A Division Bench of the Kerala High Court has dismissed the appeal filed by MediaOne, a television channel in Kerala, whose licence the Ministry of Information and Broadcasting has refused to renew. The Ministry had said that the licence could not be renewed for reasons related to national security. The stand of the Government was endorsed by both the Single and Division Benches of the High Court. In this context, the judgments set a dangerous precedent for free speech rights and procedural justice.
A whole set of rights are directly hit by the ban. The first is the obvious one: the right to freedom of speech and expression of the television channel. The rights to association, occupation and business are also impacted. Moreover, the viewers also have a right to receive ideas and information. All these rights are altogether suspended by the executive. The only contingency in which these rights under Article 19(1) can be interfered with are reasonable restrictions under Article 19(2).
Among others like public order, incitement to an offence, it lists ‘security of the State’ as a ground. However, the trouble emanating from the MediaOne judgment is that the state need not even show that its security is threatened. It can conveniently choose the ‘sealed cover’ route.
The jurisprudence of ‘sealed cover’ is an appalling trend. The process of judicial review is significant since it holds the executive accountable. The executive must cogently answer its actions – especially when fundamental rights such as free speech are curtailed. India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights. The Supreme Court of India has repeatedly held that judicial review of executive action is the basic feature of the Constitution. The decisions in Minerva Mills vs Union of India (1980) and L. Chandra Kumar vs Union of India (1997) reiterated this fundamental principle. If the executive wishes to limit rights — in this case, censor or restrict speech — it must show that the test of reasonable restrictions is satisfied. This principle is the bedrock of judicial review.
The ‘sealed cover’ practice inverses this position. The moment the executive utters ‘national security’, courts often permit them to inform the justification in a ‘sealed cover’. These ‘reasons’ are not disclosed to the party whose rights are clearly at stake. The court satisfies itself of the defence of the state and dismisses the petition. MediaOne, the channel that has been censored, is completely in the dark over the reasons for the ban. It was never heard nor its version ascertained.
Endorsed yet blocked
The judgment creates a situation that endorses the breach of fundamental rights on the one hand, and blocks remedy for the victim through a court of law and a process known to law on the other hand. This is an emulation of the tenor in the judgment in ADM Jabalpur (1976). The majority said in this case that fundamental rights could be suspended during the Emergency, with no scope for assessment by the court. Unfortunately, the Kerala verdict revives the ghost of ADM Jabalpur.
Consider what the judgments say. The Single Judge said: “From the files produced before the court, it is discernible that the committee of officers took note of the inputs given by the intelligence agencies....” which “are of serious nature”. These inputs remain unknown. In the judgment of March 2, the Division Bench said: “It is true that the nature, impact, gravity and depth of the issue is not discernible from the files.” Still, the Bench chose to dismiss the appeals by bluntly saying that “there are clear and significant indications impacting the public order and security of the state”. All that is necessary to ban a news broadcaster are these ‘indications’ — which are never revealed to the broadcaster!
No recent trend in judicial review has been as opposed to the principles of natural justice as that of the ‘sealed cover’. At the High Court, national security came to mean absolute impunity for the Centre. The central government virtually wanted the constitutional court to abstain from its primary function of review of the legality of executive action, and the court did exactly that. The judgment, which accepted this proposition, has the potential to mark the beginning of the end of a free press in a working democracy.
When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality.
In Modern Dental College vs State of Madhya Pradesh (2016), the top court adopted the proportionality test proposed by Aharon Barak, the former Chief Justice, Supreme Court of Israel, “a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right”. This was reiterated in K.S. Puttaswamy vs Union of India (2017). But this entire process of proportionality analysis is sidelined by the High Court.
For the top court to resolve
Yet, the MediaOne case might create a real problem area that needs resolution by the Supreme Court. The High Court relied on the Supreme Court judgment in Digi Cable Network vs Union of India (2019). In Digi Cable, the Court reiterated the principle in an earlier judgment called Ex-Armymen’s Protection Services Private Ltd. (2014). The High Court reiterated what the top court said in Digi Cable: “In a situation of national security, a party cannot insist for the strict observance of the principles of natural justice”.
There are two issues here. First, there was no examination of the national security plea based on the proportionality analysis, well established in our recent jurisprudence. Second, when a three-judge Bench in the Pegasus case (Manohar Lal Sharma vs Union of India, 2021) has categorically held that the state does not get a “free pass every time the spectre of ‘national security’ is raised” and that “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”. In view of this subsequent law laid down by a larger Bench, the High Court could not have mechanically resorted to the earlier approach in Digi Cable. Therefore, the principle, if any in both Digi Cable and Ex-Armymen, is arguably implicitly overruled in the Pegasus judgment. No court can read and apply a previous judgment as if it is a statute. But this is what the Kerala High Court did, while relying on Digi Cable.
Today, we have a state that has succeeded in suppressing the voice of the dissenter, illegally and clandestinely. The current case will have an impact on any kind of dissent against an aggrandising regime, including political movements and academic criticism. A court that sits as a mute spectator to any executive action is a crude manifestation of democratic decay.
Justice Jackson of the U.S. Supreme Court famously said: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard” (West Virginia State Board of Education vs Barnette et. al, 1943). Constitutional courts are expected to eradicate such possibilities instead of perpetuating them.
Kaleeswaram Raj and Thulasi K. Raj are lawyers at the Supreme Court of India. The views expressed are personal
- The executive must cogently answer its actions – especially when fundamental rights such as free speech are curtailed. India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
- When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality.
- A court that sits as a mute spectator to any executive action is a crude manifestation of democratic decay.