15 March 2022 9:34 AM GMT
The Supreme Court on Tuesday stayed the telecast ban imposed by the Union Government on Malayalam news channel MediaOne.The Court passed the interim order in a special leave petition filed by the company running the channel assailing the Kerala High Court's judgment of upholding the decision of the Ministry of Information and Broadcasting to not renew the broadcast license of the channel.A...
The Supreme Court on Tuesday stayed the telecast ban imposed by the Union Government on Malayalam news channel MediaOne.
The Court passed the interim order in a special leave petition filed by the company running the channel assailing the Kerala High Court's judgment of upholding the decision of the Ministry of Information and Broadcasting to not renew the broadcast license of the channel.
A bench of Justices DY Chandrachud, Surya Kant and Vikram Nath passed the order after examining the files produced by the Ministry of Home Affairs raising security concerns regarding the company running the channel. The bench perused the files itself, without sharing them with the petitioner, with the consent of its counsel Senior Advocate Dushyant Dave.
The bench said that a prima facie case was made out for the grant of interim relief for the channel. The channel has been allowed to operate as it used to do before the Centre's decision.
"At the present stage, we are of the view that a case for the grant of interim relief has been made out on behalf of the petitioners having due regard to the contents of the files which have been perused by the Court.
We accordingly order and direct that pending further orders, the order of the Union government dated 31 January 2022 revoking the security clearance which was granted to the petitioner, Madhyamam Broadcasting Limited, shall remain stayed. The petitioners shall be permitted to continue operating the news and current affairs TV channel called Media One on the same basis on which the channel was being operated immediately prior to the revocation of the clearance on 31 January 2022", the Court's order stated.
The bench also clarified in the order that its perusal of the files should be understood as an approval of the sealed cover procedure.
"The issue as to whether the contents of the files should be disclosed to the petitioners in order to enable them to effectively pursue their challenge in these proceedings is expressly kept open to be resolved before the petitions are taken up for final disposal.
The files shall be produced in the Court on the next date of listing.
We clarify that perusal of the files by the Court at this stage is not an expression on the tenability of the contentions of the petitioners that they would be entitled to inspect the files. The issue is kept open to be resolved at the stage of the final disposal".
The Union has been asked to file the counter-affidavit by March 26. The bench indicated that it will go into the issue of the tenability of the sealed cover procedure.
Court room exchange
Senior Advocate Dushyant Dave, appearing for the channel, the outset mentioned that today the Chief Justice of India in another matter disapproved the practice of giving reports in sealed covers.
"Please don't give us sealed cover, we don't want it here", Dave quoted the CJI as having said. Sealed cover can't be the basis for a judgment, Dave submitted, challenging the High Court's judgment for upholding the Centre's ban by relying on the files produced by the Ministry of Home Affairs in sealed cover.
Dave submitted that the High Court accepted that the renewal of the license is automatic but then cited national security concerns. Security clearance is not necessary at the time of renewal. The channel had been functioning for over 11 years and no security concerns were raised at any point. He pointed out that the monthly wage bills of the channel comes to around 85 lakhs rupees.
"No media channel in this country will be safe if this principle is accepted. Nobody is safe", Dave urged. He relied on a judgment authored by Justice Chandrachud which imposed a cost of Rupees 20 lakhs on the West Bengal Government for enforcing a shadow ban on a film.
Additional Solicitor General SV Raju, appearing for the Central Government, sought for a short adjournment. Dave opposed the request by saying that the matter was specifically posted today for consideration of interim relief.
Justice Chandrachud told the ASG that the files should be disclosed to the channel.
"What is the difficulty in disclosing the files? You have to disclose the files to them so that they can defend themselves.They are a news channel. You are denying someone's right to run business. All that you say in the High Court is that the decision was taken on the basis of intelligence inputs which are sensitive in nature".
"The division bench says that not too many details are available from the files. This is the danger", Justice Chandrachud continued.
"Heavens are not going to fall if I am allowed to run. I am not going to overthrow the government. For 6 weeks we are shut down simply because we are run by some members of the minority community. What else it is. Not once have I violated the program code", Dave submitted.
At this stage, after observing that he is averse to the "sealed cover jurisprudence", Justice Chandrachud asked Dave if he has any objection to the Court examining the files which are produced by the Centre before it. Dave expressed no objection.
At this point, Additional Solicitor General KM Nataraj submitted that MediaOne, in its YouTube channel ran a program against the single judge. The ASG said that the channel was against the judicial institution and was liable to be held guilty for contempt of court.
Dave clarified that before the division bench he had condemned the said YouTube program and that it cannot be cited to shut the channel.
"Ultimately criticism of judgement or order is part of citizen's right", Justice Chandrachud commented while agreeing with the ASG's statement that brow-beating of the judges cannot be permitted.
After this, the judges went back into the anteroom of the Court to peruse the files produced by the Ministry of Home Affairs. On resuming the proceedings ,the bench dictated the interim order.
On January 31, a few hours after the Ministry suspended the channel's telecast citing security concerns, MediaOne had approached the Single Judge with a plea. The channel owned by Jamaat-e-Islami went off the air on the very same day.
The channel contended in the petition that the exact reasons for the Centre's non-renewal of the license have not been revealed to them and the Court approved the decision on the basis of certain sealed cover files produced by the Ministry of Home Affairs, purportedly raising some national security concerns.
The petitioner further contended that the impugned judgment was patently illegal since Clauses 9 and 10 of the uplinking and downlinking guidelines make it abundantly clear that for the purpose of renewal of license, security clearance is not a factor to be considered.
Moreover, since there was not a single complaint or any action against the petitioner in the last 10 years, it was asserted that renewal was a matter of right for the petitioner on a plain reading of Clauses 9 and 10.
Reliance was also placed on the Supreme Court judgment in Manoharlal Sharma Vs. Union of India(Pegasus case)where it was held that the scope of judicial review in matters pertaining to national security is limited, however, it does not mean that the State gets a free pass every time the spectre of national security is raised.
On February 8, a single bench of Justice N. Nagaresh held that after perusing the files from the Union Ministry of Home Affairs, it has found intelligence inputs that justify the denial of security clearance to the channel. The Ministry had produced the files before the Court in a sealed cover.
Aggrieved by this, MediaOne had approached a Division Bench with an appeal. However, the division bench agreed with the single Judge and upheld the recent ban imposed on it by the Ministry of Information and Broadcasting citing that national security was of utmost importance for the smooth functioning of a country.
Case Title: Madhyamam Broadcasting Limited v. Union of India
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