ANALYZING THE UPSC JIHAD CASE
FIROZ IQBAL KHAN V. UNION OF INDIA & ORS. (2021) 2 SCC 591
ABSTRACT
This case comment is an insight on the long-drawn history of communal discernment in India, which started even before independence and subsequently led to the partition of the nation. Communalism had gained momentum with the British Imperialism and their Policy of “Divide and Rule”. Freedom of expression and speech were the central value that convoyed the struggle for India’s Independence. Which was later enshrined as a fundamental right under the Indian Constitution but with certain restrictions.
This case initiates the important stance of striking a balance between hate speech in the name of communal comments and freedom of speech/expression.
CASE FACTS
The show ‘Bindas Bol’ on the series UPSC Jihad was about to be aired by the channel named Sudarshan TV on the series of UPSC jihad. The writ petition under Article 32 of the Indian Constitution was moved on 28th August 2020 for the urgent direction as the telecast of a programme titled “Bindas Bol” was to take place at 8 pm on Sudarshan news; in August 2020 a petition was filed on the basis of a forty-nine second promotional film, the lawsuit was lodged on the grounds of a breach of fundamental rights by anticipating that the said display would promote hate against the Muslim community (promo). The commercial incorporates some derogatory material that questions the increased number of Muslims joining the civil service. The main purpose of the petition before the Supreme Court was to obtain an interlocutory injunction on the pre-broadcast film. However, based on the unverified promo footage, the Court declined to grant the same.
Meanwhile, after hearing a petition filed by a few students, including alumni of Jamia Millia Islamia, the High Court of Delhi has granted a stay order prohibiting the planned show from airing. After hearing the case, the Delhi High Court ordered the Ministry of Information and Broadcasting to disregard all possible violations of the Cable Television Network Act 1995’s programme code. Since then, four episodes had been broadcasted after the concerned ministry confirmed that no breaches of the programme code exist, with the caveat that the programme must follow the legislation. Despite the ongoing problems, the channel had continued to air the defamatory episodes concerning the Muslim community.
Suresh Chavhanke, Sudarshan TV’s chief editor, as well as the anchor of the “Bindas Bol” show, stated in the series UPSC Jihad episodes that the Muslim community was infiltrating the civil service by passing the UPSC exams. It also raised concerns about funds obtained by many Muslim foundations, especially the Zakat Foundation, which has ties with terror-linked groups. The remaining episodes were planned to be aired between September 15 and September 20, 2020. This case was brought before the Supreme Court again on September 15, 2020, after multiple interference applications were filed.
ISSUES
- Whether the programme titled “Bindas Bol” is promoting hate speech against a particular religion?
- Whether or not the apex court should issue an order for a pre-broadcast injunction to the remaining episodes of the show?
- Does the channel violate any provisions of Cable and Television Network (Regulation) Act?
- Whether the constitutional right to free speech and expression was violated by the respondent?
RULE
Article 14 talks about equality before law and the equal protection of the laws within the territory of India. Prohibiting discrimination on grounds of religion, race, caste, sex or place of birth.
Article 19 deals with the protection of certain rights regarding freedom of speech etc, with respect to this case:
Clause (1) says that; All citizens shall have the right
Sub-clause (a) to freedom of speech and expression; and Clause (2) states that nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Article 32: The article talks about the Remedies for enforcement of fundamental rights.
Clause (1) talks about the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
Clause (2) says that the Supreme Court shall have power to issue directions or orders or writs,
Clause (3) mentions that without bias to the powers conferred to the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
And Clause (4) discusses about the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. [1]
Article 51A talks about the Fundamental duties:
Sub-clause (c) mentions to uphold and protect the sovereignty, unity and integrity of India;
Sub-clause (e) to promote harmony amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. [2]
Chapter V of THE CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995: [3]
Section 19. Power to prohibit transmission of certain programmes in public interest: When authorities think that such content of the programmes are likely to disturb the public tranquillity through promotions on grounds of religion, race, language, caste or community.
Section 20. Power to prohibit operation of cable television network in public interest: This section of the Cable and Television Network (Regulation) Act empowers the central government to prohibit the operation of a cable television network if it appears to be a threat to public order, national integrity, or sovereignty of the nation.
