Jagran T.V. Pvt. Ltd. vs Union Of India & Anr.
2016 Latest Caselaw 4 Del

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Judgment delivered on: 04.01.2016

+       W.P.(C) 3480/2008 & CM Nos. 6647/2008, 8032/2008, 69/2013,
        11601/2013,15188/2013

JAGRAN T.V. PVT. LTD.                                    ..... Petitioner
                                   versus
UNION OF INDIA & ANR.                                    ..... Respondents

Advocates who appeared in this case:
For the Petitioner   : Mr Sudhir Nandrajog, Senior Advocate with
                     : Mr Mrinal Bharti, Advocate.
For the Respondents  : Ms Monika Arora, CGSC with Mr Harsh Ahuja
                     : and Mr Gaurav Upadhyay, Advocates for R-1.
                     : Mr Rakesh Kumar Sharma, Advocate for R-2.
CORAM:-
HON'BLE MR JUSTICE VIBHU BAKHRU
                                 JUDGMENT

VIBHU BAKHRU, J

1. The petitioner is an independent television production house and is

engaged in the business of providing news items through electronic media

to the general public. The petitioner has filed the present petition under

Article 226 of the Constitution of India, inter alia, impugning an order

dated 03rd January, 2008 whereby the petitioner was directed to comply

with the following directions:

"They shall not telecast/re-telecast the above mentioned news items titled 'Shaitan Doctor' in their Channel henceforth.

They are directed to run the following scroll on their television channel [in legible large font and at normal speed without any interruption of "Breaking News" etc.] round the clock for a period of three days w.e.f. 12:00 Noon on 05.01.2008 to 12:00 Noon in 08.01.2008.

"IBN 7 CHANNEL HAS BEEN WARNED BY THE MINISTRY OF' INFORMATION AND BROADCASTING FOR VIOLATION OF PROGRAMME CODE BY TELECAST OF NEWS ITEM TITLED 'SHAITAN DOCTOR' IN RESPECT OF DR. AJAI AGARWAL OF GHAZIABAD. IBN 7 CHANNEL APOLOGISES FOR THE SAID VIOLATION AND ASSURES TO BE MORE CAREFULL IN THE FUTURE."

2. The petitioner has also impugned other orders dated 11 th January,

2008, 07th February, 2008 and 02nd May, 2008 whereby its representations

made against the aforementioned order dated 03rd January, 2008 were

rejected.

3. The controversy involved in the present petition relates to a program

broadcast by the petitioner titled "Shaitan Doctor". The said program was,

inter alia, based on a sting operation which showed doctors taking money

to amputate limbs of healthy individuals so that they could beg for alms.

The program also showed that Respondent No.2 - who was an orthopedic

surgeon and at the material time posted as CMO, District Hospital, Gautam

Budh Nagar - involved in the illegal activity. The aforesaid programme was

aired on 29th July, 2006.

4. Aggrieved by the broadcast of the aforesaid programme, Respondent

No.2 issued a legal notice dated 11th November, 2006. Subsequently on 14th

September, 2007 an FIR bearing No. 881/2007 under Section

467,468,469,471,418,420 IPC was registered at the Police Station Gilani

Gate, Ghaziabad on a complaint made by Respondent No.2. A complaint

was also filed with the Ministry of Information and Broadcasting.

5. Respondent No.1 issued a show cause notice dated 08 th November,

2007 alleging that the broadcast of the programme "Shaitan Doctor" on

29th July, 2006 appeared to have maligned an individual person and, thus,

violated Section 5 of the Cable Television Networks (Regulation) Act,

1995 (hereafter 'the Act') read with Rule 6(1)(i) of the Cable Television

Networks Rules 1994 (hereafter 'the Rules'). The petitioner was,

accordingly, called upon to show cause as to why action under the

provisions of Section 20 of the Act be not taken against the petitioner. The

petitioner responded to the show cause notice claiming that the report

telecast by it was supported with reasonable and sufficient amount of

evidence. The petitioner contended that given the nature of news involved,

a sting operation was necessary otherwise the information would not have

been revealed. It asserted that the sting operation was carried out by

Dedicated Investigators Guild (DIG) which was an independent legal

entity.

6. It was also contended that the report was based on well researched

information and as a news channel, it was the petitioner's duty to air the

news and provide information to public at large. The petitioner claimed that

there was no violation of Section 5 of the Act.

7. Respondent No.1 considered the response of the petitioner as well as

the recommendations of the Inter Ministerial Committee (hereafter 'IMC')

and concluded that telecast of the news item title "Shaitan Doctor" was in

violation of Rule 6(1)(i) of the Rules; accordingly, Respondent No.1 passed

the impugned order dated 3rd January, 2008.

8. Thereafter, the petitioner made several representations against the

impugned order and also sought an opportunity of a personal hearing.

