Infirm Laws and Negotiated Freedoms
Sukumar Muralidharan
Paper presented at National Law University, Delhi consultation on
Criminalisation
of Speech and the Defence of Journalists
7 September
2013
Several among
those gathered here have known at first hand that despite all the constitutional
assurances available here in India, laws with overbroad provisions add to institutional
weaknesses of the judicial apparatus, leading very often to active violations
of the right to free speech. There have been several cases of journalists being
charged with any, or several, of a number of offences they are liable to, given
their professional calling of reporting news they believe to be in public
interest. Yet very few among these cases have been taken to the stage of
prosecution and a final judicial determination of rights and wrongs. This is
good in that it spares the individuals the prolonged agony of the trial process,
but bad in that it results in the absence of clear judicial direction and the
lack of an evolved jurisprudence.
In the
circumstances, a culture of enforcing silence through legal action or judicial
injunction has flourished. And this is an option open to both state agencies
and private entities. Then there are the constant hazards of censorship through
mob violence -- perpetrated usually by non-state actors -- though often with
the tacit backing of state agencies. Finally, we have in existence a climate of
absolute impunity, which ensures that there is just no manner of deterrent
against the ultimate form of censorship, which is the killing of media workers.
The context in which the political
and judicial doctrines of free speech have evolved – or failed to evolve – has
been fairly well described. To recapitulate some of the main events in this
story: the press as Dr B.R. Ambedkar
famously stated during the Constituent Assembly debates, would have no specific
charter of rights under Indian law. Its rights and entitlements are no
different from those of any citizen and are enshrined in the fundamental rights
clauses of the Indian Constitution and in particular, article 19, which is about
the freedom of expression, of commerce, of association and much else.
The fundamental rights section was
discussed over several days during the Constituent Assembly debates. And there
was sufficient awareness then of its centrality in the constitutional scheme
being evolved. As one of the speakers then put it, article 13 of the draft
constitution, which later became article 19, was truly the “charter of our
liberties” and “probably the most important article in the whole Draft
Constitution”.
Yet, as a number of members pointed
out, the draft provisions they had before them, did not adequately reflect the
range of aspirations of the Indian people. Indeed, there were suspicions that
the bureaucracy – an inheritance of the colonial raj interested in order more than liberty -- had introduced a
number of restrictions on the fundamental rights first set down in a 1947 draft
of the constitution.[1]
The overhanging trauma of the killings and mass human migrations that had
occurred with the partition of India, did not dilute this insistence on a broad
charter of liberties, rather than one severely qualified by the fear of
disorder.
Granville Austin describes this last
phase of debate as a triumph of “liberty” over “bureaucracy”.[2]
Two notable drafting changes reflected this success in pushing back against
bureaucratic resistance. First, the term “sedition” was removed from the
conditions under which the fundamental right to free speech could be
restricted. It just did not seem right in the aftermath of freedom, that the robust
criticism of established authority -- a duty that Mahatma Gandhi had enjoined
as a basic commitment of citizenship – should be stigmatised as a criminal act.
A second important change was that every restriction imposed on the fundamental
rights, would be qualified by a test of “reasonableness”. This introduced a
test akin to that of “due process”, where judicial review would be applicable.[3]
Finally, the “restrictions” clause as
applied to free speech, spelt out that as a constitutionally safeguarded
fundamental right, it would not limit the application of any existing law that
related to “libel, slander, defamation, contempt of Court or any matter which
offends against decency or morality or which undermines the security of, or
tends to overthrow, the State."[4]
Neither would it impede the enactment of any law that required the free speech
right to respect these red lines.
