Our liberty depends on the freedom of press and that cannot be limited without being lost – Thomas Jefferson
The freedom of the press or the media is one of the most fundamental rights and as Jefferson says our liberty depends on it. It is closely linked with freedom of speech. This one freedom has been the at the root of the most crucial events that have shaped the world we live in today. Freedom of speech and press stands as the most fundamental aspects of our liberty and form the very core of freedom. John Stuart Mill explains the significance of this right in our pursuit of truth. It is a right recognized by most countries throughout the world in their constitutions and is a part of various international documents as well.
The oldest democracy, the largest democracy and everyone in between consider it a sacred right. The French Revolution of 1789, the event is most commonly known for the birth of modern democracy, revolved around the freedom of Press. The declaration of the rights of man issued in 1789, mentions about the freedom of press. It is truly said that without freedom of speech and press democracy cannot exist. The First Amendment of the US constitution, Article 19 of the UDHR, Article 19 of the Indian Constitution are just some examples which illustrate the significance of this right.
The freedom of press is such a right without which the other rights to a large extent lose their value, something which has become truer than ever before in the modern world. It is a part of the age-old majority-minority question. Countries throughout the world place certain restrictions on this right, in ways which are both legitimate and illegitimate. We see the ever-existing conflict between individual rights and state role and power at play. In this article we shall look towards the answers of these questions, the interplay of various factors involved and their possible harmonization. We specifically take the case of India and look at the status the freedom of speech and press in what is the largest democracy in the world.
When talking about restrictions we need to understand the ‘reasonability’ of said restrictions. The Siracusa Principles are essential to be utilized for determining this. SCOTUS decision in New York Times Co Vs. USA also provides and explains about the heavy presumption required for prior constraint on the freedom of press.
Press Freedom Index Ranking: India
India is the largest democracy in the world. The freedom of press is considered a Fundamental Right in the country and as such is held in high regard, at least in theory.
The World Press Freedom Index 2022 published by Paris based Reporters without Borders. It’s aim is to to evaluate the level of freedom available to the media in 180 countries.
India’s position in the report has fallen over the years. When the index was first published in 2002 India’s position was at 80 and now 2 decades later it stands at 150. It is said that time brings progress, but as we can see not in this case, not for India.
Historic and Legal Recognition in India:
The freedom of speech and press has been at the forefront of Indian Democracy. It was one of the core values of the Indian Freedom struggle. The freedom of the press is not specifically enumerated or mentioned in the Indian Constitution. It is covered under the right to freedom of speech and expression covered under Article 19(1)(A) of the Constitution. The Constitution recognises it as a Fundamental Right. However, the Constitution also provides for ‘reasonable restrictions that can be placed on this. This is given under Article 19(2) of the Constitution.
International standards on Freedom of Expression:
The freedom of speech and expression and of the press is widely recognised by various international documents as mentioned below.
- Universal Declaration of Human Rights – Article 19
- ICCPR – Article 19
- African Charter on Human and Peoples’ Rights – Article 9
- Resolution 169 on Repealing Criminal Defamation Law in Africa by the African Commission on Human and Peoples’ Rights – 24 November 2010
- European Convention for the Protection of Human Rights and Fundamental Freedoms – Article 10
- American Convention on Human Rights – Article 13
- ASEAN Human Rights Declaration
‘Reasonable Restrictions’ under Indian Constitution:
The Constitution provides for ‘reasonable restrictions that can be placed on the right to freedom of speech and expression and by extension the freedom of press. This is given under Article 19(2) of the Constitution. Article 19 (2) of Indian Constitution empowers the State to place reasonable restrictions on the following grounds:
- Security of the State;
- Friendly Relation with Foreign States;
- Public Order;
- Decency and morality;
- Contempt of court;
- Incitement to offence;
- Integrity and Sovereignty of India.
Cases relating to freedom of speech and expression and freedom of press:
- Union of India v. Association of Democratic Reform:
The right to speak freely and to express incorporates the right to give and receive information which includes freedom to hold opinions.
- Romesh Thapar v. State of Madras:
In this case, the Hon’ble Court held that the freedom of press is a part of freedom of speech and expression
- Indian Express Newspapers v. Union of India:
In this case, the Court held that the press plays a very important role in the democratic machinery.
- Brij Bhushan v. State of Delhi:
In this case, the Supreme Court struck down the validity of order for forcing pre-censorship on an English Weekly of Delhi
- Anuradha Bhasin v. Union of India:
The requests of suspending the internet were put on hold under the Internet Suspension Rules were dependent upon judicial review, the court, however, avoided considering the shutdown in the Union Territory as illegal.
