88 Harv. L. Rev. 1057 (1975)
Madhyamam Broadcasting Limited v. Union of India, 02.03.22
Perspective
Free speech is the oxygen for democracy. A constitutional democracy is ‘preserved, protected and promoted’ by the power of judicial review. Judicial review shapes and makes the present as well as the future of democracy. Security of the state is equally essential for democratic survival of the State. Liberty and security are two wheels of the chariot called democratic republic. The Supreme Court is the sarthi (pilot) of that chariot who has to navigate it in the direction mapped in the Preamble of the constitution of India.
The sarthi has to move the chariot in the highway to protect fundamental rights of citizens. It has to be fast and swift against the arbitrary decisions of the State. But every highway has some signboard, like go slow -school ahead, sharp turn etc. While exercising its power of judicial review the Supreme court is required to take note of these signboards. In the constitutional vocabulary these sign boards come in various forms where the judiciary has to follow the policy of “go slow”. One such sign board is “national security”. As national security is not a licence for the State to take any decision, judicial review is not a licence to determine every aspect of executive discretion. It is desirable to make a quick glance over what is judicial review?
IA. Judicial review
The power of judicial review has remained a contentious issue in the area of constitutional
and administrative law. The constitutional pundits have insisted that “decision” and
“decision making process” are two distinct matters and identified this as a “distinction
with difference”. Should the judiciary examine the “decision making process” of the State
or should it also evaluate the “decision” made by the State after the decision making
process. Former is the classical role of “judicial review” and later is called “merit review”.
In the case of Centre For PIL v. Union of India (2011) 4 SCC 1 (also called as PJ Thomas judgement or Institutional integrity judgement) the full bench reiterated the principle as under:
Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding
this case, we must keep in mind the difference between legality and merits, also between judicial review and merit review. [emphasis added]
The Supreme Court highlighted two points in PJ Thomas which can be explained as (i) policy decisions are government domain. (ii) Legality and desirability are two different matters. Legality can be decided in court but desirability will be decided by the executive or the Parliament. When a court decides on legality, it is judicial review. When it has to decide on desirability, it is merit review. Merit review is permissible in cases of violation of pure fundamental rights, public laws. Is the role of judicial review restricted in case of contractual transactions? Is it further restricted if the contractual matter is related to national security, defence and foreign policy? The Rafale judgement and many others have answers both the questions in “yes.” It is a restatement and reiteration of the classical role of judicial review established all over the world.
The case Madhyamam Broadcasting Limited v. Union of India, (decided on March 2, 2022) needs to be appreciated in the above background.
Facts
Madhyamam Broadcasting Limited runs a news and current affairs TV channel by the name of Media One. “The channel is reportedly backed by the Kerala unit of Jamaat-e-Islami, a socio-religious political organisation that was declared “unlawful” by the Centre for five years in 2019.” The Union government has issued a show cause notice on Jan 5, 2022 that in “consideration of national security and public order, the Government intends to revoke the licence / permission granted to the petitioner Company”. Mediaone responded that (a) no reasons are given as to how national security and public order concerns have been raised by their channel. (b) Mediaone ought to be given hearing before any adverse decision. The channel challenged the decision of the government in the High court which upheld the order of the Government of India to ban the channel. The reasoning of the high court was (a) that in the matters of national security the rule of natural justice is not always mandatory. (b) the executive is the sole judge in national security cases because ultimately the executive will be responsible for it. The matter came to the Supreme court.
Issues
The Supreme court considered two issues--
Whether the confidential files of the government which were shared in sealed files with the high court (and the Supreme court)contain something substantial that deals with national security. In terms of article 19(2) does it “imposes reasonable restrictions on the exercise of the right conferred by article 19(1)(a) in the interests of the sovereignty and integrity of India”? Is sufficiency of such material judicially reviewable?
“Whether the contents of the files should be disclosed to the petitioners in order to enable them to effectively pursue their challenge?” Or does the rule of fair hearing is applicable in this case where national security concern has been raised.
