Because ‘national security’

MediaOne Channel was banned by the government. The party that was banned was not given specific reasons for the ban, because ‘national security.’ Photo: Shakeeb KPA

Gautam Bhatia, scholar of constitutional law and author writes about Wednesday’s Kerala High Court judgment, dismissing the plea of MediaOne TV against the Union government’s ban imposed on the channel. This article first appeared on the Indian Constitutional Law and Philosophy blog.

In medieval England, the Star Chamber was a special judicial court that was set up as a “supplement” to the regular common law courts. Over the course of time, the Star Chamber came to be known as the “judicial arm of the King”, tasked with crushing dissent and enforcing the unpopular policies of the monarch. Its proceedings were characterised by secret hearings, secret evidence, arbitrary sentences, and punishment for jurors if they found against the State. Having written its name into infamy, in modern times, the Star Chamber has come to stand for “any secret or closed meeting held by a judicial or executive body, or to a court proceeding that seems grossly unfair or that is used to persecute an individual.”

While in recent times, there have been a few judgments by our courts that recall the Star Chamber to mind (see this post about “sealed cover jurisprudence“), the story of the MediaOne TV channel ban before the Kerala High Court takes us out of the realm of “recalls the Star Chamber” or “brings the Star Chamber to mind” or “is reminiscent of the Star Chamber”, and places Indian jurisprudence directly in Star Chamber territory. In other words, there is no perceivable distinction between what the Kerala High Court has done, and what this medieval body, set up to persecute the King’s political opponents, used to do.

In my previous post, I had examined the “judgment” of the single bench of the High Court, that had upheld the government’s ban on the MediaOne TV channel, and had imposed “censorship by sealed cover.” Today’s “judgment” by a division bench of that same High Court is – if such a thing was possible – even worse than the judgment of the single bench. In a 42-page “judgment”, the division bench upholds the order of the single judge.

The actual “analysis” is found in exactly one paragraph out of these 42 pages, paragraph 55:

Likewise, the application filed seeking permission for the renewal of the uplinking and downlinking of “Media one TV” was considered in the year 2021 and wherein also, we find that there are certain serious adverse reports by the Intelligence Bureau against M/s. Madhyamam Broadcasting Limited and its Managing Director. It is true that the nature, impact, gravity and depth of the issue is not discernible from the files. But, at the same time, there are clear and significant indications impacting the public order and security of the State. Since it is a confidential and sensitive file maintained by the Ministry of Home Affairs, Union of India, we are not expressing anything further in the interest of national security, public order and other aspects concerning the administration of the nation.

While the astonishing character of this paragraph tends to speak for itself, it is worthwhile setting out a brief recap:

1.MediaOne Channel was banned by the government. The party that was banned was not given specific reasons for the ban, because ‘national security.’

2.The party that was banned challenged its ban before the Court, on the ground that its constitutional rights had been violated. Before the Court, the specific reasons for the ban were not justified by the State – and therefore could not be contested – because ‘national security.’ Instead, they were provided to the Court in a sealed cover.

3.On perusing the material in the sealed cover, the Court was forced to concede that the “nature, impact, gravity and depth” (what remains?) of the issue was not “discernible”, but nonetheless, the ban was valid, because ‘national security.’

4.The Court exempted itself from the intolerable burden of conducting any factual, legal, or constitutional analysis of the case, because ‘national security.’

What boggles the mind most in the above sequence is that the Court – in a rare moment of candidness – actually admitted that the files before it revealed nothing about the “nature, impact, gravity and depth” of the issue. But if that is the case, then the law – if the law matters at all to this Court, because it appears that it does not – would have required it to reach a contrary finding. The proportionality standard under Indian constitutional law requires Courts to specifically consider the “nature, impact, gravity and depth” of an issue when constitutional rights are in question. The rationality prong of the test asks whether the State restriction bears a “rational nexus” with the goal. The necessity prong asks whether the restriction (in this case, a complete ban) was the “least restrictive measure” open to the State. the strict proportionality prong asks whether the extent of the restriction (in this case, a complete ban) outweighs the intensity of the right (freedom of speech). None of these steps can be performed without considering the “nature, impact, gravity and depth” of the issue. A Court is meant to apply the law (that it is bound by) to the facts of the case, not go by vibes. Or so we are led to believe.

It is therefore not an exaggeration to call this Star Chamber territory – indeed, one would wager that the Star Chamber was more inclined towards the basic requirements of the rule of law than the Kerala High Court. Perhaps an even more accurate term is what, in the US, is called “a court going rogue“: that is, a court – as I have indicated above – that has simply liberated itself from even the pretence of acting like a judicial institution. The law? Doesn’t matter. Binding precedent? Doesn’t matter. The requirement to apply law to facts? Doesn’t matter. The requirement to give reasons for a judgment? Doesn’t matter. Open and transparent justice? Doesn’t matter. Procedural safeguards? Don’t matter. The right to contest the basis on which my constitutional freedoms have been restricted? Doesn’t matter.

As for the rule of law and the protection of fundamental rights: those stopped mattering to this court a long time ago.