Will the breach of privilege case and the challenge before the Supreme Court survive dissolution of the UP Assembly?
A grab from the sting operation telecast by Headlines Today and Aaj Tak
As Uttar Pradesh goes to elections once again next month, the 16th UP Legislative Assembly may dissolve before putting an end to the contempt proceedings initiated against Aaj Tak and India Today for breach of legislative privilege of one of its senior members, namely, Azam Khan.
This particular controversy was in the news in February, 2016 when the media reported that a couple of TV channels had been ‘indicted’ by a legislative committee constituted by the Assembly to investigate the manner in which these TV channels conducted a ‘sting operation’ alleging political interference in the functioning of the police during the Muzaffarnagar riots.
The Committee’s specific mandate was to examine the veracity of the sting operation since it involved allegations against Azam Khan, a senior minister in the government and a senior member of the UP Assembly. The sting in question conveyed the impression that Azam Khan had given directions to the police to go easy on some of those accused during the riots, thereby further stoking the violence.
"The sting in question conveyed the impression that Azam Khan had given directions to the police to go easy on some of those accused during the riots, thereby further stoking the violence."
Although many in the mainstream media declined to mention the name of the news channels, the smaller digital media outlets like Janatakareporter.com did name Headlines Today (now renamed India Today) and Aaj Tak. According to these reports, the Committee constituted by the UP Assembly recommended action against nine journalists belonging to these two TV channels, “under various Sections of IPC and IT Act including 153 (A), 295 (A), 200, 463, 464 & 465, 469 , 471 of IPC and IT Act (2000) and Cable TV Networks (regulation) Act- 1995 Sec-5 & Section 20”.
According to these reports, the nine journalists were: Supriya Prasad (Managing Editor-Aaj Tak), Rahul Kanwal (then Managing Editor-Headlines Today, now renamed India Today TV), Deepak Sharma, Arun Singh, Harish Sharma (all members of the then Special Investigations Team) Manish Kumar (Output Head, Aaj Tak) along with anchors Punya Prasun Bajpai, Gaurav Sawant and Padmaja Joshi.
After perusing a translated copy of the Committee’s findings, these reports do not appear to be substantiated. The Committee did make some stinging remarks against most of these nine journalists but it did not order prosecution under all the sections mentioned above. It only finds that the journalists have breached the privilege of the UP Assembly by making unsubstantiated allegations against Azam Khan.
The Committee also alleged that the channels violated the Cable TV Act. The only recommendation made by the Committee was that the UP Assembly should take action against the journalists for breach of privilege. A fact conveniently suppressed by Janatakareporter.com in its report was that its founder, Rifat Javed, was working at the TV Today Network as an input editor at the time of this controversy and had deposed before the Committee against the TV channels.
"The only recommendation made by the Committee was that the UP Assembly should take action against the journalists for breach of privilege."
After the report was voted on by the UP Assembly, it reportedly summoned the nine journalists in February 2016 for an explanation. At this stage, the journalists moved the Supreme Court and got a stay on the summons, setting the stage for what could have been a potentially explosive showdown between the judiciary and the media on one side and the Assembly on the other.
As is usually the case in such situations, the mainstream media has been silent on the serious charges being made against one of its own. In this article, we will briefly discuss the context and findings of the Committee, based on an unofficial translation.
The context of the 350 page report
In August-September, 2013 during the run up to the general elections that swept the BJP into power, Hindu-Muslim riots broke out in Muzaffarnagar. The riots resulted in approximately 62 deaths and thousands of others being displaced from their homes. While communal riots are hardly new to India, they usually take place in urban areas and not rural areas like Muzaffarnagar.
While the events leading up to the riots are still hazy, there is little doubt that the riots helped polarise a community which had otherwise seen strong Jat-Muslim unity. Such polarisation of the electorate on religious lines usually helps the BJP win elections by consolidating the Hindu vote and the Muzaffarnagar riots are believed to be at least partly responsible for the BJP’s stunning victory in Uttar Pradesh during the May, 2014 general elections: the party won 71 out of the 80 Lok Sabha seats from the state.
The controversial sting conducted by India Today and Aaj Tak in September 2013 conveyed an impression that police officers were being ordered by Azam Khan to back off from arresting the people responsible for the riots. The transcript of the sting operation can be accessed here. The controversial portion is where a police officer agrees with the reporter’s suggestion that Azam Khan was the politician exerting pressure. Building on the sting footage, the India Today TV channels then made a string of allegations against Azam Khan, including this report that Azam Khan asked the police to go slow against rioters in Muzaffarnagar.
The subtext to this reportage was that he was trying to protect the people from his religious community. This narrative fits in perfectly with the BJP’s narrative of ‘minority appeasement’ by parties like the Samajwadi Party to which Azam Khan belongs. At the time, Azam Khan held a press conference denying the allegation that he interfered with the police investigations, pointing out that the reporter was putting words into the mouth of the police officer and that the police officer had not himself made any such statement about receiving calls from him.
