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The Sealed Cover Jurisprudence

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March 08, 2022

Why in news?

As the MediaOne case shows, a judiciary that is a mute spectator to any executive action highlights democratic decay.

What is the case about?

  • The Information and Broadcasting Ministry (I&B) informed Media One news channel that its broadcast licence had been cancelled, citing a Home Ministry order that had denied security clearance to the channel.
  • The writ petition was filed by the company running the channel.
  • The Kerala High Court granted a stay allowing the channel to continue functioning and reserved its order.

To know about the Media One Case, click here

What is the High Court’s order in the case?

  • The court seems to have endorsed the Government’s stand that it was a national security issue and, therefore, there was no need to observe the principles of natural justice.
  • The court chose to accept the submission of documents by the government in a sealed cover and agree with the authorities that there were intelligence inputs that warranted the denial of security clearance.
  • A Division Bench of the Kerala High Court has also dismissed the appeal filed by MediaOne.
  • The High Court reiterated what the top court said in Digi Cable case: “In a situation of national security, a party cannot insist for the strict observance of the principles of natural justice”.

What are the implications of cancelling the license?

  • The move hits the fundamental rights (Art 19 (1)) conferred by the Constitution.
    • The right to freedom of speech and expression of the television channel.
    • The rights to association, occupation and business are
    • The right of the viewers to receive ideas and information
  • Article 19(1) can be interfered with are reasonable restrictions under Article 19(2) such as public order, national security, etc.
  • The trouble arising from the MediaOne judgment is that the state need not even show that its security is threatened and chose the ‘sealed cover’ route.
  • The current case will have an impact on any kind of dissent against a powerful regime, including political movements and academic criticism.

Why is the jurisprudence of ‘sealed cover’ an appalling trend?

  • Checks and balances- India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
  • The process of judicial review holds the executive accountable for its actions.
  • The Supreme Court of India has repeatedly held that judicial review of executive action is the basic feature of the Constitution in Minerva Mills vs Union of India (1980) and L. Chandra Kumar vs Union of India (1997)
  • If the executive wishes to limit rights, it must show that the test of reasonable restrictions is satisfied.
  • Impact of sealed cover practice- The sealed cover practice inverses this position of checks and balances.
  • The moment the executive utters ‘national security’, courts often permit them to inform the justification in a sealed cover.
  • These reasons are not disclosed to the party whose rights are clearly at stake.
  • The judgment creates a situation that endorses the breach of fundamental rights on the one hand, and blocks remedy for the victim through a court of law on the other hand.
  • The Kerala verdict revives the ghost of ADM Jabalpur case (1976) which stated that fundamental rights could be suspended during the Emergency, with no scope for assessment by the court.
  • At the High Court, national security came to mean absolute impunity for the Centre.
  • The judgment has the potential to mark the beginning of the end of a free press in a working democracy.

What resolution is needed?

  • Proportionality - When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality.
  • In Modern Dental College vs State of Madhya Pradesh (2016), the top court adopted the proportionality test where a limitation of a constitutional right will be constitutionally permissible if
    • It is designated for a proper purpose
    • The measures undertaken to enforce such a limitation are rationally connected to the fulfillment of that purpose
    • The measures undertaken are necessary in that there are no alternative measures that may achieve that same purpose with a lesser degree of limitation
    • There needs to be a proper relation (balancing) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right
  • This was reiterated in K.S. Puttaswamy vs Union of India (2017).
  • A three-judge Bench in the Pegasus case ( Manohar Lal Sharma vs Union of India , 2021) has held that the state does not get a free pass every time the spectre of ‘national security’ is raised.

 

Reference

  1. https://www.thehindu.com/todays-paper/tp-opinion/sealed-cover-jurisprudence-is-appalling/article65202897.ece

 

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