Freedom of Speech and Expression has always been under the control of the State in the name of national security, communal harmony, confidentiality and reputation of individuals both civilians and public leaders as well.
However, in a remarkable judgement that underlined the importance of free speech and freedom of press when pitted against the State’s assertions of national security and confidentiality of materials to justify restrictions, the Supreme Court ruled in favour of principles of natural and open justice, and an independent press, which, it said, is vital for the robust functioning of a democratic republic.
Criticism of government action cannot be called “anti-establishment” and a homogenised view on issues ranging from socio-economic polity to political ideologies poses “grave dangers to democracy”, the Supreme Court emphasised on April 5 this year, as it quashed the Union Government of India’s telecast ban on Malayalam news channel Media One, and held that national security claims can’t be “made out of thin air” to deny citizens remedies provided under the law.
Observing that the State can’t impose unreasonable restrictions on press as it will have a chilling effect on press freedom, a bench headed by Chief Justice Dhananjaya Y Chandrachud set aside the Kerala High Court order which had upheld the Centre’s decision to ban the telecast of the media channel on security grounds.
The Supreme Court, in its judgement on April 5, said an independent press “shines a light on the functioning of the State”.
“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,” said the bench, headed by Chief Justice of India Dhananjaya Y Chandrachud.
In a judgement containing 134 pages, the Supreme Court said the Union of India has raised the claim of national security in a “cavalier manner” and the report of the Intelligence Bureau (IB) is purely an inference drawn from information that is already in the public domain.
“There is nothing ‘secretive’ about this information to attract the ground of confidentiality. Additionally, it cannot be argued that the purpose of national security will be served by non-disclosure merely by alleging that Madhyamam Broadcasting Limited (MBL) channel is involved with Jamaat-e-Islami Hind which is an organisation with alleged terrorist links.”
“We also hold that national security claims cannot be made out of thin air. There must be material backing such an inference,” the bench said.
According to reports, senior advocate Dushyant Dave, appearing for MBL, had challenged the government’s decision, arguing that the Centre, by submitting material in a “sealed cover,” and the Kerala High Court, by relying on it in the course of its judgement, negated the principles of natural justice. “This procedure is violative of the principle of an open court and of fairness to parties,” he added.
Noting that the Centre denied security clearance to Media One in December 2021 citing the alleged anti-establishment stand of the channel as a prime ground, the bench said that critical views of the channel on government policies cannot be termed ‘anti-establishment’.
“The use of such a terminology in itself represents an expectation that the press must support the establishment. The action of the ministry 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. Criticism of governmental policy can by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2),” added the SC bench, which also comprises of Justice Hima Kohli.
It may be mentioned that the television channel went off the air in January 2022 after the government refused to renew its licence, citing security concerns. In February 2022, the Kerala High Court upheld the government order after the Government of India submitted a sealed envelope detailing its stand to the division bench. But in March 2022, while admitting the appeal by MBL, the channel’s owner, the Supreme Court temporarily lifted the ban.
Now, the Supreme Court of India, in its order on April 5, directed the Union Government of India to grant security clearance and other necessary approvals to Media One within four weeks, and pulled up the Centre for denying the security clearance without there being any substantial ground to justify the ban and claiming absolute immunity against disclosure of the reports given by IB regarding the channel.
“Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government…The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law,” the apex court of the country said.
Snubbing the Government of India’s argument on secrecy of IB reports, the SC bench highlighted that reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system.
It also took a grim view of the 2022 Kerala High Court order that affirmed the ban based on confidential reports shown only to the judges. The Supreme Court bench lamented that this form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgement beyond the reach of challenge.
“The non-disclosure of reasons for the denial of security clearance which is the sole ground for denying the permission to renew the licence and the disclosure of relevant material only to the court in a sealed cover has rendered the appellant’s procedural guarantees under the Constitution otiose. The procedure that was followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark,” the SC order said.
