A section of lawyers and opinion leaders have said that they are in favour of the government ban on the BBC documentary India’s Daughter , based on the Nirbhaya gang-rape case. The documentary, they say, could affect the right of the convict in his pending appeal against death penalty before the Supreme Court.
But media law expert and Supreme Court advocate Madhavi Goradia Divan feels that is no reason for the government to order a ban. “Obviously, the interview was taken consensually… with the written consent of the inmate,” she said. “It is the locus standi of the convict to seek restraining orders from court, saying the interview would prejudice the outcome of his case.”
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Even as the government got YouTube to block URLs of the documentary, the very constitutionality of its powers to block any information online is under Supreme Court scanner. A Bench led by Justice J. Chelameswar recently reserved for final orders a batch of public interest petitions in the Shreya Singhal vs. Union of India case, challenging various provisions of the Information Technology Act, 2000. These sections include 69A, which deals with the government’s power to block URLs, and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
Interestingly, the government, in its written note to the Supreme Court, conceded that “any person” or member of the public could approach the High Court under writ jurisdiction if “he feels that his right to know/read is abrogated by any blocking order.” But this right to challenge, it says, is not a “guaranteed right.”
Besides, a 1994 Supreme Court judgment by Justice B.P. Jeevan Reddy in the R. Rajagopal vs. State of Tamil Nadu case has already held that any publication becomes “unobjectionable” if it was based upon public records, including court records. That case dealt with the question of restraint on the publication of serial killer Auto Shankar’s autobiography.
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“Once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by the press and media among others,” the judgment read.
The Nirbhaya case details are part of court records. However, Justice Reddy, in the nature of an opinion, had urged that an exception be carved out to this rule in the “interests of decency” if the case concerned a victim of a sexual assault. He observed that such a victim should not be subjected to further indignity of her name and the incident being publicised in the press and media.