Freedom of Speech and the Courts: A Legal Analysis of the Sudarshan News and Andhra Pradesh Land Scandal Cases

Part One of a Two-Part Series

Two judgments on prior restraints to free speech were handed down by the Supreme Court and the Andhra Pradesh High Court earlier this week. The Supreme Court restrained Sudarshan News from telecasting future episodes of its programme ‘BindaasBol’ pertaining to Muslims in India’s civil services by way of an interim order. The Andhra Pradesh High Court also passed an interim order restraining all media from publishing any information about an FIR which was registered against the former Advocate-General of Andhra Pradesh and other accused persons relating to land purchases in Amravati before it was announced as the new capital of Andhra Pradesh. 

Through this two-part piece, I will analyse the two cases in detail. My argument is that the Supreme Court order is based on hollow non-legal justifications. The Andhra Pradesh High Court order is plainly wrong in law. Apart from varying degrees of error, there is a fundamental similarity between them—they demonstrate the consequence of a culture of litigation which urges judges to do the right thing rather than follow the letter of the law. This may get favourable results in some cases but causes grave long-term damage to the need for legal certainty and the perception of judiciary as an apolitical institution. 

In Part I, I deal in detail with the Sudarshan News case. In Part II, I deal with the Andhra Pradesh land scandal interim order and compare the two cases. 

Part I- The Supreme Court Fosters a Debate on Free Speech

In the Supreme Court, a petition was filed under Article 32 of the Constitution alleging a violation of fundamental rights anticipating the imminent broadcast of 10 episodes of the show ‘Bindaasbol’ on Sudarshan News. [The petition is unavailable to me so these facts are based on the original order of the Supreme Court available here] An ‘unverified 49 second clip’ (a promo) was presented as evidence of the divisive potential of the show, expressing views derogatory to a particular community. 

The Supreme Court, at the first instance, refused to stop broadcast of the show stating that the Court has to be “circumspect” about imposing prior restraints on publication. It noted that statutory authorities, notably the Ministry of Information and Broadcasting with powers under the Cable TV Regulation Act and the Programme Code had sufficient powers to take such action if necessary for compliance with the law. The Ministry is empowered under the Act to prohibit the transmission or retransmission of any programme that violates the Programme Code. An authorised officer also has the powers to prohibit a programme it is “likely to promote” hatred or ill-will between communities. The Programme Code is wide-ranging and in relevant part prohibits a programme which “contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes.” These powers are wide enough to cover both prior and post-transmission restraints. Having summarily noted these powers as well as provisions under criminal law, the Court refused to intervene itself. It however did not dismiss the case but kept it alive “having regard to the importance of the issues which arise from the petition under Article 32” and “the need to foster a considered a (sic) debate on the setting up of standards of self-regulation.”

A petition had been filed at the same time on the same issue in the Delhi High Court. This Court had initially stayed the broadcast. Hearing the matter again on the day after the Supreme Court order, the High Court stated that the channel had admitted to the ‘unverified’ clip. Having seen the clip, it found it prima facie violative of the Programme Code. It refused to lift its stay, directed the Ministry to take a decision in this regard and unlike the Supreme Court, which kept the matter pending, disposed of the case. 

In pursuance of the order of the Delhi High Court, the Ministry of Information and Broadcasting stated that the powers under the law were ordinarily exercised by it subsequent to broadcast (since that is when a violation would come to light) and not before it. [The law, as stated above, permits prior restraints as well.] In this case since the broadcast had not taken place and apprehensions had been raised about the law being violated on the basis of a promo, which the High Court had concurred with, the Ministry sent a notice to the channel stating that the programme should comply with the law failing which action would be taken. With this caveat, it allowed the broadcast. 

Four episodes of the programme were subsequently broadcast. Following this, when the matter came up again in the Supreme Court (since it had been kept pending), several intervention applications were filed. One of the applications stated that it was filed to assist the Court in “arriving at a just solution” as the Court had indicated it would consider “larger questions dealing with the balance between the freedom of speech and the right of every citizen to fair and equal treatment.” This, the applicants believed “is an important and urgent judicial task.”

Having heard all parties, the Supreme Court found that the “intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community.” It found itself “duty bound to ensure compliance with the salutary principles of the Programme Code.”On the basis of the episodes that had been aired, further episodes of the show were barred till the Court finally disposed of the case. 

