted parameters listed as Serial No. 20 and 21 stipulated by the HMA guidelines issued on June 25, 2018 for the assessment of proposals received by the MHA for national security clearance.
The 2018 Guidelines stipulate that national security covers a wide range of issues but the principle focus, among other things, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation, and protecting the life and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and prosperity of the country and its citizens.
Sl No. 20 reads as “Involvement in religious proselytization activities in India”, and Sl No. 22 reads as “Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public.“
MBL filed an application for renewal of permission to uplink and downlink the Media One channel. The MIB forwarded the application for renewal to the MHA for security clearance. However, the MHA noted that there was no reason to consider the renewal of permission if security clearance had been denied to the company and its directors earlier.
The judgment observed that other than merely claiming that national security was involved, both in the affidavit that was filed before the high court and in the submissions before it, the Union government made no attempt to explain how non-disclosure would be in the interest of national security.
“The Union of India has adopted this approach inspite (sic) of reiterations by this Court that judicial review would not be excluded on a mere mention of the phrase ‘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 judgment underscored.
It then went on to examine the contents of the IB reports to decide if they were sufficient enough to uphold the ban on Media One. It observed:
“Security clearance was denied to MBL because of its alleged link with JEI-H, and its alleged anti establishment stance. To conclude that MBL is linked to JEI-H, IB relied on the ‘tenor’ of the articles published by dailies of MBL, and the shareholding pattern of MBL. To conclude that JEI-H has an anti-establishment stance, IB solely relied upon the programmes that were broadcast by Media- One. Some of the views that were highlighted in the IB report to conclude that MBL had an anti-establishment stand were that (i) it portrays security forces and the judiciary in a bad light; (ii) 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; and (iii) its comments on [Unlawful Activities (Prevention Act], Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, and [Citizenship (Amendment) Act]/[National Population Register]/[National Register of Citizens]. …
[W]ith respect to the list of shareholders who are alleged sympathizers of JEI-H, the file did not contain any evidence on the alleged link between the shareholders and JEI-H. The report of IB was 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. Additionally, it cannot be argued that the purpose of national security will be served by non-disclosure merely by alleging that MBL is involved with JEI-H which is an organisation with alleged terrorist links.”
The judgment thus held that national security claims could not be made out of thin air.
“There must be material backing such an inference. The material on the file and the inference drawn from such material have no nexus,” the judgment concluded after having found no material to justify the refusal of security clearance.
“The non-disclosure of this information would not be 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,”it added.
On substantive challenge
The judgment also allowed the appeal on the substantive challenge, in that it examined the material that was disclosed solely to the court in a sealed cover to decide if there was sufficient material to justify the non-renewal of permission. The judgment noted that security clearance was denied on the basis of two grounds: the alleged anti-establishment stand of MBL, and the alleged link of MBL with JEI-H.
Commenting on the reasons for denying the security clearance, the Bench noted that the critical views of the channel Media One on policies of the government could not be termed ‘anti-establishment’.
“The use of such a terminology in itself, represents an expectation that the press must support the establishment. The action of the MIB by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. Criticism of governmental policy can by no stretch of imagination be brought withing (sic) the fold of any of the grounds stipulated in Article 19(2),”the judgment held.
It also noted that since the JEI-H is not a banned or unlawful organisation, it is 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 only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by cadres of JEI-H. In the support of this, IB has submitted a list of shareholders. However, there is 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 sympathizers would affect India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathizers would affect the security of the State, there is no material to prove that the shareholders are sympathizers of JEI-H. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose,” the Bench reasoned regarding the contents of the material used for denying the security clearance.
The judgment concluded that there was no rational nexus between the material submitted against MBL, and the security parameters in Sl. No 20 and 22 of the 2018 HMA guidelines.
“MBL cannot be said to be indulging in religious proselytization for merely publishing reports on the alleged discrimination against the Muslim community in India, or infringing safety concerns by a mere reference to the shareholding pattern of MBL,” the judgment held.
Least restrictive means
The judgment also held thata public interest immunity claim is a less restrictive means in comparison to the sealed cover procedure.
“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. To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. 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,” the judgment said.
The claim of public interest immunity, the judgment explained, allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. All three parties to the proceeding, that is, the applicant, the State, and the court cannot refer to or rely on the documents for substantive hearings in the course of the proceedings if the court allows the public interest immunity claim at the discovery stage.
“In effect, the public interest immunity claim renders the relevant document non-existent for the purposes of the proceedings. Public interest immunity substantially realises the objective of protecting the interests of confidentiality and national security,” the judgment said.
It explained that the amicus curiae appointed by the court would be given access to the materials sought to be withheld by the State.
“The amicus curiae 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. 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. The amicus curiae shall to the best of their ability represent the interests of the applicant. The amicus curiae would be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel,” the judgment suggested.
Click here to view the Supreme Court’s judgment in Madhyamam Broadcasting Limited versus Union of India & Ors.