Supreme Court and the Fourth Pillar: Rulings on Press Freedom in the recent past
No government, irrespective of the political party in power, is really interested in freedom of the press. All democratic governments are keen to control the media by using undemocratic means.
The Supreme Court has a long history of being the chief protector of the freedom of the press. It has consistently and strongly rejected all attempts by successive governments to muzzle the media.
However, it seems to be faltering in recent times, albeit unwittingly and unintentionally. On some occasions, it has been the result of a slow, tardy and passive approach to issues of an urgent nature. On other occasions, by passing orders without hearing interested parties, simply relying on statements made by law officers, and without thinking through the possible outcome of such orders.
Three recent instances expose the chinks in the armor.
The Kashmir Blackout
On January 10, 2020, the Supreme Court passed the much-celebrated judgment in Anuradha Bhasin v. Union of India and the connected batch of petitions.
The brief background was that in August 2019, the government suspended mobile phone networks, internet services, and landline connectivity in the valley, while imposing restrictions on movement in some areas.
These restrictions were imposed even as an order was issued by the President of India applying all provisions of the Constitution of India to the State of Jammu & Kashmir. Petitions were filed before challenging these actions of the government.
The matters pertaining to freedom of the press and the suspension of mobile and internet connectivity were taken up separately. Anuradha Bhasin, the executive editor of one of the major newspapers in the Valley, approached the Supreme Court as early as on August 10, 2019, alleging that freedom of the press was impinged by the acts of the Central government, particularly by the suspension of mobile and internet connectivity.
The Court rightly posed the following questions, amongst others:
“Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?”
The Court, in its judgment dated January 10, 2020, reiterated that freedom of speech and expression includes the right to disseminate information. It further held that the wider range of circulation of information or its greater impact cannot restrict the content of the right, nor can it justify its denial.
It held that the right to carry on any trade or business under 19(1)(g), using the medium of internet, is constitutionally protected. Directions were given to review the orders suspending internet connectivity. The District Magistrates were also directed to review orders prohibiting free movement under Section 144 of the Code of Criminal Procedure (CrPC).
The problem is that it took six months for the courts to decide this issue. In the meanwhile, the Valley had suffered a gruelling information shutdown. In preventing access to information by throttling the media for almost half a year, no one was permitted to know how civilians were tortured and protestors harassed. All this, given the record of human rights violation in the valley, even during normal times.
The Supreme Court, by not treating the matter with the urgency it should have received, and by not intervening and preventing the media blackout, had given the government exactly what it wanted. Time.
Order on COVID-19 reporting
The article titled 'The Supreme Court has become an Unlikely Detractor of the Free Press' by Harshitha Reddy and Pradyuman Kaistha, as published in ‘The Wire’ on April 13, has discussed in some detail the facts leading to the passing of the order by the Supreme Court on March 31, 2020. The relevant extract of the order of the Supreme Court reads as follows: -
“In particular, we expect the media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.”
This order was passed in a PIL filed for redressal of grievances of migrant workers during the present Coronavirus pandemic. Further, the issue of “fake news” was not before the Court. There was no direction to implead the Press Council of India before this ambiguous order was passed. The order is reported to have been passed on an apprehension raised by the Solicitor General.
The immediate outcome of the vague Supreme Court order was that the Home Secretary, Government of India, wrote to the Chief Secretaries of all the states, informing them of a Supreme Court Order in which it took “serious note” of the panic created by “fake news.”
The letter further goes on to state that the Centre is creating a web-portal where people can “verify facts and unverified news”. The said web portal is since up and ready. The web portal tells us what the government wants us to know. Only.
The government, under the pretext of the Supreme Court order, is thus attempting to control the narrative. The press briefings of the Health Secretary have since become shorter. Media reports indicate only selective journalists, known to be pliant to the government, are permitted entry to the press briefings. Those who are present are not permitted to ask questions. No tough questions regarding testing, payment to migrant workers, shelter and food to the poor and the homeless need to be asked or answered. All in the name of the Supreme Court.
In the Supreme Court's defence, the order does not mandate that freedom of the press be curbed. In fact, the order specifically states that it did not intend to interfere with the free discussion about the pandemic. However, by passing such an order, the Court ought to have known how any devious government was likely to abuse such an order.
Tablighi Jamaat incident
Contrast this with the order passed by the Supreme Court on April 13, 2020. A petition had been filed by the Jamiat Ulema-i-Hind, an organization of Islamic scholars, seeking directions to the Centre to take strict action against the section of media communalizing the COVID-19 pandemic by repeatedly invoking the Tablighi Jamaat meeting in Delhi.
The petition raises a serious concern over the way communal colour is sought to be given to one of the worst pandemics the world has seen. Violence against members of the Muslim community has been widely reported in the media. Worryingly, even the press briefings held by the Health Secretary have repeatedly referred to the Tablighi Jamaat meeting.
The prayers in the petition require urgent orders to prevent any untoward incident, especially in the wake of the recent Delhi Riots. The Supreme Court passed an order directing that the Press Council of India be impleaded as party. The matter has been directed to be listed after two weeks, which may be too long.
Interestingly, media reports suggest that the Bench orally observed during the hearing of the matter that Courts cannot gag the press. The concern of the Court is laudable and correct. One only hopes it was more consistent.
Information is the only weapon the public has to question the government and to protect its own interests. People need information and free discussion to make intelligent choices as citizens. Of course, there is no absolute freedom of the press, and it may be restricted in certain cases which fall strictly within the confines of Article 19(2) of the Constitution of India. Those in power ought to protect the press from calculated, vicious attempts to muzzle free speech and dissemination of information.
The author is an advocate practicing in the Supreme Court.