MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & Ors.
Case at a glance
Provisions considered
- Constitution of India arts. 14, 19, 19(1)(a), 19(2), 21, 136, 226
- Indian Evidence Act, 1872 s. 124
- Unlawful Activities (Prevention) Act, 1967
- Citizenship (Amendment) Act, 2019
Key paragraphs
- Para 99. In view of the above, the permission granted to M/s Madhyamam Broadcasting Limited to uplink and downlink a News and Current Affairs TV Channel namely, “Media One” is revoked with immediate effect and accordingly the name of this channel is removed from the list…
- Para 1111. By a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala dismissed the writ petition. The Single Judge held that: B C D E F G H (i) (ii) (iii) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4…
- Para 1212. The Division Bench of the High Court directed that the files submitted by MHA shall be placed before it since the Single Judge dismissed the petition by ‘relying upon the files’. On perusing the files, the Division Bench held that: (i) Though the nature…
Judgment
From the Judgment and Order dated 02.03.2022 of the High Court of Kerala at Ernakulam in WA No. 218 of 2022. With Civil Appeal Nos. 8130 and 8131 of 2022. K.M. Nataraj, ASG, Dushyant A Dave, Huzefa A Ahmadi, Mukul Rohatgi, Sr. Advs., Haris Beeran, Mushtaq Salim, Usman Ghani Khan, Azhar Assees, Ameen Hassan, Ms. Sharukh Alam, Akshat Malpani, A B C D E F G H 612 SUPREME COURT REPORTS [2023] 10 S.C.R. A B C D E F G H Ms. Pallavi Pratap, Radha Shyam Jena, Shailesh Madiyal, Ms. Swarupama Chaturvedi, Apoorv Kurup, Rajat Nair, T.S. Sabarish, Anirudh Sharma - II, Amrish Kumar, Advs. for the appearing parties. The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, CJI This judgment consists of the following sections: A. Facts ................................................................................ 4* B. Submissions ................................................................... 15* C. Issues ............................................................................. 19* D. Requirement of security clearance for renewal of permission ........................................................................... 21* E. Judicial Review on procedural grounds ......................... 26* E. 1 Principles of natural justice: purpose and content .. 28* E. 2 Constitutionalizing principles of natural justice: the impact of Maneka Gandhi ....................................... 33* E. 3 Standard to test reasonableness of procedure: proportionality as reasonableness .................................. 37* F. Infringement of MBL’s right to a fair hearing ................ 40* G. Whether the infringement of MBL’s right to a fair hearing is justified ...................................................................... 46* G. 1 Natural justice and national security: decisions in Digi and Ex-armymen .................................................................. 47* G.2 Application of the proportionality standard .............. 59* G. 2 (a) Legitimate Goal Stage ................................. 60* (I) Confidentiality and IB Reports ............................ 62* (II) National Security ............................................... 63* (III) Opening the sealed cover ................................. 67* G.2 (b) Suitability ...................................................... 76* Ed.
