Thread by @barandbench

Dᴀʏ 5 Sᴜᴘʀᴇᴍᴇ Cᴏᴜʀᴛ ʜᴇᴀʀɪɴɢ- 'UPSC Jɪʜᴀᴅ' ᴄᴀsᴇ

Justice DY Chandrachud led three-judge bench will resume hearing plea seeking stay on @SudarshanNewsTV 's #UPSC_Jihad case. Petitioners to press for continuation of injunction

#SupremeCourt
@SureshChavhanke

The hearing resumes after Senior Adv Shyam Divan made detailed submissions on Sept 18 detailing the nexus between @zakatindia and terror linked charitable trusts etc thereby justifying their claim of how it is "UPSC Jihad"

Meanwhile, Zakat Foundation of India has moved Supreme Court to intervene and provide clarification on charges leveled against it by Sudarshan News. @zakatindia claims that the show is nothing but and deep rooted malaise against Muslims @SureshChavhanke

However, the lead petitioner has submitted that @SureshChavhanke held a show after stay was granted by SC in which he criticized the interim order of the top court and conduct a show "replete with hate speech."

Day 5 hearing to begin. Senior Advocate Mukul Rohatgi is on screen today.

@SudarshanNewsTV
@SureshChavhanke
#UPSC_Jihad

Senior Adv Rohatgi: I have filed an impleadment application on behalf of NBF. I filed it yersterday

#UPSC_Jihad
@SudarshanNewsTV

Rohatgi: News Broadcasters Associations are already a part. But I am the largest body of channels.. I have the majority of all regional channels from all across India. I have said that NBA does not really represent the entire spectrum.

Rohatgi: NBF will inform the court how a self regulation method should be drawn up. I have nothing to say on @SudarshanNewsTV . I am on a larger issue of self regulation and on a different note than NBA

Rohatgi: I need a week to file a reply

Adv J Sai Deepak: We have filed an IA on behalf of @OpIndia_com @indiccollective @upword_ . Primary purpose is to venture into larger area of principles concerning hate speech

Justice Chandrachud: Your contention is SC does not have jurisdiction?

@jsaideepak

J Sai Deepak: it is

Justice Chandrachud: You can only make submissions as an intervenor

J Sai Deepak: Applicants seek to place before this Hon’ble Court a Report titled “A Study on
Contemporary Standards in Religious Reporting by Mass Media”
prepared by @OpIndia_com
which captures approximately 100
instances of patently false reportage by mainstream media

Senior Adv Mahesh Jethmalani says he is appearing for a Kochi based daily, Janmabhumi.

Jethmalani: We are not filing an affidavit because we are expansive on facts

@janmabhumidaily

Senior Adv Sanjay Hegde: please hear Zakat Foundation at the end

Justice Chandrachud: So your watching brief has now become an impleadment

Hegde: So you need to hear us as allegations are against us

Justice Chandrachud: We would like to hear what @SudarshanNewsTV has to say?

Adv Vishnu Shankar Jain: I will abide by and follow all laws and abide by the programming code.

Justice Chandrachud: Did we ask you to comment on NDTV show?

Justice Chandrachud: This is contrary to judicial practice. Just because we ask a question does not mean you will file affidavits. It enables to chisel our understanding. This will alter the consequence of the plea. No point in complaining what happened in 2008.

Justice Chandrachud: We had given your client as to what he proceeds to do what the rest of the show. You say you will adhere to program code. Did you ahdere to it with the first 4 episodes? Do you intend to continue in the same vein with the rest of the episodes?

Adv Jain: all my first 4 episodes of #UPSC_Jihad was in compliance with the program code

SC: So the rest in the same Genre?

Adv Jain: Yes on same lines. We will say that there is foreign funding to capture bureaucracy.

Adv Jain: I am requesting SC to give me an opportunity to view all 4 episodes and pausing every minute and then if you find that we violated that law, then we will abide by the decision

Justice Chandrachud: We gave that opportunity. We gave you a bonafide opportunity to assuage our concerns. You have answered yes and yes to my both questions. We got the point. Mr Divan has made his submissions.

Adv Jain: the interventions have distorted the facts of my case

Justice Chandrachud: If you check the line of civilized jurisprudence then no case of injunction has the counsel read all 700 pages of a contentious novel to the judge line by line to satisfy them. That has been the precedent and we don't want to deviate.

Adv Shadan Farasat for three Jamia Milia students: There is abdication of govt responsibility. The UoI without applying its mind said apply with program code. All 3 organs of the state need to ensure rights of a group of citizens is not violated. If that happens, will SC watch?