Challenges were quick to emerge in
the political and judicial domains. From the left of the political spectrum came
Romesh Thapar, editor of the Communist
Party journal Crossroads which was
banned from circulation in Madras state under a state statute.[5] In deciding
the case of Romesh Thapar versus the
State of Madras, the Supreme Court held that the restrictions imposed on Crossroads were unsustainable, even on
the grounds of the exceptions granted to the free speech right. It was beyond
doubt in the Court’s opinion, that “freedom of speech and expression includes
freedom of propagation of ideas, and that freedom is ensured by the freedom of
circulation”. The restrictions imposed on the journal on grounds of “public
security” did not satisfy the tests prescribed under the law. Indeed, said the
majority on the Supreme Court bench: “Our attention has not been drawn to any
definition of the expression ‘public safety’, nor does it appear that the words
have acquired any technical signification as words of art”.[6]
The majority on the Supreme
Court found it noteworthy that the word “sedition” – freely applied in the call
to ban the newspaper -- had in Constituent Assembly debates, been omitted with
deliberate intent from the final text. As the five-judge majority read it, this
underlined that “criticism of Government exciting disaffection or bad feelings
towards it is not to be regarded as a justifying ground for restricting the
freedom of expression and of the press, unless it is such as to undermine the
security of or tend to overthrow the State”.
On the basis of article 13 of
the Constitution which required the deletion of all existing laws that did not
meet the standards of protection held out in the fundamental rights chapter, the
Supreme Court held as unconstitutional the specific provision of the Madras
(Maintenance of Public Order) Act under which the ban on Crossroads was enforced.[7]
The case of Brij Bhushan v State of Delhi which represented
a challenge from the right to the first amendment, was decided by the same
bench by a majority of five with one dissent. At issue here was the order by
the administration in the state of Delhi requiring that Organiser, a weekly magazine of extreme chauvinist dispositions,
subject itself to pre-censorship. In the deeply fraught aftermath of
independence and partition, the espousal of a virulently partisan position by
the journal was found to be undermining the administrative effort to restore
order. Some of its content was also thought to be deeply offensive to the
fledgling government in the neighbouring state of Pakistan, whose cooperation
was then considered necessary for redressing the deep wounds of partition.
In Brij Bhushan, a judgment rendered the same day as Romesh Thapar, the Supreme Court held
that there was no constitutional basis for prior censorship of newspaper
content.
These two judgments and a few
others which impinged on the capacity to introduce affirmative action for those
disadvantaged by custom and tradition, were the immediate trigger for the first
amendments to the Constitution, introduced by Prime Minister Nehru in the Lok
Sabha in May 1951. The amendment bill inserted the rather broad term “in the
interests of” a variety of ends, which would necessitate “reasonable
restrictions” on free speech. Among these, “friendly relations with a foreign
state” was introduced as a condition, specifically to counteract the Brij Bhushan judgment. The first
amendment also removed the more specific requirements that a speech act should
“undermine” or “tend to overthrow” the State, to attract the prohibitions of
law.[8]
Soon afterwards, Parliament
passed the Press (Objectionable Material) Act of 1951 which provided for
seizure of printed material and forfeiture of assets of newspapers that fell
foul of the law. In contrast to the general formulations employed in the first
amendment bill, this act laid down very specific conditions in which harsh
punitive measures could be employed, including material being printed that
could incite the withholding of food and essential commodities and services to
any section of the people, induce acts of insubordination or disloyalty by
members of the armed forces, or contribute to any criminal act such as
extortion or blackmail, murder or mob violence.[9] In what
constitutional scholar Granville Austin has described as a “curious affair”,
this act was amended several times before being repealed in 1957. There is no
known record of any newspaper being arraigned under this law, nor of any
serious challenge to its validity on constitutional grounds. There has been
reportedly one case where some of the more draconian provisions of the law were
upheld by a High Court. And in the ambience of righteous indignation at what Prime
Minister Nehru called some of the “wretched rags” that had appeared on the
publishing scene, a number of state governments enacted equally coercive laws
that endowed them with the power to enforce compliance in the press, when
required.[10]
The mood was clearly shifting by this
time. When bitter political and social discord engulfed Punjab in 1957 over
language policy, a number of orders were issued under one of the special state
laws enacted in the aftermath of the first amendment: the Punjab Special Powers
(Press) Act, prohibiting the publication of content that could aggravate the
tension between Punjabi and Hindi speakers, and also preventing the entry into
the territory of publications even remotely seen to be carrying similar
content.
