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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 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 it of defending itself. 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 have a 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 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 hearing remains incomplete and will resume on Wednesday.

On March 15, the top court had stayed until further orders the January 31 directive of the Centre revoking licence of the news channel and banning its telecast on security grounds.

It had said the news and current affairs channel would continue its operations as it was operating prior to the ban of telecast.

The top court had passed the order after perusing the files filed by the Centre on the basis of which security clearance was revoked and the Kerala High Court had passed the order upholding the ban on telecast.

It had left the question open on whether the content of files on the basis of which the ban order was passed be given to the channel to enable it to defend itself.

The Kerala High Court had upheld the Centre’s decision to bar telecast of the Malayalam news channel and dismissed the plea of Madhyamam Broadcasting Ltd — which operates MediaOne — challenging the central government’s January 31 decision.

The high court had said that the decision of the Ministry of Home Affairs (MHA) to deny security clearance was based on intelligence inputs received from various agencies.

The channel had contended that the MHA clearance was only required at the time for fresh permission/licence and not at the time of renewal.

It had also contended that according to the uplinking and downlinking guidelines, security clearance was only required at the time of application for fresh permission and not at the time of renewal of licence. PTI MNL SMN

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