No Constitutional Question at Stake

I watched the better part of the first episode that had been broadcast. Having done so, in my view, the prima facie conclusion that the Court reaches—that the episodes seek to vilify the Muslim community—is clearly made out from the single episode I saw. Though the programme attempts to present statistics and the anchor claims that he is willing to hear all parties, the single-point focus of the programme as broadcasted appears to be to create a frenzy of fear based on the perception that Muslims, by design, are attempting to takeover the civil services in India, and that state authorities are complicit in this exercise. Innocuous clips by Muslim leaders urging Muslim youth to sit for civil services exams are taken out of context; unsubstantiated statistics of state assistance to Muslim candidates through better marking in subjective parts of the exam (like the interview) are presented, all tied together with the hate-mongering slogan “UPSC Jihad” in the title of the video. To any reasonable person, this is hate speech.

The facts of this case are so cut-and-dried, that no constitutional question of the kind the Supreme Court mentions, viz. the balance between free speech and the right to equality, arises. It is well-established by the Supreme Court itself in a number of cases that hate speech is not protected under the freedom of speech and expression under Article 19(1)(a). [An excellent, easy-to-use compilation of this can be found in this article by Agnidipto Tarafder here]. This means that no one can claim a fundamental right to say things that vilify another or spread hate in society. This does not mean that someone cannot say such things—of course they can, should they be inclined to be distasteful and face penal consequences under Section 153-A of the Indian Penal Code which expressly penalises hate speech. And if they have, they cannot claim that it is their fundamental right to be the peddler of hate.

For the Supreme Court to consider otherwise and give this case a constitutional colour that it does not have is curious. When seen in the context of other statements in the original order that the Court needs to foster “a debate” on media regulation, it gives the impression of a Court that is overstepping its brief. The country certainly needs to have a debate on the spread of misinformation, rightly argued by a commentator as a massive threat to free speech. It also needs to have a debate about whether the grotesque slugfests which masquerade as “prime time news” in this country are consistent with our ideals of the kind of society we want to create. 

But the forum for such a debate (or debates) is not, and cannot be, the Supreme Court. Despite all its concerted efforts to be participatory and deliberative, the Supreme Court is not our Parliament-in-disguise. Its judges are not representatives of the people, its proceedings and decisions are couched in the language of law which is alienating for all but a small minority in the country, its doors, while theoretically open to all, are actually made use of by a minuscule minority of petitioners and lawyers, mostly from Delhi and a few select metropolises (see research here). 

It is not my argument that the Court has no role to play in such a debate. As the institution of state that remains the most respected, it is a critical participant informing this national debate through its adjudication of constitutional cases. But adjudicating on constitutional questions is a different role from the Court itself “fostering” such a debate. That will make the participant in the debate also its moderator. Notwithstanding its noble intentions, this is an usurpation of a role that is not envisaged by the Constitution, which the Court must ultimately respect. This is especially so, as Pratap Bhanu Mehta has perceptively written, when the problem of free speech in India today, a problem that the Court is trying to solve here, is a political economy problem and primarily not a legal one.

Prior Restraint Sans Procedure

Regarding the imposition of the prior restraint itself, as I have noted earlier, it is well within the power of the Ministry to impose a prior restraint on the broadcast. Regarding whether such restraint ought to have been issued or not is a distinct question, but of little constitutional relevance, since there is no fundamental right to preach hate in the first place. On this question, the Delhi High Court had rightly stayed the broadcast pending a decision by the Ministry. When the Ministry decided to conditionally allow the broadcast, parties could have gone back to the Delhi High Court, a remedy the High Court itself recognises (See Para 13(d) of its order). In that case, a prayer could also have been made to direct police authorities to register a case under Section 153A if the Court prima facie found the contents of that offence made out. Till such time as criminal proceedings were pending, future episodes of the broadcast could be stayed and past episodes prohibited from being re-transmitted. All of this is well within the power of the High Court.The Supreme Court, based on well-established principles of legal doctrine and practice, ought to have asked parties to go to the High Court for an adjudication of this matter. 

Instead, for the Supreme Court to impose a prior restraint itself in a matter filed under Article 32 of the Constitution for violation of fundamental rights is gravely suspect. Cases alleging fundamental rights violations before the Supreme Court ought to have their own constitutional cadence—the State (Centre, state or any other public body as per Article 12), is expected to take some action; that action may be considered to violate an individual’s fundamental rights, the individual approaches Court to set this right. If the state has not taken such an action, it is not ordinarily open for the Court to do so instead. 

Even when actions of non-state actors violate the law, such actions may be subject to a public law challenge. [Since it is not relevant here, I am not considering cases pertaining to untouchability, anti-discrimination, anti-begar and anti-child labour provisions which are expressly horizontal provisions in the Constitution and a direct fundamental rights case may be filed against private actors who have violated them (there is though a tantalizing prospect of a pure horizontal claim against Sudarshan News for violating Article 16(2) but that must be dealt with separately)]. 