Note : Pagination is as per the original judgment. MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI] 613 G. 3 (c) Least restrictive means ............................... 78* A (I) Totten claim: non-justiciability of the issue .......... 80* (II) Closed Material Procedure and Special Advocates ................................................................ 81* (III) Public Interest Immunity .................................. 82* H. Jurisprudence on public interest immunity claims .......... 88* H.1 India ........................................................................ 88* H. 2 United Kingdom .................................................... 96* H. 3 United States ....................................................... 100* H. 4 Canada ................................................................ 101* I. Proportionality standard to test public interest immunity claims ................................................................................ 109* J. Public interest immunity or sealed cover: the less restrictive means ................................................................................. 113* K. Substantive Challenge: the validity of the action of the MIB in denying to renew the permission ......................... 124* L. Conclusion and Directions ........................................... 129*
The Union Ministry of Information and Broadcasting1 revoked the permission which it had granted to Madhyamam Broadcasting Limited2 to uplink and downlink a news and current affairs television channel called “Media One”. The appellants, comprising of MBL, the trade union of working journalists, and the editor, Senior Web Designer and Senior Cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of the Constitution before the High Court of Kerala for challenging the action of the first respondent. By a judgment dated 8 February 2022, a Single Judge dismissed the petitions. The writ appeal was dismissed by the Division Bench of the High Court by a judgment dated 2 March 2022. The High Court relied on material which was disclosed solely to the Court in a sealed cover by the second respondent, the Union Ministry of Home Affairs3. The appellants instituted 1 “MIB” 2 “MBL” 3 “MHA” B C D E F G H 614 SUPREME COURT REPORTS [2023] 10 S.C.R. A proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court. A. Facts
On 19 May 2010, MBL applied for permission to uplink and downlink a news and current affairs television channel named ‘Media One’. On 7 February 2011, MHA granted a security clearance for the operation of the channel. By an order dated 30 September 2011, MIB gave MBL permission to uplink ‘Media One’ for a period of ten years under the ‘Policy Guidelines for Uplinking of Television Channels from India’4. The permission was granted subject inter alia, to compliance with the terms and conditions set out in the Annexure to the letter. The Annexure to the uplinking permission prescribes the following conditions: “(i) The Licensing Authority shall be empowered to impose such restrictions as may be necessary as and when required. (ii) The Licensing Authority shall have the power to revoke the licence on grounds of national security and public order. (iii) The Licensing Authority shall have the power to prohibit transmission of programmes considered to be prejudicial to friendly relations with foreign governments, public order, security of state, communal harmony etc.
(iv) Licence should provide access facilities of all equipment and records/system to the Licensing Authority or its representative; (v) License should make available detailed information about equipment and its location; (vi) Licensing Authority shall be legally competent to take over the stations on the occurrence of public emergency or in the interest of public safety/order; (VII) Monitoring stations should be set up so as to facilitate prompt intervention for deterrent action against violations of technical parameters and provision laid down in the legislation and licensing agreements. (IX) The applicant would make available to the licensing Authority the detailed technical information about the equipment to be used.” 4 “Uplinking Guidelines” (emphasis supplied) B C D E F G H MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI] 615 On the same day, MIB issued a registration certificate for downlinking of the Media One channel for a period of five years according to the provisions of the ‘Policy Guidelines for Downlinking of Television Channels’5.
The downlinking permission stipulated that in addition to complying with the terms and conditions set out in the Annexure extracted above, the channel was required to comply with the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act 1995 and the Rules framed under it.
In 2012, MBL applied for uplinking and downlinking of a ‘non- news television channel’ called ‘Media One Life’, and news television channel, ‘Media One Global’. MBL withdrew the application for ‘Media One Global’. On 26 August 2015, MIB granted permission to uplink and downlink ‘Media One Life’ for a period of ten years.
On 12 February 2016, MIB issued a notice to show cause to MBL proposing to revoke the permission for uplinking and downlinking granted to Media One and Media One Life in view of the denial of security clearance by MHA. The show cause notice is extracted below: SHOW CAUSE NOTICE Whereas Ministry of Information and Broadcasting has granted permission to M/s Madhyamam Broadcasting Limited on 30.09.2011 to uplink and downlink one News and current affairs channel, namely, “Media One” and on 26.08.2015 one Non-News & Current Affairs Channel, namely, “Media One Life” into India. Whereas, the permissions so granted by this Ministry are governed by the Uplinking and Downlinking Guidelines as amended from time to time. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels. Whereas the security related conditions annexed with the permission letter stipulates that the license/ permission can be revoked on the grounds of national security and public order.
