5 May 2023 12:09 PM GMT
The median age of this graduating class, I'm guessing, is 23. That would make "The Emergency" little more than a historical concept, a period heard or read about, but of no greater immediacy than the British Raj, the freedom struggle, Independence, or Partition. Born a quarter century after what was seen as the great aberration of 1975-1977, and coming of age in an era of...
The median age of this graduating class, I'm guessing, is 23. That would make "The Emergency" little more than a historical concept, a period heard or read about, but of no greater immediacy than the British Raj, the freedom struggle, Independence, or Partition. Born a quarter century after what was seen as the great aberration of 1975-1977, and coming of age in an era of boisterously noisy journalism, you'll be hard put to understand what it meant for a free nation to be plunged into overnight censorship and a universal news blackout just 25 years after we became a Republic.
Try to imagine the shock of a nation that woke up on 25th June 1975 to blank front pages of newspapers, followed by 21 months of force-fed government propaganda. Television news didn't exist, the foreign media were banished, newspapers and the few magazines that existed had to submit their galleys to government censors, and one of the few sources of real news was BBC Radio's Asia Service. A quarter century after we the people gave ourselves our Constitution, the promise of free speech and expression guaranteed by Article 19(1)(a) had sputtered out, not least because of the Supreme Court's capitulation in the infamous ADM Jabalpur v. Shiv Kant Shukla (1976).
By a miracle that is a whole another story, we survived. Elections were called, The Emergency was lifted, and from 21st March 1977 our media bounced back to almost four decades of unbridled optimism. The boisterous noise I spoke of turned into a din, amplified by prime-time shouting matches on television, on-the-ground investigations, and reports that claimed with unfailing regularity to have exposed yet another "scam" (an overused word that deserves a decent burial). A plethora of magazines supplemented the newspaper world, and regional language publications gained unprecedented circulations and reach. The memory of the Emergency faded out, and it became unimaginable that with ubiquitous internet and social media, and courts that swore never to let the spectre of ADM Jabalpur to raise its ugly head, journalists or the purveyors of news could ever be muzzled.
But the optimists have now been betrayed by a strong government, a government which believes that a brute majority in Parliament is justification enough to tame and bend media to do its bidding. Borrowing from the modern autocrat's playbook, and aware that outright censorship would not work in the 21st century, the present government which came to power in 2014 soon adopted the time-tested recipe for boiling a frog. You put it in a saucepan filled with cold water, and raise the temperature so gradually that it is lulled into warmth and comfort and ultimately falls into a torpor it cannot shake off when the water finally comes to the boil.
This phase was launched with first de-legitimising the media. It began with union ministers using words like ‘presstitutes’ to describe journalists. It progressed to press conferences being shunned and correspondents being barred from accompanying the Prime Minister on official foreign visits. It moved on to the use of single-source handouts of prepared scripts, photographs and film clips. And it sent out a message by limiting access to the Prime Minister to a handful of carefully selected interviewers. Taking a leaf from strongmen leaders in other times and other nations, the Prime Minister set up a direct channel of communication with the public through his radio program, Mann Ki Baat, which was duly amplified by government media and the government's cheerleaders in mass private media.
Simultaneously, a carrot-and-stick approach was adopted with generous government advertising to favoured outlets on one hand, and on the other, advertising cut-backs as also the threat of choking other businesses of network owners and newspaper proprietors if they failed to play ball. In a nation where almost every national television network and most newspaper chains are owned by industrialists who need government patronage, or at least the cooperation of the government, the underlying threat, whether covert or overt, could not fail to bring home the bacon.
A favoured method of taming the media is to make an example by easing out many of those who stand up for journalistic independence. Reliance Industries had made several investments in media companies, often as an angel investor to save the professionally-run independent media house from bankruptcy. Until 2014, the public stance of Reliance was that it was not going to take over majority control, nor interfere with the running of such entities. This changed in 2014, when Reliance took control of Network18 through a takeover, prompting Rajdeep Sardesai, the Editor-in-Chief and Sagarika Ghose, the Deputy Editor of the network’s flagship channel to resign, with Sardesai publicly voicing his concerns about losing editorial independence. Dropping the hands-off approach after Network18, it is reported that Reliance now controls more than 70 outlets around the country, with a combined weekly audience of at least 80 crore viewers.
