Sunday, September 08, 2013

Infirm Laws and Negotiated Freedoms



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”.
[2] The Indian Constitution: Cornerstone of a Nation, p 74.
[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.
[5]  The Madras Maintenance of Public Safety Act, 1949.
[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.
[9] Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, p 49.
[10] Rajeev Dhavan, Only the Good News: On the Law of the Press in India, p 122.
[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.”
[16] Austin, Working a Democratic Constitution, p 53.
[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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