NDTV India Could Succeed in Challenging Ban If it Were to Dispute Validity of Cable TV Programme Code Rules

The Hindi news channel is charged with violating certain sub-clauses of the Programme Code, but many of the clauses may not hold up under legal scrutiny.

File photo of photographers and video cameramen. Credit: Reuters

File photo of photographers and video cameramen. Credit: Reuters

On November 2, when the information and broadcasting ministry ordered a 24-hour ban on NDTV India, it also took action against two other channels. As reported by The Wire earlier, the IB ministry directed News Time Assam to go off air for a day for revealing the identity of a juvenile victim of violence. Another ban that escaped notice was a week-long ban on the Care World channel for telecasting a programme on sex education with visuals.

These two bans, unlike the ban on NDTV India, did not lead to a controversy because they were imposed using those clauses of the Programme Code that are likely to stand legal scrutiny: The first sub-clause (l) bars content that denigrates children, while the second, sub-clause (o), bars content that is unsuitable for unrestricted public exhibition.

Rule 6 of the Programme Code, prescribed under the Cable Television Network Rules 1994, has 17 specific restrictions on the coverage by the television channels. Sub-clauses (p) and (q) were added this year through amendments. Rule 6(1)(p) was invoked for the first time in the NDTV India case. Rule 6(1)(q) is to prevent cruelty to animals.

While some of these restrictions do make sense, at least nine of these sub-clauses are vulnerable to abuse by the governments in power. Because of their vague wording, these restrictions give wide discretion to those in power to decide whether the channels have violated the Programme Code.

In Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the Information Technology Act for using completely open-ended, undefined and vague language. “Every expression used in that section is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another,” the court had said.

Vague expressions mean that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Section 66A of the IT Act creates an offence that is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2), the court had held.

Questionable application of sub-clauses

If the striking down of Section 66A of the IT Act by the Supreme Court offers any lesson, then some of sub-clauses of Rule 6 of the Programme Code are sitting ducks to be struck down when challenged in a court of law. Examples can be easily cited:

Rule 6 (1)(a) says no programme that offends good taste or decency should be carried on cable services. This clause was invoked by the previous UPA government in 2013 in a bizarre case. On October 21, 2013, it issued an advisory warning channels not to denigrate the office of the prime minister by constantly trying to compare his speech with the speech of other political leaders on August 15, 2013. “To put him (the PM) in an artificial competition with anyone is not appropriate…The attempt by certain TV channels to denigrate the status of the Prime Minister can best be described as sensational against all norms of ethical journalism,” the advisory said.

Further, the IB ministry at that time relied on Rule 6(1) (i), which bars coverage of content that criticises, maligns or slanders any individual in person or certain groups, segments of the social, public and moral life of the country.

Next take Rule 6 (1)(b), which bars criticism of friendly countries. If this provision is to be taken seriously, many channels should have suffered punitive action from the IB ministry. Despite ongoing tension between India and Pakistan, Pakistan continues to be a “friendly” country in diplomatic and official terms, as it has not been declared an enemy country, and therefore, any criticism of that country must be anathema to the IB ministry under this rule.

Two more sub-clauses of Rule 6 are noteworthy for their vagueness. Sub-clause (d) bars the telecast of content that contains anything obscene, defamatory, deliberate and false, and suggestive innuendos and half truths; while sub-clause (e) bars content that is likely to encourage or incite violence or contains anything against the maintenance of law and order or which promote anti-national attitudes.

Another sub-clause (f) bars content that contains anything amounting to contempt of court. If challenged, the government will have a tough time explaining how the IB ministry could prejudge that content meets the ingredients of the offence under the Contempt of Courts Act, under which only high courts and the Supreme Court are empowered to hold one guilty of contempt.

Yet another sub-clause (g) of Rule 6 bars content carrying aspersions against the integrity of the president and the judiciary. No channel would be able to expose a corrupt president or corrupt judges because of this clause acting like a sword of Damocles over it.

On June 7, the ministry issued an advisory to the Aaj Tak channel reprimanding it for broadcasting a recording of a telephone conversation with fugitive gangster Chhota Shakeel in connection with its programme on July 30, 2015, when Yakub Memon was hanged. The IB ministry took objection to the fact that Aaj Tak did not edit out the parts where Shakeel had passed disparaging comments on the functioning of the Indian judiciary. The IB ministry pointed out that the channel had violated Rule 6(1)(e), which bans content that is likely to encourage or incite violence or contains anything against the maintenance of law and order or which promote anti-national attitudes. The ministry also drew attention to the violation of Rule 6(1)(g), restricting content casting aspersions against the integrity of the president and judiciary. In particular, the IB ministry cited an earlier advisory issued to all channels in 2010, which asked them to avoid giving undue coverage to terrorist groups, which could jeopardise national security, and a platform to advance their political agenda.

