Madhyamam Broadcasting ltd vs Union of India (2023) SCC OnLine SC 366

Case Name:  Madhyamam Broadcasting ltd vs Union of India (2023) SCC OnLine SC 366 

Court: Supreme Court of India. 

Bench type: A Division bench ( Chief Justice Dhananjaya Y. Chandrachud with Justice Hima Kohli) 

Date of judgement: April 5, 2023

Statues /Constitution Involved: Constitution of India, Republications Act of 1995 , Cable Television Networks (Regulations) Act of 1995

Parties Involement 

Plaintiff (Appellant): Madhyamam Broadcasting Limited (MBL) 

VS 

Defendant (Respondent): The Union of India Ors. (represented by the Ministry of Information & Broadcasting and Ministry of Home Affairs). 

Facts –In 2010, a company named MBL applied to broadcast a news channel called ‘Media One’. They got security clearance and permission to broadcast for 10 years. Later, they also got permission to broadcast another channel called ‘Media One Life’. But in 2016, the government said they might cancel both permissions because they didn’t get security clearance from the Ministry of Home Affairs.Despite this warning, MBL applied to renew the permission for ‘Media One’, which was expiring soon. The government renewed it for another five years. But they canceled the permission for ‘Media One Life’ because of the security clearance issue. 

In 2021, MBL wanted to renew the permissions to broadcast their channel, Media One, because the old permissions were expiring soon. But in January 2022, the government sent them another warning. They said that because MBL didn’t get security clearance in the past, they might not get it this time either. Since security clearance is needed for permission to broadcast, the government might cancel their permission for Media One. MBL had 15 days to explain why their permission shouldn’t be canceled. 

MBL responded to the warning: 

1. They didn’t receive any official notice about security clearance being denied for their channel, Media One. They weren’t involved in any discussions about it, and no evidence was given to them. 
2. They weren’t told why security clearance was denied.
3. They didn’t do anything wrong that would justify denying security clearance. 4. They got a similar warning in 2016, but after they replied, their license was renewed in 2019. 5. They think the government’s actions are unfair and go against the Constitution’s Article 14, which talks about equality. 
4. They believe that not renewing their license goes against their right to freedom of speech and expression, as guaranteed by Article 19(1)(a) of the Constitution. 

MBL went to the High Court of Kerala to challenge the government’s decision to cancel their permission to broadcast Media One. They asked for three things: 

1. To cancel the order that canceled their permission. 
2. To make the Ministry of Information and Broadcasting (MIB) and Ministry of Home Affairs (MHA) give them a chance to explain before canceling their permission.
3. To declare that there’s no reason to deny security clearance or cancel their license because they haven’t broken any laws or done anything against the country. 

The Assistant Solicitor General of India told the court that security clearance was denied because of secret intelligence information. They said the Ministry of Home Affairs can’t share the reasons for denying clearance because it’s a policy and it’s important for national security. 

The High Court of Kerala’s Single Judge made a decision on February 8, 2022: They said that when renewing a broadcasting licence, things like the company’s money or management skills may not be important, but security clearance is still necessary. They also explained that in national security matters, normal rules of fairness do not always apply, as shown in earlier court cases. After checking the Ministry of Home Affairs files, they found that a committee reviewed intelligence reports, felt the issue was serious and related to security, and therefore advised not to renew MBL’s licence, which the MHA accepted. 

The Division Bench of the High Court looked at the files submitted by the Ministry of Home Affairs (MHA) after the Single Judge made their decision. They found that: 

The files did not clearly explain how serious the issue was, but it was clear that renewing MBL’s permission to run the channel could affect the security of the state and public order. The court said that in normal situations the government should not interfere with the freedom of the press, but when national security is involved, the court has limited power to review the government’s decision. It also said that the government can refuse to share information if it concerns national security or if the law gives special protection, but it cannot just say “security reasons” without explanation and must justify this in court. The government explained that it did not disclose the reasons for denying security clearance because they were based on secret intelligence inputs, and revealing them could harm national security. 

The appellants went to the Supreme Court against the Division Bench’s decision of the High Court. On March 15, 2022, the Supreme Court looked at the files submitted in a sealed cover to the High Court and granted a temporary stop on the government’s order from January 31, 2022, which canceled MBL’s permission to operate Media One. 

