Among the grounds on which exceptions could be made to the free speech right in India, are the security of the state, the territorial integrity of the nation, public order and decency, contempt of court and rather implausibly, friendly relations with a foreign state. As originally adopted, the Indian Constitution guaranteed free speech as an unfettered right. But the various grounds on which “reasonable restrictions” could be imposed were introduced through the first amendment, each with its own specific history.
Right through India’s history though, vigilante action has been the more serious threat to free speech, rather than State action or the legal process. Where state agencies act against free speech, they often do so without appropriate judicial sanction, or under the cloak of special laws enacted to deal with supposedly extraordinary threats to national security.
This has resulted, in concert with judicial infirmities, in a failure to evolve consistent standards in the application of “reasonable restrictions” on free speech. Vigilante actions against journalists and the media have gone by and large unpunished, so that a culture of impunity exists.
Judicial precedents exist, though they are far from being consistently applied, for assessing the legality of restraints on free speech on five specific grounds: sedition, defamation, contempt of court, official secrets and hate speech.
As a collective body, journalists are most under threat in the regions of endemic conflict, such as Kashmir, the North-Eastern states, and the Maoist-insurgency areas in the central forested plains of India.(1)
In recent times, these threats have been manifest in the May 2011 advisory sent out to all media organisations in the North-Eastern Indian state of Manipur, warning against the publication or broadcast of material “directly or indirectly in support of the unlawful/ illegal activities of various organisations”.(2)
The multiple pressures that journalists in Manipur face have led to four mass closures of the press in the last two years. The most recent such protest came in January this year, after the arrest of an editor in the state capital of Imphal, in what appeared to be a police “sting” operation.(3) Just a few months before, threats and counter-threats from rival underground factions had compelled Manipur's newspapers to shut down for three days in protest at the increasingly insecure environment for journalists.(4)
Laxman Choudhary, a reporter for the daily Sambad in the eastern Indian state of Orissa, was arrested on 21 September 2009 on charges of “waging war against the state”. This followed the discovery of a parcel of Maoist literature addressed to him, in the possession of a bus conductor in the hill district of Gajapati in the state. Media reports in Orissa indicated that Choudhary was a popular figure in his home district and had acquired a reputation for exposing police corruption. Orissa’s chief minister was on record within a week of Choudhary’s arrest, sharply criticising the effort to muzzle the press. Yet it was not until 4 December that Choudhary was released on bail, ordered by the High Court of Orissa. He continues to face charges of sedition.(5)
The neighbouring state of Chattisgarh, where the southern districts have been enveloped in the Maoist insurgency since long, has been a challenging terrain for journalists. Journalists here are often threatened, restrained from reporting on major security operations and work under constant threat of legal action under a draconian anti-insurgency law enacted in 2005.(6)
There have been cases of the use of sedition laws against journalists even in regions where no perceptible threat of insurgent violence exists. The law concerned in all these matters – section 124A of the Indian Penal Code – was in a significant ruling in 1958 by the Allahabad High Court (in the northern Indian state of Uttar Pradesh) held violative of the fundamental rights provisions of the Indian Constitution. Since then, however, the Supreme Court, taking on this case in appeal with a number of others with similar scope, held that section 124A was indeed lawful, though only when invoked to deal with imminent threats to peace and public order. Any wider definition, the country’s highest court held, which made legitimate criticism of governance processes a criminal offence, would be violative of the fundamental rights as guaranteed by the Constitution.(7)
Despite this firmly established judicial position, police and other agencies in India have been using the law on sedition with seeming lack of discrimination -- actions taken with the knowledge that the cases involved will never go through the full process of trial, but would serve the expedient function of silencing critical commentary by the media.
In June 2008, the commissioner of police in the city of Ahmedabad, in the western state of Gujarat, brought charges of sedition and criminal conspiracy against two journalists and India’s largest English newspaper, the Times of India.
