Channel expose forces Tiwari to step down

The ABN channel in Andhra Pradesh can now legitimately take the credit for sending a Governor out of office, by stirring up  public opinion, especially women?s organizations. ND Tiwari bowed to pressure and resigned on ?health? grounds following the channel?s Christmas day expose. The Congress party claimed that he resigned on moral grounds. Thus the media?s allegation is proved ?morally? though, legally it is yet to be proved.  Even as the Tiwari was stepping out of office, ABN, Andhra Jyothi, and various other websites including Google and YouTube, published the content forcing the powers that be at Delhi to ?advise? Tiwari to leave Raj Bhavan. The content exposed involve serious allegations that Tiwari was at the centre point of bringing women from Uttaranchal and exploited them in Raj Bhawan, where the Channel alleged, some MPs were also involved in exploitation.

Constitutional implications of the case

However, the channel should have fought against the Executive before the judiciary to reverse the interim order of AP High Court commanding the channel not to telecast, as the exposure was not to demean but to make that office meaningful. It is the duty of media to force the political parties to appoint the people of high moral values to the top offices. ABN could have set an example had they secured a judicial precedent by proving a point that Constitution did not offer any protection to ?office? as such in these circumstances.  

The background to this particular sting operation, restrained by a bench of the AP High Court on Christmas day, is as follows:

A Telugu TV channel ABN, and newspaper, Andhra Jyothi (both belonging to the same media house) came out with scathing allegations through sting visuals against the personal life of Governor Narayan Dutt Tiwari. The Division Bench of AP High Court issued an injunction restraining the channel from telecasting the same. But is a restriction on media expression at the excutive?s request, however reasonable it may be, permitted by the Constitution?

On  Christmas morning, the Andhra Jyothi daily greeted its readers with a banner announcement that its TV channel was going to telecast a sensational sex scandal involving the Governor, indicating the illegal trafficking from the highest seat of power. Apprehending a sensational and offensive exposure through audio-visuals, the Officer on Special Duty of Raj Bhavan rushed to the residence of Chief Justice of Andhra Pradesh Justice A R Dave seeking to move a House Motion in spite of its  being a non-working holiday. The C J admitted the letter of OSD as a Public Interest Litigation (PIL) and constituted within hours, a Division Bench with himself and another Justice C V Nagarjun Reddy.

Justice Reddy read the Telugu news item and translated it to the Chief Justice. The Bench felt would be a "highly objectionable programme which is likely to demean and denigrate the gubernatorial office and cause immense harm to the public interest and that the damage is likely irretrievable". The Bench directed the ABN Andhra Jyothi Channel, Hyderabad to refrain from undertaking any such telecast as announced. The Bench also directed the Commissioner of Police, Hyderabad to enforce the order forthwith and the matter was posted for next step on 30^th December 2009.

By the time the order reached, the Channel repeatedly beamed the clippings with frozen and blurred scenes followed by spate of telephone responses, and SMS opinions in scrolling on tv screen. The Rajbhavan road saw demonstrations of various women organizations leading to dharnas, burning effigies of Governor and arrests. While Andhra Jyothi was beaming these reports though forced to withhold the telecast of restrained scenes, the other channels were not even referring to this controversy.

Legally speaking, prior restraints on print media publications are considered violative of freedom of expression under Article 19(1)(a), as the freedom means absence of pre-censorship and that the media has autonomy in selecting the form, content and circulation. This freedom of speech restricting pre-censorship is not available with reference to cinematography as the Cinematography Act 1952 regulates the pre-view and certification of viewership of the movie before it is released for public exhibition. The TV channels stand in between (print and film media), as there is no pre-censorship against its news or other programmes. Restraining telecasts like this could be a new direction against the media. In the Andhra Jyothi case, the High Court gave an interim direction before the media represented their case, based on the contention of the counsel for the Governor. It is also difficult to term it as prior-restraint because the telecast of story already happened, though further repetition was stopped.

An executive restriction, however reasonable it may be, on media, if not based on the grounds listed in Article 19(2) is not permitted by the Constitution. What was envisaged by Article 19(2) was creating a ground for ?reasonable restriction? through legislation. That means if the state wants it could bring a law imposing a new restriction, reasonability of which could be examined and reviewed by the judiciary. The  Broadcasting Regulation Bill was drafted to secure such pre-telecast restraining power to the executive which could not be passed due to stiff opposition from media, which said that it would amount to violation of media freedom. While the bill is in cold-storage, the Andhra Jyothi channel stirred up the issue of broadcast regulation, even as the judiciary was moved to consider these highly contentious questions.

The Andhra Jyothi channel episode also raised other serious issues such as invasion of privacy of Constitutional office-holders through sting operations, the justifiability of sting operations, conditions for acceptability of electronic recording of scenes, protecting the honour of top executive office through injunctions, etc.

It is yet another legal complexity as to how to prosecute the alleged crimes against the top public servants like Governors. In fact the Governor is the sanctioning authority to say yes to probe into corruption and other charges against higher public servants. Who has to be approached for a probe into the allegations, if any against the Governor himself?

Article 361 offers a very specific immunity from the criminal proceedings during the tenure of office of President and Governors of the states.  Hence even if the allegations are found to be prima facie established, the prosecution has to wait until the concerned Governor stepped down from the office. It can become a very sensational exposure upsetting the on-going-coverage of the separatist agitation in Andhra Pradesh that was kicked off again with ambiguous statement of Union Minister for Home P Chidambaram saying extensive consultations would be preceding the process of formation of Telangana. While the other media in AP did not immediately pick up the thread, the national press did.

This should also be an occasion for the nation to consider the issue of immunity, the relic of a  Pre-Independence law-- Government of India Act, 1935--which granted complete exemption to top executives from prosecution. Independent India has unhesitatingly continued the same in its own Constitution.  The time has come to declare that rule of law should be same for the rulers and the ruled.