Thread by @lawbarandbench

#SupremeCourt hearing plea by MediaOne challenging the Kerala High Court order upholding the Central government's decision to ban the Malyalam news channel on security grounds.

Matter before Justices DY Chandrachud and Hima Kohli.

Sr Adv Dushyant Dave: Two important questions here ...

Bench discusses.

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Dave: Far reaching questions, freedom of press at the centre of the controversy. Other is the scope and ambit of the power to grant or refuse uplinking permission. Does the Centre have unbridled power in this regard, if that power is applied with general principles of law.

Dave: Whole country should know whether sealed covers can be given behind parties' back to deny them relief without hearing them. This strikes at root of jurisprudence, both sides should have access to the material. Sealed cover affects mind of judge as they become in guard...

Dave: as national security has anyway become a buzzword these days. This is repeatedly happening across the country, in some cases it has been laughable.

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Justice Chandrachud speaks of a case involving permanent commission to female Naval officers.

SC: We set aside earlier order based on sealed cover. It was a purely service matter yet everything was given in a sealed cover. On th other hand govt can claim privilege that ...

SC: has to be sustained and its grounds stated on affidavit by the concerned officials.

Dave: Here after it is reserved for orders, Court calls for the material. Then says although it does not show anything, ban can stay!

SC: Aware of that. Do you have a list of dates?

Dave: Yes. We have never been found guilty of any violations earlier.

SC: Mr Dave you are good for the day, no?

Dave: Yes.

SC: Then we will discharge the rest of the board.

Dave allows other counsel to mention their matters.

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Dave continues,: We are only concerned with uplinking today. 3rd May of 2021, we applied for permission as 30th September it is expiring. I apply six months in advance. 7 months later show cause notice is issued and they pass impugned order. We file writ, ld single judge stays...

Dave: and later dismisses. The files were never produced during the hearing. This is how, briefly, the matter arises. Now please turn to the Cable TV regulation Act.

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Dave: Sections 3 and 4 are the substantive sections. They recognise original and renewal applications.

[Reads]

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Dave: Now please see Section 6.

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Dave: My respectful submission is including additional criteria should be read sui generis to government's criteria.

SC: Subsection 6 is rule making power?

Dave: Ours was under administrative discretion. "Interests of sovereignty, integrity etc etc"

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#CourtroomExchange

Bench asks about another Section.

Dave: Mr Ayyubi will read. We have a division bench on this side as well.

Judges smile.

Dave: They (Centre) have an omnibus power if it's lovely to promote disharmony, enmity, I'll will etc. This was never invoked against me. No issue at all with my programs as per program code except once, which was taken back.

#SupremeCourt #MediaOne

Dave: Lordships must have seen, how we are selectively picking up people ... The media ...

Dave gives example of news channels declaring Nizamuddin Markaz devotees 'walking bombs' during the pandemic.

Dave: It was a disturbing period when channel after channel indicted...

Dave: the community but no action. We are not China where you can criminalise like this. My track record is impeccable. Media plays most powerful instrument to ...

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Dave continues reading from Act, reiterates no earlier violations by Media One.

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Dave cites figures of tobacco deaths in states in context of such companies advertising in news channels.

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Dave: Every film star advertises for them. I do not know what is wrong with us, and they make a lot of money from it. Lordships, now please see how we had to wait earlier for uplinking permissions.

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Bench notes MediaOne governed by Clause 3 of Section regarding eligibility for uplinking.

Dave: The comes period of permission, and special terms and conditions.

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Dave: When I have not done anything against public interest, can my clearance be denied?

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Dave: When two separate for renewal and original applications are prescribed, they must be proceeded with on such terms.

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Dave: Power to grant or not to grant is not an omnibus power for someone at the Home Ministry. Requirement for security clearance is only at stage of applying for channel not renewal, cannot be then asked to go again.

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SC: But even for renewal you have to meet the eligibility criteria? Renewal in itself is a permission.

Dave: policy provides that new clearance not needed at time of renewal. Division Bench accepts this, it is crystal clear.

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SC: But it says other and modified terms and conditions would need to be met. You need security clearance so there are no implications on national security. By renewal, you continue to have uplinking permission. If we say that ...

Dave: I would respectfully submit that ...

Dave: the clearance would remain. There are safeguard available and not violated in the Code.

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SC: We got your submission. They never suspended your program for violating clearance terms earlier.

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SC: What is the next line of submission?

Dave: My lords it is nobody's case that we have not abided by the terms and conditions.

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Dave: Other terms and conditions are only qua applicant. Now please turn to the show-cause notice.

SC: Impugned judgment we can see tomorrow.

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Dave: The allegations in the notice were in respect of another channel that i had wanted to set up. They did not approve of some of our directors, we were fine with that.

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Dave: That was towards media one live not media one. Wrongly invoked. This is what we have challenged.

SC: Alright we will continue tomorrow.

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SC: How long will you need tomorrow, Mr Dave?

Dave: At least an hour and a half. I have a lot to show, especially on this sealed cover business and judgments of the US and English Supreme Courts. Please keep as first item and part-heard tomorrow.

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SC: We will have it immediately after the fresh items which should not take too long.

Dave: grateful.

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