Context

A Division Bench of the Kerala High Court has dismissed the appeal filed by a television channel. The trouble emanating from the judgment is that the state need not even show that its security is threatened. It can conveniently choose the ‘sealed cover’ route.

Background of the case

• 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 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.

Issues with the judgement

1] Violation of the fundamental rights

• A whole set of rights are directly hit by the ban. The first is 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).
• 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.

2] Takes away the power of judicial review

• India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
• Basic feature of the Constitution: 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.
• Test of reasonable restriction: 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.
• The ‘sealed cover’ practice inverses this position.

3] Lack of examination of national security ground

• There was no examination of the national security plea based on the proportionality analysis, well established in our recent jurisprudence.
• Also, 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”.

Proportionality analysis

• In Modern Dental College vs State of Madhya Pradesh (2016), the top court adopted the proportionality test “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).

Conclusion

The MediaOne case might create a real problem area that needs resolution by the Supreme Court.

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