"There is an attempt to give communal colour to news and that is a problem. Ultimately it brings a bad name to the country," said the Supreme Court bench headed by Chief Justice of India NV Ramana on 2 September – and it's hard to disagree with these words.
Especially when this came up while hearing a petition regarding vilification of the Tablighi Jamaat by media houses in connection with the coronavirus pandemic, given the way this was used to spread anti-Muslim bigotry.
Except the court was not, as you might expect, calling out TV channels for their communal coverage of the issue, but instead complaining about the behaviour of 'web portals'.
"If you go to YouTube, so much is shown in one minute. You can see how much fake news there is. Web portals are not governed by anything," the court said, adding to its complaints that social media platforms like "Twitter, Facebook, or YouTube" are not accountable and "only worry about powerful men and not judges, institutions or common man".
That there is a serious problem with accountability of social media companies when it comes to communal hate-mongering, is hardly in dispute.
However, the court's comments appear to conflate platforms like YouTube with digital news media, something that was eagerly seized on by Solicitor General Tushar Mehta, who immediately sought to argue that web portals (ie, digital news media sites) ran not just communal, but "planted stories" as well.
This has been a consistent stand taken by Mehta in cases about communal reportage by the media, and has been one of the ways in which the government has sought to justify its new IT Rules, which have been challenged by digital news media outfits in high courts across the country as being unconstitutional (including The Quint in the Delhi High Court).
The conflation of the issues isn't just about rhetorical point scoring – which would not have excited comment – but has tangible consequences and therefore needs to be critically analysed.
These consequences can be seen in what happened at that last hearing: Not only did it cause the court to comment on the need for regulation of [conflated mass of digital news and social media], the bench also tagged the Tablighi Jamaat case to be heard along with the Centre's request to transfer all those high court challenges to the apex court.
A Confusing About-Turn
The most confusing thing about the court's oral observations is that this represents a massive departure from what the petition before the court argued, what the court itself has said about this case in previous hearings – and even what the Centre had said in earlier affidavits.
The petition in question, filed by the Jamiat Ulema-i-Hind, had argued that the media had violated all norms of journalistic conduct and had resorted to “dog whistle tactics” of targeting Muslims, in their coverage of the Tablighi Jamaat gathering.
Specifically, the petition had called out the coverage of TV channels, and laid emphasis on the fact that the Ministry of Information and Broadcasting had not put an end to media’s smear campaign against the Muslim community, which it had powers to do under the Cable Television Networks (Regulation) Act 1995.
As a result, it was argued that the I&B Ministry had failed to fulfil its duty and give equal protection of the law to all persons in India under Article 14 of the Constitution.
Funnily enough, when the Centre tried to argue in an affidavit dated 13 November 2020 that media coverage of the issue had been objective, they failed to cite a single TV news report (despite the allegations in the petition), and instead referred to news reports by the print media. They also said:
"Online newsportals such as The Print and The Wire have also undertaken objective reporting, through news reports, and analysis, through opinion and editorial articles, of events concerning the Tablighi Jamaat."
The Centre then tried to blame the claims of communalisation in the petition on "a few articles in some of the web portals and private fact check portals", all the while ignoring all the examples of hate speech in the media that had been highlighted in the petition.
This affidavit was strongly criticised by the bench hearing the matter back in November 2020, headed by then-CJI SA Bobde, who called the Centre's response "evasive" and asked why they had failed to answer the court's questions about actions taken under the Cable TV Act 1995.
It is therefore bizarre that nearly a year after those hearings, the government seems to have led the court to give the TV channels who engaged in the virulent communalisation a free pass, and put the onus of the problem on 'web portals', even though the government itself had acknowledged that their coverage had been objective.
Who Exactly Needs to be Regulated Here?
The issue raised in the Tablighi Jamaat petition and indeed in the petition against Suresh Chavhanke's hate-mongering Sudarshan News later in 2020, was the regulation of communal coverage on TV. The petitioners in both those cases argued that the central government had powers to take action against such coverage, but were failing to do so.
Somehow, in both matters, the Centre has flipped the issue into a matter of regulating digital media (not even just social media), and is managing to get away with this, allowing the news channels to continue their hate-filled campaigns without impediment.
With regard to Sudarshan News, for example, the Centre filed an affidavit in the apex court on 18 November 2020 (two weeks late), in which it informed the court that the I&B Ministry had found that Suresh Chavhanke's shows on 'UPSC Jihad' had "breached the Programme Code" as they had "a likelihood of promoting communal attitudes".
Despite this, the channel was only cautioned, even though the I&B Ministry had specifically directed them to not violate the Programme Code when they started broadcasting the shows in question. The case, where the court was asked to provide directions to combat hate speech on TV, has failed to proceed further since then.
This is fodder for the Modi government's arguments about the need for their controversial new IT Rules, enacted earlier this year. And this is where the CJI's conflation of social media platforms and digital media 'web portals' is so dangerous.
The new IT Rules by the Centre target both social media platforms (as intermediaries), as well as digital media platforms.
In terms of the former, yes, there are concerns about accountability, given the reach of social media platforms, and the way they have been used for inciting violence, from Myanmar and the Rohingya genocide, to the USA and the insurrection at the Capitol.
In India, too, there is little doubt about the presence of communal hatemongering and incitement of violence on social media. However, that has nothing to do with the digital news media per se.
But over and beyond attempts to ensure accountability of social media platforms for hate speech, the IT Rules create a regime of regulation for digital news media that goes even further than existing regulation of the print and TV media.
This is because not only do the new rules specify a vague 'Code of Ethics' for digital news media (based largely on the Press Council of India's 'Norms of Journalistic Conduct'), they also create a three-tier grievance redressal mechanism for complaints by anyone who believes that the Code has been violated.
When it comes to the Press Council norms, they are norms, not statutory guidelines, and while the TV channels have to follow a Programme Code, this is more limited than the new Code of Ethics for digital media.
There is also actual statutory backing for the Programme Code, unlike the new IT Rules, which arguably go beyond the scope of their parent legislation, the Information Technology Act 2000.
Indeed, this is why the Bombay High Court recently stayed the operation of the IT Rules which require digital media to follow the new 'Code of Ethics' and create the new grievance redressal mechanism, saying:
"The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes. The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions."Bombay High Court's order dated 14 August
As the Bombay, Madras and Kerala High Courts have recognised in various interim orders (though the Bombay one goes further than the others), there are severe problems with the Centre's attempts to regulate the digital media.
Basically, if the Centre were genuinely interested in regulating digital news media, it could easily do so by creating a new legislation for the same, which could properly separate concerns relating to digital news media and social media.
Centre's Attempt to Mislead Poses Dangers to Challenges to IT Rules
Unfortunately, by tagging the Tablighi Jamaat matter with the IT Rules matter, the Supreme Court bench headed by the CJI appears to have taken the government line at face value, in effect conflating issues of social media platform regulation with those of digital news media outfits.
The Centre's failure to draw the court’s attention to the necessary distinction could now have a major impact on the challenges to the new IT Rules, especially if the court agrees to transfer all the challenges to itself.
One can only hope that the court is able to draw the distinction between digital news media and social media when the matters come up for hearing again in six weeks, and address the hate-mongering on TV as well as the concerns about the new IT Rules as two separate issues.
DISCLAIMER: The Quint has challenged the validity of the IT Rules before the Delhi High Court in a Writ Petition, in which the court has issued notice and pending adjudication.
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