This Article is From Aug 13, 2015

Outrageous Challenge To Freedom Of Expression

The show-cause notices sent by the Ministry of Information and Broadcasting (MIB) to three television news channels, NDTV 24x7, Aaj Tak, and ABP News, for so-called violations of the programme code prescribed under the Cable Television Network Rules, 1994 in their coverage of the serious issues arising from the execution of Yakub Memon are a flagrant attempt to stifle constitutionally-guaranteed freedom of speech and expression. The grounds cited - exploiting the central government's power of licensing, and the claimed authority to 'regulate the content' of private satellite television channels - are specious and patently arbitrary and unlawful. In the latest instance, regulation under the guise of enforcing the programme code has become indistinguishable from crude censorship.

The instant strong reactions from within and outside the Indian media - from the Editors' Guild of India, the Broadcast Editors' Association, the News Broadcasters Association, press clubs, unions of journalists, newspaper editorials, the chairperson of the Broadcasting Complaints Council of India, and political leaders - are heartening. 

They make it clear that these notices are rightly seen as ominous, signaling intolerance and a clear intent, if not to intimidate, then to send a message to the private broadcast media that they ought not to step out of line on issues that are regarded as sensitive by the ruling party and the central government. The common demand of the news media in this country is that the show-cause notices must be immediately withdrawn and the harassment of the three television channels stopped.

The notices are also connected, inextricably, to the ideology and politics of the Hindu Right, and to the related vision of an autocratic national security state. However perversely, they have brought to the fore, at a sensitive socio-political juncture, three vital issues that need to be resolved on a priority basis. These are 1) the scope of the freedom of speech and expression guaranteed by the Constitution of India in Article 19; 2) the status of free-ranging, critical debate in Indian democracy; and 3) the crucial question of why, and on what basis, the state continues to make an invidious distinction between the print and broadcast media in the latitude of freedom and independence available to them.

The three show-cause notices deal with two separate issues that supposedly fall within the ambit of the programme code that is prescribed under the Cable Television Network Rules, 1994 and has, additionally, been imported into the policy guidelines for the uplinking and downlinking of news and current affairs TV channels. I have read the notice sent to NDTV 24X7 but have had access only to news reports on the notices sent to the other two news channels. 

The notices, taken together, cover three over-broad Rule 6 sections, 6(1)(d), 6(1)(e), and 6(1)(g), prescribed under the programme code:

"No programme should be carried in the cable service which...

6(1)(d): Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths;

6(1)(e): is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes...[and]

6(1)(g): Contains aspersions against the integrity of the President and Judiciary." 

The notices sent to Aaj Tak and ABP News relate to the broadcast of a phone-in interview with Chhota Shakeel (or a man claiming to be the gangster), in which he claimed that Dawood Ibrahim was not involved in the 1993 terrorist bomb attacks in Mumbai, described Yakub Memon's execution as "legal murder," and criticised the Government of India for going back on its word that his life would be spared if he surrendered.  

From a journalistic standpoint, one is entitled to question the relevance and news value of airing Chhota Shakeel's views on this matter; personally speaking, as a former newspaper Editor, I would not feature them as an "exclusive," beyond giving his assertions perhaps a few lines in a news report or analytical article. But I recognize that another editor, especially a television editor, might see news value in this phoned-in 'exclusive' and play it quite differently. 

In any case, presenting interviews with extremists, armed insurgents, war mongers, gangsters, drug lords, and others beyond the pale of law is very much part of the practice of free-wheeling, independent journalism round the world. You don't go after the messenger when an insurgent or extremist or outlaw says something outrageous or unpleasant to hear. It is worth recalling that the Indian news media, newspapers as well as private television channels, have presented extended interviews with major insurgent or extremist leaders without encountering any problem from authorities. I have done this myself when Velupillai Prabhakaran, supremo of the Liberation Tigers of Tamil Eelam, was in hiding in Chennai and in Jaffna.

Recently, India's leading business daily published the transcript of a telephone conversation that Mushtaq 'Tiger' Memon had with his mother just before his brother was hanged. The English translation of the conversation had the gangster swearing deadly revenge: "This is the height of injustice, this will not go to waste...I will make them pay." The conversation, however it was leaked, had news value. Its publication could be shown to be in the public interest, which would override any right to privacy the old lady, who was shown to be in a pathetic state and most reluctant to come on the line, had. But the point is that no one in authority made any fuss about it, let alone allege that it was "likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes" or that it contained "aspersions against the integrity of the President and Judiciary." Why? Because the rules of the game are quite different for the print media. 

Nobody in their right mind would say that by broadcasting the phone-in interview with Chhota Shakeel, Aaj Tak and ABP News were supporting or endorsing his views. On the contrary, to put it mildly. Indian news television has certainly broadcast many voices in favour of the hanging.

But it is the show-cause notice sent to NDTV 24x7 that gives away the I&B Ministry's ideologically and politically charged game. I first read the notice closely, researched the programme code prohibitions being cited, and then viewed online, more than once, the Sreenivasan Jain programme, "Truth Vs. Hype: The Riddle of Yakub Memon," which was being targeted and which I had missed when it was telecast on August 1. 