In the case that came up soon
afterwards, the Supreme Court held that the key change introduced by the first
amendment in the clause restricting free speech – “in the interest of” – made
all the difference. “Although free propagation and interchange of views are
ordinarily in social interest, circumstances may arise when social interest in
public order is greater and the imposition of reasonable restrictions on the
freedom of speech and expression and on the freedom of carrying on trade or
business becomes imperative”.
The circumstances in which the impugned
law was passed were relevant. So too were the “extent and urgency of the evil
it sought to remedy”. Perhaps most important of all, was the enormous power
wielded by the “Press”[11]
with its “modern facilities of quick circulation”, which created the very real
risk of abuse. Taking into account all these factors, the Supreme Court held
that the “restrictions imposed by the impugned Act must be held to be
reasonable restrictions under the Articles (of the Constitution).”[12]
In 1962, the Supreme Court pronounced
in Kedar Nath Singh versus the State of
Bihar, that an earlier ruling by the Allahabad High Court holding the
sedition clause of the Indian Penal Code (section 124A) in violation of the
fundamental rights provisions, was valid only upto a point. The constitutional utility
of the clause it ruled, was retrieved by a consideration of “the history of
sedition”. In any event, its application was to be limited “to acts
involving intention or tendency to create disorder, or disturbance of law and
order; or incitement to violence”.[13]
Here we see a
much looser standard in the application of this most draconian of clauses. In
just over ten years, the Supreme Court had moved from an insistence that there
should be a demonstrable intent to undermine or overthrow the State – which would
be the point at which all rights would vanish since authority of the State is
their ultimate guarantor -- – to merely requiring a tendency to create disorder
or disturbance.
By this time,
“liberty” was in tumultuous retreat and the voices of order had begun
dominating the discourse. The border conflict with China in 1962 inflicted a
deep wound on the nationalist psyche. And it did not help that the Punjabi suba and Dravida movements in the north
and the deep south were just around the same time, beginning to cause spasms of
extreme anxiety among the central leadership over the possibility of the whole
constitutional order unraveling.
The Sixteenth
Amendment to the Constitution was moved on 18 January 1963, when the country
was still under a state of “Emergency” following the Chinese border incursions
of October and November. In his “statement on objects and reasons”, Law
Minister A.K. Sen described the purpose of the bill as giving effect to a recommendation
by the National Integration Council , that article 19 be suitably amended
to provide adequate powers to the Union for “the preservation and maintenance”
of its “integrity and sovereignty”.[14]
In the space of just over a decade, the “Union” stood transformed. From being a
body that would enshrine the fundamental rights of those who – as the preamble
to the Constitution put it – chose to constitute India into a sovereign
republic, it had by political and legislative process, mutated into an organism
that could potentially extinguish the sovereign rights of citizens in
maintaining itself.
The years
that followed were unhappy for the Indian nationalist spirit. In December 1963,
civil disturbances broke out in Kashmir over the disappearance of a sacred
relic from the Hazratbal shrine in Srinagar. Within days, violent reprisals
began against the minority Hindu community in East Pakistan, provoking in turn,
retaliatory attacks on Muslims in Calcutta and other parts of West Bengal. Very
soon, communal riots had engulfed a vast swathe of territory in India,
representing the worst crisis of national reconciliation since the injuries of
partition.
In May 1964 the
death of a Prime Minister seen as much as a parent as a political leader, added
to the drift in the national conscience. A further wound came from successive
monsoon failures in 1965 and 1966 and agrarian catastrophes which raised the
prospect of rampant inflation and civil unrest in most of the country.
