infirm laws, negotiated freedoms

7/29/2019 Infirm Laws, Negotiated Freedoms

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Infirm Laws and Negotiated Freedoms

Sukumar Muralidharan

Paper presented at National Law University,Delhiconsultation on

Criminalisation of Speech and the Defence of Journalists

7 September 2013

Several among those gathered here have known at first hand that despite all

the constitutional assurances available here in India, laws with overbroad

provisions add to institutional weaknesses of the judicial apparatus, leading

very often to active violations of the right to free speech. There have been

several cases of journalists being charged with any, or several, of a number of

offences they are liable to, given their professional calling of reporting news

they believe to be in public interest. Yet very few among these cases have been

taken to the stage of prosecution and a final judicial determination of rights

and wrongs. This is good in that it spares the individuals the prolonged agony

of the trial process, but bad in that it results in the absence of clear judicial

direction and the lack of an evolved jurisprudence.

In the circumstances, a culture of enforcing silence through legal action or

judicial injunction has flourished. And this is an option open to both state

agencies and private entities. Then there are the constant hazards of

censorship through mob violence -- perpetrated usually by non-state actors --

though often with the tacit backing of state agencies. Finally, we have in

existence a climate of absolute impunity, which ensures that there is just no

manner of deterrent against the ultimate form of censorship, which is thekilling of media workers.

The context in which the political and judicial doctrines of free speech have

evolved or failed to evolve has been fairly well described. To recapitulate

some of the main events in this story: the press as Dr B.R. Ambedkar famously

stated during the Constituent Assembly debates, would have no specific

charter of rights under Indian law. Its rights and entitlements are no different

from those of any citizen and are enshrined in the fundamental rights clauses


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of the Indian Constitution and in particular, article 19, which is about the

freedom of expression, of commerce, of association and much else.

The fundamental rights section was discussed over several days during the

Constituent Assembly debates. And there was sufficient awareness then of itscentrality in the constitutional scheme being evolved. As one of the speakers

then put it, article 13 of the draft constitution, which later became article 19,

was truly the charter of our liberties and probably the most important

article in the whole Draft Constitution.

Yet, as a number of members pointed out, the draft provisions they had before

them, did not adequately reflect the range of aspirations of the Indian people.

Indeed, there were suspicions that the bureaucracy an inheritance of thecolonial rajinterested in order more than liberty -- had introduced a number of

restrictions on the fundamental rights first set down in a 1947 draft of the

constitution.1

The overhanging trauma of the killings and mass human

migrations that had occurred with the partition of India, did not dilute this

insistence on a broad charter of liberties, rather than one severely qualified by

the fear of disorder.

Granville Austin describes this last phase of debate as a triumph of libertyover bureaucracy.

2Two notable drafting changes reflected this success in

pushing back against bureaucratic resistance. First, the term sedition was

removed from the conditions under which the fundamental right to free

speech could be restricted. It just did not seem right in the aftermath of

freedom, that the robust criticism of established authority -- a duty that

Mahatma Gandhi had enjoined as a basic commitment of citizenship should

be stigmatised as a criminal act. A second important change was that every

restriction imposed on the fundamental rights, would be qualified by a test of

1As one of the speakers (Kengal Hanumanthaiah, later to be Chief Minister of Mysore state

and Union Railway Minister) put it on 2 December 1948: For the last sixty and odd years

during which the freedom movement was taking shape, we made innumerable speeches

and sacrifices in order to win the fundamental rights that are incorporated in this article.

But, the point of view of many members here as well as the opinion of some people outside

is that these fundamental rights have been so much curtailed that their original flavour is

lost.2The Indian Constitution: Cornerstone of a Nation, p 74.


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reasonableness. This introduced a test akin to that of due process , where

judicial review would be applicable.3

Finally, the restrictions clause as applied to free speech, spelt out that as a

constitutionally safeguarded fundamental right, it would not limit theapplication of any existing law that related to libel, slander, defamation,

contempt of Court or any matter which offends against decency or morality or

which undermines the security of, or tends to overthrow, the State."4

Neither

would it impede the enactment of any law that required the free speech right

to respect these red lines.

