We live in strange times. Liberty is being used to stifle liberty. When Sudarshan News seeks to telecast an outrageous ‘investigation’ that casts an ominous shadow on young Muslim aspirants to serve the nation as civil servants as indeed the much respected UPSC that sifts thousands of candidates from every religion and social backgrounds.
Although the Delhi High Court gave some protection to the concerned targeted petitioners, the Supreme Court disadvantaged by paucity of information, held firm to not imposing prior restraint on the telecast but two days later as the arguments continued, equally firmly refused to allow further telecasts.
Channel Attempted to Fall Back on National Security Argument
It was strenuously argued by counsel that this was inconsistent with the Court’s earlier order but was countered by Justice DY Chandrachud, saying that since then the Ministry had passed an order underscoring the need to comply with the Broadcast Code and the four episodes already aired had some glaring departure from the Code although the Ministry had not taken further note.
The matter is being heard by a Bench of Justices DY Chandrachud, KM Joseph and Indu Malhotra. Ironically, Justice Chandrachud has emerged as a strong votary of rights and must have been loath to put a restriction on the telecast of the remaining episodes.
His Lordship even suggested the counsel for Sudarshan News to volunteer putting the episodes in abeyance but the latter fought back with determination.
The vehemence of the resistance was surprising, given that worrisome quotes from the aired episodes prompting the Bench to say that investigative journalism was fine, but putting a question on an entire community and that too on the basis of untrue facts was unacceptable.
The channel attempted to fall back on the national security argument, the last resort for someone who wants to pre-empt rights of adversaries.
SC Flags the Importance of Dignity
Usually, courts at all levels feel severely constrained if national security is brought into a contest between citizens or between citizens and the government. In recent months, the phrase has become the staple diet of the establishment and aggressive political postures of majoritarian parties.
Yet, to hear the Supreme Court flag the importance of dignity in the context of claims of national security is heart warming for people who believe in rights.
Of course, the Supreme Court has yet to take a final call on what to do in the instant case.
Meanwhile, it has ventured out to examine what steps need to be taken to ensure that freedom of speech does not descend into an unrestricted licence for vilification, profiling, hate and media trials.
Some people might be confused by it but the Court’s reluctance to propose State regulation of media content and thus endorse some form of censorship, prior or post publication is to seen in light of the concern over the sliding slope of interference with free speech.
This is to be much appreciated and the suggestion for effective self-regulation to be welcomed.
Thus far, efforts at self-regulation have been woefully inadequate as noticed by Justice Chandrachud in his response to assurance of Press Council of India: “If things were hunky dory we would not be called upon to intervene here.”
Courts Need to Convert Lofty Words Into Action
Surprisingly, the channel argued that it was not the job of a Constitutional Court to intervene in situations as the one before it.
In a similar vein before the High Court, in the writ petitions against police intrusion onto the University campus, it was argued that since the Criminal Procedure Code had all necessary safeguards and powers, there was no opportunity for the High Court to interfere.
When celebrated former police officers, former civil servants, retired Supreme Court judges and eminent persons from different walks of life publicly express their deep anguish about the lack of fairness in investigations into the northeast Delhi riots of February 2020 to counsel, the fact that the constitutional courts turned a judicious blind eye is perplexing and alarming to say the least.
Very laboriously and diligently built edifice of democratic freedoms by the Supreme Court and High Courts cannot be allowed to come under the shadow of the deep political divide of our times.
It is indeed in such times that the Courts of the land have an opportunity to come into their own. The very purpose of constitutional constraints on majoritarian expectations comes alive in such times and the Courts need to convert lofty words into action on the ground.
Need to Begin Thinking About Democratic Entitlements
Given that public opinion is and will remain intensely divided for some time to come, we need to begin thinking about democratic entitlements.
The widespread misuse of UAPA like many of its predecessors is a serious question on our liberal commitment going beyond party divide. But on freedom of expression we need to do a reappraisal of our understanding of the issue.
Many great liberals believe that there is a right to ridicule as indeed the right to use strong expressions if something is strongly felt. But where do ridicule and caricature end and hate begins is a crucial question for the Court to answer.
(Salman Khurshid is a designated senior advocate, Congress party leader, and is a former Minister of External Affairs. He tweets @salman7khurshid. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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