Although the competent authority of Respondent No.1 granted the

petitioner an opportunity to be heard, it did not find any merit in the

representations made by the petitioner. Nonetheless, by an order dated 2 nd

May, 2008, the Competent Authority of Respondent No.1 modified the

impugned order dated 3rd January, 2008 by directing that the scroll of

apology be telecast for a period of two days, from 12 noon on 3 rd May,

2008 to 12 noon on 5th May, 2008, instead of three days as directed earlier.

9. Mr Sudhir Nandrajog, Senior Advocate appearing on behalf of the

petitioner submitted that the petitioner was standing by the news item in

question and neither Respondent No.1 nor any other authority had verified

the authenticity of the recording aired by the petitioner. He submitted that

since the petitioner was asserting that its report was truthful and correct, it

was incumbent upon Respondent No.1 to independently examine the

recording and come to an informed conclusion after examining the relevant

facts. He submitted that the CD (compact disc) submitted by the petitioner

had not been forensically tested and, therefore, Respondent No.1's

conclusion that the news item in question violated the Programme Code

was erroneous. Lastly, he submitted that the issue whether Respondent

No.1 had been defamed was pending investigation with the police

authorities and the impugned order ought to be suspended till the

investigations were completed.

10. Ms Monika Arora, learned Advocate appearing for Respondent No.1

countered the arguments advanced on behalf of the petitioner and submitted

that Respondent No.1's decision was made on the basis of sufficient

material and after hearing the petitioner. She contended that in the given

circumstances, the impugned order could not be faulted as being arbitrary

or unreasonable. She also contended that the petitioner had been warned

earlier in regard to the violation of the Programme Code but had persisted

in not complying with the same.

11. Respondent No.2 contended that the petitioner had fabricated the

story in question and had aired the same only with the object of enhancing

their viewership and TRP Ratings without any concern as to the truth of the

news item. He contended that the petitioner had procured the data from a

third party and had aired the same without verifying the genuineness or the

truthfulness of the incident being reported and, thus, had violated Section 5

of the Act read with the relevant Rules. He further submitted that the

truthfulness of the events shown was examined by the Ethics Committee of

the Medical Council of India and UP Medical Council. However, the

allegations remained unsubstantiated. He further alleged that the sting

operation was planned by another doctor - who was jealous of the

Respondent's reputation - in connivance with DIG only with the view to

sully the reputation of Respondent No.2. He, accordingly, submitted that

the present petition was liable to be dismissed.

12. The reach of electronic media is very wide and as such it has become

a powerful medium for disseminating information and instant

communication to a large section of the public. Undoubtedly, any

defamatory report, which is telecast as a news item, would irretrievably

sully the reputation of the person concerned. Thus, the requirement of using

the electronic medium responsibly cannot be exaggerated. A Division

Bench of this Court in the case of Ms Uma Khurana (The Court on Its

Own Motion) vs. State: W.P.(Crl.) 1175/2007, decided on 14th December,

2007 had examined an incident of false - and probably malicious - reporting

which had resulted in an innocent person being subjected to ignominy,

humiliation, harassment, physical assault and loss of employment. This

Court had emphasized that electronic media must protect the innocent

people and their reputation cannot be permitted to be damaged by false and

incorrect depictions in the name of sting operations.

13. In the instant case, it cannot be disputed that the programme aired by

the petitioner was highly derogatory to the reputation of Respondent No.2.

The programme showed Respondent No.2 agreeing to amputate a limb of a

healthy person for money, so that the person concerned could beg for alms

as a maimed person. Clearly, if the aforesaid news item was not true or had

been telecast without doing the proper due diligence, the petitioner would

undoubtedly be guilty of offending the Programme Code, to say the least.

Whilst the petitioner asserts that the said report was correct, the respondents

dispute the same. Section 5 of the Act mandates that "No person shall

transmit or re-transmit through a cable service any programme unless such

programme is in conformity with the prescribed programme code." Rule 6

of the Rules prescribes the Programme Code. Rule 6(1) of the Rules reads

as under:-

"6. Programme Code. -(I) No programme should be carried in the cable service which:-

(a) offends against good taste or decency;

(b) contains criticism of friendly countries;

(c) contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;

(d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths;

(e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti- national attitudes;

(f) contains anything amounting to contempt of court;

(g) contains aspersions against the integrity of the President and Judiciary;

(h) contains anything affecting the integrity of the Nation;

(i) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country ;

(j) encourages superstition or blind belief;

(k) denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;

(m) contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups

(n) contravenes the provisions of the Cinematograph Act, 1952 (37 of 1952).

(o) is not suitable for unrestricted public exhibition: Provided that no film or film song or film promo or film trailer or music video or music albums or their promos, whether produced in India or abroad, shall be carried through cable service unless it has been certified by the Central Board of Film Certification (CBFC) as suitable for unrestricted public exhibition in India. Explanation - For the purpose of this clause, the expression "unrestricted public exhibition" shall have the same meaning as assigned to it in the Cinematograph Act, 1952 (37 of 1952);"

14. Facially, the news item aired by the petitioner falls foul of the

Programme Code inasmuch as it maligns and slanders Respondent No.2.