Challenges were quick to emerge in the political and judicial domains. From the

left of the political spectrum came Romesh Thapar, editor of the CommunistParty journal Crossroads which was banned from circulation in Madras state

under a state statute.5

In deciding the case ofRomesh Thapar versus the State

of Madras, the Supreme Court held that the restrictions imposed on

Crossroads were unsustainable, even on the grounds of the exceptions granted

to the free speech right. It was beyond doubt in the Courts opinion, that

freedom of speech and expression includes freedom of propagation of ideas,

and that freedom is ensured by the freedom of circulation. The restrictions

imposed on the journal on grounds of public security did not satisfy the tests

prescribed under the law. Indeed, said the majority on the Supreme Court

bench: Our attention has not been drawn to any definition of the expression

public safety, nor does it appear that the words have acquired any technical

signification as words of art.6

The majority on the Supreme Court found it noteworthy that the word

sedition freely applied in the call to ban the newspaper -- had in

3Ibid. Curiously, by what seems obvious oversight, reasonableness was not set down for

any restriction that might be introduced in the free speech right.4

Effectively, this clause negated article 13 of the Constitution as adopted on 26 November

1949, which required that all laws in violation of the provisions of the Constitution as it

stood then would stand repealed.5

The Madras Maintenance of Public Safety Act, 1949.6Romesh Thapar vs The State Of Madras, 26 May, 1950; Equivalent citations: 1950 AIR 124,

1950 SCR 594. With appropriate apologies for seeming to trivialise the argument, the bench

asked if an epidemic of reckless driving that caused traffic accidents; or an epidemic

outbreak of disease, which also endangered public safety, would warrant similar restraints

on free speech.


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Constituent Assembly debates, been omitted with deliberate intent from the

final text. As the five-judge majority read it, this underlined that criticism of

Government exciting disaffection or bad feelings towards it is not to be

regarded as a justifying ground for restricting the freedom of expression and of

the press, unless it is such as to undermine the security of or tend to overthrow

the State.

On the basis of article 13 of the Constitution which required the deletion of all

existing laws that did not meet the standards of protection held out in the

fundamental rights chapter, the Supreme Court held as unconstitutional the

specific provision of the Madras (Maintenance of Public Order) Act under

which the ban on Crossroads was enforced.7

The case ofBrij Bhushan v State of Delhi which represented a challenge from

the right to the first amendment, was decided by the same bench by a majority

of five with one dissent. At issue here was the order by the administration in

the state of Delhi requiring that Organiser, a weekly magazine of extreme

chauvinist dispositions, subject itself to pre-censorship. In the deeply fraught

aftermath of independence and partition, the espousal of a virulently partisan

position by the journal was found to be undermining the administrative effort

to restore order. Some of its content was also thought to be deeply offensive to

the fledgling government in the neighbouring state of Pakistan, whose

cooperation was then considered necessary for redressing the deep wounds of

partition.

In Brij Bhushan, a judgment rendered the same day as Romesh Thapar, the

Supreme Court held that there was no constitutional basis for prior censorship

of newspaper content.

7Another principle was upheld in the ruling: of the Supreme Court as the final guarantor of

the fundamental rights. Romesh Thapar had then taken his plea for judicial remedy not to

the High Court of Madras state which would under normal principles of judicial procedure,

have had original jurisdiction in the matter, but to the Supreme Court. And the Supreme

Court found this to be reasonable in terms of procedure. Even if a lower court had

concurrent jurisdiction, the Supreme Court could not, as the protector and guarantor of

fundamental rights ... refuse to entertain applications seeking protection against

infringements of such rights. Arguments of inappropriate choice of forum, drawn mainly

from U.S. jurisprudence by advocates appearing for the respondents, the Supreme Court

held, were not quite on point since the constitutional schema in the U.S. was quite different.