Farasat: We are 6.5 years after the Pravasi Bhalai Sangathan judgment of 2014, and the expectation of SC was that provisions on hate speech should not be a dead letter. However they continue to be dead letter and the manner it is being excercised

Farasat: Union is yet to form rules post the common cause judgment. To support the order of September 15 some kind of content base analysis has to be done by SC to check if such a speech should be allowed at all.

Farasat: If the court watches the video, counsels don't have to persuade you on content. (ECHR verdict in Betty's case is being read out to the bench)

Farasat: Sudarshan TV says they will continue in the same way. What are these 4 episodes and the promo? It is evident that participation and success of Muslims is a terror conspiracy and that's the theme. There are some nuggets of facts are here and there.

Farasat: the primary argument is they are an entity who are about to take over a country and how a country must stand against it. @SureshChavhanke says he is not a traitor and will remain silent to it.

Solicitor-General Tushar Mehta interrupts the hearing and asks Justice Chandrachud'S colleague to wear a mask as he was very close to the judge.

#COVID19

Shadan Farasat continues: Mock interview has been put in between the show. Suresh Chavanke says Muslim candidates given favour as financial help and that they are 12 percent as per last census and will be 20 percent in 2020. So they know the numbers also.

Farasat: A chart is displayed with upper age limit 32 for Hindus and 35 for Muslims..OBC is nowhere there.

Justice Indu Malhotra: He says that in affidavit

Farasat: but that's not mentioned in his show or chart, nowhere.

Farasat: Urdu is not a Muslim language and its a schedule 22 language ! Famous users of the language are not Muslims. Then they say ban should be implemented on Urdu as Maitheli was done away with. However Maitheli is still a part of the schedule 22.

Farasat: episode 2 starts with ISIS, Abu Bakr Al Baghdadi. Says one should die if their soul is not awaken.

Justice Indu Malhotra: But this is in context of speech by Akbaruddin Owaisi , Abdul Rauf and Imran Pratapgarhi. Those are equally serious and you have to explain it

Justice Malhotra: From Senior Adv Divans submission we understood that terrorist organizations are funding the study. Nothing to do with the community, as Muslims are also our brother.

Farasat: Hate speech cannot operate on the basis of an hour of rambling.

Farasat: If Mr Divans submissions is the program then I will be out of the Court. What Akbaruddin Owaisi said was not problematic but his mannerisms were. It was all about getting a share of the power centee cake.

The show talks about Mughalistan and Davidistan

Farasat: The show says the Hindus have slept through a conspiracy of Muslims to snatch Hindustan.

Farsat takes the court though a talk between @SureshChavhanke and @madhukishwar

Farasat: Kishwar says "will we even live". My lords, just replace Muslims with jews and my lords can see the worldwide context.

Then the show talks about how Syed Zafar Mehmood of @zakatindia was put through dual loyalty test and asked what was bigger India or Islam?

Farasat: now we are on episode 3, where they said "UPSC se chunkar Rashtra bhakt hi aayega." Muslims were also called "Aasteen ka saanp."
A slide was shown saying this south block office should be yours for 35 years to Muslims aspirants. Here "yours" is Muslims says show

Justice Chandrachud: To what extent this show is an attack on @zakatindia or on Muslims. Our interference is also warranted if it has bearing on the community. If its just ZFI, then we cannot interfere. we need to focus on those ingredients which are hate speech against community

Farsat: They inexplicably interlinked. You gave them an option to go ahead with protected speech and do away with hate speech. No one is objecting to investigative journalism on ZFI. Hate speech do not operate in isolation. Can this continue this way?

Shadan Farasat: Episode 4 is something which shows bhaichara or brotherhood is something that needs to be stopped. Then @SureshChavhanke says Muslims are stabbing Dalits in the back and that is the recurrent theme

Farasat: Section 9(1)(c) of the Delimitation Act says reservation for SC ST will happen where there population large. This section is quoted in ZFI's website. But they construct a halo around this and justify stabbing in the back theme

Farasat: the show villifies a particular community. It strikes at the core of my civic dignity. In a multicultural society, there is responsibility on all pillars including the judiciary who has to ensure that individual respect needs to be guarded.

Farasat: Perversive environment of hate speech denies a community opportunities. The opportunities become hollow for me.

Hate speech per se is fit to be proscribed.

Farasat cites an example of continuous radio transmissions of hate speech led to the Rwandan genocide. Similarly non Jewish were convinced jews were a threat. Similarly Myanmar Buddhists were convinced that Rohingyas were a threat. All this leads to genocide.

