Are India’s courts going the Star Chamber way?
The two judgments in the MediaOne case set a disturbing precedent. Effectively, the government can ban a TV channel on the basis of secret evidence, that is then secretly given to the court
Since Independence, at both the central and the state level, India has had a troubled history of government censorship of critics and dissidents. While the record of the judiciary in protecting the freedom of speech and expression has been patchy, recent judgments by the Kerala high court (HC) have indicated an alarming regression in our courts’ willingness and ability to stand up to State censorship.
The cases relate to the MediaOne TV channel, which was recently banned by the central government under the Cable Television Networks Regulation Act, on the apparent grounds of “national security”. Needless to say, the banning of a TV channel is the most drastic act of censorship that the government can engage in, more drastic than warnings, fines, and even temporary suspensions. It amounts to a complete violation of the constitutional guarantee of the freedom of speech — akin to not just banning a single book (for example), but an entire publishing company.
MediaOne challenged its ban before the Kerala HC. In particular, it argued that the reasons for its ban had not even been communicated to it (thus denying it the opportunity to respond, or to place its case before the government). In any event, MediaOne argued that the government ban was disproportionate and unreasonable, both under law and the Constitution. In response, the government — strikingly — did not attempt to provide substantive justifications for its action. It only invoked the term “national security”, and stated that not only had its decision been taken on the grounds of national security, but that also, it could not reveal those grounds, because to do so would in itself undermine national security. In this way, the government set up a perfectly Kafkaesque situation: It took away MediaOne’s constitutional rights, did not allow MediaOne to defend itself, and refused to explain its decision — all by reciting “national security” before the court.
Regrettably, instead of giving this short shrift, the HC enabled — and indeed, facilitated — this authoritarian behaviour through its rulings. First, a single-judge bench upheld the ban, in a judgment that mirrored the government in giving no reasons at all. The single judge only said that it had received some material from the government in a “sealed cover”, and on the basis of that material — which nobody else, not even MediaOne could see — it was convinced that a ban was indeed in the interest of national security.
When MediaOne appealed this decision to a two-judge bench of the HC, an even more curious decision was handed down. As before the single judge, evidence was submitted to the two-judge bench in a “sealed cover”, which nobody could see. Remarkably, in its judgment, the two-judge bench was forced to admit that “the nature, impact, gravity, and depth of the issue” was not, as a matter of fact, discernible from the files that the government had placed before it. One would think that if the government wants to ban a TV channel, the very least it should be called upon to do is to demonstrate that the nature, impact, gravity, and depth of the issue warrants it. But despite explicitly noting that the government had failed to do so, the two-judge bench upheld the banning order on the basis that there were “clear and significant indications” impacting public order (what these were, we will presumably never know).
These two judgments set a disturbing precedent. Effectively, the government can ban a TV channel on the basis of secret evidence, that is then secretly given to the court, and the ban can be judicially endorsed in a judgment that goes so far as to concede that the evidence is insufficient, but still sees nothing wrong with the ban. In all this, the TV channel itself is given no chance to defend itself, and the public is given no chance to know the basis upon which this censorship took place.
All this is rather reminiscent of a judicial body in mediaeval England called the Star Chamber, which used to persecute dissidents and critics of the King, on the basis of secret evidence and secret trials, and hand down arbitrary and unreasonable rulings. The Star Chamber has become a byword across the world for judiciaries that have turned into extended arms of the government, and in whose precincts transparency, accountability, and the rule of law are sacrificed on the altar of secrecy and the “reasons of State” — all at great cost to the individual citizen. An urgent course correction is needed if Indian courts are to avoid a similar fate.
Gautam Bhatia is a Delhi-based lawyer The views expressed are personal