The Need to Define Freedom of Speech Contours for Indian Media

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The freedom of speech of the press in India and the extent to which it extends is a pertinent question today. On one end, the pandemic has seen a rise in arrests of journalists. These arrests are a threat to media freedom and their right to dissent. On the other side, the Indian media is heavily criticised for distorting facts to sensationalise news. Absolute freedom of speech thereby could enable journalists to encourage communal disharmony and civil unrest.

Every case relating to journalistic freedom has now become a matter of grave political and legal importance. There is a dire need for courts to contextualise the legal precedents concerning Article 19 and the freedom of expression allowed to the press. The courts should also define the extent of curbs on such freedom under Article 19(2) of the Constitution. However, the courts currently decide on every case on an individual basis, leading to inconsistent rulings. 

This phenomenon is clearly reflected in the case of Sudharshan News’ broadcast about the “infiltration of Muslims” in civil services. The Delhi High Court stayed the broadcast of the show titled “UPSC Jihad” whereas the Supreme Court refused to do so on the same day. 

Background 

Suresh Chavhanke, owner and chief editor of Sudarshan News, shared a promotional video for his show on Twitter. The footage used terms such as “Jamia ke Jihadi” while talking about the rise of Muslim civil servants. The video led to numerous enraged citizens filing multiple FIRs against the channel across states. More than 1,700 citizens — including prominent journalists, film directors, lawyers and civil society members — signed a petition to seven chief ministers. The petition demanded that an FIR be registered against Chavhanke for spreading ‘hate speech’. The Indian Police Service Association denounced the video as communal and irresponsible journalism in a tweet. The Indian Police Foundation and several other people demanded strict action against Chavhanke.

The Supreme Court and Delhi High Court orders 

 The Supreme Court on 28th July refused to pass a pre-broadcast injunction order to stop the telecast. The bench comprising of Justices DY Chandrachud & KM Joseph stated that it has to desist from imposing a pre-broadcast injunction based on an “unverified transcript of a 49-second clip”. However, the court noted the views expressed in the video had a “divisive potential”. Thus, it stated that petition had thus raised significant issues bearing on the “protection of constitutional rights”. On the same day, Delhi High Court had stayed the telecast of the show. 

Even after the Supreme court order, the Delhi High Court stood by its decision. It stated that the respondents admitted to the veracity of the clip played before the High Court. It thereby justified the reason for its differing view since the Supreme Court had refused to stay the order stating the clip to be unverified. It stated that the promo is prima face in violation of Programme Code set out under the Cable Television Networks (Regulation) Act, 1995. 

The High Court will hear from the respondent on 1st September. The Supreme Court issued notice to Union of India, Press Council of India, News Broadcasters Association as well as Sudarshan News. It will hear the matter on 15th September. 

Increasing fake news and misleading narratives

Indian media has lately seen an alarming rise in fake news. Television news especially has faced heavy criticism for sensationalising news as well as misleading viewers. One such recent case was that of infamous television anchor Arnab Goswami. The case was regarding multiple FIRs on Goswami’s statements linking a masjid to a gathering of migrants outside Bandra station and politicising the Palghar lynching case. The Bombay High Court leaned on the side of journalistic freedom. It suspended the FIRs and stated that there was no prima facie case against him. 

The court’s protection provided to Goswami, however, lies in contrast with the plight of journalists in the country. It also brings attention to the inconsistency of the Supreme Court regarding staying of FIRs. While the Supreme Court stayed FIRs against Amish Devgan and OpIndia’s Nupur Sharma, it refused to do so for the FIRs against Vinod Dua. This alarming trend alludes to protection provided for pro-government media. On the other end, dissenting media is being increasingly stifled. 

Declining Journalistic Freedom 

The curb on journalistic expression is a vital issue in the country. India’s place in Reporters Without Borders’ press freedom index has dropped. It was 136th in 2015 and is now 142nd in 2020. 

In addition to assaults and deaths of journalists, the year has also been a strife with many FIRs filed against journalists. These arrests have continued even during the Covid-19 pandemic. There have been accusations of the government stifling the media. Meanwhile, the media stands accused of sensationalising and inciting unrest in society. 

The arrest of journalists in 2020

  • UP lodged two FIRs against Siddharth Varadarajan, the founding editor of The Wire. This was concerning an article about Yogi Adityanath’s presence at the Ram Navami festival. 
  • The J&K Police booked photo-journalist Masrat Zahra. This was under section 13 of the UAPA and 505 of the IPC. They booked her in the Cyber Police Station of the Kashmir Zone for her social media posts. 
  • The government booked Dhaval Patel, editor of the Face of Nation, with sedition. This was for writing about the change in Gujarat’s political leadership by the BJP after the State’s rapid rise of coronavirus cases. 
  • Delhi Police’s crime branch registered an FIR against senior journalist Vinod Dua.This was based on a complaint filed by Delhi BJP spokesperson Naveen Kumar.
  • West Bengal Police booked five TV journalists after they conducted a sting operation. The operation showed state ministers and TMC MLAs allegedly taking bribes.
  • Maharashtra police booked Rahul Zori, a TV9 Marathi reporter. They booked him for reporting irregularities in the relief camps for migrants.

These cases only serve as a few examples of the rising police action faced by the media. This trend is prevalent across different states as well as political parties. But, Goswami’s case has gained significant traction. This is due to the political and ideological battles ongoing in the country. 

The way ahead 

The country is at an interesting crossroad today. On one end, rising fake news and sensationalism by the media is causing disharmony in the country. On the other end, there is a dire threat to dissent by those in power. The courts can play an essential role by striking a balance between both.

The Bombay High Court order in the Goswami case widens the scope of journalistic freedom against the threat of public harmony. The protection provided to Goswami must be extended to other journalists as well. 

The Goswami order sets high standards for proving a certain speech caused public disharmony. It should be ensured that such strict interpretation is applied to all cases regarding freedom of the press. However, the Sudarshan case might be able to highlight the need to place curbs on freedom of speech. It could lay down a broad line wherein freedom of speech can be said to veer strongly into the category of hate speech. 

Facts of each case will play a crucial role in determining the verdict. But, the judiciary must ensure that the curbs applied to these journalists are fair. Currently, the Supreme court has various pending petitions asking for guidelines for filing FIRs against journalists

Recently, the Supreme court heard a petition asking for the regulation of new channels. The petition also asks the government to set up an independent broadcast regulatory authority. A bench headed by Chief Justice of India SA Bobde issued a notice on 7th August 2020 to the central government, seeking a response within four weeks. The petition stated that sections of electronic media “have been spreading negativity and enmity among the different communities of the nation”.

Thereby, there is a strong need for the judiciary to step in and reiterate a universal view through a series of decisions on press freedom. This will help determine where Indian jurisprudence lies on the tussle between public harmony and journalistic freedom of expression.


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