The Supreme Court was told on Tuesday by Malayalam news channel 'MediaOne' that security clearance from the Centre is not needed for renewal of broadcast licence and the government does not have omnibus discretion to impose any new condition.
A bench of Justices DY Chandrachud and Hima Kohli commenced hearing on the plea of the news channel against the Kerala high court's order upholding the Centre's decision to ban its telecast on security grounds.
The top court had on March 15 in its interim order stayed until further directions the January 31 directive of the Centre revoking licence of the news channel and banning its telecast on security grounds.
Senior advocate Dushyant Dave, appearing for the channel, said the "freedom of press" is in the centre of the entire controversy and that the Cable Television Networks (Regulation) Act, 1995 does not contemplate any requirement of security clearance from the ministry of home affairs for the renewal of broadcast licence.
He submitted, "The Act itself provides certain conditions which need to be fulfilled like interest of the sovereignty and integrity of India, security of the State, friendly relations with the foreign state, public order, decency and morality, contempt of court and incitement of offence. There is not a single instance pointed out when we violated the programme code."
He added that if any of these conditions mentioned in the Act is not fulfilled, then the channel is not eligible for registration and renewal of license but the government cannot put any new conditions at the drop of its hat.
Dave said that the Act provides that renewal will be considered after a period of 10 years subject to the condition that the channel should not have been found violating programme code on five occasions and in this case, there was not a single instance when there was any violation.
The bench said the arguments that for renewal of license security clearance is not needed and it is only at the initial stage may be a little far-fetched.
"Renewal is also like grant of license at the initial level which gives you up-linking rights for a fresh period of 10 years," the bench observed.
Dave, however, said that there are additional safeguards provided in the law itself and if the channel violates any of those conditions, then its licence could be suspended.
"The renewal position has general terms and conditions which does not say anything about the need for security clearances. Several safeguards are provided under the law, if there is any violation," he said, adding that the government does not have omnibus discretion in imposing any new condition.
Dave referred to the incident of Tablighi Jamaat congregation at Nizamuddin here in 2020 and said that the gathering takes place every year but several news channels dubbed the members as those responsible for spread of COVID-19 and people from all over the country were arrested.
"These people, who came from several parts of the world, had to spend two-years in custody for no fault of theirs. Ultimately, it was the Nagpur bench of Bombay High Court which said that this needs to be stopped and ordered their release," Dave said, adding that people believe news channels but this kind of narrative causes problems.
The hearing remains incomplete and will resume on Wednesday.
On March 15, the top court had stayed till further orders the January 31 directive of the Centre revoking licence of the news channel 'MediaOne' and banning its telecast on security grounds.
It had said that the news and current affairs channel will continue its operations as it was operating prior to the ban of telecast.
The top court had passed the order after perusing the files filed by the Centre on the basis of which security clearance was revoked and the Kerala high court had passed the order upholding the ban on telecast.
It had left the question open on whether the content of files on the basis of which the ban order was passed be given to the channel to enable it to defend itself.
The Kerala high court had upheld the Centre's decision to bar telecast of the Malayalam news channel and dismissed the plea of Madhyamam Broadcasting Ltd -- which operates MediaOne -- challenging the central government's January 31 decision.
The high court had said that the decision of the Ministry of Home Affairs (MHA) to deny security clearance was based on intelligence inputs received from various agencies.
The channel had contended that MHA clearance was only required at the time for fresh permission/licence and not at the time of renewal.
It had also contended that according to the uplinking and downlinking guidelines, security clearance was only required at the time of application for fresh permission and not at the time of renewal of licence.