The period since 2017 witnessed more overt pressure, some of which came on the heels of meetings between the Prime Minister and media proprietors. Barkha Dutt was made to resign from NDTV in January 2017; Bobby Ghosh, the editor-in-chief of Hindustan Times who had introduced the "hate-tracker", was forced to resign in September 2017; Harish Khare was eased out from editorship of the Tribune after an investigation under his watch exposed the massive data breaches enabled by aadhaar's architecture; ABP's managing director Milind Kandekar and ABP TV's anchor of Masterstroke, Punya Prasun Bajpai, both abruptly resigned in August 2018, followed by Abhisar Sharma of ABP News in September that same year; Faye D'Souza was forced out of Mirror Now in September 2019; and Shyam Meera Singh had to leave Aaj Tak for tweets critical of the Prime Minister in July 2021. And these are only the widely reported instances, as many more fly beneath the radar.
Self-censorship caused by concentration of ownership, coupled with the use of collateral power mechanisms to silence erudite critics, has showed up in other forms too. A widely-discussed example is Ramchandra Guha’s withdrawal of his fortnightly column in the Hindustan Times, triggered by the newspaper’s apparent refusal to publish his column on the Government’s Central Vista project. Another equally eminent public intellectual, Pratap Bhanu Mehta, was sought to be pressurised to stop criticising the government in print, by putting pressure on the Board of a University of which he was the Dean. But rather than be silenced, Mehta left the University and moved to another in America, and to the credit of the Indian Express, they continued his weekly op-ed column without a break.
The use of media proprietors to secure a tame environment came full circle with the hostile takeover of NDTV, the last of the old guard which was attempting to deliver independent news. A survey by the Reuters Institute for the Study of Journalism had indicated that 81% of all other parties' political supporters, and even 75% of BJP supporters, found NDTV to be a trusted source of news and information. The continuing independence of this channel despite income tax raids and other government actions was obviously unpalatable to the powers that be.
As it happens, the Adani group, headed by Gautam Adani, had quietly bought over a private investment company formerly owned by Reliance, through which Reliance had financed NDTV's proprietors many years ago to stave off the creditors. Though the purpose of that financing was long over, and the debts repaid, the investment company had a right to purchase 20% more shares in Prannoy and Radhika Roy's personal investment vehicle, through which they owned majority shares in NDTV. Gautam Adani suddenly exercised that right, and made a public offer to purchase 20% additional shares as per SEBI's Takeover Code, which inevitably led to the exit of Prannoy and Radhika Roy. This was widely perceived as the “endgame for independent media” in India, prompting widespread resignations from NDTV’s management, editorial staff and reporters, including that of NDTV India head Ravish Kumar.
These recent takeovers by proprietors cozy with the ruling dispensation add to a media landscape which was already replete with government-friendly owners. To name a few, Republic TV was co-founded and mostly funded by Rajeev Chandrasekhar, who relinquished his stake in 2019 in order to become a Union Minister; Zee Media Corporation, part of the Essel Group, is led by Subhash Chandra, a former member of the Rajya Sabha whose candidature was backed by BJP; Odisha TV is owned by the family of Baijayant Panda, the national vice-president and spokesperson of the BJP; and News Live, a TV channel popular in the North-East, is owned by Riniki Bhuyan Sarma, wife of the BJP chief minister of Assam, Himanta Biswa Sarma.
This address cannot do full justice to the cases of journalists and media houses that have faced the brunt of state power coupled with brutal mobs exercising the heckler's veto. I will allude to only some of them, but make no mistake, they are symptomatic of a broad-ranging and widespread assault on the freedom of speech and expression.