It was in
this mood of heightened national anxiety that the Unlawful
Activities (Prevention) Act (UAPA) was passed into law in 1967, its purpose
being to operationalise the philosophical shift that the Sixteenth Amendment
had signalled.[15]
For the
constitutional scholar and commentator A.G. Noorani, the UAPA was a law “that
spared the heretic only if he remained silent”, one that eminently deserved to
be struck down by the Supreme Court. For Granville Austin, it was
“undemocratic” and “intellectually wrong-headed”.[16] But
far from being struck down, the UAPA was only embellished by no fewer than five
amendments each of which added to the range of special powers held by the State,
the last of which was in December 2008, shortly after the 26 November terrorist
attacks in the city of Mumbai.
Particular
attention must be drawn towards sections of the UAPA which would have the
immediate impact of putting anybody in a conflict situation at serious hazard
of legal action. Section 13 says that anybody who actively takes part in or
commits an “unlawful activity” as defined by the law, or “advocates, abets,
advises or incites the commission” of such an activity, would be liable for
prosecution and imprisonment for upto seven years. Section 22 lays out a
similar broad demarcation of offences.
A general inference seems warranted
by this history of slow erosion in the constitutional assurances of the free
speech right: first off, that this is a negotiated rather than
institutionalised right. And it is a right that is enjoyed only by those who
are fortunate enough to be invited into the small tent where the negotiations
take place. This inference seems warranted by a curiosity in the history of
constitutional debates over press freedom: invariably only those matters reach
a stage of authoritative judicial determination where free speech is a
convenient camouflage for the commercial calculations of the media industry.
We can cite three concrete instances that
support this inference.
First, the protective legislation on
journalists’ wages and working conditions has been consistently ignored by the
media industry. This goes back to March 1955 when the Indian parliament took up
a bill to extend the Industrial Disputes Act – passed into law in 1948 and
designed to protect the industrial working class from arbitrary dismissal and
other abuses – to journalists. Political support for the legislation was
overwhelming. A more positive
affirmation of journalists’ rights came with the passage of the Working
Journalists’ Act (WJA) later in 1955. Again, Parliament united across all
partisan divides in approving the bill. The WJA was introduced in the Lok Sabha
by Information Minister B.V. Keskar, with the following remarks:
In some ways,
the Bill itself is not a major Bill. It is a small Bill. .. But, it is
important.. that we are trying to apply it to an industry which up to this time
was not able to get all these benefits, a piece of legislation, which, for the
better working of our Press, for the better security of our journalists and
therefore for a better, I would say, freedom of the press in this country ….
This was one of the few occasions when
journalists’ job security was spoken of as an ingredient of the policy mix
safeguarding press freedom. Perhaps the most important of the WJA provisions,
was its empowerment of a statutory wage fixing machinery. A Wage Board
constituted under the act came up with a comprehensive award mid-1957. It was a
contentious process, with employer representatives on at least two vital points
voting against the chairman and the journalists’ representatives: the
classification of newspaper groups on the basis of gross revenue; and the
fixation of entire wage scales rather than just minimum levels.
Soon after the wage scales for
journalists were fixed, the newspaper industry went in appeal to the Supreme
Court, arguing that the WJA was ultra
vires of the Constitution in being an intrusion into the fundamental rights
to free speech and commerce. At issue particularly, was the potential havoc
that the statutory wage award for journalists could cause to their commercial
fortunes.
In a ruling rendered in 1958, the
Supreme Court held that the WJA itself was not in breach of fundamental rights
provisions of the Constitution, since it did not have the explicit purpose of
abridging the right of free speech, nor could a measure of welfare protection
for industrial workers be held to be an intrusion into the right of commerce.
But the wage award that had been worked out under the act was in contravention
of the act itself, since it did not take into account the capacity of the
newspaper establishments to bear the financial burden imposed.[17]
Part of the reason why the wage board
was unable to arrive at a fair determination of the capacity to pay, was the
obduracy of the newspaper industry about maintaining its financial parameters
as closely guarded secrets. Then owned almost entirely by private companies, newspapers
were under no legal obligation on financial disclosure. That pattern of
behaviour has continued to this day. The most recent wage board for journalists
and newspaper workers – the G.R. Majithia wage board – submitted its report in
December 2010. Yet again, the implementation of the award has been held up by
the newspaper industry which is capitalising on the ambiguous legacy of the
1958 ruling. And yet again, the chairman of the wage board, in remarks after
the exercise was concluded, spoke of a certain failure to obtain anything like
a cooperative response to his various inquiries on financial parameters from
the newspaper industry.
