Sealed cover affidavits create bias; MHA clearance not required to renew license: MediaOne to SC

The counsel for Malayalam news channel 'MediaOne' told a bench of Justices D Y Chandrachud and Hima Kohli that affidavits in sealed cover were being filed behind the back of other parties even after the arguments in a case were over.

New Delhi: The Supreme Court was urged on Tuesday to consider laying down a law on the practice of governments submitting affidavits in sealed cover as it results in creating bias in the mind of a judge and deprives the opposite party of the chance to defend itself.

The counsel for Malayalam news channel 'MediaOne' told a bench of Justices D Y Chandrachud and Hima Kohli that affidavits in sealed cover were being filed behind the back of other parties even after the arguments in a case were over. The top court was also told that security clearance from the Centre is not needed for the renewal of broadcast license.

The bench was hearing the news channel's plea against the Kerala High Court order upholding the Centre's decision to ban its telecast on security grounds. Senior advocate Dushyant Dave, appearing for the channel, said, "This court has to consider laying a law on the practice of sealed cover affidavits adopted by the government. These affidavits in the name of national security are filed behind the back of opposite parties depriving them of defending themselves. This also creates a bias in the minds of judges."

He said that in courts of Western countries when this kind of material which deals with sensitive material like of national security comes before the court, it appoints a neutral person to look into it and assist the court. "This court can also consider a similar practice to be adopted. This sealed cover practice is a very serious problem and goes against the jurisprudence of law. When a judge sees the sealed cover with national security written on it, he becomes cautious. National security is often being used in the courts across the country and this is happening repeatedly," Dave said.

He said that he will be referring to some judgments of the Western countries on the issue of sealed cover and national security. Justice Chandrachud also recalled a recent decision of the court in which an Armed Force Tribunal while dealing with a case related to the Permanent Commission in the Navy had relied on a sealed cover report, while the other side did not get an opportunity to respond to that content.

"Ultimately, we have set aside the order of the Armed Force Tribunal," Justice Chandrachud said, adding that it was a service matter and even then the material was given in a sealed cover. Dave said that in this case of the channel, a sealed cover report was given to the judge of the Kerala High Court, and based on it, the findings were given.

The apex court was told that security clearance from the Centre is not needed for the renewal of broadcast license and the government does not have omnibus discretion to impose any new condition. The top court had on March 15 in its interim order stayed until further directions the January 31 directive of the Centre revoking license of the news channel and banning its telecast on security grounds.

Advocate Dave said the "freedom of the press" is at the centre of the entire controversy and that the Cable Television Networks (Regulation) Act, 1995 does not contemplate any requirement of security clearance from the Ministry of Home Affairs (MHA) for the renewal of broadcast license.

He submitted, "The Act itself provides certain conditions which need to be fulfilled like the interest of the sovereignty and integrity of India, security of the State, friendly relations with the foreign state, public order, decency and morality, contempt of court and incitement of offense. There is not a single instance pointed out when we violated the programme code."

He added that if any of these conditions mentioned in the Act is not fulfilled, then the channel is not eligible for registration and renewal of license but the government cannot put any new conditions at the drop of its hat. Dave said that the Act provides that renewal will be considered after a period of 10 years subject to the condition that the channel should not have been found violating programme code on five occasions and in this case, there was not a single instance when there was any violation.

The bench said the arguments that for renewal of license security clearance is not needed and it is only at the initial stage may be a little far-fetched. "Renewal is also like grant of license at the initial level which gives you up-linking rights for a fresh period of 10 years," the bench observed.

Dave, however, said that there are additional safeguards provided in the law itself and if the channel violates any of those conditions, then its licence could be suspended. "The renewal position has general terms and conditions which do not say anything about the need for security clearances. Several safeguards are provided under the law if there is any violation," he said, adding that the government does not have omnibus discretion in imposing any new condition.

Dave referred to the incident of the Tablighi Jamaat congregation at Nizamuddin here in 2020 and said that the gathering takes place every year but several news channels dubbed the members as those responsible for the spread of COVID-19 and people from all over the country were arrested.

"These people, who came from several parts of the world, had to spend two years in custody for no fault of theirs. Ultimately, it was the Nagpur bench of Bombay High Court which said that this needs to be stopped and ordered their release," Dave said, adding that people believe news channels but this kind of narrative causes problems. The hearing remains incomplete and will resume on Wednesday.