By Sanjay Raman Sinha

The documentary on Prime Minister Narendra Modi has raised a furore and subsequently been banned by the government. The documentary, titled India: The Modi Question, has been described by the BBC in its website as “a look at the tensions between Indian PM Narendra Modi and India’s Muslim minority, investigating claims about his role in the 2002 riots that left over a thousand dead.” Modi was the chief minister of Gujarat when the riots broke, leaving over 1,000 dead. The government has argued that internal security and public order will be disturbed by the documentary.

The government used emergency powers in the Information Technology (IT) Act to block links on YouTube and Twitter. Public screening of the documentary has also been stopped. According to the IT Act, a content can be removed if it affects the “unity, integrity, defence, security or sovereignty of India”. Days after the first episode was telecast, the government said that the film was a “propaganda exercise” and reflected a “colonial mindset”. Subsequently, the documentary was banned.

Justice Bhanwar Singh, former judge of the Allahabad High Court, while speaking to India Legal said: “We must see the intention behind the ban imposed by the government. The first question arises that these things are 20 years old. Why it is raked up today? As everyone knows, there are elections in 2024. This proves that the intention behind it is not good. Why didn’t this documentary come before? Is there any intention to target Modi? So, from that point, I can say that the intention behind it is not good and that is why the government has imposed the ban. The ban has been imposed with respect to Article 19(2) which imposes conditions to safeguard national security and sovereignty of the country.”

The international media was overtly critical of the actions of the Modi government. The New York Times, The Washington Post, Time and The Guardian strongly expressed their views against the ban and questioned the government’s commitment to freedom of expression. The New York Times wrote: “The government has not stopped at criticizing the documentary. It has also taken steps to make it difficult to view inside India, the latest intervention in the free flow of information by state machinery that carefully tends to the image of India’s most powerful leader in generations.”

As the ban got slapped, protests spread all over the country. Student groups organized film shows in campuses. Jawaharlal Nehru University, Jamia Millia Islamia bristled with defiant activity and sloganeering. The police cracked down heavily on students and stopped the show. Questions naturally got raised over the curb on freedom of speech and expression.

PK Malhotra, former law secretary, said: “Under Article 19 of the Constitution, all citizens have the right to freedom of speech and expression. Only citizens of India have basic rights as enshrined in the Constitution; these rights are not available to the people who are not citizens of India. The government also put reasonable restrictions. But, the grounds on which these restrictions are applicable are prescribed in Article 19; these reasonable restrictions are to preserve and protect the sovereignty and integrity of the state, security of the state, friendly relations with a foreign state, public order and morality. If anything covers any aspects of these, the government has the power to restrict people and put restrictions on the right to freedom of speech and expression. But, if the government misuses its power, people can approach the court and challenge the government action.”

This is precisely what happened. The matter was moved in the Supreme Court challenging the centre’s decision to block public access to the documentary. One petition was jointly filed by journalist N Ram, Advocate Prashant Bhushan and TMC MP Mahua Moitra and another was filed by Advocate ML Sharma. Hearing the plea, the apex court bench, comprising Justices Sanjiv Khanna and MM Sundresh, directed that the centre should produce the original records relating to the order banning the screening of film on the next date of hearing, April 2023.

Article 17(1) of the IT Act mandates: “The Authorised Officer shall maintain complete records of the proceedings of the Committee, including any complaints referred to the Committee, and shall also maintain records of recommendations made by the Committee and any directions issued by the Authorised Officer.” 

Furthermore, the petitioners also contended that since as per government request all the pleas challenging IT rules have been clubbed for hearing at the Supreme Court, the petition has been filed at the apex court, and not in High Court. 

Shailesh Gandhi, former central information commissioner, said: “The question is not of a documentary. The question is not of private information. This is a question of fundamental rights of the citizens of

the country.”

The documentary was banned invoking the IT Act. As per Article 16 (1) of the Act: “the Authorised Officer, in any case of emergency nature, shall examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of Section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.”