The criminal complaint lodged by O.P. Mathur named Bharat Desai, resident editor of the Ahmedabad edition of the Times, and Prashant Dayal, a reporter with the same newspaper. This followed a series of reports between May 28 and 31 in the Ahmedabad edition of the Times, noting serious complaints against Mathur and indicating that the inconclusive inquiries that had followed, made him ineligible for the top police post in the city. The two journalists and the publisher of the Ahmedabad edition of the Times were granted bail pending the full hearing of the case.(8) Though the case has since lapsed into a zone of neglect, it has by no means been dropped.
K.K. Shahina, a reporter with the weekly news magazine Tehelka, was charged with criminal conspiracy to intimidate witnesses, after a story of hers appeared to cast doubt at the prosecution of a prominent Islamic cleric and political figure on terrorism charges in December 2010.
Shahina’s story appeared in an issue of the campaigning journal and website Tehelka in December 2010. It was based on interviews with key witnesses cited in the case made by police in Karnataka state in southern India against Abdul Nasar Mahdani, an Islamic cleric who heads the Peoples’ Democratic Party, active mainly in the neighbouring state of Kerala. Mahdani has been arrested and charged by Karnataka police for conspiracy to detonate a series of low-intensity bomb blasts in the state capital city of Bengaluru, hub of India’s information technology industry, in July 2008.
Shahina’s story cited several of the witnesses named by the Karnataka police as saying that their testimony has been misinterpreted or distorted in making out the charges against Mahdani.
A fine example of investigative reporting in short, was transformed into the basis for criminal prosecution against the journalist who had done the hard work to bring this abuse of power to light.(9)
Security agencies including the police, tend to be more lenient in cases involving the larger and better organised among India’s media organisations. The same cannot be said for the many small publications that take up civil rights issues, especially where they involve the Adivasi population (i.e., India’s indigenous communities) and the Dalits, (i.e., those traditionally disadvantaged by the country’s elaborate caste hierarchy).
On 2 January this year, police in the state of Maharashtra arrested Sudhir Dhawale, in the eastern district of Wardha. Dhawale had visited the neighbouring district of Gondia to attend a convention on Adivasi and Dalit literature. He was on his way back to his home in the state capital of Mumbai, when he was arrested at the Wardha railway station.(10)
Dhawale, editor of a magazine of dissenting opinion titled Vidrohi, and a freelance contributor to numerous other publications, was booked under provisions of the law dealing with sedition and waging war against the State. According to police accounts, the basis for his arrest was the interrogation of a purported leader of the banned Communist Party of India (Maoist), taken into custody a few days prior.
Two other cases of journalists being charged with sedition and related offences in recent times need to be taken into account:
• Lenin Kumar, the editor of a quarterly magazine Nishan, was arrested in December 2008 in Bhubaneswar, state capital of Orissa, after his book “Dharma Nare Kandhamalare Raktara Banya” (Kandhamal’s River of Blood in the Name of Religion) was published. An account of the persecution and terror faced by the state’s Adivasi and Dalit christians, the publication was held to be provocative and intended to disturb the peace;
• E. Rati Rao, the Vice-President of a civil society organisation, People's Union for Civil Liberties in the state of Karnataka, was issued a sedition notice on 26 February 2010 by the police for bringing out an in-house bulletin in the local language. Though the publication of the bulletin, meant for circulation among PUCL members and activists, was discontinued in September 2007, the police found some critical articles about extra-judicial killings published in earlier issues to be sufficient basis to prosecute for sedition.
In June this year, the Indian Institute of Planning and Management (IIPM) based in Delhi, filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of INR 500 million.(11) Headed by an individual named Arindam Chaudhuri, the IIPM is an establishment that conducts training programmes and a graduate course in business management. It has a high-profile media presence since it has an annual advertising budget estimated at INR 300 million, probably the highest among all educational institutions in India. But there has been widespread public scepticism over the quality of its academic courses.
Caravan had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit names the author, the publisher Penguin Books India and the internet search portal Google India as respondents, other than Caravan, accusing them of “grave harrassment and injury”.