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These two judgments and a few others which impinged on the capacity to

introduce affirmative action for those disadvantaged by custom and tradition,

were the immediate trigger for the first amendments to the Constitution,

introduced by Prime Minister Nehru in the Lok Sabha in May 1951. The

amendment bill inserted the rather broad term in the interests of a variety of

ends, which would necessitate reasonable restrictions on free speech.

Among these, friendly relations with a foreign state was introduced as a

condition, specifically to counteract the Brij Bhushan judgment. The first

amendment also removed the more specific requirements that a speech act

should undermine or tend to overthrow the State, to attract the

prohibitions of law.8

Soon afterwards, Parliament passed the Press (Objectionable Material) Act of

1951 which provided for seizure of printed material and forfeiture of assets of

newspapers that fell foul of the law. In contrast to the general formulations

employed in the first amendment bill, this act laid down very specific

conditions in which harsh punitive measures could be employed, including

material being printed that could incite the withholding of food and essential

commodities and services to any section of the people, induce acts of

insubordination or disloyalty by members of the armed forces, or contribute toany criminal act such as extortion or blackmail, murder or mob violence.

9In

what constitutional scholar Granville Austin has described as a curious affair,

this act was amended several times before being repealed in 1957. There is no

known record of any newspaper being arraigned under this law, nor of any

serious challenge to its validity on constitutional grounds. There has been

reportedly one case where some of the more draconian provisions of the law

were upheld by a High Court. And in the ambience of righteous indignation at

what Prime Minister Nehru called some of the wretched rags that had

appeared on the publishing scene, a number of state governments enacted

equally coercive laws that endowed them with the power to enforce

compliance in the press, when required.10

8The Constitution (First Amendment) Bill, 1951, introduced 10 May 1951; extracted from:

http://indiacode.nic.in/coiweb/amend/amend1.htm.9

Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, p

49.10

Rajeev Dhavan, Only the Good News: On the Law of the Press in India, p 122.
http://indiacode.nic.in/coiweb/amend/amend1.htmhttp://indiacode.nic.in/coiweb/amend/amend1.htmhttp://indiacode.nic.in/coiweb/amend/amend1.htm


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The mood was clearly shifting by this time. When bitter political and social

discord engulfed Punjab in 1957 over language policy, a number of orders were

issued under one of the special state laws enacted in the aftermath of the first

amendment: the Punjab Special Powers (Press) Act, prohibiting the publication

of content that could aggravate the tension between Punjabi and Hindi

speakers, and also preventing the entry into the territory of publications even

remotely seen to be carrying similar content.

In the case that came up soon afterwards, the Supreme Court held that the key

change introduced by the first amendment in the clause restricting free speech

in the interest of made all the difference. Although free propagation and

interchange of views are ordinarily in social interest, circumstances may arise

when social interest in public order is greater and the imposition of reasonable

restrictions on the freedom of speech and expression and on the freedom of

carrying on trade or business becomes imperative.

The circumstances in which the impugned law was passed were relevant. So

too were the extent and urgency of the evil it sought to remedy. Perhaps

most important of all, was the enormous power wielded by the Press11

with

its modern facilities of quick circulation, which created the very real risk of

abuse. Taking into account all these factors, the Supreme Court held that the

restrictions imposed by the impugned Act must be held to be reasonable

restrictions under the Articles (of the Constitution).12

In 1962, the Supreme Court pronounced in Kedar Nath Singh versus the State

of Bihar, that an earlier ruling by the Allahabad High Court holding the sedition

clause of the Indian Penal Code (section 124A) in violation of the fundamental

rights provisions, was valid only upto a point. The constitutional utility of the

clause it ruled, was retrieved by a consideration ofthe history of sedition. In

11Ever reference to the Press as an entity is capitalised in this judgment, almost as a

matter of underlining its seeming power.12

Virendra vs The State Of Punjab, 6 September, 1957: Equivalent citations: 1957 AIR 896,

1958 SCR 308. The serious sense of threat perception recognised in this judgment from the

power of the press which was then as now, subject to a twenty-four hour cycle of news

gathering, verification and dissemination offers a faint foretaste of the sense of absolute

panic that occasionally seems to grip the law and order authorities in matters involving the

rapid spread of information over the internet today (not to mention the mobile telephone

network).


