Allegations Against MediaOne Vague, Supreme Court Says After Seeing MHA Files; Reserves Judgment [Read Full Courtroom Exchange]

On 15.03.2022, after examining the files produced by MHA raising security concerns, the Apex Court had passed an interim order and stayed the telecast ban imposed by the Union Government. Thus, the channel had been allowed to operate as it used to, before the Centre's decision.

Now, after hearing the Counsels for the concerned parties for three consecutive days, a Bench comprising Justices D.Y. Chandrachud and Hima Kohli has reserved judgment in the matter.

No requirement Of Security Clearance At The Time Of Renewal Of Uplinking Permission: Sr. Adv. Dushyant Dave

From the petitioner's side, Senior Advocate, Mr. Dushyant Dave representing the channel management Madhyamam Broadcasting Ltd primarily argued that at the time of renewal of uplinking permission there is no requirement for security clearance. 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, he 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.

State's Claim Of Breach Of National Security Is Not Behind The Pale Of Judicial Review: Sr. Adv. Huzefa Ahmadi

Senior Advocate, Mr. Huzefa Ahmadi, appearing on behalf of the Chief Editor of Media One, Pramod Raman contended that the Union Government had gotten the benefit of the argument that once the State cites breach of national security and public order then their claim is to be accepted without any judicial scrutiny.

Evasive Phrases Used, No Specific Ground Provided For Denial Of Renewing Permission: Sr. Adv. Huzefa Ahmadi

From the show cause notice and the order passed by the Ministry of I&B, he contended that evasive phrases were used to not provide the specific ground for denying renewal of uplinking permission to Media One. The Bench was implored to consider if the Ministry's order passes muster of the restrictions to freedom of press contemplated in Article 19(2) of the Constitution of India. Mr. Ahmadi had also averred that though the High Court had upheld the telecast ban, it noted that the details in the files submitted in sealed cover were sketchy.

At Least Redacted Copy Of Files Submitted In Sealed Cover Ought To Have Been Provided To Media One: Sr. Adv. Huzefa Ahmadi

He emphasised that even if the State claimed there was sensitive information, it should have provided a redacted copy of the file to the petitioner's so that they have a clear understanding of the offence committed by them, for which the telecast ban was imposed. 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.

Ministry Of I&B Was Acting As A Post Office For MHA: Sr. Adv. Mukul Rohatgi

Senior Advocate, Mr. Rohatgi appearing on behalf of the Kerala Union of Working Journalists assailed the procedure followed by Ministry of I&B, in essence, devoid of natural justice as a 'merely formality'. He submitted that the Ministry of I&B was acting as a post office for the MHA as it was merely acting as per the diktat of the MHA. Mr. Rohatgi, much like Mr. Ahmadi argued that a gist of grounds for denial of renewal ought to have been provided to the petitioners.

The Phrases Used In Show Cause Notice & Order Of Ministry Of I&B Does Not Pass Muster Of Restrictions Contemplated In Article 19(2) Of The Constitution: Sr. Adv. Mukul Rohatgi

According to him, the expressions like 'sensitive in nature', 'secret in nature', 'matter of policy' used in the show cause notice and the subsequent order of the Ministry does not pass muster of Article 19(2) of the Constitution.

At the end of the second day, Justice Chandrachud on behalf of the Bench had raised some doubts and sought the assistance of Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government, in that regard.

Party Should Know What Is The Breach of National Security: Justice Chandrachud On Behalf Of The Bench

Justice Chandrachud had asked the ASG -

"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?"

Considering the fact that the petitioners have not gotten an opportunity to look at the grounds based on which the decision to deny renewal was taken, 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…the party should know what is the breach of national security."

Petitioners Cannot Claim Grant Of Security Clearance At The Renewal Stage As A Matter Of Vested Right: ASG, K.M. Nataraj

On the third day of the hearing,  Mr. Nataraj apprised the Bench that the petitioners cannot claim grant of security clearance as a matter of right at the stage of renewal.

Justice Chandrachud expressed his opinion -

"But when you issue (show cause) notice you have to tell them what the grounds of national security are."

If There Is Threat To National Security, Principles Of Natural Justice May Be Subverted: ASG, K.M. Nataraj Refers To ExArmymen's Protection Services Pvt. Ltd. v. Union of lndia And Ors.

The ASG referred to ExArmy men's Protection Services Private Limited v. Union of lndia And Others (2014) 5 SCC 409 wherein the Apex Court had observed that 'if there are justifiable facts and there is threat to national security, then, nobody, let alone the court, can insist on the compliance of principles of natural justice as a pre condition for taking any action resulting even in adverse civil consequences.'

In the said judgment, the Court had also noted that what is in the interest of national security is not a question of law, but a matter of policy. Hence, it is not for the Court to decide whether something is in the interest of national security, the determination of the same lies in the executive domain.

At this juncture Justice Chandrachud asked a pointed question, "Then why did you renew the downlinking permission in this case?"

No Counter Affidavit Filed By Union Government In High Court, Only A Statement of Additional Solicitor Filed : Bench Was Curious

The Bench was bemused to note that in the present matter, before the High Court, the Union Government had not even filed a counter affidavit. In lieu of the same, a statement of the Additional Solicitor was filed. In this regard Justice Hima Kohli remarked -

"We are curious, we have never seen a statement being filed by the ASG."

On the issue of exceptions to principles of natural justice, Justice Chandrachud observed that a straight jacket formula cannot be adopted in this regard. Merely by stating breach of national security, natural justice cannot be done away with. It also depends on the context in which national security is being invoked and against whom.

