Chilling effect: Supreme Court lifts ban on MediaOne news channel

Criticises sealed cover proceedings, says views critical of govt can't be termed anti-establishment

The Supreme Court on Wednesday set aside the Centre’s ban on Malayalam news channel MediaOne and observed that sealed cover proceedings go against the principles of natural justice and “restrict the right to fair and reasonable hearing”.

The matter pertains to the Centre’s January 31 directive revoking the licence of the news channel and banning its telecast on security grounds. This was upheld by the Kerala High Court, but was stayed by the top court on March 15 in an interim order.

The Bench of Chief Justice DY Chandrachud and Justice Hima Kohli took issue with the use of sealed covers. The central government had submitted the reasons for the ban on MediaOne to the Kerala High Court in a sealed cover, which the news channel was not aware of.

 

The Bench said the onus was on the state to prove that sealed covers were necessary because national security was threatened. It said: “The sealed cover procedure followed by the single judge and the division Bench have necessarily rendered the appellant’s right to writ remedies, which has been described as the ‘heart and soul’ of the Constitution and a basic feature of the constitution, a dry parchment.”

It added that the freedom of the press, protected under Article 19(1)(a) of the Constitution, had been effectively trumped without providing MediaOne a reasonable avenue to challenge the decision. “This infringes upon the core of a right to fair hearing.” It said the appellant had proved that the disclosure of reasons was necessary to have a reasonable hearing.

The Court said sealed cover proceedings could not be adopted to avoid public immunity proceedings. “It was not intended that the sealed cover procedure shall replace public interest immunity proceedings, which constitute an established method for dealing with claims of confidentiality.”

In the order, authored by CJI Chandrachud, the Bench said an independent press was vital for a democratic republic as it shines a light on the functioning of the state. The Bench said the press had a duty to speak truth to power, and present citizens with hard facts that enable them to make choices.

“The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy,” the order read.

Regarding MediaOne, the Bench said its critical views on the government could not be termed “anti-establishment”. “The use of such a terminology in itself represents an expectation that the press must support the establishment,” the Bench said in the 134-page order.

It said the denial of security clearance to the channel for airing views that it was constitutionally entitled to hold “produces a chilling effect on free speech, and in particular on press freedom”.

The court also devised guidelines for cases where the non-disclosure of information was justifiable on national security grounds. In such cases, the courts can appoint an amicus curiae to consider the state’s claims of immunity.

The amicus curiae shall be given access to the materials sought to be withheld and will be allowed to interact with the applicant and their counsel before the proceedings to ascertain the case to enable them to make effective submissions on the necessity of disclosure.

However, the amicus curiae shall not interact with the applicant or their counsel after the immunity proceeding has begun.

Bench view
 

The use of such a terminology (anti-establishment) in itself represents an expectation that the press must support the establishment
 
A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy
 
The action of... denying a security clearance...on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom
 
The sealed-cover procedure cannot be introduced to cover harms that could not have been remedied by public interest immunity proceedings

14 parties’ plea on ‘misuse’ of probe agencies junked 

The Supreme Court on Wednesday refused to entertain a plea by 14 political parties led by the Congress alleging arbitrary use of central probe agencies against opposition leaders, asserting that laying down guidelines without facts of a criminal case will be “dangerous”. A bench led by CJI D Y Chandrachud said courts are always there for taking up the grievances of political leaders as they do for common citizens. 

“Political leaders do not enjoy an immunity higher than the common citizens...once we accept that political leaders are absolutely on same footing as common citizens with no higher immunity, then how can we say there can be no arrests unless there is a three pronged test which is satisfied,” it said. Sensing its disinclination, senior advocate A M Sighvi, appearing for the political parties, sought permission to withdraw 

the petition which was granted.

- PTI