Madhyamam Broadcasting Limited v. Union of India (2023)
The case was that Union Ministry of Information and broadcasting, had revoked the license of a Malayalam News channel ‘Media one’, because of the denial of a security clearance. Against this revocation, trade union of working journalist MBL and persons from ‘Media one’ filed a writ petition under Article 226 to Kerala High Court.
The petitioners sought following reliefs in their petitions-
- To set aside the order of revoking the permission,
- An opportunity of being heard before that revocation,
- A declaration that there are no circumstances warranting a denial of security clearance or the revocation of the license since MBL has not violated any law or indulged in anti-national activity.
The Union home ministry filed a sealed cover report showing the security concern as the reason of that revocation.
The Assistant Solicitor General of India filed a statement before the High Court submitting that security clearance was denied on the basis of intelligence inputs, which are “sensitive and secret in nature”. It was further submitted that MHA cannot disclose reasons for the denial “as a matter of policy and in the interest of national security”.
Relying on that sealed cover report, by a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala dismissed the writ petition. The, the Division Bench of the High Court directed that the files submitted by MHA shall be placed before it since the Single Judge dismissed the petition by ‘relying upon the files’. But, the division bench also dismissed the petition, by saying that,
“The State has justified the plea of non-disclosure since the statement filed by the Union of India before the Single Judge, indicates that “the Ministry of Home Affairs has informed that denial of security clearance in the case on hand is based on intelligence inputs, which are sensitive and secret in nature, therefore, as a matter of policy and in the interest of national security, MHA does not disclose reasons for denial.”
Case in the Supreme Court
Against this dismissal, the ‘Media one’ channel filed a special leave petition to supreme court under Article 136.
The submission made by Petitioner
- The order to revoke the permission is unconstitutional because security Clearance is a pre-condition only for the grant of permission to operate the channel and not for the renewal of the existing permission. Security clearance cannot be denied on grounds that exceed the reasonable restrictions on the freedom of the press prescribed under Article 19(2) of the Constitution.
The procedure to grant or refuse security clearance must be subject to the limitations prescribed in PART B 16 Article 19(2) of the Constitution read with Section 4(6) of the Cable Television Networks (Regulations) Act 1995.
- 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.
Analysis of the court
In its analysis, the court had three questions under consideration-
(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.
Through this case, the court also took the opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved.
MBL’s right to a fair hearing
Contentions
MBL contended that the principles of a reasoned order, disclosure of relevant material, and open justice have been infringed by the order of the MIB and the judgment of the High Court. It was contended that the abrogation of these three principles infringe upon the right to a fair hearing which constitutes the core of the procedural requirements protected under Article 21.
Court’s Answer
- The principles of natural justice ensure that justice is not only done but it is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. It holds utmost significance in ensuring fairness; scholars and courts now term it as the third principle of natural justice.
- Reasoned orders are in furtherance of the right to information and the constitutional goal of open government. Secrecy broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law.
- On the facts of the case, MIB has denied to disclose even the summary of the reasoning denying security clearance. It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision.
On sealed cover
On sealed cover report, the court said that:
- MHA disclosed the material forming the opinion for denying of security clearance solely to the High Court. The High Court instead of deciding if any other less restrictive but equally effective means could have been employed, straight away received the material in a sealed cover without any application of mind. It is now an established principle of natural justice that relevant material must be disclosed to the affected party. This rule ensures that the affected party is able to effectively exercise their right to appeal.
- When the state government claims non-disclosure on the ground of public interest under Section 124 of the Evidence Act, the material is removed from the trial itself. As opposed to this method, when relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the state) in the course of the arguments, and the court arrives at a finding by relying on the material.
- In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any inferences from the material before the adjudicating authority. This form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge. The affected party would be unable to “contradict errors, identify omissions, challenge the credibility of informants or refute false allegations”.
- The sealed cover procedure followed by the Single Judge and the Division Bench have necessarily rendered the appellant’s right to writ remedies, which has been described as the ‘heart and soul’ of the Constitution, and a basic feature of the constitution[1], a dry parchment.
The non-disclosure of reasons for the denial of security clearance which is the sole ground for denying the permission to renew the license 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. The non-disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of the natural justice – the right to a fair and reasonable proceeding.
Supreme Court on National Security
It was submitted by the Gov’s counsels that the principles of natural justice are not applicable in matters concerning national security. They relied on two cases, Ex-Armymen’s protection Services Private Limited v. Union of India[2] and Digi Cable Network (India) Private v. Union of India[3].
But, the court held that,
- “The principle that was expounded in that case was that the principles of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness.
- Thus, national security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted. The 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 justified before 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. These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard.
The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs.
The court noted that Security clearance was denied to MBL because of its alleged link with Jamat-e-Islami-Hind, and its alleged anti-establishment stance. To conclude that MBL is linked to JEI-H, IB has 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 has solely relied upon the programmes that were broadcast by Media-One.
The court held that, the report of IB is 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.
- The court have held that it would be impractical and unwise for the courts to define the phrase national security, the court also held 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.
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.
- Relying on the case ‘A v. The United Kingdom[4], where ECHR held that if procedural guarantees are restricted, then the limitation must be sufficiently counterbalanced. In Secretary of State for the Home Department v. AF[5] the House of Lords while interpreting the judgment of the ECHR in A (supra) held that there is a ‘core irreducible minimum’ of procedural guarantees which cannot be infringed. The House of Lords observed that the ‘essence of the case against the applicant’ is a core irreducible minimum which has to be disclosed.
- The court showed its agreement with the observations of the House of Lords and ECHR in AF (supra) and A (supra) respectively. And held that, MHA by not disclosing the reasons for denying security clearance has rendered MBL’s procedural guarantees otiose. The summary of reasons for denying security clearance constitute the ‘core irreducible minimum’ of the procedural guarantees under Article 14. By not disclosing the summary of reasons, the MHA has undertaken an unreasonable and arbitrary means to fulfil its purpose.
While concluding the judgment, the court said,
- 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. 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.
- 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 within the fold of any of the grounds stipulated in Article 19(2).
Decision
The Supreme Court set aside the order of Kerala High Court.
Reference
Madhyamam Broadcasting Limited v. Union of India (2023)
[1] L. Chandra Kumar v. Union of India, (1995) 1 SCC 400
[2] 7 (2014) 5 SCC 409
[3] AIR 2019 SC 455
[4] Application no. 3455/05
[5] 2009] UKHL 28, (paras 62-65, 81))