Supreme Court Questions Centre Over "Sealed Cover" In MediaOne Ban Case; Says Even Persons Detained Under National Security Act Are Given Reasons

On Wednesday, the Supreme Court continued hearing the plea filed by Malayalam news channel Media One against Kerala High Court's order upholding the telecast ban imposed on it by the Ministry of Information and Broadcasting. The Ministry had refused to renew the uplinking permission for Media One citing denial of security clearance by the Union Ministry of Home Affairs. After hearing the contentions raised by the Counsels representing the interest of Media One, and brief submissions of Additional Solicitor General, Mr. K.M. Nataraj, a Bench comprising Justices D.Y. Chandrachud and Hima Kohli had orally put forth some doubts and sought the ASG's assistance regarding the same. On behalf of the Bench, Justice Chandrachud pointed out that in the scheme of things the security clearance is to be granted or rejected by the Ministry of Home Affairs, which is not the regulator, but a third party. The license is to be renewed by the Ministry of Information and Broadcasting. He enquired what would be the recourse available to a citizen in the event of denial of security clearance and permission to operate. "Mr. Nataraj, the only thing is that the security clearance is granted or denied by a third party. What is the remedy then for a citizen who is denied permission?" In the present case, some documents had been handed over to the Kerala High Court by the Union Government in a sealed cover citing security measures. Though reliance was placed on these documents in reaching the conclusion and upholding the ban, the other side (Media One) did not get an opportunity to have a look at them. In regard to the act of submitting documents in sealed cover, Justice Chandrachud reckoned - "Essence of court proceedings is that anything relied on by one party should be disclosed to the other party. You (Union Government) are not saying they are offenders. Even when you file a chargesheet, however sensitive it is, the chargesheet discloses all the material. We are not even at that threshold. Here you are on security clearance. You may redact your sources of information, but can you decline them, the information on the basis of which you are arriving at this conclusion? Even in case of detention under the National Security Act, you have to give grounds of detention. Now here you merely say that MHA has denied security clearance." He added that though the concerned uplinking guidelines, indeed, contemplates that breach of national security and public order would lead to denial of permission, the Judge emphasised that, the party to whom permission is denied must understand 'what is the breach of national security.' It was further observed that the renewal of uplinking permission is a more significant event for a channel as compared to initial permission, because by the time of renewal they have already made substantial investments, made appointments, and have established their goodwill in the market. Another doubt that the Bench sought clarification to was, when the show-cause notice was initially issued in 2016 in the name of Media One Live as well as Media One, no adverse steps against Media One was indicated in the order. Moreover, while the show cause notice was pending, the Ministry of the I&B had renewed the downlinking permission for Media One. Only after a lapse of time the second show cause notice was issued. Justice Chandrachud asked the ASG to shed some light on how the events had unfolded. "You had renewed downlinking permission for Media One, you denied only to Media One Live. After a lapse of time now this (second show cause notice) comes. These are some of the doubts you (ASG) have to clear." The line of questioning adopted by the Bench was influenced by the submissions made by Senior Advocates, Mr. Dushyant Dave, Huzefa Ahmadi and Mukul Rohatgi, appearing on behalf of respective petitioners. Mr. Dave appearing for the channel primarily argued that at the time of renewal of uplinking permission there is no requirement for security clearance. He also highlighted the adverse effects of documents submitted in sealed covers and beseeched the Bench to settle the issue of the 'sealed cover business' once and for all. Mr. Ahmadi appearing on behalf of the Chief editor of Media One, Pramod Raman apprised the Bench that the Union Government had got the benefit of the argument that once State cites breach of national security and public order, then their claim is to be accepted without judicial scrutiny. "What the State said before the HC is that according to us MediaOne channel is a threat to national security and public order. I am State. My contention is there is a threat to national security and public order. If I say so I am the sole arbiter and a Constitutional Court cannot test me... you have to accept it as it is." A curious, Justice Chandrachud enquired - "Did they say so in so many words? That this is behind the ...

Supreme Court Questions Centre Over "Sealed Cover" In MediaOne Ban Case; Says Even Persons Detained Under National Security Act Are Given Reasons

Sohini Chowdhury

Tags