The Siracusa Principles are a foundation on which to build—in emergencies—state restrictions on rights. These are only justified when they support a legitimate aim and are: provided for by law, strictly necessary, proportionate, of limited duration, and subject to review against abusive applications.
A. General Interpretative Principles Relating to the Justification of Limitations
B. Interpretative Principles Relating to Specific Limitation Clauses
- i. “prescribed by law”
- ii. “in a democratic society”
- iii. “public order (ordre public)”
- iv. “public health”
- v. “public morals”
- vi. “national security”
- vii. “public safety”
- viii. “rights and freedoms of others,” or “rights and reputations of others”
- ix. “restrictions on public trial”
II. Derogations in a Public Emergency
A. “Public Emergency Which Threatens the Life of the Nation”
B. Proclamation, Notification, and Termination of a Public Emergency
C. “Strictly Required by the Exigencies of the Situation”
D. Non-Derogable Rights
E. Some General Principles on the Introduction and Application of a Public Emergency and Consequent Derogation Measures
F. Recommendations Concerning the Functions and Duties of the Human Rights Committee and United Nations Bodies
SCOTUS CASE: New York Times v. United States (1971):
A claimed threat to national security was not justification for prior restraint on publication of classified documents (the Pentagon Papers) about the Vietnam War. In its per curiam opinion the Court held that the government did not overcome the “heavy presumption against” prior restraint of the press in this case. Justices Black and Douglas argued that the vague word “security” should not be used “to abrogate the fundamental law embodied in the First Amendment.” Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperilling the safety of American forces, prior restraint was unjustified.
This landmark case of the US Supreme Court provides for ‘heavy presumption against prior restraint’. This serves as a caveat for the freedom of press against state intervention.
Reporters Without Borders Statement Brief:
On World Press Freedom Day, Journalists Without Borders (RSF) and nine other mortal rights associations ask Indian authorities to stop targeting intelligencers and online critics for their work. More specifically, they should stop executing them under counterterrorism and sedition laws. India is ranked 150th out of 180 countries in RSF’s 2022 World Press Index released moment.
The Indian authorities should admire the right to freedom of expression, release any intelligencers detained on trumped-up or politically motivated charges for their critical reporting, and stop targeting intelligencers and muzzling independent media.
The authority’s targeting of intelligencers, coupled with a broader crackdown on dissent, has inspired Hindu chauvinists to hang, kill, and abuse intelligencers critical of the Indian government, both online and offline, with immunity, the groups said.
The associations are Committee to Cover Intelligencers, Freedom House, PEN America, Journalists Without Borders, International Federation of Intelligencers, CIVICUS, Access Now, International Commission of Justices, Amnesty International, and Human Rights Watch.
Indian Government’s Actions:
Amid growing restrictions on media freedom, Indian authorities have arrested intelligencers on spurious terrorism and sedition charges, and have routinely targeted critics and independent news associations, including raiding their workplaces. Intelligencers and online critics also risk execution under the Information Technology Act and IT Rules of 2021 for content critical of the authorities. Indian authorities have been intertwined in using the Israeli- produced spyware Pegasus to target intelligencers. In addition, the authorities’ frequent internet shutdowns hinder the capability of intelligencers to do their work, including penetrating and propagating information online.
These restrictions on media freedom come amid a raising crackdown on civil society by the Bhartiya Janata Party (BJP)- led government, which is using sedition, counterterrorism, and public security laws to target and make mortal rights activists, scholars, government critics, and peaceful protesters. The groups said that intelligence from non-age groups and those in Jammu and Kashmir are particularly at threat.
In April 2022, at least five intelligencers covering an event organized by Hindu nationalist groups in Delhi were attacked. Delhi police latterly opened a felonious disquisition into one of these intelligencers, Meer Faisal, criminating him of inciting abomination through a tweet, in which he contended that actors in the event attacked him and a photojournalist because they were Muslim.
In March 2022, field authorities in Mumbai averted Rana Ayyub, a prominent Muslim womanish intelligencer and an open critic of the BJP, from flying to London to address a journalism event. The authorities said they did so because of an ongoing disquisition into plutocrat laundering and duty elusion, allegations Ayyub has denied. Independent United Nations mortal rights experts have contended that Indian authorities have wearied Ayyub for times. Government sympathizers and Hindu nationalist pixies have constantly abused and hovered Ayyub on social media.
The Committee to Cover Intelligencers plant that at least 20 womanish Muslim intelligencers, including Ayyub, had been listed on a fake “transaction” app as “for trade” to cheapen, degrade, and blackjack them. All of these intelligencers have reported critically on how the BJP government’s programs have affected religious nonages. Numerous women intelligencers in India, especially those who are critical of the government, face a growing counterreaction on social media that has included rape and death pitfalls. The abuses frequently come from account holders who identify themselves as BJP sympathizers.
