Can the state use ‘national security’ as a ground to limit judicial review – a common question in the Pegasus and MediaOne cases

A case is before the Kerala High Court over the Centre’s decision to revoke the television license of Malayalam news channel MediaOne on national security grounds

The question of whether the state can invoke “national security” as a ground for limiting judicial review was again considered in the case of the MediaOne television station just weeks after the Supreme Court, in its order in the Pegasus case, observed that the Center cannot expect a “pass” from the courts as soon as it raises the “specter of national security”.

The government cited national security grounds in the Kerala High Court to overturn the Malayalam news channel’s broadcasting license.

“It is an established position of the law that in matters relating to national security, the scope of judicial review is limited. However, this does not mean that the state gets a free pass whenever the specter of “national security” is raised. National security cannot be the bogeyman the judiciary avoids, by virtue of its mere mention. While this tribunal should be circumspect in encroaching on the realm of national security, no omnibus prohibition can be invoked against judicial review…The mere invocation of national security by the state does not make the tribunal a silent spectator,” said a bench of three judges. headed by Chief Justice of India NV Ramana observed in Pegasus case order in October 2021.

The order is significant given the government’s oft-repeated refrain, while banning or restricting citizens’ rights, that it is done for “national security.” The debate between freedom and security has been long and fiercely contested in the corridors of the court.

One of the main concerns raised by citizens recently is the “chilling effect” that such state actions can have on freedom of expression, especially in the media. The principle of “chilling effect” is based on comparative prejudice.

“A possible test of deterrent effect is comparative prejudice. In this context, the court is required to determine whether the restrictions, because of their generalized nature, had a restrictive effect on persons in a similar situation during the period,” the Supreme Court explained in the Anuradha Bhasin case, which concerned Internet restrictions in Jammu and Kashmir in the context of the repeal of Section 370. In short, the test is whether state action on an entity in freezes others or dissuades them from following the same path.

Any state order that restricts fundamental rights of speech or expression must be reasoned. These reasons must be made transparent. The state is responsible. Courts must be satisfied that the state acted responsibly and did not take away rights “implicitly or flippantly or cavalierly”, the Supreme Court said in its 130-page judgment in the Anuradha Bhasin case.

“Democracy involves the free flow of information,” the Supreme Court had declared. Over the years, Supreme Courts have reinforced the right of the media to disseminate information to “as wide a section of the population as possible”.

“It is undeniable that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as possible. The expansion of the flow of information or its greater impact cannot restrict the content of the right or justify its denial,” the Supreme Court observed in judgments such as Secretary, Ministerry of Information & Broadcasting Government of India v. Cricket Association of Bengal and Shreya Singhal v. Union of the Indies.

The court once quoted the words of American statesman James Madison that “popular government, without popular information, or the means of acquiring it, is but the prologue to a farce or a tragedy ; or maybe both”.