Judicial miscarriage to journalism in India

Image: National Herald

By Aabid Mushtaq

“All the papers that matter live off their advertisements, and the advertisers exercise an indirect censorship over news” ― George Orwell.

When we talk about free society, we talk of freedom and progress. When we talk about accountability and transparency, we talk about democracy. And when we talk about democracy, we talk of the freedom of speech and press as one of its foundational principles. The media houses work as a check to any arbitrary action of the government. How democracy lives and dies is directly dependent on neutral and free media. The role of media becomes more crucial when the conscience of power does not seem to settle on truth.

The right to freedom of speech and expression is a constitutionally guaranteed right under Article 19(1) (a) of the Indian constitution, though it confers certain reasonable restrictions on its use. On its violation, one could move the Supreme Court for its revival and protection. The current ruling dispensation in India is undermining democracy by its strenuous strategic media policies and legislations, which a journalist has either to follow or risk his life and career.

In Kashmir, dissenting voices are suppressed by the state with the help of arbitrary laws. These laws do not have any locus standi, but they are put in practice because there is no sign of judicial scrutiny of the laws. In the last couple of years, J&K has witnessed a grave usurpation and censorship of media: from Masrat Zehra to Peerzada Ashiq, from Gowhar Geelani to Fahad Shah to the sealing of Kashmir Times office. The repression by state authorities is terrible not only for a progressive democratic country but for the personal liberties of the media persons.

There is always a view before the law that a life comes before the profession or that a profession is incidental to life. Such moves by the authorities must be viewed through the lens of the most important and derivative force of fundamental rights, i.e., Right to life and personal liberty (Article 21). According to Justice Bhagwati, Article 21 embodies a constitutional value of supreme importance in a democratic society. Justice Krishna Iyer has characterized Article 21 as the procedural magna carta protective of life and liberty. This right has been held the most organic and progressive provision in our living constitution, the foundation of our laws. In the case of Shantisar Builders Vs. Narayan Khimalal Totame, this right creates an environment for a human being, which allows him to grow in all aspects – physical, mental, and intellectual.

The violation of right to life and liberty occurs when these arbitrary laws are not interpreted by the courts, thereby allowing their enforcement. It is the suo motto duty of a court to see whether any legislation is violative of fundamental rights, especially where public interest is involved. The New Media Policy 2020 in J&K intends to vet news, conferring powers on the authorities to decide what is and what isn’t news. The policy is silent on which matter shall be regarded as anti-national or unethical, leaving all discretion in the hands of the government authorities to curb the free flow of ideas and expressions. In 2019-2020, media continued to be at the receiving end of intimidation and harassment by the authorities, with several incidents of beating and thrashing of journalists. Besides physical assaults, journalists also faced reprisals for filing stories on contentious issues.

The impediment in providing advertisements to newspaper is yet another art of the government to strip the media houses financially. This reduces media houses to mouthpieces of the government, rather than a space for free opinions and investigative journalism.

The lack of judicial intervention in the executive and legislative affairs has diluted most of the main tenets of democracy in India, freedom of press being an important one. What remains of a democracy when freedom of the press is trivialized by the state and when the news must pass through a police test? It turns the state into an authoritarian one.

In the case of Maneka Gandhi Vs. Union of India, Justice Bhagwati opined, “Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup.” If the state had adhered to such an ethos, there wouldn’t have been such a surge in violence against the media personnel and media houses. Hence, there is an urgent need for the judiciary to revisit its constitutional powers to protect the citizens from the arbitrary and violent infringement of rights.

In most parts of India, the current situation with the advent of farmers’ protest establishes the signs of undeclared emergency, as we see in the grave intimidation and arrest of journalists, reminding one of what had happened during Indira Gandhi-declared Emergency. The point of comparison is how much censorship was imposed on media and how many journalists were arrested during the Emergency. It is also striking to notice how the judiciary had endorsed such a dark period in India and how it is facilitating one now.

The recent arrests and intimidation of independent journalists is worrisome and disturbing because there is hardly any judicial intervention. The states have stooped to such a level that they have arrested journalists and intimidated them for reporting on some of the most crucial issues facing our society. For example, Siddique Kappan of Malappuram and his collogues were reporting on the Hathras rape incident in Uttar Pradesh. They were arrested and booked under the Unlawful Activities (Prevention) Act and charged with sedition. Munnawar Faruqui, a comedian, was jailed for jokes that he had not made; Sharjeel Imam and Umar Khalid were interrogated and booked for sedition. The behavior of judiciary has further eroded the scope for freedom of speech and expression and free media. Kunal Kamra sums the malady plaguing our society: “Should powerful people and institutions continue to show an inability to tolerate rebuke or criticism, we would be reduced to a country of incarcerated artists and flourishing lapdogs.”

The recent intimidation and arrest of journalists have damaged fair reporting of farmer protests. Even the opposition ministers face the brunt of such blackout. During last few years, at least 198 serious attacks were recorded on reporters between 2014 to 2019; of these, 36 happened in 2019 alone. Six of these are recent, having occurred during the protests over the Citizenship Amendment Act, 2019.

If democracy denotes government of the people, by the people and for the people, every citizen must be able to take part in the democratic process. Free and open discussion on public matters is absolutely essential for the survival of democracy. The judicial system plays an important role in upholding and protecting the rights of the citizens. If judiciary sheds its duties and lets other organs of the state to usurp its role, democracy and constitutionalism will die a slow death.

Aabid Mushtaq studies law at the School of Law, University of Kashmir and can be reached at aabiddar299@gmail.com. He tweets @AabidRafiqa.


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