Sunday, December 04, 2016

CANCELLED:Vidhi talk: Securing Dissenters' Consent for India's Constitution: The Role of Directive Principles

The following event has been cancelled. 

On the evening of the 5th of December, Dr. Tarunabh Khaitan,  Associate Professor in Law at Wadham College, Oxford, will be delivering a talk titled "Securing Dissenters' Consent for India's Constitution: The Role of Directive Principles". 

Using India as a case study, Dr. Khaitan’s paper on the issue argues that Directive Principles can be a key tool to secure the consent of groups that would otherwise lose out in constitutional negotiations. The talk is scheduled on Monday, 5th December, 2016 at 5:30 p.m at the India International Centre Annexe (Lecture Hall II) , New Delhi. Kindly RSVP for this event here

Monday, November 28, 2016

Demonetisation and the Rule of Law

I wrote a short piece for India Together describing how the current demonetisation process undermines the fundamental features of the Rule of Law. I argue that policy surprises and constant changing of regulations challenge certainty and predictability, both essential features of the Rule of Law.

Saturday, November 26, 2016

Celebrating the Constitution: A Speech for Constitution Day

On 26 November 2016, I took part in a panel at the Consulate-General of India in Sydney to celebrate Constitution Day. I’ve provided my speech notes below.

I was told to avoid controversy and to make my speech interesting and comprehensible for a non-legal audience. (Most of the questions after the speech were about the Uniform Civil Code and/or Kashmir, which made it quite difficult at times to stick to those instructions!) There are, of course, substantial shortcomings and blind spots to the Indian Constitution – ADM Jabalpur, Koushal, Ranjit Udeshi, Rajbala v State of Haryana, etc, etc. But I’m nonetheless proud to celebrate the Indian Constitution and its accomplishments, and very glad to have had the chance to sing its praises. 

As overly rosy or Pollyannaish as the speech below may read, it is, after all, a way of saying happy birthday.

I am greatly honoured to have been invited to speak today, and to be able to be with you today to celebrate Constitution Day, and the life of Dr Ambedkar.

The Constitution of India is more than a set of articles and schedules. It does more than merely establish institutions for the governance of India. Instead, scholars call the Indian Constitution a transformative Constitution. Its provisions are not just concerned with India as it is, but with the fulfilment of social and economic justice for all of India’s citizens.

It was this transformative purpose that first drew me to India, and to Indian constitutional studies. When I was 20 years old, I was offered a chance to apply for the Prime Minister’s Australia Asia Award, a predecessor to the current New Colombo Plan which allowed recipients to study and work in Asia. I chose to apply to go to India, and ended up staying more than a year.

I’d never been to India. I’d never lived outside Australia. My wife, who came to Bangalore with me, had never left Australia before.

I chose India because of its Constitution, and because of what that Constitution represents. Let me explain why this Constitution is so significant, both to me and, much more importantly, to the Indian people.

As is well known, India faced extraordinary challenges at Independence, including ensuring the safety and well-being of millions displaced by Partition. Amid violence and uncertainty, the Constituent Assembly convened to draft a Constitution suited to a nation of exceptional diversity, divided by language, race, caste and class. In facing this challenge, members of the Constituent Assembly drew encouragement and inspiration from the experiences of other nations – including the UK, the US, Canada, Ireland and even Australia. They looked both to what other nations had done well and what other nations had done poorly, and tried to create, from all these different strands and all these different schools of thought, a document suited to Indian conditions and Indian challenges.

More than merely reflecting the nation in which they lived, the framers of the Indian Constitution – Dr Ambedkar chief among them – sought to create a document that would address and combat inequalities and injustice in Indian society. Against a backdrop of intolerance and communal divisions, the Indian Constitution prohibits discrimination by the state on the basis of religion, race, caste, sex, or place of birth, and guarantees freedom of religion. Against ingrained prejudice and severe discrimination against India’s Dalit population, the Constitution abolishes Untouchability. Following the suppression of human rights and dissent by the British, the Constitution protects civil and political liberties.

