How Supreme Court struck down a ‘sealed cover’ ban on a Malayalam news channel

On Wednesday, the Supreme Court reversed the Centre’s decision not to renew Malayalam news channel MediaOne TV’s broadcasting licence. It said that the Centre raised national security concerns to deny the licence in a “cavalier manner” and that these concerns had not been proved.

This lifts the ban imposed on the channel in January last year when the Union Ministry of Information and Broadcasting refused to renew the channel’s broadcasting licence. The move was later upheld by two benches of the Kerala High Court.

The court also criticised the Centre for resorting to sealed covers in this case, arguing that it prevented MediaOne from accessing the reasons for which its application was rejected.

The case

In May 2021, MediaOne TV applied to renew its 10-year broadcasting licence that was expiring in September 2021. However, the application was rejected after the Union Ministry of Home Affairs did not give it the security clearance required for the renewal. Subsequently, the Ministry of Information and Broadcasting sent a show-cause notice to the channel asking to explain why its permission to broadcast should not be revoked.

However, MediaOne TV replied that the show-cause does not disclose any reasons for why the security clearance was denied and it should be given a chance to receive a fair hearing. It also contended that it had not engaged in any activity to warrant the denial. Then, in January, the Union Information and Broadcasting Ministry informed the channel that its licence would not be renewed.

The channel approached the Kerala High Court. The channel argued that its licence should have been renewed automatically. Further, since the documents relating to the refusal were submitted in a sealed cover, this went against the principles of natural justice and prevented the company from enjoying the right to a fair hearing. However, the government argued that it was right to deny MediaOne the security clearance and that in cases involving national security, natural justice could be set aside as a legal principle.

In February, the court, after accepting documents from the Union government in a sealed cover, held that the Centre’s decision was justified. It only said inputs received from intelligence agencies raised national security concerns and in these situations, natural justice could be restricted.

MediaOne appealed this before a division bench of the High Court, which upheld the previous decision. It said that despite the “nature, impact, gravity and depth of the issue” not being apparent from the files, there were “clear and significant indications” that the case impacted national security and public order.

However, in both these judgements, the court did not disclose the Centre’s reasons for denying clearance to the channel.

Reasons for banning

When this order was challenged before the Supreme Court, it put an interim stay on the ban in March, allowing the channel to restart broadcast.

In its judgement on Wednesday, the apex court said that the High Court decided the issue “without any application of mind”. It noted that the home ministry relied on Intelligence Bureau reports to conclude that the channel had close links to Jamaat-e-Islami Hind, an organisation formed “with the objective of securing the rule of Allah” and played a crucial role in “channelising foreign funds to Islamic institutions”. Further, the channel had an “anti-establishment stance” since it portrayed “security forces and judiciary in a bad light” and “highlighted discrimination faced by the minorities”, among other critical coverage.

However, the court noted that these reasons did not justify the ban. The bench said that the Intelligence Bureau had only submitted a list of MediaOne TV’s shareholders, but not demonstrated how they were linked to Jamaat-e-Islami Hind. Further, it said that Jamaat-e-Islami Hind was not a banned organisation and there was no material to show that an association with it could threaten India’s security.

It added that coverage that was critical of the government could not be termed “anti-establishment”. It noted that it was the duty of the press to question the government and that criticism of the government was not grounds to restrict the channel’s freedom of speech guaranteed by the Constitution.

Sealed cover

The court also analysed the use of sealed covers in this case. It noted that the channel had no access to material on why its renewal application had been rejected. The Centre did not “disclose even the summary of the reasoning denying security clearance”, which was the basic safeguard in this case, the court noted. It added that the disclosure of this information was necessary to have a reasonable hearing.

In this case, the court said, the government failed to show how disclosing this information affected national security. The court said information can only be kept confidential in such cases if there is material to show why it must not be disclosed for national security and that a reasonable person would also arrive at the same conclusion.

It also laid down standards for how these sealed cover claims have to be assessed. The court said that the party wanting to submit a sealed cover must have a legitimate goal and that sealed covers should be a “suitable means for furthering this goal”. Further, there should be no alternate methods that restricts fewer rights and that the measure must not have a disproportionate impact on the rights of the other party.

The issue of sealed covers has come under the spotlight recently since in several sensitive cases, such as the petitions challenging the Rafale deal on grounds of corruption and the sexual harassment allegations against former Chief Justice of India Ranjan Gogoi, parties submitted information in a sealed cover on the grounds that the information cannot be disclosed to the public. Several commentators have also criticised the court’s proclivity for accepting information in sealed covers since this goes against the ideals of accountability and transparency.

Public interest immunity

The court also discussed various methods a party could choose to use if it did not want to disclose information to the other party. It said that if there are less restrictive methods than sealed covers, they should be used. One such method is the “public interest immunity” claim where the government can remove any material from proceedings on the grounds that it hurts public interest. In these cases, neither the court nor the parties can rely on those documents during the hearings. This is in contrast to sealed covers where the confidential material is relied on during hearings, but one party does not have access to them.

The public interest immunity case is then taken up separately in “a closed setting” where a “special advocate” is appointed to “represent the interests of the affected party”. The court said that an amicus curiae – an impartial advocate who would assist the court – will be appointed in such cases. They can interact with the affected party and understand their case before the public interest immunity proceedings begin. However, they cannot disclose the material to anyone, including the affected party.

Following this, the court could pass a reasoned order where it will note if any information cannot be relied on due to the public interest immunity proceedings. If required, the court might have to redact confidential information.

Also read:

Explainer: How the Centre exercises stringent control over Indian television news channels

Explainer: Why Kerala High Court verdict upholding ban on a news channel hurts press freedom