Another key moment in the history of
press regulation in India comes in 1962, when in the case of Sakal Newspapers v Union of India, the
Supreme Court struck down the Daily Newspapers (Price and Page) Order of 1960, which imposed the
norm that newspapers should be priced at a level proportionate to the number of
pages it carries. This might seem today like a clumsy and quixotic effort at
controlling the press, but its purpose was then widely appreciated to be
legitimate. Since advertising revenue was the key to newspaper viability and
the bigger newspapers – particularly those published in the English language –
had a preemptive claim to the aggregate of advertising expenditure in the
economy, they also retained the competitive power to drive lesser players out
of business through predatory pricing strategies. The price-page schedule was a
regulatory device that enjoyed fairly wide endorsement, particularly from the
small and medium newspaper segment and the Indian language press. In striking
down the measure, the Supreme Court ruled that the Constitution provided no
mandate for restricting one category of right (to commerce) in order to better
protect another (to free speech).
The implications of this
judgment resonate to this day, when we have seen a sequence of ruthless price
wars between the major newspaper groups and a retail price for newspapers that
devalues the news and information function and puts up a formidable barrier to
entry for newer players.
A further landmark comes in 1972,
when the Supreme Court struck down a newsprint rationing scheme introduced in a
situation of extreme scarcity, as a protective measure for small and medium
newspapers. In handing down its judgment in the case of Bennett Coleman and Co Ltd v Union of India, the Supreme Court
ruled that the “reasonable restrictions” allowed under the Constitution did not
permit the abridgment of the rights of one category of citizen – the larger
newspapers – in order to better protect the rights of another (the small and
medium newspapers).
Of special significance in this
context is the lone dissenting judgment delivered from a bench of five, by
Justice K.K. Mathew, who explicitly conceded the possibility of a conflict
between the public interest and the profit motivations of the press. Using a
“theory of the freedom of speech” that essentially viewed it in terms of twin
entitlements -- to speak and be informed – Justice Mathew observed that “the
distribution of newsprint for maintenance of (newspaper) circulation at its
highest possible level .. (would).. only advance and enrich that freedom”. As a
constitutional principle, “freedom of the press” was “no higher than the
freedom of speech of a citizen”. The problem at hand was one of bringing “all
ideas into the market (to) make the freedom of speech a live one having its
roots in reality”. In pursuit of this ideal, it was necessary as a first step,
to recognise “that the right of expression is somewhat thin if it can be
exercised only on the sufferance of the managers of the leading newspapers”.
In a 1982 ruling in the case of Express Newspapers and Others v Union of
India, the Supreme Court urged a reconsideration of duties imposed on the
import of newsprint, on the grounds that these interfered with the right to
free speech, as embodied in the press. To the argument that the “public
interest” of enhancing government revenue was served by the levy of the customs
duty, the Court responded that article 19 did not allow for any restrictions on
grounds of “public interest”. Indeed, it argued, the “public interest” served
by the newspaper industry in meeting the civic need for information was impeded
by the levy of a duty on newsprint imports.
Clearly, there are various
difficulties in squaring these judicial determinations with the need for
maintaining an open media environment, in which all citizens would be equally
entitled to exercise their right to free speech. Rather than being solidly
institutionalised rights, these are rights that are negotiated between the
State’s will to establish its writ and the media industry’s drive towards
maximising its profits. And negotiated freedoms, it should be recognised, are
liable to be revoked at any time. In terms of the realities of journalism at
the local level, we see this tense dialectic at work, especially in regions of
conflict and insurgency.