Whereas the Ministry of Home Affairs has recently conveyed denial of the security clearance. 5 “Downlinking Guidelines” A B C D E F G H 616 SUPREME COURT REPORTS [2023] 10 S.C.R. Whereas due to withdrawal of security clearance, the company would cease to fulfil the very basic pre-requisite for grant of permission of uplinking & downlinking TV Channels. The company is also in violation of the security related conditions conveyed through the permission letters issued by the Ministry. Whereas due to the above-non-compliances, the permissions are liable to be withdrawn/cancelled. Now, therefore, M/s Madhyamam Broadcasting Limited is hereby called upon to show cause, within 15 days of receipt of this notice, why their permission should not be revoked or cancelled, in view of the denial of security clearance.” Meanwhile, seven days after the show cause notice was issued, MBL applied to renew the licence to downlink the channel Media One since the license which was initially granted for five years had expired.
By an order dated 11 July 2019, MIB renewed the downlinking permission of ‘Media One’ for a further period of five years. By an order dated 11 September 2019, MIB cancelled the uplinking and downlinking permission to Media-One Life. It is crucial to note that though the show cause notice was issued to both Media -One Life and Media One, only the permission granted to the former was revoked.
On 3 May 2021, MBL applied to renew the downlinking and uplinking permissions granted to operate Media One since they were to expire on 30 September 2021 and 29 September 2021.
On 5 January 2022, MIB issued another show cause notice to MBL invoking clause 9.2 of the Uplinking Guidelines and proposed to ‘revoke’ the permission granted to operate Media One. The show cause notice specified that (i) according to Clause 9.2 of the Uplinking Guidelines, security clearance is a pre-condition for the grant of permission and that security-related conditions are annexed to the letter granting permission ; (ii) MHA has denied security clearance in the past to the proposals of MBL and that it ‘may be considered as denied in the present case also’; (iii) since security clearance has been denied, MBL has ceased to fulfill the eligibility condition for renewal of permission of uplinking and downlinking. The relevant extract of the show cause notice is set out below: A B C D E F G H MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI] 617 “SHOW CAUSE NOTICE […]
3. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite for grant of permission for TV channels. […]
5. Whereas the security related conditions annexed with the permission letter stipulates that the license/permission can be revoked on grounds of national security and public order.
6. Whereas the Company vide letter dated 03.05.2021 applied for renewal of permission. MHA has informed that the security clearance has been denied in the past to the proposals of the company and security clearance may be considered as denied in the present case also.
Whereas due to denial of security clearance, the company ceased to fulfil the eligibility requirement for renewal of permission of uplinking & downlinking of TV Channels.
In view of the foregoing, M/s Madhyamam Broadcasting Limited is hereby called upon to show cause, within 15 days of receipt of this notice, why the permission granted to them should not be revoked or cancelled, for uplinking and Downlinking of above mentioned TV Channel with immediate effect.”
7. On 19 January 2022, MBL replied to the show cause notice, submitting that: (i) It did not receive any intimation of the denial of security clearance to its Media One Channel as stated in the show cause notice. It was not made a party to the proceedings and no material in this regard was served upon them; A B C D E F (ii) The grounds for denial of security clearance were not intimated; G (iii) MBL and Media One Channel have not indulged in any activity that would warrant the denial of security clearance; (iv) MBL was served with a similar show cause notice on 12 February 2016 with respect to Media One channel. After H 618 SUPREME COURT REPORTS [2023] 10 S.C.R. MBL submitted a reply on 11 July 2019, the licence was renewed on 11 July 2019; (v) The actions of MIB are arbitrary and violative of Article 14 of the Constitution; and (vi) The action of MIB of denying renewal of the license is violative of MBL’s right to the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
8. By an order dated 31 January 2022, MIB revoked the permission that was granted to uplink and downlink ‘Media One’ because of the denial of a security clearance. The relevant portion of the order revoking the permission is extracted below: “Whereas Ministry of Information and Broadcasting granted permission to M/s Madhyamam Broadcasting Limited on 30.09.2011 to uplink and downlink one News and current affairs TV channel, namely, “Media One” which was valid upto 299.2021.
2. Whereas, Clause 9.2 of Uplinking Guidelines stipulates that security clearance to the company and its directors is pre-requisite condition for grant of permission for TV channels.
