Tag: #nationalsecurity

-Report by Sakshi Tanwar

This is the second application under Section 439 read with Section 436A of the Code of Criminal Procedure, 1973 seeking regular bail in case FIR No. 166/2015, dated 16.11.2015, recorded at P.S. Crime Branch under Sections 3 and 9 of the Official Secrets Act, 1923. The initial application filed on behalf of the current applicant was rejected as withdrawn by a coordinate bench of this Court on February 31, 2018, with an instruction to the learned trial Court to expedite the trial.

FACTS

P.S. Crime Branch obtained classified information on alleged anti-national acts supported by Pakistan-based intelligence operatives. The operation in question was handled by an Indian. Information about the deployment of the Indian Army and the Border Security Force (“BSF”) in Jammu and Kashmir and passed it on to people across the border, threatening national security. The mobile phone numbers involved were intercepted, and the names of two people engaged – Kafaitullah Khan and Abdul Rasheed surfaced. Kafaitullah Khan lived in Rajouri and Abdul Rasheed served in the BSF. It was found that Abdul Rasheed gave classified material to Kafaitullah Khan in exchange for money, who then gave it to Pakistan intelligence operatives.  

Kafaitullah Khan came across his close friend Mohammad Saber, i.e., the present applicant, who was a primary school teacher. In confidence, Kafaitullah Khan told the applicant about his meeting with the aforesaid Pakistan intelligence officer and the task assigned to him. He agreed to the task by taking some money. Kafaitullah Khan got in touch with an ex-serviceman, Munawar, through the present applicant. Farid Khan had passed on some documents to Munawar, which were then passed on to Faizal-ur-Rehman through the present applicant. Mobile phones were recovered from Kafaitullah Khan, Abdul Rasheed, Munawar Ahmed Mir, Farid Khan and the present applicant. The Call Detail Records showed that the accused were in touch. Bank account details of all the accused persons were obtained from the concerned banksand it was found that Rs. 10,000/- were deposited in the account of the applicant. 

The found documents pertaining to the Indian Army were forwarded to the appropriate authorities for examination. It was discovered that the aforementioned documents were classified in nature. Following the completion of the investigation, the first chargesheet in the current case against Abdul Rasheed Khan, Munawar Ahmed Mir, Farid Ahmed, Kafaitullah Khan, and the present application was filed on February 23, 2016.

APPEALANT’S SIDE

The applicant, according to learned counsel acting on his behalf, was detained on December 5, 2015, and has been in judicial detention for more than 7 years. It was also claimed that he had been imprisoned for more than half the maximum time permitted for the crimes he was accused of committing. As a result, the petitioner is eligible to be released on bail under Section 436A of the CrPC. It was further submitted that the applicant was not named in the FIR and the allegations against him are solely on the basis of the disclosure of Kafaitullah Khan and Abdul Rasheed. Learned counsel for the application testified that no incriminating material had been obtained from the applicant’s possession or from his domicile. Furthermore, no incriminating evidence was discovered on his laptop or camera. It was submitted that the prosecution has not been able to connect the Rs. 10,000/- transferred to the bank account of the applicant with any of the allegations made against him. Learned counsel further submitted that there is no evidence on record which shows that the data alleged to be transmitted was passed on by the applicant.

JUDGEMENT

In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, one of which should be a relative of the applicant, to the satisfaction of the learned Trial Court/Link Court, further subject to some conditions.

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-Report by Bhavana Bhandari

In Madhyamam Broadcasting v. Union of India & ors, the Supreme Court decided that the State cannot claim complete immunity from the disclosure of materials essentially by asserting the information related to national security. The idea of national security does not enable the principles of natural justice to be suspended, and the Court shall be the appropriate authority to determine whether the request for non-disclosure has a proper and suitable linkage to the claim for national security.

FACTS:

In 2011, the Ministry of Home Affairs granted the appellant Madhyamam Broadcasting Limited (MBL) “MediaOne” security clearance for 10 years of operation. However, within six years, the Ministry of Information and Broadcasting issued a notice to show cause to MBL, ordering the security clearance to be revoked. Furthermore, the respondent refused to renew the license based on national security, but the specific reasons were not disclosed.

To contest the MIB’s order “revoking” Media One’s permission to uplink and downlink the decisions of the Division Bench of the High Court, the appellants brought an action under Article 136 of the Constitution. Based on the information provided to the court in a sealed cover by the Union Ministry of Home Affairs, the High Court of Kerala dismissed the petitions filed by MBL and other respondents, stating that license revocation may be necessary when constitutional considerations are prevalent. Following this, the appellants filed an appeal with India’s Supreme Court.

CONTENTIONS:

Appellant’s Contention

The appellant’s counsel asserted that MIB’s revocation of the permission granted to uplink and downlink the channel, Media One, was unconstitutional. Only the granting of permission to operate a channel and not the renewal of existing permission are subject to the requirement of security clearance. Even if it goes beyond the logical limitations on press freedom outlined in Article 19(2) of the Constitution, it cannot be denied. The restrictions outlined in Article H(2) must be read in conjunction with Section 4(6) of the Republications Act of 1995 and the Cable Television Networks (Regulations) Act of 1995 to determine whether or not security clearance will be granted or denied.

The security clearance was not revoked between 2011 and 2022, but the renewal should have been granted if the show cause notice did not allege any violation of the terms of the agreement. By providing information in a “sealed cover,” the Union of India violated the principles of an open court and party fairness. The respondent only stated that the material was sensitive and that the denial was made in the interests of national security and no reason was disclosed for the reasons for such denial by the respondents.

Respondent’s Arguments

Mr. K. M. Nataraj, Additional Solicitor General, representing each of the respondents, argued that MIB was justified in revoking the permission given to Media One because security clearance is a prerequisite for license renewal. The Centre asserted that judgments in the case Ex-Army Men’s Protection Services Private Limited v. Union of India and Others (2014) and Digi Cable and Network (India) Private Limited v. Union of India and Others (2019) have already established that the natural justice principle shall not be applicable in case of natural security.

ISSUES:

1. Whether security clearance is one of the conditions required for renewal of permission under the Uplinking and Downlinking Guidelines; 
2. Whether rejecting a license renewal and the decisions made by the Division Bench of the High Court infringed the appellants’ procedural rights under the Constitution.
3. Whether the order refusing renewal of license was an arbitrary restriction on the appellant’s right to freedom of speech and expression.

JUDGEMENT:

Justices CJI D.Y. ChandraChud and Justice Hima Kohli made up the two-judge panel that delivered the decision. Granting blanket immunity to the reports of all the investigative agencies from disclosure is negating to a transparent and accountable system, and these reports have a deeper impact on decisions affecting the life, liberty, and profession of individuals and entities. 

Thus, it is possible to obstruct the release of any investigative reports in any way. Even when national security concerns are used to justify the withholding of information, the courts should still take a less rigorous course of action.

To fairly exclude materials after a successful public interest immunity claim, courts should take the recourse of redacting confidential portions of the sealed cover document and providing a summary of the document’s contents.

The Court continued by saying that it can still examine whether the State’s refusal to disclose has any connection to national security although it is acknowledged that confidentiality and national security are both respectable objectives. Referring to the Pegasus case (ML Sharma v. Union of India), it was stated that the courts would not take a “hands-off” stance simply because national security claims were made.

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