The Supreme Court asks__
Justice Joseph raised the question after Bhambani replied that the Authority takes prompt and effective action whenever it gets a complaint about a programme aired by any of its members.
The Supreme Court ruled on Friday in favour of action against television anchors who act unjustly during discussions and asked how many times an anchor has been removed off the air because of a programme.
“How many times have you let go of the anchor? Have you dealt with anchors in the manner you transmit a message?”, Justice K M Joseph, presiding over a two-judge bench, questioned Advocate Nisha Bhambani, who was representing the News Broadcasting Standards Authority (NBSA) in a case involving charges of hate speech.
Justice Joseph raised the question after Bhambani stated that the Authority takes prompt and effective action whenever it gets a complaint about a programme aired by any of its members.
Responding to calls to censor TV material, Additional Solicitor General K M Nataraj told the bench, which also included Justice B V Nagarathna, that there are appropriate checks and balances in place.
“Checks and balances are obviously not being advocated in a manner that achieves results,” Justice Joseph answered.
He claimed that anchors sometimes prevent individuals from voicing their opinions. “In many of these TV shows, you don’t enable individuals to speak on an equal footing. Participants you don’t want to voice their opinions, you will either silence them, or allow the other person to go on the whole time undisturbed”, he added adding “therefore the point is it is not the right of the broadcaster or the views of the panellist. It is the viewers’ right”.
“One of the methods (to exercise the check and balance) is if you have an erring anchor, the key actually is handled by the anchor, in a live broadcast the fairness of the programme is ultimately with the anchor, if the anchor is not functioning in a fair manner…” Justice Joseph remarked. If you take serious action against anchors, they will instantly realise it is not going to pay. On the other hand, I will have to pay a high price, since I will be removed from the air… There is also the ability to remove anchors”.
Justice Joseph stated that he would ascribe channel behaviour to what Adi Sankaracharya had said, “udaranimitham, bahukritha vesham”.
“Ultimately, all of this can be linked back to your udaram” (stomach). TRP is driving what is happening. This is the primary issue. Channels are essentially competing with one another. Regrettably, you are doing nothing about it. Certain things are sensationalised.
You should realise that, unlike someone reading a newspaper, someone who watches television instantly appeals to the visual portion of the brain, and especially children, they get attracted to it. And you build societal splits or whatever view you want to promote far faster than any other media,” he told the NBSA counsel.
Justice Joseph went on to say that “ultimately” the anchor and the editors control the material, and he wondered if “the anchor is himself or herself a part of the problem?”
Justice Joseph observed, when considering how to restrict television while balancing the right to free speech, “On the one hand, there is free expression… The greater the degree of freedom, the better the marketplace of ideas theory. However, we must also examine the sort of individuals in the marketplace of ideas.
The problem with liberty is that it is completely contingent on the audience. Are they mature enough to absorb the facts or misinformation offered to them? If you practise freedom with an agenda, if you advocate for a certain purpose, you are not truly serving the people. You are assisting someone else’s cause. Then you must deal with it “.
Referring to the incident of the guy accused of urinating on a fellow passenger on a flight, Justice Joseph said: “The sort of terms that had been used for him, he is an undertrial. Allow them to do anything they want with TRP. However, please take care not to insult someone with your remarks. Human dignity is at stake… It’s a component of Article 21”.
“When utilising your constitutional rights to free press, etc., you should act as though you deserve it. The right should be exercised correctly. Otherwise, what honour does the nation have?” he continued.
According to Justice Joseph, the First Amendment guarantees press freedom in the United States, and “they enable free expression until two things happen. One is the doctrine of fighting words and encouragement to violence. They are also trying to protect free expression in England. As a result, they will not intervene. In Europe however, people are not particularly very fond with the concept of curtailing free expression”.
He went on to say that the challenges in India are quite different, and that there is a constitutional instrument – Article 19 to address them (2). “But we are merely saying you free speech also has to be safeguarded”.
“That is why these petitions are not really about 19(2) as such; it is about the exercise of 19(1)(a) rights and how, in exercising those rights, there is a breach of Article 21 or another person’s Article 19(1)(a) rights,” Justice Nagarathna added.
People in the media, according to Justice Joseph, must recognise that they are in positions of power. And any misuse by them, by anyone who goes and sits in the channel is harming the whole nation. Because those who view them will not be able to instantly determine what the truth is. They will accept anything is presented as fact, incorporate it into their systems, and correspondingly condition their lives, which is quite hazardous.”
At the last hearing, the Supreme Court directed the DGPs of Delhi, Uttarakhand, and Uttar Pradesh to file criminal proceedings against people engaging in “hate speech” without waiting for official complaints.
On Friday, the counsel for Uttarakhand informed the court that, in accordance with the judgement, the state has recorded 118 cases, 23 of which were initiated by the state and the rest were based on complaints.
There were certain practical issues, according to the state counsel. When a police officer files a complaint on his or her own initiative, the officer becomes the complainant, and the inquiry becomes subjective rather than objective. When a police officer is the complainant, there is no way for the authorities to declare the accusations are false, he noted.
In response to a question from the bench, he stated that investigations into the instances are ongoing.
Uttar Pradesh notified the court that it has filed 581 cases in 2021 and 2022, 160 of which were filed on their own initiative. The amount for 2022 was nearly 2.5 times that of 2021, according to the court.
In response to questions on how the government intends to restrict hate speech on television, Nataraj stated that amendments to the criminal law are in the works.
“We solicited advice from many stakeholders and states. We’ve been getting these suggestions… It must eventually be brought before Parliament. It’s a parliamentary exercise…. After gathering all of the information, we must propose relevant laws… “I cannot comment for the law,” he explained.