Security Clearance By MHA Not Required For Renewal Of Broadcast License: MediaOne Channel Tells Supreme Court

Appearing before a Bench comprising Justices D.Y. Chandrachud and Hima Kohli, Senior Advocate Dushyant Dave representing the channel, submitted that the Cable Television Networks (Regulation) Act, 1995 which also makes provision for renewal of licenses, does not contemplate any security clearance from MHA at the renewal stage. 

He mentioned that Sections 3 and 4 of the Act recognise original and renewal applications. Section 4(6) stipulates conditions to be fulfilled for such renewal. It includes interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, foreign relation or contempt of court, defamation or incitement to an offence.

Dave submitted that if any one of these requirements are not fulfilled, one is not eligible for registration and renewal. However, he said that the government cannot add any conditions out of the hat. "Including additional criteria should be read sui generis to government's criteria…Freedom of press is at the centre of controversy."

He added,

"In the garb of security clearance, when I have not been alleged to have violated any express terms, I have not done anything against public interest, national interest, can I be denied renewal permission?...As per provisions, renewal will be considered for a period of 10 years at a time, subject to the condition that the channel should not have been found guilty of violating terms and conditions, including violation of programme and advertisement code on 5 occasions or more. In my case there was not even one violation."

He submitted that when two separate original and renewal applications are prescribed, they must be proceeded with on such terms.

"Requirement for security clearance is only at the threshold stage of applying for channel, not renewal," Dave said.

Here, the Bench orally remarked that even for renewal a person has to undergo all the process. "Saying security is required for initial stage and not for renewal is a little...because on renewal you will have uplinking rights."

Dave responded,

"This is what the policy provides. Can you go beyond the policy and say that security clearance is required and then deny. The renewal provision says general terms and condition… Security clearance is not a term and condition. It is a power of the Government when initial permission is sought. In the garb of terms and condition the Government does not have the right for security clearance."

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.

Aggrieved by this, MediaOne had approached a Division Bench with an appeal. However, the division bench agreed with the single Judge and upheld the ban.

On March 15, the Supreme Court had stayed the order of the Ministry of Information and Broadcasting which refused to extend the license for the channel under the Cable TV Network Regulation Act. It had passed the interim order in a special leave petition filed by the company running the channel assailing the Kerala High Court's judgment of upholding the decision of the Ministry of Information and Broadcasting to not renew the broadcast license of the channel.

The hearing will continue tomorrow.