SCO Daily: Can the Government Ban A News Channel Citing ‘Security Concerns’ Without Disclosing What They Are?

Transcript.

Over the last two days, Justices Chandrachud and Hima Kohli heard an interesting case concerning the freedom of press and the contentious government practise of submitting documents in a ‘sealed cover’. 

Kerala-based MediaOneTV is a Malayalam news channel backed by the Jamat-e-Islami-Hind. In January 2022, the Information and Broadcasting Ministry refused to renew MediaOne’s broadcasting licence, effectively banning its operations. The I&B Ministry flagged that the Ministry of Home Affairs found national security issues in MediaOne’s programming. What formed these concerns? The I&B did not clarify in its notice to MediaOne. 

MediaOne first went to the Kerala High Court challenging this ban. They argued that the government must give them reasons for the ban, which  interfered with their freedom of speech. The Ministry submitted some documents in a sealed cover explaining why MediaOne’s security clearance was denied. No one other than the Judges, not even MediaOne, can see what is  inside the sealed cover. Based on these documents, the High Court upheld the ban. 

Challenging the High Court decision and defended by a battery of Senior Advocates, MediaOne reached the Supreme Court on appeal. Senior Advocate Dushyant Dave argued against the practice of submitting sealed cover evidence. He said that the practice had become rampant in the last 7-8 years, and created an unfortunate bias in the minds of Judges, which the opposing party could not defend. Justice Chandrachud noted that forcing a party to argue their defence without access to the evidence against them is akin to  tying their hands behind their back. Mr. Dave implored the Court to lay down conclusive law on whether sealed covers can be used at all, stating that sealed cover practices are frowned upon in other countries as well. 

Mr. Dave and Senior Advocate Mukul Rohatgi pushed another angle in this case as well. MediaOne enjoys the right to press freedom. This licensing ban violates their right to free speech, which may be restricted only in the interest of public order. In this case, the public order ramifications of MediaOne’s operations was unclear. 

Mr. Dave then argued that the Ministry of Home Affairs does not have the power to grant or deny security clearance. Stating that the channel holds a good reputation in Kerala and the Gulf, Mr. Dave argued that the lack of security clearance can not be a ground not to renew the licence if the channel otherwise has complied with the Cable TV Act and the Rules.

Senior Advocate Mukul Rohatgi,  appearing for the Kerala Union of Working Journalists, argued that the Ministry of Information and Broadcasting acted as a post office for the Ministry of Home Affairs by simply conveying the denial of renewal. The MIB is failing in its duty to independently apply its mind to the issue. 

The Bench  asked  ASG KM Nataraj, representing the Union,  if the Centre should have communicated the reasons for denying security clearance to the channel.  Mr. Natraj replied that certain details concerning national security were sensitive and  could not be shared with the channel management. 

Cant the government redact details to protect the source of information, the Bench fired back? Can you deny the channel the incrimination information itself?

Mr. Nataraj then argued that Judges have limited power to scrutinise national security clearances. The other party also does not have a right to see this evidence, as this may endanger national security. Regardless, Mr. Nataraj presented the entire file against MediaOne to the Bench, imploring the Court to decide if this information can be disclosed to MediaOne while still protecting national security. 

The Bench reserved Judgment in the case today. Their decision will shape the future use of sealed covers in Courts across India.