The Supreme Court today resumed its hearing on the petition against Hindu nationalist channel Sudarshan TV’s show “UPSC Jihad”. The channel’s chief editor Suresh Chavhanke — who is also the show’s host — tuned in to the hearing while simultaneously perusing videos made by his supporters in full volume with his mic on.

The hearing spanned four hours. In the first half, a bench of Justices DY Chandrachud, KM Joseph and Indu Malhotra heard Sudarshan TV’s defence offered by advocate Shyam Divan.

The top court likened the show’s content to “divisive propaganda” and asked the channel to file a petition by September 21 to "to assuage apprehensions" and state the “assurances” about its show.

The court also directed the government to file an affidavit on how it will ensure self-regulation in the media.

The temporary injunction on “UPSC Jihad” — which purports to show how Muslims have “infiltrated” the civil services in India — will continue.

Throughout the hearing, Sudarshan TV maintained that its findings were factual, but constantly qualified it by stating that it could be wrong and is open to contestation. It added that banning the show was not a way out because the show was protected under Chavhanke’s right to free speech and expression.

The channel argued that it believed that the Zakat Foundation of India, or ZFI, run by Syed Mehmood Zafar, had links with “terror-linked organisations”. It cited an oped from Firstpost, a report that appeared in the Times in the UK, and a study by an American research group.

“I believe this is not just a rant without facts,” the channel’s counsel argued. “I believe this is fact-based journalism.”

The foundation was relevant because on September 11, Sudarshan News aired the first of the 10 episodes on “UPSC Jihad”. The episode involved former prime minister Manmohan Singh, the ZFI, ISIS and Pakistan. In a counter-affidavit filed with the Supreme Court, the channel claimed that the ZFI took money from the Zakat Foundation of America, Madina Trust, and Muslim Aid (UK) — organisations having alleged links with the Hizbul Mujahideen, Taliban and Al Qaeda.

The counter-affidavit annexed dozens of pages of ZFI’s records under the Foreign Contribution (Regulation) Act, 2010 filed with the Ministry of Home Affairs. They were put in there to back up the claim that the organisation has links with, and received funds from, “terror-linked groups”.

However, the channel said that it could be wrong in its claims.

“I could be wrong about the FCRA [records], but the way is not to ban. The way is to contest,” Shyam Divan told the court.

To flesh out this argument, Divan put forward a “thought experiment”.

“Someone may well come forward and say that this does not appear to be correct. This FCRA [record] refers to another Zakat Foundation,” he said. “These figures are wrong because a clerk filed some figures and the foundation has not received any of this money. The Zakat Foundation, USA, is not the same as the one that funds Zakat Foundation of India. The Madina Trust is a completely different trust, because Madina is a common name. All of that could be by way of explanation, by way of response. And responsible journalists then must alter his conclusions, as he must."

On September 15, the Supreme Court had temporarily restrained the Hindu nationalist channel from airing the six remaining episodes on ‘UPSC Jihad’. It said that the show appeared to “vilify” the Muslim community. The counter-affidavit filed by Sudarshan TV asked the court to lift the stay order on the show.

Does Sudarshan TV offer ‘fact-based journalism’?

BoomLive’s fact-check of the infamous show showed that at least five of the main claims in “UPSC Jihad” were misleading.

Chavhanke made the following claims in the first episode of his series: that there was a greater age relaxation for Muslim candidates than Hindus; that a mock interview meant to prepare aspirants claimed that Muslims have an advantage during interviews; that Muslims get more attempts than Hindus; that Muslims get greater help for clearing the civil services exams than Hindus; and that coaching centres in Muslim varsities aid only Muslim aspirants.

As the fact-check shows, the first claim is patently false. The second claim is based on a selectivity clipped video (“It’s the nature of the medium. Clips are short,” the channel told the top court, referring to the trimmed videos.) The third, fourth and fifth claims are false, false and false.

Is Suresh Chavhanke a journalist? Is Sudarshan TV a news channel? As pointed out in a Newslaundry piece, the channel did not even bother to cite sources for most of its data in the first episode — a simple practice that binds the profession.

Other reports demonstrate that Sudarshan TV is not only mostly wrong, but also malicious. In a July 2019 report, Newslaundry had reported how the channel had kicked up a communal frenzy by adding a bogus communal angle to a land dispute in Chhattisgarh’s Raipur. Chavhanke had been arrested by the Uttar Pradesh police over similar claims in 2017. The channel also broadcast false and misleading news (see here, here, here, here, here and here).

‘You sideline the speech while distilling the facts’

After hearing Sudarshan TV’s defence, the top court observed that the channel’s affidavit had “sidelined the speech while distilling the facts”.

Justice Chandrachud gave examples from the show that were explicitly provocative or communal: Chavhanke calling a politician “gaddar” and “namak haram”, using flames throughout the show, playing incomplete videos, stereotypical depictions of Muslims, misleading data and, among others, Chavhanke’s statement: “Kehte hai chor ki dadhi mai tinka; yahan toh dadhi bhi hai, chor hai ki nahi sabit ho jayega jab main puri baat rakhunga.” (A speck in the thief’s beard; there is a beard here, but we’ll find out about the thief by the time I finish.)

“We have no problem that you want to investigate a source of funding,” the judge said. “But the difficulty arises when on the basis of that you implicate an entire community as [being] involved in some conspiracy to destabilise or take over the civil services. That is where the problem arises.”

Justice Joseph observed that by targeting young Muslim aspirants, the channel was marginalising a group that should be mainstreamed and driving them into “wrong hands”. “The bottomline is that you are maligning a community," he said.

In its defence, Sudarshan TV said the show should be viewed as a whole, “not as a tweet here or a statement there”. When one does that, it said, “the programme’s targets are certain organisations that are foreign funded and appear to have a certain leaning.”

It added: “We have no objection at all to any gentleman from any community — minority or majority — on his own scheme coming and joining the UPSC.”

The Supreme Court told Sudarshan TV that investigative journalism was its constitutional right, and that it did not want to censor the show. However, it asked the channel to file an affidavit by September 21 with “assurances made in good faith” to “assuage apprehensions” about “UPSC Jihad”.

While hearing the matter, the bench also touched upon the practice of self-regulation in the media, or the lack of it. It stated the “toothless” National Broadcasters Association, or NBA, had told the top court that it could not do anything about the show because Sudarshan TV was not a member. Even if it had been, any fine would not have exceeded the upper limit of merely Rs 1 lakh.

“We have a situation where we can use this case as an important focal point for improving upon the quality of self-regulation [in the media],” Justice Chandrachud said.

Tushar Mehta, the solicitor general, disagreed. He pointed out that the issue of self-regulation was already pending before the court in a petition filed by the Jamiat Ulema-i-Hind on the “communalisation” of the Tablighi Jamaat gathering in Delhi.

Justice Chandrachud persisted. “Look at the obvious deficiency of self-regulation. The self-regulatory body tells us that not every channel is our member...If there was a viable method of self-regulating, we would not have to step in in the first place.”

The court then directed Mehta to file an affidavit on how the government will ensure a “vibrant” piece of self-regulation, because ultimately, the government has to “give them the teeth”.

The next hearing in the matter is listed for September 21.

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