It turns out that MIB was now going after one of the more thoughtful, researched, fair-minded, and well-presented examinations in the Indian news media of the 'riddle of Yakub Memon.' The NDTV 24x7 programme, conceived and anchored by an experienced journalist, was an independent and critical attempt to penetrate the 'mystery' of Yakub Memon's return from his safe haven in Pakistan to face Indian justice and, incidentally, to look at the nature and extent of his culpability in the 1993 Mumbai bomb attacks, and also the quality and effectiveness of the legal assistance he got. It had little or no editorialization by the channel, not that there would have been anything objectionable in that. 

I have the following list of people who are interviewed, or have a say, in the programme: Anand Grover, Yakub Memon's lawyer, who comments on the lost cause with poignant dignity; Maseeh Rehman, a journalist who has impressive knowledge of the details of this case and raises troubling questions; Shyam Keswani and Niteen Pradhan, lawyers, and Madhu Trehan, who all have a brief say on the matter; Shantanu Sen and O.P. Chhatwal, who are given more than fair time to contest the criticisms and answer the questions and have a good deal to say in favour of the CBI; and Majid Memon, well-known lawyer and Nationalist Congress Party M.P., who takes direct issue with the justice of Yakub's execution but surprisingly applauds the Supreme Court of India for "having at least afforded to him...the last opportunity at 3 am."

The MIB's show-cause notice quotes, accurately, Majid Memon as saying (towards the end of the programme): "Usmaan Khan is an approver in this case, who is PW 2 in the trial, OK! Now this Usmann Jaan Khan has been pardoned. If you show this pardon to any person outside India, UK 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 Ibrahim; he's pardoned...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...the last opportunity at 3 am." 

The MIB's show-cause notice in this case alleges, mystifyingly, that "what is being purportedly stated as facts gives vent to apparent half-truths which may be deliberate and defamatory" and thus runs foul of 6(1)(d). It fails to specify which part of the statement it considers 'half-truths' or 'defamatory'. The absurd, and indeed perverse, implication of this sweeping charge is that everything anyone says on news television should be full and guaranteed truth, and nothing else should be telecast. 

The second allegation, made in terms of 6(1)(g), is so absurd that it seems to verge on comedy: "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. After casting all kinds of aspersions, NDTV 24x7 goes on to show how the statement quoted above merely ends with the words that he bows down to the judgement." 

Have not the authors of the show-cause notice ever read Indian newspapers - their editorials and other opinion pieces on the judiciary, sound and unsound court judgments in sensitive causes, the occasional miscarriage of justice, the law's delays, the strengths and weaknesses of the Indian judicial system relative to other judicial systems, and so forth? Have they not read what Justice V.R. Krishna Iyer, one of India's great jurists and progressive humanists, had to say about such issues in newspaper columns? Have they not read in the press the troubling questions about Yakub Memon's execution, addressed to the President and to the Supreme Court of India? Majid Memon, the experienced criminal lawyer who knew what he was talking about, was well within his constitutional rights to say what he did in the NDTV 24x7 programme. I would add the comment that what he said in the end verged on obsequiousness, for whatever reason.

This brings me to my concluding point, a point that has been made in several newspaper editorials, learned papers, and reasoned debates over the years. Freedom for the Indian news media is incomplete, with a big hole in it. In the eyes of the state, it is not applicable to the broadcast media, whether they are state-owned or private. Remedying this situation for the private satellite television channels at this stage has become an urgent democratic imperative. As an editorial in The Hindu recently argued: "While print publications in India have been allowed a wide degree of freedom of expression in consonance with the constitutional provisions, broadcast channels have not been given the same leeway as in addition to the general laws they are also governed by the broadcast code that regulates content...the distinction appears invidious...Both types of media serve the same purpose of informing and promoting public discussions of issues, necessary in a democratic society. It is dangerous for the power to regulate broadcasting to be vested in the I&B Ministry that can block content that is not to the liking of the government, using the broadly framed content code. The distinction between the print and broadcast media should be removed and the broadcast medium allowed in full the freedom of expression guaranteed under the Constitution."

There is a misapprehension that the "freedom of speech and expression" guaranteed by Article 19(1)(a) does not apply to content that is broadcast. What the Supreme Court of India has held is that "an unrestricted right to licensing of broadcasting" cannot be read into Article 19(1)(a), I would add for reasons that no longer hold, if they ever did. The real mischief lies in the practical arrangement, the licensing power assumed by the central government's Ministry of Information and Broadcasting - rather than an independent regulator - to 'regulate,' that is, censor, content and to impose onerous and absurd terms and obligations, through the content code, as a pre- and accompanying condition for giving permission to broadcast. It is time this particular mischief against constitutionally guaranteed freedom of speech and expression was challenged in the highest court in the land, and the big hole in media freedom in India closed.  

(The author is Chairman and Publisher of The Hindu group of newspapers.)    

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.