NEW DELHI: Courts cannot decide what is in interest of national security, the Centre told the Supreme Court on Thursday while defending its resistance to share contents of the national security reasons recorded against Media One news channel leading to its ban in January this year.
A day after the top court asked the Centre to justify whether a citizen could be kept in the dark about the reasons for denying security clearance, the Centre represented by additional solicitor general (ASG) KM Nataraj submitted that these are policy issues falling within the domain of the executive as national security cannot have a definite meaning.
The bench of justices Dhananjaya Y Chandrachud and Hima Kohli said it will look at the material relied by the Centre to refuse renewal of uplinking and downlinking licence to the Malayalam news channel on January 31. The court reserved orders on separate pleas filed by the channel owner – Madhyamam Broadcasting Limited and its editor Pradeep Raman.
The court kept the confidential documents submitted by Centre in its custody and requested the petitioners to supply a short note on the shareholding pattern of the company having 67,000 stakeholders. The court also wished to know the extent of shareholding held by the promoters and the dispersal of shares within the company.
The channel approached the top court aggrieved by the March 2 judgment by the Kerala high court that upheld the ban after it was satisfied by the “sealed cover” documents submitted by the Ministry of Home Affairs. Senior advocates Mukul Rohatgi, Dushyant Dave and Huzefa Ahmadi who appeared for the channel took exception to such kind of procedures adopted by Centre warning of its dangerous consequences.
Ahmadi said, “This has repercussions for other news channels as well. If this is allowed to pass muster, then the Centre can give a show cause notice to any channel and reject its renewal….It cannot be that they say it is a question of national security and the State becomes the sole arbiter. The court has to be satisfied if grounds of national security actually exist.”
The Media One channel got security clearance from MHA in February 2011 following which it obtained a licence to operate the channel in September 2011. This permission required renewal after 10 years. On January 5 this year, the channel was served a show cause notice for revoking licence on the ground of “national security and public order”. On March 15, the Supreme Court passed an interim order revoking the Centre’s order.
ASG Nataraj said, “What is in the interest of national security is not a question of law but a matter of policy. It is not for the court to decide whether something is in the interest of state or not. It is best left to the executive.”
The court asked Nataraj: “What is so great in these files that you don’t want to show them. I am personally not a proponent of sealed cover procedure. There may be certain situations where you must be sensitive to national security concerns. But we cannot be expanding it.”
The Centre gave the example of Intelligence Bureau (IB) reports that are kept confidential while appointing judges of the high court and Supreme Court. The court replied, “This is a commercial involvement where jobs are at stake. You cannot draw parity with the example on judges’ appointment.”
The law officer cited Supreme Court cases to show that where there are justifiable facts to suggest threat to national security, then the courts cannot insist on principles of natural justice, which mean that the other side need to be given full knowledge and hearing before any adverse action is taken against them.
Although the channel argued that security clearance once granted cannot be denied so long as they meet the eligibility conditions and do not violate the Programme Code, the bench differed with the petitioners and were of the view that nothing stops the government from looking at the security angle at the stage of renewing the licence.