Such public law challenges to private actions have their own distinct cadence—quasi-public bodies take an action that is considered violative of the law, the State fails to act or acts in a manner that does not uphold the law; the court is approached to review the action/ inaction of the state. This, traditionally belongs in the realm of administrative law. As I recall Stephen Sedley beautifully putting it in a lecture: Constitutional law deals with rights, administrative law deals with wrongs.

It is this critical distinction that has been elided in this case in the Supreme Court, though not for the first time, and possibly not the last. This has happened because of an expansive definition given to Article 14 of the Constitution incorporating the principle of arbitrariness [for an excellent conceptual account on arbitrariness, see Timothy Endicott’s article here]. While this proposition is accepted in law, it is this very proposition that has elided administrative law into constitutional law in India (a tradition that the Court in the instant case appears to have followed) with the Supreme Court waiting neither for the executive to take a decision nor the High Court. This causes great disservice to the discipline of legal argument. I have written about this elsewhere. [There could be cases in this category where the action of the state itself {as opposed to a private body} directly violates the Constitution but this was not the prayer in the instant case and even then other remedies in the High Court would have to be exhausted].   

All of this is not simply a question of procedural gobbledygook. It has real implications. One doesn’t have to look back very far to another petition filed under Article 32 asking for an independent enquiry into the death of Judge Loya. Again no clear violation of fundamental rights was made out in the judgment except the vague assertions of it being a matter filed for “the welfare of society”. Technicalities of procedure were expressly not followed in that case. The result, as we all know, was not only that the Supreme Court refused the prayer for an independent inquiry, but it also conclusively settled all issues pertaining to the death of Judge Loya and prohibited any other court in the country from enquiring into it. Procedural shortcuts can sometimes lead to favourable orders and, at other times, to grave miscarriages of justice. The Supreme Court bar needs to introspect on their role as faithful guardians of the law when advising clients to file such cases directly in the Supreme Court. The consequences, as we have seen, can be devastating. 

Duty to the Law

That only leaves us with the assertion that the Court makes, that it is “duty-bound” to uphold the provisions of the Programme Code. At a level of abstraction, the Court is certainly duty-bound to uphold the rule of law. But if this general duty is to be pressed into service into select cases, this itself is a recipe for arbitrariness. Is the Supreme Court “duty bound” to uphold the provisions of the Hindu Succession Act when sisters in a family have been denied a share in violation of the Act and come to Court claiming a violation of the rule of law?Or is it a task that falls, as the letter of the law mandates, to the jurisdictional civil court? Take another example—a husband files for divorce on the ground that his wife is a leprosy-affected person, a ground that is now repealed. Will the Supreme Court correct this infraction if the wife approaches the Court without waiting for the Family Court to apply the law to the facts? Generalised notions of upholding the rule of law to intervene in particular cases will open up the Supreme Court to charges of cherry-picking, arbitrariness and acting on extraneous grounds. It will also cast a serious question mark on the ability of High Courts and other courts to fairly resolve disputes if the Supreme Court keeps stepping in. 

More specifically, the “duty” of upholding the Programme Code, according to the law, belongs to the Ministry of Information and Broadcasting. Whether rightly or wrongly (in my view wrongly, since prior restraints are clearly permissible under the Act), the Ministry allowed the broadcast of the programme saying that any enforcement action would follow the broadcast.If the Ministry’s action was, in someone’s view illegal, they ought to have gone back to the High Court and challenged it. For the Supreme Court to take on the mantle of both the High Court and the Ministry and restrain the broadcast on the basis of “fostering a debate” in the context of a case that does not raise any significant constitutional question,but rather many significant questions of governance, is illegitimate.It leaves one with the inescapable conclusion that the interim order was issued because the programmes were considered by the judges of the Supreme Court to be distasteful and eroding the secular fabric of the country. This is certainly correct but amounts to judges speaking as ordinary citizens of the country; as a judge of the Supreme Court, she is bound by the law where the warrant to pass such an order in this manner is absent. Though trite, an oft-forgotten tenet of decision-makingbears repeating: Judges must decide cases according to the law, not their feelings, no matter how noble these might be. 

Once the judicial floodgates are opened to such interim orders based on judicial good sense and an abstract understanding of the rule of law, the type of case that benefits from it may not always be one whose judgment we can subjectively agree with. This is not even a hypothetical concern. In Part II, I will deal with theorder of the Andhra Pradesh High Court in the Amravati land scam case and why asking for unjustified prior restraints by the Court in some cases may create a culture that leads to the imposition of prior restraints in other, murkier ones. 

Views are personal

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