The Supreme Court also said they will decide on that later when the case is fully heard. 

ISSUES 

1. Whether getting security clearance is necessary to renew permission to run a TV channel. 
2. Whether the way the High Court handled the case followed the proper rules and didn’t infringe  MBL’s right to a fair hearing. 
3. Whether not renewing the TV channel’s license unfairly limits its right to speak freely. 3

SUBMISSION 

Mr. Dushyant Dave’s submissions on behalf of the petitioner (MBL) 

Mr. Dave argued that MIB’s order was unconstitutional, renewal should have been automatic, and MBL should have been able to see the evidence against them for a fair trial. 

Mr. Huzefa A Ahmadi’s argued that violated Media One’s freedom of the press, wasn’t proportionate, and the High Court’s reliance on sealed material was unjust. 

Mr. K M Nataraj’s submissions on behalf of the respondent: 

Mr. Nataraj argued that security clearance is needed for renewal, the cancellation of Media One’s permission was justified due to the denial of security clearance by MHA, and in matters concerning national security, principles of natural justice may not be applicable. 

Issue 1 : Whether getting security clearance is necessary to renew permission to run a TV channel. 

To renew permission to broadcast on TV, the channel must follow certain conditions. 

Condition 1: Violation of programm code 

Media One’s Case, Media One was accused of breaking the rules on February 28, 2020, while reporting on violence in North-East Delhi during protests against the Citizenship (Amendment) Act 2019. As a result, on March 6, 2020, the Ministry of Information and Broadcasting (MIB) ordered a 48-hour ban on Media One’s transmission. However, the ban was lifted the next day, March 7, 2020. 

Apart from this incident, there’s no evidence that Media One violated the Programme Code. According to the guidelines, violating the Programme Code more than five times disqualifies a channel from renewal. Since Media One had only one alleged violation, it doesn’t meet the first condition for renewal outlined in the guidelines. 

Condition 2 and 3: requirement of security clearance for renewal of license According to the Uplinking Guidelines, for renewal of permission, the TV channel must follow all the terms and conditions mentioned in the original permission letter. The process starts with the channel submitting the required documents and fees to the Ministry of Information and Broadcasting (MIB). The MIB then checks whether the application meets the eligibility conditions given in the guidelines. If these conditions are satisfied, the application is forwarded to the Ministry of Home Affairs for security clearance. 

So, Security clearance is a mandatory requirement for renewing permission to run a TV channel. In Media One’s case, the channel did not violate the Programme Code more than once, so it was not disqualified from renewal on that ground. However, under the Guidelines, renewal is subject to compliance with all terms and conditions of the original permission, which includes obtaining security clearance from the Ministry of Home Affairs. 

Issue 2 : Whether the way the High Court handled the case followed the proper rules and didn’t infringe MBL’s right to a fair hearing: 

MBL argues that the MIB and the High Court violated basic principles of fairness by not giving reasons for denying security clearance and license renewal, not sharing relevant documents, and relying on sealed documents without allowing MBL to respond. Because no reasons or materials were disclosed, MBL could not properly defend itself, which harmed its right to a fair hearing under Article 21. MBL says it has shown that the procedure followed was unfair and unreasonable, even without proving its effect on the final outcome. A reasoned order is important because it ensures transparency, prevents arbitrary decisions, allows effective judicial review, and upholds the rule of law. 

Judicial Review on procedural- Under Article 13 of the Constitution, administrative actions can be challenged if they are illegal, unreasonable, procedurally unfair, or disproportionate, especially when they affect rights under Articles 19 and 21. The principles of natural justice require fairness through a proper hearing and absence of bias, and MBL argues that its right to a fair hearing was violated because the MIB did not give reasons for denying security clearance. MIB, however, claims that matters of national security are an exception to these principles. The court must decide whether not giving reasons violates the right to a fair hearing, whether such a violation would invalidate the decision, and how to balance natural justice with national security.. 

To understand how natural justice became part of the Constitution, two major legal developments are important in the case , A.K. Gopalan, Justice Fazl Ali’s dissent supported this broader idea of fairness, which was later accepted in the Maneka Gandhi case, where the court held that life and liberty can be restricted only through a fair and reasonable procedure, guided by Articles 14, 19, and 21. Principles of natural justice make procedures reasonable, though they are flexible and depend on circumstances. After Maneka Gandhi, procedural fairness became important in itself, not just for the outcome, and natural justice was recognized as essential to ensure fairness, especially the right to a fair hearing, which cannot be ignored or weakened beyond its core. 