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any event, its application was to be limited to acts involving intention or

tendency to create disorder, or disturbance of law and order; or incitement to

violence.13

Here we see a much looser standard in the application of this most draconianof clauses. In just over ten years, the Supreme Court had moved from an

insistence that there should be a demonstrable intent to undermine or

overthrow the State which would be the point at which all rights would

vanish since authority of the State is their ultimate guarantor -- to merely

requiring a tendency to create disorder or disturbance.

By this time, liberty was in tumultuous retreat and the voices of order had

begun dominating the discourse. The border conflict with China in 1962inflicted a deep wound on the nationalist psyche. And it did not help that the

Punjabi suba and Dravida movements in the north and the deep south were

just around the same time, beginning to cause spasms of extreme anxiety

among the central leadership over the possibility of the whole constitutional

order unraveling.

The Sixteenth Amendment to the Constitution was moved on 18 January 1963,

when the country was still under a state of Emergency following the Chineseborder incursions of October and November. In his statement on objects and

reasons, Law Minister A.K. Sen described the purpose of the bill as giving

effect to a recommendation by the National Integration Council , that article

19 be suitably amended to provide adequate powers to the Union for the

preservation and maintenance of its integrity and sovereignty.14

In the

space of just over a decade, the Union stood transformed. From being a

body that would enshrine the fundamental rights of those who as the

preamble to the Constitution put it chose to constitute India into a sovereign

republic, it had by political and legislative process, mutated into an organism

that could potentially extinguish the sovereign rights of citizens in maintaining

itself.

13Kedar Nath Singh v Union of India; 1962 AIR 955, 1962 SCR Supl. (2) 769

14 The Constitution (Sixteenth Amendment) Act, 1963; extracted from:

http://indiacode.nic.in/coiweb/amend/amend16.htm


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The years that followed were unhappy for the Indian nationalist spirit. In

December 1963, civil disturbances broke out in Kashmir over the

disappearance of a sacred relic from the Hazratbal shrine in Srinagar. Within

days, violent reprisals began against the minority Hindu community in East

Pakistan, provoking in turn, retaliatory attacks on Muslims in Calcutta and

other parts of West Bengal. Very soon, communal riots had engulfed a vast

swathe of territory in India, representing the worst crisis of national

reconciliation since the injuries of partition.

In May 1964 the death of a Prime Minister seen as much as a parent as a

political leader, added to the drift in the national conscience. A further wound

came from successive monsoon failures in 1965 and 1966 and agrarian

catastrophes which raised the prospect of rampant inflation and civil unrest in

most of the country.

It was in this mood of heightened national anxiety that the Unlawful Activities

(Prevention) Act (UAPA) was passed into law in 1967, its purpose being to

operationalise the philosophical shift that the Sixteenth Amendment had

signalled.15

For the constitutional scholar and commentator A.G. Noorani, the UAPA was alaw that spared the heretic only if he remained silent, one that eminently

deserved to be struck down by the Supreme Court. For Granville Austin, it was

undemocratic and intellectually wrong-headed.16

But far from being struck

down, the UAPA was only embellished by no fewer than five amendments

each of which added to the range of special powers held by the State, the last

of which was in December 2008, shortly after the 26 November terrorist

attacks in the city of Mumbai.

15The Statement of Objects and Reasons of the UAPA reads as follows: Pursuant to the

acceptance by Government of a unanimous recommendation of the Committee on National

Integration and Regionalism appointed by the National Integration Council, the Constitution

(Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law,

reasonable restrictions in the interests of the sovereignty and integrity of India, on the- (i)

freedom of speech and expression; (ii) right to assemble peaceably and without arms; and

(iii) right to form associations or unions... The object of this Bill is to make powers available

for dealing with activities directed against the integrity and sovereignty of India.16

Austin, Working a Democratic Constitution, p 53.


