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Sealed Cover Jurisprudence

  • Category
    Polity & Governance
  • Published
    14th Mar, 2022

Context

License of MediaOne a television channel in Kerala was cancelled by the Ministry of Information and Broadcasting on the grounds of national security.  

  • Subsequently, the State High court also dismissed its appeal plea. However, the reasons for invoking national security were not disclosed. 

Background

  • MediaOne TV, a channel of Madhyamam Broadcasting Limited, is owned by Jamaat-e-Islami Hind, which makes it one of the few Indian news channels whose ownership lies with an Islamic organization.
    • MediaOne TV first received its license from the Ministry of Information and Broadcasting(I&B Ministry) in 2011, and was launched in 2013.
    • In January this year, the I&B Ministry refused to renewthe Kerala-based TV channel’s transmission license and issued an order asking the company to halt its operations.
    • The I&B Ministry claimed that this was because the Ministry of Home Affairs(MHA) had denied security clearance to the channel.
    • In its communication to MediaOne TV, the I&B Ministry cited considerations of ‘national security’ and public order in its refusal to renew the channel’s license.
  • It is not the first time that the channel has found itself in troubled waters.
  • It was earlier barred from transmission in March 2020 for 48 hours in violation of the Cable Television Networks (Regulation) Act, 1998, for its report on riots that took place in Delhi.
  • Asianet, another Malayalam news channel, had been similarly banned for its coverage of the Delhi riots. 

Analysis

How this particular incident infringes upon several Fundamental Rights? 

  • It compromises right to freedom of speech and expressionof 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 that gets compromised. 
  • The most disturbing part of the incident is that state need not even show that its security is threatened. 

Understanding the meaning of ‘national security’

  • National security is the ability of a country’s government to protect its citizens, economy, and other institutions.
  • Today, some non-military levels of national security include
    • economic security
    • political security
    • energy security
    • homeland security
    • cybersecurity
    • human security
    • environmental security
  • To ensure national security, governments rely on tactics, including political, economic, and military power, along with diplomacy.

 

I&B Ministry can regulate the content of which all sectors? and how?

  • Originally the Union I&B Ministry had the power to regulate contents of TV channels, newspapers, magazines, radio and movies in theatres and TV.
  • After the implementation of Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, the regulatory powers of I&B Ministry was extended to internet content also, especially on digital news platforms and Over The Top (OTT) platforms such as Netflix, Amazon Prime etc.
    • In January 2021, Tandav on Amazon Prime became the first show on an OTT platform to edit out scenes after direct intervention of I&B Ministry.

This was done after complaints that certain scenes hurt religious and caste sentiments were received.

  • The Union Ministry of I&B in the case of MediaOne barred its transmission after the security clearance of the media house was withdrawn by the Union Ministry of Home Affairs.
    • According to the guidelines of the new Rules mentioned above- once a channel is granted security clearance by Union Ministry of Home Affairs, it will be valid for 10 years.
    • But it adds that this can be terminated by the Union Home Ministry at any time within the period.
  • Reasonable opportunity has to be given to the media organisation before termination of security clearance by the Ministry of Home Affairs.
  • The Union I&B Ministry, under the guidelines of the New Rules, can use its emergency powers to block certain YouTube channels and social media accounts based on inputs from intelligence agencies.

 

In December 2021 and January 2022, the I&B Ministry issued orders to YouTube, Facebook. Instagram, twitter etc., to ban over 60 channels and social media accounts, based on inputs from intelligence agencies.

Apurva Chandra, I&B Secretary, had said in January, 2022 that these Pakistan-based channels were banned for their anti-India content.

  • These IT rules also allow the I&B Ministry to ban websites based on their content.
  • The Union I&B Ministry also consists of the Electronic Media Monitoring Cell which keeps tracks on channels for any violations of the programming and advertising codes mentioned in the Cable TV Network Rules, 1994.

What kind of content is not allowed?

  • There are no specific laws on content allowed or prohibited in print and electronic media, radio, films or OTT platforms.
  • The content on any of these platforms has to follow the free speech rules of the country.
  • Article 19(1) of the Constitution, while protecting the freedom of speech, also lists certain “reasonable restrictions” on this right.
  • Reasonable restrictions under Article 19 (2) of the Indian Constitution can be imposed on Freedom of Expression to protect -
    • Sovereignty and integrity of India
    • Security of the State
    • India’s friendly relations with foreign states
    • Public order
    • Decency and Morality
  • The restrictions under Article 19 (2) of the Indian Constitution can also be imposed on Freedom of Expression for –
    • Punishing contempt of court or avoiding it
    • Avoiding the instances of defamation or incitement to an offence or punishing the same.

What earlier Supreme Court judgements have said on the issue? 

  • It is paramount to ensure that the test of reasonable restrictionsis satisfied as it is the bedrock of judicial review. 
  • The Supreme Court adopted theproportionality test in the Modern Dental College vs State of Madhya Pradesh (2016) case and reiterated it in the S. Puttaswamy vs Union of India (2017) case. 
  • When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality
  • This act of executive to not disclose the reasons of using the national security clause even to the other party concerned (here the broadcaster) is opposed to the principles of natural justice.

How the current High court judgement stands in contradiction to previous SC judgements? 

  • First,there was no examination of the national security plea based on the well-established proportionality analysis.
  • Second,as per a three-judge Bench in the Pegasus case (Manohar Lal Sharma vs Union of India, 2021) the state does not get a “free pass every time the spectre of ‘national security’ is raised”. 

Way forward

With the MediaOne TV case, the phantom of national security continues to loom over the Court. It remains to be seen if and how the Court will undertake another balancing exercise between Free Speech Rights and national security.

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