Supreme Court: In a case where the Union Ministry of Information and Broadcasting had revoked the permission granted to Madhyamam Broadcasting Limited (MBL) to uplink and downlink a news and current affairs television channel called “Media One”, the bench of Dr DY Chandrachud*, CJ and Hima Kohli, J has held that by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover, the Union of India has violated the MBL’s right to a fair hearing protected under Article 21 of the Constitution.
This case also led to the Supreme Court laying down the procedure for conducting public interest immunity proceedings which, it opined, was a better alternative to the sealed cover procedure which does not ensure a fairer proceeding.
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The issue arose after Intelligence Bureau denied security clearance to MBL’s Media One News Channel while making adverse remarks on MBL’s main source of income which was alleged to be from Jamaat-e-Islam (JEI-H) sympathizers, and its anti-establishment stance. References were also 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.
On the alleged role and activities of JEI-H, the Intelligence Bureau had submitted that:
(i) JEI-H was formed in 1941 with the objective of securing the rule of Allah. After the partition of the Indian sub-continent, JEI formed units in India, Pakistan, and Kashmir. JEI-H is opposed to secularism, democracy, and socialism;
(ii) JEI-H was banned thrice and all the three bans were revoked
(iii) JEI-H plays a crucial role in attracting and channelizing foreign funds to Islamic institutions in the country through official and clandestine channels; and
(iv) JEI-H through its publication, Madhyamam Daily has been “critical of India’s foreign policy, besides indulging in anti-US propaganda. It has also been critical of security agencies/judiciary and often presents news from a communal perspective. Senior functionaries of JEI, Kerala are learnt to be mobilizing funds through hawala channels from the Gulf for launching a TV Channel.
The Court was, hence, called upon to decide if these reasons provide a justifiable ground for the denial of security clearance, and consequently, restricting MBL’s right to the freedom of press under Article 19(1)(a) of the Constitution.
Supreme Court’s Analysis
In the case at hand, 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. Here’s a breakdown of the Supreme Court’s analysis of both the grounds.
Freedom of the Press vis-à-vis MBL’s alleged anti-establishment stand
The Court explained that the freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The grounds stipulated in Article 19(2) include the “sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
In the context of the case at hand, the Court held that security clearance is a requirement for renewal of an Uplinking and Downlinking license. The denial of security clearance to operate a news channel is a restriction on the freedom of press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2) of the Constitution.
The court is required to assess if the measure restricting the right has a legitimate goal. Thus, the purpose of the state action that is challenged must necessarily be traceable to the grounds stipulated in Article 19(2) to test if the freedom of press has been reasonably restricted.
Stressing on the important of independent press, the Court observed that it 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 socioeconomic polity to political ideologies would pose grave dangers to democracy.”
The Court was of the opinion that 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 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 the fold of any of the grounds stipulated in Article 19(2).”
National Security vis-à-vis MBL’s alleged link with Jamaat-E-Islam
The Court took note of the fact that even in the note submitted by the Intelligence Bureau on the alleged role and activities of JEI-H, it was mentioned that the organisation was banned thrice and all the three bans were revoked. Thus, it was observed that 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.
Further, 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. While Intelligence Bureau has submitted a list of shareholders, there is no evidence on record to link them to JEI-H.
The Court also observed that 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.
It was explained that the validity of the claim of involvement of national security considerations must be assessed on the test of
(i) whether there is material to conclude that the non-disclosure of information is in the interest of national security; and
(ii) whether a reasonable prudent person would draw the same inference from the material on record.
Hence, in the case at hand, even assuming that non-disclosure is in the interest of confidentiality and national security, the nondisclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong.
The Court, hence, came to the conclusion that the purpose of denying security clearance does not have a legitimate goal or a proper purpose and that the non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution.
[Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366, decided on 05-04-2023]
*Judgment authored by CJI Dr DY Chandrachud
Advocates who appeared in this case :
For MBL: Senior Advocate Dushyant Dave;
For editor, Senior Web Designer and Senior Camera Man of Media One: Senior Advocate Huzefa A Ahmedi;
For Kerala Union of Working Journalists: Senior Advocate Mukul Rohatgi.