No Country For Free Press

One activity hasn’t ceased even while the rest of India shut down. The targeting of journalists. From criminal defamation to inciting communal disharmony to sedition…journalists have been on the receiving end of all kinds of charges, prompting them to seek cover at police stations, magistrate’s courts and even the Supreme Court.

Among the most recent incidents is a first information report filed against Rahul Zori, a journalist with TV9, who reported on alleged irregularities in the running of a camp for migrant workers in Maharashtra. The local tehsildar has countered Zori’s report with a defamation suit.

Last month, Republic TV Managing Editor Arnab Goswami knocked on the Supreme Court’s doors to seek relief against multiple cases filed against him for allegedly inciting communal disharmony through misinformation on his prime time show.

Just days before that, Siddharth Varadarajan, editor of The Wire, was granted anticipatory bail by the Allahabad High Court after the Uttar Pradesh Police registered an FIR against him for a factual error in a story on the news website on state Chief Minister Yogi Adityanath. Yet it was not defamation, the state alleged. The FIR cited sections pertaining to cheating by personation by using computer resource and publishing obscene material in electronic form under the Information Technology Act, 2000, disobedience to order duly promulgated by public servant and statements conducting to public mischief under the Indian Penal Code and punishment for false warning under the Disaster Management Act.

In Gujarat, Dhaval Patel, editor of a Gujarat-based news website, was charged with sedition for a story that suggested the state’s chief minister was about to be replaced. Patel was booked by the Gujarat Police under Section 124(a) of the Indian Penal Code that lays down the punishment for sedition and also under the Disaster Management Act.

In Jammu and Kashmir in April, a case under Unlawful Activities Prevention Act (UAPA)—an anti-terror law—was registered by the Cyber Police Station (Kashmir) against journalist Masrat Zahra over allegations of “uploading anti-national posts with criminal intention”. The police in its statement said the posts had the potential to provoke the public to disturb the law and order.

In another FIR, journalist Peerzada Ashiq, a reporter with The Hindu newspaper, was questioned over a report about an encounter in Shopian in Kashmir. The police said the details reflected in the report were factually incorrect and published without seeking a confirmation from the district authorities. Neither the journalist nor the newspaper were named in the FIR.

While courts will determine the accuracy of these allegations, that journalistic work is being prosecuted under criminal law has raised serious concerns within the fraternity and outside.

The Editors Guild of India expressed shock at the case against Zahra under the UAPA, a law usually used against terror suspects, and said it was an indirect way of intimidating journalists in the rest of the country as well. Similarly, the actions against Varadarajan were termed intimidation and the arrest of Dhaval Patel was condemned.

From Defamation To Sedition?

Not long ago, the trend was to slap journalists and media companies with defamation cases. Large companies resorted to civil suits claiming several hundred crores of rupees in damages. Political parties and governments often used the criminal defamation route. This has escalated in recent times to charges under sedition, UAPA and now, during the time of the pandemic, to the Disaster Management Act, often prompting the fear of arrest of journalists or sending them scrambling for anticipatory bail.

Madhu Trehan, founding editor of India Today, Newstrack and Newslaundry, said the initiation of proceedings against a journalist under laws such as the UAPA is extreme and unwarranted. “It must be noted that this is used selectively to intimidate and spread fear among journalists. There’s now a prevalent trend of self-censorship, which goes against our democracy,’’ Trehan told BloombergQuint in an email interview. “There are many methods already existing in law where complaints against a reporter and editor that can be made and those are frequently used.’’

Former journalist and senior advocate at the Supreme Court Chander Uday Singh said the indiscriminate exercise of the power of arrest by state authorities is an issue which requires attention as the current criminal law enforcement mechanism virtually sanctions unguided application of the power of arrest turning it into a means of harassment.

“There’s no valid reason which merits arrest of a journalist over their reporting and approaching courts to secure bail. All such cases are based on their reports which are available in indelible form in print or their television reports.’’ Singh said. “Because the process is a punishment it encourages state authorities to register multiple FIRs, otherwise these FIRs won’t matter.’’

How Courts Have Ruled

Under the Indian law, the freedom of press is provided for in Article 19(1)(a) of the Constitution which deals with Freedom of Speech and Expression. These are subject to reasonable restrictions, meaning such restrictions shouldn’t be excessive or disproportionate. Any state action curbing this right must pass this test.

Most recently, this principle found mention when the Supreme Court, in Arnab Goswami’s case, found the registration of multiple FIRs over the same cause as an example of harassment and quashed all but one complaint. The top court, however, balanced this by highlighting that the freedom of speech of a journalist is no more than of any other citizen and they cannot escape the consequences.

The court therefore declined to quash the investigation initiated against Goswami under charges of defamation and inciting religious animosity.

This balance is something that the journalist fraternity must also keep in mind when there are debates on the issues of freedom of speech and right of the press, Senior Advocate Sanjay Hegde cautioned.

“Freedom of speech doesn’t extend to shouting fire in a crowded theatre. Many of the recent FIRs have arisen out of TV programmes where the screen is literally put on fire,” Hegde said. “Just because the criminal law wasn’t set in motion is no reason for people to assume it can never be set in motion. If there are cases where entire communities are defamed on basis of their religion then the provisions of the Indian Penal Code will come into play.’’

Madhu Trehan agreed that the right of the press and its freedom cannot be a shield to shy away from the question of accountability.

“If a journalist has been misled and has reported erroneously, the publication has to use the opportunity to correct the report. I believe the reporter and publication are responsible for incorrect facts.’’ Trehan said. “If the reporter and publication are being hounded and harassed for facts that are inconvenient or uncomfortable for those reported on, the publication must stand by the journalist and the story.”

Some recent court judgments, too, have done their part in standing by the journalists.

The Madras High Court in May delivered an important judgment for free speech when it threw out a defamation case against journalist Sandhya Ravishankar. In its order, the court stressed on the need for the judiciary to play an activist role in protecting journalists and media organisations from harassment through use of legal procedures.

Journalist Dhaval Patel in Gujarat is now out on bail. The Ahmedabad Sessions Court granted bail to Patel after it found that “no such prima facie serious offence is looked out”.

The month of June has important cases on rights of the press lined up for hearing.

The Supreme Court of India had last month sought response from the Press Council on a plea which criticised media coverage of the Tablighi Jamaat incident during the time of the Covid-19 pandemic in Delhi and sought action against some news channels. Another PIL has sought safeguards for journalists by asking the court to make it mandatory for permission of the Press Council of India before any case is registered against a journalist.