According to the Supreme Court, the contents of a file submitted by the Centre in sealed cover regarding its refusal to renew the downlinking license of Jamaat-e-Islami-owned Malayalam channel MediaOne were “vague”.
A two-judge bench was presided over by Justice D Y Chandrachud, who drew the attention of Additional Solicitor General K M Nataraj, who appeared on behalf of the government, to specific “paragraphs” and “minutes” in the file and remarked, “how vague.”
The High Court can therefore state that there is nothing detailed… Therefore, if you look at the (Kerala) High Court’s observation, you now understand why it made those two observations,” he said.
As a result, the ASG could not make any statement regarding the facts contained therein. “Based on the facts, I am unable to comment.”
The bench reserved an order in the matter, which included Justice Hima Kohli as well.
Earlier, Senior Advocates Dushyant Dave, representing the channel, Senior Advocate Huzefa Ahmadi, representing its Editor, and Senior Advocate Mukul Rohatgi, representing the Kerala Union of Working Journalists, opposed the court’s review of the Centre’s sealed report.
On Thursday, the bench initially indicated that it was hesitant to examine the file because it would be a one-sided inquiry. For an interim order permitting the channel to continue operating, another bench presided by him had seen the file, but the present bar was divided.
We are in two minds as to how to proceed with the file. Speaking for ourselves, we are a bit hesitant since it is a one-way, ex-parte exercise… Why should we not allow counsel to inspect the file when a challenge is present? Otherwise, we would like to have an ex-parte review this appeal to determine how unfair it is to them. They do not know what is going on in our minds or the minds of the decision-makers,” he stated.
According to Justice Kohli, “They will be arguing with one hand tied behind their backs.”
In response, Nataraj stated, “in matters of security, the system must be trusted”. It is not as if obtaining a security clearance is unregulated. “It is not completely unregulated.”. The inputs from the various agencies are analyzed. After that, a telephone call is made.”
The bench noted that it understood that there might be circumstances where information would need to be withheld for national security reasons. Still, the court must be convinced that such a necessity exists.
If you were to show them that file, what is in it that would impact national security? I am not a proponent of the sealed cover procedure, but I understand that the law has to consider the various situations… Therefore, a nuanced understanding has to be taken. There may be certain situations when you must be careful about the extent of disclosure you make. It might seriously impinge upon the security of the nation. But we can’t expand the footprints of this exception, except in obvious cases. Therefore, you must convince them that this disclosure will impact national security… because you have invited us to study the file. For the interim order,” Justice Chandrachud said.
According to Nataraj, “even for the appointment of judges, Intelligence Bureau reports are considered”, and “once a decision is made, does it need to be followed through? This would be a very dangerous situation.
This is because those are appointments to posts where a person does not have any vested rights. The appointments are by invitation, but members of the Collegium can withdraw them if they do not feel they are eligible… The right to be considered but not appointed,” she explained, adding that this was a different type of transaction in which a commercial component and jobs were also at stake.
As in the present case, the channel has the right to be considered, but no vested right to be cleared. The same thing applies here as well. It is their right to be considered in light of the guidelines, and it has been. After it has been considered and adverse inputs received, is it expected to be reviewed or disclosed to parties? This will lead to a very, very dangerous situation,” he stated.
According to Justice Chandrachud, the government previously issued a show cause notice to both MediaOne and MediaLive, which were both proposed by the same group for launch. However, during the pendency of the information, MediaOne’s downlinking permission was renewed, and MediaLive’s was rejected. Even though a show cause notice was served on both, you did not take any action against them but took action against MediaLive only. For ten years, they continued. It is not a case where you came up with a solution within a year or two.
As explained by the ASG, this was done because a 10-year public licence already existed.
The Honourable Justice Chandrachud asked if there had been any allegation against them of breach of eligibility conditions or that any program in the ten years they operated had been found to violate the programme code.”.
Nataraj stated, “There are certain issues with the file. Therefore, I requested the file be reviewed”.
After the bench decided to review the file, Rohatgi stated, “We have no objection.”. However, our principal objection is the procedure used.
Upon reviewing a few pages and noting that it is “vague”, Ahmadi stated, “If your Lordships are not satisfied after perusing the file, I think one way to look at it is that you confirm the interim relief. It is possible to make the interim order absolute.”
Earlier, Dave had argued that a security clearance would be required only at the time of license granting and not at the time of license renewal.
According to the bench on Thursday, it would be far-fetched of us to say that the government cannot consider security issues at the time of renewal. Regardless of this case’s outcome, we cannot establish a principle of the law of this kind.”
