MediaOne TV went off air on January 31.The Supreme Court, which perused portions of a file submitted by the Centre in sealed cover regarding its refusal to renew the downlinking licence of Jamaat-e-Islami-owned Malayalam channel MediaOne, said Thursday that the contents appeared “vague”.
Justice D Y Chandrachud, presiding over a two-judge bench, drew the attention of Additional Solicitor General K M Nataraj, who appeared for the government, to a certain “paragraph” and “minutes” in the file and remarked “how vague”.
“So, therefore the High Court says that there is nothing detailed… Now in the light of this, if you look at the (Kerala) High Court’s observation… you now see why the High Court made those two observations,” he said.
The ASG said he cannot make any statement regarding the facts therein. “On the facts, I can’t say anything.”
The bench, also comprising Justice Hima Kohli, reserved its order in the matter.
A day earlier, Senior Advocate Dushyant Dave, appearing for the channel, Senior Advocate Huzefa Ahmadi, appearing for its Editor, and Senior Advocate Mukul Rohatgi, appearing for the Kerala Union of Working Journalists, had opposed the court perusing the Centre’s report submitted in a sealed cover.
On Thursday, the bench initially said it was hesitant to look into the file as it would be a one-sided exercise. Justice Chandrachud said though for the purpose of an interim order allowing the channel to continue operations, another bench presided by him had seen the file, but the present bench was in two minds.
“We are in two minds on how to deal with the file… Speaking for ourselves, we are a little hesitant, because it’s a one-way, ex-parte exercise… Why should we not allow the counsel to inspect the file when a challenge comes up? Otherwise, our concern is we ex-parte look at it and throw out this appeal, how unfair it is to them. They don’t know what has gone on in our minds or that of the decision-maker, ” he said.
Justice Kohli said, “They will be arguing with one hand tied behind their back.”
Nataraj replied that “in matters of security, the system must be trusted”. He said it is not as if the process of security clearance is unregulated. “It is not totally unregulated. There are proper checks, the inputs from the various agencies are analysed. Thereafter, a call is taken.”
The bench said it understands that there may be situations when information will need to be withheld for national security reasons but then the court should be convinced.
“Now what is in that file which will impact national security if you were to show it to them?… I am personally not a proponent of the sealed cover procedure, but I quite understand that the law has to take into account the various situations… Therefore, a nuanced understanding has to be taken. There may be certain situations when you have to be careful about the extent of disclosure which you make. It might seriously impinge upon the security of the nation. But we can’t expand the footprints of this exception, except in very clear cases. Therefore, you must satisfy us that this disclosure to them will impact upon national security… because you have invited us to study the file. For the interim order,” Justice Chandrachud said.
Nataraj pointed out that “even for appointment of judges, Intelligence Bureau reports are called upon” and “once a decision is taken based on it, is it required to be gone upon?” He said “such a situation will be very dangerous”.
Justice Kohli responded that’s because those are appointments to posts where a person cannot claim any vested right. “These appointments are by invitation which can be withdrawn if members of the Collegium feel they are not entitled to it… Right to be considered but not appointed,” she said, adding this was a different transaction where there is commercial involvement and there are also jobs at stake.
The ASG said the present case also was one where the channel has a right to be considered but no vested right to be granted clearance. “Here also, same thing. They have the right to be considered in the light of the guidelines, and it has been considered. Once it was considered and there has been adverse inputs, it is expected to be gone over or divulged to parties? That will lead to a very, very dangerous situation,” he said.
Justice Chandrachud pointed out that the government had earlier issued show cause notice to MediaOne as well as MediaLive that was proposed to be launched by the same group “but during the pendency of the notice, you renewed the downlinking permission for MediaOne and rejected that of MediaLive. Though show cause notice was issued to both, you didn’t do anything to them, you did it only to qua MediaLive. And they continued for 10 years. This is not a case where you came up with something within a year or so”.
The ASG replied that this was done because there was already an existing public licence for a period of 10 years.
Justice Chandrachud asked “was there any specific allegation against them of breach of eligibility conditions or that in the 10 years they operated, any programme was found to breach the programme code”.
Nataraj said “there are certain issues, therefore I asked to look into the file”.
Subsequently, as the bench decided to peruse the file, Rohatgi said, “We have no issue. But our principal objection is that this procedure is not right.”
After the bench had looked into some pages and said it’s “vague”, Ahmadi said, “If Your Lordships are not satisfied after having perused the file, I think one way of looking at it is Your Lordships confirm the interim relief. The interim order can be made absolute.”
Dave had earlier argued that security clearance would be needed only at the time of grant of licence and not at the time of renewal.
On Thursday, the bench, however, said, “It will be far-fetched for us to say that at the time of renewal, the government cannot look at the security angle at all. Irrespective of the outcome of this case, we can’t lay down such a principle of law.”