BBC Documentary: The Gag and the Impunity

The Modi government’s intolerance for criticism in digital media pockets that have managed to stay independent is no secret; it won’t now take it—if it can help it—from international media either. Mainstream media has been effectively domesticated, so it has practically no worries on that front. Stung by India’s plummeting rank in international indices, especially when India fell to the 150th position in the World Press Freedom Index, 2022, the government set up a committee to question the ranking and the methodology, and also to come up with an Indian index of press freedom.

Little has come out of the exercise and journalist P. Sainath pointed out that the committee failed to even analyse the World Press Freedom Index (by Paris-based Reporters without Borders) and India’s performance in it. Sainath identified 52 media-related laws and their misuse by the State to intimidate journalists. There has also been a complete lack of accountability in the way these laws were invoked.

When the government last month blocked the online sharing of a BBC documentary, The Modi Question, it invoked a contentious Rule 16 of the IT Act. Rule 16 grants the government of the day emergency powers to block information to the public as and when it sees fit. The Press Information Bureau, the government mouthpiece, was cagey about disclosing the government’s intention, departing from the practice of posting ban orders on its website.

The BBC documentary was broadcast on BBC 2, which has aired critical profiles in the past of different world leaders including Donald Trump, Vladimir Putin, Xi Jinping and President Erdogan of Turkey. The Modi Question held the then chief minister of Gujarat, Narendra Modi, responsible for not stopping the 2002 pogrom, raising questions about “the climate of impunity” that prevailed, and the complicity of Gujarat police with the rioters.

The 59-minute documentary was based on a previously unpublished report from the British Foreign Office that raised questions about Modi. The BBC also uncovered memos by the British government and western diplomats including the former British foreign secretary Jack Straw, who criticised Modi’s conduct back in 2002. It also aired footage which, it is alleged, has been thoroughly erased from the internet and is no longer accessible. However, the documentary includes interviews with BJP supporters and former MPs who defended Modi and pointed to the clean chit given to him by the SIT and the Supreme Court, due to insufficient evidence against the then Gujarat chief minister.

Did the documentary call for an ‘emergency’ response? More importantly, should the government have stepped in to defend an individual who is a self-proclaimed torch bearer of Hindutva? The documentary was after all less about the chief minister and more about the political philosophy of Hindutva and its approach towards Muslims. But government spokespersons alleged that the documentary had tarnished the image of the country and amounted to denigrating the Supreme Court of India. It also questioned the timing of the broadcast, pointing possibly to India’s presidency this year of G20.

The government went out on a limb to prevent citizens from watching and accessing the documentary. The external affairs ministry has dubbed the documentary as “propaganda made with a colonial mindset”.

There is an irony here, as all or most of the laws framed for restricting free speech in the country were framed by the British and continue to be enforced by successive Indian governments including the present BJP government in ‘free’ India.

So, what are these rules which were added to operationalise the IT Act, and which provide adequate cover for governments to block free speech with impunity?

Rule 16 of the IT Act, 2021, deals with blocking of information in case of an ‘emergency’. The rules were added two years ago, prompting several online news outlets to challenge them in court. The rule reads: ‘The authorised officer, in any case of emergency nature, for which no delay is acceptable, shall examine the relevant content and consider whether it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.

Sub-section 2 of the rule states: ‘In case of emergency nature, the Secretary, I&B ministry may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons, publishers or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.’

Online news portals had petitioned then against some of these draconian rules framed to operationalise the IT Act. According to the Internet Freedom Foundation, ‘IT Rules, 2021, whose legality is contentious, undermines the fundamental right to freedom of speech and expression and privacy for millions of internet users in India.’

Interestingly, the rules were stayed by the Madras High Court and Bombay High Court, but those stay orders were, in turn, stayed by the Supreme Court, which means the government can continue to act and enforce the rules.

The courts too have weighed in favour of free speech from time to time. Chief Justice of India D.Y. Chandrachud, when he was a Bombay High Court judge between 2000 and 2013, overturned a ban on the film Chaand Bujh Gaya made in the backdrop of Gujarat riots. The principal character bore a strong resemblance to the then chief minister of Gujarat.

“In a democratic society every citizen has a right to speak as indeed, the right to know...nothing can be as destructive of the social fabric in a democratic society than the attempt of those who govern to prevent access to information to those whose security depends upon the preservation of order,” he had observed while overruling objections of the CBFC.

And to protest the “ban” on the BBC documentary, a petition, jointly filed by the former editor of The Hindu, N. Ram, Lok Sabha MP Mohua Moitra and lawyer Prashant Bhushan, this week recalled the observation. The petition argues that the ban violated the freedom of journalists who produced and are featured in the documentary besides Indian citizens who have appeared in the documentary and wished to disseminate their opinion. The ban also violated the right of the petitioners to view the documentary and initiate public debate and discussions.

Lastly, is there an official ban order/takedown order stopping media outlets from tweeting or mentioning the documentary? It is not clear because the order to take down the BBC documentary has not been made public; but for any constitutional remedy under Article 32, there has to be a written order to challenge.

An RTI request has revealed that the government has not tabled the new IT rules, 2021, in the Lok Sabha. Nor have the parliamentary committees of Lok Sabha and Rajya Sabha taken up these rules for scrutiny.