By Anwarulhaq Baig
NEW DELHI—India’s position has slipped from 142nd to 150th among 180 countries in the latest World Press Freedom Index, while its tiny neighbour Nepal has climbed by 30 points, reaching 76th.
Recently, in a related matter, the Supreme Court has reserved its judgement over the ban on the Malayalam TV news channel – MediaOne.
The Union Government imposed the ban earlier this year, citing ‘national security’ reasons.
The union government submitted the documents supporting the ban argument in a ‘sealed cover’ before the Kerala High Court after MediaOne’s chief editor and the Kerala Union of Working Journalists challenged the central government’s ban order. However, the government did not disclose the content of the letter to MediaOne, which obstructed the TV channel from fighting its case in court strongly.
However, the Kerala High Court justified the government in submitting the documents in a ‘sealed cover’ and upheld the ban by not renewing its broadcast license.
But the main contention is: Can a ruling dispensation put a blanket ban on media outlets just by citing national security reasons or in the public interest, without disclosing the contents of the ‘sealed cover’ to the opposite party?
The question is essential because the matter involves freedom of the press guaranteed under Section 19 (1) (a) of the Constitution.
In a judgement on October 30, 1972, the Supreme Court 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 3, 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, Advocates Dushyant Dave, Huzefa Ahmadi, and Mukul Rohtagi, appearing for MediaOne, argued that the government should have, at least, shared a redacted copy of the ‘sealed cover’ documents with the other side so that they could defend themselves with a clear understanding. The advocates contended that the government had denied the petitioner’s right to defend themselves in the name of ‘sealed cover’ files, a breach of natural justice.
Supporting the channel’s argument, the bench observed that the Government should have given a chance to the TV channel to present its case in the light of sealed cover files.
Adv Dave, appearing for Madhyamam Broadcasting Ltd, the company that runs MediaOne, 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 security clearance is merely needed when applying for a fresh licence. Citing Arun Shourie’s case in 2014, Dave argued that the apex court had refused to accept the sealed cover documents. In P Chidambaram’s case of 2019, the Court held that denial of bail on the ground of sealed cover documents was unfair.
Appearing for MediaOne’s Chief Editor Pramod Raman, Adv Huzefa Ahmadi submitted that evasive phrases were used to not provide the specific ground for denying renewal of permission to MediaOne by the Government through its show cause notice. He argued that if a court accepts the claims of the Government in the present case, then any news channel whose views do not match with the ruling party’s can be banned simply stating that it breaches ‘national security’ and ‘public order’. Ahmadi also raised the issue of freedom of the press contemplated in Article 19(2) of the Constitution.
Appearing on behalf of the Kerala Union of Working Journalists, Adv Rohatgi criticized 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 language like ‘sensitive in nature’, ‘secret in nature’, and ‘matter of policy’ in the showcause notice and the subsequent order of the I&B Ministry does not pass the muster of Article 19(2) of the Constitution.
Justice Chandrachud asked the Additional Solicitor General 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 ASG, “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 charge sheet, however sensitive it is, the charge sheet 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 the information based on which you are arriving at this conclusion? Even in detention under the National Security Act, you have to give grounds for detention. Now here you merely say that MHA has denied security clearance…the party should know what the breach of national security is.”
Pointing out that the Government does not even charge MediaOne for committing an offence before revoking its licence, the SC asked the ASG to justify the ban on the channel, which is already running for the last ten years. After seeing the ‘sealed cover’ files, the SC bench observed that some contents appear to be ‘vague’.
The MediaOne channel first got a telecasting license from I & B Ministry in 2011 for ten years. However, in January this year, the Ministry refused to renew its license, 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 had produced documents in a sealed cover to support the ban, which was not disclosed to the channel.
Relying on the sealed cover files, the single-judge bench of the Kerala high court upheld the ban on February 8, 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 allowing the channel to resume its operations. On March 15, Justice Chandrachud observed that he opposed the ‘sealed cover jurisprudence’. The court also expressed its 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, the then Chief Justice of India, N.V. Ramana, too, reprimanded a counsel, “Please do not give sealed cover reports in this court. We will not accept it.”
Now, the apex court will decide whether judgements can be delivered just by relying on documents in a ‘sealed cover’.