The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam, over 2000 kilometres away. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.
At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article has since failed to turn up in search operations conducted through the Google portal.
This case study vividly illustrates the syndrome that the legal scholar and senior Supreme Court counsel Rajeev Dhavan has highlighted: that “in most civil defamation cases, the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.(12)
India continues to treat defamation as a criminal offence. A recent case is that of T.P. Nandakumar, a magazine editor in the southern Indian state of Kerala, taken into custody on 3 July 2010, following a complaint lodged by an Indian businessman resident in the Gulf emirate of Abu Dhabi. He was released on bail the following day.
Nandakumar, who edits a weekly magazine called Crime, was under court injunction not to publish any material on the complainant. His arrest followed the posting of an article pertaining to the same individual on the magazine website.
Crime magazine has earned a wide readership in recent years by carrying a number of stories with significant political impact. A story that it featured on the Minister for Education and Culture in the state, led to libel action under applicable civil law.
Media leaders in India have long argued the case for decriminalising the offence of defamation. In a 1995 ruling, the Supreme Court declined to order prior restraint on a magazine’s right to publish a convicted serial killer’s memoirs, despite urgent pleadings by a number of top officials.(13) Prison officials in the city of Chennai in the southern state of Tamil Nadu argued that the memoirs if authentic, were written in violation of rules and their publication would hence be illegal. If inauthentic, then the purported memoirs constituted a serious violation of the right to privacy of the convict. They pleaded that there was also a clear intent in the purported memoirs to defame top police and prison officials in the state.
Without examining the question of the authenticity of the memoirs, the court ruled in this case – popularly known as the “Auto Shanker case” -- that the right to privacy was necessarily subject to certain limitations where compelling public interest was involved. Since several supposedly private details of the individual’s life had already emerged in the public domain as a consequence of his trial for murder, a memoir that provided a different perspective on known facts could not be deemed a violation of privacy. No individual had the authority to stop another from recording his or her account of any sequence of events. And public officials could not argue the case for prior restraint on the grounds that their image and reputation would be damaged by the revelations of a convicted criminal. Adequate remedies, if required, would be available to them post facto.
In April 2003 and the following month, J. Jayalalitha, the chief minister of the state of Tamil Nadu, filed a series of criminal defamation cases against The Hindu, a venerable English-language newspaper publishing from the state capital of Chennai (formerly Madras) since 1878. An intent to intimidate and silence was evident. Though the count is still a little confused since the lawsuits were filed in precipitate haste and with little regard for precision or legal logic, it is estimated that upto 17 defamation cases were launched against The Hindu in the matter of a few days.
The Hindu went through a top editorial change in June 2003, but seemingly to keep the pressure on, the Tamil Nadu legislative assembly in November that year ordered the jailing of five among the newspaper’s top editorial functionaries for 15 days, on accusations of a breach of privilege of the house. Articles published in the newspaper, allegedly, brought the legislative assembly into “contempt” and "cast a slur on the chief minister's actions.”
This particular arrest order was halted by the Supreme Court soon afterwards. The defamation cases though, remained. In December, The Hindu filed suit in the Supreme Court, arguing that criminal defamation was an outdated concept, fundamentally opposed to the right to free speech guaranteed by article 19 of the Indian Constitution.(14)
This was an opportunity for an authoritative judicial determination on the application of criminal law in matters involving the purported offence of defamation. But as in several other instances when basic questions are required to be sorted out in judicial deliberations, this opportunity was lost. Jayalalitha in May 2004, following general elections in the state which led to her losing power, announced her decision to withdraw all cases against the media, including those against The Hindu. In September 2004, the government of Tamil Nadu state, now under a different leadership, filed an affidavit in the Supreme Court, with full documentary assurance that the 125 defamation cases filed against newspapers and magazines – including The Hindu – had been withdrawn from the court of the Sessions Judge, Chennai and the Madras High Court.(15)
Exceptions are available under the criminal law of defamation on grounds of “public interest” and “good faith”. The scope of these legal provisions and their application in specific cases though, remain under-explored. Inconsistency of principle among the main actors – from government officials to the judiciary to the owners and top managers among India’s media – is clearly a major obstacle to free speech being accepted as an inviolable right that all citizens enjoy.
