The Delhi High Court on Friday, 28 August, stayed the broadcast of a controversial show to be aired by Sudarshan TV, with its promo casting aspersions on the presence of Muslims in civil services. The case has been listed for hearing on 7 September, and the show cannot be broadcast till then.
The show in question, editor-in-chief Suresh Chavhanke’s 'Bindas Bol', was scheduled to be broadcast at 8 pm on Friday and was touted to be an 'expose' of a conspiracy by Muslims to infiltrate the bureaucracy. The high court’s order came after a plea by students of Jamia Millia Islamia University.
It should be noted that the Supreme Court declined a request for a pre-broadcast injunction, made by a lawyer in a separate petition before the apex court, in an order which was published at 7:28 pm.
A bench of Justices DY Chandrachud and KM Joseph have posted that matter for hearing on 15 September, where they have said the court will need to consider how to balance the right to freedom of speech against possible violations of other fundamental rights in a situation like this.
The conflicting nature of the orders was brought up by Chavhanke during his broadcast at 8 pm, where he complied with the high court order despite initially indicating that he had not received notice of the stay. He has now said he will approach the courts over the weekend to secure permission to broadcast his show.
This is likely to eventually lead to both petitions being transferred to the Supreme Court. Until the high court order is set aside, the stay will remain in force.
What the Controversy is About
Chavhanke, who has a record of spreading misleading and fake news, including with a communal slant, had put out a trailer for a series on this issue on his 'Bindas Bol' show, which was supposed to air from 8 pm, 28 August onwards, during which he said (translated to English):
“How come suddenly the number of Muslims has increased in IAS and IPS? What is the secret of them getting the highest marks and ranks in one of the toughest exams?... Imagine if the ‘jihadis of Jamia’ will be your district collectors and secretaries in ministries, what will happen then? Watch our biggest expose on ‘Naukarshahi jihad’ (bureaucracy jihad) this Friday.”Suresh Chavhanke
Former and current students of Jamia Millia Islamia University then approached the Delhi High Court against the broadcast of the show, arguing that it seeks to "defame, attack and incite hatred against Jamia Millia Islamia, its alumni and the Muslim community at large."
Why did the Delhi HC Grant a Stay?
Justice Navin Chawla of the Delhi High Court issued a notice in the case and passed the injunction in light of provisions of the Cable Television Networks (Regulation) Act 1995. Section 5 of this Act says that no person shall broadcast any programme which is not in conformity with the prescribed programme code, which is set out in Rule 6 of the Cable Television Networks Rules 1994.
This programme code includes prohibitions against shows which contain an attack on religions or communities, promote communal attitudes, are defamatory, malign or slander certain groups, among other things.
Section 19 of the 1995 Act allows an authorised officer to prohibit the transmission or re-transmission of any programme which is not in conformity with the programme code, while Section 20 allows the central government to prohibit the broadcast of any channel in the public interest.
The Centre informed the Delhi High Court during the hearing on Friday, that from the trailer for the show, it prima facie appeared to be a violation of the programme code, and so a notice had been sent by them to Sudarshan News. However, they had not yet received a response from the channel.
The court has listed the case for hearing on 7 September, when Chavhanke and Sudarshan News were to be given an opportunity to respond. However, now that Chavhanke has said that he will challenge the court order in light of the Supreme Court’s decision, the case may be taken up in either the apex court or the Delhi High Court before then, with the journalist saying he will try to get his case taken up over the weekend itself.
What Happened in the Supreme Court? Is There a Conflict Between the Cases?
The other petition in the Supreme Court was filed by an advocate, Firoz Iqbal Khan. He also argued that the show would violate the programme code and the 1995 Act. After hearing arguments from Khan’s lawyers, the court issued notice to the government, Sudarshan News, the Press Council of India and the News Broadcasters Association, and said it might even appoint an amuicus curiae (independent expert) to assist it.
