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Sunday, September 20, 2020

Censorship before a show: the law, rulings

Any legislation that imposes a prior restraint on speech usually has the burden to show that the reason for such restraint can be found under Article 19(2). It is generally allowed only in exceptional circumstances.

Written by Apurva Vishwanath | New Delhi | Updated: September 13, 2020 11:16:35 am
sudarshan TV, Bad Boy Billionaires, TV show censorship, sudarshan TV UPSC programme, indian expressSection 19 gives the power to prohibit a broadcast in the public interest. (Representational Image)

Different courts recently gave conflicting rulings involving the broadcast of two shows — a programme on Sudarshan TV and the Netflix documentary Bad Boy Billionaires. In each case, one court restricted the broadcast and another refused to interfere. These raise questions on the fundamental right to freedom of speech and expression, and whether these can be restrained prior to broadcast or publishing.

What are the cases about?

Sudarshan TV’s Bindas Bol was scheduled for telecast on August 28. A 49-second trailer posted on Twitter claimed the show would contain a “big expose on conspiracy to infiltrate Muslims in government service”, referring to Jamia Milia Islamia University alumni who cleared the civil services exam this year. On August 28, the Supreme Court refused to stay the broadcast, while the Delhi High Court Bench of Justice Navin Chawla granted an interim injunction restraining the telecast. A day later, the same High Court Bench refused to vacate its stay order.

In the Netflix case, following a plea by Sahara chief Subrata Roy, a court in Bihar’s Araria passed an interim order on August 30 staying the release of Bad Boy Billionaires scheduled on September 2. Two days before the stay, the Delhi High Court bench of Justice Navin Chawla had refused to grant a stay against the release in a plea by Gitanjali Gems promoter Mehul Choksi.

How did the courts decide the same issue differently?

The Delhi High Court issued an injunction after noting that the proposed telecast on Sudarshan TV violated the code prescribed in the Cable Television Network (Regulation) Act, 1995. Section 5 prescribes that “no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.”

Section 19 gives the power to prohibit a broadcast in the public interest if the programme is “likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity”.

Justice Chawla said prima facie it appeared the proposed broadcast would violate Section 5. The I&B Ministry informed the court it had received complaints against the broadcast and had sought the channel’s response.

A two-judge Bench of the Supreme Court headed by Justice D Y Chandrachud said the petition against the Sudarshan TV show prima facie raises “significant issues bearing on the protection of constitutional rights”. However, it said that it would “desist” from “imposing a pre-broadcast interlocutory injunction on the basis of an unverified transcript of a forty-nine-second clip”. “The Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with the law…,” the court added.

In the Netflix case, the High Court dismissed Choksi’s petition, saying since only he was personally affected by the broadcast, the appropriate remedy would be to file a civil suit.

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What is prior restraint?

Prior restraint is prohibiting the exercise of free speech before it can take place. Imposition of pre-censorship or prior restraint on speech is a violation of the fundamental right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution. Any restrictions imposed on this right have to be found under Article 19(2) of the Constitution, which lists out “reasonable restrictions” that include interests of the sovereignty and integrity of India, security of the state, public order, and incitement to an offence.

Any legislation that imposes a prior restraint on speech usually has the burden to show that the reason for such restraint can be found under Article 19(2). It is generally allowed only in exceptional circumstances. The idea is that speech can be restricted only when judged on its actual content and not pre-emptively based on perceptions of what it could be.

The court has adopted the “proximity” test to determine if public order would be affected to allow prior restraint — the state is required to demonstrate a proximate link between public order and the speech.

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Two rulings by the Supreme Court in 1950, which held that legislation imposing prior restraint on the press were unconstitutional citing that the restricts were too broad, led to the First Amendment of the Constitution that tinkered with the scope of restrictions on free speech under Article 19(2), adding the word “reasonable” before the restrictions.

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