A natural disaster that inadvertently provided the government a template for suppression of independent reporting was the Covid-19 pandemic. Faced with occasional criticism of their handling of lockdowns, and especially the horrific migrant labour crisis, the central government as well as most of the states unleashed a disproportionate, shoot-the-messenger backlash. Using the full might of the police powers, as enhanced and immunised by special powers assumed under the Disaster Management Act, journalists were subject to arbitrary arrests and detention without charge, merely for asking the questions that needed to be asked. The India Press Freedom Report 2020 by the Rights & Risks Analysis Group documented the targeting of at least 228 journalists and media houses through FIRs, show cause notices requiring appearance during lockdowns, detention and questioning by the police without registration of any formal case. The authorities wielded an array of draconian laws including the IPC, the Disaster Management Act, the Unlawful Activities (Prevention) Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the POCSO Act and others. The India Press Freedom Report 2020 revealed that such coercion and browbeating were deployed to prevent journalists from exposing corruption by officials, politicians and hospitals; from reporting communal violence perpetrated under the guise of COVID prevention; from commenting against the CAA; from reporting on denial of food rations to migrant workers, and the mismanagement and negligence at quarantine centres. All that was needed to unleash police action was an allegation that the concerned report was “fake news”.
The pandemic also became the backdrop for unleashing the Income Tax authorities on organisations deemed critical of the regime. Dainik Bhaskar, one of the largest-circulated Hindi newspaper groups, faced the full might of the Income Tax Department after their reporters carried out meticulous documentation and reporting on thousands of corpses floating down the Ganga and thousands more buried in shallow sand-banks in Uttar Pradesh and Bihar, as their families lacked the means to cremate them during the second wave of COVID-19. These revelations destroyed the government's carefully crafted narrative of victory over the pandemic, which had been dutifully touted by mainstream media. Nemesis in the form of the tax inspector quickly followed, and the Dainik Bhaskar was at least temporarily silenced. In similar manner, certain organisations promoting independent media initiatives, have been targeted using the Foreign Contribution Regulation Act, the taxman, and other central agencies. This template has been used time and again since then, most recently against the BBC for their "not-to-be-mentioned" documentaries on Gujarat.
More worrisome still is the revelation in the India Press Freedom Report that 13 journalists had been killed during the period covered by the Report, either with the police’s involvement or their failure to provide protection when there were serious apprehensions to their lives. The Report highlights the fact that most physical attacks and assaults on journalists or their families were orchestrated by mobs of unidentified persons, apparently the result of systematic planting of hostility against independent media and journalists critical of the government.
The shocking assassination of Gauri Lankesh on 5th September 2017 was not isolated. By 2021, Reporters Sans Frontieres, or Reporters Without Borders, ranked India among the five most dangerous countries for journalists. While the number of fatalities was pegged at 4 in RSF's 2021 report, the UNESCO ‘observatory of killed journalists’ recorded that 6 journalists had been killed in India in 2020. The report by RSF specifically stressed that journalists in India were subjected to all kinds of attacks, including “police violence…, ambushes by political activists, and reprisals instigated by criminal groups or corrupt local officials.” The report decried the radical right-wing Hindu spokesmen for overt attempts to paint journalists who are not aligned with their ideology as ‘anti-nationals’ and for their calls to “purge all manifestations of ‘anti-national’ thought from the public debate”. The Report notes that what starts as an outcry against supposed ‘anti-nationals’ by a minister or occupant of public office, snowballs into coordinated social media campaigns of hate and dehumanisation, in some cases leading to terrifying calls for execution of journalists.
Similarly, a report by the International Press Institute, a global network of editors, media executives and leading journalists who defend and promote media freedom across the globe, identified 83 violations of press freedom in India in a short, 6-month period from April to September 2022. Noting a spike in mob attacks against journalists, IPI's report recorded that 4 journalists were assaulted by a mob at a ‘Hindu Mahapanchayat’ event in Delhi, while 5 other journalists were tortured by members of a local mafia when they tried to expose illegal operations of liquor dons. In May 2022, journalist Subhash Kumar Mahto was shot dead while walking near his home in the village of Sakho, Bihar. As many as 20 journalists were arrested during this period, including Kashmiri journalist Fahad Shah and fact-checking journalist Mohammed Zubair. Fahad Shah, the editor-in-chief of online magazine Kashmir Walla, was first arrested in February 2022, following a report pertaining to an encounter in Pulwama. When he was granted bail after 22 days of custody by a special court under the National Investigation Agency Act, 2008, he was immediately arrested by the Shopian police. On 7 March 2022, within hours of securing bail from a magistrate’s court in Shopian, Shah was arrested for the third time in a month by the Srinagar police for social media posts allegedly “tantamount to glorifying the terrorist activities and causing dent to the image of law enforcing agencies besides causing ill-will & disaffection against the country”. He completed a year in prison in February this year, his incarceration now converted to preventive detention under the stringent Public Safety Act, prompting journalists from around the world to urge his release in a joint statement recognising that “Shah’s case is a sharp reminder of the need to strengthen free voices as efforts to shut them down intensify daily around the globe. His release is particularly important to the cause of free press in Kashmir.”
