Ban on BBC documentary futile, coercive action unfortunate: Ex-SC judge

Justice Nariman was speaking at the inaugural Jitendra Desai Memorial Lecture on the topic, ‘Freedom of Speech: Contemporary Challenges’, in Ahmedabad.

Other areas of concern he flagged were the media (print and television) not criticising the government as “they used to”, and there being “no opposition worth the name”.

Calling upon the government for withdrawal of the ban on the documentary, withdrawal of coercive action that followed after the ban and to see to it that no such bans are made in the future, Justice Nariman said if it was not done then “we are a sovereign democratic republic in name only”.

“…banning something is almost certain to make many more people watch it because you’re banning something which is on the internet which in any case is hydra…so it’s a futile ban to start with but the unfortunate thing is the ban itself, and more unfortunate is the coercive actions thereafter. In this case, it is the income tax raids on the BBC offices,” he said.

Referring to his friend and former Union minister late Arun Jaitley, Justice Nariman said that Jaitley was “very proud” that he had appeared as a junior counsel under his (Nariman’s) father in the ‘Express Newspapers Pvt. Ltd. & Others vs Union Of India & Others’ case, where a 1985 judgment by a three-judge bench had struck down notices issued in 1980 by the Land  and Development Officer (L&DO) for lease forfeiture and show-cause notices by the Delhi Municipal Corporation for demolition of alleged unauthorised construction of building on the Bahadurshah Zafar Marg plot. “If he (Jaitley) ever stood for anything, it was freedom of speech, because he suffered; he was in jail for 19 months unlike most of these other gentlemen…In the Express Newspapers case… pretty much what is being done today was done then…

Express went directly to SC claiming an Article 19 (1)(a) right and the government’s answer was that your petition does not hold because it’s a pure land problem, it has nothing to do with freedom of speech.

Justice A P Sen, who wrote the majority view (in 1985 judgment), said that this plea of the government left him “cold”. He then went on to say that we have no doubt whatsoever that this was a “malafide action”…In 1985, we did not have the doctrine of chill effect which we have now…And he struck down the notices on that ground alone…Justice Venkataramiah said these notices are arbitrary and struck it down…and Justice Misra upheld them. Mr Jaitley was very proud of this judgment… and he used to speak about it often to me and others, saying ‘this is how a Supreme Court should behave when there’s an all-powerful government who is trying to coerce one of the major newspapers then’. And pretty much what is being done today is what was done then. The difference is, that you used L&DO then, and today you’re using the Income Tax (IT)… Enforcement Directorate… So, if the coercive machinery of the state is to be used in this fashion, then there’s no doubt that the chilling effect comes into full play,” said Justice Nariman.