Is a Critical Media a Security Threat? SC Answers Key Questions In MediaOne Case

The Quint looks at the top court's key responses to the government on national security, press freedom & more.

“If you allow one channel to be taken off on grounds of national security, where does this stop?”

Adeel Ahmed, Advocate-on-Record at the top court, had questioned in conversation with The Quint, when the MediaOne hearing was drawing to a close in the Supreme Court last year.

Now, months later, the apex court, while setting aside the Union government's telecast ban on the Malyalam news channel, has said:

"We hold national security claims cannot be made on the basis of thin air. It is seen that none of the material is against national security or threatens public order."

In Brief:

• The Union Government had in January last year, asked MediaOne to stop operating after it denied security clearance to them during the license renewal process

• The government order had cited ‘unimaginable consequences on national security,’ and had refused to reveal why security clearance was denied

• During the hearing, the centre had submitted these reasons to the top court in a 'sealed cover

• The case came to the top court after the media house challenged the Union government's ban at the Kerala High Court and the court upheld the ban

• Following this, the High Court's decision was challenged at the top court

• A bench of Chief Justice of India DY Chandrachud and Justice Hima Kohli had reserved its verdict on 3 November after a three-day hearing

While delivering its verdict on Wednesday, the top court answered several crucial questions on national security press freedom, and sealed covers.

The Quint takes a look at the key highlights of the order.

Can a Critical Media Be a Threat To National Security?

The top court observed that the Centre's ban on MediaOne restricted the freedom of the press and criticising government policy, would by no means, fall within the folds of a “reasonable restriction” under Article 19(2) of the Constitution.

Note: Reasonable restrictions include: interests of the security and sovereignty of India, friendly relations with Foreign States, public order, decency or morality in the relation to contempt of court, defamation or incitement to an offence.

In doing so, the bench said:

1. "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."

2. "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."

3. "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."

4. "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)."

Can National Security Take Over The State's Duty to Act Fairly?

Although the centre had claimed that the channel's content raised concerns over national security, the top court concluded that national security claims were being used to "deny citizens their rights."

Here's more on what the top court said:

1. "Some of the reports cited by IB are that minorities favoring reports were telecast, there was critique of UAPA, NRC, CAA and criticism of judiciary and executive... such reports are just inference of what is available in the public domain. There was nothing to show terrorist links."

2. "National security is being used to deny citizen their rights which cannot be permitted under law."

3. The centre had alleged that the channel's promoters were linked to the organisation Jamaat-e-Islami Hind and this too was a risk to national security.

   Countering that the court said:

   "There is no evidence on record to link them to JEI-H."

   And, added:

   "When JEIH is not a banned organisation, it will be rather precarious for the state to contend that 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."

4. "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 and the facts of the case. Firstly, the state must satisfy the court that national security concerns are involved..."

Sealed Cover To Be Replaced: What Is The New Process?

The top court has recently been pulling up the government for submitting information to it in 'sealed covers.'

Last month, a bench led by CJI DY Chandrachud refused to accept the central government’s sealed cover note One Rank One Pension (OROP) case, because it “is fundamentally contrary to the basic process of fair justice.”

In February, the top court had turned down the government’s attempts to submit in a sealed cover suggestions about an expert panel in the Adani-Hindenburg case

This time too, the government's sealed cover submissions did not go down well with the top court, which said:

"Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, the Union of India made no attempt to explain how non-disclosure would be in the interest of national security. The Union of India has adopted this approach in spite of reiterations by this court." (emphasis added)

The reasons for withholding security clearance were not given to the channel but was submitted to the court in a sealed cover.

This, led the bench to devise a less restrictive procedure called “public interest immunity claim."

Here's how the new process will look like:

BEFORE THE HEARING:

• Courts can appoint an amicus curiae (friend of the court) to consider the state's claims of immunity from disclosing information on grounds of public interest

• The amicus curiae will be given access to the informtion which the state seeks to withold from the other party in the case

• The amicus curiae will interact with the applicant and their counsel before the proceedings to enable them to make well-reasoned submissions on why the state needs to disclose information to them

• However, once the immunity proceeding has begun, the amicus curiae shall not interact with the applicant or their counsel

• The amicus curiae shall, as best as they can, represent the interests of the applicant

• They will be under oath to not disclose or discuss the information in question with anyone else, including the applicant or their counsel

DURING THE HEARING

• This proceeding, called the public interest immunity proceedings, will take place in a closed setting

AFTER THE HEARING

• The Court after hearing the arguments, will need to pass a well-reasoned order in open court, for allowing or dismissing the state's claims of immunity from disclosing information

• If the court chooses to allow the immunity claim, it will have to come up with strong reasons and principles that it has considered and applied

• While doing this, the court may choose to redact the information not to be disclosed from the redacted order

• However, the redacted information shall be preserved in court records and may be accessed by courts in the future if needed