Other instances of the systematic effort to silence inconvenient voices abound, often using spurious charges under the debunked and now temporarily halted offence of sedition, and of course, the full force of counterterrorism and national security laws. When Meer Faisal, a journalist with Article 14, tweeted about the assault on 5 journalists during a demonstration in Delhi by right-wing groups, the Delhi police initiated an investigation against him on grounds of inciting hatred between communities. Rana Ayyub, a Washington Post columnist who is an outspoken critic of the government, was prevented from flying out of the country to attend a journalism event in March 2022 allegedly because of an investigation into money laundering and tax evasion, which had been denied by Ayyub. In a period of 6 months, Ayyub’s bank account and other assets were frozen twice based on the same unestablished allegations. Special Rapporteurs of the UN Human Rights Council, Irene Khan and Mary Lawlor came to her defence following what they have termed as “relentless misogynistic and sectarian attacks” against her, in response to her “efforts to shine a light on public interest issues and hold power to account through her reporting”. Muslim women journalists have also been the target of several nefarious, base attacks launched with the objective of humiliating and degrading them in the form of a fake “auction” app and rape threats.
A particularly egregious episode was the marathon raid conducted in 2021 at the house of Prabir Purkayastha, editor-in-chief of news website Newsclick. The septuagenarian and his partner were detained at home for the entire duration of the raid, which reportedly went on for nearly 114 hours, without being informed of the charges for which they were under investigation. Purkayastha, like other former and current members of Digipub, an association set up in 2020 to represent independent digital news media, has been subject to incessant trolling at the hands of right-wing netizens, who create and ecosystem of hate by multiple attacks that are spread like wild-fire on social media, using coordinated and synchronised youtube channels and twitter handles. These right-wing hardliners get increasingly emboldened by the impunity and lack of consequences they face, even when they resort to abhorrent tactics such as explicit calls for execution of certain journalists.
While such elements are allowed to go scot-free, policing of the media has scaled new heights, with the sphere for free and independent journalists continually shrinking. For instance, in 2018 the District authorities in Uttar Pradesh’s Lalitpur demanded that journalists register their WhatsApp groups with the Information Department, with administrators ordered to furnish details of all members of each group along with aadhar card details and photographs. It was threatened that non-compliance with the order would invoke legal action under the Information Technology Act, even though there is neither any such requirement under that Act nor provision for punishment for its breach. A similar diktat of making WhatsApp registration mandatory had been issued by the Kashmir State government in 2016.
The fraught conditions presently faced by Indian journalists are exemplified by the case of Siddique Kappan. As recently as in February this year, this journalist was finally released on bail after over 2 years behind bars without being formally charged under the UAPA. Kappan and 3 others had been detained while on their way to Hathras in Uttar Pradesh, where a Dalit woman had died after allegedly being raped. Not to be outdone, the Enforcement Directorate had also filed a money laundering case against him, accusing him of having links with the now-banned Popular Front of India (PFI) and receiving money from them. In September 2022, the Supreme Court granted Kappan bail under UAPA as no formal charges were filed against him, but his incarceration continued on account of the money laundering charges. He was finally granted bail in the money laundering case in December 2022 by the Allahabad High Court, which noted that transactions of a paltry sum of Rs. 5,000 had been alleged against him and his co-accused. Even after that, various procedural hurdles set up by the state ensured that Kappan spent another two months in custody.
To no one's surprise, the parlous state of our news media is reflected in the view of India from abroad. Tellingly, the meticulously researched World Press Freedom Index published every year by Reporters Without Borders has seen our country slide from a rank of 140 in 2014 to 150 out of a total of 180 nations studied in 2022.