Official Secrets Act
On May 17 this year, Tarakant Dwivedi, alias Akela, a reporter with Mumbai city’s top-selling morning tabloid, Midday, was arrested under India’s Official Secrets Act, after he reported on poor security conditions in the western metropolis’ main railway terminus.(16)
The Chhatrapati Shivaji Terminus (or CST, referred to in common local parlance as VT), is a hub of both suburban and long-distance railway traffic, and was among the first targets to be hit in the terrorist attack on Mumbai that began on 26 November 2008. Soon afterwards, the Government Railway Police (GRP), which is tasked with maintaining security at all major facilities of the Indian Railways, procured an array of sophisticated weaponry to deal with future contingencies involving terrorist attacks. On 28 June 2010, the daily Mumbai Mirror newspaper published a report under Akela’s byline, headlined “Leaks in CST armoury put new anti-terror arms under threat”. The report documented how newly procured equipment was being stored in a room with a leaky roof, making their efficacy in an emergency situation highly questionable.
Akela’s arrest, itself conducted under highly suspicious circumstances, is believed to have been direct retribution for this reporting.
Iftikhar Gilani, the bureau chief in Delhi for the Kashmir Times, a newspaper published from Jammu, the winter capital of the state of Jammu and Kashmir, was arrested in June 2002 and charged with serious violations of the Official Secrets Act. Documents found in his possession, that constituted the basis of the charge, were all freely available through various websites dealing with defence and strategic issues. Gilani was detained for seven months and subject to severe torture and mistreatment. This was seen to be a direct retribution for the political activities of his father-in-law, Syed Ali Shah Gilani, who is the leader of the pro-Pakistan political coalition in Kashmir. Iftikhar Gilani himself, is believed to have little to do with active politics. He was eventually released from imprisonment in January 2003.(17)
In a column published in 2006, Anish Trivedi, argued that the dismal performance of many of India’s institutions of governance was a consequence of the policy of affirmative action, which assured disadvantaged communities representation in the staffing of all these institutions. Mumbai city police soon afterwards took up the prosecution of this matter on the basis of a complaint received from aggrieved private citizens. On 28 January this year, a trial court in Mumbai sentenced Trivedi to a six-month term of imprisonment and a fine of INR 25,000.
Trivedi had, even before the formal institution of charges, apologised unconditionally in the same columns where his comment appeared and retracted all the observations made.(18)
The editor and two reporters of Andhra Jyoti, a Telugu-language daily published from Hyderabad and various other cities of Andhra Pradesh state in India, were arrested in June 2009, under a law preventing insults to the dignity of people of lower ritual status in the Indian caste hierarchy. K. Srinivas, the editor of the daily, and two reporters, Kumar Vamshi and N. Srinivas, were picked up from their office by the police, who had no warrant and merely said that they had evidence of an offence under the concerned law.
A few days before, the office of the Andhra Jyoti in Hyderabad and two other cities of Andhra Pradesh, had been attacked by activists of a community-based organisation. The attack, which caused serious injuries to staff members and extensive damage to property, was ostensibly in retaliation for an editorial in the newspaper that criticised the organisation’s leader over his political stances.
Reliable observers then averred that even if the editorial was critical of the individual, there was nothing in it that could be construed as an insult to the community. Following this incident, employees of Andhra Jyoti were joined by various journalists’ unions in a protest demonstration to demand action against those responsible for the attack. The complaint that formed the basis for the arrest of the three journalists arose from certain acts that allegedly took place during this demonstration. An effigy of the organisation’s leader was beaten with shoes by the demonstrators, and later set on fire.
