The Supreme Court verdict setting aside the denial of broadcasting permission to Malayalam channel MediaOne is one that 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 “anti-establishment”, 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”. The Bench also cited substantive grounds to allow MediaOne’s petitions: that security clearance cannot be denied based on its alleged anti-establishment stance or a bald claim that its shareholders have links with the Jamaat-e-Islami. 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. It expressed surprise that the High Court did not 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.
A significant aspect of the judgment is that 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. Drawing upon both Indian and foreign jurisprudence, the Bench has said it is now an established principle of natural justice that relevant material must be disclosed to the affected party, ensuring that the right to appeal can be effectively exercised. It acknowledges that confidentiality and national security could be “legitimate aims for the purpose of limiting procedural guarantees”. However, a blanket immunity from disclosure of all reports could not be granted and that the validity of the involvement of such considerations must be assessed by the use of relevant tests. It could be ascertained if there is proof that non-disclosure is in the interest of national security and whether a reasonable person would come to the same inference from it. In a bid to balance the public interest in non-disclosure 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 amicus curiae, who could be given access to the material whenever the state claims immunity from disclosure.