Siddique Kappan, another Muslim intelligencer, has been in captivity since October 2020, when Uttar Pradesh police arrested him on unwarranted charges of terrorism, sedition, and promoting hostility between groups. At the time of his arrest, Kappan had been on his way from New Delhi to Hathras quarter in Uttar Pradesh to report on a gang rape and murder case of a youthful Dalit woman that had sparked civil demurrers.
Authorities in BJP- led Uttar Pradesh state have constantly filed false charges against intelligencers for publishing content and social media posts critical of the government. Since 2017, after BJP leader Yogi Adityanath came the state’s chief minister, the authorities have filed felonious cases against 66 intelligencers. Another 48 intelligencers have been physically attacked, according to a February 2022 report by the Committee Against Assault on Intelligencers. Intelligencers in small municipalities and townlets reporting in Hindi language media are at indeed advanced threat of being targeted and fulfilled by authorities.
In Jammu and Kashmir, the government has boosted its crackdown after it abandoned the state’s special independent status in August 2019 and resolve it into two federally governed homes. Since also, at least 35 intelligencers in Kashmir have faced police interrogation, raids, pitfalls, physical assault, restrictions on freedom of movement, or fabricated felonious cases for their reporting. The authorities have ramped up raids on homes of intelligencers and activists and sequestered their cell phones. In June 2020, the government blazoned a new media policy that gave further power to the authorities to bowdlerize news in the region.
Authorities in Kashmir are also using preventative detention under the Jammu and Kashmir Public Safety Act against intelligencers, which allows them to arbitrarily detain people without substantiation and thorough judicial review. In 2022, the authorities rearrested Fahad Shah, Aasif Sultan, and Sajad Gulf under the Public Safety Act after they had been granted bail independently in other cases filed against them in retribution for their journalism work.
Intelligencers in Kashmir have also plodded to do their reporting work because of frequent internet shutdowns by the authorities in the region. According to Access Now, India shut down the internet at least 106 times in 2021, “making it the world’s biggest lawbreaker for the fourth successive time.” Within India, Jammu and Kashmir was the worst affected, with at least 85 shutdowns.
The government is decreasingly using technology to dock mortal rights and stifle freedom of expression online. In February 2021, the Indian government published the Information Technology Rules, which hazard freedom of expression and the right to sequestration. These rules empower the government to pithily impel the junking of online content without any judicial oversight. They also peril encryption, which is pivotal for icing sequestration and security online, and routinely used by intelligencers to cover their sources and themselves from being targeted. The Editors Council of India said the rules undermined media freedom. Three UN mortal rights experts have expressed concern that the rules don’t conform with transnational mortal rights morals.
The Pegasus Project plant that over 40 Indian intelligencers appeared on a blurted list of implicit targets for surveillance. The Indian government has constantly stalled attempts to probe these allegations. This perpetuates a terrain of surveillance immunity that results in a nipping effect on free speech and media freedoms, the groups said.
The groups prompted the Indian government to cover the right to freedom of expression, including by incontinently releasing intelligencers who are arrested for their critical reporting, ending broad and magpie internet shutdowns, withdrawing the media policy in Jammu and Kashmir, and repealing the Information Technology Rules.
“The authorities should also conduct prompt, thorough, independent, and unprejudiced examinations into allegations of pitfalls and attacks targeting intelligencers and critics, including from government officers,” the groups said. “Intelligencers shouldn’t have to risk their freedom and their lives to do their work.”
It is evident that India’s falling position in the index is not just a random statistic, but an indicator of a very deep entrenched problem that exists in the society and the country. The existence of the freedom of press is essential in a democracy, is essential for the existence of liberty. It is essential for Life, Liberty and the pursuit of happiness. John Stuart Mill tells us about the necessity of the freedom of speech and its’s significance in our quest for truth. It is, therefore, essential that the largest democracy becomes a true democracy and that is only possible when the freedom of the press is guaranteed. It is necessary to make sure that restrictions placed on this right are strictly ‘reasonable’ and ‘necessary’ and a combination of existing domestic and international standards should be utilized for determining the same. A rational nexus is at the center of the argument about the requirement of certain restrictions on the freedom of speech and press. The harmonization of individual rights and liberty and states right to intervene is necessary. John Rawls in his theory of justice tells us about an empathetic understanding or a veil, it is only when we utilize this can we achieve the goal of justice. Only then can we do justice to the visionaries who came before us and leave a better world for the ones who come after us. Only then can we do justice to ourselves and to each other.
“Freedom of press is not just important to Democracy, it is Democracy” – Walter Cronkite