-by Ninad Ajane & Ramsha Reyaz
The foundations of a successful democracy are based upon the transparency in the working of the elected government and the citizens being aware of the happenings in the country. Media plays an important role in making sure that people are constantly updated about happenings around the world. Thus, it becomes imperative that the media be free from the influence of the government. If the government starts interfering in the media, then it results in the hands of the media being tied. The media, in such a situation, doesn’t remain free to criticise the government. This results in only a certain narrative being peddled to the public at large. This can be clearly seen in South Sudan, where the freedom of the press is nearly non-existence.
South Sudan is just a single example. According to Reporters Without Borders, Turkmenistan is the worst country for freedom of the press. There have been incidences where entire events have been deleted from history due to censorship. A telling example of this is the Tiananmen Square incident. Young people in China are mostly oblivious to their history.
The situation in India is not at all rosy. India ranks 142nd in the rankings provided by Reporters Without Borders. A rank which has deteriorated from last year. There have been many instances where journalists were targeted in recent times. Violence against journalists has been on the rise. Kashmir is the hotbed in this situation. With the erstwhile state and current union territory being thrown into complete chaos with the longest continuous internet shutdown in the world and the partial abrogation of Article 370, the central government took out a circular which grants the government complete control over deciding what consists of fake news. The objective of the media policy has been stated as an attempt to create a “sustained narrative on the functioning of the Government in media” and to “thwart misinformation, fake news and to be alert to any attempts to use media to incite communal passions, preach violence, or to propagate any information prejudicial to the sovereignty and integrity of India”. The Media Policy also allows the government to review the “antecedents of the newspaper as well as its publishers and editors” before empanelment of these forums for government advertising. These provisions can have serious constitutional repercussions. Fake news currently is a problem that needs to be addressed. However, the government cannot be the sole authority to decide upon the veracity of the news.
Freedom of Press: A fundamental right
The Constitution of India guarantees the right to freedom of the press. This right has been read into Article 19 (1) (a) of the Constitution. The Article guarantees the freedom of speech and expression to citizens of India. There is no specific provision that guarantees the freedom of the press and the right flows only from Article 19 (1) (a). This was established in Bennet Coleman Co. v. Union of India.
In the recent judgement of Yashwant Sinha v. CBI, the Supreme Court held that the media needs to be free of bias while reporting on incidents. It also held that even if a document was obtained by questionable means it could be published. Justice K. M. Joseph went on to state, “Media’s consumers are entitled to demand that the stream of information that flows from it, must remain unpolluted by considerations other than the truth.” The media policy enables the existence of bias in the working of the press as they would work to keep the Directorate of Information and Public Relations (DIPR) happy to make sure they still remain in business and are not subjected to harassment by the government.
A policy which lets the government control the narrative by deciding upon what can be considered as fake news and which newspaper gets empanelled based on the previous work that has been published is against the notion of freedom of the press.
Importance of Press Freedom in Disturbed Areas like J&K
Jammu and Kashmir has been a hotbed of violence; torn between an armed rebellion and the action of the armed forces. The Indian state machinery has been, time and again, accused of grave human rights violations in J&K. According to a report by Jammu and Kashmir Coalition of Civil Society (JKCCS), the armed forces have resorted to the use of torture on civilians, have been involved in custodial killings, enforced disappearances, illegal detentions, sexualized torture and other violations. Human rights organizations like the Office of the United Nations High Commissioner for Human Rights (OHCHR) and Amnesty International too have expressed grave concerns regarding human rights abuses in J&K and the impunity that the armed forces enjoy under AFSPA (Armed Forces Special Powers Act, 1958). In such an environment, a free media can become the voice of the voiceless and hold an immense amount of power as well as responsibility in making the State and its forces accountable for any violations and deflections in carrying out their duty towards the citizens. The journalists in Jammu and Kashmir have already been accusing the administration of crushing their voices, especially after the abrogation of Art 370 in August 2019. Journalists alleged severe restrictions on the actions of the media, including suspension of local newspapers immediately after the partial abrogation of Art 370. International Press Institute, in its report, raised serious concerns against the increased pressure and repression on journalists, including increased censorship and surveillance, coupled with the communications and internet blockade in J&K in 2019. The report quoted Khurram Parvez, a human rights activist, as having said: “… there is arm-twisting going on, there is censorship, there is gagging”. Kashmir Press Club too expressed concerns about harassment of journalists and continuous summons being issued to journalists in J&K in an attempt to “muzzle free speech”.
