On September 15, 2020 a Supreme Court bench led by Justice Dhananjay Yeshwant Chandrachud restrained Sudarshan TV from airing the remaining five episodes of itsshow titled “UPSC Jihad”. The courtroom exchange, as reported on the twitter handle of
Bar and Bench, reflects a deep concern among the judges (shared commonly by the masses) about the falling standards of mainstream media, and failure of regulatory bodies to arrest the free fall. Indeed, the debate is no longer about the desirability of
regulation, but about its manner and extent. There are no easy answers, for freedom of press is one of the most cherished liberties guaranteed under the Constitution. The freedom of press, implicit in Article 19(1)(a), can be reasonably restricted only on the
parameters specified in Article 19(2). The prior restraint put by the Supreme Court on the broadcast is rare, for generally it is the sulking producer of the content who knocks the doors of the Supreme Court for articulation of his rights under Article 19(1)(a). However,
it will be seen that the order of injunction is justified on facts, and can be traced to Article 19(2). The decision may well serve as a starting point for all future regulatory interventions.
Before we proceed further, it would be apposite to inform the readers about the contours of the expression – “freedom of press”. Given the constraints of space, an exhaustive analysis is not attempted. Succinctly stated, freedom of press refers to the freedom available
to the press to print, publish and report information, news and issues, etc. for consumption of the public at large. Journalistic freedom is necessary for enabling journalists to report events without fear of reprisal – from the government or vested interests. This freedom of publication, however, does not inhere in the press on account of any intrinsic peculiarity. Instead, it is a manifestation of the right of the citizenry to be kept informed of various issues affecting their ability to take decisions or make choices. Citizens have a fundamental right to know the manner in which the country is being run, policy decisions are being taken and implemented, besides a host of other things. In that sense, therefore, the press carries a reverse obligation to be fair in its reporting. Thus, freedom of press imposes a corresponding obligation on the press to be fair to its readers. The press, therefore, owes a moral obligation to its readers to report facts as fairly and objectively as it can.
This moral obligation to report fairly and objectively, unfortunately, has been observed more in breach. Corporatization of media houses has triggered a relentless rat-race to garner Television Rating Points (TRPs) – a numerical tool reflective of the popularity of a TV show or channel, which parameter obviously governs the advertorial revenue outflow. In an era of post-truth and diminishing rationality, TV anchors relentlessly pursue insidious agendas with scant regard for facts. Fake news is often passed on as Gospel Truth. Netflix’s recent documentary – The Social Dilemma – focusing on the illeffects of fake and manipulated news, has declared this scourge as posing existential threat to humanity in the long run. The need for regulation of media is clearly felt, more now than ever before.
Sudarshan TV proposed to air a controversial show titled “UPSC Jihad”. The evocatively titled show purportedly blurred the boundaries between hate speech and offensive speech. Under Article 19(1)(a), only offensive (even obnoxious) speech is protected. Hate speech advocating subjugation of a particular community must be proscribed. However, as mentioned earlier, restrictions on freedom of expression can be effected only in accordance with Article 19(2). Thus, in order to justify the curtailment of journalistic freedom in this case, one needs to look into the parameters prescribed in Article 19(2). These parameters are – sovereignty and integrity of India, the security of the State,
friendly relations with foreign State, public order, decency or morality, laws dealing with contempt of court, defamation or incitement to an offence.
At first glance, it appears that the broadcast of the program does not breach any of the aforementioned categories. The jurisprudential standard for invoking the “public order” test is very high – one that follows the “spark in a powder keg” philosophy. Under this
doctrine, unless a speech is delivered in an already charged atmosphere where rationalities are diminished, or where people do not have a chance to ratiocinate, the “public order” clause would not get triggered. Thus, in the absence of a “powder keg”
situation, the tiny spark would not give rise to a public order issue. To be fair to the producers, four episodes have already been aired on TV without triggering any public disorder.
Other parameters viz. sovereignty and integrity of India, the security of the State, friendly relations with foreign State, decency, laws dealing with contempt of court, defamation or incitement to an offence, rule themselves out. No amount of argumentation can bring the broadcast within these prescriptions.
This leaves us with one parameter – morality. Gautam Bhatia in his book: Offend, Shock or Disturb: Free Speech Under TheIndian Constitution argues that the word “morality” could be construed in three different ways – (i) individual morality, (ii) public morality and (iii) constitutional morality. Of the three, he advocates adopting constitutional morality as the interpretative point. According to him, answers to questions posed by the Constitution must be grounded within the Constitution itself. Abhinav Chandrachud describes constitutional morality to mean two things: firstly, the opposite of popular morality and secondly, the spirit or essence of the Constitution. The second conception enables constitutional courts to test an action by looking not merely at the formal provisions of the Constitution, but also at its undefined spirit, soul, conscience and essence. It is this prong of constitutional morality that can be invoked in the present case. Justice Chandrachud, in his concurring opinion in Sabarimala notes that constitutional morality is rooted in “four precepts” contained in the Preamble to India’s constitution: justice, liberty, equality and fraternity. Secularism was also held to be a part of the constitutional morality.
Fraternity means a sense of brotherhood. It assures the dignity of the individual and the unity and integrity of the Nation. Article 51-A enjoins every citizen of India to, inter alia, promote harmony and the spirit of brotherhood amongst all the people of India transcending religious diversities. Hate speech is clearly anathema to the conception of constitutional morality in that it promotes disharmony between members of different religious communities. It vilifies one particular community resulting in subjugation and unequal treatment of its members by the society. This also violates the equality prong of constitutional morality.
The prior restraint put on Sudarshan TV can be justified on the touchstone of the fraternity and equality prong of constitutional morality. The freedom of press, considered to be at the core of liberty of expression, must yield to the conception of fraternity as rooted in constitutional morality. The show does, prima facie, vilify one particular community. Some of the expressions used by the anchor, as reported by Bar and Bench, are clearly subversive of notions of fraternity. The story clearly has the potential to further wreck the fragile religious eco-system of the society. The Supreme Court could not have abdicated its duty as the ultimate protector of the spirit and the essence of the Constitution. The broadcast could have subjugated the dignity and esteem of the members of a particular community, thereby further violating the principle of fraternity. One only has to travel back a few months when a sustained media campaign against members of Tableeghi Jamaat successfully convinced a large section of the populace about the source of coronavirus spread in India. The campaign was undoubtedly malicious and unfair. If anything, the experience of March-April 2020 further justifies the injunction order. Prior restraint was also necessary as permitting airing of episodes could have caused irreparable damage to the reputation of India’s most prestigious government service. The order of injunction seems justified when tested on the anvil of constitutional morality
(The author does, however, hope that the Supreme Court will lay down clear guidelines in this regard for future programming.)
