The critical views of the channel MediaOne on policies of the government cannot be termed anti-establishment. The role of an independent press role is crucial in a democratic society for it shines a light on the functioning of the state, says a CJI-led SC bench. A report by Mudit Mathur
Protecting freedom of expression of media, in a landmark judgement, the Supreme Court set aside the order of the Ministry of Information & Broadcasting (MIB) dated 31 January 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High Court dated 2 March 2022 on the ground of the infringement of procedural guarantees. The court lifted the telecast ban imposed on Malayalam news channel Media One by the Ministry of Information and Broadcasting (MIB) on the grounds of national security reasons.
MIB denied the uplinking and downlinking permission revoking license granted to Madhyamam Broadcasting Limited (MBL) with the ministry declining security clearance, citing adverse intelligence inputs, which the Court found to be unreasonable restriction infringing its right to the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
“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,” a bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli said.
The bench held, “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 action of the MIB in 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 within the fold of any of the grounds stipulated in Article 19(2),” it said.
“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 socioeconomic polity to political ideologies would pose grave dangers to democracy,” the bench opined.
In the sealed cover submitted to the court, the Intelligence Bureau had made the following adverse remarks in its report against MBL: (i) MBL is closely associated with ‘Madhyamam Daily’ which has links to Jamaat-e-Islami; (ii) The tenor of articles carried out by ‘Madhyamam Daily’ was of an adverse nature from the security perspective; (iii) A few of the key executives of the applicant had associated with JEI-H; and(iv) The proposed TV channel may espouse the ideology of JEI-H if permitted to operate.
In nutshell, to substantiate its conclusion that MBL has been taking an anti-establishment stance, references were made to its reports on UAPA, Armed Forces (Special Powers) Act, development projects of the Government, encounter killings, Citizenship (Amendment) Act, NRC, NPR, the Indian Judiciary’s alleged “double standards in terrorism cases” and the alleged portrayal of security forces in a bad light. MHA denied security clearance based on the IB reports.
The Court found the allegation that MBL is linked to Jamaat-e-Islami-Hind (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 observed.
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 are confidential is another. “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 apex court remarked.
The case came before the Supreme Court in an appeal under Article 136 after the Division Bench of Kerala High Court dismissed the petitions of MBL challenging the orders of MIB denying its renewal and revoking its license granted in 2011. The MIB revoked the permission which it had granted to MBL to uplink and downlink a news and current affairs television channel called “Media One”.
The management and trade union of working journalists of MBL, the trade union of working journalists, including the editor, Senior Web Designer and Senior Cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of the Constitution before the High Court of Kerala for challenging the action of MIB.
A Single Judge dismissed the petitions vide a judgment dated 8 February 2022. The writ appeal was dismissed by the Division Bench of the High Court by a judgment dated 2 March 2022. The High Court relied on material which was disclosed solely to the Court in a sealed cover by the then Union Ministry of Home Affairs. The appellants instituted proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court.
Dushyant Dave, Senior Counsel appearing on behalf of MBL, submitted that MBL was not provided access to the material which MIB submitted before the High Court to support the allegations made in the show cause notice. The Union of India, by submitting material in a ‘sealed cover,’ and the High Court, by relying on it in the course of its judgment, negated the principles of natural justice. This procedure is violative of the principle of an open court and of fairness to parties.
Mukul Rohatgi, senior counsel appearing for the Kerala Union of Working Journalists submitted that the freedom of the press protected under Article 19(1)(a) of the Constitution is one of the most precious freedoms and must not be infringed callously. He contended that though the conditions for renewal of permission are different from the conditions for the grant of permission, the High Court applied the same standard for both the grant of permission and renewal of license. On the disclosure of relevant material to the High Court in a sealed cover, it was submitted that if there was sensitive information in the material, the respondent could have redacted it before allowing the appellants to peruse the file. It was argued that the sensitivity of material cannot preclude the affected party from viewing the remaining portions.
K M Nataraj, Additional Solicitor General appearing for Union government, made the following submissions: (i) Paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that security clearance is a pre-condition for renewal of license; (ii) MIB was justified in revoking the permission granted to Media One because MHA denied security clearance; and (iii) The principles of natural justice stand excluded when issues of national security are involved.
The Bench formulated following issues arise in the course of determining the validity of the order issued by MIB refusing to renew the uplinking and downlinking permission granted to MBL to operate the television channel, Media One: (i) Whether security clearance is one of the conditions required to be fulfilled for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) Whether denying a renewal of license and the course of action adopted by the Division Bench of the High Court violated the appellants procedural guarantees under the Constitution; and(iii) Whether the order denying renewal of license is an arbitrary restriction on MBL’s right to the freedom of speech and expression under Article 19(1)(a) of the Constitution.
Examining the scope of Judicial Review on procedural grounds, the court considered, Article 13 of the Constitution states that all laws that are inconsistent with fundamental rights enumerated in Part III of the Constitution shall be void. Article 13(3)(a) states that for the purpose of this provision, law includes ‘any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.’
It is, thus, a settled position of law that an administrative action can be challenged on the ground of a violation of fundamental rights. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii)procedural impropriety. This Court has also held that in addition to the above grounds, administrative action can be reviewed on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution.
The principle of natural justice that is derived from common law has two primary facets- Audi Alterum Partem and Nemo Judex In Causa Sua. Audi Alterum Partem encapsulates the rule of fair hearing. Nemo Judex In Causa Sua encapsulates the rule against bias, that is, no person should be a judge of their own case. It is the case of MBL that MIB did not comply with the principle of Audi Alterum Partem because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. This, it is argued, infringes upon the right of MBL to a fair hearing.
On the other hand, MIB contends that it was not required to comply with the principles of natural justice since the denial of security clearance is on a matter involving national security, which is an established exception to the application of the principles of natural justice.
The Court drew three important considerations that have to be answered in the context: (i) Whether the non-disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing, that is protected under Articles 14 and 21;(ii) Whether the infringement of the right to a fair hearing would render the decision void; and (iii) 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.
The SupremeCourt found this case an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between the two visions of either permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security. In the context, the bench examined national and International jurisprudence of House of Lords, (UK), United States, Canada and India dealing with jurisprudence on public interest immunity claims.
The courts in India, the United Kingdom, and Canada have held that the non-disclosure of relevant material affects public interest, and the interests of the party seeking disclosure. The non-disclosure of information injures the principle of open government which is one of the basic premises of a democracy. It denies the citizens an opportunity to initiate a discussion or question the functioning of the government.
However, the Courts in the United States have been deferential to the claim of non-disclosure, particularly on the ground of national security so much so that the court does not undertake a balancing exercise between the claims of disclosure and non-disclosure. This is also because the courts in the United States give prominence to the objective of non-disclosure as opposed to its effect.
The judgement came at a time as a sparkling star to show direction when most of the media channels and news networks toe the line of the government thereby compromising their right to freedom of expression which send demoralising signals for the health and future of a vibrant democracy.