The Indian Constitution is not flawless and not beyond controversy. It is very long, and it has become much longer over the course of over one hundred amendments since India’s independence. The Constitution contains a mixture of Fundamental Rights, protecting individual civil rights, and Directive Principles, expressed as broad aspirations setting out the ideals and goals of the Indian state. The relationship between Rights and Principles has prompted decades’ worth of arguments, legal challenges, protests, controversies and further amendments. The aspirations declared by the Directive Principles have not yet been met. The fact that these aspirations are embodied in the Constitution provides no answer, in itself, to hunger, or sickness, or poverty. Similarly, the fact that the Constitution contains guarantees of Fundamental Rights is meaningless without institutions to enforce those rights and willingness by the Indian public to assert those rights.

But it is not my purpose today to focus on the great amount that remains undone. The reason why I’m here today is to celebrate the extraordinary achievements of the 66 years since the Constitution was promulgated.

Indians have strived to ensure that the promises and guarantees of the Constitution are reflected in practice. Where appropriate, the courts have worked in collaboration with India’s government to ensure that the promises of the Constitution are upheld; where necessary, they have struck down laws, policies and even amendments to the Constitution itself, in order to uphold the basic structure of the text.

The courts have not acted alone in defence of the Constitution. Indians from all walks of life have stood up to claim the rights bestowed upon them by the Constitution. They have constantly pushed to make the nation fairer, more responsive, more democratic. The Constitution does not just belong to the lawyers or politicians of India. Its interpretation has been shaped and transformed by cases brought by activists and NGOs, by religious leaders and by atheists, by prisoners and by princes. Indians from every background have claimed protection under the Constitution – something that would be impossible without a rare shared public faith in the Constitution’s potential and in the goals for which it stands.

The Constituent Assembly that enacted the Constitution consisted of men and women, Muslims, Christians, Hindus, Sikhs,  Parsis and non-believers, drawn from different races, different language groups, different cultures, and different castes; some delegates were leftists, others were conservatives. Like India itself, the Constitution does not belong to any single religion or any single language or any single point of view, and no one group can claim a monopoly over its meaning. It belongs to India.

This is what I find so inspiring about the Indian Constitution – why I went to India, why I lived, studied and worked there, and why I am so glad to be here today to celebrate this Constitution. Because in its openness to difference and diversity, in its acceptance and employment of intellectual traditions and lessons from around the world, in its commitment to social welfare and uplift, even in its size, that which is great about the Indian Constitution mirrors that which is great about India itself.

In Defence of the Triple Test: A Case for Retaining the Standard in Bangalore Water Supply (Part-II)

(A guest post by Saurabh Bhattacharjee, Assistant Professor of Law at NUJS, Kolkata)