Farasat: Similarly this program convices that this Muslims are your enemy. Hate speech over a period of times leads to such acts of violence. There is clear Article 14 and 21 constitution.. all four episodes have direct incitement.

Farasat: In an order of prior restraint judges do not know if protected speech gets excluded. That's why the reluctance. Reatraint on further broadcast that problem does not arise as they have an idea of how the program will go ahead.

Farasat: That's why @SureshChavhanke has refused amendments to the show as they know that the entire show is a hate speech and not only the nuggets.

Farasat; Balancing Article 14 with Article 21 has to be done in case which postponement orders are passed. In a case like this where risk never vanishes, a permanent injunction on narrow principles of law is something that the court should go by.

Shadan Farasat: Regarding violation of Article 14 and 21, the court under Article 226 and 32 is authorized to be the protector of fundamental rights.
@SudarshanNewsTV

Adv Shadan Farasat takes the bench through which speech falls into the realm of hate speech.

Farasat: Here the program as put a real or substantial risk with prejudcie to the Muslims.

#uoswantphysicalclasses

Farasat: Morality will not mean public morality but certainly include constitutional morality.

Justice KM Joseph: Please look at Sec 19 and 20 of Cable TV act

Court is reading this Section 👇

Justice Joseph: "may" is used but the requirement is public interest.

Court reads Section 20 of the Cable Television Networks (Regulation) Act, 1995

Justice Joseph: is there any program today which is not offensive. Read the program code... In India we have a statutory mechanism where the government can interfere. If the govt does not excercise power under Section 19 and 20 then courts can.

Justice KM Joseph: Question to Solicitor-General: Did the government watch these episodes and see if they violated the law?

Farasat: If Section 5 is read then there is the word "person". The first part of the embargo is on any person. Cable TV usually re-transmits. This shows its applicable on broadcasters. All channels get uplinking and downlinking license.

Section 6 of the Programme code as being referred to 👇

Justice KM Joseph further points to Rule 10 under Cable TV act

Justice Chandrachud: Look at 6(M) it says: "Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups..."

SC: But now it is not for the courts to enforce the program code else we have to take all the cases that violates it

Justice Chandrachud: If Zakat Foundation feels there is defamation then they can approach civil remedies or a court to enforce damages etc. But here hate speech needs to be seen as targeting specific pockets of a community like LGBTQ etc.

Justice Chandrachud: There is indeed some public interest for editor of Sudarshan TV to say that certain foreign funding is happening for ZFI and it may be an extreme issue but he has right to his opinion if we issue a injunction then should it be a blanket injunction ...

Justice Chandrachud: ..which covers protected speech or should the court issue an injunction which allows broadcast but will not do by stereotype a community or indulge in conspiracy theory or paint one entire community with the same brush. ...

Farasat: Normally my preference would be limited injunction in interest of free speech. But here will limited injunction be useful?

Justice Chandrachud: We gave him ( @SudarshanNewsTV ) an opportunity. He didn't use that but it does not absolve us from our responsibility

Justice Chandrachud: Its not a trademark suit that we will say don't use a man with a beard or cap. Here what should the court do as part of the injunctive order. We can't order in specifics as it will denigrate the standard of a Constitutional Court. This is a judicial task

Farasat: There cannot be any targeting of a community.

Solicitor-General Tushar Mehta: Mr Farasat argued very well. I am elder to you, I can say.

Adv J Sai Deepak: You will also want to consider that there is a question of chilling effect of an order and what example does it state for future orders though it may be only for this series .. order of this Court will have a chilling effect.
@jsaideepak

Justice Chandrachud: we agree with you. we are concerned about balance between speech and dignity. Here the community is a large amorphous group and we can't ask them to approach civil remedy.

Justice Chandrachud: We will hear Senior Adv Anoop George Chaudhari next, then Mr Gautam Bhatia and then Ms Shahrukh Alam

Adv Chaudhari: I need more than 10 minutes

Justice Chandrachud: Saari behes toh ho gayi aapki (all your arguments are over) (smiles)

Justice Chandrachud: We will hear Mr Sai Deepak and followed by Mr Rohatgi and Mr Jethmalani.

Justice Chandrachud to @gautambhatia88 : Please look at the questions we were posing to Mr Farasat

Hearing to resume on Sept 23, 2 Pm

Supreme Court hears plea against broadcast of Sudarshan TV's "UPSC Jihad" show - LIVE UPDATES [Day 5]

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