IV. Decision of Court
a. Issue 1
The Supreme court held against the State. An interim stay was granted against the Government order to ban the channel. The rationale of the Supreme Court was that the content of sealed files do not throw light on what are national security concerns and therefore, the restrictions do not seem “reasonable”. There were two grounds for this inference (i) the observation of the High court that “the nature, impact, gravity and depth of the issue is not discernible from the files” and “too many details are not available in the files”. Still the High court relied on national security, public order arguments of the State. (ii) The Supreme Court also perused the files (in sealed cover) and after “due regard to the contents of the files” reached to the conclusion that a case for interim relief was made out.
In other words the content of the sealed cover did not repose much confidence in the division bench of the Supreme Court. While the High court chose “security” over “liberty” the Supreme court did reverse. Is a “searching inquiry into the persuasiveness of the government's justifications consistent with the established jurisprudence? If the executive gave a “facially legitimate and bonafide” reason for its action, the Court “will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of citizens. This is because of the norm of “deferential treatment” or “respect for the political branches” accorded to the Executive especially in the realm of national security. (Trump v. Hawaii, USSC-2018).
b. Issue 2
The second issue of whether the content of files should or should not be shared with the channel? The written law on sealed cover is in the Supreme Court Rules 2013, Order XIII clause 7 which is cover as under:
"Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court." [LLM students of ILI(2023-24), Anjali, Ginni and Govinda brought this provision to my notice]
The question remained open for final disposal where the trend of sealed cover jurisprudence. The Supreme Court decided it on April 5, 2023 in Madhyamam Broadcasting Limited v. Union of India. The Court decided in favour of Madhyam. It directed the Government of India to issue renewal licence. This was a “hard case” [Pl see "Hard Cases" by Ronald Dwarkin, 1975] for the Supreme Court of India. What is also important is that this was a case under article 136 and not under art 32. In the debate between security and liberty, liberty won.
V. Comments
The scope of judicial review in the case of national security is extremely limited because national security is basically a policy question. Various jurisdictions all over the world have addressed it with one common thread, ie restricted power of judicial review, deference to executive. Here we may discuss two countries from common law jurisdictions, ie UK and USA.
UK : Judicial Review and National Security
If we take clues from the UK, in the case of Chandler v Director of Public Prosecutions [1964] AC 763 it was held that “the question of whether something is "in the interests" of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”
The appellants were activists for nuclear disarmament. They entered into a prohibited area (R.A.F. station at Wethersfield) with the intention to express their protest against nuclear arm policy. They were prosecuted for a purpose prejudicial to the safety or interests of the state under section 1 of the Official Secrets Act 1911. They were convicted.
They argued that nuclear bomb can harm the country itself and the state would be much safer without them. The House of Lords held that the desirability of a nuclear bomb and safety of State is a purely executive matter and a court cannot question it.
The court also osd that “What is meant by "national security" is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what "national security" means. It is the security of the United Kingdom and its people.”
Another famous case is the Council of Civil Service Union v. Minister for the Civil Service, 1985 AC 374, the House of Lords (also called as GCHQ case) The high court of Kerala Madhyamam Broadcasting Limited has referred to this persuasive precedent.
Government Communications Headquarters (GCHQ) is a British intelligence agency. The British Government (Margret Thatcher) issued a royal prerogative and banned the employees of the GCHQ to join any trade union on the grounds of national security. The GCHQ raised an objection that the ban denied the legitimate expectation of the right to collective bargain for fair wages through trade unions. The British government argued that royal prerogatives are beyond judicial review and national security reasons are exceptions legitimises such a bar on unionism. The House of lords held that royal prerogatives can be reviewed by the judiciary. It was the first time the Court held like this. The nature of power and not the source (royal) is decisive. However there are certain exceptions and national security is one of them. Lord Diplock observed that “the judicial process is totally inept to deal with the sort of problems [national security] which it involves.” However, that does not mean national security by default is beyond judicial review.
In Council of Civil Service Union it was observed as under:
The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. But, if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security.
