The Supreme Court on Wednesday adjourned the hearing in the Sudarshan TV matter to October 5, to allow the channel to respond to the show-cause notice issued to it by the Central government to explain the apparent violations on its part.
At the outset, Advocate Kaleeswaram Raj sought 15-20 minutes time to make submissions on behalf of Asianet founder Shashi Kumar, an intervenor, who he described as "the founder of the first satellite TV channel, and the principal of the Asian College of Journalism".
"Time is not lost in listening to good submissions. But all good things have to come to some closure...". said Justice D. Y. Chandrachud.
At this point, SG Tushar Mehta interjected to point out that the Central government has today issued notice to the Managing Durector of Sudarshan TV. He read out the last portion of the notice- "Sudarshan TV is directed to give a written explanation on the apparent violation of the Programme Code, section 20(3) of the Cable Television Networks (Regulation) Act, 199
5, and the Uplinking and Downlinking Policy Guidelines of 2011 by September 28...If the response is not received till the said date, it shall be presumed that the channel has nothing to say on the matter, and further action shall be proceeded ex-parte in accordance with the law"
"My suggestion would be to please defer this hearing to after 28...we can't prejudge the government's decision; the channel is also due to reply...and it is a detailed show-cause notice, displaying the facts which prima facie do not seem in confirmity with the Programme Code...we can't pre-empt the government's decision...", urged the SG.
"But the Programme would have even been over by now if the Court had not intervened", remarked Justice Chandrachud, though showing inclination to "reflect on the notice and stand over the hearing to after September 28, allowing the government the opportunity to examine".
"It would be better if Your Lordships' intervention is as of the last resort", pressed the SG.
As the bench was about to rise to confer on the issue of adjournment, Advocate Shahrukh Alam sought to attract the court's attention to an earlier argument in the matter- "It was asked, 'Would the Constitutional Court open itself to judicial arbitrariness, picking up this one case and enforcing the rule of law on this one case?'"
"I never said judicial arbitrariness...I said 'forget the facts as a proposition'", began the SG, urging Justice Chadrachud to explain that Ms. Alam was responding to an earlier affidavit.
"We've come to you under Article 32, for there has been a violation of Article 21. Additionally, there is continuing violation by executive action...such manifest arbitrariness is a violation of Article 14...", continued Ms. Alam.
"It is the duty of the Constitutional Court to correct that...this is different from enforcing the rule of law", she argued.
Reading from an article on judicial arbitrariness, she spoke of giving effect to Article 14 so far as policies and executive action are concerned.
The SG reiterated that it would be better if the hearing were deferred. "But the interim order (against the telecast of the show) would continue!", stressed Senior Advocate Anoop Chaudhuri, for the petitioner. "Yes, yes, it will", said the SG.
"The Cable TV Networks Act, in its sections 19 and 20, provides for a regulatory mechanism...but the opacity is that it is not clear who is complaining to whom and what should be the timelines...", Ms. Alam sought to press on, but the bench finally rose to discuss the point of deferment.
When the bench reconvened, Justice Chandrachud ventured, "The SG has made a suggestion that since the Central government has given a show-cause notice to the channel, we stand over this hearing to after 28, by which time the channel will have responded...". "There is no objection from the petitioners' side", assured Mr. Chaudhuri.
Advocate Gautam Bhatia submitted that though he had no objection to the hearing being deferred, he was concerned about the larger issue of guidelines (as regards free speech, communalisation and the wider ramifications on the public at large), that only a part of the issue would be resolved by the decision of the central government and the entire gamut of issues, raised in the course of the trajectory that the case has taken, would not be covered. Senior Advocate Arvind Datar also mentioned that he is concerned with the larger issue. The SG conveyed that he would not persuade the court to not look into such other issues.
"We are, not for a moment, saying that the matter is concluded...the SG is only saying that since the matter is sub-judice, that since the court is seized of the matter, and since the government has issued notice returnable on September 28, the hearing may be held after that", assured Justice Chandrachud. The judge, noting that Mr. Chaudhuri has no objection to the notice, asked if any other counsel opposed the request of the SG.
