Guest Post by Sujoy Chatterjee
The Union Government has faced criticism from sections of the media and civil society for imposing a 24-hour “ban” on Hindi news channel “NDTV India”. The Union Ministry of Information & Broadcasting (MI&B) justified the move by contending that NDTV India acted against national interest by telecasting sensitive information during an ongoing counter-terrorism operation. New Delhi Television Ltd (NDTV) has filed a writ petition before the Supreme Court challenging the Union’s decision. This post traces the preceding developments, and explores whether television news media stands on a different legal footing than other news media sources.
During the 26/11 attacks, handlers based outside India reportedly watched the attacks live on Indian news channels and provided real-time telephonic instructions to the terrorists in Mumbai. The Supreme Court took judicial note of this fact in Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, and stated as an obiter, “The coverage of the Mumbai terror attack by the mainstream electronic media has done much harm to the argument that any regulatory mechanism for the media must only come from within.”
As a fallout of 26/11, the MI&B issued advisories on 27.11.2008, 03.12.2008 and 20.11.2009 respectively, ‘advising’ news channels not to report the location, strategy, etc. of security forces engaging with terrorists. Similar advisories, although not related to counter-terrorism operations, were issued on 20.09.2013 and 03.03.2015 regarding news content related to (Muzaffarnagar) communal riots and the documentary “India’s Daughter” respectively.
On 20.03.2015, in response to the alleged live news coverage of terror attacks in Kathua, J&K, the MI&B issued a specific advisory with regard to counter-terrorism operations, ‘advising’ television channels not to telecast “live coverage” of counter-terrorism operations and to restrict “media coverage” to briefings by designated officials till operations conclude. Media reports from that time suggested that the Union Ministry of Home Affairs had proposed amendments to the Programme Code for prohibiting live coverage of counter-terrorism operations.
Programme Code Amended
The Programme Code comprises content which cannot be telecast on television channels, and is prescribed by the Union Government under Section 5 of the Cable Television Networks Act, 1995. The Code is contained in Rule 6 of the Cable Television Networks Rules, 1994. The Union Government is empowered under Section 20 of the Cable Television Networks Act, 1995 to regulate or prohibit the transmission of channels when there is, inter alia, any violation of the Code.
On 21.03.2015, the Union Government amended the Code, and inserted sub-clause ‘p’ to Rule 6(1). The new sub-clause ‘p’ effectively limited news channels’ “live coverage” and “media coverage” of counter-terrorism operations, curiously without defining “live coverage” and “media coverage”. In my view, “Live coverage” of counter-terrorism operations may perhaps be akin to real-time videographic coverage of security movement, locations, etc., while “media coverage” may involve news reporting, whether by an anchor from a studio or by a correspondent from the field. The two coverages may or may not always be mutually exclusive.
On 27.07.2015, in response to the alleged live news coverage of a terror attack in Gurdaspur, Punjab, the MI&B issued an advisory to channels to desist from violating the recently-inserted Rule 6(1)(p). It appears that till 2016, the Union Government’s action/advisories were directed towards all channels and broadcasting associations, and no channel was singled out regarding coverage of counter-terrorism operations.
Order against NDTV
On 02.01.2016, terrorists attacked the Indian Air Force base in Pathankot, Punjab. NDTV India’s coverage on 04.01.2016, while counter-terrorism operations were underway, was questioned by the Union Government. NDTV India was served a show-cause notice regarding its coverage. The MI&B, after considering NDTV’s representation and the recommendation of the MI&B’s Inter-Ministerial Committee (IMC), passed a detailed order dated 02.11.2016 prohibiting the transmission of NDTV India for 24 hours. The Order was passed, inter alia, on the grounds that NDTV India’s coverage revealed strategically sensitive details and violated Rule 6(1)(p).
Whether NDTV India actually revealed strategically sensitive details, whether its coverage disclosed something more than information shared at official briefings, etc., are factual aspects which require complete information regarding the official briefings, specialized knowledge of counter-terrorism operations, etc. There are not enough details in the public domain to draw any conclusions at this stage.
One facet of NDTV’s defence, as recorded in the Order, is that its news report contained details which were already reported by other media sources. NDTV justified this submission by relying on numerous news reports of print editions. Reliance was also placed on reports carried by media houses which run news channels.
It is not clear whether the said reports were published/broadcast on newspapers/news channels or on some other media, including internet. NDTV’s submission appears to be that since these details were already in the public domain (through print and perhaps other media sources), hence there could not be legal restrictions on reporting of such details by news channels. This line of reasoning pre-supposes, amongst others, that there ought to be no distinction among content carried on different media, i.e., print media, electronic media, internet.
The Supreme Court shed light on this in Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, where the Court framed the question as follows, “… whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media.”
At a time when internet usage was barely in its infancy in India, the Supreme Court answered the first part of its question by stating, “the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach..”
On the second aspect, the Court held,
“The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures.”
Electronic vis-à-vis other Media
The possibility of different regulatory standards for content across different media was recently recognised in Shreya Singhal v. Union of India. The Supreme Court held that the internet is a distinct category as opposed to print and electronic media, and that there could be specialized laws for regulating speech on the internet. To that extent, judicial precedents may not support the proposition that content across all media are at par.
However, Shreya Singhal having classified internet as more powerful than television may benefit NDTV in its legal battle. Most media houses running news channels nowadays have corresponding websites containing regular news updates, video clips, news articles, blog posts, etc. This is in addition to myriad standalone news websites, promptly updating content. The content uploaded on all these news websites may coincide, or even precede, the broadcasting of similar content on news channels, and such websites are freely accessible worldwide. Viewed from this perspective, security concerns over coverage of counter-terrorism operations may not be effectively assuaged by only regulating television coverage.
The State may be justified in regulating news content, within constitutional/statutory limits, during exigencies such as terror attacks. However, Rule 6(1)(p) appears to be a case of holding news channels to a high standard of reporting, at a time when there is no standard whatsoever for online news outlets. While there is undoubtedly an intelligible differentia between television and internet, the test of reasonable classification may fail while considering whether the objective of maintaining the integrity of counter-terrorism operations can be achieved by regulating news on television but not news on the internet.
The Road Ahead
The Minister for MI&B, after meeting NDTV’s representatives on 07.11.2016, put the enforcement of the Order on hold till NDTV’s representation seeking review was decided. Consequently, the Supreme Court deferred the hearing in NDTV’s petition till 05.12.2016. Should the Union Government revoke or modify the Order before that date, NDTV may be inclined to withdraw its petition.
However, NDTV, having reportedly challenged the constitutional validity of Rule 6(1)(p) as well, may decide to put forth arguments on the vires of Rule 6(1)(p) irrespective of the Union Government’s decision on the Order. In that event, the fate of Rule 6(1)(p) shall not only have an impact on television news coverage during terrorist attacks, but may have wider implications on whether the State should regulate content on news media during exigencies, and if so, which media may be regulated to what extent.
[The author is an advocate based out of New Delhi]