The three journalists were released on bail after a day in detention. Their case, like several others of a similar nature, remains undecided so far.(19)
Aside from a specific law that protects those of low ritual status in India’s caste hierarchy (the Dalits) and indigenous communities (Adivasis) from insult in spoken, written and printed word, the offence of hate speech is covered under article 153A of the Indian Penal Code. There have been few authoritative determinations of the application of this law in matters involving the media. In the case of M.F. Husain, the celebrated painter forced into exile after his canvases representing various figures from the Hindu religious pantheon drew a spate of lawsuits by organised political forces, the Delhi High Court has ruled that intent to cause offence is a key test. The May 2008 judgment by a single-judge bench of the Delhi High Court held that no such intent was manifest in the impugned canvases.
Unfortunately, the authoritative ruling by the Delhi High Court in a spate of criminal cases filed against Husain under article 153A and other clauses of the penal code, failed to deter numerous other litigants. And other courts proved unwilling to follow the judicial determinations laid down.
If the touchstone of possible violence and public disorder were to be used to judge when article 153A would be applicable, then a case that literally called out for prosecution involved Bal Thackeray, leader of the Shiv Sena, a major political party in the state of Maharashtra. In 1993, Thackeray used the party newspaper Saamna to exhort his cadre into a ten-day long rampage of death and destruction in the city of Mumbai (then Bombay). There was little ambiguity here, nor was there any effort to disavow responsibility for the hundreds of deaths that followed, mostly of members of the Muslim religious minority.
In 1998, Thackeray and his party were held directly responsible for the violence by the B.N. Srikrishna Commission of Inquiry, set up shortly after the riots. A petition moved by certain eminent citizens of Bombay had meanwhile come up for hearing and in July 2000, a judicial order was issued seeking Thackeray’s arrest and prosecution. After a series of retaliatory riots by Shiv Sena cadre, the state government finally secured Thackeray’s submission to the law. But the case against him was held void soon afterwards, because it was barred by the statute of limitations.
Contempt of court
In the southern state of Karnataka, 30 journalists from 11 newspapers were charged in March 2003 with contempt of court for reporting on an alleged sex scandal involving three judges from the High Court. The Karnataka High Court ruled that each journalist would be tried separately, but the Supreme Court temporarily suspended proceedings on 18 November.(20) It was learnt that the Chief Justice of India had in consultation with brother judges, informally requested an investigation into the truth element in the stories published by the press. However, the investigating judges – either because of their own diffidence, or because the public had been scared into silence by the threat of contempt action – failed to turn up any firm findings. The Supreme Court shortly afterwards ordered the matter closed.(21)
It remains to be established whether the Supreme Court was acting in defence of the right of free speech, or seeking to quell a matter that could potentially have enveloped the judicial apparatus in scandal. In part because of the indecisive judicial outcome, and perhaps because “truth” as a defence did not work in the case at hand, the power to convict for contempt has been a constant deterrent to the exercise of the free speech right in matters involving the higher judiciary.
In September 2007, three journalists and the publisher of the afternoon daily, Midday, in the national capital of Delhi were convicted on charges of contempt and sentenced to four months of rigorous imprisonment.(22) Irfan Khan, M.K. Tayal, S.K. Akhtar and Vitusha Oberoi were found guilty of contempt by the Delhi High Court, for a series of investigative articles and cartoons published in Midday on the Indian Supreme Court’s orders shutting down small commercial establishments and shops in notified residential areas of Delhi.
The articles and the cartoons in Midday purported to show that Y.K. Sabharwal, then the Chief Justice of India, may have had a conflict of interests in this matter, since his two sons were involved in business dealings with large developers of commercial malls in Delhi. Values in these properties reportedly appreciated after the Supreme Court issued its orders shutting down commercial establishments in residential areas.
The Midday articles were reviewed after publication and found to be factual and accurate by a group of lawyers in Delhi called the Campaign on Judicial Accountability. J.S. Verma, Chief Justice of India for an eight-month term between 1997 and 1998, found the articles credible enough to warrant the rescinding of all judicial orders issued in the matter. Significant public figures such as a former attorney general of India and a former chairman of the Press Council of India endorsed the view that contempt charges against the media should follow, rather than precede an investigation into the allegations against the judge.
