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

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 pale of review?"

Mr. Ahmadi responded that the said argument is the essence of the impugned order of the Kerala High Court. He took the Court's attention to the phraseology of the show cause notice, which mentioned 'national security' and 'public order'. However, the order of the Ministry of I&B did not disclose the specific ground on which the renewal was denied. It was averred that, at the present stage, all that the Apex Court has to ascertain is, if the Ministry's order is in consonance with the restrictions contemplated in Article 19(2) of the Constitution of India. Mr. Ahmadi added that there was no factual basis in the show cause notice.

The Bench was apprised that in 2016 a show cause notice was issued in the name of Media One and Media One Live. But, no order was passed against Media One. Additionally, its downlinking permission was renewed while the show-cause notice was pending adjudication. Mr. Ahmadi argued that effectively the 2016 show cause notice was dropped in favour of Media One. He added -

"If the High Court came to the conclusion that the details in the files were extremely sketchy could you have on such a hypothesis allowed abridgement of fundamental rights."

Justice Chandrachud stated that there might be a difference between the security clearance and revocation of permission on grounds of national security and public order. He was of the view that if clearance is revoked on grounds of national security and public order, there should be tangible material to demonstrate there was a breach.

"These are two separate things. They have conflated both. One is security clearance and the other is what they are referring to in earlier show cause notice was revoking clearance on national security and public order. If you are revoking clearance on national security and public order, there should be tangible material to show that you are impinging on national security…Revoking on grounds of national security and public order is different from security clearance. There has to be a positive event that triggers the invocation of national security."

Mr. Ahmadi argued that if the State claimed that some information was sensitive then they could have definitely redacted the concerned portion, but a gist of the grounds on which permission was revoked ought to have been provided to Media One. He pointed out the gross deficiencies in the final order passed by the Ministry of I&B.

"When you pass the final order you don't tell me what I have violated, national security or public order. You merely say I have been denied security clearance."

Mr. Ahmadi expressed concern that if the threshold applied by the High Court to accept the claims of the Union Government in the present case is accepted then any major news channel whose narrative does not align with that of the State can be banned merely by stating that they have breached 'national security' and 'public order', and there would be no requirement to prove the same.

"…for this to pass muster means that any major news channel can be banned just by using two words 'national security' and 'public order' and your lordships would be told you can't enquire against the reason. Because I am saying this as a State that public order and national security is at stake. This would become even worse than the dictum in ADM Jabalpur which your lordships have overturned.. There is also a vested interest of the State to curb media. So they are an interested party."

Mr. Rohatgi representing the Kerala Union of Working Journalists argued that the procedure of natural justice followed by the Ministry of I&B was merely a formality. He added -

"The procedure was completely faulty because the Ministry of I&B is acting as a post office. The Ministry of I&B gave me a notice based on the diktat of MHA…"

Like Mr. Ahmadi, he also argued that Media One should have been, at least, provided with a gist of the grounds for denying renewal. It was averred that the Apex Court had held that Article 19 (1)(a) is the heart of all other freedoms guaranteed under Article 19, therefore the burden would be much higher in restricting the rights under Article 19(1)(a). He asserted that the phraseology used in the show cause notice and subsequent order of the Ministry, such as 'sensitive in nature', 'secret in nature', 'matter of policy' does not pass muster of Article 19(2) of the Constitution.

On the issue of the other side perusing documents submitted in sealed cover, Justice Chandrachud asked ASG, K.M. Nataraj -

"What is the objection from your side for the Counsel to look at the file? The test is not that there were some reasons, and once there are some reasons it is not open to judicial review. "

Also Read : 'Channel's Only Crime Is That It's Owned By Minority Community' : Dushyant Dave To Supreme Court In MediaOne Case

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