The Supreme Court on Tuesday, 15 September, ordered that Sudarshan News cannot air any further episodes of editor Suresh Chavhanke's show about 'UPSC Jihad' (or any similar content) till further orders from the court. In its order, the court said:
“At this stage, prima facie, it does appear to the court that the object intended by the broadcast of the show is to vilify the Muslim community. Several statements are palpably erroneous. In the circumstances, at this stage, the court is of the view that we are duty bound to ensure that the statutory obligations under the programme code are complied with.”
The bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph argued that the contents of the show, which has seen four episodes of a planned 10-episode broadcast till now, appeared to violate Rule 6 of the programme code, which prohibits broadcasts that attempt to portray a religious community in a negative light and also includes a prohibition against false and defamatory contents.
“Any attempt to vilify a community must be viewed with disfavour by this court as a protector of Constitutional values,” Justice Chandrachud said, while dictating the order.
He also clarified that there had been a change in circumstances since the apex court had previously heard the matter on 28 August, when it had refrained from granting a pre-broadcast injunction.
‘Can Something Be More Insidious and Dangerous For Stability & Integrity of the Nation?’
Senior advocate Anoop Chaudhari, representing the petitioner against Chavhanke's show, Firoz Iqbal Khan, informed the court that Chavhanke had broadcast multiple episodes on this issue that were blatantly communal in their content.
He said he had submitted the transcript of the first episode, noting the many false and misleading claims made in it, as well as the inflammatory graphics used in the show.
The bench of Justices Chandrachud, Malhotra and Joseph noted that the petition raised questions about regulation of this kind of content beyond just Chavhanke's show.
Justice Joseph made several observations about programmes on TV, including the way anchors conduct debates, the lack of transparency about ownership patterns, and a right to respond.
While Justice Chandrachud reiterated his reservations about imposing pre-publication restraints on any broadcasts – he had declined to grant such an injunction though the Delhi High Court did do so till the I&B Ministry took a call – he also raised concerns about the content of Chavhanke's show.
Objecting to the show's claims that Muslims were 'infiltrating' the civil services, he said:
“Can there be something more insidious and dangerous for the stability and integrity of the nation? This also destroys the credibility of the institution of the civil services, by casting aspersions on an institution like the UPSC without any evidence.”
In light of this example, Justice Chandrachud was of the opinion that there was no self-regulation taking place in the media, and asked Solicitor General Tushar Mehta for his views on putting in place some enforceable standards, particularly for the electronic media, though he continued to say this should be done through proper self-regulation, not the state.
‘Exercise Freedom With Responsibility and Restraint’
The Solicitor General raised his own concerns about any potential interference with journalistic freedom, and said that it would be "disastrous for democracy" to control the press.
Justice KM Joseph noted that there is no separate freedom of press in India, and that the press is subject to the same restrictions as regular citizens.
Returning to Chavhanke’s show, Justice Chandrachud asked: “How rabid can it get? The only answer to this to ensure we have a stable democracy is to have some kind of enforceable standards.”
Senior advocate Shyam Divan, representing Chavhanke and his channel, said he would need a couple of weeks to file a response on these points.
"We will give you time Mr Divan," Justice Chandrachud said. "But we expect some restraint from your client. Your client is doing a disservice to the nation. We emphasise that there has to be an exercise of this freedom with responsibility and restraint."
The judges asked Divan to set out what his client would be doing to ensure this in the remaining episodes on ‘UPSC Jihad’ he was planning to broadcast.
There was a brief adjournment of the hearing at this time.
The Issue of TV Media Regulation
When the hearing resumed, the court noted the presence of the Press Council of India (PCI) and the News Broadcasters Association (NBSA), which are the self-regulatory mechanisms for different forms of media. The judges then sought to ascertain the views of the lawyers and parties present on regulation of electronic media, particularly TV news channels, given their impact and reach.
Solicitor General Tushar Mehta objected to this, saying that the issue should not be restricted to TV channels alone, but also needed to cover internet-based media. He first took the example of objections that could be raised against Constitutional scholar Gautam Bhatia's blog (Bhatia is representing one of the intervenors in this case), and whether such objections should be subject to restrictions.