Today, the situation has gone beyond mere corporatisation of Indian journalism with monopolisation of mainstream media by big, “friendly” corporations. The concentrated media ownership through politically affiliated or favourable entities and the blurring of lines between media, business and politics have clearly diluted the opportunities for genuine, unbiased reporting and the sanctity of the space that is required to bring about plurality, diversity of opinion and dissent.
Indeed, far from batting for the wonderful plurality and secular ethos of our nation, some of the most influential mass media have turned themselves into cheerleaders for communalism and hate-speech. No one will have forgotten the manner in which Muslims were vilified as spreaders of the COVID-19 virus, and the use of scrolling banners like "corona jihad", "love jihad", "land jihad" and other malicious untruths. Nor should anybody forget the sight of television anchors from leading national channels riding triumphantly with the drivers of bulldozers that were used to destroy Muslim homes, shops and small businesses in the aftermath of communal riots. And of course, certain channels have made a specialty of peddling hate and spewing venom that borders on calls for genocide.
In an Orwellian inversion of truth and values, the purveyors of hate and falsehoods can claim protection under our Constitutional guarantee of the freedom of speech and expression, and indeed they do. When a bench of the Supreme Court entertained challenges against hate speech and pulled up these anchors, they were met with indignant claims of press freedom. Yet, those who expose communalism and hatred, who call the state to account for its failures in providing protection to minorities or to conscientious dissenters or social activists or protectors of forests and tribal rights, are dubbed anti-national and sought to be persecuted. Just a few days ago it was reported that the CBI has registered a case against environmental lawyer Ritwick Dutta, founder and head of Legal Initiative for Forest and Environment (LIFE). His crime: that he was fighting for preservation of forests and was thereby attempting to stall coal projects in protected forests through litigation.
Not content with the subjugation of big media through crony buy-outs, acquisitions, and direct pressure on proprietors, the powers have simultaneously sought to control the smaller players who perforce function in the online universe. Using the ever-available excuse of national security, the government has sought to systematically tighten the screws on digital media, internet news services, You-Tube services, podcast producers and the like.
The Information Technology Rules, 2021 extended the government’s powers under Section 69A of the Information Technology Act, 2000 to block internet content and effectively censor publishers in the interests of ‘sovereignty, integrity, defence of India and security of the State or preventing a cognisable offence’. These powers were used selectively by the Government to block over 100 YouTube channels in 2022, besides blocking selected accounts on social media platforms. Further amendments in 2022 led to a tightening of the IT Rules to strengthen the grip of government over social media. It allowed a government panel to overrule social media suspensions on the basis of their internal guidelines, effectively giving government control over content-moderating decisions that social media companies make. This could result in platforms being potentially required to reinstate accounts or posts taken down for being in violation of site-wide rules, only within the Indian territory. In effect, the government empowered itself to decide which kind of speech should be aired on social media platforms, overruling the general rules of the digital intermediary and its decisions without any transparency or accountability. It further allowed for users to escalate complaints of social media posts that they wanted suppressed to the government panel, thus using the might of majority, muscle and toxicity to target and potentially silence outspoken voices, even if they complied with the internal guidelines of the social media platforms.
These amended Rules were put to use when a BBC documentary on Gujarat leaked out before its release date, and started to get aired on social media. Part One of the BBC documentary based on footage of the 2002 Gujarat pogrom, and the manner in which then Chief Minister Narendra Modi had dealt with the carnage, was directed to be removed from Twitter and YouTube in purported exercise of the emergency powers conferred by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Ex-parte take-down orders were issued against persons who were neither given notice, nor furnished with the reasons for such take-down orders. The Ministry of External Affairs labelled the documentary as a “propaganda piece designed to push a particular discredited narrative”. The censorship was sought to be justified by an Advisor to the Ministry of Information and Broadcasting on the ground that the documentary was intended to undermine “the sovereignty and integrity of India, [with] the potential to adversely impact India’s friendly relations with foreign countries as also public order within the country”. The blocking order and related proceedings were completely opaque, with the government failing to place this order in the public domain. Unsurprisingly, this was followed by tax raids at the BBC’s Delhi and Mumbai offices.