Case
studies:
Sahil Maqbool, a Kashmiri journalist working in
Srinagar, was arrested in September 2004, accused of spying for an enemy power and
charged under clauses of law relating to “sedition” and “waging war against the
State”. He was released in January 2008 on bail. The evidence cited against him
includes a visit to Pakistan in 2001 for a story on the status of Kashmiris who
had crossed over since the insurgency in the region began. Later, in 2004, he
was found in possession of a letter from his uncle in Rawalpindi, inviting him
for a marriage in the family. The probable reason for his arrest could be
certain investigative stories that he worked on, on corruption and official
malfeasance. Maqbool’s freedom today must be regarded a negotiated freedom
since the judiciary has not yet taken up his case and settled it authoritatively.
Iftikhar Gilani, a Kashmiri journalist based in
Delhi, was arrested in June 2002 and held for seven months on charges of
espionage and violating the Official Secrets Act. The basis of his arrest was
the discovery of certain documents in his possession, relating to the men and materiel of the Indian Army. This
information was then in the public domain and freely available on various
websites. India’s Defence Ministry initially made a submission in the trial
court hearing his case that the documents were indeed, classified information.
It later changed this plea and filed an affidavit that stated the reverse. He
was discharged after seven months in detention. The probable reason for his
arrest was a vendetta against a near relative who is a senior leader of
dissident political formation, the Hurriyat, in Kashmir. Gilani’s is again
a negotiated freedom since it required the special benediction of the Defence
Ministry, which only changed a patently absurd plea under immense public
pressure from journalists and their unions in Delhi.
Iftikhar was confined to his home and
his family was harassed on the day in February 2013 when Afzal Guru was
executed in secrecy in Tihar jail.
Uncertainties in conflict zones
In parts of
India where insurgent activities have been causing serious security anxieties,
media practitioners often have to negotiate with local authorities on the
latitude they are allowed in reporting on activities deemed inimical to
“national sovereignty and integrity”. These negotiations do occasionally
win them a fair degree of freedom: for example, newspapers
in Kashmir often carry statements issued by banned organisations such as the
Jammu and Kashmir Liberation Front (JKLF) and the Hizb-ul Mujahedin (HuM). A
further illustration comes from May 2009, when state-wide civil disturbances
broke out over what seemed to be the murder of two women in the town of Shopian
and news channels carried live a media conference by dissident leader Ali Shah
Geelani, then supposedly under house arrest.
This was a
negotiated freedom, since local cable operators are not under India’s
broadcasting law, allowed news and current affairs broadcasts. But when the trouble spread, this negotiated
freedom was revoked with little prior warning or ceremony. As the agitation
over the Shopian deaths spiraled out of control, local channels were called in
and told that their sources of finance were known to the administration and
could be the basis for criminal prosecution. They were directed to stop news
broadcasts entirely. The decision was partly diluted a
month later, when all local channels were asked to confine their news
broadcasts to 15 minutes everyday – the same 15 minute time slot for all.
From June 2
onwards – three days after the event – journalists from Srinagar seeking to go
to Shopian were actively restrained, turned back and even attacked, by security
forces.
On 8 August
2013, the National Investigation Agency (a body with a wide mandate in the
investigation of terrorism crimes) wrote to the editor of a daily newspaper in
Imphal, Manipur, asking for the
original image published in the paper in 2010 and the identity of the
photographer.
An editor in
Manipur, authorised by the journalists’ union to negotiate on issues of safety
with underground groups, was arrested in December 2010 in a “sting” operation
in which the police impersonated members of a banned underground group.
On 2 September
2013, Manipur’s journalists went on a two-day strike, paralysing all media
activity in the state, to protest the multiple pressures they work under.