ARGUMENTS ADVANCED
Petitioner’s arguments:
On the behalf of the petitioners, it was contended that the Sudarshan TV channel in the show named “Bindas Bol” had tried to depict the involved Muslim community folks as making an attempt to infiltrate in civil services and additionally vilified the whole Muslim community by alleging them to be concerned with terror activities labelled as “jehad” by telecasting content which constituted hate speech directed against the Muslim religion. It was alleged that the channel did build a faux claim as, whereas the utmost regulation for general candidates is thirty-two years, whereas, for Muslims, it’s thirty-five years. Further, 9 attempt units allowed for Muslims, but for Hindus, it’s solely six attempts. By diffusing this type of information, the Sudarshan channel defamed and incited hate speech towards the specific religion. Screenshots of programmes aired on 11th September 2020 and 14th September 2020 were also placed on record by the petitioner with the transcripts to prove the orchestrated attempt made to target the Muslim Community being involved in a conspiracy to infiltrate the civil services.
Henceforth, the status-quo desires alteration created to the previous stance of the Supreme Court as to not issue an associate order to a pre-telecast ban of the programme on UPSC jihad.
Arguments of the Respondent:
The Solicitor General submitted that in pursuance of the Delhi High Court’s order on 9th September 2020 stating the breach of Programme Code, Mr. Shyam Divan, learned Senior Counsel also submitted that there will be no change of status as a result of the Supreme Court’s refusal to issue a pre-broadcast injunction on August 28, 2020 having regard to the earlier order passed by the court. He stated that firstly, it is a part of Fundamental duty of a journalist to convey information with the responsibility to disseminate accurate facts to the public with respect to guaranteed fundamental right to free speech and expression. Secondly, such programmes raise issues pertaining to national security. Thirdly, in The Sudarshan TV’s “Bindas Bol” show, the contents of the programme indicate the involvement of foreign funding.
ANALYSIS
The fundamental rights enshrined in the Indian constitution are subject to restrictions as well as there come many circumstances where the fundamental rights are infringed. To safeguard them, there is the provision of Article 32 which is the “Heart and Soul of the Constitution” as said by Dr. BR Ambedkar. This article gives the citizen the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part III of the constitution. The case was heard along with article 14, 19 & 51A guarantying equality before the law, freedom of speech and expression and the fundamental duties to protect the sovereignty of the nation.
Prima facie, keeping the arguments of petitioner and respondent in record, it did appear to the court that the intent, purpose and object of the episodes which have been telecasted on “Bindas Bol” broadcasted by Sudarshan TV was to vilify the particular community that is Muslim. The court also said that an insidious attempt had been made to insinuate that the Muslim Community was involved in a conspiracy to infiltrate the civil services. The court held that several statements in the episodes of “Bindas Bol” had drawn the attention of the court which were not just palpably erroneous but had also been made in wanton disregard of the truth as there is no relaxation either in age limit or in the number of attempts available to the Muslim community in civil services. The court also held that the drift, tenor and content of the episodes telecasts was to bring the Muslim community into public hatred and disrepute. And the court was duty bound to ensure compliance with the salutary principle of the Programme code formulated under Rule 6 of the Cable Television Networks (Regulation) Act, 1995. As stated under Rule 6 (1)(c) inter alia, no programme should be carried which contains attack on religious or communities or visuals or words contemptuous of religious groups or which promote communal attitudes. Rule 6 (1)(d) says that the Programme Code should not inter alia contain anything which is defamatory, false or reflective of half truths or suggestive innuendos. And this breach of Programme Code is subject to sanctions under Sections 19 & 20 of the Cable Television Networks (Regulation) Act, 1995.
Keeping the above analysis in conscious, the court in its previous order dated 28th August 2020 had declined to issue a pre-broadcast injunction, but with change in circumstances prima facie and on the basis of record emerged before the court because episodes of “Bindas Bol” had been aired between 11th and 14th September 2020 which indicated the content, tenor and object of the telecast in question. And so, the remaining episodes admittedly will be in the same vein. On the basis of what had been aired the court had the view that it was necessary to interdict any further telecast of the programme making the respondent stand injuncted from making any further telecast in continuation of or similar to the episodes telecasted on 11th, 12th, 13th and 14th September 2020 either under the same or any other caption or title.
