The central government used the “plea of national security to deny the rights of citizens” and impinged upon MediaOne’s right to a fair hearing.
This is just part of the Supreme Court’s acerbic comments today while quashing the government’s ban on the Malayalam news channel. Today’s hearing was one year in the making, after the government refused to renew the channel’s licence in January last year. The channel is owned by Madhyamam Broadcasting Limited.
In the year that followed, the Kerala High Court upheld the government’s decision, which was based on vague claims of – which it said it would only explain in a “sealed cover”, not for MediaOne’s eyes. The Supreme Court would later pass an interim order permitting the channel’s transmission.
All these issues found mention today by the bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli.
Sources of income and ‘anti-establishment’ reportage
For starters, the government said security clearance had been denied to MediaOne due to its purported links to the Jamaat-e-Islami Hind, or JeIH, and the channel’s “anti-national” stance. The Intelligence Bureau said MediaOne’s main source of income was shares invested in by JeIH cadre “through its sympathisers”, and also that “most of the directors are JeIH sympathisers”.
But the JeIH is not currently banned in India, as the apex court pointed out. Meanwhile, the Intelligence Bureau said the organisation was “formed with the objective of securing the rule of Allah” and that it “plays a crucial role in attracting and channelising foreign funds to Islamic institutions in the country through official and clandestine channels”.
The bench, however, said the government’s file did not contain evidence on the alleged links between shareholders and the JEIH, and that the report was “purely an inference” drawn from information in the public domain – nothing “secretive”.
The judgement said: “While we have held above that it would be impractical and unwise for the courts to define the phrase national security, we also hold that national security claims cannot 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.”
On MediaOne being “anti-national”, the Intelligence Bureau said MediaOne was purportedly “espousing its anti-establishment stance” on a number of issues including the Citizenship Amendment Act, the Unlawful Activities Prevention Act, the National Register of Citizens, the Armed Forces (Special Powers) Act, and encounter killings.
All of these are highly contentious issues in India today, with a wealth of reportage by a number of media houses. But the Intelligence Bureau, according to the judgement, concluded that MediaOne “portrays security forces and judiciary in a bad light”.
However, the apex court said an independent press is “crucial for responsible functioning of society” and the use of the phrase “anti-establishment” implied the “press must support the establishment”.
The judgement noted MediaOne had not been found guilty of violating programme and advertising codes on “five or more occasions”. Newslaundry had reported on in 2020, when the channel was prohibited from telecasting for 48 hours for “critical towards Delhi police and RSS”.
The ‘national security’ argument
In its judgement, the court said MediaOne had proved that its right to a fair trial had been infringed by the I&B ministry “unreasoned” order of January 31, 2022 and also the non-disclosure of relevant material to the channel.
The court pointed out that the burden then shifts to the government to prove that the “procedure that was followed was reasonable” and “in compliance” with Articles 14 and 21 of the constitution. “The standard of proportionality has been used to test the reasonableness of the procedure.”
With respect to “national security”, the court said these considerations must be assessed on whether “material to conclude that the non-disclosure of information is in the interest of national security” and “whether a reasonable prudent person would draw the same inference from the material on the record”.
While confidentiality and national security are “legitimate aims for the purpose of limiting procedural guarantees”, the judgement said the state in this case had been unable to prove that these considerations arose in the present scenario. Thus, “blanket immunity from disclosure of all investigative reports cannot be granted”.
Further, the judgement said even if it was assumed that non-disclosure was in the “interest of confidentiality and national security”, the means adopted by the government did not “satisfy the prongs of the proportionality standard”.
Sealed covers again
Yet again, the Supreme Court was cutting in its remarks on the central government relying on “sealed cover” jurisprudence. It said the power of courts to “secure material in a sealed cover, when contradistinguished with the scope of assessment of public interest immunity claims, is rather unguided and ad-hoc”. After all, courts could also redact confidential sections of documents and provide a summary of their contents after a successful public interest claim.
The judgement said courts must also consider other factors when it comes to sealed covers, such as the relevance of the material to the applicant’s case, while “undertaking the proportionality standard to test the public interest claim”.
While there may be national security concerns with respect to such material, the “constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter”. In this regard, the judgement pointed out the role of an amicus curiae to balance confidentiality concerns with the need to “preserve public confidence” in the judicial process.
Importantly, the judgement said sealed cover procedures “violate both principles of natural justice and open justice”.
Finally, the court concluded that the non-renewal of permission to operate a media channel is a “restriction on the freedom of the press” – something that can only be reasonably restricted on grounds elaborated in Article 19(2) of the constitution.