BBC Documentary Row: SC Orders Centre To Produce Original Records Of Documentary Ban

Hearing a lead appeal filed by TMC MP Mahua Moitra, veteran journalist N Ram and lawyer-activist Prashant Bhushan, the Supreme Court on Friday directed the central government to produce original records of the decision to ban the BBC documentary.

BBC s documentary India: The Modi Question being screened at Hyderabad University

Hearing a lead appeal filed by Trinamool Congress MP Mahua Moitra, veteran journalist N Ram and lawyer-activist Prashant Bhushan, the Supreme Court on Friday directed the central government to produce original records of the decision to ban the BBC documentary, 'India: The Modi Question' based on the 2002 Gujarat riots.

The apex court bench, comprising Justices Sanjiv Khanna and M M Sundresh issued notices to the Centre and others on pleas filed by Ram, Moitra, 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," said the bench. At the beginning of the hearing, the bench also asked the petitioners why they did not approach the high court in the matter.

Senior advocate CU Singh, representing Ram and the others, submitted that the government has invoked the emergency powers under the Information Technology (IT) Rules to block the documentary. Singh said that he was seeking direction to the Centre to place on record all the original records.

The Supreme Court also acknowledged the 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". Law Minister Kiriren Raju had expressed strong feelings after Ram's plea, tweeting, "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 centralised 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, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence 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 secretary of the information and broadcasting ministry's decision to ban the documentary.

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 an 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.

BBC aired the first part of the documentary on January 17, it said, and the second one was on January 24 which claim to investigate certain aspects relating to the 2002 Gujarat riots when Modi was the chief minister of the state.

The first episode claims to take “a look at the tensions between Indian PM Narendra Modi and India’s Muslim minority, investigating claims about his role in 2002 riots that left over a thousand dead”. The second part of the series however, is pegged as a “look at the troubled relationship between Indian PM Narendra Modi’s government and India’s Muslim minority following his re-election in 2019."