This has been the government’s go-to response to any critique or assessment of the pressures on India's democratic structures by international bodies, as also foreign media. Instead of engaging meaningfully by dealing with the subject of criticism in a spirit of trust and accountability, the government merely rubbishes and seeks to discredit the messenger. The import could not be more apparent – anyone who questions the government and strays from blind conformity is attacked as a traitor, anti-national or ‘desh drohi’, or is alleged to be part of an international conspiracy against India. Equating unquestioning acceptance of the narrative has converted the mainstream media into mouthpieces of the government.
To add to the difficulties that face journalists in many part of the country, de facto censorship is repeatedly caused by limiting access to public digital resources. According to the Software Freedom Law Centre, there have been over 650 internet shutdowns in India since 2012, the vast bulk of them after 2014. Data compiled by global digital rights group Access Now and the #KeepItOn coalition show that India implemented at least 82 internet shutdowns in 2022 alone, becoming worst offender of all the nations that call themselves democracies. These shutdowns have been used to throttle communications by peaceful democratic movements, and have also provided cover for violence by wiping out communication channels, as they bring about a total ban on mobile or fixed-line Internet. The justification of such widespread shutdowns on the ground that misinformation and rumours can result in deterioration of law and order is not convincing, especially since the absence of reliable information sources like news outlets, results in a far greater spread of false information. Such justifications might have carried greater conviction if the shutdowns were not used for the most part against protest movements aimed at government actions, like the prolonged and completely peaceful Farmers Agitation in Punjab, Haryana and the Delhi borders.
The crowning glory of this assault on internet news and digital information is the attempt to completely invert the role of government and the media. Taking a leaf from Lewis Carrol's Alice in Wonderland, the government has now amended the IT Rules of 2021 yet again, this time to decree that the truth about the Central Government will be what the Government says it is, and that everything else will be taken down as misleading. The 2023 amendment to the IT Rules 2021, notified in April, authorise a “fact check unit of the central government” to identify “fake or false or misleading” information in respect of, “any business of the Central Government”, thereby making the Union Government the sole arbiter of what news can and cannot be published. This is a travesty without parallel, and becomes more so when one considers that the government's "fact check unit" will be the Press Information Bureau, which is for all intents and purposes the government's propaganda machine. These rules are a definite case of executive overreach, not least because they are without any guidelines or checks or balances, and constitute press censorship which is abhorrent to any democracy, apart from being patently in breach of Article 19(1)(a) of the Constitution. While the ambit of these Rules have been expanded to include social media intermediaries, Internet Service Providers or other service providers, failure to take down any content identified as fake or false or misleading by the government's fact check unit would result in such platforms losing their safe harbour protections, thus rendering the intermediary liable for any third-party information, data or communication link made available or hosted by such intermediary. This is a source of greater concern given the PIB's past history of fact-checking, which has arbitrarily flagged news critical of the government as fake and subsequently backtracked on its claims. Further, the strict procedures delineated for blocking or taking down content in the Supreme Court judgment in Shreya Singhal have been completely overlooked. Curiously, the draft amendment which was published in January 2023 calling for public comments, contained only provisions to regulate online gaming companies. However, hours before the public consultation deadline expired, a new draft was published which gave the Government these powers of censorship under the guise of fact-checking. This invited strong objections from the Editors Guild, Digipub and Internet Freedom Foundation, but the amendments were pushed through regardless.
If much of this sounds bleak and forbidding, we need to remind ourselves that difficult times are also times of opportunity, and that the more the state tries to suppress the truth, the greater the possibility of unearthing a scoop. Television channels have been bought up and subjugated, but television journalists like Karan Thapar, Barkha Dutt, Faye D'Souza, Ravish Kumar, Arfa Khanum Sherwani, Abhisar Sharma, and a slew of others have taken to You-Tube and Telegram with a measure of success. They reach a smaller audience than television, but they make their voices heard nonetheless. Online newspapers like The Wire, Scroll, and many others in every language in the country have mastered the art of multiplying their message through online "print", audio podcasts, You-Tube and online streaming services. And of course, some venerable hold-outs in traditional broadsheet newspapers continue to speak truth to power, a leading example of which is your city's very own The Hindu.
