Media One case: Didn’t govt have to tell channel why security nod denied, asks SC

The Union government had refused to renew the uplinking permission for the Jamaat-e-Islami-owned channel citing national security in January.

On Wednesday, Justice D Y Chandrachud, presiding over a two-judge bench, said: “You are not saying they have committed a crime under the law. Even when a crime is conducted under the law and a chargesheet is filed after investigation, the essence of the investigation is disclosed in the chargesheet. However sensitive your investigation is… once you complete the investigation and file a chargesheet, the chargesheet discloses the material on the basis of which you register an offence. We are not even at that threshold. Here you are denying a security clearance.”

Additional Solicitor General K M Nataraj submitted that the details were sensitive and could not be shared with the channel management. “On security matters, it cannot be shared with other parties,” he submitted.

The court said the government can redact the details to protect the sources of the information and asked if the information itself can be denied.

“For instance you may say one of two of your directors have nefarious links, that ownership is not in the hands of people who are not citizens of India, but citizens of a hostile country etc. You may redact your sources of information, because the Ministry of Home Affairs may have sources of information it has to protect but can you deny the information on the basis of which you are arriving at this conclusion?” the judge asked.

The bench, also comprising Justice Hima Kohli, was hearing a plea by the channel against the Kerala High Court order upholding the government decision not to renew the licence.

The channel contended that the High Court, in arriving at its decision, relied on some files produced by the government in a sealed cover, and that it was not given access to this.

Nataraj urged the top court bench to look into the material in sealed cover, but the court said: “The question is whether we can do this ex-parte seeing without them? The very essence of court proceedings is any material that is relied on by one party is disclosed to the other party.”

“Look at how our law has progressed. Even in the case of a detention under the National Security Act, where a subjective satisfaction is given to the authority, to detain a person on the ground that his conduct breaches national security, you have to indicate what the grounds are. Here your order only says the MHA has denied security clearance….They must understand what is the breach of national security. You can protect your sources of information. But what is that information, you have to necessarily disclose,” said Justice Chandrachud.

The bench added that it was only voicing its doubts and the ASG could look into them and reply when he continues his arguments Thursday.

He added, “suppose they are engaged in international hawala transactions, you have to say that it has come to your knowledge that they are engaged in international hawala transactions. You can’t merely say that security clearance has been denied to you”.

The court added that the instant case being one of renewal of licence and not grant of licence, the threshold has to be higher.

“And this is a case of renewal. Renewal is very significant because by the time a channel comes up for renewal of permission, they have some investment, they have been in operation for 10 years, they have employees, there is some goodwill in the market which is carried on, they have a certain degree of reputation”.

The bench added that it was only voicing its doubts and the ASG could look into them and reply when he continues his arguments Thursday.

Appearing for the channel, Senior Advocate Dushyant Dave said relying on documents which are not shown to the other side will set “dangerous precedent”.

He contended that the fundamental right to freedom of speech and expression, which includes the press freedom, can be restricted only on the grounds enumerated under Article 19(2) and added that there is no allegation that the channel violated the Program Code.

“My only crime appears to be that this channel is owned by members belonging to a minority community”, Dave said, adding the channel is “widely respected” and that “everybody participates in our news programs, across party lines, across civil society”.

Dave targeted the Home Ministry saying “with one word from the Home Ministry anybody can be condemned…”.

Senior Advocate Mukul Rohatgi appearing for the Kerala Union of Working Journalists also trained his guns on the Home Ministry. He said the procedure adopted by the government was faulty and added that the Ministry of Information and Broadcasting only acted as a post office.

“They gave me a notice based on the diktat of the MHA. I gave a reply. The answer is also a diktat of the MHA. MHA did not even prefer to hear me. It’s a very strange procedure..”.

In an interim order in March, the SC had allowed the channel to telecast.