The administration has cited “law and order and security considerations” as being an instrumental reason for passing the Media Policy. The same reasons have already been used to limit internet speeds to 2g in the Union Territory of J&K, a move which has been criticized on account of rights considerations, especially during a pandemic. The policy not only gives the government the powers to decide what content qualifies as being fake news, but it also puts the government in a position to decide what is “unethical” and “anti-national”. This can prove to be a very dangerous provision, especially in the current scenario where journalists across India, including J&K, have been booked under various provisions, like the recent FIRs against journalists Gowher Geelani and Masrat Zahra, who were booked under the Unlawful Activities Prevention Act. The Media Policy hasn’t been received well in the political circles of J&K, as major political parties like People’s Democratic Party and National Conference have criticized the media policy and described it a “remnant of colonial-era censorships”.
India has experienced the dangers of excessive censorship and curbs on the media prior to its independence, as free speech was curbed by Acts like the Press Act of 1910. Therefore, the Courts have cherished and emphasized on the importance of freedom of the press in the post-independence era. Justice Bhagwati emphasized on the significance of this right and stated: “…free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Indeed, the true measure of the health and vigour of a democracy is always to be found in its press”.
The media policy enables the DIPR to determine what qualifies as fake or anti-national news and empowers it to take legal actions against journalists. This implies that the directorate will have the discretion to classify dissent or even allegations of human rights violations as fake and anti-national news and curb the freedom of journalists. The policy also mandates a “robust background-check” of the journalists, although the functioning of the media is already regulated through agencies like the Press Council of India. This provision of the policy would open the journalists up to extreme interference and harassment by the authorities, and lead to the complete loss of freedom of the press in J&K. The policy mandates checking the previously published works of the news agency as well as editors so as to decide which agencies can be empanelled for government advertisements. This implies that the government could act in a biased manner against the media houses which are critical of the administration’s functioning. This provision increases the ambit of the government’s power over the press in J&K, and no such provision exists in the Print Media Advertising Policy which applies to the rest of the country. These provisions could lead to increased intimidation of the media, curbing of dissent and violation of Article 19 of the Indian Constitution.
There are provisions that restrict the freedom of speech and expression, but such provisions must be reasonable and must not be allowed to completely crush the independence of the press. The Supreme Court has emphasized on the role of the media and stated: “The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in newspapers have to be critical of the action of the government in order to expose its weaknesses”.
The globalized and modernized world has become exposed to an enormous flow of information, including fake news and misinformation, and these have the potential to harm the social order and harmony. There is a need to establish mechanisms to counter fake news, but this cannot be done at the expense of the freedom of the press. The government must look out for factually incorrect news, but if the power to decide what classifies as fake news is handed over to the government authorities, the balance of democracy is lost. Many fact-checking initiatives have been launched to counter the ‘infodemic’ of misinformation and such steps can be taken at a larger scale to curb the spread of misinformation. The government can and should take steps to hold the media responsible for fulfilling its moral duty of employing thorough fact-checking mechanisms before publishing news. However, the media policy announced by the authorities gives the government a dangerously enormous amount of power to curb dissent under the garb of “thwarting misinformation”. Employing mechanisms to differentiate genuine news coverage from fake news is the need of the hour, but when such mechanisms can be used to hold dissent synonymous to fake news, the principles of democracy and accountability are completely defeated.
Views are personal.
Image credits: Huffington Post India
ABOUT THE AUTHOR
Ninad Ajane and Ramsha Reyaz are currently pursuing law from Maharastra National Law University, Mumbai.