Source: Google

Supreme Court raps High Court over ‘sealed cover’

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The Supreme Court has said freedom of the press has been “effectively trumped” by the I&B ministry denying security clearance to Madhyamam Broadcasting Limited, and faulted the single judge and the division bench of Kerala High Court for accepting the “sealed cover” report submitted by the Centre “without any application of mind”.

“On the facts of the case, MIB (ministry of information and broadcasting) has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of a right to fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing,” the bench of Chief Justice D.Y. Chandrachud and Justice Hima Kohli observed.

“In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any inferences from the material before the adjudicating authority,” Justice Chandrachud said.

The top court said this form of adjudication “perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge. The affected party would be unable to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations”.

National security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted but the mere involvement of issues concerning national security would not preclude the state’s duty to act fairly, it said.

Kerala High Court had failed to apply its mind and merely accepted the sealed cover report, the bench said.

“The procedure that was followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark. The non-disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of the natural justice — the right to a fair and reasonable proceeding,” Justice Chandrachud observed.

The bench latter also added: “The MHA has made a general claim that all reports of the investigative agencies are confidential. We are unable to accept such an argument”.

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