"“We didn’t ask you to file anything about an NDTV programme. You can’t just go on shooting off your mouth because judges asked you questions during the hearing.”" - Justice DY Chandrachud to Sudarshan News’ lawyer Vishnu Shankar Jain
The Supreme Court had some stern words for Sudarshan News over their latest affidavit filed in the court on 20 September, where they were supposed to explain to the court about how they would address concerns that the language, tenor and elements of further episodes of their ‘UPSC Jihad’ show could vilify the entire Muslim community.
Instead, in its additional affidavit, Sudarshan News reiterated the generic assurances it had made in its previous affidavit and devoted more space to say how editor in chief Suresh Chavhanke was shocked and pained when NDTV on 17 September 2008, had broadcast a show titled as 'Hindu Terror: Myth or Fact?'
The channel argued that in this programme just adjacent to the programme caption, "Hindu' Terror: Myth or Fact?", a Hindu saint was shown with 'tilak' and 'chillam' and also a 'trishul.’
“I further submit that NDTV had also broadcast on 26 August 2010 a programme, again anchored by Barkha Dutt titled as “Is ‘Saffron Terror’ real?” In the said programme a Hindu cultural gathering was shown in saffron colour clothes”, said the affidavit.
During the hearing on 17 September, Justice DY Chandrachud had expressly said that the channel’s existing assurances about adhering to the programme code were too generic and did not address the specific concerns the judges had over the show.
During the hearing on Monday, the judge noted that the channel had not taken the opportunity provided to it by the court to assuage the bench’s concerns. He also asked the channel to inform the court whether they felt that they had complied with the programme code when it came to the four episodes on ‘UPSC Jihad’ that had already been broadcast, and whether the remaining episodes would continue in the same vein.
Advocate Vishnu Shankar Jain, representing Sudarshan News, said that the first four episodes “were in compliance with the law”. He also informed the court that the channel’s position was that the remaining episodes would also “be on the same lines”, that there is a ‘UPSC Jihad’ going on, with an attempt to “capture the bureaucracy.”
Following more detailed arguments from senior advocate Shyam Divan on Friday, 17 September on behalf of the channel, the court is now hearing arguments by the petitioner and various intervenors against the broadcast of the controversial show. Hearings will resume on 23 September at 2 pm.
Episodes Contained Hate Speech, Violated Articles 14 and 21: Jamia Students
Monday’s hearing saw arguments from a group of Jamia students who have intervened in the case – these were the same students who had initially obtained a temporary injunction on the broadcast of the show from the Delhi High Court.
Shadan Farasat, appearing for them, had mentioned during the last hearing that Sudarshan News' general assurance of following the programme code cannot be grounds for lifting the stay, as the channel had made a similar promise to the I&B Ministry before the first episode, only to violate the code in the four episodes broadcast till now.
In detailed arguments on Monday, Farasat asserted that the show transgressed into the realm of hate speech, which meant it was no longer protected under the right to freedom of speech and expression.
"“This is a result of abdication of responsibility by the government. If action had been taken by Union in time – the high court gave them the opportunity... If there is an affirmative responsibility on the state (all three organs) to ensure that Article 21 rights of an entire community are at stake, and executive has abdicated its responsibility, will the court be quiet?”" - Advocate Shadan Farasat
Listing several instances from the four episodes broadcast till now which vilified the Muslim community, including a segment where Chavhanke and Madhu Kishwar talked about how there was a plot by Muslims to not just infiltrate the bureaucracy but ‘destroy Hindustan’, Farasat explained that this amounted to hate speech. Even if there were “nuggets of facts” about the funding of the Zakat Foundation of India’s funding sources from abroad, he argued, this did not change the nature of the speech.
Farasat contended that the content of these shows led to a violation of Articles 14 (right to equality) and 21 (right to life and personal liberty.
“A pervasive environment of hate speech reduces a citizen’s access to Article 14. It becomes a hollow promise. Hate speech therefore doesn’t require incitement to violence to be a crime,” he said.
With regard to Article 21, he said that the show seeks to break down the bonds between Hindus and Muslims, just like what was done by Rwandan radio station RTLM to the relations between Hutus and Tutsis, which led to the genocide of the Tutsis in 1994. “If hate speech of this kind is permitted over time, it will lead to similar consequences,” he argued.
Farasat then went on to argue that the court was well within its rights to impose a restraint on the broadcast of the show, as they were only preventing a further broadcast. Based on the channel’s statement that the remaining episodes would be on similar lines, if their speech was protected, then the court would be “protecting hate speech.”
The judges, particularly Justice Chandrachud, expressed their concerns that they had to be very careful with this kind of injunction, noting the argument of one of the new intervenors in the case, represented by advocate J Sai Deepak, that this could have a chilling effect on free speech.
However, Farasat argued that the court was justified in law to impose a restraint here, following the court’s 2012 decision in the Sahara vs SEBI case. The apex court had recognised the need for prior restraint on publications if it could be tied to the restrictions in Article 19(2) of the Constitution (reasonable restrictions on free speech).
One of these restrictions is ‘morality’, he argued – not public morality, but constitutional morality – and hence the violations of Articles 14 and 21 were sufficient grounds for the court to restrain further broadcast of episodes by Sudarshan.
Sudarshan News Claims Investigative Journalism, Intervenors Say Court Doesn’t Have Jurisdiction
The news channel has claimed the programme is an outcome of investigative journalism, which focuses on how Muslims have "infiltrated" the Indian civil service. Urging the top court to lift the stay on the broadcast of the programme, the new channel contended that it will strictly comply with all laws while airing the remaining episodes of 'Bindas Bol' series on the subject.
“The answering respondent further states that he will abide and comply by the programming code and directions of the Ministry of Information and Broadcasting strictly,” said the news channel in the affidavit.
On Friday, the Sudarshan News counsel had said that they will submit an additional affidavit to address the perception of hate speech in the content of the TV programme, so that the court could lift the stay on the broadcast. "Need to look at the programme as a whole, not as a part... I have no objection at all to any community joining the UPSC," argued senior advocate Shyam Divan for the channel.
Right-leaning websites OpIndia, Indic Collective, have also filed an intervention application with the apex court in the Sudarshan TV case on Monday, 21 September. The application asks whether its constitutionally permissible for the SC to judicially legislate “impermissible speech.”
Madhu Kishwar has also filed an intervention application arguing that this is not a matter for the court to examine, and should be left to the government, which is the only institution with the authority to create regulations on speech.
. Read more on India by The Quint.‘Didn’t Ask You to File Anything on NDTV’: SC to Sudarshan NewsCentre Sends Notice to Sudarshan News, Next SC Hearing on 5 Oct . Read more on India by The Quint.