The Supreme Court (SC) on Tuesday, 15 March, will begin hearing a case that could have profound implications on the freedom of the press and the court's powers of judicial review when the government makes claims about national security.
The case arises out of the decision made by a division bench of the Kerala High Court on 2 March, when it dismissed an appeal by Malayalam news channel MediaOne against the recent ban imposed on it by the Ministry of Information and Broadcasting on national security grounds.
MediaOne's challenge against the ban was first dismissed by a single judge of the high court, and the division bench, while hearing the appeal, said that it was "of the view that the learned single Judge was right in declining interference with the (government) order."
But Why Did the HC Dismiss MediaOne's Plea?
The guiding factor in the high court's decision was the central government's claim that there were national security grounds to deny MediaOne its licence – grounds that had to be submitted in a sealed cover, that the judges declined to assess in detail.
In a bid to justify the denial of security clearance to the channel, the ministry had produced the files in a sealed cover, and Justice N Nagaresh, having originally perused the same, had found the inputs to be of "serious nature" and falling under "the security rating parameters."
"From the files produced before this Court, it is discernible that the Committee of Officers took note of the inputs given by the intelligence agencies as regards the petitioner-company, and found that the inputs are of a serious nature and falls under the security rating parameters. In the circumstances, the Committee of Officers advised not to renew the licence. This Court finds that the recommendations of the Committee of Officers as finally accepted by the MHA, are justified by supporting materials."Justice N Nagaresh
The division bench that took over the case, thereafter, had also appeared to be in agreement with Justice Nagaresh, saying in its verdict: "We have perused the confidential files and we are convinced that there is a threat to national security."
MediaOne's Plea in the Top Court
"For 11 years we have functioned. We have 350 employees and millions of viewers. We've been shut down due to some secret files from Home Ministry and the court has justified it behind our back. It's too serious a matter relating to the right to information and freedom of the press."Senior Advocate Dushyant Dave, representing MediaOne
Approaching the SC with its Special Leave Petition (SLP), the channel submitted that the exact reasons for the non-renewal of the licence had not been revealed to it and that the Court approved the Centre's decision on the basis of certain sealed cover files, purportedly raising some national security concerns.
The plea had cited the Supreme Court judgment in Manoharlal Sharma Vs. Union of India (Pegasus case), wherein it was held that even as the scope of judicial review in matters pertaining to national security was limited, it did not mean that the State got "a free pass" by the mere invocation of national security.
Further citing Clauses 9 and 10 of the uplinking and downlinking guidelines, the channel contended:
Renewal of security clearance was a matter of right for the channel as there had not been a single complaint or any action against them in the last 10 years
The High Court judgment is patently illegal
Issues Before the SC
As the top court gets ready to hear MediaOne's plea, here are some of the things it may have to consider:
The Supreme Court's position on 'national security' claims
The extent to which information shared in 'sealed covers' may be relied on in such a case
The four-pronged proportionality standard
The SC's Position on 'National Security' Claims
The Supreme Court is yet to pass any final decision on the petitions regarding the use of the Pegasus in India, but back in September 2021, it had ordered the formation of a technical committee to probe allegations of the use of the spyware against Indian citizens.
The central government had opposed the petitions and refused to file an affidavit confirming or denying that it had purchased and used Pegasus against Indian citizens, citing national security.
In its order, the bench of the apex court, headed by Chief Justice of India NV Ramana, had said that while "the Union of India may decline to provide information when constitutional considerations exist," it had to substantiate any claims about national security implications. The order says:
a. It is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit
b. The Respondent Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns
c. They must justify the stand that they take before a Court
The Kerala High Court's acceptance of consequential information in sealed covers is not a first in a court of law. The practice of submitting documents in sealed covers has been employed multiple times by the apex court, including in a case pertaining to the Rafale fighter jet deal and in matters related to the National Register of Citizens (NRC) in Assam. Sometimes 'sealed covers' have made their way to the lower courts as well.
Having said that, this practice has also found deprecation in the apex court itself.
In the INX Media Case of 2019 (P Chidambaram vs Directorate Of Enforcement), the Supreme Court had said that while "it would be open for the Court to peruse the documents, it would be against the concept of a fair trial if in every case the prosecution presents documents in a sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail."
The court had also decried the practice of probe agencies of submitting documents in sealed covers to the court and had denounced the recording of judicial findings based on such material.
Thus, the apex court, in this case, too, would have to arrive at a conclusion about the extent to which such information can be used to reject the application of MediaOne and whether or not such a rejection infringes upon principles of natural justice.
'The Four-Pronged Proportionality Standard'
In Modern Dental College & Research Centre v State of Madhya Pradesh & Ors, the apex court had listed four components to be looked at in order to determine proportionality. The same was agreed to in essence by the same court in Justice KS Puttaswamy v Union of India, and relied on the Supreme Court's verdict in upholding the validity of the Aadhaar Act in 2018.
As gathered from these judgments, the four components, essentially, are:
A measure restricting a right must have a legitimate aim
It must be a means that is suitable for the furtherance of this aim
It must be meted out only in the unavailability of a less restrictive (but equally effective) alternative
A disproportionate impact on the right holder should not be a consequence of the said measure
In an article for his blog, Supreme Court Advocate Gautam Bhatia pointed out with regard to the single-judge order (since upheld by the Division bench):
"As banning a TV channel strikes at the core of the right to freedom of speech and expression, one expected that the self-proclaimed ‘sentinel on the qui vive’ (watchful guardian) would examine the impugned executive action on the touchstone of the four-pronged proportionality standard and that, in the event that the court was inclined to uphold the ban, it would – in accordance with the proportionality standard – show how a complete ban was the 'least restrictive measure' that was open to the government, and how the extent of the threat was 'proportionate' to the stringency of the government measure."
Bhatia observes that the judgment, authored by Justice M Nagaresh, "however, does none of that."
There may well be valid national security concerns pertaining to the Malayalam TV channel. However, when the courts are called upon to conduct a judicial review in a case like this, they can't just accept that at face value.
As it hears MediaOne's case, the Supreme Court will have to see if the Kerala High Court has conducted that exercise properly. If it finds that they have not, then it will need to delve into the issues on its own.
To use the Supreme Court's own words (from the Pegasus case): "The mere invocation of national security by the State does not render the Court a mute spectator."