CHENNAI: The media had reported on Sunday that Marans have won the battle against denial of security clearance for Sun TV FM Channels in the Delhi High Court as they had won by the interim orders of Justice Satyanarayana of Madras High Court. But the order of the Delhi High Court which came out on Monday indicates that what the Marans seem to have lost in Delhi what they had won in Chennai.
This interesting turn in the Marans case needs understanding of some basic facts. The FM radio companies from Delhi and Mumbai which had petitioned against denial of security clearance to Delhi High Court were joint venture companies in which Marans did not hold the majority shares nor were Marans directors in the two companies. It is only on this ground that the Delhi High Court has okayed the participation of the two companies in E-auction for FM radio license.
The Madras High Court on the other hand had passed favourable orders in respect of companies where Marans are majority shareholders and/or directors. The Madras High Court had said that prima facie Marans had established that the security denial was not proper. The Court had gone into whether the government was right in denying security clearance to Marans. The central issue is whether the court could indeed go into national security issues. Whether this aspect was urged on behalf of the government in Madras High Court is not clear. But in Delhi High Court this point was brilliantly argued by the Additional Solicitor General Tushar Mehta who represented the central government. The Delhi High Court has held the court cannot go into government policy to permit or deny security clearance. It means Sun TV controlled by Maran can’t challenge government order on security clearance. Denial of security clearance cannot be challenged unless it is malafide. The Delhi Court has clearly ruled “We also make it clear that we are not touching upon the policy of requiring a security clearance. We are, as rightly pointed out by Mr Mehta, not sitting in appeal over the decision of the respondent as to the security angle assessment insofar as Shri Dayanidhi Maran or Shri Kalanithi Maran are concerned. We are also not called upon to comment upon, nor have we, as to whether the allegations/charges against the said two individuals and Sun TV are well-founded or unfounded.”
“Those would be decided in criminal proceedings.”
The Court also said that not only the companies but also its Directors as individuals -- that is Marans -- have to be security cleared. Noting that Maxis, 300-line telephone & money laundering cases as the basis for security denial the Delhi High Court has refused to go into whether the charges in the cases are adequate for denial of security clearance which is the prerogative of the central government.
“Let us clear some ground with regard to the scope of challenge and the amplitude of our consideration in these writ petitions. We are not adjudicating on the validity of the stipulation regarding security clearance.” The Court noted that even though the petition had prayed for quashing [Cl 3.8] for security clearance it was not argued.
The Delhi High Court has passed final judgement against all arguments on the basis of which Marans have secured interim order from the single judge of the Madras High Court. Marans have challenged the denial of security clearance on the ground that there is not adequate ground for denial and also on grounds of violation of the freedom of expression guaranteed under the constitution.
The Delhi high court overruled all the arguments and has virtually decided the case against the Sun TV group -- not only in FM radio matter but also potentially in the case of Kal Cables which runs the cable company and also Sun TV which runs the channels of the television.
Also the Delhi High Court was not persuaded by the Attorney General line of Constitutional disaster if the security clearance was denied.
In fact neither Kapil Sibal nor Abhishek Singhvi dared to have touched the constitutional point at all even though their petitions had raised it.
The Delhi High Court order is a division bench order which would prevail over the interim order of f the single judge in Madras. It is evident that what Marans have gained from the Madras High Court in Chennai they have lost in Delhi. They have also have had the law decided against Sun TV and Kal Cables.
There is also flaw in Delhi High Court order which seems to have resulted in the favourable order. The Court had held that the stipulation for security clearance does not extend beyond the company and directors to shareholders as there was non intent to bring in the shareholders. The Court does not seem to have noticed that the form in which security clearance has to be applied clearly asks for shareholding above 10% held by any one. The intent is therefore clear that shareholding is also a factor for security clearance. So the Delhi petitioners seem to have been lucky more than having the law in their favour.