Why Triple Test Must Not be Interfered With?
The five-judge bench in Jaibir Singh had not only assailed the precedential value of the BWSSB but also questioned the substantive worth of the Triple Test and its inclusion of charitable organisations, liberal professions and educational institutions within the rubric of industry. Criticising the BWSSB for being ideological and one-sided, it drew attention to the incongruity between modes of industrial actions like strikes, lay-off, closure, etc. and the work of hospitals and educational institutions.[1]     
Instruments of collective bargaining and mechanisms of dispute settlement contemplated by the IDA may indeed be ill-suited for small charitable and educational institutions. As Justice Sujata Manohar had observed in Coir Board, Ernakulam v Indira Devi P.S. that while ‘’it is of paramount importance that a proper law is framed to promote the welfare of labour…the kind of measures…may have to be tailored to suit the nature of such organisations, their infrastructure and their financial capacity as also the needs of their employees.”[2] Nonetheless, in absence of a separate law that provides legal protection to employees in educational institutions and charitable organisations, it would be regressive to exclude such sectors from the ambit of the definition of industry through judicial fiat. It must be noted that even the 1982 amendment had envisaged the formulation of a special law for such employees. The Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 had stated:
“[I]t is proposed to exclude from the scope of this expression, certain institutions…However, …it is proposed to have a separate law for the settlement of individual grievances as well as collective disputes in respect of the workmen of these institutions.”
In fact, the Union of India had in its submission in the Jaibir Singh case, referred to the absence of an alternative legal machinery as a reason for not bringing the amended definition into force. Since no such legal machinery has been created at the central level till date, substituting the Triple Test with a more restrictive standard would render millions of workers vulnerable and without any legal machinery for protection of their employment rights. As it is, less than 10% of the workforce in India is covered by formal labour laws.[3] Therefore, any rollback of the definition of industry which would further exclude workers from legal protection without creation of a parallel legislative framework would be an acutely retrograde measure. Keeping this in mind, it is submitted that the nine-judge bench (if constituted) would be well-served by maintaining the status quo and not disturb the precedential weight of this decision. With the Union of Ministry of Labour being currently engaged in the process of codification of Industrial Relations laws[4], the question of overhaul of the definition of Industry ought to be left to the political branches of the government.   
It must also be noted that the language of section 2 (j) is itself very unwieldy. Use of words of very wide denotation like undertaking, manufacture, calling, service, employment and avocation pose a formidable interpretive challenge since a literal reading of some of these terms would entail inclusion of every conceivable type of workplace into the ambit of definition. Not surprisingly, beginning with the D.N. Banerjee v P.R.Mukherjee,[5] the first case placed before the Supreme Court on this definition, judges have struggled to evolve a coherent framework.[6] As Justice Bhagwati observed in Workman of Indian Standards Institution, “the tests have not been uniform, they have been guided by empirical rather than a strictly analytical approach.”[7] Indeed, standards espoused in different cases have often reflected the ideological preferences of the judges and not any consistent doctrinal standard founded on the language or purpose of section 2(j). Therefore, it is arguable that any judicial reconsideration of the Triple Test may lead to imposition of another ideologically-driven standard. As such, it would be prudent for the nine-judge bench to show restraint and persist with BWSSB’s Triple Test – a standard that has operated as a precedent for more than three decades by now.
Indeed, even if one were to believe that a more restrictive interpretation of definition of industry would be apposite, it must be noted that the threshold for overturning an established precedent is much stricter.  As Justice Lokur declared in Supreme Court Advocates on Record Association v Union of India, better known as the NJAC case, “the power to reconsider must be exercised sparingly and… merely because a view different from or contrary to what has been expressed earlier is preferable is no reason to reconsider an earlier decision.”[8] In other words, the Court must be shown that the earlier decision is plainly erroneous or manifestly wrong. While there may be differences of opinion on the utility of the expansive reading of the BWSSB, it would strain credulity to argue that the verdict is manifestly wrong. 
