FACTS
- In 2011, Madhyamam Broadcasting Ltd. (MBL) was allowed to uplink and downlink the television channel Media One, subject to conditions under the Uplinking and Downlinking Guidelines. The Ministry of Home Affairs (MHA) made these conditions subject to security clearance.
- MHA had refused security clearance in 2016, to which the Ministry of Information and Broadcasting (MIB) had issued a show cause notice, but the MBL license was reissued in 2019. In the meantime, permission was withdrawn for another channel, Media One Life.
- MBL renewed its application in the year 2021. MIB issued a show cause notice on 5 January 2022 based on the denial of security clearance by MHA. MBL expressed that it was neither a reason conveyed nor heard.
- On 31 January 2022, MIB suspended MBL’s trading license, Media One, on the grounds of security. MBL approached a writ before the Kerala High Court under Article 226 against the order.
- The Single Judge dismissed the petition, maintaining national security as the basis for non-disclosure of reasons (relying on Ex-Armymen’s Protection Services v. UOI (2014). The Division Bench confirmed the judgment after perusal of the sealed records, following the jurisdiction in M.L. Sharma v. UOI.
- MBL went to the Supreme Court under Article 136. The Court granted interim relief on 15 March 2022, staying revocation and allowing operation of the channel, and reserving for final hearing the issue of disclosure of sealed materials.
ISSUES
The following issues crop up in the determination of the validity of the order made by MIB denying renewal of the uplinking and downlinking permission given to MBL to run the TV channel, Media One:
- Whether security clearance one of the conditions for the renewal of permission under the Uplinking and Downlinking Guidelines?
- Whether the refusal to renew the license and the order passed by the Division Bench of the High Court contravened the Appellants’ constitutional procedural rights?
- Whether refusal to renew the license constitutes an unreasonable restriction of MBL’s freedom of speech and expression under Article 19(1)(a) of the Constitution?
CONTENTION
PETITIONER (Madhyamam Broadcasting Ltd.):
- The petitioner argued that non-disclosure of reasons and evidence for cancellation of the license was a denial of Article 21, as it violated natural justice and fairness of procedure. Non-disclosure of reasons for cancellation was viewed as a denial of a right of fair hearing under audi alteram partem.
- The petitioner challenged the sealed cover process because it denied a reasonable opportunity to respond, leading to arbitrary state action without legislative approval. This was claimed to be against Article 13.
- Withdrawal of permission was against its fundamental rights, i.e., Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (profession/trade), as it illegally curtailed the channel’s activities.
- The petitioner believed that the invoking of nebulous national security purposes by the government was arbitrary and opaque and trespassed on the ideal of equality in Article 14.
RESPONDENT (Union of India):
- The Union of India justified the action on grounds of national security and invoked Section 124 of the Indian Evidence Act to ground its claim to privilege over sensitive information concerning state affairs. The state argued that disclosure of such information would be detrimental to national security.
- The Union had depended upon Section 162 of the Indian Evidence Act in outlining the procedure adopted in handling privileged documents in court proceedings and self-verifying non-disclosure of sensitive intelligence independently as well.
- The state took the stance that the process of the sealed cover came under its domain because it guaranteed secrecy to intelligence inputs extremely sensitive to national security and public interest.
- The Union argued that reasonable restriction of basic rights was permitted under Articles 19(2) and 19(6) on grounds of national security, sovereignty, and public order.
- The respondent made the point that courts must restrain themselves in cases involving national security, citing earlier precedents where courts refrained from inserting themselves into executive action in such matters.
RATIONALE
The interim order of the Supreme Court was a balancing act between national security interests and the petitioner’s rights. The Court made it clear that the right to a fair hearing is basic under Article 21, and refusal to give reasons for the cancellation of permission would breach the right. The Court balanced the possible effect of disclosure of sensitive intelligence material, which would harm national security.
