The Supreme Court bench, comprising CJI-designate, Justice D.Y.Chandrachud and Justice Hima Kohli, expressed its inability to examine the legitimacy of the reasons, without letting the petitioner have access to them.
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THE Supreme Court on Wednesday orally observed that the Malayalam news channel MediaOne TV should be given access to the reasons cited by the Union Government for denying security clearance to the channel on the ground of national security. Heading a division bench, Justice Dr. D.Y. Chandrachud remarked that the petitioner must understand what exactly the breach of national security is because of which the security clearance to the channel had been denied.
"Even in the case of detention under the National Security Act, the subjective satisfaction of authorities is allowed. But there also, some reasons are required to be given for detention. Here, you merely say that the [Union Ministry of Home Affairs] has denied the security clearance", Justice Dr. Chandrachud told Additional Solicitor General ('ASG') K.M. Natarajan.
Justice Dr. Chandrachud added: "One 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? The essence of a court proceeding is that anything relied on by one party should be disclosed to the other party."
He remarked that the Union Government may well redact the source of its information, but asked how it can decline to part with the information on the basis of which it had arrived at its conclusion.
The bench, which also has Justice Hima Kohli on it, added that "when a channel has been in existence for over ten years, it has invested in it. People have been employed. There is goodwill in the market. Thus, the threshold of security clearance must be high".
When ASG Natarajan sought to submit that some reasons were given for denying the security clearance, Justice Dr. Chandrachud shot back: "The question is not (whether) you have given some reasons. The issue is the legitimacy of those reasons".
"Can we decide the legitimacy of those reasons without giving [the petitioner] access to those reasons?", Justice Chandrachud asked Natarajan.
The bench was hearing a petition filed by MediaOne TV challenging the Kerala High Court's division bench's order upholding the Union Ministry of Home Affairs' ('MHA') ban on the channel.
On March 15, the Supreme Court stayed the MHA's order denying security clearance to the channel on grounds of national security. The court also allowed the channel to operate till further orders.
Appearing for the channel, senior advocate Dushyant Dave mounted an attack on the decision of the Union Government to deny security clearance to the channel. He termed the decision as an attack on press freedom only for a reason that the channel is run by people from minority communities.
Dave submitted that there were no allegations of violation of the Programme Code prescribed under the Cable Television Network Rules, 1994 by the channel. He argued that for the non-renewal of the licence, the violation of the code is a must. Dave made a submission that any denial of licence or renewal thereof on the basis of security clearance must find basis under the reasonable restrictions prescribed by Article 19(2) of the Constitution.
Omnibus power in the name of security clearance cannot be allowed, Dave submitted. Referring to the proceedings before the high court, Dave submitted that no counter affidavit was filed by the Union Government. 'Public order' and 'national security' were not mentioned in the statement given by the Additional Solicitor General before the high court, he told the bench.
Dave drew the attention of the Supreme Court bench to the findings of the high court's division bench which had concluded that the nature, impact, gravity and depth of the issue was not discernible from the files. Yet, it went on to uphold the ban, citing the confidential and sensitive nature of the files maintained by the MHA. Dave questioned the approach of the high court thus: "Is this a court of law? Is this an acceptable approach?".
Dave also submitted that the confidential files in a sealed cover were submitted to the high court bench behind the back of the petitioner after the hearing was concluded and judgment was reserved. He argued that the procedure adopted by the high court in relying upon the sealed cover violated the principle of natural justice and open court.
Dave relied upon the decision of the Supreme Court in Subramanian Swamy versus Arun Shourie (2014) in which the court had observed that the procedure to get information in a sealed cover was not an acceptable procedure and was inconsistent with recognised form of pleadings. He also cited the decision of the Supreme Court in P. Chidambaram versus Directorate of Enforcement (2019), in which, the court refused to go through a sealed cover, observing that "…if we peruse the materials collected by the respondent and make some observations thereon, it might cause prejudice to the appellant and the other co-accused who are not before this court when they are to pursue the appropriate relief before various forum".
Senior advocate Huzefa Ahmadi, appearing for the Editor of MediaOne, sought to distinguish among security clearance, national security and public order. He submitted that the final order passed by the Union Government does not indicate which one of the three was violated. He beseeched the court not to allow this kind of carte blanche. He warned the court that if this kind of procedure is accepted, then it would be worse than the dicta in the infamous ADM Jabalpur case of 1976.
Senior advocate Mukul Rohatgi also made submissions against the decision of the Union Government. He submitted that the entire procedure adopted by the government was faulty and amounted to empty formality to comply with natural justice. He said that the Union Ministry of Information and Broadcasting ('MI&B') was acting as a mere post-office, as it gave the notice as per the dicta of the MHA.
Rohatgi submitted that the conditions for granting licence and renewing it, are two different things. He submitted that the security clearance must be traceable under Article 19(1) of the Constitution. He said that Article 19(2) is a connotation to the security clearance. He vehemently submitted that the breach of Article 19(2) must be fulfilled to deny renewal of the licence on the ground of security clearance. He further submitted that the court must keep in mind that the right to freedom of speech and expression under Article 19(1)(a) is the most cherished fundamental right, and that this court has always strengthened it since the Romesh Thapar case of 1950.
ASG Nataraj began his submissions opposing the petitions. He submitted that as per the guidelines on the grant and renewal of licence, security clearance is applicable for fresh application as well as renewal. He submitted that those guidelines are not under challenge.
The bench will continue to hear the submission tomorrow.
On May 3 last year, the petitioner had submitted an application seeking renewal of permission of their TV Channel licence for a further period of ten years. The application was forwarded to the MHA by the MI&B on November 29 last year. However, on December 29 last year, the MHA denied security clearance to the company relating to the proposal, that is, the renewal of uplinking and downlinking permission for a further period of ten years with respect to MediaOne.
Following this, the MI&B issued a show-cause notice on January 1 to the petitioner asking as to why permission seeking renewal should not be denied. In response, the petitioner on January 19 stated that they were unaware of the grounds of denial of renewal of security clearance since the same was not communicated to them, and that they were never granted an opportunity of being heard while denying the clearance.
Eventually, the proceedings arising from show-cause notice resulted in the order passed by the MI&B on January 31 revoking the permission granted to the petitioner company to uplink and downlink a news and current affairs TV Channel.
The company argued before the high court that it had never been given reasons as to how it violated national security, and was therefore denied clearance, in violation of the principles of natural justice. Besides, it was contended by the petitioner that the action of the government violated press freedom.