This article delves into the topic of Violations of Freedom of Press in India in depth. Including the Freedom of Press of rights or restrictions. Violation of Freedom of Press in India–Rule of State vs Democracy? The Government of India's recent decision supporting the court's verdict to stay an order against a social media company to remove posts… Read More »

This article delves into the topic of Violations of Freedom of Press in India in depth. Including the Freedom of Press of rights or restrictions.

Violation of Freedom of Press in India–Rule of State vs Democracy?

The Government of India's recent decision supporting the court's verdict to stay an order against a social media company to remove posts relating to the critical handling of the Covid-19 pandemic is just one among the numerous instances where the government has suppressed the freedom of media with a heavy hand.

In 2021 alone, the government had directed Twitter and other social media platforms to remove dozens of posts regarding the poor handling of the Covid outbreak in India. Similarly, in six other instances where the government had rejected concerns in cases of the violation of "freedom of speech and expression", the Supreme Court had not granted any relief to the petitioners. The Indian Courts have also pronounced verdicts in the past that uphold the freedom of the press.

However, in recent times during the Covid-19 pandemic, the Indian government has employed the use of overbroad legislation and misapplied the reasonable restrictions under Article 19(2) to their benefit. The government has clearly reproached all international state obligations and employed the extensive use of draconian laws like sedition and hate speech during the pandemic as an excuse to stifle the right to freedom of the press which is unacceptable in a democracy.

I. Freedom of Press – freedom of rights or restrictions?

The freedom of the press is not mentioned explicitly in the Indian constitution, it is inferred under Article 19{1}{a}.[1] In modern times the phrase "freedom of the press" is not just limited to publishing, printing, and use of the internet but also "receiving and imparting information and opinions, without state interference".

However, this freedom is not absolute and encloses reasonable reservations under Article 19{2}[2], which are in the interests of security, sovereignty, the integrity of the country, public order, etc. The Constitution has granted the "freedom of speech and expression" has implied that the rule of law would be indirectly endorsed and that the state can impose reasonable restrictions; still, the government has glaringly misapplied these reasonable restrictions to their benefit.

The Human Rights Committee has asserted that all modes of expression are inviolable, including political discussions and comments made on public affairs, human rights, and religious discourse. Another provision violating free speech and press is IPC Section 124 A[3] as the word disaffection including disloyalty and all feelings of enmity seems to be vague and the Supreme Court in the Shreya Singhal[4] case stated that vagueness of law is a sufficient ground for invalidation.

The US Supreme Court also rightly stated in Grayned v. Rockford[5] "that vague laws may trap the innocent by not providing fair warning", therefore arming the government with the tool to file false cases under sedition law. This empowers the government with a large net under section 124A to punish or ban dissidents, critics of the government, and political oppositions.

It has been used for the benefit of the government to ban publication of books criticizing the actions of the government, restrict broadcasting of vital information during the pandemic, fine news channels, and restrict content on social media platforms citing reasonable restrictions and limiting the purview of the "freedom of the press" which is vital to the functioning of a democracy.[6]

The right of "freedom of expression" is pivotal for the media and press as the cardinal position of the press in India is bridled by the rule of law and its critical significance has been frequently emphasized by international human rights provisions such as Article 10(1) of the Human Rights Act clearly states that everyone has the freedom to have opinions as well as the freedom to receive and transmit information and ideas without interference from the government and without respect for national borders.

Supporting this in the landmark case "New York Times Co. v. United States"[7], the US Supreme Court declared that prior restraints on newspaper publishing were unconstitutional; and parallelly in the Brij Bhushan case[8], the Indian Supreme Court had evidently proffered that prior permission restricts the constitutional abstract of free speech, as pre-censorship of the press would be a constraint on liberty.[9]

When we discuss government control over press freedom, we usually mean things like censorship, seizure on the basis of any irregularity in the eyes of the executive, or license termination, among other things. However, the executive has a number of additional tools at its disposal to stretch its muscles and exert control or influence over press freedom.

