Thread by @lawbarandbench

#SupremeCourt to continue hearing matter of MediaOne channel's security clearance being revoked.

Sr Adv Dushyant Dave: Please see the bare acts again. Freedom of speech includes that of press and carrying out business.

#SupremeCourt #MediaOne

Dave reads from Cable TV Regulation Act.

Dave: It is in consonance with Article 19(2). Parliament specified criteria for denial, but that must also be through prescribed rules. In the garb of 162, you cannot limit fundamental rights.

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Dave: You cannot take away the right of the press, this Court has zealously guarded it.

SC: So you are saying the guidelines are ultra vires the Act?

Dave: Yes.

Counsel: They have not challenged the guidelines.

Dave: Thank you, it is not necessary for me to do so.

Dave: I have only to show what the statute provides. There is now law by which they can take this kind of action.

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Dave: Their action is wholly unconstitutional and arbitrary, makes a mockery of Constitutional principles.

[Reads from rules under Cable TV Act]

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Dave: They are bound (to renew) if i fulfill the criteria. No outside authority can control these powers.

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Dave: Giving information of removal within 45 days is mandatory. Cannot be denied. Lordships may observe program code ...

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Dave: Rule says you will not be allowed to renew if you have had 5 violations.

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Justice Chandrachud: If you are right that the policy for renewal is ultra vires the Act since it was not brought by a rule-making body, then even the clearance at inception stage will be illegal?

Dave: No no.

SC: See they cannot deny the clearance based on gender or caste.

Dave: 19(1)a has to be protected in every possible way, can only be limited by 2 but not by needing a security clearance. Not asking for a free license, they have a right to question ...

SC: Just one second.

#SupremeCourt #MediaOne

Dave: My lord, at every stage there is a safeguard. Today you have created an omnibus power through the security clearance stage, you can produce some secret files and say we are bad people.

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Dave: What is the ground against me? Have I ever done anything to harm the integrity or sovereignty of India, have I ever committed contempt of court? Every power must be reasonably construed and exercised. Govt is expected to do that, aware of 19(2)

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SC: what did they say in their counter?

Dave: They did not have one. Ld ASG said they will produce ... But nothing on path because they were not privy to facts. Very unusual to do this. Makes mockery of facts and law, my lords.

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Dave goes through the High Court order, says does not know what parts of it mean.

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Dave: You have not made a single allegation against me that I have violated the program code.

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Dave: My only concern is the issue arose because the channel's owners are from a minority community. It is highly respected one among Malayalees here and abroad.

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Justice Kohli: Just asking, in the course of hearing did you ask the ld Division Bench for a copy of the records?

Dave: Yes, we said the single-judge cannot just rely upon them without ... A constitution bench has said this is completely wrong.

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Dave: Court of law has relied on this without showing us the file! With greatest respect to the judge, but what bulls**t may have bee stated in the file we do not know.

[Dave apologises for cursing]

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Dave: Any body can be banned with one word from Home Ministry like this. They have not read Romesh Thapar properly.

indiankanoon.org/doc/456839/

Dave: As this Court has earlier said, the grounds must be stated on oath.

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SC: What else now remains of your submissions? Will you be wrapping up or citing some more judgments. We will just take a small comfort break. You also take one.

Dave: That is very kind of you. I have a few judgments to cite.

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Dave quotes from KT Shah's remarks during Constituency Assembly Debates on free press.

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Dave: They were so conscious while giving this right. They are right in saying we have not challenged the ... Please see Article 13. They did not expect citizens to have to keep running to courts to declare laws void.

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Dave: I had a stenographer who would take my dictations till late in the night, he was amazing. He would correct me instantly and have the notes ready by morning. Nowadays we cannot find anybody.

[Dave was reading from notes]

#SupremeCourt #CourtroomExchange

Dave reads order in Arun Shourie case.

Dave: In one sentence Court has a actually prohibited ... Para 6 ... "Procedures suggested by respondent not acceptable". Besides violation of natural justice.

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Dave: My lords this should be the approach. It [sealed covers] has become very common in last 7-8 years, it is a dangerous precedent, we have seen it in Rafale and CBI director cases.

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Dave: Laws have to pass test of reasonableness. Courts are my remedy to challenge such procedures.

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Dave reads a Judgment of the Canadian Supreme Court.

Dave: What is troubling is, apart from violation of natural justice, there appears to be bias by the judge in as much as we were not shown the documents. It worries me.

Dave reads from a judgment in which Justice Chandrachud was on the Bench, ECI vs Vijay Bhaskar
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Dave: Court cannot be party to violation of natural justice, the order makes clear.

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Dave speaks of recent events to argue how society has changed

Dave: Nowadays a mob can stop a film's release. President is stopped form entering temples because of his caste. An intolerant society.

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SC: Mr Dave can we rise [for lunch] five minutes early ... We have

Dave: yes, i will just finish.

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Dave: Lordships may allow the appeal and set aside the HC orders.

SC: Mr Ahmadi and Madiyal we will hear you after lunch.

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Hearing resumes.

Sr Adv Huzefa Ahmadi appears for the Editor: I will be very brief. Let me summarise what was said to us before the High Court. [reads]

SC: They said it was beyond the scope of judicial review in their counter?

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Ahmadi: it was the sum and substance of the judgment. Freedom of press integral part of Article 19(1)a. HC had 3 important pieces before it, I will hand over my submissions wrt this. One the show cause notice.

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Ahmadi: Phraseology of show cause notice very important.

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Justice Kohli: it was handed over to the HC along with the sealed cover?

Ahmadi: yes. But that document not on oath. Lordships have to see if it meets the requirement under 19(2) to curtail fundamental rights.

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SC: Show cause notice says national security concerns?

