How the Government Is Using Powers It Doesn't Have to Curb Freedom of Speech

The show-cause notices issued to three private TV channels for their coverage of the Yakub Memon execution have no basis in law and raise disturbing questions about freedom of expression in the country.

Information and Broadcasting minister Arun Jaitley. Credit: PTI

Information and Broadcasting minister Arun Jaitley. Credit: PTI

The show-cause notice issued by the Information and Broadcasting Ministry on August 7 to three channels threatening “action” against them for having allegedly disrespected the judiciary and the President of India by their coverage of Yakub Memon’s execution has been rightly criticised for the implications it has for freedom of speech and expression in the country.

But the notices sent to Aaj Tak, ABP and NDTV 24×7 also betray a dangerous confusion of thought on the part of the government as to the extent of its own powers to act against private broadcasters.

In its notices, the I&B ministry threatens to cancel the license of these channels for “uplinking and downlinking” for having violated the Programme Code contained in rules framed under the Cable Television Network (Regulation) Act 1995.

To begin with, licenses to uplink and downlink are not granted under this Act. The Act only regulates the functioning of Cable Operators and not of content providers, nor does it seek to regulate uplinking and downlinking. At best, the government can hold out a threat to Cable Operators of cancelling their license to operate a cable company and not that of the content provider or of the company that has a license to downlink.

The fact is that the Government of India has no law dealing with downlinking, and such licenses are granted in exercise of executive powers and not statute. Perhaps this has been left deliberately so: the absence of a law allows for the arbitrary use of the power to grant such licenses.

This is not the first time that the government has sought to cancel a license to broadcast. During the Manmohan Singh government, Baba Ramdev received a similar show-cause notice for transmitting news about his campaign against black money –  since the conditions of the license granted to the Aastha channel did not permit “political” news to be broadcast. Then again, Zee Television received a similar I&B ministry notice for broadcasting allegedly defamatory materials against the Congress politician and industrialist, Naveen Jindal. Zee Television has challenged this notice on the ground that freedom of speech cannot be curtailed by executive fiat.

This brings us to the critical issue: What is wrong with being critical of indeed disagreeing with the judiciary on the question of the innocence or guilt of an accused person on death row? Many such prisoners on death row around the world have been proven innocent thanks to sustained campaigns by their families and civil society. Sometimes, an innocent person has been found innocent even after his or her execution and has been posthumously exonerated.

Indeed, in the case of Yakub Memon, who was hanged on July 30, many people do believe he was not guilty of conspiracy as alleged or, in any event, that his case was not the “rarest of the rare “ that required him to be sent to the gallows. Those who spoke for him on the three channels targeted by the I&B ministry are not alone in these beliefs.

Consider the burden of the charge the government lays against one of the channels, NDTV:

“Whereas in its programme ‘Truth Vs. Hype’, NDTV 24X7 carried the byte of a certain political leader and one-time lawyer for Yakub Memon. He is seen to have said, “Usmaan Jaan Khan is an approver in this case, who is [prosecution witness] PW 2 in the trial, OK! Now this Usmaan Jaan Khan has been pardoned, lf you show this pardon to any person outside lndia, UK authorities or US authorities or the best brains in the world as far as criminal law is concerned, they will laugh at you. They will laugh at you; they’ll say is this justice? Usmaan Jaan Khan has played a role in this whole operation ten times more than Yakub; he’s pardoned [Usmaan Jaan Khan]… But I should not be misunderstood because I’m not holding Yakub’s brief, nor am I finding, criticizing the findings of the highest court to which I must bow down. And I say that I salute the Supreme Court for having at least afforded to him even the last opportunity at 3 a.m.”

“Whereas it has been observed that NDTV 24X7 allowed transmission of such content which not only questioned the judicial system of India but tended to denigrate the very institution by hinting that it was not at par with the judicial systems existing in the UK and US.”

This questioning, and this tending “to denigrate” the judiciary, the I&B ministry says, violates government rules on private broadcasting and could lead to the channel’s license being suspended. The charges against ABP and Aaj Tak are similar, the difference being that they are also accused of “denigrating” the office of the President

A basic right

The show-cause notices raise a fundamental question: Does a citizen have the right to criticise a constitutional authority such as the judiciary or the President for acts done in the discharge of their public duties? While the judiciary has an official monopoly over decisions of innocence and guilt, nothing prevents ordinary citizens from reading a judgment and deciding for themselves on its rights and wrongs.

History has not had the last word on the twin Yakub Memon judgments delivered by the Supreme Court within a span of 12 hours or on the twin rejections of his mercy petitions, one by the Governor of Maharashtra and one by the President. These will be debated for a long time to come. I am reminded of the title of a book commissioned by the Supreme Court itself, Supreme but not Infallible.

The Programme Code of the Cable Television Network (Regulation) Act 1995 contains the following rules:

Rule 6(1)(d): ‘ No programme should be carried in the cable service [if it] contains anything obscene, defamatory, deliberate, false and suggestive innuendos and halftruths

Rule 6(1)(g): which contains aspersions against the integrity of the President and Judiciary

If the use of the word ‘integrity’ in Rule 6 (1)(g) was intended to mean financial integrity, the law that would apply is not the Cable TV Act but the law of defamation – if the allegations are proved wrong.

If the Supreme Court feels that its “integrity “ has been violated, it must itself explain in what manner its integrity has been attacked by the broadcasts in question and then, it must suo motu initiate Contempt of Court against the channels. No such thing has happened.

The I&B ministry cannot fight surrogate battles on behalf of the President and the Supreme Court of India. It has no such powers. Long years ago, the Supreme Court said the air waves belong to us all, and that free speech cannot be curtailed by the denial of a license to broadcast – something the government is trying to do.

Indira Jaising is a senior advocate in the Supreme Court and a former Additional Solicitor General of India.