“The tarring of a community is where it goes from free speech to hatred,” said Justice Dy Chandrachud, as the Supreme Court on Friday, 18 September, asked Sudarshan News editor Suresh Chavhanke to place an affidavit on record. The apex court asked Chavhanke to explain how he will assuage concerns over broadcast of future episodes of his ‘UPSC Jihad’ show, so that it can then be seen if the stay on the broadcast can be lifted.
Justice Chandrachud further said:
“You are entitled to say that there is a foreign organisation which has dubious funding. But to brand every member of a community, that is a problem.”
He noted that this would alienate people from the Muslim community who had nothing to do with the elements Chavhanke was talking about on his show.
Senior advocate Shyam Divan, arguing for Sudarshan News, made extensive arguments seeking a vacation of the stay on the show’s broadcast and defending the contents of the four episodes which had been broadcast till now.
The bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph asked several tough questions from the channel about the content of the shows broadcast till now, and why they had concerns about it constituting hate speech.
“The bottomline is that you’re maligning a whole community,” Justice KM Joseph said, after pointing out various problems in the content put out so far.
The court was hearing arguments on the petition filed by advocate Firoz Iqbal Khan against the broadcast of Chavhanke’s show, as well as several intervention applications filed by various parties, including Jamia students and several retired civil servants.
During the previous substantive hearing on 15 September, the same bench of the apex court had directed Sudarshan News to not broadcast any further content relating to its claims of ‘UPSC Jihad’ till further orders.
This was because the court found that the objective of the show, prima facie, was to “vilify the Muslim community”, and that the four episodes of the series broadcast till then included information which was “palpably erroneous.”
As a result, Sudarshan News had been injuncted from broadcasting the remaining six episodes in the series till the court gave it the go ahead.
The hearing will resume on Monday, 21 September at 2 pm.
ARGUMENTS RAISED BY CHAVHANKE AND SUDARSHAN NEWS
Arguing for the channel, Divan had begun by saying that it was dangerous for a constitutional court to get into pre-censorship of a TV show, as the role of such courts is to “uphold the full amplitude of the right to free speech.”
He asserted that Chavhanke, as editor in chief of the channel, felt that his show was “very solid” when it came to its facts, and that he had reached out to the parties involved – essentially representatives of the Zakat Foundation of India – for comment and participation in the show, but they had declined.
Divan then proceeded to take the court through the affidavit that Chavhanke had submitted on behalf of the channel defending their actions and show.
He noted that Sudarshan News has been operating for the last 15 years, and had not been accused of any violations of the programme code in that time. He said that Chavhanke was committed to adhering the programme code, and that Sudarshan News was not some “shoot and scoot” channel that would run away; it would face the consequences.
Divan argued that Chavhanke has defended his shows as “investigative journalism” and an attempt to make the public and the government aware of “anti-national and anti-social activities and the modus operandi.”
You can read more about what his affidavit said about the show, and why he felt there needed to be an expose on the Zakat Foundation of India and its training of young Muslims for the civil services here.
Divan noted the documents which Sudarshan News believes back up their claims of links between office bearers of the Zakat Foundation of India and people with connections to terrorist organisations.
In particular, connections to the Madina Trust in the UK, Muslim Aid UK and Khalil Demir were mentioned and explained as set out in the affidavit.
Divan noted that there already exists a mechanism for complaints and grievance redressal for the petitioners and intervenors and that the Supreme Court had, in previous judgments, acknowledged that this was the case, including in the case of Common Cause vs Union of India, where Justice Chandrachud was part of the bench.
Moving on from the affidavit, Divan re-asserted that the shows were “fact-based journalism.” He said that the show involved “weighty facts and weighty issues” which the public needed to be made aware of so they could discuss it. If he hadn’t done his show, the public would have lost out on this important information.
Wrapping up, Divan argued that the court should lift the injunction and allow the broadcast of the remaining episodes. He said there was no incitement of violence by Chavhanke on the show, and that while there may be issues of hyperbole in the presentation of it, there was nothing in the broadcasts which violated the programme code.
He also assured the court that if the rest of the episodes were allowed to continue, he “didn’t think there would be any breach of the programme code” going forward.
FLAMING BACKGROUNDS, OFFENSIVE STEREOTYPES
Justice Chandrachud noted that the court was conscious that imposing a pre-broadcast restraint was an extreme step, which was why they had not granted an injunction on 28 August. However, as noted in their previous order, the circumstances had changed after the broadcast of the first four episodes of the series.
Acknowledging that Sudarshan News was entitled to do a show, and conduct a fact-based investigation into the Zakat Foundation of India, he said that Divan’s arguments “sidelined the speech” used by Chavhanke in his show.