In "Bennett Coleman & Co. & Ors. v. Union of India"[10], it was alleged that the government had removed advertisements from their publication for unrelated reasons, resulting in a decrease in revenue and circulation to favour one group of newspapers or to express disapproval with another sector of the press, the court remarked. It should not use its power to retaliate against publications that criticize its policies and behaviour. It must utilize the funds to educate and enlighten the public about the government's actions.

For instance, one of the widely used tools by the Indian government is sedition, used by both the state and federal governments to prohibit, punish and even jail people who criticized the government's actions during the pandemic. In 2021, in the case of Vinod Dua v. Union of India[11], Vinod Dua, a late journalist, was accused of committing sedition over a YouTube video criticizing the government. He disputed the FIR, claiming that he was just exercising his constitutional rights under Article 19(1)(a) and that the charge of sedition had not been proven. The Supreme Court overturned the FIR and rejected a committee's request to screen FIRs against journalists.

However, in recent times a new concept of judicial bias in the form of contempt of court has emerged. In the case of "State v. Editors, Printers, And Publishers"[12], the Supreme Court held that if a publication is circulated with the intent of harming the principle of a fair trial before the court, then contempt of law will be practiced in those cases except where there is no malafide intent to violate the courts dignity.

But the question is what constitutes contempt of court? In the case of "Indirect Tax Practitioners Assn v. R.K.Jain"[13], where it held that contempt law is not applied for violating a person's right to an opinion except if it's a deliberate attempt to violate the courts dignity subject to the discretion of the court as to decide what constitutes contempt. This thin line between the expression of one's opinion and control over the press by contempt of court is upon the discretion and interpretation of the court which causes uncertainty in the laws of contempt of court leading to judicial bias.

II. Is the Legal framework of Article 19{1}{a} against the right of freedom of the press in India?

The provision of "freedom of speech and expression" in India is subject to certain reasonable restrictions under Article 19{2}[14]. Some of these reasonable restrictions are defamation, contempt of court, morality, and public order, etc., that have been used by the Indian government to suppress the "freedom of press and expression" by the people. The government has applied these reasonable restrictions mentioned under the constitution to ensure public accountability is restricted by impeding the freedom of the press and media and even inflicting punishments for violating government directives.

In contrast, the courts in India have pronounced verdicts that expressly ban governmental control and prohibit the misapplication of these reasonable restrictions to the benefit of the government. For instance, in the case of Romesh Thappar[15], it was held that "freedom of the press" comprises the freedom of propagation of ideas that can be ensured only via circulation and cannot be restricted under Article 19(2).[16] The Indian Supreme court in the case of Indian Express v. Union of India[17] affirmed that the freedom of the press is significant for democracy and states that it is the duty of the courts responsibility to protect the same. [18]

Safeguarding the right to broadcast of media, the Supreme Court in Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana[19] laid down that the right to showcase films on a state channel that do not violate religious sentiments is a fundamental right under Article 19{1}{a} and does not constitute a detriment to public order. And safeguarding the right to information, the Supreme Court in the Democratic Reforms case[20], held that the liberty to transmit and acquire information under Article 19{1}{a} is paramount to ensure that misinformation will not cede the democracy of India making it a farce.

These verdicts of the Supreme Court of India serve as the future cornerstone for the interpretation of the reasonable restrictions which must be expressly followed by the government for effective implementation of free speech and expression. However, in 2021, a recent incident of a caricature picturing Prime Minister Modi giving a speech over a burning coffin was among the banned tweets, which featured an item describing a big Hindu religious gathering conducted on the banks of the Ganga during the recent surge in COVID cases.

Following government directives to suppress remarks critical of the government's handling of the pandemic, Facebook briefly disabled all posts including the hashtag #ResignModi, claiming that such content breached community standards. If such restrictions are exercised by the government regularly, the provision of the "freedom of speech and expression" in the Indian constitution will be reduced to a "paper tiger" having no value in the eyes of the law thereby setting an unhealthy precedent for future governments in power to misapply these restrictions to their benefit.

As such censorship is ineffective in combating misinformation; instead, a free and independent press and a robust civil society are necessary, but the Indian government has frequently suppressed the right to criticize government decisions and policies which is a part of article 19{1}{a}.