The petitioners have also raised the way in which the IT Act was invoked. Pawan Duggal, IT expert and advocate, said: “In the IT Act 2022, a number of parameters have been defined which can be interpreted in any direction. The government says that it is invoking emergency powers because the country’s integrity and security are at risk. Having such broad parameters, it’s difficult to define the security threat as stated by the government. The petition has asked for some checks and balances, because if in future government takes arbitrary decisions or arbitrary use of these emergency powers, there are chances of violating the bindings of not only people’s freedom of expression, but also their fundamental right of right to information. Thus, we have to wait for Supreme Court’s decision.”

The BBC has stood by its documentary. It had noted that it met the highest editorial standards. The BBC in its news report published in its website said that “it was committed to highlighting important issues from around the world.” It added that the Indian government was offered a right to reply, but it declined. 

Meanwhile, as the ban stands to be heard at the Supreme Court, broader questions like application of IT rules and right to freedom of expression also demand an answer.

SC rejects plea to ban BBC in India

A petition by Hindu Sena chief Vishnu Gupta seeking a complete ban on BBC in India was shot down by the Supreme Court on February 10. The petition was filed in the background of BBC’s documentary on PM Modi and allegations links to the Gujarat riots in 2002.

Calling the plea “entirely misconceived”, the Court wanted to know how can a documentary affect the country and said the plea had no merit before dismissing it. The lawyer for the petitioner argued that BBC was “deliberately maligning India’s image”. The plea also wanted NIA to probe into the “conspiracy” behind the documentary.

The Supreme Court on Friday sought response from the Union government over its decision to block access to BBC’s documentary ‘India: The Modi Question,’ related to the 2002 Gujarat Riots, on online platforms and social media.

The Bench of Justice Sanjiv Khanna and Justice M.M. Sundresh, while refusing to pass any interim orders, issued notice to the Union of India returnable in the month of April.

It further directed filing of a counter affidavit will be filed within three weeks from the date of service of the notice and said that rejoinder, if any, had to be filed within two weeks after submission of the counter affidavit.

The Apex Court then ordered the Central government to produce original records related to the ban on the next date of hearing, which would be in April.

The Bench issued directions on two petitions challenging the ban. The first one was filed jointly by journalist N. Ram, Advocate Prashant Bhushan and AITC MP Mahua Moitra, while the second one was filed by Advocate M.L. Sharma.

Appearing for N. Ram and others, Senior Advocate Chander Uday Singh submitted that the Centre had invoked emergency powers under the Information Technology (IT) Rules to block the documentary.

Justice Khanna asked the Counsel, as to why they did not approach the High Court first for relief. Singh replied that the Supreme Court had itself transferred the petitions pending in the High Court challenging the IT Rules at the behest of the Union government.

The Counsel further pointed out that the High Courts had been restrained by the Apex Court from hearing those matters.

On another query related to the blocking order being issued under the same rules, Singh replied in the affirmative. He also pointed out that the High Courts of Bombay and Madras have already stayed some provisions of the IT Rules.

The petition by Bhushan, Moitra and N Ram submitted that the documentary as well as tweets on the same by Moitra and Bhushan were protected under Article 19(1)(a) of the Constitution.

They argued that the government has not officially placed any document, order or any other information in the public domain to explain the need for exercising emergency powers under Rule 16 of the IT Rules.

The plea further said that criticism of the government or its policies and even the Supreme Court judgments did not tantamount to violating the sovereignty and integrity of the country.

The petition filed by Sharma claimed that the ban on the documentary was arbitrary and unconstitutional. Besides seeking lifting of the ban, this plea further sought investigation into those responsible for failing to contain the riots.

Both the petitions sought quashing of all orders, which censored the documentary, either directly or indirectly. 

The petitioners further sought directions to prevent the respondent-authorities from giving effect to orders curtailing freedom of speech and expression without first putting them in the public domain on a centralised database. 

On January 20, the Ministry of Information and Broadcasting had issued directions to block the first episode of the BBC Documentary ‘India: The Modi Question’ on YouTube. Social media platform Twitter was also asked to block all tweets containing the links of the video on YouTube.