The principles of administrative law and The Council of Civil Service Union makes following points for guidance --
Fairness in decision making by the government is essential but there can be certain things that “outweigh the duty of fairness in any particular case”. Rules of fairness and natural justice are not absolute and can be compromised.
There can be certain exceptions to the requirement of established rules of fairness. In those exceptional cases notice and hearing etc can be avoided.
Who will decide the exceptions
The Parliament will decide by law
The Court can decide by adjudicatory process
The executive will decide In certain cases like national security, and not the court because of two reasons
The necessary information as to national security is with the executive only
The necessary training as to national security is with the executives only. The judiciary is not trained and equipped to decide on national security matters. This is something like an army officer who is not trained in law has to decide complex constitutional questions.
In case the issue of unfairness in the process (not decision) is established by the petitioner (which is very difficult and therefore only manifest arbitrariness can be established) then the government has to produce evidence as to the ground of national security.
In other words, in case of national security the scope of judicial review is restricted. The petitioner must establish that the procedure was unfair, i.e. manifestly unfair. Government needs only to plead national security and no evidence of national security is required. If the petitioner establishes the procedural unfairness, then only evidence of national security is required.
In Secy of State for Home Deptt. v. Rehman, [2001] UKHL 47 the Court held that the confidential information on national security cannot be examined or shared.
Rehman was a Pakistani national whose parents, wife and children were British citizens. He wanted to stay in England for an indefinite period. The government officials declined “on the basis of the information he has received from confidential sources, that you are involved with an Islamic terrorist organisation Markaz Dawa Al Irshad (MDI). He is satisfied that in the light of your association with the MDI it is undesirable to permit you to remain and that your continued presence in this country represents a danger to national security.” The court favoured the State.
The UK government also mentioned as under :
[though] Rehman and his United Kingdom-based followers are unlikely to carry out any acts of violence in this country, his activities directly support terrorism in the Indian subcontinent and are likely to continue unless he is deported. Ur Rehman has also been partly responsible for an increase in the number of Muslims in the United Kingdom who have undergone some form of militant training, including indoctrination into extremist beliefs and at least some basic weapons training. The Security Service is concerned that the presence of returned jihad trainees in the United Kingdom may encourage the radicalisation of the British Muslim community. His activities in the United Kingdom are intended to further the cause of a terrorist organisation abroad. For this reason, the Secretary of State considers both that Ur Rehman poses a threat to national security and that he should be deported from the United Kingdom on [the] grounds that his presence here is not conducive to the public good for reasons of national security.
In other words even if there is no threat through the acts of violence, Rahman is still a threat because hHis activities directly support terrorism in the Indian subcontinent, (and not in the UK)
The Court observed:
I accept that there must be a real possibility of an adverse affect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate. Whether there is such a real possibility is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to that individual if a deportation order is made.
There is a very large element of policy in this which is, as I have said, primarily for the Secretary of State. This is an area where it seems to me particularly that the Secretary of State can claim that a preventative or precautionary action is justified. If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the United Kingdom.
18. National security and defence of the realm may cover the same ground though I tend to think that the latter is capable of a wider meaning. But if they are the same then I would accept that defence of the realm may justify action to prevent indirect and subsequent threats to the safety of the realm.
19. The United Kingdom is not obliged to harbour a terrorist who is currently taking action against some other state (or even in relation to a contested area of land claimed by another state) if that other state could realistically be seen by the Secretary of State as likely to take action against the United Kingdom and its citizens.
The Rahman case establishes that the right to access family, though a very important right to life, cannot be invoked and national security is paramount. Also the threat to England, or any direct threat is not essential.
B. USA : National security and judicial review
There are good resources from the US jurisdiction also. FBI v. Fazaga, (March 4, 2022).
In 2006-07 the FBI sent a paid informant to Orange County, California to find the radicalised Islamic elements. He posed as a convert to Islam, went to “some of the largest, most diverse mosques”, gathered various details (phone number, E mail, political orientation etc) of hundreds of Muslim Americans. “He also video-recorded sensitive locations, including mosques, homes, and businesses using a hidden camera. His FBI handlers told him they were conducting electronic surveillance in at least eight area mosques.” Due to his suspicious activities, someone reported to the officers. Three muslim citizens went to court that the conduct of FBI was religiously biased and the surveillance, data collection was made because they were muslims.