3. Whereas, the company M/s Madhyamam Broadcasting Limited vide application dated 03.05.2021 had applied for renewal of permission to its one permitted News & Current Affairs TV channel namely, “Media One” for a period of 10 yeas (i.1 from 30.09.2021 to 29.09.2021)
4. Whereas, as per the clause 9.2 of the policy guidelines for Uplinking of Television channels from India- 2011 and para 8.3 of the Downlinking guidelines, 2011, Ministry of Home Affairs was requested to give security clearance of the company (M/s Madhyamam Broadcasting Limited) for renewal of permission of News & Current Affairs TV Channel namely, “Media One” for a period of 10 years.
5. Whereas, the Ministry of Home Affairs has denied the security clearance to M/s Madhyamam Broadcasting Limited for renewal of permission for uplinking and downlinking of News & Current Affairs TV channel “Media One”. A B C D E F G H MADHYAMAM BROADCASTING LIMITED v. UNION OF INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI] 619
6. Accordingly, a Show Cause Notice (SCN) dated 05.01.2022 was given to the company as to why the permission granted to them should not be revoked or cancelled, for Uplinking and Downlinking of above mentioned TV Channel. Copy of the SCN is attached at Annexure-I.
7. The Company has replied to the SCN vide their letter dated 19.01.2022. In the reply, the company has inter-alia mentioned that they are unaware of the grounds for denial of security clearance and requested not to iniate any further proceedings in the matter. The reply given by the company is attached at Annexure-II.
8. The reply of the company has been examined. The security clearance is based on security parameters of the Ministry of Home Affairs. Since the Ministry of Home Affairs has denied the security clearance. The channel cannot be allowed to operate.
In view of the above, the permission granted to M/s Madhyamam Broadcasting Limited to uplink and downlink a News and Current Affairs TV Channel namely, “Media One” is revoked with immediate effect and accordingly the name of this channel is removed from the list of permitted channels.” (emphasis supplied)
9. MBL initiated proceedings under Article 226 of the Constitution before the High Court of Kerala to challenge MIB’s order ‘revoking’ the uplinking and downlinking permission granted to Media One. The appellants sought in the petitions: (i) setting aside of the order dated 31 January 2022 revoking the permission granted to Media-One; (ii) a direction to MIB and MHA to provide MBL an opportunity to be heard before revoking the permission; and (iii) a declaration that there are no circumstances warranting a denial of security clearance or the revocation of the license since MBL has not violated any law or indulged in anti- national activity.
The Assistant Solicitor General6 of India filed a statement before the High Court submitting that security clearance was denied on the basis of intelligence inputs, which are “sensitive and secret in nature”. 6 “ASG” A B C D E F G H 620 SUPREME COURT REPORTS [2023] 10 S.C.R. A It was further submitted that MHA cannot disclose reasons for the denial “as a matter of policy and in the interest of national security”.
By a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala dismissed the writ petition. The Single Judge held that: B C D E F G H (i) (ii) (iii) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that when the application for renewal of permission is considered, the eligibility criteria stipulating the net worth of the company and experience of the top management will not apply. However, other terms and conditions that are applicable to permission for uplinking are applicable to renewal. Thus, a security clearance is a factor which must be considered at the time of renewal of the existing permission as well; The principles of natural justice are not applicable in matters concerning national security (relied on Ex-Armymen’s protection Services Private Limited v. Union of India7 and Digi Cable Network (India) Private v. Union of India8); and The files submitted by MHA indicate that the Committee of Officers9 took note of the inputs provided by intelligence agencies and “found that the inputs are of a serious nature and fall under the security rating parameters. In those circumstances, the Committee of Officers advised not to renew the licence”. The recommendations of the Committee of Officers were accepted by MHA and are fortified by supporting material.
The Division Bench of the High Court directed that the files submitted by MHA shall be placed before it since the Single Judge dismissed the petition by ‘relying upon the files’. On perusing the files, the Division Bench held that: (i) Though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the state and public order would be impacted if the
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.