By upholding ban on Media One, on basis of material in sealed envelope, Kerala HC has gone against Supreme Court verdicts

The reasoning in the 18-page verdict appears to be a dialogue between the state and the judiciary in secrecy even as a petitioner stood before the court alleging violation of fundamental rights. “Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party,” the verdict states, justifying perusal of the ministry files in a secret envelope. While it is worrying that the government flatly refuses to justify its actions before the court, it is even more disquieting when the judiciary does not ask questions of the executive. The few reasons to justify the denial of security clearance without giving the channel an opportunity to be heard are vague and do not give any indication about the communication between the judiciary and the executive. The court seems to have gone by the “conclusions of the Committee of Officers and other responsible officers of the MHA” to rule that “Information and Broadcasting is a sensitive sector”. However, the idea that the judiciary and state can exclude the citizens from democratic spaces, when their rights are at stake, goes against the fundamental precepts of the rule of law.

In a recent string of verdicts, the Supreme Court has insisted that the government follow the raised bar in bringing evidence to the Court while invoking the national security argument. In the 2020 decision in Anuradha Bhasin v Union of India, the SC held that no absolute immunity for national security grounds has been carved out. In the 2021 interim order, directing an investigation into the alleged use of Pegasus spyware on citizens, the Supreme Court said that the “mere invocation of national security won’t render the Court a mute spectator”. Ignoring such precedents, the Kerala High Court has held that “that in a situation of national security, a party cannot insist for strict observance of the principles of natural justice”. Indeed, a substantive examination of issues when national security is involved is often beyond judicial competence and is the domain of the executive. But a procedural test, checking whether the action was taken under powers granted by Parliament and whether the state has used its powers proportional to the risk envisaged, is very much within the ambit of the Constitution. Constitutional courts, as the watchful guardians of the fundamental rights, must ask questions of the state, especially in cases of national security.

This editorial first appeared in the print edition on February 10, 22 under the title ‘Dialogue in secrecy’.