In its response, Aaj Tak contended that an informed public is the best judge of the views and counter-views presented in a television programme; merely broadcasting a short response by a certain person cannot cause any law and order problem or public order issues in any part of the country, and that the content of the subject telecast in no manner cast any aspersions on the integrity of the president or the judiciary in any manner whatsoever. The channel further claimed that it tried to confront Shakeel and made him confess to his wrongdoing and misdeeds.

A similar advisory was issued to ABP News channel for airing an interview with Shakeel on July 31, 2015.

Rule 6(1)(g) was again invoked by the IB ministry when it issued an advisory on June 1 to NDTV India, for telecasting a programme on Memon on July 30, 2015. The ministry alleged that the channel had termed the Supreme Court’s judgment, which led to his hanging that day, as “unfortunate”, which it said, “appeared to tantamount to questioning the judgment of the Hon’ble Supreme Court”.

However, the IB ministry dropped further action against the channel after being satisfied with its reply that the word “unfortunate” was used inadvertently just once during the entire programme, and that the overall tone and tenor of the programme did not suggest any criticism of the judgment. It, however, issued an advisory to the channel to abide by the Programme and Advertising Codes and to be more careful in future.

The question that arises, despite the channel’s regret of the use of the phrase “unfortunate” to describe the Supreme Court’s judgment, is why are the channels not entitled to critique court judgments like the print newspapers or online sites in a bid to educate the public. The courts themselves have held in many cases that criticism of their judgments does not constitute contempt. It is immaterial whether such criticism is heard in a television discussion or published in an article in a newspaper or on a website.

Live coverage barred

On July 27, 2015, the IB ministry regretted in an advisory that during anti-terrorist operations in Gurdaspur, Punjab, that day, some news and current affairs TV channels telecast the operation without restricting themselves to periodic briefings by an officer designated by the appropriate government, even though the operations had not been concluded.

The ministry had issued similar advisories to all TV channels on November 27, 2008, December 3, 2008 and November 20, 2009 in public interest and in the interest of national security to not focus on or report the location, strength, movement, strategy and other related operations being followed by security forces engaging with terrorists in order to avoid any adverse impact on rescue operations.

The ministry appears to have issued a fresh advisory in July this year as the amendment of the Programme Code, which it carried out in March, had no impact. The amendment itself appears to be a knee-jerk reaction to a similar perception of media coverage of a counter-terrorism operation.

Some TV channels allegedly covered live the anti-terrorist operations on March 20, 2015, in which a suicide squad of militants in army fatigues stormed a police station in Jammu and Kashmir’s Kathua district, killing four persons, including three security personnel, and leaving 10 injured.

This provoked the ministry to issue an advisory on the same day to all TV channels to ensure no operations-linked information reached the terrorists and their handlers, and in the interest of national security, live coverage of counter-terrorism operation(s) by the security forces should not be telecast. The advisory also suggested that media coverage should be restricted to periodic briefings by an assigned official until the operation concludes.

The next day, on March 21, the IB ministry amended the Programme Code, inserted clause (p) under sub-rule (1) of Rule 6, which reads:

“No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.”

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.

If one reads this new clause carefully, it is delightfully vague. The term ‘live coverage’ is not defined under the explanation. If one is to understand this phrase to mean ‘simultaneous coverage during the terrorist operation,’ how does a channel report a briefing by an officer designated by the government, if that briefing takes place during the operation?

The second difficulty would emerge if one seeks to understand the explanation. The phrase used here is “to bring terrorists to justice”. If the terrorists are caught alive, would the coverage of subsequent filing of FIRs, their trial and conviction in a court of law also be barred under this explanation? Should the bar on coverage extend to such lengthy period after the operation?

The third difficulty is obviously over the interpretation of the phrase “all engagements involving justifiable use of force between security forces and terrorists”. Supposing the channel staffers were to conclude that the engagement does not involve the justifiable use of force, or involves a disproportionate use of force by either the security forces or the terrorists, is the channel free to go ahead with the “live coverage”?

Such vagueness would make Rule 6(1)(p) a fit candidate for challenge in a court of law and its eventual striking down, if Shreya Singhal offers any guidance.

NDTV India, which is the latest victim of Rule 6, therefore, has a fair chance of succeeding in its challenge of the ban imposed on it, if it were to challenge the very rule as being an unreasonable restriction on its freedom of expression under Article 19(1)(a) and its freedom to practise any profession, or to carry on any occupation, trade or business, under Article 19(1)(g) of the constitution.