‘Sealed cover’ jurisprudence is appalling

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A division bench of the Kerala High Court MediaOne’s appeal dismissedA television channel in Kerala whose license has refused to be renewed by the Ministry of Information and Broadcasting. The ministry had said that the license could not be renewed due to reasons related to national security. Both single and division benches of the High Court supported the government’s stand. In this context, the decisions set a dangerous precedent for free speech rights and procedural justice.

suspended rights

A whole set of rights is directly affected by the restriction. The first is obvious: the right to freedom of speech and expression of the television channel. Rights of association, business and profession are also affected. In addition, the audience also has the right to receive views and information. All these powers have been completely suspended by the executive. The only contingency in which these rights can be interfered with under Article 19(1) are reasonable restrictions under Article 19(2).

Among other things like public order, abetment to offence, it lists ‘security of the state’ as a ground. However, the trouble posed by MediaOne’s decision is that the state is not even required to show that its security is at risk. It can easily choose the ‘sealed cover’ route.

The jurisprudence of ‘sealed cover’ is a sinister trend. The process of judicial review is important as it holds the executive accountable. The executive must respond strongly to its actions – especially when fundamental rights such as free speech are curtailed. The Constitution of India does not permit the executive to pass arbitrary orders infringing such rights. The Supreme Court of India has repeatedly held that judicial review of executive action is a fundamental feature of the Constitution. decision in Minerva Mills Vs Union Of India (1980) and L Chandra Kumar Vs Union Of India (1997) reiterated this fundamental principle. If the executive wants to limit rights—in this case, censor or restrict speech—it must show that the test of reasonable restrictions is satisfied. This principle is the basis of judicial review.

The ‘Sealed Cover’ exercise reverses this situation. The moment the executive speaks of ‘national security’, courts often allow them to notify justification in a ‘sealed envelope’. These ‘reasons’ are not disclosed to the party whose rights are clearly at stake. The court satisfies itself with the defense of the state and dismisses the petition. MediaOne, the channel that has been censored, is completely in the dark about the reasons for the ban. It was never heard and no version of it has been traced.

approved yet blocked

The judgment creates a position which favors the violation of fundamental rights on the one hand, and on the other hand prevents remedy for the aggrieved through a process known to the law. This is a simulation of the period in the judgment ADM Jabalpur (1976). The majority held in this case that fundamental rights can be suspended during emergency, leaving no scope for evaluation by the court. Unfortunately, Kerala’s decision has revived the ghost of ADM Jabalpur,

Consider what the verdicts say. The single judge said: “From the files produced before the court, it is clear that the committee of officers took note of the inputs given by the intelligence agencies…” which are “serious in nature”. These inputs remain unknown. The Division Bench in its March 2 judgment said: “It is true that the nature, impact, gravity and depth of the issue is not clear from the files.” Nevertheless, the Bench opted to dismiss the appeals observing that there are “clear and significant indications affecting public order and the security of the State”. Only these ‘signs’ are necessary for a news broadcaster to be banned – which are never revealed to the broadcaster!

There has been no recent trend in judicial review as a ‘sealed envelope’ contrary to the principles of natural justice. In the High Court, national security meant complete impunity for the Centre. The Central Government virtually wanted the Constitutional Court to abstain from its primary function of reviewing the legality of executive action, and the Court did exactly that. The decision, which accepted the motion, has the potential to mark the beginning of the end of a free press in a functioning democracy.

When an action is alleged to undermine 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 apex court adopted the proportionality test proposed by Aharon Barak, former Chief Justice of the Supreme Court of Israel, “A limitation of a constitutional right shall be constitutionally permissible if: (i) it is designated for a reasonable purpose.” is; (ii) the measures taken to enforce such limit are reasonably connected with the fulfillment of that objective; (iii) the measures taken are necessary such that there are no alternative measures which would equally reduce the same objective. can be achieved with limits; and finally (iv) there needs to be a proper relationship (‘proportional strictly sensu’ or ‘equilibrium’) between the importance of achieving the proper objective and the social importance of restraining limits on the constitutional right was repeated in KS Puttaswamy vs Union of India (2017). But this entire process of proportionality analysis has been sidelined by the High Court.

for the resolution of the apex court

Nevertheless, the MediaOne case could create a real problem area that needs to be addressed by the Supreme Court. High Court relied on the Supreme Court’s decision Digi Cable Network vs Union of India (2019). In digi cableThe Court reiterated the principle in an earlier ruling called Ex-Armymens Protection Services Pvt Ltd (2014). High Court reiterated what the top court said digi cable: “In a situation of national security, no party can insist for strict adherence to the principles of natural justice”.

There are two issues here. First, there was no investigation of a national security petition based on the proportionality analysis well established in our recent jurisprudence. Second, when a three-judge bench in the Pegasus case ( Manohar Lal Sharma Vs Union Of India2021) has explicitly stated that the state “does not get a free pass every time a threat to ‘national security’ arises” and that “national security cannot be the bug bear that the judiciary causes only on the grounds of mentioning it”. But it fades away.” In view of this latter law laid down by a larger Bench, the High Court could not mechanically resort to the earlier approach. digi cable, Therefore, the principle, if any digi cable And ex-servicemen, arguably implicitly rejected in Pegasus’ judgment. No court can read and apply a previous judgment as if it were a statute. But this is what the Kerala High Court relied on Digi Cable.

a decline

Today we have a state which has been successful in suppressing the voice of the opponents illegally and secretly. The current case would affect any dissent against an aggressive regime, including political agitation and academic criticism. A court that sits as a mute spectator to any executive action is a crude manifestation of democratic decay.

Justice Jackson of the US Supreme Court famously said: “Those who begin to forcibly eliminate dissent will soon end up dissenters themselves. Only by the obligatory unification of opinion achieves the unanimity of the graveyard”( West Virginia State Board of Education v. Barnett et. Ali, 1943). Constitutional courts are expected to eliminate such possibilities rather than eliminate them.

Kaleeswaram Raj and Tulsi K. Raj is a lawyer in the Supreme Court of India. Views expressed are personal