Supreme Court restores TV channel’s licence, says govt’s denial of clearance has ‘chilling effect on freedom’

MHA had denied security clearance to Malayalam channel 'MediaOne' over its alleged links with an Islamic organisation that govt alleged — citing IB reports — had terrorist links.

BHADRA SINHA, The Print, 5 April, 2023, New Delhi: It is the duty of the press to speak the truth, and critical views expressed by the media cannot be termed anti-establishment, the Supreme Court declared Wednesday as it set aside a central government order refusing to grant a renewal broadcast licence to Malayalam news channel MediaOne.

The Union Ministry of Home Affairs (MHA) had denied security clearance to the channel over its alleged links with the Jamaat-e-Islami Hind, an Islamic organisation that the government alleged — citing Intelligence Bureau (IB) reports — had terrorist links. The inference was rejected by the SC, which said there was nothing to show terrorist links.

With its order, a bench of Chief Justice of India (CJI) D.Y. Chandrachud and Justice Hima Kohli overruled a Kerala High Court judgment that upheld the government order, and directed the authority concerned to grant all necessary approvals within four weeks

The court held that the denial of clearance for the channel’s licence renewal “has a chilling effect on the freedom of individuals and organisations”. The refusal to let the channel operate was not justified under the restrictions given out in Article 19 (2) of the Constitution.

In its verdict, the bench noted that the IB reports, on the basis of which the MHA refused to grant clearance, had relied on programmes and remarks made on the channel against the National Register of Citizens (NRC), the Citizenship Amendment Act (CAA), the Unlawful Activities (Prevention) Act (UAPA), and the judiciary’s verdicts. 

The programmes showcasing lenient treatment towards alleged Hindu extremists involved in crimes were also described as anti-national.

The court stressed on the role of a free and independent press and its importance in the robust functioning of a democratic republic. Media cannot be classified as anti-establishment only because it expresses critical views, the court held, adding that “doing so would imply that the media should support the establishment instead”.

The role of “an independent press… in a democratic society is crucial for it shines a light on the functioning of the state”, it said. 

“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,” it added. “A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy.”

The MediaOne channel was taken off air on 31 January 2022, following which it approached the Kerala HC. However, on 8 February, a single-judge bench of Justice Nagaresh upheld the Information & Broadcasting Ministry’s decision to revoke the channel’s licence.

An appeal by channel operator Madhyamam Broadcasting, MediaOne Editor Pramod Raman and by the Kerala Union of Working Journalists was also dismissed by a division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly, prompting the channel to approach the top court in March last year.

On 13 March, the SC had given interim relief to the channel while allowing it to continue its operations.

In the SC, the Centre relied upon the IB inputs to defend the ban. During the arguments, it declined to provide the IB report to the other side, but gave it to the court in a sealed cover. The Centre maintained that disclosing the report’s contents would not be in national interest. 

It refused to make public the concerns raised by the MHA, contending that a party cannot insist on observing natural justice principles in a situation involving national security.

However, dismissing the Centre’s stand, the court criticised it for filing the MHA report in a sealed cover before the HC and the “cavalier manner” in which it “raised the claim of national security” to deny information to the company.

‘Channel’s rights affected’

The national security concern cited as a reason for disclosing reasons for the ban only to the court, and not to MediaOne, affected the channel’s rights, the court ruled.

“The sealed-cover procedure adopted has rendered the rights of the petitioner as a dry parchment and the procedural guarantees to the petitioners have been rendered otiose. Sealed cover has curbed the right to fair and reasonable proceedings leaving appellants in the dark to fight out the case.”

The court added, “While we have held that it would be impracticable and unwise for the courts to define the phrase national security, we also hold that national security claims cannot be made out of thin air. There must be material backing such inference. The material on the file and the inference drawn from such material has no nexus.”

On a perusal of the material, the court opined, “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”.

The court further faulted the government for not granting security clearance to the channel due to its alleged links with the Jamaat-e-Islami Hind (JEIH), which, the court noted, is not a banned organisation.

In the absence of any ban on JEIH, the court said, it will be “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”. 

It added there was no evidence on record to show the channel shareholders are sympathisers to JEIH, and hence “the purpose of denying security clearance, does not have a legitimate goal and a proper purpose”.

The court held, “Though confidentiality and national security are legitimate aims for the purpose of limiting natural guarantees, the state had been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from the disclosure of all investigative reports cannot be granted.”

On IB reports claiming the JEIH had terrorist links, the court remarked: “Some of the reports cited by IB are that minorities-favouring 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.”

Moreover, the court turned down the Centre’s argument that MediaOne was linked to JEIH. “Allegation that MediaOne is linked to JEIH is fallacious and JEIH is not a banned organisaiton,” the court said.

(Edited by Sunanda Ranjan)