Supreme Court Stand on the Sealed Cover Jurisprudence

Context:

The Supreme Court of India recently set aside the denial of broadcasting permission to Malayalam channel MediaOne.

Relevance:

GS II- Executive & Judiciary

Dimensions of the Article:

1. Denial of security clearance to MediaOne
2. Verdict of Supreme Court
3. Aims of Limiting procedural guarantees
4. What is sealed cover jurisprudence?
5. When has it been done in the past?
6. Judicial Stand on the Sealed Cover Jurisprudence
7. Why is Sealed Cover Jurisprudence a concern?
8. Conclusion

Denial of security clearance to MediaOne:

• The Supreme Court has set aside the Centre’s decision to refuse the broadcasting license renewal of Malayalam news channel MediaOne citing reasons of National Security.
• Reasons:
  • The media channel was denied security clearance based on its alleged anti-establishment
  • It was also accused that its shareholders have links with the JamaateIslami
• The Judgement protects the media against arbitrary action and bars the use of undisclosed national security considerations as a pretext to shut down an outlet.
• The Court has struck a blow for media freedom by ruling that the government could not term critical coverage or airing of critical opinions as “antiestablishment”, and so initiate action.
• It said: “The use of such a terminology… represents an expectation that the press must support the establishment.” The denial of security clearance to a media channel on the basis of views it was entitled to hold “produces a chilling effect on free speech and particularly on press freedom”.

Verdict of Supreme Court:

• The Court has rightly found fault with the approach of the Kerala High Court, which had accepted material in a sealed cover on why the Home Ministry denied security clearance to the channel.
• The top court noted the failure of the Higt Court to explain how it felt the denial of security clearance was justified even after noting that the gravity of the issue was not discernible from the files.
• Significance of the Judgement:
  • It seeks to end the casual resort to ‘sealed cover procedure’ by courts by suggesting an alternative approach to state claims of immunity from publication in public interest.
  • As per the principle of Natural Justice, relevant material must be disclosed to the affected party, ensuring that the right to appeal can be effectively exercised.

Aims of Limiting procedural guarantees:

• The court pointed out that confidentiality and national security could be legitimate aims for the purpose of limiting procedural guarantees.
  • A blanket immunity from disclosure of all reports could not be granted.
  • The validity of the involvement of such considerations must be assessed by the use of relevant tests.
  • It held that if nondisclosure is in the interest of national security, a reasonable person would come to the same inference from it.
  • In a bid to balance the public interest in nondisclosure with the one in ensuring a fair hearing, the Court has mooted alternatives such as redacting sensitive portions and providing a gist of the material given to the affected party.
  • The Court could also appoint an impartial adviser who could be given access to the material whenever the state claims immunity from disclosure.

What is sealed cover jurisprudence? 

• It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
• While a specific law does not define the doctrine of sealed cover, the Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.
• It is stated under the said rule that if the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information, except if the Chief Justice himself orders that the opposite party be allowed to access it.
• It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.
• Other instances where information may be sought in secrecy or confidence is when its publication impedes an ongoing investigation, such as details which are part of the police’s case diary; or breaches the privacy of an individual.

When has it been done in the past? 

 Rafale fighter jet deal,

• A Bench headed by Chief Justice Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover. T
• This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

National Register of Citizens (NRC) in Assam,

• The supreme court mandated coordinator of the NRC, Prateek Hajela, was asked by the apex court to submit period reports in sealed cover, which could neither be accessed by the government nor the petitioners.

In the 2014 BCCI reforms case

• The probe committee of the cricket body had submitted its report to the Supreme Court in a sealed envelope, asking it not to make public the names of nine cricketers who were suspected of a match and spot fixing scam.

Bhima Koregaon case,

• Activists were arrested under the Unlawful Activities Prevention Act, the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Judicial Stand on the Sealed Cover Jurisprudence

• Sealed Cover Jurisprudence has come under heavy criticism from the courts themselves.
• Supreme Court has declared that Judicial Review is the Basic Feature of the Constitution and that if executive is restricting a fundamental right then it must pass the test of reasonable restrictions. This principle is the bedrock of Judicial Review.
• This has been iterated in the Minerva Mills Case and L. Chandra Kumar vs. Union of India Case.
• Legality of an action which infringes upon a fundamental right needs to be examined from the lens of proportionality. This has been adopted in the Modern Dental College Case and was reiterated in the Puttaswamy Judgment.
• However, High Courts have sidelined these principles and have relied on Digi Cable Network Case where the court declared that Principle of Natural Justice may be overlooked in the matters concerning national security.
• Supreme Court with its recent judgment in the Pegasus Case has stated that State can’t be given a free run every time the matter of National Security is raised.
• It also said that ‘National Security can’t be the bugbear that judiciary shies away from, by virtue of its mere mentioning.’
• Several cases such as the INX Media Case have prompted Supreme Court to take corrective action as High Courts have preferred the path of Sealed Cover Jurisprudence.

Why is Sealed Cover Jurisprudence a concern?

• Violates Principle of Natural Justice.
• Chilling effect on Judicial Review and its principles. Eg. Test of Proportionality and Reasonable Restrictions.
• Hampers Right to Freedom of Speech and Expression and also the Rights to Association, Occupation and Business.
• Gives blanket immunity to the state in matters of National Security without scrutiny.
• Application of previous judgments in the form of a statute.
• Curbing dissent and reactionary voices in the democracy.

Conclusion:

Hence, the Supreme Court strikes a blow for both media freedom and fair procedure