I believe that the edifice of a democratic society like India committed to the rule of law under its constitutional rights, values and duties is originated with the co-existence of communities. India is a socialist, democratic republic with diverse cultures, religions and languages and any attempt to vilify a religious community must be seen with grave disfavour as the custodian of the constitutional values, as also directed by the Supreme Court in the same case.
RATIO
The ratio set by this case can be answers to the following questions:
- Does this increasing conflict between freedom of speech and promoting hate speech need to be resolved by the government?
- Should self-regulation be taken against channels?
- What is the importance of Article 19(1) and Article 19(2) of the Constitution of India in this case?
The edifice of a functioning democratic state, as well as the observance of civil rights and responsibilities, is focused primarily on coexistence, and any effort to vilify a community must be regarded with suspicion. The Broadcasting Rules should be stricter enough to look after telecasting of questionable and hate provoking information. India being the largest democracy which guarantees fundamental rights but are subject to fair restrictions with respect to which journalistic freedom is not absolute.
The case also focuses on the urgent need to formulate precise standards which are to be followed by the electronic media. A committee should be made for the same, consisting of five notable citizens of commendable nature in the respective field. It must be made sure that Media should not fall foul of standards prescribed by themselves in the name of catering Television Rating Point (TRP) for their programmes.
In this case the Court also focused on the element that in the name of “fact-based investigations” the channel cannot target or allege any particular community or religion because such acts may lead to communal hate and violence. Being the largest democratic society, all the existing religions in India should be cohesive with each other if not, the nation would not able to survive.
In the cases of Romesh Thapar v. State of Madras[4] and Brij Bhushan v. State of Delhi[5], the Supreme Court of India ruled that press freedom is a crucial component of the constitutional right to free speech and expression. In this situation, two powers clashed: the right to free expression and the responsibility to limit hate speech. And this case also brought up the importance of balance among the rights that while concerning the constitutional right of free speech and expression, the constitutional obligation is also to give equal importance to both the right to free speech and the dignity of the minority and protect the same with fair restrictions to ensure public order and harmony in the society.
The subject matter of the “Television shows reach” was also brought up in this case and the importance of having some regulating standards for TV news channels, as and when industrialization had taken place, TVs have had a higher reach than newspapers, and with this comes the power to manipulate people and their approach towards certain issues, especially if it is connected to the past of the country itself.
CONCLUSION
About the fact that the Court in its August 2020 order had denied issuing a pre-telecast ban for the programme, which expressly portrayed the Muslim community as infiltrating UPSC facilities and made a negative portrayal of the Muslim community by addressing alumni of Jamia Milia Islamia as “Jamia Ke Jihadi”. [6]The subsequent issue of a pre-broadcast injunction on telecasting the show was substantiated in the September 2020 hearing.
Furthermore, promoting hate speech would not qualify as exercising one’s fundamental right to free speech and expression. Fundamental rights should not exist in a vacuum. Though focusing on Article 19(1) of the Indian Constitution, as previously stated, fair limitations are set out in Article 19(2). In India, even journalism is not absolute; journalists are not conferred with any exclusive rights. Regardless, the media should carry out its basic obligation in journalism by portraying the current state of affairs fairly.
[1] Article 14, 19, 32, Part III, Fundamental Rights, INDIAN CONSTITUTION, 1950
[2] Article 51A, Part IV A, Fundamental Duties, INDIAN CONSTITUTION, 1950
[3] THE CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995, ACT NO. 7 OF 1995.
[4] Romesh Thappar v. State of Madras AIR 1950 SC 124
[5] Brij Bhushan v. State of Delhi 1950 AIR 129
[6] Firoz Iqbal Khan Petitioner Versus Union of India & Anrs. Respondents, WRIT PETITION [CIVIL] NO. 956 OF 2020, LIVE LAW, 19 September 2020 https://www.livelaw.in/pdf_upload/pdf_upload-381763.pdf
Author: Sejal Tiwari,
Symbiosis Law School, Pune. 1st Year Law Student