How Indian courts over the years have protected press freedom under pressure
Article 19 of the Indian Constitution declares: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” But threats to the press continue despite this constitutional guarantee.
India ranks 142 out of 180 on the Press Freedom Index. Threats to press freedom can come from many quarters: they could be from politicians or businesses; they could come in the form of police cases, or as defamation lawsuits asking for damages worth millions.
Journalists have been unfairly charged with defamation, sedition, publishing fake news, and “acts prejudicial to the maintenance of harmony between different groups”. Oftentimes the charges are ultimately disproved, but with aspects like detainment, interrogation and raids even the process becomes the punishment.
In conflict areas, these problems get multiplied. Safina Nabi, a journalist in Kashmir shared: “Earlier there was some leniency. Everybody knew we were journalists and we were supposed to do our job. We were allowed to move around in sensitive places. After 2019 [post-abrogation of article 370 that gave the state special status], the whole scenario changed.”
All this makes it seem that the fight for press freedom is doomed from the start. But before the media gives in to that sense of resignation it has to remember that over the years there have been victories for mediapersons in India as well. Courts have played a significant part in this. While the judiciary has also imposed restrictions on press freedom, there are multiple cases when it upheld the right to speech and freedom of expression.
As early as 1972, the Supreme Court of India announced:
“It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.”
The context was the media group Bennett Coleman & Co. challenging the government’s limitations on the import of newsprint. In its judgment, the court found the Newsprint Policy unconstitutional: “If as a result of reduction in pages the newspapers will have to depend on advertisements as the main source of their income, they will be denied dissemination of news and views. That will also deprive them of their freedom of speech and expression. On the other hand if as a result of restriction on page limit the newspapers will have to sacrifice advertisements and thus weaken the limit of financial strength, the Organisation may crumble. The loss on advertisements may not only entail the closing down but also affect the circulation and thereby infringe on freedom of speech and expression.”
The case was especially significant because in 1971 India had been in a state of emergency, with the President having the power to suspend fundamental rights, during the Indo-Pakistan war. In 1975, the country was to be in a similar situation when the then Prime Minister Indira Gandhi imposed the emergency again and the press faced censorship.
Quoting the landmark judgment, lawyer-researcher Praavita Kashyap remarked: “It was a judgement – during a time of intense oppression or attempts at oppression – that really upheld the right of the press and said how important it was to our society, and that restrictions on it were violative of the Constitution.”
Sometimes protecting this freedom has entailed the higher judiciary overturning the judgments of lower courts. In March 2021, a city civil court stopped over forty media houses from publishing allegedly defamatory statements about a member of the ruling Bharatiya Janta Party.
But the state high court of Karnataka went in the opposing direction, reinforcing the voters’ rights to have complete information about their candidates. The bench comprising two judges stated: “The defendants (media outlets) are not prevented from publishing or telecasting any news item which is not defamatory in their opinion. In case the plaintiff (Tejasvi Surya) is aggrieved by any such publication or telecast of any news item he may approach the Election Commission of India.”
The Bombay High Court also underlined public interest in 2018 when rejecting a 2017 lower court order that asked the media not to report on a case because it was “sensational”.
“The principles . . . show a citizen has a right to criticise or comment upon the measures undertaken by the government and its functionaries . . .”
This remark was part of the court order that the Supreme Court, the highest court in India, issued in June 2021 when saying a journalist cannot be arrested on sedition charges for criticism of the government.
Apart from India, sedition still exists in Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey. The UK, which brought this law to India during colonisation, has dropped it, along with Scotland, South Korea and Indonesia.
When two television channels had to fight sedition charges filed by the police, the Supreme Court stood in favour of the media, saying, in May 2021: “It is time we define the limits of sedition.” The judges saw the imposed charges as an attempt to “muzzle media freedom”.
Such judgments reinforced the rights of reporters during the pandemic, when India saw the highest number of press freedom violations in the world under Prime Minister Narendra Modi. The press was attacked legally, verbally and physically for reporting on the establishment’s culpability during Covid-19.
The judiciary also protected press freedom when one publication attacked another. A leading media group in India, Dainik Jagran, attacked fact-checking organisation Alt News for publishing the article ‘Dainik Jagaran’s misleading reports portray mass burials in Prayagaraj haven’t risen due to COVID’. The court expressed, in November 2021: “In such a case . . . there is no reason for the Court to intervene at such an initial stage and stifle the ever-widening contours of free speech, as developed by the Higher Courts. Freedom of speech becomes all the more significant when the subject matter is a matter of larger public concern. In the instant case as well, the impugned article talks about the mass burials in the state of U.P during the horrific second wave of the pandemic Covid-19, which of course, is a concern of and for the masses in India.”
Protection of press people is not limited to reporters but also the sources that help them get the story. In October 2021, with respect to the spyware Pegasus, the court said: “Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.” The court also linked privacy concerns with freedom of the press.
The ease – and the cost – of running a media group or a publication also determines how free a country’s media is. The apex court took this into account in 1985 when it ruled that though the state has the right to levy taxes on publications it must be within reasonable limits. It went on to add: “The authors of the articles which are published in newspapers have to be critical of the actions of Government in order to expose its weaknesses. … Governments naturally take recourse to suppress newspapers publishing such articles in different ways.”
These instances go on to show that no matter how hard the fight for press freedom might be, one cannot give up because even in the toughest of times there have been wins for journalists and publications in India.
The court judgments above are testament to the fact that the judiciary recognises the role the media plays in keeping a democracy afloat. The Indian media needs to remember these precedents and stand together whenever there is an onslaught even against a single journalist. Like Nobel Prize winning journalist Maria Ressa states: “We need to seriously come together and fight because an attack on one is an attack on all . . . Power and bullies will never stop if you give in to them.”
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