Ahmadi: But all one can reply to that is ... What is the use of such a notice?

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Justice Chandrachud: I saw you handing over a huge note to your junior, I thought you will hand that over to us. I thought Mr Ahmadi is ...

Justice Kohli: going to burden us (smiles).

Ahmadi reads from note.

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Ahmadi: When the notice was handed over, permission for renewing downlinking was given. I am on palpable Arbitrariness, if there really was security concerns would that permission have been given? Show cause for MediaOne Live (another channel) dropped.

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Ahmadi: One small aspect your lordships may keep in mind, if it was such a serious security concern would you wait three years plus after 2016 notice to adjudicate on it?

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Bench: Periods of permission for uplinking and downlinking are different?

Ahmadi: Yes. Uplinking was expiring so I had to apply.

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Ahmadi continues reading from pleadings.

Ahmadi: If the exact nature of the alleged breach was not known, could you have passed an order to curtail fundamental rights?

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Ahmadi reiterates point about downlinking permissions being given even as uplinking not.

SC: One channel's criteria was found not satisfactory?

Ahmadi: Qua MediaOne Live.

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Ahmadi: how can you issue a fresh show cause notice, and give permissions? (Takes court through notice)

SC: they seem to have conflated both, both are different. One is a security clearance where you look into antecedents if management etc, other is revocation on grounds of national security and public order. Grounds for both are very different, for latter you must have material...

SC: to show that national security being violated. Grant of first time clearance is very different, but for revocation you must have tangible proof of you hobnobbing with terrorists or anti-nation elements.

Ahmadi: Yes, strict scrutiny must apply. But i must know the...

Ahmadi: gist (of Allegations) after sensitive parts are redacted.

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SC: Is a security clearance required at stage of renewal. Govt must also have some leeway you know, we cannot say you do not need to clear security concerns at all.

Ahmadi: Mr Dave has addressed this. But under the Rules security clearance at that stage is not mentioned.

Ahmadi: You have not even specified in the show cause notice whether it was on grounds of national security or public order, both can be different things.

SC: But it was the Home Ministry?

Ahmadi: Yes. And in their statement it is further ... [Reads]

Bench notes show cause was for violations against MediaOne Live.

Ahmadi: and 5 years ago i was given permission.

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Ahmadi: Ban violates doctrine of proportionality. "Impugned order does not use least restrictive method".

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Ahmadi: In a sense this will become even worse than the dicta in ADM Jabalpur (in which Justice Chandrachud's father joined the majority judgment).

State is not a dispassionate party but has an interest, so case for rigorous scrutiny also made out.

#SupremeCourt #MediaOne

SC: Thank you Mr Ahmadi.
Sr Adv Mukul Rohatgi now appears for the petitioners.

Rohatgi: My lord, the procedure followed for clearance was an empty formality and faulty. For the reason that the I&B Ministry acted as a post office, and gave me MHA data.

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Rohatgi: If there was nothing drastic in the file, I should have been allowed to see it, may be in a truncated manner. CCI orders are redacted sometimes. Courts should have said alright, this is the gist and substance and what do you want to say? That would somewhat comply with..

Rohatgi: natural justice. We do not want to reinvent the wheel, but 19(1)a has been held as most precious of fundamental rights since Romesh Thapar.

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Rohatgi: It was on them to provide the grounds for curtailing the rights using 19(2). Interim order of this Court allowed me to operate.

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Rohatgi gives example of how grant and cancellation of bail differ.

Rohatgi: National security etc are serious phrases and an explanation of 19(2). Please see. If you play with sovereignty it is a high crime.

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Rohatgi: You cannot flippantly use these terms unless there is some alarming occurence over the years resulting in a breach. See the order and notice, the words are flippantly used, please keep Romesh Thapar in mind.

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Rohatgi: Please see the final order, like I said it is from the post office of I&B.

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Rohatgi: We do not know who examined us. It is like a diktat.

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Rohatgi: compliance of Rules cannot be restrictive.

SC: thank you Mr Rohatgi. Yes Mr Nataraj.

ASG Nataraj indicates Bench may be allowed to see the file.

SC: But then Mr Nataraj the issue is, if we see and dismiss it, the real danger is we get influenced by the file...

SC: on the grounds of National security, they will see what is it that is objectionable? So what is your hesitation in showing them the file.

ASG: We have no hesitation in sharing .. may be an independent person can check.

SC: Even with regard to presidential satisfaction...

SC: in a situation like this the question is about how legitimate the reasons are.

ASG: At the outset, in this appeal (not audible).

ASG: There are guidelines on license being granted. Those permissions given are not under challenge.

#SupremeCourt #MediaOne

ASG reads from pleadings.

AAG argues that renewal permission also are subject to security grounds being met.

*correction: ASG

ASG: The security clearances are subject to ... Net worth etc .

ASG reads from the guidelines and rules.

Dave: It is not fair to parties if these facts are not on affidavit. He is arguing these points for the first time.

ASG says he will need another 20-30 minutes.

SC: Take your time. But if the issue is if clearance is given by a third party, then what is the petitioner's remedy? Can we carry out an ex-parte proceeding, essence of Court is both sides hear their arguments.

SC: You have not found them guilty of anything, we are not even at that stage or threshold where chargesheet has been filed.

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SC: You did not claim any privilege before the HC. Even under NSA detention, you have give the grounds.

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SC asks what the breach or information was, telling ASG it has to be necessarily disclosed.

SC: You cannot merely say clearance denied. Yes you have to protect your sources, but saying you will not reveal anything ...

SC: When you refuse registration, you refuse it only to MediaOne Live. Then after 3 years you ... These doubts you will need to address. We will continue tomorrow. Rejoinders may be filed.

#SupremeCourt #MediaOne