The Supreme Court on February 3, 2023 directed the government to produce the original records on a decision to block the screening of a British Broadcasting Corporation (BBC) documentary series titled ‘India: The Modi Question’.
A Bench of Justices Sanjiv Khanna and MM Sundresh issued formal notice to the Union of India through the Ministry of Information and Broadcasting, Twitter Communications India Private Limited and Google India Private Limited. The court listed the case in April.
It did not however issue any interim orders on the petitions filed by senior journalist N. Ram, Member of Parliament Mahua Moitra and advocate Prashant Bhushan, which highlighted the citizens’ “fundamental right to view, form an informed opinion, critique, report on and lawfully circulate the contents of the documentary as right to freedom of speech and expression incorporates the right to receive and disseminate information”.
The documentary is believed to be critical of the role of then Gujarat Chief Minister Narendra Modi in the 2002 riots. Mr. Modi is currently Prime Minister.
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Senior advocate CU Singh, for the petitioners, cited cases “where officials more loyal than the king,” have blocked screening in university campuses and even rusticated students for watching the film.
The students of Rajasthan Central University in Ajmer were suspended for watching the film. The Jawaharlal Nehru University administration had issued an advisory to cancel a screening to maintain “peace and harmony” in the campus. The petitioners referred to reports about detention of students and presence of riot police at Jamia Milia Islamia campus in Delhi.
“We have asked them to produce the records. If they are not doing it, we will see what should be done. Let them file their reply and you can file your rejoinder,” Justice Khanna addressed Mr. Singh.
The senior lawyer said the blocking order, kept “secret” as of now, is required to be put up in the public domain in a time-bound manner, in 48 hours, according to the law.
He asked the court to advance the date of the hearing.
“April is the shortest date we can give. The government can file its reply in three weeks and you (petitioners) can file your rejoinder in two weeks after that,” Justice Khanna said.
The court also issued notice in a separate petition filed by advocate Manohar Lal Sharma and tagged it along with Mr. Ram’s petition.
The petition filed by the senior journalist and the others argue that the Ministry, under Rule 16(3) of the Information Technology Rules of 2021 and Section 69(A) of the Information Technology Act 2000, had on January 20, sent a legal request to Twitter India to block 50 tweets concerning and even containing links to the documentary.
The tweets of Mr. Bhushan and Ms. Moitra was among those taken down. YouTube links of the video were blocked, the petition said.
The petitioners have referred to reports of how the series is reported to be critical about Prime Minister Narendra Modi in connection with the 2002 riots. Mr. Modi was Gujarat Chief Minister at the time of the violence in the State.
The petition noted that Kanchan Gupta, senior advisor of the Ministry, had tweeted that the documentary was blocked on YouTube and Twitter following the orders of the Secretary of the Ministry on January 20 under emergency powers in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
The petitioners have urged the court to call for and quash orders directly or indirectly censoring the documentary. They said that the January 20 order and subsequent proceedings were not in the public domain.
“The government has chosen expediency over necessity and proportionality in their response to the documentary… The contents of the BBC documentary and tweets of Moitra and Bhushan are protected under Article 19(1)(a) of the Constitution. The contents of the documentary series do not fall under any restriction on free speech or restrictions imposed under Section 69A of the IT Act,” the petition said.
It referred to apex court judgments which had held that the right of a filmmaker to make and exhibit his film was part of his fundamental right of freedom of speech and expression.
Petitioners have submitted that censoring free speech through opaque orders is manifestly arbitrary and curtailed the fundamental right to seek judicial review.
The petition argued that the powers of the Centre, which range from publishing ‘Codes of Practice’ and establishing an inter-departmental committee for hearing grievances to appointing a Ministry officer for the exercise of the powers under Rule 16 were part of the government oversight mechanism stayed by the Bombay High Court in an interim order.