When the screen goes blank

Without the imposition of Emergency, will executive power to censor and stop transmission of news stand judicial scrutiny?

Updated - December 02, 2016 01:53 pm IST

Published - November 07, 2016 12:46 am IST

The Information and Broadcasting Ministry’s >24-hour ban on the television channel NDTV India over its Pathankot coverage is being seen as an attempt to muzzle inconvenient live reportage. And worse, a case of selective vendetta. The Ministry has invoked the Cable Television Networks (Amendment) Rules, 2015, on the ground that the channel broadcast “crucial information” which compromised national security. These rules prohibit “live coverage of any anti-terrorist operation by security forces” and restrict media coverage to “periodic briefing” by a designated officer “till such operation concludes”. It is not clear if the channel's impugned broadcast was 'live coverage' or just 'reportage'.

A case of overreach The 2015 Rules, which operate as an interim injunction on 24x7 reportage, are to prevent sensitive information from falling into the wrong hands and not become a licence for excesses or a cover-up. They are silent on whether it is mandatory for the government to designate an official spokesperson to give out information. While the restriction on live coverage is categorical with the use of the word “shall”, there is no definition of the term “periodic”. What is periodic for the State may be inadequate for a 24x7 television channel. Further, “briefing” implies sharing a carefully vetted statement, and not necessarily answering questions. Anti-terror operations must certainly not be compromised by irresponsible revelations of strategically sensitive information. But the job of the media is to be an objective observer, to speak truth to power, to question, even investigate, for instance, whether an encounter is genuine or staged, whether a suspect gunned down is really a terrorist, in keeping with the guidelines of the National Human Rights Commission.

The Ministry’s ban flows from its power under Section 20 of the Cable Television Networks (Regulation) Act. The provision empowers the Central government to “regulate or prohibit the transmission or re-transmission of any channel or programme” if it is necessary or expedient to do so “in the interest of the sovereignty, integrity or security of India, friendly relations with any foreign State or public order, decency or morality.” These clauses are a replica of the reasonable restrictions to free speech under Article 19(2) of the Constitution. The legislative intent was obviously to only sanction action within the constitutional framework and as a last resort.

Court’s word of caution The right of the media to report news as it happens is constitutionally guaranteed under Article 19(1)(a) of the Constitution. This extends to viewers and readers who have a right to know. Of course, it is hemmed in with “reasonable restrictions”. Is the ban a reasonable restriction on this fundamental right? How did the channel's coverage undermine the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, which are the relevant constitutionally permissible restrictions on free speech? Who determines what constitutes a breach of national security? The scope of reasonable restrictions was examined by the Supreme Court in S. Rangarajan v. P. Jagjivan Ram . It noted that “the anticipated danger should not be remote, conjectural or far-fetched.” In Chintaman Rao v. State of Madhya Pradesh , the apex court had held that “reasonable restrictions” must not be “arbitrary” or “excessive”.

The Cable Television Networks (Regulation) Act must not be trivialised to operate like a stick in the hands of a headmaster to rein in disobedient schoolchildren! The moot point here is whether the impugned content fell within the constitutional test of “clear and present danger”. If the information was already in the public domain, as the channel argues, what is the mechanism adopted by the committee that recommended the ban, to zero in on NDTV alone? Action tainted with mala fide intent is liable to be struck down on grounds of discrimination and malice as it would fall foul of Article 14. To shut down a news channel for a whole day to ostensibly “set an example” creates a dangerous precedent.

‘Falling into error’ Without the imposition of Emergency, will executive power to censor and stop transmission of news stand judicial scrutiny? Can the government be a judge in its own cause and based on its subjective interpretation, usurp the powers of courts to carry out punishment for violation of the law? Wouldn’t such practices undermine the doctrine of separation of powers, which is a basic structure of the Constitution? Have the principles of natural justice been adequately adhered to before trampling over the channel’s right to do its job under Article 19(1)(g)?

In > Shreya Singhal v. Union of India, the Supreme Court cautioned the authorities against any “insidious form of censorship which impairs a core value contained in Article 19(1)(a)” and has a “chilling effect on the freedom of speech and expression.”

It is relevant to quote Justice Jackson in American Communications Association v. Douds : “Thought control is a copyright of totalitarianism... It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.”

Let the media remain a watchdog. Leave the interpretation of “national interest” to our courts. And don’t allow the executive to become a bloodhound.

Sanjay Pinto is a lawyer, columnist and former Resident Editor of NDTV 24x7.

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