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09 Nov 2016

Is the government order banning NDTV unconstitutional?

In its order dated 2nd November 2016, the Ministry of Information & Broadcasting has prohibited transmission or re-transmission of NDTV India, one of India’s leading news channels for one entire day (on 9th November 2016) on any platform throughout India.  This punitive action is the result of an Inter-Ministerial Committee’s finding that the channel’s live telecast of Pathankot terror attack incident was detrimental to national security interests.

The news channel has filed a writ petition in the Supreme Court of India challenging the constitutionality of the order and the provisions of law.  This article discusses whether the Union government’s action and the corresponding provision of law is unconstitutional and whether the action is arbitrary.

The Government Order states that this news channel, while telecasting the Pathankot terrorist attack, gave away strategically sensitive information about location of ammunition depots, fighter planes, rocket launchers, fuel tanks, etc. and that such information could have been used by terrorists or their handlers to impede counter terrorism operations and further has the potential to cause massive harm to national security.  The government has invoked Rule 6(1)(p) of the Programme Code under the Cable Television Network Rules 1994, which was inserted through an amendment in the year 2015.  Rule 6(1)(P) of the Programme Code reads as follows:

“No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes”.

This provision is being challenged by the news channel as unconstitutional.

Article 19(1)(a) of the Constitution of India states that “All citizens shall have the right to freedom of speech and expression” (emphasis supplied).  However, this right is not absolute and is subject to reasonable restrictions as stated in Article 19(2) which reads as below:

Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The question of law is whether Rule 6(1)(P) of the Programme Code falls within the ambit of “reasonable restrictions” narrated in Article 19(2). This rule states that no live telecast should be carried out till such anti-terrorist operations conclude.  The direct meaning of this rule can be interpreted constitutionally as: “Freedom of speech would be curtailed for a brief period of time when it is in conflict with the Security of the State”.  This can be interpreted as “reasonable restriction”.

Firstly, the intention of the rule is clear. Live dissemination of any vital information through media pertaining to and during the counter-terrorism operations could benefit the terrorists and their handlers.  This may hinder anti terrorism operations, and hence constitute a security risk.  Secondly, the Government has issued a Show Cause Notice to the news channel giving it adequate opportunity of being heard, therefore satisfying the principle of ‘audi alteram partem’, and hence not arbitrary.  This rule can be construed to be a reasonable restriction since it is only for a very brief period of time in the interest of national security and not a complete arbitrary ban, and thus having a constitutional mandate.

As to the question of facts: The news channel has, as per the government order, defended its stance stating that the coverage of the operation in question was deferred (i.e. not live) right from day one and also that many in the print media had already revealed defence information pertaining to Pathankot airbase, which was thus already in the public domain. Further, the news channel also stated that the Government’s stand amounts to subjective interpretation considering that several other channels too had reported via live telecast.

The facts of the case were heard by an Inter-ministerial committee wherein the representatives of the news channel presented their facts. The news channel was questioned as to the real-time dissemination of the location of the remaining terrorists as well as the sensitive assets near their vicinity and such other information.

The Governmental Order has quoted the penalizing provisions of Up-linking Guidelines and Section 20(2) of the Cable Television Networks (Regulation) Act, 1995, upon violation of which government gets the authority to prohibit transmission of any channel.

Clause 8.1 of Up-linking Guidelines states that: In the event of a channel/teleport/SNG/DSNG found to have been/ being used for transmitting/ up-linking any objectionable unauthorized content, messages, or communication inconsistent with public interest or national security or failing to comply with the directions as per para 5.9 above, the permission granted shall be revoked and the company shall be disqualified to hold any such permission for a period of five years, apart from liability for punishment under other applicable laws.”

Clause 5.9 states that “The Government of India, Ministry of Information & Broadcasting shall have the right to suspend the permission of the company for a specified period in public interest or in the interest of national security to prevent its misuse. The company shall immediately comply with any directives issued in this regard.”

Under clause 8.2.1 The ministry has the right to impose penaltiesIn the event of first violation, suspension of the permission of the company and prohibition of broadcast/ transmission up to a period of 30 days.

Section 20(2) of Cable Television Networks (Regulation) Act, 1995 states that: “Where the Central Government thinks it necessary or expedient so to do in the interest of the— (i) sovereignty or integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign State; or (iv) public order, decency or morality, it may, by order, regulate or prohibit the transmission or re-transmission of any channel or programme”, it may, by order, regulate or prohibit the transmission or re-transmission of any channel or programme.

There have been several instances in the past where the above penalizing provisions have been invoked by the Government against the media, including the above-mentioned news channel, for violation of the Programme Code.

Whether action of this news channel during the Pathankot terrorist attack had constituted a threat to the Security of State and whether the government has arbitrarily acted on this particular channel alone are question of facts and best left to be decided by the courts.  However, Rule 6(1)(p) of the Programme Code can be construed as a reasonable restriction and hence constitutional.

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