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Particular attention must be drawn towards sections of the UAPA which would

have the immediate impact of putting anybody in a conflict situation at serious

hazard of legal action. Section 13 says that anybody who actively takes part in

or commits an unlawful activity as defined by the law, or advocates, abets,

advises or incites the commission of such an activity, would be liable for

prosecution and imprisonment for upto seven years. Section 22 lays out a

similar broad demarcation of offences.

A general inference seems warranted by this history of slow erosion in the

constitutional assurances of the free speech right: first off, that this is a

negotiated rather than institutionalised right. And it is a right that is enjoyed

only by those who are fortunate enough to be invited into the small tent

where the negotiations take place. This inference seems warranted by a

curiosity in the history of constitutional debates over press freedom: invariably

only those matters reach a stage of authoritative judicial determination where

free speech is a convenient camouflage for the commercial calculations of the

media industry.

We can cite three concrete instances that support this inference.

First, the protective legislation on journalists wages and working conditionshas been consistently ignored by the media industry. This goes back to March

1955 when the Indian parliament took up a bill to extend the Industrial

Disputes Act passed into law in 1948 and designed to protect the industrial

working class from arbitrary dismissal and other abuses to journalists.

Political support for the legislation was overwhelming. A more positive

affirmation of journalists rights came with the passage of the Working

Journalists Act (WJA) later in 1955. Again, Parliament united across all partisan

divides in approving the bill. The WJA was introduced in the Lok Sabha by

Information Minister B.V. Keskar, with the following remarks:

In some ways, the Bill itself is not a major Bill. It is a small Bill. .. But, it is

important.. that we are trying to apply it to an industry which up to this

time was not able to get all these benefits, a piece of legislation, which,

for the better working of our Press, for the better security of our

journalists and therefore for a better, I would say, freedom of the press

in this country .


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This was one of the few occasions when journalists job security was spoken of

as an ingredient of the policy mix safeguarding press freedom. Perhaps the

most important of the WJA provisions, was its empowerment of a statutory

wage fixing machinery. A Wage Board constituted under the act came up with

a comprehensive award mid-1957. It was a contentious process, with employer

representatives on at least two vital points voting against the chairman and the

journalists representatives: the classification of newspaper groups on the basis

of gross revenue; and the fixation of entire wage scales rather than just

minimum levels.

Soon after the wage scales for journalists were fixed, the newspaper industry

went in appeal to the Supreme Court, arguing that the WJA was ultra vires of

the Constitution in being an intrusion into the fundamental rights to free

speech and commerce. At issue particularly, was the potential havoc that the

statutory wage award for journalists could cause to their commercial fortunes.

In a ruling rendered in 1958, the Supreme Court held that the WJA itself was

not in breach of fundamental rights provisions of the Constitution, since it did

not have the explicit purpose of abridging the right of free speech, nor could a

measure of welfare protection for industrial workers be held to be an intrusion

into the right of commerce. But the wage award that had been worked out

under the act was in contravention of the act itself, since it did not take into

account the capacity of the newspaper establishments to bear the financial

burden imposed.17

Part of the reason why the wage board was unable to arrive at a fair

determination of the capacity to pay, was the obduracy of the newspaper

industry about maintaining its financial parameters as closely guarded secrets.

Then owned almost entirely by private companies, newspapers were under no

legal obligation on financial disclosure. That pattern of behaviour has

continued to this day. The most recent wage board for journalists and

newspaper workers the G.R. Majithia wage board submitted its report in

December 2010. Yet again, the implementation of the award has been held up

by the newspaper industry which is capitalising on the ambiguous legacy of the

17Express Newspapers (Pvt) Ltd and Another versus Union of India and Others, equivalent

citations: AIR 1958 SC 578, (1961) ILLJ 339 SC, (1964) ILLJ 9 SC


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1958 ruling. And yet again, the chairman of the wage board, in remarks after

the exercise was concluded, spoke of a certain failure to obtain anything like a

cooperative response to his various inquiries on financial parameters from the

newspaper industry.

