Supreme Court stays MediaOne ban: Averse to sealed cover jurisprudence

“At the present stage, we are of the view that a case for the grant of interim relief has been made out on behalf of the petitioners, having due regard to the contents of the files which have been perused by the court. We accordingly order and direct that pending further orders, the order of the Union government dated 31 January 2022, revoking the security clearance which was granted to the petitioner, Madhyamam Broadcasting Limited, shall remain stayed. The petitioners shall be permitted to continue operating the news and current affairs TV channel called MediaOne on the same basis on which the channel was being operated immediately prior to the revocation of the clearance on 31 January 2022,” said a three-judge bench headed by Justice D Y Chandrachud.

The petitioners had contended that the HC, while upholding the ban, had relied on files submitted by the Centre, but had not disclosed the contents to it. Issuing notice on the plea, the SC had, on March 10, asked the Centre to produce these files.

At the hearing Tuesday, Senior Advocate Dushyant Dave, representing the channel, referred to comments by Chief Justice of India N V Ramana in another case earlier in the day. “Today there was a matter before the CJI where sealed cover was sought to be given to the court and the CJI said, ‘please don’t give us sealed cover, we don’t want it here’,” he said.

The bench, which included Justices Surya Kant and Vikram Nath, then asked Additional Solicitor General S V Raju, who appeared for the government, why the files could not be shown to the other side. “Their business is being shut down. Disclose the files to them. They are running a channel. What is the difficulty to produce the files,” asked Justice Chandrachud.

The ASG responded that he had submitted the files before the bench and also produced them before the HC. He also urged the court to give him a few days to file an affidavit, but Dave opposed this.

“The HC Division Bench records that too many details are not in the files. This is the danger,” said Justice Chandrachud. “We are averse to sealed cover jurisprudence. Do you have issues if we go through the record now,” he asked Dave, referring to the files submitted by the Centre to the court. Dave said he had no objection.

The bench then proceeded to examine the files and pronounced its interim order granting relief to the channel. It asked the Centre to file its counter-affidavit by March 26.

In its order, the court recorded that “during the course of the hearing before the single Judge, two files relating to Madhyamam Broadcasting Limited (the first in relation to MediaOne Life and MediaOne Global, and the second relating to MediaOne TV) were produced. The files were not shared with the petitioners. Security concerns were cited”.

“The issue as to whether the contents of the files should be disclosed to the petitioners in order to enable them to effectively pursue their challenge in these proceedings is expressly kept open, to be resolved before the petitions are taken up for final disposal,” it said. “We clarify that perusal of the files by the court at this stage is not an expression on the tenability of the contentions of the petitioners that they would be entitled to inspect the files. The issue is kept open to be resolved at the stage of the final disposal”.

Dave urged the bench to state in the order that it is not in favour of sealed cover jurisprudence.

The bench told him that “there are sensitive issues like child sex abuse etc where files cannot be disclosed and that is a small area we have carved”.

“We have only perused the record and it’s different from sealed cover jurisprudence,” said Justice Surya Kant.

Earlier, contending that security clearance is not needed at the time of renewal, Dave said the HC had agreed that renewal of licence is an automatic process but had still cited national security concerns. He said the channel had been functioning without any complaints for over almost 11 years.

“No media channel in this country will be safe if this principle (adopted in the MediaOne case) is accepted. Nobody is safe,” said Dave. He said the channel was shut down because it is run by some members of the minority community. “Heavens are not going to fall if I am allowed to run. I am not going to overthrow the government. For six weeks, we are shut down simply because we are run by some members of the minority community. What else it is? Not once have I violated the programme code,” he said.

Many of the investors in Madhyamam Broadcasting Ltd are members of the Kerala chapter of the Jamaat-e-Islami Hind.

During the hearing, the bench sought to know when the channel’s operations were closed. Dave replied that it was since February 8. To the court’s query about the position before that, Dave said: “We were working. My licence was for 10 years. Two months after my actual period expired, they allowed me to continue. They granted me downlinking in 2019 for a period of five years”.

ASG Raju told the bench that the 10-year licence had expired in September 2021 and there cannot be automatic renewal. “It will not entail automatic removal,” he said.

“But you allowed them to continue even after the term came to an end in September,” said Justice Chandrachud. “Renewal was not denied on the ground that licence had expired,” added Justice Surya Kant. The Supreme Court will hear the matter next on April 7.

With its 10-year licence expiring on September 29, 2021, MediaOne TV had applied for renewal for another 10 years in May last year. On December 29, the Union Home Ministry had denied security clearance. On January 5 this year, the Union Information and Broadcasting Ministry had issued a showcause notice, asking why its application for renewal should not be turned down in view of the denial of security clearance.

The Kerala HC had said the MHA’s decision to deny security clearance was based on intelligence inputs received from various agencies. “It is true that the nature, impact, gravity and depth of the issue is not discernible from the files. But, at the same time, there are clear and significant indications impacting the public order and security of the state. Since it is a confidential and sensitive file maintained by the Ministry of Home Affairs, Union of India, we are not expressing anything further in the interest of national security, public order and other aspects concerning the administration of the nation,” it had said.

“But, as we have pointed out above, even though too many details are not available in the files produced before us, we are of the view that there are certain aspects affecting the public order or the security of the state on the basis of the report of the Intelligence Bureau and other investigating agencies,” it had said.