From Assam, a Wide Diversity of Legal and Moral Issues
Parag Kumar Das, editor of Asomiya Pratidin and well-known writer in Assamese was
killed in May 1996 in broad daylight in Guwahati, the same day that a
new government took office in the state. He was an outspoken advocate of the
rights to cultural autonomy of the Assamese people hence possibly a known
offender under sections 13 and 39 of the UAPA, though he was not known to have
touched a firearm or actively advocated violence. Charges were filed in this
case in 2001, following a new government assuming office in Assam. All the
accused were members of the insurgent outfit ULFA that had surrendered to
Indian security forces – locally they were known as the surrendered ULFA or
“SULFA” elements. Of four accused, two were already
deceased at the time charges were filed. One was killed in mob violence in 2003
while out on bail. The sole accused to go to trial was acquitted in July 2009.
There was then widespread outrage among Assam’s journalists and
human rights defenders that several key witnesses had not been summoned, that
key evidence had been tampered with, and that the case had been constructed to
ensure a guilty verdict was a remote possibility.
There have
been cases from Assam in which the killing of journalists have not been quite
so easy to attribute to their work. For instance, Jagajit Saikia, correspondent for Assamese daily Amar
Asom was killed on 22
November 2008 in Kokrajhar soon after serial bombing in the district
headquarters town on 29 October, which were blamed on the insurgent outfit, National
Democratic Front of Bodoland (NDFB). This organisation had entered into a
ceasefire agreement with Indian government in 2005 but was known to be divided
over this course of action. Saikia according to Assam police, was known to have
been a fund-raiser for the NDFB, and may have fallen victim to the factional
struggle within the organisation. The Journalists’
Union of Assam was sceptical about the police account, since they had no basis
to believe that Saikia was engaged in contacts with the NDFB that went beyond
allowable professional limits.
Anil Mozumdar, Executive Editor of the Assamese
language daily Aaji, was shot dead near his home in Guwahati, 24 March
2009. Aside from his journalism, Mozumdar was also known to be involved in a serious
business dispute, merging with a marital separation, between a major politician
in the state and his spouse. He is believed to have stepped far
out of line in his coverage of this issue – and to have benefited financially.
His real estate interests in Guwahati city also were significant.
Other case studies in impunity
Among cases
where journalists are attacked with intent to kill in retaliation for their
work, a clear recent instance is that of
Umesh Rajput from Raipur in
Chhattisgarh, murdered in January 2011 for exposing a case of medical
negligence in which a poor adivasi woman was deprived of her eyesight. Soon
afterwards, in Rewa in the neighbouring state of Madhya Pradesh, a reporter Rajesh Mishra, was
murdered after writing a string of articles on schools owned by a local
notable.
Other modes of in which negotiated freedoms are revoked for journalists
The denial of
free movement is a hazard that journalists in Kashmir often face. In times of
civil unrest – and sometimes even as a preventive measure – local authorities
are quick to impose curfew in the entire region. Journalists are entitled to
receive curfew passes from local administrations, wherever they work. But even
when these are granted, they are rarely honoured by the security personnel –
including central paramilitary force personnel – who man the numerous
checkposts that dot the valley.
Police official
in Chhattisgarh directing combing operations against Maoist insurgents were caught
issuing explicit instructions in 2009 that journalists who are seen coming in
the way be dealt with, with maximum force.
In Chhattisgarh
again, there was a serious incident in March 2011, when journalists
accompanying a relief convoy to villages that had been razed in a police
operation, were blocked and assaulted.
Then there is
the all too frequent denial of essential tools of the trade: such as internet
connectivity and mobile phone network, most recently imposed in Kashmir in
February 2013, when the former militant Afzal Guru was executed in secrecy in
Delhi’s Tihar Jail.
In the
north-east, newsprint being transported into the landlocked state of Manipur is
often subject to numerous levies by militant groups operating along the route.
This raises cost of newspaper production considerably in the state.
The denial of
professional recognition or credentials for journalists is a feature of those
who work for the small and medium newspaper segment all across the country.
Even the larger newspaper deny any manner of formal recognition to those who
work for them in the smaller district towns. These individuals are expected to
harvest ads for the newspaper. Above a certain threshold, they would be
entitled to keep a small percentage of the ad revenue they collect as a fee.
