The chilling effect of an advisory

The Hon’ble High Court of Delhi on August 5, 2016 in the case of Kritika Padode v. Union of India & Anr. (2016 SCC Online Del 4360) (available here) disposed a petition which challenged an, advisory which prohibited the broadcast of the documentary, “India’s Daughter”. Refusing to quash the advisory, the High Court held the advisory was not a binding legal order, no prejudice or restraint was created by it. A detailed analysis of this judgement is contained below.

Facts and Procedural History

The writ petition was filed as a public interest petition concerning the censorship against the broadcast of a documentary , “India’s Daughter”. From the text of the judgement (which is limited to 4 pages) the petition impugned two independent actions that prevented such broadcast. These are:

• The Delhi Police registered a FIR on March 3, 2015 on the basis of news reports that convicts which were featured in the documentary made objectionable remarks. The FIR was registered under Sections 504, 505, 505(1)(b) and 509 of the Indian Penal Code, 1860 read with Section 66A of the Information Technology Act.
• Subsequent to the registration of the FIR the Delhi Police obtained orders from the Metropolitan Magistrate on March 3, 2015 preventing its broadcast. A copy of the order is extracted in paragraph 6 of the judgement. This was extended indefinitely by the Chief Metropolitan Magistrate, Patiala House Court on March 4, 2015.
• Independent of the Delhi Police, the Ministry of Information & Broadcasting, Government of India issued an advisory on March 3, 2016 to all the private channels asking them to not to telecast India’s Daughter. The advisory inter alia stated that, “Whereas the telecast of these excerpts are liable to attract provisions of Rule 6(1)(d, e, f, i, k and o) of the Cable Television Networks Rules, 1994. All the private satellite TV channels are accordingly advised to not telecast the documentary, “India’s daughter” or any excerpts from therein or any programmes based on these excerpts.

Aggrieved by these act’s the Petitioner approached the Hon’ble High Court of Delhi.

Reasoning of the Court

As stated above the Court rejects the contentions of the petitioner refusing to interfere with the actions of the Delhi Police and the Ministry of I&B. It’s reasoning is on the following basis :

• As directed by the Court the Delhi Police submits a status report that indicates that investigation is ongoing into the case. The Court seems satisfied with this (para 15). This is not taken in isolation and the Court further indicates that the Order dated March 4, 2015 is still in operation. Being a judicial order it cannot be challenged in a writ proceeding.
• The court further reasons that the advisory dated March 3, 2015 is, “mere advice to the private satellite TV channels” (para 12). By doing so it seems to suggest the prohibition of telecast is not due to the advisory but due to the Order dated March 4, 2015 made by the Chief Metropolitan Magistrate. Hence, it states that contentions qua the, advisory, “deserve no consideration” (para 14).

Analysis and criticism

While the Judgement seems to proceed on sound reasoning some deficiencies are also noticed which are stated below:

• It is not clear under which provision of law the order prohibiting telecast was first obtained by the Delhi Police on March 3, 2015 from the Chief Metropolitan Magistrate and then extended by the Order dated March 4, 2015 by the Chief Metropolitan Magistrate. The nature of the order seems to prevent screening of the documentary and hence it is an act of pre-censorship. While powers for this may arise under the CrPC it is not clear under which provision relating to an ongoing investigation such orders came to be passed. This is important given the statutory limitations within the CrPC for making preventive orders.
• The provision under the CrPC under which the order is made gains further reasons given that the High Court correctly notes that a judicial order cannot be impugned in a writ proceeding (check the precedent on A.R. Antulay’s Case). Hence, in the only remedy if any as indicated by the court in the penultimate paragraph will be statutory. In the absence of any clear guidance on this the Petitioner may be left without recourse.
• The reasoning of the court does not expressly hold the examination of the, “advisory” to be an academic exercise given the cause of the censorship being the Order of the Chief Metropolitan Magistrate. The court has on the contrary expressed an opinion on its merits stating that such advisories do not have the force of law. This is further made clear by previous judgements that advisories which are issued by the Ministry of I&B are ultra vires the powers conferred on it by the Cable Television Broadcasting Act. However a determination that an advisory does not have the force of law is distinct from a determination that it does not result in prejudice. This reasoning is absent in the judgement. It further hoped a court in a subsequent proceeding examines whether a public authority such as the Ministry of Information and Broadcasting can act beyond the statutory powers conferred to it under statute.

Disclosure : I was engaged as a counsel in Mediawatch v. Union of India (W.P. 5747/2014) in which inter alia a similar prayer challenging the statutory jurisdiction of the Ministry of I&B to issue such, “advisories” was in issue. The Hon’ble High Court by its Order dated 03.09.2014 was pleased to dispose of the petition in view of a pending Supreme Court matter as per the submissions of the ASG.