The Judge emphasised that the party against whom action is taken ought to know the grounds for the same -

"Why cannot you let the Counsels (opposite side) see the files. Now if we pass an order against them, it would be unfair that they do not know why such a decision is taken."

Union Government Did Not Claim Privilege Before the High Court: Justice Chandrachud On Behalf Of The Bench

He further reminded the ASG that the Union Government has not claimed privilege before the High Court.

"You did not claim privilege before the High Court. What is in that file that will have an impact on national security that you do not want to show it to them."

Justice Kohli concerned with the disadvantageous position of the petitioner in the present matter, commended -

"They are arguing with one hand tied behind their back."

Not Saying Sealed Covers Cannot Be Filed In Any Case, But, If Filed State Should Satisfy Court That There Is Tangible Material To Invoke National Security: Justice Chandrachud On Behalf Of The Bench

Clarifying that he is not a proponent of receiving documents in sealed cover, Justice Chandrachud stated that the Court is not indicating that sealed cover cannot be submitted in any matter, but if it is indeed submitted then the State would be obligated to satisfy the court that there is tangible material to trigger national security.

The Bench expressed hesitation to look at the file submitted in sealed cover and pass order in an ex-parte manner, especially when the interest of a number of people are at stake.

"We are a little hesitant to do it this way, in an ex-parte manner. That you (Union Govt) and we (Court) see the file and decide the matter… There is a commercial involvement, jobs at stake."

Divulging Adverse Information In IB Reports To Petitioners Can Have Serious Consequences: ASG, K.M. Nataraj

Mr. Nataraj submitted -

"Where there are some adverse IB reports, shall that be divulged to the party. It would have very very serious consequences."

If Security Clearance Is Not There Permission Can Be Cancelled: ASG, K.M. Nataraj

He also referred to a couple of judgments to substantiate his argument that security clearance is required for granting permission and if it is not there, permission can be cancelled.

Justice Chandrachud was of the opinion that once show cause notice was given by the Ministry it would indicate that they agreed to follow the principles of natural justice.

Mr. Nataraj responded saying -

"Under the policy different tests have to be gone through at different stages. He may have legitimate expectations, but he does not get any vested right. There are several instances where principles of natural justice cannot be applied in a straight jacket formula. In some cases we cannot share..., otherwise it would have grave consequences."

To strengthen his case for not sharing the information in the sealed cover with Media One, ASG referred to Order XIII Rule 7 of the Supreme Court Rules, 2013, which reads as under:

"Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of confidential nature of the pUblication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court."

As Justice Chandrachud expressed that the Bench was in two minds about seeing the files submitted in the sealed cover, Mr. Rohatgi referred to a recent judgment of the Apex Court wherein it had criticised Madras High Court for keeping enquiry report in sealed cover without sharing with accused. He read out the relevant portion, which is extracted below:

"When the State has not pleaded any specific privilege which bars disclosure of material utilised in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover. In view of the aforesaid discussion, and taking into consideration the peculiar facts of the instant case, particularly the fact that the High Court had ordered an enquiry and obtained a report without furnishing a copy thereof to the appellant and unceremoniously closed the WP.."

The Bench briefly went through the files and asked the ASG to have a look at a few pages.

The ASG submitted, "I want to make it clear, your lordships, that I don't want to get into debate on what is there in the file."

The Bench indicated that the contents of the concerned pages were vague.

"See how vague... that is why the High Court said nothing detailed. Now you know why the HC made those observations in those two paragraphs." (High Court had observed in the judgment that the depth of the allegations were not discernible from the files).

Mr. Ahmadi took the opportunity and proposed, "If after seeing (files) your lordships are not satisfied then the interim order can be made absolute."

Justice Chandrachud was not inclined to grant the request as reasons have to be provided for the decision taken by the Court.

Mr. Ahmadi rebutted the submission made by the Centre, primarily by distinguishing the judgments referred to by the ASG. He submitted that those judgments dealt with Article 19(1)(g) and not freedom of press under Article 19(1)(a).

If Doctrine Of Proportionality Is So Important Then Without Looking Into The Reasons For Invoking National Security How Will It Be Tested: Sr. Adv. Huzefa Ahmadi

He relied upon the observation of the Apex Court in Anuradha Bhasin v. Union of India wherein identical claims of national security were made by the Union Government. Therein the Court had made critical observations in regard to the doctrine of proportionality -

"In view of the aforesaid discussion, we may summarise the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of affected parties, the same should be supported by sufficient material and should be amenable to judicial review."

Mr. Ahmadi averred how can the doctrine of proportionality be tested if the petitioners are not provided with the access to the document which contains the grounds for not renewing the uplinking permission.

"If the doctrine of proportionality is so important then without looking into the reasons for invoking national security how will that be tested."

We Need Not Go That Far As To Say That At The Time Of Renewal Govt. Cannot Look At The Security Aspect At All: Justice Chandrachud On Behalf Of The Bench

Considering the arguments put forth by the Counsels for the parties concerned, Justice Chandrachud stated, "We need not go that far to say that at the time of renewal the Government cannot look at the security aspect at all. Even at the time of renewal there is nothing to prevent the Government from looking into the security requirements."

In sur-rejoinder, the ASG pointed out that the first petition is filed by a Company which cannot essentially assert Article 19(1)(a) rights which are exclusively recognised for citizens. Justice Chandrachud noted that Directors of the Company as citizens can invoke the said provision.

Before closing the matter the Bench asked Mr. Ahmadi to provide a note on analysis of share holding pattern of the company, along with some other details.

Background

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.

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