The Kerala High Court has added one more view to the already much discussed and debated issue in recent times, Natural Justice vs National Security.
Upholding the order of the Union Ministry of Information and Broadcasting revoking the broadcast license granted to Malayalam News Channel 'MediaOne', the single-judge bench of Justice N. Nagaresh sided with the opinion that the Principles of Natural Justice have to give way when National Security is at threat.
It was the case of the Media House, that Ministry of Information and Broadcasting issued show-casue notice to it stating that in consideration of national security and public order, the Government intends to revoke the licence/permission granted to the petitioner-Company. In the reply so filed the Channel mentioned that it is not informed of the reasons why security clearance is denied and there shall not be any order revoking the licence without affording an opportunity of hearing. The petitioner further submitted that the Channel is not involved in any sort of anti-national activity and therefore considering the fact that there is huge investment in the business, and thus the notice may be withdrawn. However, the Ministry as per a cryptic order revoked the permission of the petitioner-Media House with immediate effect and ordered to remove the petitioner from the list of permitted Channels.
The Kerala Union of Working Journalists and others (petitioners in W.P.(C) No.3663/2022 ) submittd that they are professionals working in the Media House and there are about 320 employees who are working in the Channel in various capacities. If the licence granted to the Company is not renewed, the employees will be put to untold hardship.
The ASGI has opposed the filing of the writ by two of the employees of the media company and the Kerala Union of Working Journalists and submitted that the same are not maintainable. He asserted that uplinking and downlinking of Private Satellite TV Channels in India are governed by the policy guidelines issued by the Ministry of Information and Broadcasting.
He also relied on Ex. Armymen's Protection Services P. Ltd. Vs. Union of India and others, 2014 Latest Caselaw 134 SC where it was held that in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice.
Learned Counsel for the MediaOne argued that The right of the petitioner under Article 19(1)(a) of the Constitution is infringed, contended the learned Senior Counsel. The learned Senior Counsel submitted that the importance of Press is well established under Indian law. He referred to SC Rulings in Anuradha Bhasin vs. UNION OF INDIA, 2020 Latest Caselaw 24 SC wherein it was held that held that the freedom of the Press is a requirement in any democratic society for its effective functioning.
"In Channing Arnold v. The Emperor [(1914) 16 Bom LR 544], the Privy Council has held that the freedom of the Journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher.", he subimitted.
The Counsel refuted the citing of Ex. Armymen's Protection Services P. Ltd. Vs. Union of India and others, 2014 Latest Caselaw 134 SC and Digi Cable Network India Pvt. Ltd. Vs. Union of India, 2019 Latest Caselaw 12 SC by the other party and clarified that in Ex. Armymen's the security clearance was issued to the company for 5 years and later, the company received an information that the security clearance is withdrawn in the national interest. It is in that context the Apex Court held that in a situation of national security, a party cannot insist for strict observance of the principles of natural justice while in Digi Cable the permission earlier granted for the company was actually cancelled before the completion of its tenure.
Maintaining that the context in the present case is totally different, the Counsel stated that the issue should be decided as per Manohar Lal Sharma Vs. Union of India, 2021 Latest Caselaw 523 SC wherein the Apex Court observed that it is a settled position of law that in the matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the specter of 'national security' is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Though the court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.
He further submitted that Union of India may decline to provide information when constitutional considerations exist such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The respondent-Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a court. The mere invocation of national security by the State does not render the Court a mute spectator. In the case of the petitioners, apart from alleging national security concerns, the respondents have not brought forth any material to establish the circumstances warranting cancellation of the licence.
The Counsel for the writ petitioner in W.P.(C) Nos.3663/2022 and 3670/2022 urged that rejecting the permission granted for uplinking and downlinking of Media One Channel without affording an opportunity of hearing to the Company and to any of its employees, is highly arbitrary and violative of the principles of natural justice.
Learned ASGI further relied on In Re Harijai Singh and observed that freedom of Press is not absolute, unlimited and unfettered at all times and that in all circumstances giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints, it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. The element of responsibility must be present in the conscience of the journalists. In an organised society, the rights of the Press have to be 7 recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded.
High Court Observation
The Court at the outset observed that the broadcasting in India is considered as an integral part of the freedom of speech and expression. The broadcasting is regulated by the Ministry of Information and Broadcasting. The Uplinking and Downlinking of Private Satellite TV Channels are governed by the Policy Guidelines issued by the Ministry of Information and Broadcasting.
The Court noted that it is clear from the provision that on the basis of information furnished in the application form, if the applicant is found eligible, its application will be sent for security clearance to MHA and for clearance of satellite use to the Department of Space. Clause 10.4 would make it clear that at the time of considering the renewal of permission of the existing permission holders, the eligibility criteria of net worth of the company and experience of the top management will not apply. However, other terms and conditions would be applicable as per modified terms and conditions of the permission. The provision that the other terms and conditions would be applicable would only indicate that the security clearance is a factor to be considered at the time of renewal of existing permission also.
The Court noted that freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. The Hon'ble Apex Court held that public order, decency, morality and such other things must be safeguarded.
The Court mentioned Sir William Wade who in Administrative Law 10th Edition observed that any restriction, limitation or exception on principles of natural justice is 'only an arbitrary boundary'. The right to a fair hearing may have to yield to overriding considerations of national security. The House of Lords recognised this necessity where civil servants at the government communications headquarters, who had to handle secret information vital to national security, were abruptly put under new conditions of service which prohibited membership of national trade unions. Neither they nor their unions were consulted, in disregard of an established practice, and their complaint to the courts would have been upheld on ground of natural justice, had there not been a threat to national security. The factor which ultimately prevailed was the danger that the process of consultation itself would have precipitated further strikes, walkouts, overtime bans and disruption generally of a kind which had plagued the communications headquarters shortly beforehand and which were a threat of national security. Since national security must be paramount, natural justice must then give way.
The Court approved ASGI's reliance on Ex. Armymen's Protection Services P. Ltd. Vs. Union of India and others, 2014 Latest Caselaw 134 SC and Digi Cable Network India Pvt. Ltd. Vs. Union of India, 2019 Latest Caselaw 12 SC and conclusively observed that it is clear that the principles of natural justice and interference by courts in the matter of national security, have very limited role.
Referring to 'Atrisamhita', an ancient Indian Text dating back to Rigveda period, the Court opined that the national security is considered as one of the most important sovereign function of any State/Government for long.
"To punish the criminals, to protect the good, to enrich the treasury by just methods, to be impartial to all and to protect the Nation – these are five fundamental duties to be performed by the State. The concept of good governance would take in within its ambit, a secured State. Ensuring national security involves avoiding any possibility that may threaten national security. The national security is an executive responsibility, where Legislature and Judiciary have only complementary roles."
The Court in the end ruled that Rule 6 of the Cable Television Networks Rules providing for the Program Code parameters are relevant. Rule 6 provides that no programme should be carried in the cable service, which contains criticism of friendly countries, contents likely to encourage or incite violence or 16 anything against maintenance of law and order or which promote anti-national attitudes, contains aspersions against the integrity of the President and Judiciary, etc.
It held that depending on the facts of any particular case, it will be pen to the court to satisfy itself whether there were justifiable facts and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.
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