The government has the main authority to decide what poses a threat to national security, but the commission and courts still have an important role in ensuring fairness. They can check whether the government’s decision is supported by enough evidence, reject it if it is unreasonable, and consider issues like human rights that go beyond pure security concerns. While national security, courts must examine whether such limits are truly necessary. They should respect the government’s view on security, but still review it to ensure it is based on facts and not arbitrary. 

National security is one of the few reasons where procedural fairness might be restricted. However, just because national security is involved doesn’t mean fairness can be ignored. If the government doesn’t act fairly, it needs to justify its actions in court. 

Even in matters of national security, the basic principles of fairness and justice cannot be completely ignored. Any restriction on fair procedures must meet the test of proportionality. This means the restriction should have a valid purpose and a proper balance between protecting national security and respecting the rights of the affected person. 

(i)Confidentiality and IB report 

The state must show that keeping information secret is truly necessary to protect confidentiality, especially for IB reports. Simply claiming that all IB or investigative reports are always confidential is not acceptable. Agencies like the IB and CBI regularly prepare reports that affect people’s rights, careers, and freedoms, and these reports often include opinions and conclusions, not just facts. While some sensitive parts may need protection, giving complete secrecy to all such reports goes against transparency and accountability. Therefore, treating all intelligence reports as absolutely confidential is inconsistent with constitutional values. 

(ii)National security 

In cases involving national security, courts do not blindly accept the government’s claim of secrecy. If the government says information cannot be disclosed for security reasons, it must give reasons and supporting evidence, usually through a written statement, to show how disclosure would harm national security. The term “national security” is broad and includes protection from serious threats to the state, public stability etc. 

(III) Opening the sealed cover 

In 2010, MBL applied to run Media One, and its application required security clearance. While the CBI found nothing negative, the IB raised concerns about MBL’s links to Jamaat-e-Islami and the possibility that the channel could promote its ideology. Despite this, the Ministry of Home Affairs (MHA) allowed the channel since MBL already ran a newspaper. In 2014 and later years, MBL applied for new channels and renewal, but the IB again reported that the channels promoted JEI-H’s ideology, criticized security agencies, and opposed government policies. The MIB revoked permission for Media One Life in 2019, citing these concerns. However, the files provided no concrete evidence linking MBL shareholders to JEI-H, and the IB’s report was based on public information. Courts have ruled that national security claims cannot be used casually to withhold information, and here, there was no evidence that keeping MBL’s information secret was necessary and justified. 

Methods protect confidentiality and national security, 

(I) Totten claim: non-justiciability of the issue this means that the lawsuit can be dismissed early on, without going through the entire legal process. 

(II) Closed Material Procedure and Special Advocates: 

This procedure, similar to sealed cover proceedings, ensures fairness by providing legal representation while protecting sensitive information. 

(III) Public Interest Immunity 

The concept of public interest immunity allows the State to remove material from proceedings if its disclosure would harm public interest. In such cases, the material cannot be relied upon by any party during the proceedings, effectively making it non-existent. 

These methods effectively protect confidentiality and national security, but each affects fundamental rights differently. Public interest immunity removes the material from proceedings entirely, while a Totten claim declares the issue non-justiciable if state secrets may be disclosed. When comparing the three methods – public interest immunity claims have the least impact, while Totten claims have the most impact. 

In State of Punjab v. Sodhi Sukhdev Singh, the court examined Sections 123 and 164 of the Evidence Act. It ruled that privilege under Section 123 can withhold documents if disclosure harms public interest, but only if public interest outweighs private interest. The head of the department decides for state affairs documents, though courts can order disclosure if they don’t qualify. 

Less Restrictive Alternatives- Instead of sealed covers, courts should first try public interest immunity. For balance, redact sensitive parts and share summaries with both sides, ensuring fair proceedings while protecting confidentiality. 

So, the Kerala High Court did not follow proper rules and infringed Madhyam Broadcasting Limited’s right to a fair hearing. The court accepted sealed cover material exclusively, denying MBL access to the evidence against it, which violated audi alteram partem (hear right the other side), a core natural justice principle under Articles 14 and 21. 

