SC orders the government to produce original documents to thwart a BBC documentary

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New Delhi: The Supreme Court on Friday directed the central government to produce original records relating to its decision to block a BBC documentary on the 2002 Gujarat riots.

A bench of justices Sanjiv Khanna and M M Sundresh issued notices to the government and others on pleas filed by veteran journalist N Ram, Trinamool Congress MP Mahua Moitra, activist lawyer Prashant Bhushan and lawyer M L Sharma.

Sharma had filed a separate petition and it has now been tagged with similar pleas challenging the government’s decision to block the documentary.

The matter is listed for the next hearing in April.

“We are issuing notices. Counter affidavit be filed within three weeks. Rejoinder within two weeks after that. The respondents will also produce original records before this court on the next date of hearing,” the bench said.

At the outset, the bench asked the petitioners why they did not approach the high court in the matter.

Senior advocate CU Singh, appearing for Ram and the others, submitted that the government has invoked the emergency powers under the Information Technology (IT) Rules to block the documentary.

He said he was seeking a direction to the Centre to place on record all the original records.

The Supreme Court said it is also a fact that people have been accessing the documentary.

It had earlier agreed to hear the plea taking note of the submissions of lawyers Sharma and Singh seeking urgent listing of the petitions against the government’s ban on the two-episode BBC series using its emergency powers.

One of the petitioners has also alleged that the ban on the documentary ‘India: The Modi question’ was “malafide, arbitrary and unconstitutional”.

Reacting strongly after Ram filed his plea, Law Minister Kiren Rijiju tweeted, “This is how they waste the precious time of Hon’ble Supreme Court where thousands of common citizens are waiting and seeking dates for justice”.

Ram and others, in their pleas, have sought a direction to restrain the government from curbing their right to “receive and disseminate information” on the documentary.

“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 the right to freedom of speech and expression incorporates the right to receive and disseminate information…,” the plea said and referred to several apex court orders on freedom of speech and expression.

The plea has also sought quashing of “all orders directly or indirectly censoring” the information, including those shared on social media.

“Issue a writ of Mandamus or any other appropriate writ, order, or direction to the respondents restraining them from giving effect to orders curtailing freedom of speech and expression without first putting them in the public domain on a centralized database,” the plea said.

The plea, which has made Twitter Communications India Private Ltd and Google India parties, has also sought a direction for the restoration of the tweets of the petitioners.

“The power of the executive under Section 69 A to lay down directions for blocking public access’ is limited to sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense relating to above,” it said.

The contents of the BBC documentary are protected under Article 19(1)(a) (freedom of speech and expression) of the Constitution, it said, adding that the contents of the series do not fall under any of the restrictions specified in Article 19(2).

“On January 17, 2023, BBC released the first in a two-part documentary series titled, ‘India: The Modi Question’ which critically appraises the role of Prime Minister Narendra Modi, who was the then chief minister of Gujarat in 2002 when riots broke out in which thousands of people lost their lives,” the plea said.

It challenged the decision of the secretary, information and broadcasting ministry, to ban it.

The impugned directions were issued under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 to Twitter India to block 50 tweets with links to YouTube videos of the BBC documentary.

Consequently, Bhushan’s tweet and the link to the URL shared by Moitra were removed.

“The secretary, information and broadcasting ministry issued the impugned directions in his capacity as authorized officer under Rule 13(2) of the IT Rules 2021. The directions are prima facie illegal as they are in direct contravention of the interim order… passed by the Bombay High Court …,” the plea said.

The first episode of the documentary was aired on January 17, it said, adding that the second one was aired on January 24.

Sharma’s PIL also urged the apex court to call and examine the BBC documentary — both parts one and two — and sought action against persons who were responsible and involved directly and indirectly with the 2002 Gujarat riots.

He has raised a constitutional question in his PIL and the top court has to decide whether citizens have the right under Article 19 (1) (2) to see news, facts and reports on the 2002 Gujarat riots. Sharma has sought a direction to quash the government order.

The plea claimed that the BBC documentary has “recorded facts” which are also “evidence” and can be used to further the cause of justice for the victims.

On January 21, the government had issued directions for blocking multiple YouTube videos and Twitter posts sharing links to the controversial documentary.

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