(Case title: N. Ram and Ors vs Union of India and Ors)

The Supreme Court directed Hindu Sena on Thursday to mention tomorrow, its public interest litigation (PIL), which sought a complete ban on the British Broadcasting Corporation (BBC) for airing the documentary, India: The Modi Question, based on the 2002 Gujarat riots.

The Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud refused urgent hearing on the matter, observing that a CJI-led Bench conducted hearing on urgent mentioning, only when the matter was listed in the mentioning list.
The Counsel representing the petitioner was told to mention the matter tomorrow.

The PIL was filed by Vishnu Gupta, President of Hindu Sena and one Beerendra Kumar Singh, a farmer. It sought a total ban on BBC and the documentary, as well as a probe into the Corporation’s alleged anti-India reportage.

The documentary made by BBC analysed the riots that took place in Gujarat in 2002 and the role played by Prime Minister Narendra Modi, who was then the Chief Minister of Gujarat.

Despite a ban by the Central government on both social media and online platforms, the documentary has been screened in a number of colleges and universities across the country.

The plea contended that the overall growth of India has picked up momentum since 2014 under the Prime Ministership of Narendra Modi. It alleged that anti-India lobby and media, particularly BBC, was not able to digest this fact and therefore, the national British broadcaster has been biased against India and the Indian government.

The petition mentioned that the Supreme Court itself had ruled in cases related to Gujarat riots 2002 that no evidence was found to show the attacks were either inspired or instigated by any Minister from the State of Gujarat.
The Hindu Sena further contended in the plea that the Nanavati Commission Report on 2020 Gujarat Violence also mentioned that there was no evidence to connect any Minister of the Gujarat Government with the violence that took place in 2002. 
The petitioner said that in 2022, the Apex Court had rejected an appeal filed against the clean chit given by the Special Investigation Team (SIT) on the grounds that the plea was an attempt to keep the pot boiling.

The documentary implicating the Prime Minister was not only reflective of anti-Narendra Modi propaganda to tarnish his image, but also indicated the anti Hinduism propaganda of BBC, which aimed at destroying the social fabric of the country, he added.

The Supreme Court agreed to hear on February 6, two petitions challenging the decision of the Central government to ban BBC’s documentary ‘India: The Modi Question,’ based on Godhra Riots 2002, besides removal of tweets related to the documentary.

Two separate petitions were filed in the Apex Court, one of which was filed by Advocate M.L. Sharma.

Advocate Sharma mentioned the matter before the Bench led by Chief Justice of India DY Chandrachud. 

Calling the January 21 ban on the two-part documentary as ‘malafide’, ‘arbitrary’ and ‘unconstitutional,’ Sharma contended that the citizens had the right to see news, facts and reports on the 2002 Gujarat riots and that the Union government’s decision has infringed the citizens’ Right to Information under Article 19(1)(a) of the Constitution, besides Article 19 (1) (2), which guaranteed freedom of the press.

The petition further sought to know whether emergency provisions could be invoked by the Central government without having an emergency declared under Article 352 of the Constitution of India by the President.

Sharma contended that the BBC documentary had recorded facts, which could be used as evidence in the cases related to Gujarat riots, in order to punish the guilty and to further the cause of justice for the victims.

The second plea was moved by journalist N. Ram, Advocate Prashant Bhushan and Trinamool Congress MP Mahua Moitra.

Senior Advocate C.U. Singh appeared for these petitioners. 

He argued that the Union of India has invoked emergency powers under the IT Rules to remove the links about the documentary from social media.

The tweets posted by N. Ram and Advocate Bhushan on the subject were also taken down, noted the lawyer. 

He said the Central government was yet to make the formal order public, adding that some students from Ajwer were rusticated from Universities for screening the documentary.

The Ministry of Information and Broadcasting had reportedly invoked its emergency powers under the IT Rules, 2021 on January 21 this year, to direct the removal of links from YouTube and Twitter related to the first part of the documentary.

The first part was based on the Gujarat riots of 2002, which took place when Narendra Modi was the Chief Minister of the state.