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Monday, May 29, 2023

Can’t make national security claims ‘out of thin air’: SC cancels Centre’s ban on Jamaat-e-Islami linked MediaOne channel which supports Taliban’s narrative on Kashmir

The Supreme Court on Wednesday said critical views of the channel MediaOne on policies of the government cannot be termed “anti-establishment”, as the press has a duty to speak truth to power, and also national security claims cannot be made out of thin air to ban telecast of the channel.

It stressed that a homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy.

A bench, headed by Chief Justice of India D.Y. Chandrachud and comprising Justice Hima Kohli, said: “It would be impractical 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 an inference. The material on the file and the inference drawn from such material have no nexus. The non-disclosure of this information would not be in the interest of any facet of public interest, much less national security.”

The Chief Justice, who authored the 134-page judgment on behalf of the bench, said it is imperative for the state to prove through the submission of cogent material that non-disclosure is in the interest of national security and it is the court’s duty to assess if there is sufficient material for forming such an opinion.

“A claim cannot be made out of thin air without material backing for such a conclusion. The court must determine if the state makes the claim in a bona fide manner,” he said in the judgment.

“Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, 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 bench noted that significantly, with respect to the list of shareholders who are alleged sympathizers of JEI-H (Jamaat-e-Islami), the file does not contain any evidence on the alleged link between the shareholders and JEI-H and the report of 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 MBL (Madhyamam Broadcasting Ltd) is involved with JEI-H which is an organisation with alleged terrorist links,” it noted.

The top court said an independent press is vital for the robust functioning of a democratic republic and its role in a democratic society is crucial for it 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 socioeconomic polity to political ideologies would pose grave dangers to democracy,” said Chief Justice Chandrachud.

He further added that the critical views of the channel, MediaOne on policies of the government cannot be termed “anti-establishment” and the use of such a terminology in itself, represents an expectation that the press must support the establishment.

“The action of the MIB (Ministry of Information and Broadcasting) 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),” said the Chief Justice.

The bench said the note, which was submitted by the IB on the alleged role and activities of JEI-H states that the organisation was banned thrice and all the three bans were revoked.

“Thus, when JEI-H is not a banned organisation, it would be 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. Additionally, the only piece of evidence in the file to link MBL to JEI-H is the alleged investment in the shares of MBL by cadres of JEI-H. In support of this, IB has submitted a list of shareholders. However, there is no evidence on record to link them to JEI-H. Thus, the allegation that MBL is linked to JEI-H is fallacious…”, said the bench.

It stressed that the purpose of denying security clearance does not have a legitimate goal or a proper purpose. Allowing MediaOne’s appeal, the bench said: “MIB shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall co-operate in issuing necessary approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted.”

The top court judgment came on a plea by the news channel challenging the Kerala High Court’s order upholding the Centre’s decision to ban its telecast on security grounds.

On March 15 last year, the Supreme Court stayed the Centre’s ban on the Malayalam TV news channel. The Central government had cited national security grounds to justify the ban. MediaOne had moved the top court after the Kerala High Court upheld the ban imposed on it by the Union Ministry of Information and Broadcasting.

(The story has been published via a syndicated feed with a modified headline.)

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