Pick up Maria Ressa's "How to Stand Up to a Dictator", and you will see how this diminutive American returned to her roots in the Philippines to fight for the preservation of democracy, first as a reporter for CNN, and then as co-founder and editor of Rappler.com. Taking on President Rodrigo Duterte's autocracy against all odds and in the face of threats to her freedom and her life, Ressa was ultimately awarded the Nobel Peace Prize in 2021, together with another indomitable journalist, Dmitry Muratov, editor of the Russian newspaper, Novaya Gazeta. To use an old cliche, Maria Ressa proved to every journalist in the world threatened by the spread of autocracy, that when the going gets tough, the tough get going.
And those who decide to fight the good fight must know that when one walks the path of the righteous, one is never alone. Even the courts, which sometimes appear to be succumbing to the pressures of an overbearing executive, push back when things start to get really bad.
Dealing with the indefinite suspension of internet services in Jammu & Kashmir, the Supreme Court in Anuradha Bhasin v. Union of India ruled that such indefinite suspensions were not legal under the Indian Constitution, holding that the role of the internet as a means of communication and information is fundamental, and being a medium of expression, it enjoyed protection under Article 19(1)(a). The Court also held that any order to shut down or suspend the internet must meet the twin tests of necessity and proportionality. Though the Supreme Court stopped short of granting meaningful relief to the doughty Editor who filed that petition, the law laid down in Anuradha Bhasin sets a high benchmark for the government to meet in any future shutdown of the internet.
In the case of IT Rules 2021, legal challenges were mounted by digital media platforms and intermediaries in various High Courts. In March 2021, the Kerala High Court granted protection against coercive action under the Rules to Livelaw, a digital legal newspaper. Soon after that, the Bombay High Court in the case of an independent human rights and legal newspaper called The Leaflet, stayed the operation of Rule 9 of the 2021 Rules, thus rendering the Rules virtually toothless. The Madras High Court also recognised that the Bombay High Court stay order with respect to Rule 9 would be operative across the country. Those cases have all been transferred to the Supreme Court along with a slew of other challenges to the said Rules, but despite repeated efforts by the government to get the stay orders vacated, the Supreme Court declined to oblige. Meanwhile, the Bombay High Court has recently entertained a challenge to the 2023 IT Rule amendment by the comedian Kunal Kamra.
Other seminal challenges that are pending before the Supreme Court include the alleged use Pegasus spyware against journalists and others, as also a challenge to the takedown orders in respect of the BBC documentary. In the Pegasus probe, the Supreme-Court appointed committee while coming to inconclusive findings, noted in its report that the Central Government has not cooperated with it. While issuing notice in the challenge to the censorship of the BBC documentary, the Supreme Court again resisted the petitioners’ request to direct the Union to make the order blocking the documentary public. Instead, the Court has decided to wait for the Union Government to file its reply before considering the matter further. Though these judicial delays are disappointing, there can be no doubt that the Supreme Court as well as High Courts remain a strong bulwark against an executive that is determined to cut the media down to size.
If one had any doubts about the judiciary's will and intent, they should be dispelled by a recent judgment. Just last month the Supreme Court of India, in its judgment striking down the central government's ban on the MediaOne TV channel, emphasised the need for freedom of the press in ringing terms: “An independent press is vital for the robust functioning of a democratic republic. Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of press compels citizens to think along the same tangent. A homogenised view on issues that range from socio-economic polity to ideologies would pose grave dangers to democracy.”
Perhaps the best way of looking at where we are, and where we need to be, is to remember that even the darkest days of The Emergency didn't last.
I'll end by falling back on this verse by the sometimes controversial, other times very likeable, Rudyard Kipling:
“The Pope may launch his Interdict,
the Union its decree,
But the bubble is blown and the bubble is pricked
By Us and such as We.
Remember the battle and stand aside
While Thrones and Powers confess
That King over all the children of pride
Is the Press--the Press--the Press!”
(Excerpts from ‘The Lawrence Dana Pinkham Memorial Lecture’ delivered by Chander Uday Singh, Senior Advocate, Supreme Court Of India, at the convocation ceremony for the graduating class of 2023 at The Asian College Of Journalism, Chennai.)
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