Looking beyond India, the majority opinion of the United States Supreme Court in Planned Parenthood v Casey[9] had, while examining a plea for reconsideration of Roe v Wade[10], had presented before itself the following questions: a) whether the central rule had been found unworkable; b) whether the rule could be removed without serious inequity to those who had relied upon it; c) whether the central rule had become a doctrinal anachronism; and whether the factual premises of the rule had changed substantially.[11] If we pose the same questions about the BWSSB, it would be apparent that there is very little empirically grounded material to answer any of them in affirmative. Instead in view of absence of an alternative legal regime, any reversal of the BWSSB framework shall result in denial of legal protection to millions of workers and defeat the statutory intent behind the IDA.
An Opportunity to Lift the Haze Around Sovereign Function and Research
In the previous two posts, I have sought to refute the argument that BWSSB does not constitute a binding precedent and proposed that not only have the standards for setting aside an established precedent have not been met in this case but that abandonment of the Triple Test in absence of an alternative legal regime, would lead to exclusion of a large swath of workers from ambit of legal protection. At the same time, I submit that there are certain points of the BWSSB plurality which have been a source of confusion in the subsequent cases and do require further clarification. The foremost among them is the scope of the sovereign function exception. As mentioned earlier, Justice Chandrachud questioned the very need for such an exception. But between Justice Krishna Iyer (who wrote for himself, Justice Bhagwati and Justice Desai) and Justice Beg, there was a majority support behind the sovereign function doctrine. Yet, we must note that Justice Beg had a different view on both the terminology and scope of the exception.
Indeed, even Justice Iyer’s opinion itself spoke in different voices on sovereign functions. On one hand, he described sovereign functions of the State as 'the primary and inalienable functions of a constitutional government'. On the other hand, he hinted that the exception may go beyond such inalienable state functions with his assertion that apart from Articles 309 to 311 and statutes dealing with the defence, “other legislation dealing with employment under statutory bodies may, expressly or by necessary implication, exclude the operation of the Industrial. Disputes Act, 1947.”[12] As a result, the status of employees of statutory bodies which are not engaged in inalienable state functions remain unclear. Indeed, many of recent conflicts on the definition of industry have pertained to the status of employees of government departments covered by statutory rules.[13]
A later 2-judge bench decision in Agricultural Produce Market Committee v Ashok Harikuni had further clarified that the “dichotomy between sovereign and non-sovereign function could be found by finding which of the functions of the State could be undertaken by any private person or body”[14] and that only those which could not be undertaken are sovereign functions. However even with respect to such inalienable functions of the state, Justice Iyer had also suggested that not every one of the employees of departments related to justice, defence, taxation, legislature, would be thrown out of the umbrella of the Act’. Since the dividing line between those employees to be excluded and those to be included within the umbrella of the statute was not clarified, the precise scope of the sovereign exception has been left hazy even for the classically primary functions of the state.
The other major element of confusion in the jurisprudence of BWSSB relates to the status of research institutions. While holding them to be industry even when run without profit motive, Justice Iyer had reasoned that research throws up discoveries and inventions that are often sold and patented and are valuable contributions to the wealth of the nation. Does this mean, as ruled in the Physical Research Laboratory v K.G. Sharma,[15] that institutions carrying out pure research which is not exploited for commercial purpose, would not be industry? If so, how would this proposition be reconciled with the rejection of commercial character and profit motive as decisive elements that the Triple Test entailed?
These questions require elucidation from the nine-judge bench so that some of the confusion that has emerged in the post BWSSB era can be dispelled. Instead of looking to reconsider and jettison the Triple-Test which provides for a universal, uncluttered and comprehensive framework for defining the ambit of industry, the bench should seek to iron out the creases that have developed in its application. It is pertinent to note in this context that the reference to a five-judge bench in Jaibir Singh had been necessitated by a conflict between Chief Conservator of Forests v Jagannath Maruti Kondhare[16] and State of Gujarat v Pratamsingh Narsinh Parmar[17] on the status of forestry department and the need for clarity on the scope of sovereign function exception. This is precisely the task that the Supreme Court should discharge in the latest reference. A modest endeavour to clarify the ambiguities in the BWSSB verdict on the status and ambit of sovereign function exception and research institutions would not only strengthen the BWSSB framework but also infuse further stability to law on this question. An overhaul of the definition and possible enactment of a supplementary legislation is a task better left for the legislature.  

