No, the Supreme Court Is Not A Mere Spectator

By: Areeb Uddin Ahmed

Sudharshan news which have been on the table for a while for its controversial show called - ‘Bol Bindas’ has been restrained by the Supreme Court today. A bench led by J. D.Y Chandrachud, J. Indu Malhotra and  KM Joseph came down heavily on Sudarshan TV news. While hearing the pleadings through video conferencing the bench observed “ This program was so insidious. Citizens from a particular community who go through the same examinations and get interviewed by the same panel. This also casts aspersions on the UPSC examination. How do we deal with these issues? Can this be tolerated? ”

Last time, when the matter came up before the bench, a positive nod was given and telecasting was allowed. But today, it is a moment of realization that if this broadcast was not allowed prior on 28th August, then the real ill intentions of the Anchor would’ve been sacked behind the doors and this insidious program would’ve never been within the public sphere. As a guardian of the Indian Constitution, the Supreme Court has came forward to protect the basic values of the Preamble and also protect the dignity of the minorities. The telecast was prima facie a trouble maker, from ‘UPSC Jihad” to what not has been starred on the show, but despite all of this, the defence for this was -- National Security and Investigative links. National Security these days works like Ninth Schedule, you can enter anything within the cart, but you cannot question it subsequently.

Not only the reputation of UPSC was openly hindered but the students of Jamia were labeled in the bad light. Coming to the rescue, J. Chandrachud rightly observed that -- “When you say students of Jamia are part of a conspiracy to infiltrate Civil services , that is not permissible. You cannot target one community and brand them a particular manner.” to which J. Joseph adds “That too by making factually incorrect statements. When the matter went to the Central Government, it allowed the streaming with the condition that it does not violate the basic codes. But what we saw was a bit different angle, because screenshot generated from the telecast were very problematic and coming down on this, J. Chandrachud noted -- that “After the Centre passed the order on September 9, the broadcast took place on 11,12, 13 and 14. Did anybody in the Ministry apply their mind on the broadcast which happened from 11 -14?”

Free speech and hate speech are two branches of the same tree, it depends on which side of the tree are are climbing. Gautam Bhatia, was one of the intervene rs in this case, he argued on why the telecast communicated hate speech and it was never covered under the garb of ‘Free speech’. It was rightly stated by him that hate speech undermines the idea of free marketplace of ideas. The targeted community is deprived of the opportunity to respond or defend. The consideration on prior restraint is different in a case of hate speech.

Free speech v. Absolute speech

The main contentions from the other side was freedom of speech and expression, which have been guaranteed by Part-III of the Constitution. But to this contention, J. Chandrachud who has been the pioneer of free speech jurisprudence, rightly observed that -- “this is not a freedom of speech issue. When you say students of Jamia are part of a conspiracy to infiltrate civil services, that is not permissible. You cannot target one community and brand them a particular manner. This is an insidious attempt to malign a community", to which J. Joseph also added that "No freedom is absolute, not even journalistic freedom".

It is noteworthy to mention that those who have been propagating hate speech are trying to find a shelter under the garb of free speech. Unfortunately, some people have been charged of Hate speech and were detained for months, recently if we take the case of Dr. Kafeel who was sacked under the National Security Act, but later he was released by the Allahabad High Court last month. So, the question is whether hate speech is covered under the term ‘expression’ or not and if that speech is capable of creating chaos around the territory then can it be restrained?

As Jeremy Waldron has rightly observed that -- hate speech acts as a "sort of slow-acting poison, accumulating here and there, word by word, so that eventually it becomes harder and less natural for even the good-hearted members of the society to play their part in maintaining this public good".

Gautam Bhatia, in his book ‘Offend, Shock and Disturb’ has rightly argued about the meaning of ‘freedom’ -- When we think of the freedom of speech, we often imagine the lonely orator speaking to the hostile crowd, or the dissident artist who sees her book banned or her film censored, or even the intrepid journalist whose investigative work is threatened by hostile governments or corporations. We think of the State - or other powerful actors - gagging expression that they find uncomfortable or dangerous. Hence, in this case the scenario is upside down and the freedom which is ought to be asked is the free to air ‘hate speech’ under the garb of Article 19.

The legal wall

The Constitution of India guarantees free speech but there are certain restrictions which are to be taken into consideration. Article 19(a) states that there is a freedom to speech and expression but nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 6 [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.] hence, it is noteworthy to state that even the media houses are not exempted under this clause. If a citizen can be restricted, then a news Anchor can be equally restrained if the telecast is a threat of public order.

Secondly, The Cable Television Networks (Regulation) Act, 1995 is the parent act which regulates the transmission of these channels. Section 19 of the Act talks about prohibition of transmission is case where the telecast violates the code and it states:” Power to prohibit transmission of certain programmes in public interest.—Where 2 [any authorised officer], thinks it necessary or expedient so to do in the public interest, he may, by order, prohibit any cable operator from transmitting or re-transmitting 3 [any programme or channel if, it is not in conformity with the prescribed programme code referred to in section 5 and advertisement code referred to in section 6 or if it is] likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity.” Also Section 5 of the same code states that No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.

Thirdly, moving towards the criminal liability in such cases, Section 153A of the Indian Penal Code is equally notable. It states that if someone is promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racials, language or regional groups or castes or communities, or commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Hence, there are enough provisions which attract such chaotic actions by these media houses and especially those who have been spreading a reel of hatred and distress between the communities. The observations made by the Hon’ble Court today is a realization for those who think that the Court would just be a ‘mere’ spectator, but ultimately it is not and it will uphold its duty as a guardian of the Constitution itself. In words of the court in today’s hearing - Any attempt to vilify a community must be viewed with great disfavour by this court which is a custodian of constitutional rights

A lesson for Sudarshan News

It was not the first time that this channel has been on table for its fake propagation. There have been many instances, like in 2017 the channel reported a story on a differently-abled man portrayed as ‘Rohingya criminal’ and the channel has a history of spreading hatred between different community. Also, Alt news has compiled a list of incidents where Sudarshan news has been at fault. Hence, the argument that “there is a investigation, which has links with National Security’ is totally flawed because if the telecasting is allowed then the damage which it would cause would be irreparable. Hence, let us hope that justice will prevail and such channels should be restricted from airing communal motivated programs. To conclude, it is note worthy to refer Gautam Bhatia’s submission in today’s application -- The freedom of speech and expression is not limited to what the ruling dispensation may find palatable, or what public consensus may permit, but includes the freedom to dissent, to question received wisdom and established social mores, and to “offend, shock, or disturb.”

About the author Areeb Uddin Ahmed is a law graduate from Faculty of Law, AMU, he can reached out at Twitter and LinkedIn.