Going through the submissions by the petitioner and the intervenors, he noted how the channel showed flames in the background and images of men in skull caps, with green shirts and bulging eyes when showing the clips of the Muslim leaders talking, as well as when showing the charts showing increases in number of Muslims clearing the civil services over the years.
He also noted the language used by Chavhanke, constantly referring to the community as a whole and the tenor of how he did so, as being problematic.
“You want to investigate the ZFI, certainly do it. But to say an entire community is involved in this is problematic. The implication is that the joining of all young Muslims in the civil services is part of a conspiracy to take over the civil services.”
Divan responded that the programme needed to be seen as a whole, not by parsing particular clips or social media posts on it. While he said he personally didn’t appreciate the language or the graphics used in the show, he argued that this still “isn’t enough to get the courts to ignite a prior restraint.”
He also suggested that the judges’ concerns had been conveyed loud and clear to Chavhanke, who was attending the hearing, so that these could be addressed in further episodes.
Justice Chandrachud still had questions, however. “The tarring of a community is where it goes from free speech to hatred. You are entitled to say that there is a foreign organisation which has dubious funding. But to brand every member of a community, that is a problem.” He noted that this would alienate people from the Muslim community who had nothing to do with the elements Chavhanke was talking about on his show.
Justice Indu Malhotra also said that the elements of flames, and “hurtful, offensive” stereotypical images should not be used while broadcasting a show like this.
Justice KM Joseph, in a blistering set of comments, noted with concern that very few actual consequences could apply to Sudarshan News for the content of its show under the existing regime of regulation.
He also took the view that what had been shown in the channel could not be considered as just setting out facts about an investigation into the Zakat Foundation, and clearly violated Rule 6(c) of the programme code.
Looking at the language, graphics and tone, and just the fact that the shows are criticising the fact that Muslims, which make up around 15 percent of the population, are seeing a small increase in their still-disproportionately low representation in the civil services, he said:
“What kind of attitude are you inculcating with this? When four episodes have already been broadcast? Will you continue with this rant? There are other communities also who want to “capture the power”. The bottom line is you’re maligning community.”
Justice Chandrachud suggested that for them to lift the stay on the broadcast of further shows, Sudarshan News should come forward with an affidavit in good faith setting out the ways in which it would assuage these concerns, and ensure the remaining episodes would not cross the line of hate speech.
“We have a constitutional duty to protect human dignity which is as important as our duty to protect free speech,” he said, adding: “We respect the right of freedom of speech but we are absolutely concerned about these kind of attacks against a community.”
Chavhanke agreed to file such an affidavit at the earliest, so that it was available for the judges when the resume their hearing on Monday.
‘TOOTHLESS’ NEWS BROADCASTERS ASSOCIATION & OTHER POINTS
The Centre, represented by Solicitor General Tushar Mehta, responded to questions by the judges about whether the government had complied with directions in a previous judgment by the apex court for setting out rules for an effective grievance redressal mechanism when it came to news channels, by saying that the government was drafting a legislation for this, which was currently up for public consultation.
Mehta also noted that the News Broadcasters Association had, in an affidavit, pointed out that it already had a mechanism for self-regulation, and that some of the issues the court was considering here were already being considered by CJI SA Bobde in a separate case regarding the TV coverage of the Tablighi Jamaat.
Justice Chandrachud, however, dismissed the NBA’s self-regulatory mechanism as “toothless” as the maximum penalty which could be imposed under it on a channel was Rs 1 lakh.
Advocate Nisha Bhambhani, representing the NBA, objected to this, noting that the NBA also made channels apologise for violations of the programme code at primetime slots, which she claimed was a strong power.
The judges pointed out that the NBA did not have any power to punish TV channels which were not members of it, and that Sudarshan News, for instance, was not a member of the NBA. The Centre and NBA were therefore asked to give their views on how to strengthen the self-regulation mechanism.
Senior advocate Preetesh Kapur, representing the Press Council of India, noted that the print media’s coverage of the news in recent times had been far more restrained, and that this was because they had a strong, enforceable code of conduct. He noted that the PCI wanted to submit representations to the court on when prior restraint could be imposed by the courts, including for hate speech.
Shadan Farasat, representing the Jamia students, asked the court to ensure it allowed him and the other intervenors to argue against the lifting of the injunction on Sudarshan News, as any assurances it provided were no guarantee that it would not violate the programme code, especially the Rule on content against a community.
This was because prior to the broadcast of its first episode, it had given an assurance to the I&B Ministry that it would not violate the programme code, but the content of its four episodes thus far had already done so – he said he would take the court through the various ways in which this had happened.