When Justice Chandrachud pointed out that comparing TV channels with intellectual blogs is like comparing chalk and cheese, Mehta clarified that he was only giving an example. He then took the example of digital portals or YouTube channels which spread ‘fake news’ about medicines available during the current pandemic.
Justice Chandrachud responded that it was open to the court to look into regulation of only TV media at this time, given its impact and reach, without getting into the regulation of internet-based content, which was a much more complicated problem.
Arguments in Court
The judges then heard from advocate Shadan Farasat, representing the intervenors from Jamia who had first approached the Delhi High Court about this issue.
He argued that the shows being broadcast by Sudarshan News amounted to hate speech, and noted that under the Cable TV Broadcast Regulation Act, 1995, the government had the power to prohibit broadcast of particular shows and channels.
He further said he could show the court some clips from the episodes that had been broadcast, which showed how pernicious the clips were, and how they amounted to communal hate speech.
Shyam Divan, representing Sudarshan News, objected at this point to the playing of limited clips, and said the judges should see the entirety of the shows in question. He reiterated his request for time to respond to the intervention applications in the case.
Justice KM Joseph asked if the channel would be willing to defer the broadcast till he submitted his responses, but Divan said his client was opposed to this as this would amount to prior restraint on free speech.
Divan argued that the show was "investigative journalism" which sought to show that there was a lot of funding for training of Muslim UPSC candidates that came from sources inimical to India's interests.
Advocate Shahrukh Alam pointed out that the campaign by Sudarshan News went beyond the episodes broadcast thus far, and also included comments and promos on its social media handles using hashtags about ‘UPSC Jihad’ and infiltration, and that this raised grounds for an injunction against their behaviour.
Farasat then took the court through some of the things broadcast during the show’s first two episodes, including the blatantly and clearly false claims that Muslims could take UPSC exams till a later age as compared to Hindus, and got more attempts than Hindus to try for the civil services.
Justice Chandrachud conferred with the other judges and then suggested that the court would take up the matter on Thursday, 17 September, and that Sudarshan News should defer any broadcasts till then.
Divan objected to this strongly, saying that this would be an infringement of freedom of speech through a prior restraint.
Justice Chandrachud replied that with four episodes of the show already out, and the other six episodes to continue on from that, this was no longer a question of prior restraint.
"When you say students of Jamia are part of a conspiracy to infiltrate civil services, that is not permissible," he said, before adding, "You cannot target one community and brand them a particular manner. This is an insidious attempt to malign an entire community."
‘Against Diversity and Harmony of Our Country’
Justice KM Joseph also took specific exception to the fake facts broadcast on the show.
Divan continued to argue that there were no grounds for imposing a prior restraint, arguing that the court had itself warned against this in its order on 28 August, and that the I&B Ministry had allowed the broadcast on 9 September.
He said he could provide detailed responses on the content already broadcast at the next hearing, as well as provide an affidavit on the larger themes of the show.
The Solicitor General also agreed that there were statutory authorities which were responsible for regulation under the Cable Television Broadcast Rules, 1994.
Justice KM Joseph pointed out that the damage done from allowing further broadcasts here would be “irreversible,” and that the programme code prohibited the broadcast of such shows. “This is against the diversity and harmony of our country,” he added.
Justice Chandrachud also asked the Solicitor General if the I&B Ministry had applied its mind to the episodes of Chavhanke's show broadcast on 11, 12, 13 and 14 September, to see if they violated the programme code, as they had directed Sudarshan News to ensure it didn't violate the law in its order allowing the show on 9 September.
Gautam Bhatia, representing seven former civil servants who had intervened in the case, was then asked by Justice Chandrachud if he had any submissions to make for his clients. While he said their intervention mainly related to the larger question of what constitutes hate speech, on the issues of whether the show's further episodes should be broadcast, he said:
“The court’s hesitation on prior restraint is well-placed. The rationale is that the marketplace of ideas should not be choked off. This rationale is not borne out for hate speech as the gravamen of hate speech means that the community targeted doesn’t get an appropriate chance to respond, because of the very nature of hate speech.”
On this basis, he suggested, that the court's suggestion that the further episodes be deferred till the court heard the matter again after two days, after watching relevant sections of the broadcasts, was an appropriate balance.