[1] State of Uttar Pradesh v Jaibir Singh, (2005) 5 SCC 1, paragraph 33-3, 42
[2] Coir Board, Ernakulam v Indira Devi P.S., (1998) 3 SCC 259, paragraph 21
[3] See National Commission on the Enterprises in the Unorganised Sector (NCEUS), The Challenge of Employment in India: An Informal Economy Perspective (2009), available at < >
[4] See Ministry of Labour and Employment, First Meeting for Drafting Labour Code on Industrial Relations Held, May 7 2015, available at
[5] (1953) 1 LLJ 195
[6] See State of Bombay v Hospital Mazdoor Sabha (1960) 1 LLJ 251 (SC), Corpn of City of Nagpur v Employees (1960)1 LLJ 523 (SC), Ahmedabad TI Research Assn v State of Bombay (1960) 2 LL 720 (SC), National Union of Commercial Employees v Meher (1962) 1 LLJ 241 (SC), University of Delhi v Ram Nath AIR 1963 SC 1873.
[7] (1975) 2 SCC 847, paragraph 1.
[8] (2016) 5 SCC 1, paragraph 673.
[9] 505 U.S. 833 (1992)
[10] 410 U.S. 113 (1973)
[11] Supra n. 20, at page 856
[12] BWSSB v A.S. Rajappa, (1978) 2 SCC 213, paragraph 50.
[13] See Sub-Divisional Inspector of Post v Theyyam Joseph AIR 1996 SC 1271, Bombay Telephone Canteen Employees Association v Union of India (1997) 6 SCC 723
[14] (2000) 8 SCC 61, paragraph 35
[15] AIR 1997 SC 1855
[16] (1996) 2 SCC 293
[17] (2001) 9 SCC 713

