On Tuesday, the Kerala High Court released its order upholding the revocation of popular Malayalam news channel MediaOne TV’s licence to broadcast. While doing so, the court accepted the government’s argument that in instances of national security, freedom of speech could be restricted and it may be permitted to deny the aggrieved party a chance to present its case.
Relying on documents submitted by the Union Ministry of Home Affairs in a sealed cover, the court held that the ban on MediaOne is justified. These documents, however, were not provided to the channel. Legal commentators have criticised the judgment for not providing adequate reasoning and not applying the standards laid down in the past to restrict fundamental rights.
What was the case about?
MediaOne TV’s licence to broadcast was to expire in September 2021. In May 2021, it applied to the Union Ministry of Information and Broadcasting for renewal. Under the current guidelines, the Union Ministry of Home Affairs has to give security clearance before such a renewal. In MediaOne’s case the home ministry denied this clearance in a letter on December 29.
Subsequently, the Ministry of Information and Broadcasting sent a show-cause notice to MediaOne asking why its license should not be cancelled. MediaOne replied that it had not been informed why the security clearance was denied and asked that the government not penalise the channel.
On January 31, the Ministry of Information and Broadcasting informed MediaOne that its licence renewal request has been denied.
What did the two sides argue in court?
After the information ministry revoked MediaOne TV’s license to broadcast, the channel challenged the ministry’s action before the Kerala High Court.
MediaOne argued that the government must inform it as to why the security clearance was denied and give it an opportunity to be heard before passing an order revoking permission to broadcast. It further said that it is not involved in any anti-national activities and has made significant investments in the business.
Relying on the Supreme Court’s 2021 order in the Pegasus case, MediaOne argued that the government should not get a free pass every time national security is raised as a defence. Pegasus is a military-grade spyware that several governments, including India, were allegedly using to snoop on its critics.
Several petitions were filed before the Supreme Court seeking an investigation into the matter. However, the government tried to block them using national security as a reason. In October, the court told the government that national security cannot be the “bugbear that the judiciary shies away from” and formed a committee to investigate the matter.
In addition, MediaOne argued that the revocation was an infringement of its rights under Article 19(1)(a) of the Constitution, which guarantees freedom to speech and expression, and Article 19(1)(g), which guarantees freedom to practise any profession, or to carry on any occupation, trade or business.
Employees of MediaOne had also petitioned the court, saying that if the licence was not renewed, more than 300 of them would be put through economic hardship.
On the other hand, the Union government argued that in cases of national security, the strict observance of the principles of natural justice could not be insisted upon. This includes the expectation that an affected party must be given a chance to defend itself. It added that the freedom of press is not absolute and there could be reasonable restrictions on grounds such as the security of the nation.
The government submitted the national security concerns to court in a sealed cover to which MediaOne TV did not have access.
What did the court say?
The court agreed with the government that there could be reasonable restrictions on freedom of speech. Further, it also agreed that in matters of national security, the principles of natural justice and interference by courts have a “very limited role”.
The judgment also relied on an ancient Indian text – the Atrisamhita – to say that national security is “one of the most important sovereign function[s]” of any government.
Further, the court said that where national security is concerned, it could demand government information to satisfy itself that the concern is justified, without disclosing those reasons to the affected party. In this case, the government submitted the information in a sealed cover, which the court found satisfactory to justify MediaOne TV’s broadcasting licence being revoked.
About the reliance on the Supreme Court’s Pegasus order – which held that national security cannot be used as a reason to completely escape judicial scrutiny – the Kerala High Court argued that this was said in the context of right to privacy and may not be of help in cases relating to freedom of speech and expression.
It is baffling how the Kerala High Court in the MediaOne case sidestepped the Pegasus case judgment (which held national security argument won't give a free pass to State) by saying that it dealt with right to privacy and not free speech. pic.twitter.com/XD10SXRaIb
— Manu Sebastian (@manuvichar) February 8, 2022
What is the impact of this judgment?
The impact of the judgment is significant for the freedom of the press. While there have been temporary bans placed on news channels – NDTV, Asianet News TV and even MediaOne TV – this is one of the rare instances where a channel’s licence has been revoked altogether. No one, except the court and the Union government, knows the reason for this ban – not even the affected parties.
Apart from this, commentators have also questioned the legal reasoning, or lack thereof, of this judgment. The court did not explain why it thought the ban was justified. Gautam Bhatia, a lawyer and academic, has written that the court had to satisfy the proportionality test, to show that a complete ban was the “least restrictive measure” available to the government and that the threat was proportionate to the government’s decision to ban the channel. However, the court did not do any of that.
Manu Sebastian, the managing editor of the news website Live Law, has also criticised the judgment, pointing out that the court took the executive’s statements at face value when it had to examine it and find a balance between fundamental rights and national security. This lack of questioning by the court has the potential to be misused by the government to silence its critics, he argues.
Further, the court also says the order delivered in the Pegasus case is only applicable in cases concerning the right to privacy, without giving any reasons for this. Sebastian pointed out that press freedom was a central issue in the Pegasus case, and that the Kerala High Court had failed to distinguish between the two cases.
MediaOne TV has now challenged the judgment before a larger bench at the Kerala High Court.
