A press card is not a precondition for constitutional protection

On October 15, the Supreme Court heard about 32 petitions on alleged police excesses during protests against the Special Intensive Revision of electoral rolls and the Chief Election Commissioner. One strand concerned women journalists who say male police personnel sexually harassed and manhandled them at protest sites. For the Centre, Solicitor General Tushar Mehta said that the government cannot tell "who is a reel maker, and who is an independent journalist". He also said no woman should be inappropriately dealt with by the police and objected to a blanket direction.

Read charitably, this is an administrative complaint: police at a crowded protest cannot verify everyone holding a microphone. That may be true. The question is what follows from it. Justice Joymalya Bagchi said that the Court will examine the varying levels of protection available to accredited journalists, freelancers, independent journalists and influencers. If the protection should shrink to those who can prove they are journalists, it does not survive the Constitution.

Unlike the First Amendment in the United States, the Indian Constitution has no separate fundamental right of press freedom. It is read into Article 19(1)(a). In MSM Sharma v. Sri Krishna Sinha (1959), the Supreme Court said that the press stands on no higher footing than the citizen's freedom of speech and expression and that no privilege attaches to the press that is distinct from the freedom of the citizen. Therefore, journalists may receive protections or professional facilities justified by their work, but that cannot create general immunity from the law and cannot extinguish the fundamental rights of people who are not journalists.

The early press cases follow the same logic. Romesh Thappar v. State of Madras (1950), Sakal Papers v. Union of India (1962) and Bennett Coleman v. Union of India (1972) protected the circulation of information against indirect State restrictions. The Court guarded the communication of ideas, and not the speaker's professional title.

Gathering information is the first step of speech. Recording public officials performing sovereign functions in a public place is not passive observation. It is how an audience gets to know. The better view is that documenting such conduct is part of Article 19(1)(a), subject only to restrictions that Article 19(2) permits. In Kaushal Kishor v. State of Uttar Pradesh (2023), a Constitution Bench held those grounds to be exhaustive, and that additional restrictions cannot be imposed on free speech by invoking other fundamental rights. Not holding a press card is not a ground listed in Article 19(2).

The Chief Justice observed that journalists exercise two fundamental rights: freedom of expression and the right to practice a profession under Article 19(1)(g). That can justify facilities designed for the profession. But the second right adds to the first. It takes nothing from anyone else. A student who records a lathi-charge exercises Article 19(1)(a) too and Article 21 protects her body and liberty whatever she does for a living. A press card is an institutional identifier, not a constitutional patent.

Police have statutory powers to regulate assemblies, disperse crowds and detain; a peaceful person is not immune from lawful detention. But every use of those powers must rest on a lawful ground, follow the applicable safeguards and involve only force that is necessary and proportionate. Those tests apply the same way to a reporter and a reel-maker. Doubt about who someone is can matter for entry into a restricted press enclosure. It cannot change what the law requires before a person is detained or struck.

Reports from the recent protests show why credentials cannot be the dividing line. Three Indian Express journalists were reportedly detained despite showing valid press cards. If a card did not prevent detention for those who held one, a regime built around cards offers little to those who do not. These are allegations before the Court, not findings. The identification problem becomes constitutionally troubling when professional status is used not merely to regulate access, but as a proxy for deciding whose rights deserve protection.

The word "reel-maker" is used in a manner to diminish, but a reel is only a format. Phone recordings can capture the sequence of events, the words spoken and the force applied, from angles a single television crew never sees, or even if sees, chooses not to show. It can also be misleading or selectively edited. So can a front-page story or an exclusive. Courts do not ask what device recorded a video, or who recorded that video. They ask whether it is authentic and what it proves. In that sense, the phone is a decentralised witness.

None of this means everyone who films is a journalist, or that newsrooms are inherently biased. Those claims need their own evidence. No institution gains a monopoly over credibility because it can publish at scale. A citizen who records State power does not forfeit her rights because no newsroom employs her.

Journalists can be treated differently for some purposes. A designated reporting area or accreditation for restricted venues rests on a real function. Under Article 14, a classification needs a rational nexus to its purpose. Credentials have that nexus with access-based facilities. It has none with bodily integrity or freedom from arbitrary coercion, which every person holds equally. Nor does a press card give immunity from criminal or civil law.

The same Constitution Bench held that the State must affirmatively protect Article 21 rights even against threats from non-state actors. If that is the duty when the threat is private, it is hard to see and understand how the State can be less concerned when the alleged threat is its own officer.

Neither side's allegations should be presumed true. A woman journalist who accused a police officer of sexual harassment was booked under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act on the officer's complaint, along with two other journalists. Senior Advocate Indira Jaising told the Court that the Act was being misused to pre-empt her case. The complaint, according to the police, alleges caste-based remarks. Until competent proceedings decide, these remain allegations on both sides, and being a journalist or a police officer proves nothing either way.

The Court's approach to protests points the same way. Himat Lal K Shah v. Commissioner of Police (1973) allowed regulation of public meetings but not unguided discretion. It held that the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public space. The State can only make regulations in aid of the right of assembly of each citizen and can only impose a reasonable restriction in the interest of public order. Mazdoor Kisan Shakti Sangathan v. Union of India (2018) balanced protest against residents' interests without treating either as absolute. The State may regulate protest by law. It may not suppress it by discretion.

Orders the police cannot apply protect nobody, so the Solicitor General's wariness of blanket directions deserves a serious answer.

First, a universal baseline. No person at a protest site may be detained, searched or subjected to force except on a lawful ground. Recording police conduct from a lawful position is not, by itself, such a ground.

Second, facilities should follow function, not title. Where journalists get designated areas or access, eligibility should turn on identifiable work and accept several forms of proof, such as an institutional identity card, a body of published work or something on the lines of it, so that freelancers are not excluded by default.

Third, complaints of sexual violence need an independent forum. On the Network of Women in Media's plea, the Chief Justice said that the Bench was prima facie agreeing that a committee should be predominantly or exclusively women, possibly including a former woman judge or police officer. That was an observation in court, not an order, and the final directions may differ. Independence from the force under review is what will give its findings weight.

Fourth, accountability must produce findings. Complaints of assault or unlawful detention should be investigated through a procedure that preserves video evidence, whoever recorded it, and records what happened rather than who the complainant is.

A press card can explain why a person is at a protest; it cannot decide whether she leaves with her liberty and dignity intact.

Shivam Aggarwal is a final year law student at Campus Law Centre, Faculty of Law, University of Delhi.