In Defence of the Triple Test: A Case for Retaining the Standard in Bangalore Water Supply (Part-I)

(Guest Post by Saurabh Bhattacharjee, Assistant Professor of Law at NUJS, Kolkata)
The constitution of a seven-judge bench of the Supreme Court to examine whether the decision of Bangalore Water Supply and Sewerage Board (BWSSB) v A.S. Rajapppa[1] requires a reference to a larger bench[2] has reopened the vexed question of defining ‘industry’ in industrial and labour law. The formation of a larger bench is a much-belated response to the request of a 5-judge bench of the Court in State of Uttar Pradesh v Jaibir Singh[3] for a larger bench for reconsideration of the BWSSB verdict. The majority judgment in the BWSSB case, authored by Justice Krishna Iyer, had famously laid down the ‘Triple Test’ wherein any systematic activity, organised by cooperation between employer and employee for the production and/or distribution of goods and services would be considered an industry under Section 2(j) of Industrial Disputes Act, 1947 (IDA). The only exception the Court had recognised pertained to sovereign functions. Even though this judgment held sway as the ruling authority for almost three decades, in an astonishing decision in 2005, the Jaibir Singh bench held that the opinion of Justice Krishna Iyer could not be treated as an authoritative precedent and asked for a reference to a larger bench.
After more than a decade, the seven-judge bench has finally been constituted and the Bench, after concluding the hearing last week, has reserved its decision.[4] News-reports on the hearing indicate that the Bench appears to be favourably disposed towards referring the matter to a nine-judge bench. As we await its decision, I revisit the critique of BWSSB put forth by the 5 judge-bench and examine the arguments of the petitioners before the seven-judge bench in the Jaibir Singh case. In this series of two posts, I present the following arguments: 1) that Jaibir Singh’s assertion that the Triple Test did not have the support of the majority of judges of the BWSSB Bench was based on an erroneous reading of the separate opinions in that case, 2) that the reliance placed by the petitioners before the seven-judge bench on the analogy with Supreme Court’s recall of the NEET Order to plead that BWSSB decision is not a judgment in eye of law ignores the difference between the two cases, 3) that abandoning the Triple Test for a  more restrictive interpretation of industry, without enacting parallel employee-protection legislation would be regressive and 4) that while Triple Test provides an accessible and coherent framework for defining industry, certain aspects of the BWSSB verdict do require further clarification. In this process, I submit that a reference should be made to a nine-judge bench. However, the larger bench should refrain from discarding the Triple Test but should instead clarify some of those questions left unanswered by the BWSSB case.
Not the First Assault on BWSSB
Prior to the BWSSB decision, different benches of the Supreme Court had grappled with the wide amplitude of the terms listed in section 2 (j), leading to, what Justice Krishna Iyer described as, a “zigzag course of landmark cases.”[5] In laying down the Triple Test in BWSSB, Justice Iyer adopted a functional approach and carved out a coherent and yet simple framework for the definition of industry that could be applied across different activities. It also very demonstrably advanced the statutory intent of extending legal protection to a wider constituency of workers.
Yet, the judgment had come under attack from several quarters even before the Jaibir Singh case. In fact, the Parliament amended section 2 (j) in 1982 and took certain activities out of the purview of the word ‘industry’.[6] While the amended definition still awaits notification, a 2 judge-bench decision in Coir Board, Ernakulam v Indira Devi P.S.[7] launched another salvo by calling for reconsideration of the BWSSB decision by a larger bench. Justice Sujata Manohar observed that the expansive definition of the industry might have done more damage than good.[8]
But the decision of Jaibir Singh was a frontal assault on the BWSSB judgment. As mentioned earlier, the case suggested that the BWSSB majority opinion did not even constitute an authoritative precedent. This claim was based on the following propositions: a) that judges delivered different opinions at different points of time without perusing the opinion of other judges on the bench and Beg C.J. who wrote a separate opinion delivered in haste, only concurred with the conclusion that the BWSSB is an industry and not with other assertions in the majority opinion and b) that all the opinions had called for legislative intervention, while suggesting that their opinions were meant to provide a workable solution till the legislature stepped in.[9]
BWSSB and Stare Decisis
It is my submission that this argument of the Jaibir Singh bench is profoundly misplaced and ignores the commonality between the majority opinion of Justice Krishna Iyer and the separate but concurring opinions of Chief Justice Beg and Justice Chandrachud. The common ground between these opinions was not merely restricted to the final holding that the Bangalore Water Supply and Sewerage Board is an industry but also to the Triple Test. This can be inferred from the following observation by Justice Beg in Paragraph 165 of the judgment: “…I am in agreement with the conclusions of my learned brother Krishna Iyer and I also endorse his reasoning almost wholly.” This makes it abundantly clear that he agreed with the core rationale of the majority opinion too. The only major point of departure between the two opinions, as is evidenced by Paragraph 163, pertained to the nomenclature and scope of the sovereign function exception. Justice Beg observed “I do not feel happy about the use of the term ‘sovereign’ here. I think that the term ‘sovereign’ should be reserved, technically and more correctly, for the sphere of ultimate decisions.” However, Justice Beg did not express any disagreement on the substance or the rationale of the Triple Test. Justice Chandrachud’s separate opinion too sounded a discordant note on the appropriateness of the sovereign function exception. He reasoned that such an exception could not be squared with the functional approach to defining industry that the Triple Test espoused.[10] However as with CJ Beg, Justice Chandrachud also did not express any difference with the Triple Test. Therefore, it is submitted that the Triple Test – the core tenet of the majority opinion of the BWSBB decision – indeed had the support of the five out of the seven judges in the Bench. The common ground between the three opinions on the Triple Test did therefore constitute a binding ratio. It was consequently incorrect to infer that there was no authoritative precedent merely based on the few differences between the three opinions.
Similarly, the claim that all the opinions desired legislative intervention to clarify the legal position on definition of industry and that the Triple Test was devised as a stopgap standard is a non-sequitur. The judges might have indeed sought statutory amendments, but until such amendments are brought into force, the ratio of the case would be a binding precedent. That the plurality of opinions saw their decision as a temporary measure aimed at holding the field till Parliament’s involvement does not detract from the operation of the rule of stare decisis and the ratio decidendi upon which the decision is based, shall remain law under Article 141 of the Constitution.
Comparison with Recall of NEET Order and Fallacy of False Analogy
One of the main arguments, reportedly forwarded by the petitioners before the seven-judge bench centres around the claim that the judges on the majority in the BWSSB and Justice Beg did not have the opportunity to peruse the dissenting opinion. Consequently, the case was analogous to the recall of order on NEET exam in a review petition in Medical Council of India v Christian Medical College,[11] Vellore because “there was no discussion among the members of the Bench before pronouncement of the judgment.” Based on this comparison, it has been argued that the BWSSB decision does not form a judgment in the eyes of the law because of the circumstances of the case. However, this analogy is thoroughly misplaced and disregards the differences between the two cases. The operative part of the decision in the Medical Council of India case also referred to the neglect of binding precedents by the majority decision in the NEET judgment. Therefore, the lack of discussion between the judges of the Bench did not form the sole reason for the recall. Ignorance of past precedents also contributed to the recall. In contrast, there has not been any question whatsoever of BWSSB overlooking binding precedents. Therefore, the reasons for the Medical Council of India order do not apply to the BWSSB at all and the attempt to draw an equivalence between the two cases is fallacious at best.  