The Supreme Court further held that a public interest immunity claim is a less restrictive means than the sealed cover procedure since the documents are completely removed from the proceedings and both the parties and the adjudicator cannot rely on such materials in a public interest immunity claim.
It laid down a broad procedure for the courts to deal with cases where the State presses for confidentiality of documents. The Supreme Court bench said that a court should apply the proportionality test to adjudge public interest immunity claim and appoint an amicus curiae, who would be given access to the secret material for assisting the court in balancing the concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.
At the same time, the bench said that the courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim.
Rejecting the Centre’s argument that disclosure of the materials would be against national security, the bench said that the claim was made in a “cavalier manner”, wherein, other than merely claiming that national security is involved, 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 that judicial review would not be excluded on a mere mention of the phrase national security. The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law,” the order added.
The apex court said that even though it was impractical and unwise for the courts to define national security, national security claims could not be “made out of thin air” and must be backed by material.
It also examined the other ground to deny a security clearance to Media One – its alleged links with Jamaat-e-Islami – Hind (JEI-H) and funding of the channel by JEI sympathisers. When JEI-H is not a banned organisation, the Supreme Court said, it was rather precarious for the State to contend that the 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 to justify a ban.
“The allegation that MBL is linked to JEI-H is fallacious, firstly, because JEI-H is not a banned organisation and there is no material to conclude that the investment by JEI-H sympathisers would affect India’s security, and secondly, even if it is accepted that the investment by JEI-H sympathisers would affect the security of the State, there is no material to prove that the shareholders are sympathisers of JEI-H. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose,” the bench held.
“We are of the opinion that the respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the court in a sealed cover have violated the appellant’s right to a fair hearing protected under Article 21 of the Constitution.
“The respondents were unable to prove that the restrictions on the appellants’ right to a fair hearing were reasonable. Therefore, the order of the Ministry of Information and Broadcasting dated 31 January 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees,” the bench said.
Coming to the context of Manipur, it may be mentioned that there were more well known cases of arrests under National Security Act (NSA) being made for Facebook posts critical of the government.
In 2018, on November 20 Kishorechandra Wangkhem, an Imphal-based journalist was arrested on sedition charges for posting a video on Facebook that was critical of Prime Minister Narendra Modi, the Rashtriya Swayamsevak Sangh (RSS) and Manipur Chief Minister Nongthombam Biren. The videos described Singh as a “puppet” of Modi for celebrating Rani Laxmibai’s birth anniversary. He was released six days later, only to be sent to prison under NSA a day later.
On November 27, Kishorechandra was booked under the National Security Act. On March 4, 2019 a division bench of Manipur High Court comprising of Justice Lanusungkum Jamir and Justice Khwairakpam Nobin Singh had concluded its hearing in the case this year and reserved its verdict. In 2019 on April 8, the Manipur High Court ordered his release.
However, in 2021 Kishorechandra Wangkhem was arrested again along with Erendro Leichombam, a political activist and a vocal critic of the BJP government from their houses on May 13 based on an FIR lodged by Manipur state BJP vice-president Usham Deben and general secretary P Premananda Meetei.
Prior to this, in May 2018, Leichombam was arrested for posting a video on Facebook. The video showed Bihari youth speaking against Manipuris and threatening to attack them. He was booked for “promoting enmity between different groups” and “criminal intimidation.” A local court ordered his release in the first week of June 2018.
Later, the Supreme Court of India on July 19, 2021 and the High Court of Manipur on July 23, 2021 released Manipur’s political activist Erendro Leichombam and journalist Kishorechandra Wangkhem who were detained under National Security Act (ACT) since May 17 over a Facebook post that stated “cow dung and cow urine won’t cure Covid” following the death of Manipur BJP president.
Furthermore, the recent landmark judgement of the Supreme Court of India is very relevant to the context of Manipur and it may help empower those who speak truth to the power.
Senior Editor: Imphal Review of Arts and Politics