Outrage prompts an investigation
The resulting outrage in the Assembly and political circles led to the Assembly setting up a Committee of seven MLAs to investigate the ‘sting operation’ since Azam Khan had denied the allegations made by the two TV channels. The report of the Committee (which had 48 sittings) is incredibly detailed and nuanced and appears to provide conclusive proof that something went very wrong during that sting operation conducted by India Today TV and Aaj Tak, both of whom belong to the same media house.
"The proceedings of Committees set up by legislatures are very different from Commissions of Inquiry set up under The Commissions of Inquiry Act, 1952."
However, before delving into the report, it should be understood that the proceedings of Committees set up by legislatures are very different from Commissions of Inquiry set up under The Commissions of Inquiry Act, 1952.
To begin with, Inquiry Commissions are usually headed by persons such as retired judges who are not overtly affiliated to political parties. Assembly committees are always headed by a member of the legislature in question, which means they come with their political baggage.
The second important difference is that Inquiry Commissions feature lawyers for both sides and are conducted very much like judicial proceedings, which means the lawyers usually cross-examine witnesses. Assembly committees usually don’t allow cross-examination or legal representation.
The last and perhaps most important distinction is that unlike Inquiry Commissions which are routinely subject to judicial review by courts, the proceedings of legislative committees are immune from judicial interference thanks to the concept of parliamentary privilege enshrined in the Constitution. Of late, however, the Supreme Court has been interfering in privilege motions being tabled before state legislatures. These are important facts to be kept in mind while going through the contents of the report.
Stonewalling tactics by India Today
According to the Committee’s report, the India Today management had initially failed to co-operate with its investigation. Apparently, repeated requests for the ‘raw footage’ of the sting operation and the presence of the sting team were disregarded. Finally, on December 19, 2013, two months after the Committee was constituted, it issued a contempt notice to Supriya Prasad, the Executive Director/Channel Head at Aaj Tak. The notice had its intended effect – the reporters, editors and news anchors from both Aaj Tak and the India Today group began appearing and the raw footage was given.
Most notable however is the refusal of Aroon Purie, Chairman and Managing Director of the TV Today network to appear. The Committee had initially summoned him as CEO on December 29, 2014. That notice resulted in Puneet Jain, the legal head of TV Today, informing the Committee that the CEO of the group was in fact Ashish Bagga. The Committee therefore summoned Bagga, examined him and decided once again to summon Aroon Purie. At the next hearing, Supriya Prasad, the Managing Director and Puneet Jain, the head of legal, appeared in place of Purie and submitted a letter from Purie explaining his position.
As per the Committee’s report, in this letter Purie explained that he was not responsible for the daily running of the TV Today Network (TVTN), before laying out the editorial processes followed by the network while deciding to broadcast sting operations. He also explained that TVTN had initiated an internal inquiry into the sting and that even before the enquiry could be completed, Deepak Sharma (the head of the sting team) had left the company and that other reporters were also “sevamukh” from the company. Purie also promised the Committee his entire co-operation. The letter appears to have worked since Purie was never summoned again.
The key questions about the sting
One of the key aims of the Committee’s report was to examine the editorial process followed by TVTN during the conduct of the sting and the subsequent decision to broadcast it on September 8, 2013.
The key portion of the transcript, as available on the India Today website is reproduced below:
Headlines Today: Main role I think was Azam Khan's, that he put pressure.
R S Bhagaur, Second Officer: That's right, that's right.
Headlines Today: You won't do anything, you will let things happen as they are happening.
R S Bhagaur, Second Officer: Yes
Headlines Today: This is all political, they are trying to take advantage of the situation.
R S Bhagaur, Second Officer: Everyone is trying to take advantage.
The first line of questioning followed by the Committee, was whether Azam Khan’s name was brought up by the reporter or the police officer.
The second line of questioning was aimed at uncovering why the reporter brought up Azam Khan’s name in the sting because none of the India Today reports cited any corroborative witness statements that backed the allegations made by its reporter.
The third line of questioning pertained to whether Azam Khan was given an opportunity to comment on the allegations being made against him during the broadcasts.
The long and short of the response from the India Today team is a negative response to all three questions i.e. it was the reporter and not the police officer who brought up Azam Khan’s name in the conversation, there was no corroborative evidence from any other source to back the allegation and finally, they never gave Azam Khan an opportunity to reply.
The sting team turned out to be a divided house
What really stands out in this report is the manner in which the Committee went about its job. It called all the editors and journalists involved in the proceedings and grilled them about their respective roles and played them off against each other.
