SC lifts ban on Media One, slams use of national security bogey
The Supreme Court, in its judgment, said an independent press “shines a light on the functioning of the State”
Criticism of government action cannot be called “anti-establishment” and a homogenised view on issues ranging from socio-economic polity to political ideologies poses “grave dangers to democracy”, the Supreme Court emphasised on Wednesday, as it quashed the Union government’s telecast ban on Malayalam news channel Media One, and held that national security claims can’t be “made out of thin air” to deny citizens remedies provided under the law.
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In a judgment that underlined the importance of free speech and media freedom when pitted against the State’s assertions of national security and confidentiality of materials to justify restrictions, the top court ruled in favour of principles of natural and open justice, and an independent press, which, it said, is vital for the robust functioning of a democratic republic.
Senior advocate Dushyant Dave, appearing for MBL, had challenged the government’s decision, arguing that the Centre, 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,” he added.
The Supreme Court, in its judgment, said an independent press “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,” said the bench, headed by Chief Justice of India Dhananjaya Y Chandrachud.
Noting that the Centre denied security clearance to Media One in December 2021 citing the alleged anti-establishment stand of the channel as a prime ground, the bench said that critical views of the channel on government policies 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 ministry 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 within the fold of any of the grounds stipulated in Article 19(2),” added the bench, which also included justice Hima Kohli.
The television channel went off the air in January 2022 after the government refused to renew its licence, citing security concerns. In February 2022, the Kerala high court upheld the government order after the Centre submitted a sealed envelope detailing its stand to the division bench. But in March 2022, while admitting the appeal by Madhyamam Broadcasting Ltd (MBL), the channel’s owner, the top court temporarily lifted the ban.
In its order on Wednesday, the apex court directed the central government to grant security clearance and other necessary approvals to Media One within four weeks, and pulled up the Centre for denying the security clearance without there being any substantial ground to justify the ban and claiming absolute immunity against disclosure of the reports given by the Intelligence Bureau (IB) regarding the channel.
“Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government...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 top court said.
Snubbing the Centre’s argument on secrecy of IB reports, the SC bench highlighted 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.
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It also took a grim view of the 2022 Kerala high court order that affirmed the ban based on confidential reports shown only to the judges. The SC bench lamented that this form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge.
“The non-disclosure of reasons for the denial of security clearance which is the sole ground for denying the permission to renew the licence and the disclosure of relevant material only to the court in a sealed cover has rendered the appellant’s procedural guarantees under the Constitution otiose. The procedure that was followed by the high court has left the appellants in a maze where they are attempting strenuously to fight in the dark,” it said.
The SC court further held that a public interest immunity claim is a less restrictive means than the sealed cover procedure since the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such materials in a public interest immunity claim.
It laid down a broad procedure for the courts to deal with cases where the State presses for confidentiality of documents. The bench said that a court should apply the proportionality test to adjudge public interest immunity claim and appoint an amicus curiae, who would be given access to the secret material for assisting the court in balancing the concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.
At the same time, the bench said that the courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim.
Nixing the Centre’s argument that disclosure of the materials would be against national security, the bench said that the claim was made in a “cavalier manner”, wherein, other than merely claiming that national security is involved, the Union of India made no attempt to explain how non-disclosure would be in the interest of national security.
“The Union of India has adopted this approach in spite 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,” it added. The top court said that even though it was impractical and unwise for the courts to define national security, national security claims could not be “made out of thin air” and must be backed by material.
It also examined the other ground to deny a security clearance to Media One – its alleged links with Jamaat-e-Islami -Hind (JEI-H) and funding of the channel by JEI sympathisers. When JEI-H is not a banned organisation, the court said, it was 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 to justify a ban.
“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. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose,” the bench held.
“I welcome the Supreme Court’s decision revoking the ban on Malayalam TV channel @MediaOne,” Congress MP Shashi Tharoor said on Twitter, adding, “The judgement robustly affirms press freedom.”