The Court also held that the procedure of sealed cover, as incorporated under Section 124 of the Indian Evidence Act, to safeguard the revelation of state secrets, is applicable. It was held that though the intelligence material can be withheld for the country’s good, the Court cannot but ascertain whether the rights of MBL to procedural fairness were sufficiently guaranteed by it.
In Article 19(1)(a), the Court acknowledged the significance of freedom of speech and expression, yet at the same time declared that freedom of expression and speech is not absolute and can be restricted in the name of national security. The Court remained firm that the government shall be justified in its actions by proving that cancellation was indispensable for maintaining public order and security.
DEFECTS OF LAW
Government Inaction Transparency: One of the main weaknesses of the law that was established in this case was that the government’s actions were not transparent, especially as it concerns withholding the grounds of denial of security clearance. Transparency leads to alarm when it comes to accountability and abuse of power.
Vagueness of National Security Claims: Use of general reasons of national security, as opposed to providing specific reasons or stating an obvious basis for denial of security clearance, creates a void in law, which could lead to arbitrary decisions. The Court should not be led to accept blanket claims of national security without scrutiny.
Sealed Cover Jurisprudence: Sealed cover process, while perhaps necessary in some national security matters, if implemented lock, stock, and barrel on a large scale without corresponding safeguards, can be corrosive of justice and fairness. The petitioner’s right to be given evidence against them on which action is initiated cannot be withheld even in delicate situations.
Likely Violation of Fundamental Rights: Media One’s withdrawal of permission created doubt about the undue restriction on MBL’s fundamental rights. Even though the interests of the government in national security are genuine, the steps taken need to be transparent to the judiciary to find out whether they are not disproportionate and arbitrary.
INFERENCE
In the vintage judgment in Madhyamam Broadcasting Limited v. Union of India the Supreme Court allowed the appeal favoured by Madhyamam Broadcasting Ltd. and set aside the Ministry of Information and Broadcasting (MIB) order of 31 January 2022 and the Kerala High Court decision of 2 March 2022. The Court believed that the denial of the grant of security clearance to the news channel Media One and the denial of renewal of the broadcast license were a denial of procedural fairness guaranteed under Article 21 of the Constitution. The Court further held that denial of reasons by the MIB and submission of evidence in sealed covers amounted to a denial of the rule of audi alteram partem, and amounted to a contravention of natural justice. Such clandestine practices, it held, could never stand the test of proportionality or reasonableness as mandated under Articles 14 and 21.
The invocation by the State on grounds of national security was rejected on the basis that the State had not made available material that would justify such nondisclosure, and had also not established a reasonable threat. Furthermore, the Court declared that denial of renewal based on alleged anti-establishment reporting and unsubstantiated association of shareholders with JEI-H was neither a permissible ground under the Constitution for restriction of freedom of speech under Article 19(1)(a), nor under the exceptions in Article 19(2). Freedom of the press cannot be unreasonably restricted by raising vague or unsupported charges, according to the Court’s decision.
Precisely, the Court has identified sealed cover proceedings as a pointed threat to open justice and trial justice. It proposed the invocation of public interest immunity proceedings as a less intrusive and more constitutionally permissible alternative. Regarding procedural fairness of the case, the Court assumed its jurisdiction in appointing an amicus curiae, who would be privy to confidential documents and would exercise his discretion in the interest of the applicant to find a balance between confidentiality and fairness.
According to Article 145 of the Constitution, the Court directed judgments to be pronounced in open court, with confidential information, if any, being removed. The redacted information needs to be kept in court files for future examination, if required. Finally, the Court directed the MIB to grant the renewal permissions within four weeks and instructed other authorities to facilitate accordingly. It also ordered that the interim relief already provided, which allowed Media One to broadcast, must be maintained until the renewal procedure is complete.
NAME: Shristy kumari
COLLEGE: Kirit P. Mehta School of Law, NMIMS, Mumbai
COURSE: B.A. LL.B. (Hons.)
EMAIL ID.: kumarishristy8271@gmail.com