Another key moment in the history of press regulation in India comes in 1962,

when in the case of Sakal Newspapers v Union of India, the Supreme Court

struck down the Daily Newspapers (Price and Page) Order of 1960, which

imposed the norm that newspapers should be priced at a level proportionate

to the number of pages it carries. This might seem today like a clumsy and

quixotic effort at controlling the press, but its purpose was then widely

appreciated to be legitimate. Since advertising revenue was the key to

newspaper viability and the bigger newspapers particularly those published

in the English language had a preemptive claim to the aggregate of

advertising expenditure in the economy, they also retained the competitive

power to drive lesser players out of business through predatory pricing

strategies. The price-page schedule was a regulatory device that enjoyed fairly

wide endorsement, particularly from the small and medium newspaper

segment and the Indian language press. In striking down the measure, the

Supreme Court ruled that the Constitution provided no mandate for restrictingone category of right (to commerce) in order to better protect another (to free

speech).

The implications of this judgment resonate to this day, when we have seen a

sequence of ruthless price wars between the major newspaper groups and a

retail price for newspapers that devalues the news and information function

and puts up a formidable barrier to entry for newer players.

A further landmark comes in 1972, when the Supreme Court struck down a

newsprint rationing scheme introduced in a situation of extreme scarcity, as a

protective measure for small and medium newspapers. In handing down its

judgment in the case of Bennett Coleman and Co Ltd v Union of India, the

Supreme Court ruled that the reasonable restrictions allowed under the

Constitution did not permit the abridgment of the rights of one category of

citizen the larger newspapers in order to better protect the rights of

another (the small and medium newspapers).


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Of special significance in this context is the lone dissenting judgment delivered

from a bench of five, by Justice K.K. Mathew, who explicitly conceded the

possibility of a conflict between the public interest and the profit motivations

of the press. Using a theory of the freedom of speech that essentially viewed

it in terms of twin entitlements -- to speak and be informed Justice Mathew

observed that the distribution of newsprint for maintenance of (newspaper)

circulation at its highest possible level .. (would).. only advance and enrich that

freedom. As a constitutional principle, freedom of the press was no higher

than the freedom of speech of a citizen. The problem at hand was one of

bringing all ideas into the market (to) make the freedom of speech a live one

having its roots in reality. In pursuit of this ideal, it was necessary as a first

step, to recognise that the right of expression is somewhat thin if it can beexercised only on the sufferance of the managers of the leading newspapers.

In a 1982 ruling in the case ofExpress Newspapers and Others v Union of India,

the Supreme Court urged a reconsideration of duties imposed on the import of

newsprint, on the grounds that these interfered with the right to free speech,

as embodied in the press. To the argument that the public interest of

enhancing government revenue was served by the levy of the customs duty,

the Court responded that article 19 did not allow for any restrictions ongrounds of public interest. Indeed, it argued, the public interest served by

the newspaper industry in meeting the civic need for information was impeded

by the levy of a duty on newsprint imports.

Clearly, there are various difficulties in squaring these judicial determinations

with the need for maintaining an open media environment, in which all citizens

would be equally entitled to exercise their right to free speech. Rather than

being solidly institutionalised rights, these are rights that are negotiatedbetween the States will to establish its writ and the media industrys drive

towards maximising its profits. And negotiated freedoms, it should be

recognised, are liable to be revoked at any time. In terms of the realities of

journalism at the local level, we see this tense dialectic at work, especially in

regions of conflict and insurgency.

