New Delhi, April 5.
The Supreme Court on Wednesday said that the government cannot deny security clearance to a media channel to operate merely on the basis of its views that it is constitutionally entitled to hold. This produces a chilling effect on free speech, and in particular on press freedom, the court said.
“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)” under which press freedom can be restricted, it said.
The reasons for denying clearance i.e., alleged anti-establishment stance and links to an alleged terror outfit, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution, it said.
The Ministry of Home Affairs had claimed that the media house had links with suspected terror groups but said that this information cannot be placed in public domain as it was confidential. The court, however, noted that the IB reports mostly referred to reports allegedly favouring minorities, and criticising the UAPA, NRC and CAA and the executive and the judiciary.
The bench also noted that the courts had since lifted the ban on the terror outfit.
A two-judge bench led by Chief Justice of India D.Y. Chandrachud accordingly set aside a March 2, 2022, Kerala High Court order which had upheld an Information and Broadcasting Ministry decision to deny security clearance to Malayalam channel Media One (Madhyamam Broadcasting Limited).
The bench ordered the Ministry to give the necessary permissions to the channel within 4 weeks. It will continue to operate till then under an interim order.
The top court also had very strong words against the procedure adopted by the High Court in the case. The High Court had upheld the decision on the basis of sealed cover reports submitted by the Ministry of Home Affairs.
The Ministry had argued that the information cannot be revealed as it involves national security.
“… the respondents (Ministries) 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 have violated the appellant’s (Media One’s) right to a fair hearing protected under Article 21 of the Constitution.”
They were unable to prove that the restrictions on the channel’s right to a fair hearing were reasonable, it said.
Govt of India raised claim of national security in a cavalier manner
“… it is our constitutional duty to mention the cavalier manner in which Union of India has raised the claim of national security,” the top court said.
“Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in submissions before us, the Union made no attempt to explain how non-disclosure would be in the interest of national security.”
Mere mention of national security will not exclude judicial review
“The Union has adopted this approach in spite of reiterations… 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 rule of law.”
Independent press vital for a democracy
The court said that an independent press was vital for robust functioning of a democratic republic. “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.”
Homogenised views pose grave danger to democracy
“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 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 court observed.
Sealed cover denies procedural fairness…
The CJI also faulted the High Court for compromising the citizen’s fundamental rights to free speech, the right to a fair hearing and the right to constitutional remedies, on the specious grounds of national security.
The Ministry refused to disclose even the summary of the reasoning denying security clearance. This has necessarily left Media One with no remedy, it said.
… denies a fair hearing &
“It is crucial to note that the freedom of press, protected under Article 19(1)(a), has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of a right to fair hearing.”
“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 relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated, it said.
First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (often the state) in course of arguments, and the court arrives at a finding by relying on it.
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, it said.
The affected party would be unable to “contradict errors, identify omissions, challenge the credibility of informants or refute false allegations”.
The right to seek judicial review which has now been read into Articles 14 and 21 is restricted.
… sets the stage for a non-reasoned order
A non-reasoned order perpetuates the non-application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed.
On appeal, the High Court observed that though the nature and gravity of the issue was not discernible from the files, there were clear indications that the security of the state and public order would be impacted if permission granted to Media One to operate the channel was renewed.
The High Court did not disclose the reasons for the denial of security clearance.
There is no explanation of what weighed in the mind of the court leading it to hold that the denial of clearance was justified despite observing that the nature and gravity of the issue is not discernible, the top court said.
Sealed cover reduced right to constitutional remedies to a dry parchment
The sealed cover procedure followed by the High Court Single Judge and the Division Bench have necessarily rendered Media One’s right to writ remedies, described as the ‘heart and soul’ of the Constitution and a basic feature of the Constitution, a dry parchment.
The nondisclosure of reasons for the denial of security clearance, 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 right to writ remedies has been denied through a formalistic order by the High Court, it said. “The procedure followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark.”
Non-disclosure of reasons has restricted the core principles of natural justice
The non-disclosure of reasons for denial of security clearance… 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.
The Union claims that the reasons and the documents cannot be disclosed in the interest of national security and confidentiality of intelligence inputs, it said.
The state at this stage is required to prove that confidentiality and national security are legitimate aims, and that the purposes of confidentiality and national security are served by non-disclosure.
The court has to examine the threshold question whether in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action.
To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that all such reports are confidential is another, the court said.
Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values.
Reports by investigative agencies impact life, liberty and professions, state cannot argue that all reports of intelligence agencies are confidential
The 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.
The MHA also opined that the relevant material must not be disclosed in the interest of national security. The issue before us is whether the court can judicially review this inference, and if it can, the extent of review.
Courts do not resort to a hands-off approach when it is claimed that national security implications are involved. It is therefore imperative for the state to prove through the submission of cogent material that non-disclosure is in the interest of national security.
It is the court’s duty to assess if there is sufficient material for forming such an opinion.
National security claim can’t be made out of thin air
A claim cannot be made out of thin air without material backing for such a conclusion, the court said. The court must determine if the state makes the claim in a bona fide manner.
The court must assess the validity of the claim of purpose by determining (i) whether there is material to conclude that the nondisclosure of the information is in the interest of national security; and (ii) whether a reasonable prudent person would arrive at the same conclusion based on the material.
IB reports mere inferences from information in public domain
In this particular case, the IB reports were purely inferences drawn from information already in the public domain. There is nothing ‘secretive’ about this information to attract the ground of confidentiality.
Additionally, it cannot be argued that the purpose of national security will be served by non-disclosure merely by alleging that Media One is involved with an organisation with alleged terrorist links. “… 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.
Non-disclosure of information against principle of open government
Non-disclosure of information injures the principle of open government which is one of the basic premises of a democracy. It denies the citizens an opportunity to initiate a discussion or question the functioning of the government. It is also against open justice.
Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the state has been unable to prove that these considerations arise in the present scenario.
No blanket immunity from disclosure of all investigative reports
The validity of the claim of involvement of national security considerations must be assessed on the test of whether there is 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 record. Even assuming that non-disclosure is in the interest of confidentiality and national security, the means adopted by the state do not satisfy the proportionality standard.
Non-disclosure of a summary of the reasons for denial of security clearance which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong.
Public immunity proceedings better than sealed cover
Rather than adopt the sealed cover procedure, it would be better, the court said, to have a public immunity proceeding in which the court only hears the party claiming right not to disclose.
The courts could hear arguments for non-disclosure from the party seeking it and could take the course of redacting confidential portions of the document and providing a summary of the contents to fairly exclude the material if such a claim succeeds.
Amicus curiae can help in balancing national interest, procedural fairness
To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, the court could appoint an amicus curiae. This will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.
The amicus curiae shall be given access to the materials sought to be withheld by the state. He shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure.
However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun and the counsel has viewed the document sought to be withheld.
The amicus curiae shall to the best of their ability represent the interests of the applicant. The amicus would be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel.
Article 145 stipulates that all judgments of the Supreme Court shall only be delivered in open court. Though public interest immunity proceedings will take place in a closed setting, the court is required to pass a reasoned order for allowing or dismissing the claim in open court.
“We are cognizant of objections may be raised that an order justifying the reasons for allowing the claim would have to inevitably disclose information on the very material that it seeks to protect.”
The court in such cases is still required to provide a reasoned order on the principles that it had considered and applied, even if the material that is sought to not be disclosed is redacted from the reasoned order.
However, the redacted material shall be preserved in the court records which may be accessed by the courts in the future, if the need arises, the top court said.