The Supreme Court of India in the historic case of S. Rangarajan v. P. Jagjivan Ram[21] stated that the manner to form and convey an opinion appropriately not causing defamation to another person is secured under the right to "freedom of speech and expression" and that the right to criticize the government's policies and actions form an essential part of a democracy and hence cannot be prohibited unless a significant cause for action arises from in such cases. Regardless the Indian government has ignored this precedent and unjustifiably restricted this right under the pretense of reasonable restrictions of public order, defamation, and security of the state.

The Court held, citing the judgment in "Indian Express Newspapers (Bombay) Private Ltd v. Union of India"[22] that press freedom was at the center of social and political discourse. The Supreme Court in the case of "Shreya Singhal v. Union of India",[23] broadened the reach of the right to "free speech and expression" by closely analyzing the basis of reasonable restrictions pertaining to the right while noting that merely discussing or even advocating for a certain cause, however unpopular, it is at the heart of this right and stated that if these speeches cause a breakdown of public order and tranquillity, then only the person can be booked under sedition. [24]

To support this stance, a landmark case in the US Supreme Court, Bradenburg v. Ohio[25], affirmed that the constitutional principles of "free speech and free press" prohibit a state from restricting or limiting advocacy for the use of force or law.

But the problem seems to lie with the government in power not recognizing these rights and misapplying these reasonable restrictions wherever they see fit and blatantly ignoring the court's interpretation of these restrictions. The Indian democracy can only be protected by ensuring unrestricted freedom of the press and eliminating the misuse of reasonable restrictions that prohibit people from accessing critical information and services that explicitly prohibit statements based on nebulous ideas like fake news or misinformation.

These measures are the need of the hour as such laws are incongruous with the standards of legality and proportionality violating the freedom of press and expression to which the citizens are entitled to.[26]

III. India in Violation of International Treaty Obligations regarding the publication of health information?

India is a signatory to various treaties like the ICCPR where Article 19 states that "everyone shall have the right to hold opinions without interference". "Freedom of opinion and expression are considered indispensable conditions for the full development of the person", "essential for any society and a foundation stone for every free and democratic society".[27] But the media in India is controlled by powerful, family-owned companies. Journalists who disagree with this new position have been fired or forced to resign and as a result journalists in India are increasingly engaging in self-censorship.

Indian journalists have in recent years been subjected to surveillance and strict vigilance for covering news related to the acts committed by the government and have been subjected to pressure to reveal whistleblowers or sources for the information published.

Costa Rican Judge Jinesta Lobo aptly stated that even the act of telephone surveillance of journalists or anyone who frequently informs the public is fully, absolutely, and radically unlawful. He claimed that the basic freedom of journalists not to reveal their sources must apply, even to a court, but in India, those who speak up are frequently harassed and threatened. Reflecting the above sentiment for the year 2021, the World Press Freedom Index, Reporters without Borders, placed India 142nd out of 180 countries showing the level of freedom of press violation in India.[28]

In the landmark case of "Ballantyne, Davidson, and McIntyre v. Canada",[29] the Human Rights Committee clearly affirmed that the "freedom of speech and expression" embraces political expressions and commercial speech, with the former receiving a higher level of protection. By following this precedent effective steps must be taken by the Government of India to prevent media control that would jeopardize everyone's "right to freedom of expression", especially during this pandemic.[30] Even the United Nations Committee of Economic, Social, and Cultural Rights has stated that access to information is a vital facet of the right to health. [31]

If India continuously keeps circumscribing health-related speech, blocks access to health-related information, and fails to publicize health-related facts in a timely manner, communities suffer negative health consequences and will be unable to avail their right to health. In the course of a health crisis like the COVID-19 pandemic, the timely transmission of information is exigent. The Human Rights Committee has asserted that limitations must be exceptional and meet a strict three-part test, which should be:

"Legislatively mandated- Individuals must be able to change their behaviour in response to limits imposed by law or regulation defined with appropriate clarity.

