30 Jan 2023 9:20 AM GMT
Terming the Centre's decision to block public access to BBC's documentary "India : The Modi Question" as "manifestly arbitrary" and "unconstitutional", veteran journalist and former editor of The Hindu N Ram, Advocate and civil rights activist Prashant Bhushan and Trinamool Congress MP Mahua Moitra have jointly filed a petition in the Supreme Court.The writ petition filed under Article 32 of...
Terming the Centre's decision to block public access to BBC's documentary "India : The Modi Question" as "manifestly arbitrary" and "unconstitutional", veteran journalist and former editor of The Hindu N Ram, Advocate and civil rights activist Prashant Bhushan and Trinamool Congress MP Mahua Moitra have jointly filed a petition in the Supreme Court.
The writ petition filed under Article 32 of the Constitution seeks to restrain the Central Government from censoring the BBC documentary and to quash all orders which directly and indirectly block the online access to it. Also, N Ram and Prashant Bhushan seek restoration of their tweets sharing the links of the documentary, which were taken down by Twitter following Centre's orders.
One of the major arguments advanced in the petition is that the right to freedom of speech and expression guaranteed to citizens by Article 19(1)(a) of the Constitution also includes the "right to receive and disseminate information".
"All citizens including the press have the fundamental right to view, form an informed opinion, critique, report on, & lawfully circulate the contents of the documentary as right to freedom of speech and expression incorporates the right to receive and disseminate information".
It is argued that the Centre's decision violate the rights in the following manner :
a. the freedom of the press, represented by the journalists who produced and are featured in the Impugned Documentary;
b. the exercise of the right to free speech by various citizens of India who have appeared in the Impugned Documentary and wished to disseminate their opinions on the events pertaining to a specific time in Indian history;
c. the exercise of the right to free speech, and the right to information, by various Indian residents, including the Petitioners, who wish to view the Impugned Documentary and initiate public debate and discussions across social media platforms in this regard.
Criticism of government will not amount to violating India's sovereignty
Highlighting that the "criticism of the Government or its policies does not tantamount to violating the sovereignty and integrity", the petitioners question the Centre invoking its emergency powers under the IT Rules 2021.
In this regard, the petitioners quote the observations made by Justice DY Chandrachud, when he was a Bombay High Court judge, while overturning a ban on the movie "Chand Bhuj Gaya" made in the backdrop of Gujarat riots.
"In a democratic society every citizen has a right to speak as indeed, the right to know....Nothing can be as destructive of the social fabric in a democratic society than the attempt of those who govern to prevent access to information to those whose security depends upon the preservation of order. An environment in which human rights are respected is nurtured by a vibrant flow of information and avenues for a critical assessment of governance", Justice Chandrachud wrote in the judgment which discarded the CBFC objection to the the film on Gujarat riots.
The petitioners assert that "it is their fundamental right of the petitioners and media to discuss the contents of the documentary, what it says, and the viewpoints of all those who have been interviewed in it with other citizens of the country".
Documentary cannot be banned on the ground that its unfavourable to those in power
Even if the contents of the documentary and its viewership/discussion thereupon is unpalatable to the powers that be, it is no ground to curtail the freedom of speechand expression of the petitioners, the petitioners argue.
While the content of the Documentary may be seen as critical of the past conduct of various persons who are currently holding office within the Central Government,the contents thereof are protected under Article 19(1)(a).
Blocking order not published
The petitioners point out that the Ministry of Information and Broadcasting has invoked its emergency powers under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules 2021) to direct YouTube and Twitter to remove the links of the documentary. However, the orders passed by the Ministry are not yet published. The only information available to the public is the tweet of Kanchan Gupta, Senior Adviser, Ministry of Information and Broadcasting, Government of India, saying that the BBC World documentary on Prime Minister Narendra Modi, has been blocked on YouTube and Twitter. As the formal order is yet to bre published, the reasons cited to invoke the emergency powers are not withheld from the public.
This constitutes a grave violation of not only the citizens' fundamental rights but also the statutory provisions under the IT Act. In accordance with Section 69(A) of the IT Act, the blocking order has to be in writing and must record reasons for such an order. In the present case, neither the order nor the reasons are in the public domain.
"Censoring the freedom of speech and expression of the petitioners by the Executive through opaque orders and proceedings is manifestly arbitrary as it frustrates the fundamental right of petitioners to effectively seek judicial review of administrative actions", the petition states.
Centre has invoked the rule stayed by High Courts
In this context, the petitioners point out that the High Courts of Bombay and Madras have expressed concerns about the some of the provisions of the IT Rules as creating a chilling effect on media freedom. The Bombay High Court had stayed the provisions for the enforcement of 'code of ethics' against the digital media, observing that it prima facie violated fundamental right to free speech. Later, the Madras High Court observed that the Bombay High Court's stay order will have a "pan-India effect". Rule 16, which has been invoked by the Centre to block the documentary, falls within stay order passed by the High Courts, the petitioners argue.
"In light of this, the actions of the I&B Ministry, amounting to an exercise of powers under a mechanism that has been stayed across the country is illegal", the petiton states.
The petitioners also raise concern about the actions taken against students in universities for screening the documentary. "Freedom of speech and expression of students across universities is sought to be curbed on the ground of apprehension of ‘law & order’ situation", the petitioners state.
Senior Advocate Chander Uday Singh mentioned the matter before Chief Justice of India on Monday for urgent hearing. CJI agreed to list the matter.
The petition has been drawn by Rahul Gupta, Suroor Mandar, Cheryl D'souza, Varun Thomas Mathews and filed through Prateek Chadha.