The key players of this exercise appear to be the two managing editors who approved the sting, the head of the SIT who conducted the sting and finally the four anchors who hosted the shows featuring the controversial footage: Rahul Kanwal, Gaurav Sawant, Padmaja Joshi and Punya Prasun Bajpai.
"What really stands out in this report is the manner in which the Committee went about its job."
The depositions made by the reporting and editorial staff from TVTN reveal a divided newsroom with some of the staff clearly questioning the editorial judgment exercised by those who made the decision to broadcast the sting footage.
For instance, regarding the footage of the reporter asking the policeman about Azam Khan’s alleged phone call to police officers not to arrest the accused (and the police officer’s response), at least three members from TVTN stated that they disagreed with the decision to broadcast it without collecting more corroborative evidence.
Of these three, two were members of the sting team – Harish Sharma and Arun Singh – both of whom testified that they informed Deepak Sharma that more evidence was needed before accusing Azam Khan of interference with police investigations (para 181).
The third person was Rifat Javed, earlier with the BBC and then the input editor of the TVTN channels. He had joined the network on September 17, 2013 and thus had no role in giving approval to the sting. According to the Committee’s report, Javed during his deposition agreed that the portion pertaining to Azam Khan should not have been broadcast (para no. 181) and that the head of the sting team and the managing editor failed to discharge their editorial duties in doing so.
Apart from these three, the Committee also grilled the Managing Editor, Supriya Prasad and the four anchors. The Committee makes references to specific quotations from the broadcasts, where each of the anchors made comments alleging that senior figures from the UP government including Azam Khan were interfering in the police investigation.
Supriya Prasad apparently agreed with the Committee that the question asked in the sting on Azam Khan’s role should not have been asked as it was by the reporter (para 188). As to the anchors, since none of them were able to provide any proof regarding interference by SP leaders (including by Azam Khan) the Committee remarked that the anchors were more culpable for the broadcast of the sting than the team responsible for editing the footage (para 189).
Based on all these observations and more, the Committee concluded that the editors and journalists had in fact breached the privilege of the UP Assembly by making unsubstantiated allegations against Azam Khan.
Did the sting violate ethics and the law?
Apart from examining the editorial process, the Committee conducted a deep-dive into the issue of the legality of the sting. Starting with judicial precedents in the cases of R.K. Anand v. Registrar, Delhi High Court (2009) as also the Uma Khurana case (where a schoolteacher was wrongly accused of running a prostitution ring) and the Rajat Prasad Versus Central Bureau of Investigation (2014) case, the Committee sought to highlight how the judiciary had viewed sting operations as morally hazardous and therefore requiring much higher editorial control than ordinary reporting.
The Committee also mentioned the specific guidelines laid down by the Delhi High Court in the Uma Khurana case and pointed out that the Azam Khan sting operation did not comply with them. The Committee does a good job in using judicial precedents to present the TVTN sting as violating both ethics and the law.
"The Committee does a good job in using judicial precedents to present the TVTN sting as violating both ethics and the law."
The report also refers to guidelines laid down by the News Broadcaster’s Associations (NBA) and also the provisions of the Cable Television Networks (Regulation) Act, 1995 to explain how the sting violated both the guidelines and Section 5 of the Cable TV Act in that it could have stoked communal tension.
Action against the journalists unlikely
The report ends by recommending that the Assembly take action against the journalists, editors and anchors in question for breach of privilege of the UP Assembly. It also recommends against action be taken against the journalists, editors and anchors for violating the Cable Television Networks (Regulation) Act, 1995. As per the translated version of the report that we accessed, the Committee never recommended prosecution under the IPC and IT Act as was alleged by Janatakareporter.com.
Acting on the Committee’s report, the UP Assembly summoned the journalists, editors and anchors to explain why action should not be taken against them for contempt of the house. The TVTN group then moved the Supreme Court which stayed the proceedings in March 2016. Such judicial interference in privilege-related issues has previously led to legislative-judicial clashes.
"While the matter is likely to be heard by the Supreme Court on 31st January, it is unlikely that a verdict can be expected given the impending state elections."
While the matter is likely to be heard by the Supreme Court on 31st January, it is unlikely that a verdict can be expected given the impending state elections. Failing which, it is not clear whether the challenge before the Supreme Court will survive dissolution of the UP Assembly.
It must be seen whether the next Vidhan Sabha will be keen to pursue the case. In any event, the consequences of dissolution of the Assembly itself throws open new questions on the continuity of the present proceedings. For one, it may be plausible to argue that the 17th Vidhan Sabha may not have the locus to pursue a contempt motion on behalf of a member of the previous Vidhan Sabha. On the other hand, it could be reasoned that a breach of legislative privilege will always be contemptuous of the Vidhan Sabha.
The authors are lawyers.
Courtesy: The Hoot