In order to achieve a genuine goal- Any limitation must be directed at one of the state objectives stated in Article 19(3), which are limited to respect for others' rights or reputations, national security, civil order, global health, or morality; and

Be both required and proportionate- The state must explain the precise nature of the threat, and the necessity and proportionality of the specific measures taken, in a specific and tailored manner, in particular by proving a direct and immediate relationship between the statement and the threat." [32]

The Human Rights Committee has expressed on numerous occasions its uneasiness over the use of criminal law to prosecute journalists, researchers, and human rights advocates who share material in the interest of public benefit. However, in India from March 25 to May 31, 2020, nearly 55 journalists faced legal proceedings in some form or were victims of vandalism for availing their right to free speech and expression by reporting on the present pandemic.

The state with the most such infractions was Uttar Pradesh, which was followed by Jammu and Kashmir, Himachal Pradesh, and several other states. On April 22, 2020, the authorities ordered Twitter to block 52 tweets that criticized the Indian government's poor management of the outbreak. On April 22nd, Twitter followed suit, blocking comments from a state minister, an opposition member of parliament, members of the film industry, and numerous regular individuals.

In international law, a commonly agreed definition of hate speech is tenuous. Nonetheless, this word is used by the Indian government and lawmakers, to condemn opposing viewpoints and to demand limits on particular forms of communication. On the contrary austere reactions to hate speech might restrict national debate and undermine the right to freedom of expression. So, all formal prohibitions on hate speech should be in consonance with the conditions set by the ICCPR's Articles 19(3) and 20(2)[33], which is not the case in India.

In order to deal with the COVID-19 pandemic, both federal and state governments in India have used and invoked the Epidemic Diseases Act of 1897 including Section 69A of the Information Technology Act and the Indian Telegraph Act, 1885, to block internet content and implement internet shutdowns to deal with fake news in accordance with government directives effectively restricting the freedom of press and speech and expression by the citizens.

The government will be denigrating the autonomy of the press if they begin to decide on their behalf and block access to free speech citing that individuals listening and reading it might come to perceive wrong views or disobey the law. Expressing this issue in the 2017 Joint Declaration, the Special Rapporteurs[34] cautioned that, general limitations on the transmission of information based on nebulous and unclear concepts, such as misleading news or non-objective data, are incompatible with international standards.

Still, the Indian government has consistently employed repressive and overbroad legislation to combat alleged misrepresentation about COVID-19. Most of these rules include broad circumspection granted to authorities to restrict speech, which has long been a source of worry for Article 19{1}, leading to imperious implementation and negating citizens of the direction they need to govern their behaviors in accordance with the law.[35]

IV. The Way Forward

The Indian Government must use the right to information legislation to make public information more accessible, such as mandating the publication of the permitted forms of data including developing a network for citizens and organizations to seek information from government agencies. Criminal prosecution and other coercive measures should not be used as the principal way of countering hate speech and misreporting concerning the transmission of COVID-19 by public authorities.

Felonious charges and imprisonments should only be used in the most egregious cases of violation of speech-related offenses. The courts must ensure a free, independent, and diversified media environment, including an unambiguous administrative edifice that ensures the media and broadcasting sector's self-governance and independence. In their interactions with the government about misinformation regarding COVID-19, social media corporations should be completely transparent.

Periodical reports, which must be extensive and encyclopedic and should include all relevant and authentic information. Furthermore, businesses should oppose government requests that are in violation of human rights. Hence pertaining to these aspects during the pandemic, India has violated its treaties and reproached all its international and state obligations which are entirely unacceptable in a democracy.

Therefore, in conclusion, the Indian Courts and government must strive to implement the constitutional ideals enshrined in the Preamble to promote justice, liberty, equality, and fraternity without prejudice to anyone, especially its citizens who form the base of the world's largest democracy; and as such, India as a state must uphold the rule of law and defend the fundamental right of the press guaranteed to its citizens.


Arnold Stanley and Anenaa Teresa Cherian collaborated on this essay. They are students of St. Joseph's College of Law. Their article Violation of Freedom of Press in India–Rule of State vs Democracy highlights the importance of unrestricted freedom of the press and eliminating the misuse of reasonable restrictions that prohibit people from accessing critical information and services.


References

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  5. [5] Grayned v. City of Rockford, 408 U.S. 104 (1972),
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