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Journalistic Freedom vs. Right to Equality of Others

The Hon'ble Supreme Court has restrained the telecast of show UPSC Jihad on the ground of vilification of the Muslim community.

This study scrutinizes the following issues:
  1. Whether or not, the journalistic freedom extends to the vilification of a community?
  2. Whether or not, the right to equality of others will prevail over the journalistic freedom?
I have advocated that the journalistic freedom doesn't extend to the vilification of a community and the right to equality of others will prevail over the journalistic freedom.

Introduction:
The Hon'ble Supreme Court (“Hereinafter referred as SC”) has put a restraint on the airing and broadcasting of UPSC Jihad show on channel Sudarshan News. [i]

The rationale behind restraint: [ii]

  1. The Hon'ble SC has, prima facie, observed that the show was an attempt to vilify the Muslim community.
    • The Hon'ble Court has mentioned that an attempt to vilify a community shall be viewed with great disfavor by the court, which is a custodian of constitutional rights.
    • The Hon'ble Court has also affirmed that the channel by 'saying that Muslims are infiltrating civil services' is doing a disservice to the Nation.
       
  2. The Hon'ble SC has perceived that the factually incorrect statements were made in the programs regarding the upper age and number of attempts for the Muslims in UPSC.
     
  3. The Hon'ble SC has declared that the television channels can't be allowed to broadcast programs that disturb communal harmony in the name of journalistic freedom.
     
  4. The Hon'ble SC has affirmed that the freedom of journalist is not absolute.
     
  5. The Hon'ble SC has advocated for the self-regulation in media.

The Apex Court has acknowledged the consequences of the order: [iii]

  • The Hon'ble SC has stated that it doesn't want to come in the way of journalism, but it is concerned with the vilification and stereotyping of the Muslims in Sudarshan News show.
  • The Hon'ble Court has asserted that we will ensure free speech and ideas. Hence, an opportunity was given to the Sudarshan News to propose measures to change the tenor of its controversial program.
Moreover, the Court has expressed concerns that this decision can become a bad precedent for lower courts, which can result in a massive threat to the freedom of the press.[iv]

Whether or not, the journalistic freedom extends to the vilification of a community?

There is no room in India for the intolerant Indian.

India has been since ancient times the bastion of free thought, speech and expression.-Late Shri Pranab Mukherjee[v]
  1. Media is the fourth pillar of a democracy which is important to uphold a vigilant citizenry:
    The efforts of media ensure that a citizen can be aware of what is happening in the country. The news which is broadcasted on television, newspapers, etc. helps people to formulate an opinion regarding the actions of the government, executive or judiciary.
     
  2. Controlling the press can prove to be disastrous for a democracy:
    Free and fair media is pivotal to nourish democratic principles and values. If there is any control on media by the government or judiciary, then it per se reflects the autocratic tendencies of such organization, which is against the spirit of the Constitution of India.

However, journalistic freedom doesn't extend to perpetrate vilification or stereotyping of a community because it disturbs communal harmony.
  1. The right to freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution is not an absolute right. Article 19(2) of the Constitution imposes reasonable restrictions on such right.
     
  2. The vilification of a community in the name of journalistic freedom can't be permitted because it has the effect of disturbing the sovereignty and integrity of India, public order, decency and morality. Hence, it comes within the ambit of reasonable restriction under Article 19(2) of the Constitution.
     
  3. The Hon'ble SC has held that it is the duty of the media to provide correct information and to ensure that they are not providing the public with information that is factually wrong or biased on simply unverified information. [vi] Hence, it's crucial in a democracy that free journalism must be accompanied with the responsible journalism.

Right to Free Speech of Journalist vs. Right to Equality of Others

  1. There can be a conflict between the two fundamental rights. To resolve such a situation, the Hon'ble SC has laid down the balancing of fundamental rights concept, which aims to ensure that the paramount collective interest or the larger public interest will prevail. [vii]
    • If the collective interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. [viii]
    • The accentuated public interest in such circumstances have to be given primacy because it promotes the rule of law. [ix]
    • The decision as to which fundamental right will prevail is based upon 'the test of primacy,' which is mentioned below: [x]
      • The public interest has to be adjudged on the facts of each case.
      • The competing interests are measured by factual scrutiny.
      • A balance is established between the competing interests to subserve the larger public interest and the majesty of the rule of law.
         
  2. The vilification of a religious community by a journalist infringes the right to equality of such community. The Sudarshan News has portrayed the infiltration of Muslims in civil services as a conspiracy,[xi] which amounts to direct discrimination against a community. The discrimination is per se evident from the fact that the IAS or IPC of the only Muslim community is showed as conspirators, which has the effect of offending or intimidating their religious values.
    Therefore, the conflict arises between the right to free speech and expression of a journalist and right to equality of others.
     
  3. In order to ascertain which fundamental right will prevail, the 'test of primacy' laid down by the Hon'ble SC will be applied.
    • The factual scenario highlights that there is a vilification of the Muslim community by a journalist, which can offend religious harmony.
    • Therefore, the interest of the Muslim community serves the public cause and has the legitimacy to claim a fundamental right. Hence, to subserve the larger public interest and the majesty of the rule of law, the right to equality should prevail over the right to free speech of journalist.

Hence, journalistic freedom is not supreme. The vilification of a community by a journalist shall never be tolerated. The right to freedom of speech and expression of a journalist in such cases comes within the ambit of reasonable restriction. Moreover, the right to equality of others will prevail over the right to free speech of a journalist.

Media plays an important role in a democratic setup. There should be no control over the media by any organ of the government. However, the media should also acknowledge that responsible journalism is the need of the hour.

The modus operandi of responsible journalism doesn't embody the condemnation of a particular community.
Instead! It ensures to nurture love and respect towards the culture, values and ethos of others.

End-Notes:
  1. Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737.
  2. Id.
  3. Id.
  4. Id.
  5. https://www.indiatimes.com/news/india/in-6-quotes-president-pranab-mukherjee-makes-it-clear-that-freedom-of-expression-is-here-to-stay-272632.html> accessed 19 September 2020.
  6. Sanjoy Narayan v. Hon. High Court of Allahabad, JT 2011 (10) SC 74; Mazdoor Kisan Shakti Sangathan v. Union of India, AIR 2018 SC 3476.
  7. Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
  8. Asha Ranjan v. State of Bihar, (2017) 4 SCC 397.
  9. Id.
  10. Id.
  11. Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737.

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