NDTV is in the news again after a serious indictment from the market regulator-SEBI for financial irregularities. On previous occasions as well, NDTV has been in the dock for cases of similar nature including serious tax evasion cases. Having failed in the court of law on merits, NDTV has used each of these instances to paint a picture of imperilled press freedom.

In solidifying this narrative, NDTV has joined hands with a mélange of senior lawyers, journalists and intellectuals who are the ‘conscience keepers’ of India’s liberalism.
The ‘Establishment’ has proven to be the best ally for NDTV. They are always on the lookout for every stray incident which can be turned into an issue of violation of the principle of free speech. They don’t blink the eye before rushing to the support of those who claim to be a victim of the state’s ‘onslaught’ on free speech. Such is the might of this club that they can even present a passionate defence of anti-India slogans.

In NDTV’s case, they came up with a novel defence by finding fault in a fair investigation and presented right to press freedom as a defence for illegality and corruption. As usual, such arguments are bolstered by the narrative on how India has become an intolerant nation and there is a state of ‘undeclared emergency’.

Fali S Nariman (read-‘the Establishment’), while addressing a press conference on “NDTV Raids and Press Freedom” (June 9), pointed out the legal perils of CBI’s raids while presenting a staunch argument for preserving the idea of freedom of the press. His basic claims were simple: First, he characterized the CBI raids as an assault on the freedom of the press in India; Second, Mr Nariman strongly criticized the conduct of CBI in this case for being violative of the procedural safeguards prescribed by the Constitution with regard to search and seizure. In addition to the legal submissions, Mr Nariman also ventured to speculate about the political vendetta behind the investigation into NDTV’s financial dealings.

Coming from a doyen of the bar, these comments do appear to be worthy of serious consideration. However, unfortunately, both points surprisingly miss the wood for the trees and end up doing a disservice to the concept of fairness only which he is advocating. The recent orders against NDTV confirming its financial improprieties is certainly going to be embarrassing Mr Nariman who had put up such a strong defence for the media group.

For all luminaries who came in support of NDTV, the ITAT order must have come as a huge setback. The ITAT clearly points out the culpability of the top brass at NDTV including Prannoy Roy who interestingly remarked during the press conference that he had “never touched black money in his entire life.” Although the conclusions drawn by investigating bodies and adjudicating authorities may be damning, there has been a sustained campaign of victimhood by NDTV and its supporters. The underlying message is that the government of the day is on the lookout for opportunities to weaken every democratic institution, be it thwarting any criticism by the media by way of vicious and unwarranted investigations, undermining constitutional obligations or coercing judicial bodies.

It is not strange to come across the metaphor of “undeclared emergency” being frequently used in the by the ‘eminent’ guardians of free speech. However, to those who can recall the dark phase for press freedom during the emergency and even the government’s attempt to close down Indian Express post-emergency, the investigation into NDTV’s financial deals by the government cannot be termed as an onslaught on press freedom.

The key question is not whether there the dilution of the principle of press freedom is permissible or not. If such a question is posed, then the CBI or the ITAT have come forward with a detailed explanation at every instance which clearly reflects that they are investigations or the adjudication is being done by the book.

Instead, the question must be: Can platitudes of freedom of press be allowed to legitimize illegality or corruption. If such a question is posed, even the most passionate defender of press freedom will not be in a position to make a case for NDTV. The numerous charges against NDTV are serious enough to require a thorough investigation. At this point, it is appropriate to highlight the concerns raised by Mr. Nariman regarding the CBI raids and the procedural violations.

He says:

“My legal submission is that in the case of an allegation by any government or governmental agency including the CBI of criminal wrong-doing against the press or the media (which enjoys constitutionally guaranteed press freedom), whenever the CBI files a criminal complaint (an FIR) not of its own but only on the basis of information supplied by a third party, it must in furtherance of press freedom guaranteed under Article 19(1)(a), first inquire from the owners/promoters of the company running the press or the media concerned what it has to say in the matter before conducting raids on its premises and on-premises of those in charge of the press or media and before filing a criminal complaint on the basis of such information. This it must do, not as a matter of courtesy or favour, but as a matter of constitutional obligation.”

Mr Nariman has sought to make this into a case of non-observance of procedural fairness during a criminal investigation in general and search and seizure activities in particular. Mr Nariman’s argument regarding procedural fairness is indicative of a desperate attempt to cloak this issue as an assault on the press freedom as opposed to the idea of the rule of law. On the other hand, the CBI and ITAT have come out with a reasoned approach following the ‘rule of scrupulous exactitude’ in their conduct. By consciously overlooking the remarkable professionalism of investigating agencies, Nariman has made an attempt to come up with a masterful lesson regarding constitutional obligations which is not likely to ever pass muster in the courts.

While alarmist predictions of ‘undeclared emergency’ are often made, unfortunately, they forget to make a critical distinction. The alarmists of today desperately need a lesson in history. In those days, the press freedom was curbed in a ruthless manner whereby the building premises of the media house could be taken over by the government. The police raids were frequently employed as tools of intimidation. Therefore, there can be no parallel that can be drawn by defenders of NDTV invoking the era of emergency.

On the other hand, it is important to highlight that the government has not ordered any investigation into the NDTV’s reportage despite serious concerns raised over its several programs except one incident. Also, there is no evidence of ‘unnecessary’ or ‘capricious’ oversight by any government agency over the NDTV’s news broadcast. Furthermore, there is no charge of surveillance on any of the owners of NDTV. In addition to the above, the government subscription of advertisements on NDTV has not been discontinued. Even, the Cabinet Ministers have made numerous appearances on the channel. The CBI raids or other pending litigation activities have in no way affected the news broadcast by the channel. The point and scope of enquiry against NDTV is not at all linked to any activity related to their reportage. And most importantly, no media house or even NDTV can hint at any kind of censorship of content. Clearly, the charges of imperilling press freedom are out of place and unwarranted in NDTV’s case. The channel has continued to run without any encumbrance from the end of the government.

In such a scenario, it is unfortunate that the halo of journalism and principles of press freedom are being misused to play the victim card by NDTV. This is especially so when there are serious charges of illegality in a series of transactions involving the top brass at NDTV. Therefore, the legal submissions of Mr Nariman regarding procedural safeguards are not going to be of much assistance since the investigations do not threaten NDTV to conduct their daily news broadcast.

In light of the above, the voices defending NDTV do need to reflect whether there has been any real assault on press freedom by the government. It is extremely important for all those who value press freedom to come forward and not allow this principle to become a defence for corruption. As a people, we have two options- accept the narrative of ‘undeclared emergency’ which is being used as a shield against a fair investigation, or affirm that we will not allow the idea of press freedom to be reduced as a defence of corruption. The choice is ours.