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Supreme Court notice to Centre over plea on BBC documentary


The Supreme Court on Friday sought the Centre’s response on two petitions challenging the ban on the circulation of links pertaining to a BBC documentary, India: The Modi Question ,and directed the government to produce the original records with regard to a January 20 directive to social media platforms to take down the two-part series, or tweets and posts containing links to it.

Dealing with two petitions – one filed jointly by Trinamool Congress MP Mahua Moitra, journalist N Ram and advocate Prashant Bhushan, and the second one by advocate ML Sharma – a bench of justices Sanjiv Khanna and MM Sundresh said, “The counter affidavit shall be filed within three weeks…The respondent will also produce the original record before the next date of hearing.” The Court has posted the matter for hearing in April.

Besides the ministry of information & broadcasting, the petitions name Twitter Communications India Private Limited and Google India Private Limited.

Senior advocate CU Singh, appearing for N Ram, requested the court for an earlier date while pointing out that emergency powers were invoked by the Centre to take down tweets circulating the documentary. These included tweets by Moitra and Bhushan. The petition argued that this amounted to a violation of fundamental right to free speech and expression, which is protected under Article 19(1)(a) of the Constitution.

“All citizens including the press have the fundamental right to view, form an informed opinion, critique, report on, and lawfully circulate the contents of the documentary as right to freedom of speech and expression incorporates the right to receive and disseminate information,” the petition said.

Singh sought interim orders requiring the Centre to put out its January 20 order in public domain. He argued that the Centre is bound under the rules to put out such emergency orders within 48 hours. The bench said, “Can we allow the interim prayer without hearing them. Our order has gone to them. They will produce the record.”

The petitioners also requested the court to consider the consequences of the January 20 directive. “Due to this secret order, Universities are being restrained from screening the documentary,” Singh said. The bench acknowledged that “people have been accessing those videos”.

Pointing to the fact that several students have been rusticated for screening the programme, Singh said, “We live in a nation where officials are more loyal than the king. We are asking for a shorter date.” The petition also mentioned Jawaharlal Nehru University and Jamia Milia Islamia, both of which refused permission to students to screen the documentary.

The court made it clear that the rustication of students was a “different issue” as it will only be concerned with the legal aspect. It refused to advance the hearing date and said, “We have given you the shortest date.”

Initially, the court asked the petitioners why they had not approached the high court. It was pointed out that the government issued directions to Twitter India to take down 50 tweets with links to YouTube videos of the BBC documentary under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The validity of these rules was under challenge before various high courts. Later, in May the top court stayed all proceedings in high courts and transferred the proceedings to itself. The petitions are still pending consideration before the top court.

“As there is no order in the public domain, the reason for restrictions as defined under Section 69A(1) cannot be ascertained,” the petition said. In accordance with Section 69(A), the order restricting freedom of speech and expression has to be in writing and must record reasons for such an order.

They further submitted that the order was “prima facie illegal” as contents of the documentary series do not fall under any of the restrictions specified in Article 19(2), which includes sovereignty and integrity of the country, or restrictions imposed under Section 69A of the IT Act, 2000.

The tweets by the petitioners had shared the links to the documentary on the 2002 Gujarat riots as part of its focus on alleged atrocities against Muslims in India. The first episode was aired on January 17, and the second episode the following week.



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