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Press freedom and the Indian judiciary

Illustration by Moshtari Hilal. Via Unbias The News. Used with permission.

Illustration by Moshtari Hilal. Via Unbias The News. Used with permission.

This article was originally written by Ankita Anand and  published in Unbias The News. An edited version is republished by Global Voices as part of a content sharing agreement.

Article 19 of the Indian Constitution ensures the right to freedom of opinion and expression for every citizen. But threats to the press continue despite this constitutional guarantee.

India ranks 142 out of 180 on the Press Freedom Index. Threats to press freedom can come from many quarters: they could be from politicians or businesses; they could come in the form of police cases or as defamation lawsuits asking for damages worth millions.

Journalists have been unfairly charged with defamation, sedition, publishing fake news, and “acts prejudicial to the maintenance of harmony between different groups.” Oftentimes the charges are ultimately disproved, but with aspects like detainment, interrogation and raids, even the process becomes the punishment.

In conflict areas, these problems get multiplied. Safina Nabi, a journalist in Kashmir shared: “Earlier there was some leniency. Everybody knew we were journalists and we were supposed to do our job. We were allowed to move around in sensitive places. After 2019 [when Article 370 of the Indian Constitution that gave the state special status was abrogated], the whole scenario changed.”

All this makes it seem that the fight for press freedom is doomed from the start. But before the media gives in to that sense of resignation, it has to remember that over the years there have been victories for media persons in India as well. Courts have played a significant part in this. While the judiciary has also imposed restrictions on press freedom, there are multiple cases when it upheld the right to speech and freedom of expression.

Restriction on print equals restriction on the press

As early as 1972, the Supreme Court of India announced:

It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read.

The context was the media group Bennett Coleman & Co. challenging the government’s limitations on the import of newsprint. The case was especially significant because, in 1971, India had been in a state of emergency, with the president having the power to suspend fundamental rights, during the Indo-Pakistan war. In 1975, the country was to be in a similar situation when the then Prime Minister Indira Gandhi imposed an emergency again and the press faced censorship.

Quoting the landmark judgment, lawyer-researcher Praavita Kashyap remarked:

It was a judgement – during a time of intense oppression or attempts at oppression – that really upheld the right of the press and said how important it was to our society, and that restrictions on it were violative of the Constitution.

Press Freedom. Illustration via Wikimedia Commons by The-movement-2000. CC BY-SA 4.0.

Press Freedom. Illustration via Wikimedia Commons by The-movement-2000. CC BY-SA 4.0.

Overturning other courts’ judgements in favour of the press

Sometimes protecting this freedom has entailed the higher judiciary overturning the judgements of lower courts. In March 2021, a city civil court stopped over forty media houses from publishing allegedly defamatory statements about a member of the ruling Bharatiya Janta Party.

But the high court of the state of Karnataka went in the opposing direction, reinforcing the voters’ rights to have complete information about their candidates. The bench comprising two judges stated:

The defendants (media outlets) are not prevented from publishing or telecasting any news item which is not defamatory in their opinion. In case the plaintiff (Tejasvi Surya) is aggrieved by any such publication or telecast of any news item he may approach the Election Commission of India.

The Bombay High Court also underlined public interest in 2018 when rejecting a 2017 lower court order that asked the media not to report on a case because it was “sensational.”

“People shouldn’t be afraid of their government. Governments should be afraid of their people.”

The principles . . . show a citizen has a right to criticise or comment upon the measures undertaken by the government and its functionaries . . .

This remark was part of the court order that the Supreme Court, the highest court in India, issued in June 2021 when saying a journalist cannot be arrested on sedition charges for criticism of the government.

Sedition laws also still exist in Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey. The UK, which brought this law to India during colonisation, has dropped it, as have Scotland, South Korea and Indonesia.

When two television channels had to fight sedition charges filed by the police, the Supreme Court stood in favour of the media, saying, in May 2021: “It is time we define the limits of sedition.” The judges saw the imposed charges as an attempt to “muzzle media freedom.”

Such judgments reinforced the rights of reporters during the pandemic, when India saw the highest number of press freedom violations in the world under Prime Minister Narendra Modi. The press was attacked legally, verbally and physically for reporting on the establishment’s culpability during COVID-19.

The judiciary also protected press freedom when one publication attacked another. A leading media group in India, Dainik Jagran, attacked fact-checking organisation Alt News for publishing the article “Dainik Jagaran’s misleading reports portray mass burials in Prayagaraj haven’t risen due to COVID.” The court expressed, in November 2021:

In such a case . . . there is no reason for the Court to intervene at such an initial stage and stifle the ever-widening contours of free speech, as developed by the Higher Courts. Freedom of speech becomes all the more significant when the subject matter is a matter of larger public concern.

Safeguarding sources

The protection of the press is not limited to reporters but also the sources that help them get the story. In October 2021, with respect to the spyware Pegasus, the court said:

Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.

The court also linked privacy concerns with freedom of the press.

When one duty impinges upon another

The ease — and the cost — of running a media group or a publication also determines how free a country’s media is. The apex court took this into account in 1985 when it ruled that, though the state has the right to levy taxes on publications, they must be within reasonable limits. It went on to add: “The authors of the articles which are published in newspapers have to be critical of the actions of Government in order to expose its weaknesses… Governments naturally take recourse to suppress newspapers publishing such articles in different ways.”

These instances go on to show that, no matter how hard the fight for press freedom might be, one cannot give up because, even in the toughest of times, there have been wins for journalists and publications in India.

The court judgements above are testament to the fact that the judiciary recognises the role the media plays in keeping a democracy afloat. The Indian media needs to remember these precedents and stand together whenever there is an onslaught even against a single journalist. Like Nobel Prize winning journalist Maria Ressa states:

We need to seriously come together and fight because an attack on one is an attack on all . . . Power and bullies will never stop if you give in to them.

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