Manas Dasgupta
NEW DELHI, Feb 3: The Supreme Court on Friday directed the central government to produce within three weeks the original records of its order blocking screening of the controversial BBC documentary on the Prime Minster Narendra Modi and the 2002 Gujarat riots but refused to stay the ban order.
The notice was issued on the petitions filed by senior journalist N. Ram, Member of Parliament Mahua Moitra and advocate Prashant Bhushan, which highlighted the citizens’ “fundamental right to view, form an informed opinion, critique, report on and lawfully circulate the contents of the documentary as right to freedom of speech and expression incorporates the right to receive and disseminate information.”
A Bench of Justices Sanjiv Khanna and MM Sundresh issued formal notice to the Union of India through the Ministry of Information and Broadcasting, Twitter Communications India Private Limited and Google India Private Limited. The next hearing of the case was fixed for April.
The court, however, did not issue any interim orders. The documentary is believed to be critical of the role Modi who then was the Gujarat Chief Minister in handling the communal riots. Senior advocate CU Singh, for the petitioners, cited cases “where officials more loyal than the king,” have blocked screening in university campuses and even rusticated students for watching the film.
The students of Rajasthan Central University in Ajmer were suspended for watching the film. The Jawaharlal Nehru University administration had issued an advisory to cancel a screening to maintain “peace and harmony” in the campus. The petitioners referred to reports about detention of students and presence of riot police at Jamia Millia Islamia campus in Delhi.
“We have asked them to produce the records. If they are not doing it, we will see what should be done. Let them file their reply and you can file your rejoinder,” Justice Khanna addressed Mr. Singh. The senior lawyer said the blocking order, kept “secret” as of now, is required to be put up in the public domain in a time-bound manner, in 48 hours, according to the law.
He asked the court to advance the date of the hearing. “April is the shortest date we can give. The government can file its reply in three weeks and you (petitioners) can file your rejoinder in two weeks after that,” Justice Khanna said. The court also issued notice in a separate petition filed by advocate Manohar Lal Sharma and tagged it along with Mr. Ram’s petition.
The petitions challenge the use of emergency powers to block the documentary and remove links from social media. The Centre never formally publicised the blocking order, said a separate petition by lawyer Sharma calling the ban on the two-part documentary “malafide, arbitrary, and unconstitutional.”
On January 21, the Centre, using emergency provisions under the Information Technology Rules, 2021, issued directions for blocking multiple YouTube videos and Twitter posts sharing links to the controversial documentary “India: The Modi Question.” The petitioners said the rules require that the Centre publish the emergency blocking orders within 48 hours.
The petition filed by the senior journalist and the others argue that the Ministry, under Rule 16(3) of the Information Technology Rules of 2021 and Section 69(A) of the Information Technology Act 2000, had on January 20, sent a legal request to Twitter India to block 50 tweets concerning and even containing links to the documentary.
After the ban, the two-part BBC series has been shared by various opposition leaders, including Mahua Moitra, the Trinamool Congress Member of Parliament and students’ organisations and opposition parties have organised public screenings.
The tweets of Mr. Bhushan and Ms. Moitra was among those taken down. YouTube links of the video were blocked, the petition said. The petitioners have referred to reports of how the series is reported to be critical about Modi in connection with the 2002 riots. The petition noted that Kanchan Gupta, senior advisor of the Ministry, had tweeted that the documentary was blocked on YouTube and Twitter following the orders of the Secretary of the Ministry on January 20 under emergency powers in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
The Information and Broadcasting Ministry told Twitter and YouTube to block the first episode of the BBC documentary, reports said after British Prime Minister Rishi Sunak distanced himself from the series, saying he “doesn’t agree with the characterisation” of his Indian counterpart in the UK’s parliament by Pakistan-origin MP Imran Hussain. The government has called the documentary a “propaganda piece” that lacks objectivity and reflects a colonial mindset.
The petitioners have urged the court to call for and quash orders directly or indirectly censoring the documentary. They said that the January 20 order and subsequent proceedings were not in the public domain. “The government has chosen expediency over necessity and proportionality in their response to the documentary… The contents of the BBC documentary and tweets of Moitra and Bhushan are protected under Article 19(1)(a) of the Constitution. The contents of the documentary series do not fall under any restriction on free speech or restrictions imposed under Section 69A of the IT Act,” the petition said.
It referred to apex court judgments which had held that the right of a filmmaker to make and exhibit his film was part of his fundamental right of freedom of speech and expression. Petitioners have submitted that censoring free speech through opaque orders is manifestly arbitrary and curtailed the fundamental right to seek judicial review.
The petition argued that the powers of the Centre, which range from publishing ‘Codes of Practice’ and establishing an inter-departmental committee for hearing grievances to appointing a Ministry officer for the exercise of the powers under Rule 16 were part of the government oversight mechanism stayed by the Bombay High Court in an interim order.