(You can read Part-II here)

[1] (1978) 2 SCC 213
[2] SC to revisit Justice Krishna Iyer’s Landmark Judgment in Bangalore Water Supply case on Thursday,, Nov. 16, 2016, available at
[3] (2005) 5 SCC 1
[4] SC May Refer the 1978 Bangalore Water Supply Judgment for Reconsideration by a Nine-Judge Bench,, Nov. 17, 2017,
[5] Supra n.1, paragraph 1
[6] Industrial Disputes (Amendment) Act, 1982, Act 46 of 1982
[7] (1998) 3 SCC 259
[8] Ibid., paragraph 19
[9] Supra n.3, paragraphs 21-29
[10] Supra n.1, paragraph 179
[11] Order dated April 11, 2016, Review Petition (C)Nos.2159-2268 Of 2013, available at

Tuesday, November 22, 2016

The “Ban” on NDTV India: A Primer & Some Questions

Guest Post by Sujoy Chatterjee

The Union Government has faced criticism from sections of the media and civil society for imposing a 24-hour “ban” on Hindi news channel “NDTV India”. The Union Ministry of Information & Broadcasting (MI&B) justified the move by contending that NDTV India acted against national interest by telecasting sensitive information during an ongoing counter-terrorism operation. New Delhi Television Ltd (NDTV) has filed a writ petition before the Supreme Court challenging the Union’s decision. This post traces the preceding developments, and explores whether television news media stands on a different legal footing than other news media sources.

MI&B Advisories

During the 26/11 attacks, handlers based outside India reportedly watched the attacks live on Indian news channels and provided real-time telephonic instructions to the terrorists in Mumbai. The Supreme Court took judicial note of this fact in Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, and stated as an obiter, “The coverage of the Mumbai terror attack by the mainstream electronic media has done much harm to the argument that any regulatory mechanism for the media must only come from within.”

As a fallout of 26/11, the MI&B issued advisories on 27.11.2008, 03.12.2008 and 20.11.2009 respectively, ‘advising’ news channels not to report the location, strategy, etc. of security forces engaging with terrorists. Similar advisories, although not related to counter-terrorism operations, were issued on 20.09.2013 and 03.03.2015 regarding news content related to (Muzaffarnagar) communal riots and the documentary “India’s Daughter” respectively.

On 20.03.2015, in response to the alleged live news coverage of terror attacks in Kathua, J&K, the MI&B issued a specific advisory with regard to counter-terrorism operations, ‘advising’ television channels not to telecast “live coverage” of counter-terrorism operations and to restrict “media coverage” to briefings by designated officials till operations conclude. Media reports from that time suggested that the Union Ministry of Home Affairs had proposed amendments to the Programme Code for prohibiting live coverage of counter-terrorism operations.

Programme Code Amended

The Programme Code comprises content which cannot be telecast on television channels, and is prescribed by the Union Government under Section 5 of the Cable Television Networks Act, 1995. The Code is contained in Rule 6 of the Cable Television Networks Rules, 1994. The Union Government is empowered under Section 20 of the Cable Television Networks Act, 1995 to regulate or prohibit the transmission of channels when there is, inter alia, any violation of the Code.

On 21.03.2015, the Union Government amended the Code, and inserted sub-clause ‘p’ to Rule 6(1).  The new sub-clause ‘p’ effectively limited news channels’ “live coverage” and “media coverage” of counter-terrorism operations, curiously without defining “live coverage” and “media coverage”. In my view, “Live coverage” of counter-terrorism operations may perhaps be akin to real-time videographic coverage of security movement, locations, etc., while “media coverage” may involve news reporting, whether by an anchor from a studio or by a correspondent from the field.  The two coverages may or may not always be mutually exclusive.

On 27.07.2015, in response to the alleged live news coverage of a terror attack in Gurdaspur, Punjab, the MI&B issued an advisory to channels to desist from violating the recently-inserted Rule 6(1)(p). It appears that till 2016, the Union Government’s action/advisories were directed towards all channels and broadcasting associations, and no channel was singled out regarding coverage of counter-terrorism operations.