Journalism
has, in line with other pursuits in the recent past, become increasing
casualised as a form of employment. The journalist’s freedom is in this manner,
negotiated with the media owner and subject to revocation at the latter’s
pleasure.
[1] As one of the speakers (Kengal
Hanumanthaiah, later to be Chief Minister of Mysore state and Union Railway
Minister) put it on 2 December 1948: “For the last sixty and odd years during
which the freedom movement was taking shape, we made innumerable speeches and
sacrifices in order to win the fundamental rights that are incorporated in this
article. But, the point of view of many members here as well as the opinion of
some people outside is that these fundamental rights have been so much
curtailed that their original flavour is lost”.
[3] Ibid. Curiously, by what seems obvious oversight, “reasonableness” was not
set down for any restriction that might be introduced in the free speech right.
[4] Effectively, this clause negated article 13 of
the Constitution as adopted on 26 November 1949, which required that all laws
in violation of the provisions of the Constitution as it stood then would stand
repealed.
[6] Romesh
Thapar vs The State Of Madras, 26 May, 1950; Equivalent citations: 1950 AIR
124, 1950 SCR 594. With appropriate apologies for
seeming to trivialise the argument, the bench asked if an
epidemic of reckless driving that caused traffic accidents; or an epidemic
outbreak of disease, which also endangered public safety, would warrant similar
restraints on free speech.
[7] Another principle was upheld in the
ruling: of the Supreme Court as the final guarantor of the fundamental rights.
Romesh Thapar had then taken his plea for judicial remedy not to the High Court
of Madras state which would under normal principles of judicial procedure, have
had original jurisdiction in the matter, but to the Supreme Court. And the
Supreme Court found this to be reasonable in terms of procedure. Even if a
lower court had concurrent jurisdiction, the Supreme Court could not, as “the protector and
guarantor of fundamental rights ... refuse to entertain applications seeking
protection against infringements of such rights”. Arguments of inappropriate
choice of forum, drawn mainly from U.S. jurisprudence by advocates appearing
for the respondents, the Supreme Court held, were not quite on point since the
constitutional schema in the U.S. was quite different.
[8] The Constitution (First Amendment) Bill, 1951,
introduced 10 May 1951; extracted from: http://indiacode.nic.in/coiweb/amend/amend1.htm.
[11] Ever reference to the “Press” as an entity
is capitalised in this judgment, almost as a matter of underlining its
seeming power.
[12] Virendra
vs The State Of Punjab, 6 September,
1957: Equivalent citations: 1957 AIR 896, 1958 SCR 308. The serious sense of
threat perception recognised in this judgment from the “power of the press” –
which was then as now, subject to a twenty-four hour cycle of news gathering,
verification and dissemination – offers a faint foretaste of the sense of
absolute panic that occasionally seems to grip the law and order authorities in
matters involving the rapid spread of information over the internet today (not
to mention the mobile telephone network).
[13] Kedar Nath Singh v Union of India; 1962
AIR 955, 1962 SCR Supl. (2) 769
[14] The Constitution (Sixteenth Amendment)
Act, 1963; extracted from: http://indiacode.nic.in/coiweb/amend/amend16.htm
[15] The Statement of Objects and
Reasons of the UAPA reads as follows: “Pursuant to the acceptance by Government of a
unanimous recommendation of the Committee on National Integration and
Regionalism appointed by the National Integration Council, the Constitution
(Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose,
by law, reasonable restrictions in the interests of the sovereignty and integrity
of India, on the- (i) freedom of speech and expression; (ii) right to assemble
peaceably and without arms; and (iii) right to form associations or unions...
The object of this Bill is to make powers available for dealing with activities
directed against the integrity and sovereignty of India.”
[17] Express
Newspapers (Pvt) Ltd and Another versus Union of India and Others, equivalent citations: AIR 1958 SC 578,
(1961) ILLJ 339 SC, (1964) ILLJ 9 SC
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