“Freedom of speech and expression may be the most abused freedom in recent times,’’ the Supreme Court observed Thursday as it took exception to what it called an ‘‘evasive’’ affidavit filed by the Centre in response to a petition alleging discriminatory news coverage of the Tablighi Jamaat issue.
Chief Justice of India SA Bobde made this remark when Senior Advocate Dushyant Dave, appearing for petitioner Jamiat-Ulama-i-Hind which said the Tablighi issue was reported in such a manner that it spread communal hatred, submitted that the government affidavit accused it of trying to muzzle freedom of speech.
At this, the CJI said, “they are entitled to make any argument like you people are. This freedom of speech may be the most abused freedom in recent times”.
The bench, also comprising Justices A S Bopanna and V Ramasubramanian, made evident its displeasure over the affidavit filed by the Ministry of Information and Broadcasting.
The CJI told Solicitor General Tushar Mehta, appearing for the Centre, “We must tell you Mr Mehta, you cannot treat the Court the way you are treating it in this case. You have filed an affidavit by a Junior Officer. We find it extremely evasive. It mentions nothing about bad reporting. How can you say there’s no incident?”.
Mehta said he would file a fresh affidavit. The bench said it must be filed by the Secretary of the department concerned and that it must reflect on the instances complained about.
Defending freedom of the press, the Centre’s affidavit said spread of Covid-19 among attendees of the Tablighi Jamaat convention at the Nizamuddin Markaz, attacks on health workers by some sections etc, were all matters of fact and that “news reports based on facts… cannot be censored”.
The affidavit said the reports complained about “do not encourage or incite violence or contain anything against maintenance of law and order and/or which promotes anti-national attitudes”.
The affidavit said the plea raised grievances against “certain section of media” without naming any, and “certain news reports” without producing these reports, and “merely relied upon ‘certain fact check news reports’ to contend that entire media is perpetrating communal disharmony and hatred towards Muslims, and is therefore required to be censured/gagged”.
Maintaining that no relief should be granted on the basis of such “general assertions”, the affidavit said that “attempt to seek a blanket ‘gag order’ against the entire media in respect of Markaz Nizamuddin will effectively destroy freedom of the citizen to know about the affairs of the respective sections of the society in the nation & the right of the journalist to ensure an informed society”.
The bench asked Mehta for information on laws under which the government had exercised similar powers in the past.
As the hearing commenced, the CJI told Dave that the court had looked at the relevant provision — Section 20 of the Cable Television Networks (Regulation) Act, 1995 — but it “does not help” as it applies only to Cable TV and not television signals.
Section 20 deals with the power of the Centre to prohibit operation of a cable television network in public interest.
The bench said it wanted to know if the government had any power to prohibit broadcast of TV signals.
Dave said the department had been invoking powers under the Cable TV Act to control television.
Intervening, Mehta said, “not controlling, regulating… they have two different meanings”.
The bench pointed out that only those powers which are mandated by law can be exercised.
In its affidavit, the Centre said, “All the aforesaid facts are neither per se false nor per se fake. Though in isolated cases it may be exaggerated… news reports based on facts which are not prima facie not per de false or fake cannot be censored under Article 19(2) of the Constitution of India.”
It said “dissemination of such facts by the media houses, even though they may appear to be offensive and distasteful to certain individuals or a section of society, is nevertheless protected under Article 19 (1) (a) of the Constitution of India. Furthermore, dissemination of said facts by the media prima facie does not amount to attack on religion or religious communities. The same also does not amount to visuals or words contemptuous of religious groups or words/opinions which promote communal attitudes”.
The Centre said it is only per se false and fake news which do not enjoy Constitutional protection of free speech and pointed to instances where prosecution has been launched in individual cases of false reporting.
The Ministry of Electronics and Information Technology had issued directions to social media platforms to remove/block 739 URLs and 4 accounts that spread misinformation on the virus that could lead to communal disharmony.
The I&B Ministry, it said, had also set up a Fact Check Unit in the Press Information Bureau for Covid-19 cases on April 2. Until July 14, this unit had received communication in 6853 cases out of which replies had been given in 6079 cases, it said.
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