If we issue an injunction, should it be a blanket injunction: SC during hearing in Sudarshan TV case

After a discussion on the role of the court in passing injunctive orders in the realm of free speech, the Supreme Court on Monday adjourned the hearing in the Sudarshan TV matter to September 23, legal news website BarandBench.com has reported.

The Bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph mooted as to what the limits of such injunctive orders should be.

Today, Senior Advocate Mukul Rohatgi made submissions for the News Broadcasters Federation (NBF). Claiming to be the largest body of news channels in the India, Rohatgi said that NBF would inform the Court how a self-regulation method should be drawn up.

He added, "I have nothing to say on Sudarshan TV. I am on a larger issue of self-regulation and on a different note than News Broadcasters Association (NBA)."

Advocate J Sai Deepak, appearing for OpIndia and Indic Collective, said that the primary purpose of intervening was to venture into the larger area of principles concerning hate speech.

Contending that the Supreme Court does not have jurisdiction in the matter, Deepak sought to place on record a study by OpIndia on contemporary standards in religious reporting by mass media that captures approximately 100 instances of patently false reportage by mainstream media.

Senior Advocate Sanjay Hegde, appearing for Zakat Foundation, sought permission to be heard at the end.

Justice Chandrachud then hauled up Sudarshan TV for filing an affidavit calling into question NDTV's reportage on ‘Hindu Terror’. He said, "Did we ask you to comment on NDTV show? This is contrary to judicial practice. Just because we ask a question does not mean you will file affidavits. It enables to chisel our understanding. This will alter the consequence of the plea. No point in complaining what happened in 2008."

The judge went on to note, "We had given your client a chance to explain as to what he proceeds to do what the rest of the show. You say you will adhere to Programme Code. Did you adhere to it with the first four episodes? Do you intend to continue in the same vein with the rest of the episodes?"

Advocate Vishnu Shankar Jain pointed out that the first four episodes were in consonance with the Programme Code and that remaining episodes would be in the same vein.

"We will say that there is foreign funding to capture bureaucracy," he said.

Jain then sought the Court's permission to go through each episode. "...then if you find that we violated that law, then we will abide by the decision."

He also claimed that the interventions have distorted the facts of the case.

Justice Chandrachud, however, responded, "If you check the line of civilized jurisprudence, in no case of injunction has the counsel read all 700 pages of a contentious novel to the judge line by line to satisfy them. That has been the precedent and we don't want to deviate."

Advocate Shadan Farasat then began submissions on behalf of intervening students of Jamia Millia Islamia. He said that there was abdication of government responsibility in allowing the broadcast of the show. The Union Ministry of Information & Broadcasting did not apply its mind while allowing the telecast of the show, subject to the Programme Code.

He argued, "Sudarshan TV says they will continue in the same way. What are these 4 episodes and the promo? It is evident that participation and success of Muslims is a terror conspiracy and that's the theme."

After Farasat took the Court through various instances of the show in which Muslims were depicted in poor light, Justice Chandrachud asked, "To what extent is this show an attack on Muslims? Our interference is also warranted if it has bearing on the community. If it’s just ZFI, then we cannot interfere. We need to focus on those ingredients which are hate speech against a community."

Farasat responded, "They are inexplicably interlinked. You gave them an option to go ahead with protected speech and do away with hate speech. No one is objecting to investigative journalism on ZFI. Hate speech does not operate in isolation. Can this continue this way?"

He further stated, "The show vilifies a particular community. It strikes at the core of my civic dignity. In a multicultural society, there is responsibility on all pillars including the judiciary who has to ensure that individual respect needs to be guarded."

Claiming that the show amounted to hate speech, Farasat claimed that there was real or substantial risk with prejudice to Muslims caused by the broadcast.

Justice Joseph then asked SG Mehta whether the government had watched the first four episodes to see if they violated the law. After going through provisions of the Cable TV Networks (Regulation) Act and the Programme Code, the court noted that it was not for the courts to enforce the same.

Justice Chandrachud then thought out loud, "There is indeed some public interest for editor of Sudarshan TV to say that certain foreign funding is happening for ZFI and it may be an extreme issue, but he has right to his opinion. If we issue an injunction then should it be a blanket injunction which covers protected speech or should the court issue an injunction which allows broadcast [without allowing the channel to] stereotype a community or indulge in conspiracy theory or paint one entire community with the same brush."

Farasat responded, "Normally my preference would be limited injunction in interest of free speech. But here will limited injunction be useful?"

Justice Chandrachud then observed, "It’s not a trademark suit that we will say don't use a man with a beard or cap. Here, what should the court do as part of the injunctive order? We can't order in specifics as it will denigrate the standard of a Constitutional Court."

Deepak added, "You will also want to consider that there is a question of chilling effect of an order and what example does it state for future orders though it may be only for this series."

The court responded, "We agree with you. We are concerned about balance between speech and dignity. Here the community is a large amorphous group and we can't ask them to approach civil remedy."

At the end of this discussion, the court proceeded to adjourn the matter to September 23.

During the last hearing, the Court expressed concerns over the stereotyping and vilification of Muslims depicted in the broadcast. Sudarshan TV, the Central government, and the NBA were all asked to file affidavits in the matter.

In its additional affidavit filed in the matter, Sudarshan TV said that it would follow all laws while airing the remaining episodes of "UPSC Jihad" program and that it was pained by two NDTV shows around "Hindu and Saffron terror".

Zakat Foundation, a UPSC coaching academy which was accused of having terrorist links, stated that the channel has nothing but a deep seated hatred against Muslims.

The petitioners, in their affidavit, stated that even after the stay imposed by the court, Sudarshan TV aired a show with hate speech. Also cited were comments by Madhu Purnima Kishwar and Shantanu Gupta on the channel against the apex court.

On September 15, the court directed Sudarshan TV to defer the broadcast of its programme touted as a ''big expose on the conspiracy" regarding Muslims "infiltrating government service", until further orders.

The court also called for the setting up of a committee of five citizens who can come up with standards for electronic media.

The Court had earlier refused to impose a pre-broadcast ban on the controversial Sudarshan TV programme. It said that it has to be circumspect in imposing a prior restraint on publication or the airing of views.

The promo of the show shared by the channel’s Editor-in-Chief Suresh Chavhanke, with hashtag ‘UPSC Jihad’, had garnered criticism from several quarters. In the video, he called those passing out of Jamia Milia Islamia's Residential Coaching Academy (RCA) and clearing the Union Public Service Commission (UPSC) as “Jamia ke Jihadi”.

Citing freedom of press, the Union Ministry of Information and Broadcasting had given the green signal to the airing of the show.