Restraining news reporting on a banned group’s action would mean denying a citizen opportunity to take informed decision

Kashmiri journalists sit during a protest in Srinagar, India, Thursday, Aug. 25, 2011. The protest was against alleged recent attacks and harassment of journalists by the Jammu Kashmir police in Srinagar. (AP Photo/Mukhtar Khan)

By Sukumar Muralidharan*

A May 27 ruling by the Shillong High Court criminalised media reporting on a militant group believed to be operating from the territory of a neighbouring state. Though its immediate reference was to just one of many banned groups in India’s north-east, the judgment also included a broad prohibition on unnamed groups, referred to under the category of “any other organisation which may have the effect of disturbing the even tempo of public life in the state of Meghalaya”. This severe judgment was the outcome of judges having taken cognisance of the disruption caused by a 48 hour bandh called by a banned militant group. Using press clippings on the day’s events, the bench invoked a ruling by the Kerala High Court in 1998, that an enforced general strike or bandh is on the face of it, an illegality and a violation of the fundamental rights of the common citizen.

The Kerala HC judgment was since upheld by the Supreme Court in a summary, one paragraph order, though without quite dispelling its many inherent ambiguities. Despite endorsement by the Supreme Court, there was no clarity on how a bandh – understood as a coercive imposition on society by a few actors – differed from a hartal which is a legitimate and supposedly unforced exercise of the right to free speech and expression. India’s constitution when it entered into force in 1950, incorporated language that made free speech a virtually untrammelled right.

After a couple of adverse rulings by the Supreme Court, which held executive actions against newspapers to be illegal, Parliament adopted the first amendment which allowed for “reasonable restrictions” on the free speech right. In 1963 in the wake of the Tamil language agitation in the south and the Punjabi suba movement in the north, the government piloted the 16th constitutional amendment through Parliament, allowing restraints on free speech on grounds of threats to national unity. The Unlawful Activities (Prevention) Act (or UAPA), which operationalised these principles, was passed soon afterwards.

It remains to be asked if the broad punitive sanctions against the media decreed by the Shillong High Court, could be enforced on the basis of judicial precedent. The position on a narrow interpretation of the law would be clear. The organisation that called the bandh in Meghalaya was banned under the UAPA. By this token, it stood stripped of fundamental rights, including the right to free speech. Even without unraveling the complexities of how a bandh differs from a hartal, the action of the organisation was illegal and an infringement on the fundamental rights of Meghalaya’s citizens.

A basic principle for sustenance of the rule of law is that transgressions should be clearly defined and not leave room for any actor – whether an agency of the state or otherwise – to create an offence using overbroad judicial or legislative language. A banned organisation may have forfeited its right to free speech. Leaving aside arguments about the fairness of such a provision, there is ample scope for disputing if, by virtue of a ban, all reporting about such an organisation should also be muzzled. Even if banned, these are organisations whose actions could have a bearing on public life.

Reporting that enhances the capacity to arrive at informed decisions dealing with contingencies arising from the banned group’s actions, would clearly be a matter of public interest. Restraining these would be a violation of personal autonomy, denying the citizen the opportunity to make an informed choice about how he or she should respond to a bandh call for instance. As a collective body, India’s journalists face the most severe threats in regions of endemic conflict, such as Kashmir, the North-Eastern states, and the Maoist insurgency areas in the forested central plains, which stretch across the states of Andhra Pradesh, Chhattisgarh, Orissa, Maharashtra and Jharkhand.

These threats were manifest in the May 2011 advisory sent out to all media organisations in Manipur, warning against the publication or broadcast of material “directly or indirectly in support of the unlawful/ illegal activities of various organisations”. Multiple pressures have led to several mass closures of the press in Manipur. One such closure came in January 2011, after the arrest of an editor in the state capital of Imphal in what appeared to be a police “sting” operation. Just a few months before, threats and counter-threats from rival underground factions had compelled Manipur’s newspapers to shut down for three days in protest at the increasingly insecure environment for journalists.

In the eastern state of Orissa, Laxman Choudhary, a reporter for the daily Sambad, was arrested on 21 September 2009 on charges of “waging war against the state”. This followed the discovery of a parcel of Maoist literature addressed to him, in the possession of a bus conductor in the hill district of Gajapati in the state. Media reports indicated that Choudhary was a popular figure in his home district and had acquired a reputation for exposing police corruption. It was not until December, after four months in prison, that Choudhary was released on bail. Charges of sedition continued to hang over him till well after, constraining his functioning as a journalist.

In the neighbouring state of Chhattisgarh, journalists are often threatened and restrained from reporting on major security operations. Under a draconian security law enacted in 2005, “unlawful activities” were defined broadly and flexibly, in a manner that suited every police constable’s fantasy. Among these were “acts written, spoken or through visual representation”, that interfered or had a “tendency to interfere” with, or posed an obstacle to, the maintenance of public order; which interfered or “tended” to interfere with the administration of the law or “its established institutions and personnel”; which encouraged or preached disobedience to “established law and its institutions”.

There was much else in the Chhattisgarh law that was nebulous – perhaps kept so with deliberate intent – to enable just about any act by the agencies of the State under the broad rubric of the fight against left-wing extremism. Around September 2009, the Union Government in partnership with police in the states most seriously affected by the Maoist insurgency began a security operation that rapidly escalated into a state of virtual lawlessness. This created a palpable sense of siege among journalists in Chhattisgarh. In October 2009, three journalists in the state were issued notices by police ordering them to reveal the sources of news reports. A senior police officer in Chhattisgarh was also reported to have sanctioned aggressive measures, including firing at journalists who crossed into the state from neighbouring districts of Andhra Pradesh to report on operations.