Issue 3 – Whether not renewing the TV channel’s license unfairly limits its right to speak freely. 

During the legal proceedings, Mr. Huzefa A Ahmadi argued about the violation of procedural guarantees and requested the court to review the material that was only disclosed to the court in a sealed cover. Even though the court had already decided to set aside the order denying license renewal and the judgment of the High Court due to procedural issues, they decided to also address the substantive challenge regarding the denial of security clearance. 

Back in 2010, MBL applied for permission to operate the news channel “Media One,” and the Ministry of Home Affairs (MHA) requested reports from IB and CBI for security clearance. While the CBI found nothing adverse against MBL, the IB reported concerns about the channel’s association with “Madhyamam Daily” and its coverage of issues related to Muslims and Hindu fundamentalists. Despite this, the MHA granted security clearance. 

However, between 2014 and 2019, similar reports submitted by the IB raised concerns about MBL’s source of income and its critical stance on various government policies. Based on these reports, the MHA denied security clearance. The court had to determine whether these reasons were justifiable grounds for denying security clearance and thus restricting MBL’s freedom of the press under Article 19(1)(a) of the Constitution. 

Freedom of the press, protected under Article 19(1)(a), can only be restricted based on specific grounds outlined in Article 19(2) of the Constitution. Security clearance is required for the renewal of a broadcasting license, and denying it restricts freedom of the press, which is permissible only for reasons outlined in Article 19(2). 

In summary, the court found that the reasons provided for denying security clearance did not have a proper purpose. Therefore, the denial of security clearance and the restriction on MBL’s freedom of the press were deemed unjustified and unconstitutional. Publishing reports on alleged discrimination against the Muslim community or mentioning the shareholding pattern of MBL does not constitute religious proselytization or a deliberate infringement of safety concerns. Therefore, it is not justified to apply these security parameters to the information provided about MBL. 

Judgement and Ratio decendio 

The court allowed the appeals and cancelled the orders of the MIB and the High Court because MBL’s right to a fair hearing was violated. The MIB did not give reasons for denying security clearance, did not share relevant material, and the state failed to properly justify national security concerns. The court held that even if national security is involved, fair procedures must still be followed, and the restrictions imposed did not meet the test of proportionality. It also found that denying a media channel permission affects press freedom and must be based on valid reasons, which were missing in this case. 

The court explained that while sensitive information can be protected through public interest immunity, fairness must be maintained. To balance secrecy and fairness, the court can appoint an amicus curiae to examine confidential material and protect the affected party’s interests. Judgments must still be delivered in open court with proper reasons, even if some parts are redacted. As a result, the MIB was directed to renew MBL’s permissions within four weeks, and all pending matters were disposed of. 

Conclusion 

No evidence linked Madhyamam Broadcasting Limited (MBL) to Jamaat-e-Islami Hind (JEIH), which isn’t banned anyway.The Supreme Court ruled that denying MBL a defense chance violated Article 19(2) limits on free speech. The government misused “national security” to block remedies, breaching rule of law, and skipped proportionality tests for security claims. Natural justice demands fair hearings, so blanket secrecy on reports isn’t allowed despite confidentiality needs. Sealed covers harm natural and open justice principles.In Madhyamam Broadcasting Limited v. Union of India, MBL proved the MIB’s unreasoned January 2022 order and secret disclosures (only to court) denied their right to a fair hearing. 

Reference(S):

Madhyamam Broadcasting ltd vs Union of India (2023) SCC OnLine SC 366 State of Punjab v. Sodhi Sukhdev Singh (1960) AIR 1961 SC 493 

Manisha Shamrao Bhadade, Case Analysis: Madhyamam broadcasting Limited vs Union of India 2022, Feb 11, 2024, 

https://www.jusscriptumlaw.com/post/case-analysis-madhyamam-broadcasting-limited-vs-union of-india-2022#_edn4 

Indian Kanoon , https://indiankanoon.org/doc/167941851/ 

AK Gopalan v. State of Madras, AIR 1950 SC 27 

Maneka Gandhi v. The Union of India, AIR 1978 SC 597 

India Const. Art. 19, cl.1(a) and art. 19(2)