The apex court judges held that the petition prima facie “raises significant issues bearing on the protection of fundamental rights. Consistent with the fundamental right to free speech and expression, the Court will need to foster a considered debate on the setting up of standards for self-regulation. Together with free speech, there are other constitutional values which need to be balanced and preserved including the fundamental right to equality and fair treatment for every segment of citizens.”
On the issue of a pre-broadcast stay, the Supreme Court said:
“At this stage, we have desisted from imposing a pre-broadcast interlocutory injunction on the basis of an unverified transcript of a forty nine second clip. The Court has to be circumspect in imposing a prior restraint on publication or the airing of views.”
It should be noted that according to the Delhi High Court’s order, it had been taken through the actual video of the trailer for the show, rather than an unverified transcript. Moreover, no lawyers for the government were present for the hearing in the apex court.
In the Delhi High Court, however, Anurag Ahluwalia, a standing counsel for the central government was present, and informed the court of the complaints received by the Ministry of Information and Broadcasting about the show, and the notice it had sent to Sudarshan News about the same.
The confusion appears to have arisen because nobody from the high court petitioners’ or the government’s side was aware of the other plea in the Supreme Court. Chavhanke sought to argue during his show that the Supreme Court order was hidden from the Delhi High Court, raising questions about its validity, but there is no basis for this claim. Indeed, as pointed out, the Supreme Court order was only published on its website at 7:28 pm.
However, there is certainly a conflict here between the two orders, and either court can now be approached by Chavhanke to settle the same.
The stay will remain in force till set aside by either court, so for now the show cannot be broadcast.
Once challenged, however, the Supreme Court or the high court would have to be convinced that the material and submissions provided to the Delhi High Court were different from what was provided to the apex court, and are of a sufficient nature to justify a pre-broadcast ban, to allow it to remain in force.
If not, the Supreme Court order will end up taking precedence. Since the apex court has now taken up the broader issue, the petition in the high court will either have to be transferred to the SC or kept in abeyance till the apex court makes a decision.
Chavhanke’s Initial Denial of Notice About the HC Order
Before the broadcast Chavhanke took to Twitter, saying that the show would go on at 8 pm, while pointing out that they haven't received any notice regarding a stay.
"The show will happen at 8 pm. People on social media are posting about a stay by the high court. But no such notice has been officially received by us... If the notice comes, then we'll read it and make our stand clear at 8 pm," he said in a tweet in Hindi.
Meanwhile, Shadan Farasat, representing the petitioners from Jamia, had clarified that the order had already been sent to Chavhanke through “electronic mode”, as specified in the Delhi High Court’s order.
When the show began at around 8 pm, Chavhanke proceeded to say that he had received the physical copies of the order around 8 minutes before the show’s time, and that he respected the courts and hence would not disobey their order.
What Did the Petition in the Delhi HC Say?
In their petition, the Jamia students had argued that the proposed broadcast of the show and the continued broadcast of the trailer was not only a violation of the programme code, but also a threat to their right to life and personal liberty under Article 21 of the Constitution.
The petition argued:
“That the proposed broadcast, as well as the continued broadcast of the trailer, violates the right to life and personal liberty of the Petitioners. It poses a clear and present danger to the Petitioners as well as other alumni/ students of Jamia Millia Islamia, including those students who have qualified for the Civil Services examination 2020 in particular and the Muslim community in general by inciting the non-Muslim population to view them as fifth columnists seeking to infiltrate and capture a vital pillar of Indian democracy, and leaves them open to physical harm, including the possibility of lynching. Further, the career prospects of the Petitioners are also adversely affected due to the creation of a hostile environment where organisations and people are unwilling to give them jobs on account of them being former/current students of Jamia Millia Islamia and consequently ‘jihadis’ or ‘terrorists’.”
The petitioners asked for a prohibition of the broadcast of the show, as well as for the trailers and promotional videos for the show to be taken down from the internet.