Case studies:


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Sahil Maqbool, a Kashmiri journalist working in Srinagar, was arrested in

September 2004, accused of spying for an enemy power and charged under

clauses of law relating to sedition and waging war against the State. He

was released in January 2008 on bail. The evidence cited against him includes a

visit to Pakistan in 2001 for a story on the status of Kashmiris who had crossed

over since the insurgency in the region began. Later, in 2004, he was found in

possession of a letter from his uncle in Rawalpindi, inviting him for a marriage

in the family. The probable reason for his arrest could be certain investigative

stories that he worked on, on corruption and official malfeasance. Maqbools

freedom today must be regarded a negotiated freedom since the judiciary has

not yet taken up his case and settled it authoritatively.

Iftikhar Gilani, a Kashmiri journalist based in Delhi, was arrested in June 2002

and held for seven months on charges of espionage and violating the Official

Secrets Act. The basis of his arrest was the discovery of certain documents in

his possession, relating to the men and materiel of the Indian Army. This

information was then in the public domain and freely available on various

websites. Indias Defence Ministry initially made a submission in the trial court

hearing his case that the documents were indeed, classified information. It

later changed this plea and filed an affidavit that stated the reverse. He wasdischarged after seven months in detention. The probable reason for his arrest

was a vendetta against a near relative who is a senior leader of dissident

political formation, the Hurriyat, in Kashmir. Gilanis is again a negotiated

freedom since it required the special benediction of the Defence Ministry,

which only changed a patently absurd plea under immense public pressure

from journalists and their unions in Delhi.

Iftikhar was confined to his home and his family was harassed on the day inFebruary 2013 when Afzal Guru was executed in secrecy in Tihar jail.

Uncertainties in conflict zones

In parts of India where insurgent activities have been causing serious security

anxieties, media practitioners often have to negotiate with local authorities on

the latitude they are allowed in reporting on activities deemed inimical to

national sovereignty and integrity. These negotiations do occasionally win

them a fair degree of freedom: for example, newspapers in Kashmir often carry


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statements issued by banned organisations such as the Jammu and Kashmir

Liberation Front (JKLF) and the Hizb-ul Mujahedin (HuM). A further illustration

comes from May 2009, when state-wide civil disturbances broke out over what

seemed to be the murder of two women in the town of Shopian and news

channels carried live a media conference by dissident leader Ali Shah Geelani,

then supposedly under house arrest.

This was a negotiated freedom, since local cable operators are not under

Indias broadcasting law, allowed news and current affairs broadcasts. But

when the trouble spread, this negotiated freedom was revoked with little prior

warning or ceremony. As the agitation over the Shopian deaths spiraled out of

control, local channels were called in and told that their sources of finance

were known to the administration and could be the basis for criminal

prosecution. They were directed to stop news broadcasts entirely. The decision

was partly diluted a month later, when all local channels were asked to confine

their news broadcasts to 15 minutes everyday the same 15 minute time slot

for all.

From June 2 onwards three days after the event journalists from Srinagar

seeking to go to Shopian were actively restrained, turned back and even

attacked, by security forces.

On 8 August 2013, the National Investigation Agency (a body with a wide

mandate in the investigation of terrorism crimes) wrote to the editor of a daily

newspaper in Imphal, Manipur, asking for the original image published in the

paper in 2010 and the identity of the photographer.

An editor in Manipur, authorised by the journalists union to negotiate on

issues of safety with underground groups, was arrested in December 2010 in asting operation in which the police impersonated members of a banned

underground group.

On 2 September 2013, Manipurs journalists went on a two-day strike,

paralysing all media activity in the state, to protest the multiple pressures they

work under.