Order against NDTV

On 02.01.2016, terrorists attacked the Indian Air Force base in Pathankot, Punjab. NDTV India’s coverage on 04.01.2016, while counter-terrorism operations were underway, was questioned by the Union Government. NDTV India was served a show-cause notice regarding its coverage. The MI&B, after considering NDTV’s representation and the recommendation of the MI&B’s Inter-Ministerial Committee (IMC), passed a detailed order dated 02.11.2016  prohibiting the transmission of NDTV India for 24 hours. The Order was passed, inter alia, on the grounds that NDTV India’s coverage revealed strategically sensitive details and violated Rule 6(1)(p).

Whether NDTV India actually revealed strategically sensitive details, whether its coverage disclosed something more than information shared at official briefings, etc., are factual aspects which require complete information regarding the official briefings, specialized knowledge of counter-terrorism operations, etc. There are not enough details in the public domain to draw any conclusions at this stage.

NDTV’s Defence

One facet of NDTV’s defence, as recorded in the Order, is that its news report contained details which were already reported by other media sources. NDTV justified this submission by relying on numerous news reports of print editions. Reliance was also placed on reports carried by media houses which run news channels.

It is not clear whether the said reports were published/broadcast on newspapers/news channels or on some other media, including internet. NDTV’s submission appears to be that since these details were already in the public domain (through print and perhaps other media sources), hence there could not be legal restrictions on reporting of such details by news channels. This line of reasoning pre-supposes, amongst others, that there ought to be no distinction among content carried on different media, i.e., print media, electronic media, internet.

The Supreme Court shed light on this in Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, where the Court framed the question as follows, “… whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media.”

At a time when internet usage was barely in its infancy in India, the Supreme Court answered the first part of its question by stating, “the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach..”

On the second aspect, the Court held,

The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures.”

Electronic vis-à-vis other Media

The possibility of different regulatory standards for content across different media was recently recognised in Shreya Singhal v. Union of India. The Supreme Court held that the internet is a distinct category as opposed to print and electronic media, and that there could be specialized laws for regulating speech on the internet. To that extent, judicial precedents may not support the proposition that content across all media are at par.

However, Shreya Singhal having classified internet as more powerful than television may benefit NDTV in its legal battle. Most media houses running news channels nowadays have corresponding websites containing regular news updates, video clips, news articles, blog posts, etc. This is in addition to myriad standalone news websites, promptly updating content. The content uploaded on all these news websites may coincide, or even precede, the broadcasting of similar content on news channels, and such websites are freely accessible worldwide. Viewed from this perspective, security concerns over coverage of counter-terrorism operations may not be effectively assuaged by only regulating television coverage.

The State may be justified in regulating news content, within constitutional/statutory limits, during exigencies such as terror attacks. However, Rule 6(1)(p) appears to be a case of holding news channels to a high standard of reporting, at a time when there is no standard whatsoever for online news outlets. While there is undoubtedly an intelligible differentia between television and internet, the test of reasonable classification may fail while considering whether the objective of maintaining the integrity of counter-terrorism operations can be achieved by regulating news on television but not news on the internet.

The Road Ahead

The Minister for MI&B, after meeting NDTV’s representatives on 07.11.2016, put the enforcement of the Order on hold till NDTV’s representation seeking review was decided. Consequently, the Supreme Court deferred the hearing in NDTV’s petition till 05.12.2016. Should the Union Government revoke or modify the Order before that date, NDTV may be inclined to withdraw its petition.

However, NDTV, having reportedly challenged the constitutional validity of Rule 6(1)(p) as well, may decide to put forth arguments on the vires of Rule 6(1)(p) irrespective of the Union Government’s decision on the Order. In that event, the fate of Rule 6(1)(p) shall not only have an impact on television news coverage during terrorist attacks,  but may have wider implications on whether the State should regulate content on news media during exigencies, and if so, which media may be regulated to what extent.
[The author is an advocate based out of New Delhi]