The applicant challenged the surveillance order on the basis of fundamental rights because “Government’s unlawful information-gathering operation violated their rights under the Establishment Clause; the Free Exercise Clause; the Fourth Amendment; the equal protection component of the Fifth Amendment’s Due Process Clause of the US Constitution. The US Supreme court declined any such right. The US Supreme Court unanimously held that the “disclosure of counter-intelligence information that was vital to an evaluation of those claims would threaten national-security interests.”
“The AG formally claimed state privilege. “This claim applied to the following categories of information: information that could “confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation,” information that could reveal the “initial reasons” for or the “status and results” of an “FBI counterterrorism investigation,” and information that could reveal the “sources and methods” used in such an investigation.” FBI filed a public declaration explaining why disclosure “reasonably could be expected to cause significant harm to national security,”
The US Supreme court upheld the non disclosure.
In the case of United States v. Reynolds, 345 U.S. 1 (1953) a military aircraft on a flight to test secret electronic equipment crashed and certain civilian observers aboard were killed. For a claim under tort certain information was sought by the claimant as to the military flight. The State argued "Claim of Privilege". The US Supreme Court accepted the claim and declined to give any order to disclose the information.
“Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.”
There are many such cases across various jurisdictions which have established national security jurisprudence. Basic features of these precedents are that in the matters of national security, the scope of judicial review is limited. However, whether these cases provide strong persuasive ground in India or not depends on whether facts and context match or not. For example, In Chandler, the accused entered a prohibited place to support nuclear disarmament. Council of Civil Service Union was a case of the right to join a trade union. Rehman was a case where the he was denied stay in the UK on the confidential information that he “his activities directly support terrorism in the Indian subcontinent” and is involved with Islamic terrorist organisation. All his family members were UK citizens. Above three cases were not about free speech or press. Moreover, the UK does not recognise fundamental rights like India. Fazaga was a case on privacy and the aggrieved did not face any adverse consequences. Reynolds was a case on tort and the claimant was alone. In these cases the issue of fairness due to non disclosure of confidential information was in question and the courts declined to follow the rule of fairness. Madhyamam Broadcasting Limited is a case on free speech, freedom of press (news channel) as well as rights of hundreds of employees of the channel. It seems the division bench of the Supreme Court had in mind these considerations that the Court favoured “liberty” over “security”. However, the national security concerns of India are the most significant point for now because we are the most vulnerable target of terrorism. The role and reach of news channels has transformed. News channels are not limited to home only but are in the cell phone also. They are available on social media sites like youtube, facebook and a news video can be forwarded through whatsapp. Indeed there is no need to subscribe to a news channel. The growth of social media, media market, Television Rating Point (TRP), global presence, huge investment, the desire of quick commercial returns and the wish to act as a pressure group exert every day pressure on the news channel and their stakeholders. They intentionally or inadvertently cross the lakshman rekha. One irresponsible news video has the potential to radicalise youth. One glorification of killing the innocent is fodder for extremist tendencies. One justification for a terrorist attack gives voice to anti India tendencies. Half baked information, motivated news items in the name of freedom of speech and expression or fair criticism may not be hit by criminality but are inappropriate. While the government should come with prima facie evidence against the channels, the Supreme Court should not interfere unless the State action is manifestly arbitrary and “masquerades behind a facade of national-security concerns.” If the judiciary interferes without strong reasons in national security cases as to the sufficiency of the materials used for confidential decisions, the executive will begin taking the formal route of “state privileges” because it is the executive that is responsible for the “security” of India and their institutions and the individuals. Security is the precondition for any form of liberty. The Government of India is following a zero tolerance policy against security threats for which sealed cover jurisprudence is a temporary measure. Judiciary must allow the government to pursue it.