Thus, the onus to establish that the news item was true and that proper

precautions were taken is on the petitioner; failing which, the only

conclusion that can be drawn is that the petitioner is guilty of offending the

Programme Code.

15. After the programme was aired, the Indian Medical Association,

Noida constituted an enquiry committee to enquire into the serious charges

that were leveled. Apparently, the enquiry committee appealed through

press for persons to come forward and give evidence against Respondent

No.2. However, no such evidence was forthcoming. Accordingly, Indian

Medical Association, Noida concluded that the charges leveled against

Respondent No.2 appeared to be incorrect.

16. The Inter Ministerial Committee (IMC) constituted by Respondent

No.1, at its meeting held on 1st March 2007, considered the complaint of

the Secretary, UP Nursing Association with regard to the telecast of two

news items including "Shaitan Doctor". The IMC observed that there was

no specific decision of any Court in respect of the reported incident and

since it lacked the experience to evaluate the evidence as per law, therefore,

it be left to the individuals concerned to take up the matter of defamation in

Civil Courts. Respondent No.1 also communicated this decision to the

petitioner by a letter dated 3rd April, 2007.

17. Apparently, the matter was again put up for reconsideration by the

IMC on 18th October, 2007. By this time, the Allahabad High Court had, in

a pending writ petition, considered the allegations made against Respondent

No.2 and had decided not to issue any further directions in the matter as the

High Court found that several enquiries had been conducted against

Respondent No.2 but in each case he had been exonerated. In view of the

aforesaid order dated 20th April, 2007 passed by the Allahabad High Court,

the IMC reconsidered its earlier decision and concluded that the petitioner

had violated Rule 6(1)(i) of the Rules and recommended that a warning be

issued to the petitioner with a direction to run an apology scroll for a period

of three days.

18. The impugned order dated 3rd January, 2008 was passed pursuant to

the recommendations made by the IMC.

19. A bare perusal of the recommendations of the IMC as well as the

impugned order indicates that Respondent No.1 was persuaded to hold that

Programme Code (Rule 6 of the Rules) had been violated principally for the

following reasons:-

(a) That the Allahabad High Court had, by an order dated 20 th April,

2007 passed in Dr. Vinod Kumar V. State of U.P. and others: Civil Misc.

Writ Petition No. 74150 of 2005, observed that "many enquiries were

conducted at various level on the issue in question against Doctor Ajay K.

Aggarwal but in each case, he was exonerated. The Court, therefore, saw

no point that the matter should be allowed to continue against him

anymore".

(b) That the Medical Council had also exonerated Respondent No.2 for

the alleged activities reported by the petitioner.

20. It is not disputed that the petitioner was not a party to the

proceedings before the Allahabad High Court or to the enquiries, the

reports of which were placed before the Allahabad High Court. It is also

apparent that the impugned order was passed in view of the decision of the

Allahabad High Court not to pursue the matter against Respondent No.2. In

this view, the grievance of the petitioner that its contention that the report

submitted by it was authentic had not been examined independently by

IMC or Respondent No.1, appears to be justified.

21. Having stated the above, it would also be necessary to observe that

the news item aired by the petitioner was procured by it from a third entity

and had not been generated by the petitioner itself. Although the petitioner

has asserted that the news item had been prepared by DIG on its behalf, it is

admitted that the petitioner was not involved in the investigations that had

led to developing the news item, which was telecast. In the circumstances,

it would be necessary for the petitioner to establish that it had done the

necessary due diligence and had verified and ascertained the authenticity of

the report before airing the same. The standard of care required of the

petitioner for telecasting such reports is very high. It is not sufficient for the

petitioner to simply state that the Respondent No.1 has not forensically

examined the CD or the recording. The onus to establish that the recording

was not tampered and the voice recorded was that of Respondent No.2 is on

the petitioner. The petitioner would have to establish that the recording was

authentic and produce sufficient material and evidence to indicate that it

had independently verified the authenticity of the report that it had aired.

Although the petitioner had claimed that the report was supported by the

reasonable and sufficient amount of evidence, the petitioner does not seem

to have placed any such evidence along with its reply to the show cause

notice. The petitioner has also not placed any material which would

establish the authenticity of the recording. As indicated earlier, the onus to

establish the truthfulness of the report is entirely on the petitioner.

22. In the given circumstances, the impugned order insofar as it directs

the petitioner to run an apology scroll is set aside and Respondent No.1 is

directed to reconsider the matter afresh. The petitioner is at liberty to place

all evidences available with it to establish that it had duly verified and

ascertained the authenticity of the reported news item prior to it being aired

along with the affidavit of the persons who were involved in reporting the

story. The Respondent may place the necessary material evidence no later

than four weeks from today.

23. The writ petition and all the pending applications are disposed of

with the aforesaid directions. The parties are left to bear their own costs.

VIBHU BAKHRU, J JANUARY 04, 2016 RK/pkv