From Assam, a Wide Diversity of Legal and Moral Issues


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Parag Kumar Das, editor of Asomiya Pratidin and well-known writer in

Assamese was killed in May 1996 in broad daylight in Guwahati, the same day

that a new government took office in the state. He was an outspoken advocate

of the rights to cultural autonomy of the Assamese people hence possibly a

known offender under sections 13 and 39 of the UAPA, though he was not

known to have touched a firearm or actively advocated violence. Charges were

filed in this case in 2001, following a new government assuming office in

Assam. All the accused were members of the insurgent outfit ULFA that had

surrendered to Indian security forces locally they were known as the

surrendered ULFA or SULFA elements. Of four accused, two were already

deceased at the time charges were filed. One was killed in mob violence in

2003 while out on bail. The sole accused to go to trial was acquitted in July2009. There was then widespread outrage among Assams journalists and

human rights defenders that several key witnesses had not been summoned,

that key evidence had been tampered with, and that the case had been

constructed to ensure a guilty verdict was a remote possibility.

There have been cases from Assam in which the killing of journalists have not

been quite so easy to attribute to their work. For instance, Jagajit Saikia,

correspondent for Assamese daily Amar Asom was killed on 22 November2008 in Kokrajhar soon after serial bombing in the district headquarters town

on 29 October, which were blamed on the insurgent outfit, National

Democratic Front of Bodoland (NDFB). This organisation had entered into a

ceasefire agreement with Indian government in 2005 but was known to be

divided over this course of action. Saikia according to Assam police, was known

to have been a fund-raiser for the NDFB, and may have fallen victim to the

factional struggle within the organisation. The Journalists Union of Assam was

sceptical about the police account, since they had no basis to believe that

Saikia was engaged in contacts with the NDFB that went beyond allowable

professional limits.

Anil Mozumdar, Executive Editor of the Assamese language dailyAaji, was shot

dead near his home in Guwahati, 24 March 2009. Aside from his journalism,

Mozumdar was also known to be involved in a serious business dispute,

merging with a marital separation, between a major politician in the state and

his spouse. He is believed to have stepped far out of line in his coverage of this


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issue and to have benefited financially. His real estate interests in Guwahati

city also were significant.

Other case studies in impunity

Among cases where journalists are attacked with intent to kill in retaliation for

their work, a clear recent instance is that of Umesh Rajput from Raipur in

Chhattisgarh, murdered in January 2011 for exposing a case of medical

negligence in which a poor adivasi woman was deprived of her eyesight. Soon

afterwards, in Rewa in the neighbouring state of Madhya Pradesh, a reporter

Rajesh Mishra, was murdered after writing a string of articles on schools

owned by a local notable.

Other modes of in which negotiated freedoms are revoked for journalists

The denial of free movement is a hazard that journalists in Kashmir often face.

In times of civil unrest and sometimes even as a preventive measure local

authorities are quick to impose curfew in the entire region. Journalists are

entitled to receive curfew passes from local administrations, wherever they

work. But even when these are granted, they are rarely honoured by the

security personnel including central paramilitary force personnel who man

the numerous checkposts that dot the valley.

Police official in Chhattisgarh directing combing operations against Maoist

insurgents were caught issuing explicit instructions in 2009 that journalists who

are seen coming in the way be dealt with, with maximum force.

In Chhattisgarh again, there was a serious incident in March 2011, when

journalists accompanying a relief convoy to villages that had been razed in a

police operation, were blocked and assaulted.

Then there is the all too frequent denial of essential tools of the trade: such as

internet connectivity and mobile phone network, most recently imposed in

Kashmir in February 2013, when the former militant Afzal Guru was executed

in secrecy in Delhis Tihar Jail.

In the north-east, newsprint being transported into the landlocked state of

Manipur is often subject to numerous levies by militant groups operating along

the route. This raises cost of newspaper production considerably in the state.


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The denial of professional recognition or credentials for journalists is a feature

of those who work for the small and medium newspaper segment all across

the country. Even the larger newspaper deny any manner of formal recognition

to those who work for them in the smaller district towns. These individuals are

expected to harvest ads for the newspaper. Above a certain threshold, they

would be entitled to keep a small percentage of the ad revenue they collect as

a fee.

Journalism has, in line with other pursuits in the recent past, become

increasing casualised as a form of employment. The journalists freedom is in

this manner, negotiated with the media owner and subject to revocation at the

latters pleasure.

infirm laws, negotiated freedoms

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