In September 2011, a tribal youth who was actively involved in citizen journalism networks, Lingaram Kodopi, was arrested on charges of raising funds for the banned Maoist insurgents. As a journalist from an indigenous community, Kodopi was a rarity in Chhattisgarh. With his unique access to the lives of a very substantial part of the state’s population, he had been seeking to bring these most often unheard voices into the public discourse. Kodopi had been active filing reports for the mobile phone and internetbased citizen journalism service CGNet Swara, which in turn had been instrumental in bringing to light serious civilian casualties inflicted by a major anti-insurgency operation in Tarmetla in a southern Chhattisgarh district in March that year. Though he had no direct role in that particular news report, Kodopi’s arrest was widely seen as retribution and a signal to any others who may volunteer for citizen journalism.

In January 2011, police in Wardha district in Maharashtra arrested Sudhir Dhawale, as he was on his way back from the neighbouring district of Gondia after attending a convention on Adivasi and Dalit literature. Editor of a magazine of dissenting opinion titled Vidrohi and a freelance contributor to numerous other publications, Dhawale was booked under provisions of the law dealing with sedition and waging war against the state. Dhawale was held in custody for forty months, repeatedly denied bail, before finally being discharged on all counts in May 2014.

Several abuses occurred under the broader rubric of the “global war on terror”, with its axiomatic premises on Islamic extremism. In retaliation against critical reporting on the Indian state’s declared policy of eliminating “Islamic” or jihadist terror, investigative journalist KK Shahina was charged with criminal conspiracy to intimidate witnesses, after her story published December 2010 in the weekly magazine Tehelka appeared to cast doubt on the prosecution on terrorism charges of a prominent Islamic cleric and political figure. Shahina’s story was based on interviews with key witnesses cited in the case made by police in Karnataka state against Abdul Nasar Madhani, an Islamic cleric who heads a party active mainly in the neighbouring state of Kerala.

Sahil Maqbool, a Kashmiri journalist working in Srinagar, was arrested in September 2004, accused of spying for an enemy power and charged under clauses of law relating to “sedition” and “waging war against the State”. He was released in January 2008 on bail. The evidence in the police case included a visit to Pakistan in 2001 for a story on the status of Kashmiris who had crossed over since the insurgency in the region began. Later, in 2004, he was found in possession of a letter from an uncle in Rawalpindi, inviting him for a marriage in the family. The probable reason for his arrest was believed to be certain investigative stories on corruption and official malfeasance. Maqbool’s freedom, won after over three years in prison, was a negotiated freedom since the judiciary had not till then taken up his case and settled it authoritatively.

Iftikhar Gilani, a Kashmiri journalist based in Delhi, was arrested in June 2002 and held for seven months on charges of espionage and violating the Official Secrets Act. The basis of his arrest was the discovery of certain documents in his possession, relating to men and materiel of the Indian Army. This information was then in the public domain and freely available on various websites. India’s Defence Ministry initially made a submission in the trial court that the documents were indeed, classified information. It later changed this plea and stated the reverse. Gilani was discharged after seven months in detention. The probable reason for his arrest was a vendetta against a near relative, who was for long among the most prominent of the dissident political leaders in Kashmir, insistent that the issue of the state’s accession to India was a far from settled matter. Gilani’s was again a negotiated freedom since it required the special benediction of the Defence Ministry, which only changed a patently absurd plea under immense public pressure from journalists and their unions in Delhi.

In June 2008, police in the city of Ahmedabad in Gujarat state, brought charges of sedition and criminal conspiracy against two journalists and the local edition of India’s largest English language newspaper, the Times of India (TOI). The complaint named the resident editor of TOI in Ahmedabad and a reporter, as the principal accused. This followed a series of reports between May 28 and 31, noting that the service record of the city commissioner of police, OP Mathur, was riddled with evidence of serious abuses of power and dangerous liaisons with the underworld. In April 2012, the Gujarat High Court finally ruled on a bunch of applications seeking the quashing of sedition charges.

In granting these applications, the Gujarat High Court quoted liberally from the Romesh Thapar and Kedar Nath Singh judgments, which had seemingly been lost in the thicket of contrary rulings that followed, on the basic issue of the right to free speech. From Romesh Thapar, the Gujarat High Court drew the lesson that “criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the State”. From Kedar Nath Singh, the court drew the principle that “a citizen has a right to say or write whatever he likes about the Government or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law”.

Promoting disaffection and disloyalty is not the same thing as “commenting in strong terms upon the measures or acts of the Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means”. TOI was able to secure a relatively quick release from its travails with sedition law. Four years to secure a full discharge on criminal charges must be considered salvation under the Indian penal system, especially when the accused have not had the misfortune of spending a day in custody.

Quite conceivably, the intent of the Ahmedabad police in bringing charges of sedition against the biggest entity in the Indian media scene was not to take the matter to prosecution – merely to silence the newspaper long enough for an officer with obvious political patronage to serve out his tenure. Media groups endowed with financial muscle and political clout should, in any case, be expected to have an easier time negotiating the vagaries of the law. That luxury is not available to most media practitioners who work outside the patronage of big business groups.

*Sukumar Muralidharan is an independent researcher and writer based in Gurgaon, He is currently holding a fellowship at the Indian Institute of Advanced Study, Shimla. Courtesy: PUCL Bulletin (August 2015).

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