"My suggestion is that the hearing be deferred...not that I am seeking time", explained the SG.
"Fair enough. So the response will come by 28...we can keep the matter after that...but since we are seized of the matter, we hope you will keep us apprised of the resolution/decision on the matter", Justice Chandrachud said to the SG.
The judge asked the SG if the government would hear the petitioner in giving its decision. "There will be no departure from the provisions of the law. And the provisions don't contemplate any such hearing...", replied the SG.
At this, Justice K. M. Joseph inquired, "You say hearing the petitioner would not be possible? Here, there is a complaint, and then there is to be action on that complaint...the principle of action is based on statutes, common law and the principles of natural justice...would it be completely illegal to hear the petitioner?"
"It would not be illegal...things can be added to or read into provisions...but there may be 10,000 complaints against a particular programme. It is not possible to hear them all", replied the SG.
"If the petitioner is heard, it would be better", pressed Justice Joseph. Not finding the idea very amicable, the SG said, "But if there is any adverse order, Your Lordships can always hear the petitioner".
"In cases of unauthorised constructions also, we always ask the municipal corporation to hear the complainant and then pass an order...", observed Justice Chandrachud.
"In the peculiar facts of this case, Your Lordships may examine whether it is necessary...A bad fact, or a fact appealed to you beyond a point, must not become a bad precedent...the government may take a call on hearing anyone it wants, but it can't happen on the basis of your directions, I respectfully submit...", advanced the SG.
Even as Senior Advocate Sanjay Hegde, appearing for NGO Zakat Foundation, said that since they are "in the centre of the controversy", they be heard, the SG repeated that the government shall take a call.
"There is nothing illegal in it...let the petitioner make a representation to the government...", urged Justice Chandrachud.
"This is not a decision on a lis between A and B...it concerns the exercise of legislative power...", said the SG
"So there is broad consensus to stand over the hearing to next week...Mr. Chaudhuri, are you pressing to be heard before the government or would you want to be heard here?", asked Justice Chandrachud.
"We want to be heard as well...also, if an adverse order is passed, we want to be able to impugn it here...like earlier, when they were given a green signal (the MoI&B having permitted the broadcast on September 10), we had got relief here (the Supreme Court had subsequently stayed the airing of the show on September 15)...", responded Mr. Chaudhuri.
"That is the least you will be entitled to...", assured Justice Chandrachud.
"Also, section 20(3) is not a complaint procedure, but the power of the central government...it is not the power which determines the lis between A & B...", stressed the SG.
"In the event my client files a complaint with the government, you may hear us...", ventured Mr. Hegde. "But you haven't filed a complaint as yet...If you do, you may be heard", pointed out Justice Chandrachud, even as the SG reiterated that "everything will happen in accordance with the law".
The bench rose once again to confer. When it reconvened, Justice Chandrachud proceeded to dictate the order- "During the course of the hearing, the SG has stated that the central government has, in exercise of the power conferred on it by section 20(3) of Cable TV Networks Act, 1995, issued notice to show cause to Sudarshan TV today. Since the notice is stated to be returnable on 28.9.2020, he has sought a deference of the hearing to allow the government to take a considered view of the matter. We have heard the counsel on the suggestion of the SG. We are of the view that since the notice to show cause has been issued presently, it will be appropriate to list the matter on October 5..."
The order further requires that the notice be dealt with in accordance with the law, and that a report be submitted to the court, iterating the progress in the matter. The bench clarified that further steps in pursuance of the notice shall be subject to the proceedings of the court and its further orders. However, the interim order of September 15, staying the telecast of the TV show in question, has been directed to continue in operation.
Finally, advocate Ravi Sharma sought to make a submission on behalf of intervenor Madhu Kishwar- "Earlier, my comments were deemed to be hate speech. Now I have filed an intervention application. I only want 20 minutes of the court's time..."
"Intervenors keep getting added. We cannot give 20 minutes of judicial time to each of them...the intervenors may make written submissions", said Justice Chandrachud.