The telecast ban of a Malayalam channel saw the Supreme Court blast the government for silencing voices in the media who “speak truth to power” by branding them as “anti-establishment”, as well as for the state’s “unguided and ad hoc” use of sealed covers in courts to outsmart citizens’ rights to personal liberty, life and profession.
“The critical views about government policies cannot be termed anti-establishment. The use of such a terminology betrays an expectation that the Press must support the establishment… An independent Press is vital for the robust functioning of the democratic republic.
“The Press has a duty to speak truth to power and present citizens with hard facts… A homogenised view on issues that range from socio-economic polity to political ideologies will present grave dangers to democracy,” a Bench led by Chief Justice of India D.Y. Chandrachud observed in a 134-page judgment on April 5. The other judge on the Bench was Hima Kohli.
Less restrictive alternative
Though recognising the apex court’s power to “secure confidential material in a sealed cover” under Rule 7 of the Supreme Court Rules of 2013, the CJI noted that the state’s frequent reliance on sealed covers to validate its actions in courts has reduced constitutional rights and procedural guarantees of a fair hearing under the law to a “dry parchment”.
The Supreme Court then evolved the “less restrictive” public interest immunity (PII) claims proceedings as an “alternative” to the sealed cover proceedings while dealing with state requests for confidentiality.
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Amicus curiae’s role
Under the alternative PII proceedings, the court would test the relevance of the material the state desires to be kept confidential in ‘public interest’.
The court would appoint an amicus curiae in order to “balance the concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery system”. The amicus would gain access to information sought to be kept secret by the state and would represent the interests of the citizen fighting for the disclosure of the material.
Though the PII proceedings would be a “closed sitting”, a reasoned order, allowing or dismissing the PII claim of the state, should be pronounced in open court. Even if the PII claim is successful, the court could opt to redact confidential portions of the document or provide both parties with a summary of the contents of the documents. The redacted portions can be retained by the court.
“The standard of review used by the courts in PII claims proceedings and the lack of such a standard in sealed cover proceedings to protect procedural guarantees indicates that PII claim proceedings constitute a less restrictive means… While PII claims proceedings conceivably impacts the principles of natural justice, sealed cover proceedings infringe the principles of natural justice and open justice,” Chief Justice Chandrachud said.
Intelligence reports’ impact
The Chief Justice questioned the government’s view that it could investigate or collect intelligence on citizens and later claim blanket immunity from disclosure in court.
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“Intelligence agencies’ reports impact the life, liberty and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system… The reports of intelligence agencies are not merely fact-finding reports as they provide observations and inferences on the conduct of individuals which are then relied upon by the decision-making authorities. The argument that intelligence reports may contain confidential information is one thing, but to argue that all such reports are confidential is another. Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values,” Chief Justice Chandrachud observed.
Security as an excuse
The court held that the government often raised the spectre of national security in a “cavalier manner” to justify non-disclosure of evidence to the other side.
“The state is using national security as a tool to deny citizens remedies guaranteed under the law… ‘National security’ claims cannot be made out of thin air. There must be material backing such an inference,” the Chief Justice noted.
The judgment highlighted how the government later validated its January 2022 decision to revoke the security clearance and non-renewal of telecast licence to Kerala-based Madhyamam Broadcasting Limited’s (MBL) Media One channel in the State High Court by passing “confidential” documents in a sealed cover without sharing them with the media company, leaving the latter in a “maze”.
False allegations
Chief Justice Chandrachud said that the court’s own scrutiny of the government records found that the ban was based on inferences made in an Intelligence Bureau (IB) report that MBL had alleged links with Jamaat-e-Islami (JEI-H), an organisation which was last cleared of terror links in 1994 by the apex court itself, and the media house’s alleged “anti-establishment stance” for airing critical views about the Unlawful Activities Prevention Act, Armed Forces Special Powers Act, Citizenship Amendment Act, National Register of Citizens, the state’s soft attitude to Hindus involved in the destruction of Babri Masjid and the “portrayal of security forces and judiciary in bad light”.
The court said that the IB’s “inferences” were drawn from information already available in the public domain.
“There was nothing secretive to attract the ground of confidentiality... The allegation of terror links against MBL was fallacious… The denial of security clearance by the Broadcasting Ministry to Media One channel was unreasoned,” the apex court said, ordering the government to renew telecast permission to the channel within four weeks.