Very little action has followed since. The free speech right remains hostage to conflicting judicial interpretations and uncertain ethical commitments by the officers of the state. Media managers and journalists’ organisations have not yet organised themselves to mount a consistent challenge that will establish a framework of rules for the responsible and socially committed exercise of the right.
NOTES AND REFERENCES
1. The challenges facing journalism in Kashmir over recent years of political unrest have been recorded in two situation reports by the International Federation of Journalists, issued in September 2009 and November 2010. These are available at the following links: http://asiapacific.ifj.org/en/articles/blaming-the-messenger-media-under-pressure-in-jammu-and-kashmir and http://asiapacific.ifj.org/assets/docs/126/192/2fe407e-36e8fc0.pdf.
2. See the coverage in the Imphal Free Press, an English-language daily published from Manipur’s state capital, extracted on July 3 from: http://ifp.co.in/imphal-free-press-full-story.php?newsid=17246.
3. The details of this incident are available in the following statement issued by the IFJ: http://asiapacific.ifj.org/en/articles/ifj-shocked-at-arrest-of-manipur-journalist-in-police-sting.
4. Aside from January 2011, mass closures of the Manipur press have occurred in November 2008 and July and October 2010. Details available in the following statements issued by the IFJ: http://asiapacific.ifj.org/en/articles/manipur-journalists-shut-down-to-protest-threats-from-armed-groups; http://asiapacific.ifj.org/en/articles/manipur-media-shuts-down-to-protest-threats-against-journalist; and http://asiapacific.ifj.org/en/articles/outrage-over-murder-of-young-journalist-in-india.
5. For further details, see: http://asiapacific.ifj.org/en/articles/ifj-welcomes-release-of-two-jailed-journalists-in-india
6. For recent descriptions of the difficulties faced by journalists in Chhattisgarh, see: http://asiapacific.ifj.org/en/articles/violence-against-journalists-continues-in-chhattisgarh-state; http://asiapacific.ifj.org/en/articles/journalists-free-movement-restricted-in-chhattisgarh-state; and http://asiapacific.ifj.org/en/articles/ifj-condemns-death-threats-against-journalists-in-india-s-chhattisgarh-state.
7. Kedar Nath Singh vs State Of Bihar decided 20 January 1962; Equivalent citations: 1962 AIR 955; 1962 SCR Supl. (2) 769; Bench: Sinha, B P. See the discussion in Siddharth Narain, “’Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India”, Economic and Political Weekly, February 19, 2011, pp 33-37 (www.epw.in).
8. Details available at: http://asiapacific.ifj.org/en/articles/ifj-alarmed-at-sedition-charges-in-india.
9. For full details, please see: http://asiapacific.ifj.org/en/articles/ifj-condemns-criminal-charges-against-magazine-reporter-in-india.
11. The details of the lawsuit were explained in a note from the Caravan editors in its issue of July 2011, available at this writing at: http://www.caravanmagazine.in/Story/1001/IIPM-s-Rs500-million-lawsuit-against--em-The-Caravan--em-.html.
12. Rajeev Dhavan, Publish and be Damned: Censorship and Intolerance in India, Tulika Books, Delhi, 2010, page 112.
13. R. Rajagopal vs State Of Tamil Nadu; equivalent citations: 1995 AIR 264, 1994 SCC (6) 632. Bench: B.P. Jeevan Reddy and S.C. Sen, JJ.
14. The essential details of the cases filed against The Hindu are available here: http://www.cpj.org/2004/03/attacks-on-the-press-2003-india.php.
15. Details available here: http://www.achrweb.org/reports/india/AR05/theme-01-FP.htm
17. See Iftikhar Gilani’s record of this entire sequence of events in My Days in Prison, Penguin Books India, Delhi, 2005.
21. See Rajeev Dhavan, Publish and Be Damned, as cited in footnote 10, pages 90-1.