Case Summary and Outcome

The High Court in Kerala, India ruled that an official Commission of Inquiry can be ordered into the nature of material broadcast on a current affairs news channel. The director of the channel had been charged with criminal offences after an audio clip was broadcast on the channel which involved sexual material between an unidentified woman and a government minister. The Court ruled that the involvement of the government minister elevated the matter to the status of “public importance” and that the sexual content could impact public order which enabled the State Government to appoint a Commission of Inquiry into the broadcast of the audio clip.

Facts

Sajan Varghese is the director of an Indian news and current affairs television channel which, on March 26, 2017, aired an audio clip of a conversation between a State Minister and an unidentified woman. The conversation included sexual connotations and the Minister resigned as a result of the broadcast. Varghese was charged with two criminal offences under section 120B of the Indian Penal Code and section 67A of the Information Technology Act, 2000. Section 120B of the Penal Code addresses criminal conspiracy and section 67A of the Information Technology Act criminalizes the publishing or transmitting of material containing a sexually explicit act. The woman in the audio clip filed a private complaint against the Minister for stalking under sections 354D of the Penal Code, and communicating grossly offensive material through a computer in terms of section 66 of the Information Technology Act. The State Government appointed a Commission of Inquiry to investigate the incidents arising from the broadcast of the audio clip.

Decision Overview

Suresh Kumar J. delivered the judgment of the High Court of Kerala. The central issues before the Court was whether the setting up of the Commission of Inquiry by the State Government was beyond the scope of its jurisdiction and whether the matter was of public importance.

Varghese argued that the State Government was not empowered to appoint a Commission of Inquiry as that power lay only with the Central Government because the matter dealt with forms of communication – a matter that was solely within the jurisdiction of the Central Government’s power to initiate Commissions of Inquiry (para. 3). Varghese also argued that the conversation in the audio clip had “nothing to do with the discharge of the official functions of the Minister” and should therefore not be the subject of an official Commission of Inquiry (para. 3).

The State Attorney argued that the substance of the Commission of Inquiry was of public importance and the Commission could therefore be appointed by the State Government and not necessarily the Central Government.

Kumar examined the nature of the right to freedom of expression enjoyed by the media under article 19(1)(a) of the Constitution. He noted that the right is not absolute and does “not include the right to tell the people what they do not want to hear” (para. 5).

Kumar held that the Commission of Inquiry related to the contents of the audio clip, the manner in which it was obtained, the way in which it was broadcast and the right, if any, of the channel to broadcast such audio clips (para. 5). He held that as the audio clip concerned sexual connotations it was “something which would disturb or affect the tempo of the life of the community or the tranquility of the society”, and so was a matter that concerned public order (para. 5). Accordingly, by finding that the substance of the matter concerned public order and public importance and therefore not merely matters concerning communication, Kumar held that the matter was one which fell within the jurisdiction of the State Government and that therefore the Commission of Inquiry was permissible.