Both subversive activities and state surveillance to curb them require advanced technology. New, invasive laws are said to be required to regulate freedoms in the name of protecting national security. This situation may imply a dynamic and ever-evolving relationship between the exercise of fundamental freedoms and the reasonable restrictions that the state wants to impose on them: a relationship in which old processes are constantly revisited and new forms of communication are factored into regulations. No, not always. There are situations in which outdated procedures and archaic requirements can easily pose a potent threat to the very existence of some form of legitimate activity. The Union Home Ministry’s denial of security clearance to the Sun TV group, which operates 33 television channels and several FM radio channels, is one such example. After over two decades of operations, the group promoted by Kalanithi Maran finds that a regulation that says the MHA’s security clearance is required to be renewed from time to time has placed its television and radio stations under the threat of closure.
Regulatory laws routinely contain provisions that operate more as emergency powers than as routine requirements. The idea of requiring a broadcaster to obtain security clearance implies that such clearance can be suspended or denied to bar some entity from operating a network. It is inherently a power that can be used when some contingency arises that needs to be dealt with urgently, and the Government of India finds that it has no other means to shut down a network. It involves taking a call on curbing the freedom of not only the entity or institution or individual concerned, but also the right of their regular customers or subscribers to viewing their content. Security clearance for broadcasters is somewhat outdated and requires a fresh look as visuals and images are now disseminated to a global audience through the Internet and social media too, and except for the potential for a cyber-shutdown, there is no prior clearance provision for the worldwide web.
Strange reason In the case of the Sun TV network, the reason for denying security clearance is quite strange: that the promoters face criminal cases, one concerning corruption, one of money-laundering and one related to operating an illegal telephone exchange. Regardless of the outcome of these legitimate prosecutions, shutting down a media house during the pendency of investigation or trial raises a number of constitutional questions concerning freedom of expression. It is not clear if there is a precedent for an operational network to be denied security clearance for the sole reason that some cases are under investigation or prosecution.
The link between a pending criminal prosecution and the alleged threat posed by a media house to national security is hopelessly tenuous, unless the charge itself is based on the content available on it. There is a good deal of content regulation already in place, and the Information and Broadcasting Ministry diligently issues notices, advisories and warnings to private television channels for violations of the content code. Moreover, the principle is alarmingly extendable to non-electronic media too, as there are registration requirements for the print medium too. It is somewhat strange that the Union Home Ministry is doggedly holding on to the opinion that a particular channel is ineligible for security clearance even after the Attorney General has given a fairly strong opinion that the stand is illegal.
Freedom of expression There is a long list of cases in which the Supreme Court has recognised that freedom of expression includes the right to disseminate information as well as receive it. In the context of an election, it has even recognised the voter’s right to know details about a candidate’s qualifications and criminal antecedents, if any, as part of the same freedom. In the light of the direction in which the law has evolved, it is unimaginable that the government could believe that it can force a network to shut down by merely denying it security clearance, without regard for the injury it does to the freedom of expression, which covers both dissemination and receipt of information, communication and knowledge, of both broadcasters and the general public.
Legal framework The existing legal framework for the broadcasting media is acknowledged to be inadequate. A draft bill for a broadcasting legislation was open to public debate in 2007 but is yet to be acted upon. The idea of a broadcasting law came about because of the Supreme Court’s landmark verdict in 1995 declaring airwaves as public property and calling for an independent public authority to regulate them. The draft envisaged the creation of an independent Broadcast Regulatory Authority of India, and it is precisely the absence of such a credible body that makes actions such as denying security clearance to a particular network appear dubious. Any use of discretionary power has to appear to be truly independent, and vesting it in the political executive without clear guidelines on the manner of using that power is bound to seem to lack legitimacy. It is not that security considerations will have to be abandoned altogether and unfettered or unregulated freedom conferred on those applying for broadcasting permission. Even the draft bill envisaged vesting the Central government with certain powers to be used in times of external threat or war or extraordinary circumstances. It is futile to argue that pending prosecutions constitute such an extraordinary circumstance.
“ The existing legal framework for the broadcasting media is acknowledged to be inadequate. ”
Admittedly, regulations and conditions of licensing for the broadcasting sector operate as constitutionally permissible reasonable restrictions on those freedoms, and that national security is a clearly identified ground for such curbs. The Supreme Court has held that any heavy-handed measure that places an “excessive or prohibitive burden” on a newspaper is violative of the freedom of expression under Article 19(1)(a) of the Constitution. In the case of broadcast media, as airwaves, which are public property, are involved, the right is both subject to reasonable restrictions and regulation by a public authority. Yet, it cannot be denied that a bland denial of security clearance, citing an indeterminate concept of ‘economic security – an issue said to arise out of the fact that the accused in the relevant cases are accused of economic offences – will undoubtedly have a chilling effect on free expression, especially the media. It is not difficult to see that linking the prosecution of one of the promoters in cases unrelated to the content of any of the channels and their right to function is one such measure. Even if it was conceded that the amount involved in the alleged money-laundering case arising out of the Aircel-Maxis transaction is huge, accepting the denial of security clearance on that ground would set a dangerous precedent for the rest of the media industry. In times when non-government organisations are under the scanner for strident criticism of some aspects of policy that the government is particularly sensitive to, when activists are seen as “anti-national” for campaigning against major projects on environmental or ecological grounds, and when the government appears to closely monitor the extent of coverage by private media houses of its pet projects and seeks to classify them into those in ‘compliance’ (media outlets that give adequate coverage) and those in ‘default’ (those that do not seem to show much enthusiasm), any precedent will be good enough to justify a sudden crackdown on such ‘defaulters’. Therefore, it is the responsibility of the government to avoid the impression that extraneous considerations are at work in its enforcement or use of existing regulations.
venkataramanan.k@thehindu.co.in
