A Case Against Judicial Censorship

Introduction

The recent controversy surrounding the release of the Netflix documentary Bad Boy Billionaires and the airing of a show on Sudarshan TV have reignited the debate around the issue of judicial censorship in India. What has been even more surprising in the case of these two contentious programmes is the differing approach adopted by the Court, thus highlighting a grey area in the realm of censorship laws. A 49-second trailer of an upcoming show on Sudarshan TV, which had a deep communal overtone, caused a massive uproar on social media and led to the filing of numerous complaints with the Ministry of Information and Broadcasting. On the basis of these complaints, a notice had been issued to the channel by the Ministry for clarifying details over the content of the show with regards to the programme code of the Cable Television Network Rules, 1994. Meanwhile, the Supreme Court refused to stay the broadcast of the show.

The Delhi High Court, however, restrained[1] the channel from broadcasting it and subsequently refused to vacate the order. Section 5 of the Cable Television Networks (Regulation) Act, 1995[2] states that “no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code”. Section 19[3] confers the power to prohibit a broadcast in public interest if it may promote disharmony or enmity between different religious or racial groups as well on the basis of case and community. In its reply to the notice, Sudarshan TV contended that its show could not be stopped from being telecast as that would amount to pre-censorship by the Ministry. The Ministry, after receiving the reply, went on to allow the telecast of the show[4]. It is to be noted that the Supreme Court, while refusing to interfere, had stated that “the Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with the law”.

In the Netflix case, a court in Bihar[5] stayed the release of Bad Boy Billionaires on a plea by Subrata Roy, one of those named in the documentary, as it found that Roy qualified the threefold test of prima facie case, balance of convenience and irreparable loss. Merely two days before this stay, the Information and Broadcasting Ministry had opposed Mehul Choksi’s (also portrayed in the documentary) writ petition in the Delhi High Court on the ground that “freedom of speech and expression is cardinal and should be given full play”. A civil court in Hyderabad also restrained[6] the release of the series in a petition filed by B. Ramalinga Raju, who is one of the four billionaires depicted in the Netflix show.

High Courts Reign Supreme

By Sourabh Balwani and Ritwik Tyagi

Background

Over a long period of time, and especially during the ongoing pandemic, a glaring deduction that has arisen within the legal fraternity is that of the fissures that have emerged in our judicial machinery in dealing with matters of utmost importance. From the Right to Food to the Freedom of Press, from the mandatory imposition of Aarogya Setu to the charges being levied for ‘Shramik’ special trains, the various Constitutional courts in India have displayed differing standards of concern towards protecting the rights of people from being violated. The Supreme Court has seemingly abdicated its responsibility as a protector of individuals liberties, while the High Courts in India have turned out to be cynosures for the common people. The manner in which the High Courts have dealt with the cases vis-à-vis the Supreme Court, is something which should be scrutinized.

Long gone are the golden days when a common person could regard the Supreme Court of India as the custodian of his/her fundamental rights, as the guardian angel for upholding the collective conscience of the nation, and perhaps as the gatekeeper who prevents the legislative and executive branches from crossing certain boundaries. Here, the emphasis is laid on the word common because for a certain section of the society, the Supreme Court has transformed into a personal court of sorts, where the smallest of their concerns are treated with the utmost importance and prioritized over real troubles of those who are suffering every day.

Recent events in light of the pandemic have demonstrated that the Supreme Court is growing more and more exclusionary in terms of who can knock on its doors. By adopting the use of technology to facilitate virtual courts, the court has shown its inclination to take up only cases of utmost importance. The arbitrary exercise of this power to be able to choose what cases are worthy enough to be considered important has corrupted the functioning of the Court. While the poor never really had the luxury of access to justice, the implementation of virtual courts has put the nail in the coffin by completely blocking their path to the so-called temple of justice.