Freedom of Press and Sealed Cover Jurisprudence

By Anwarulhaq Baig

India has ranked 150th position among 180 countries in the latest World Press Freedom Index, slipping from last year’s 142nd place while its tiny neighbour, Nepal has climbed up by 30 points, reaching at 76th position.

Recently in a related matter, the Supreme Court reserved its judgment over the ban on a Malayalam news channel, MediaOne. Th ban was imposed by the Union Government earlier this year, citing ‘national security’. They submitted the documents in ‘sealed covers’ against the channel. The Malayalam channel, its Chief Editor and Kerala Union of Working Journalists have challenged the Kerala High Court’s order, upholding the ban on MediaOne by the Ministry of Information and Broadcasting, and not renewing its broadcast licence.

The main part of the contention is that a ruling dispensation can put a blanket ban on media outlets, just citing national security or public interest, even submitting documents in ‘sealed cover’ in the court without disclosing them to the other side. Here the issue of freedom of press is hung between the political power and judiciary. However, freedom of the press is an essential part of the freedom of speech and expression as guaranteed under Article 19 (1) (a) of the Constitution.

Before Emergency, delivering a judgement on October 30, 1972, the Supreme Court of India told the Union Government, “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.”

While reserving the judgment in the matter on November 3rd, 2022, the two-Judge bench of the Apex Court, comprising Justices D.Y. Chandrachud and Hima Kohli questioned the Government for not sharing reasons with the petitioner for denying the channel’s security clearance. During the hearing, the learned advocates, appearing for the petitioner, put striking questions, pricking the big bubble of the ‘seal cover’ documents.

Advocates Dushyant Dave, Huzefa Ahmedi and Mukul Rohatgi strongly argued that the Government should have, at least, shared a redacted copy of the ‘sealed cover’ documents to the other side, so that they can defend themselves with clear understanding. The learned advocates contended that the Government has denied the petitioner’s right to defend themselves in the name of ‘sealed cover’ files, which is a breach of natural justice.

Supporting this point of the petitioner, the two-judge bench observed that the Government should have given a chance to the channel to present its case, in the light of sealed cover files.

Advocate Dushyant Dave contended that security clearance is not required at the time of renewal of uplinking permission under the Cable Television Networks (Regulation) Act, 1995. He added that the requirement for security clearance is merely needed when applying for a licence. He cited Arun Shourie’s case in 2014, in which the Supreme Court refused to accept sealed cover documents and in P. Chidambaram’s case of 2019, the Court held that denial of bail on the ground of sealed cover documents was unfair.

Advocate Huzefa Ahmadi averred that evasive phrases were used not to provide the specific ground for denying renewal of permission to MediaOne, by the Government through its show cause notice. Making a rational apprehension that if a court accepts the claims of the Government in the present case, any news channel whose views do not match with the ruling party, can be banned simply stating that it breaches ‘national security’ and ‘public order’, Advocate Ahmadi questioned that there would be no need to prove the same.  He also raised the issue of freedom of press contemplated in Article 19(2) of the Constitution.

Advocate Rohatgi criticised the whole procedure followed by the government to ban the channel, and called it merely a formality, devoid of the true spirit of natural justice. He argued that using the language like ‘sensitive in nature’, ‘secret in nature’, ‘matter of policy’ in the show cause notice and the subsequent order of I&B Ministry does not pass the muster of Article 19(2) of the Constitution.

Justice Chandrachud asked the Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government, “Mr. Nataraj, the only thing is that the security clearance is granted or denied by a third party. What is the remedy then for a citizen who is denied permission?” Justice Chandrachud told the Mr. Natraj, “Essence of court proceedings is that anything relied on by one party should be disclosed to the other party. You (Union Government) are not saying they are offenders. Even when you file a chargesheet, however sensitive it is, the chargesheet discloses all the material. We are not even at that threshold. Here you are on security clearance. You may redact your sources of information, but can you decline them the information on the basis of which you are arriving at this conclusion? Even in case of detention under the National Security Act, you have to give grounds of detention. Now here you merely say that MHA has denied security clearance… the party should know what is the breach of national security.”

Pointing out that the Government does not even charge MediaOne for committing an offence before revoking its licence, the SC asked the Additional Solicitor General to justify the ban on the channel which is already running since last 10 years. After seeing the sealed cover files, the SC bench has observed that some contents of the file appear to be ‘vague’.

MediaOne first got a telecasting licence from I&B Ministry in 2011 for ten years. However, in January this year, the Ministry refused to renew its licence, stating that the Union Home Ministry denied its security clearance due to ‘National Security’. When the ban was challenged in the Kerala High Court, the Union government produced documents in a sealed cover to support the ban, which were not disclosed to the channel. Relying on the sealed cover files, the single judge bench of the high court upheld the ban on February 8th 2022. Later, the Malayalam channel filed an intra-court appeal against the High Court order, but the Kerala High Court dismissed it on March 2, 2022.  Making strong remarks against the ‘sealed cover jurisprudence’, the Supreme Court delivered an interim order on March 15, 2022, staying the ban until final judgment, and allowed the channel to resume its operation. On March 15, Justice Chandrachud reacted that he was very averse to what was called the ‘sealed cover jurisprudence’. The court also expressed intention to examine the larger issue of ‘sealed cover jurisprudence’, especially in the background of bans on media houses including MediaOne. On the same day, in another case, then CJI N.V. Ramana too reprimanded a counsel, “Please do not give sealed cover reports in this court. We will not accept it.”

At this juncture, the Apex Court order will decide the future course of action for the country whether judgments can be delivered just by relying on documents in a sealed cover or freedom of press is crucial backbone of the State.

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