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Updated: September 9, 2013 14:35 IST

Negotiated freedom

Prashant Jha
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Wide gap between the law and reality.
AP Wide gap between the law and reality.

A look at the slow erosion in the constitutional guarantee of the right to free speech for journalists

When Xonzoi Borbora, a Guwahati-based scholar and academic, told his friend Anjulika Samom, a journalist in Manipur, he was headed to Delhi for a workshop on Criminalisation of Speech and Defence of Journalists, she had only one message for him – don’t tell them our story.

That story – of how, for the past week, newspapers in Manipur were ‘banned’ and halted publication; of how a militant group had threatened editors and their families to carry the press statements of their group or face death; of how vendors were told they would meet the same fate if they continued distributing such papers; of protests by journalist unions and civil society organisations – barely figured in the national consciousness.

As Mr Borbora put it, “People now don’t want to tell their stories. It will bring out truths one would rather not face. It will force you to confront issues like the intimate space journalists share with armed militants, who are their brothers and sisters, and with the State, to which they aspire.”

Negotiated right

The right to free speech is challenged from various quarters. And the Manipur instance illustrates the complex ways in which journalists have to negotiate their freedom in conflict situations – navigating between both the state and non-state actors who want certain stories published, and certain stories not to see the light of day; challenging them, but keeping the door open for compromise, in order to survive; and meeting the long list of red-lines drawn out under the garb of special security laws.

Mr Borbora did not heed his friend’s advice and narrated the story at the workshop, organised by the Centre for Communication Governance at National Law University and Media Legal Defence Initiative, on Saturday. But this process of negotiation he alluded to is not confined only to ‘disturbed areas’.

Sukumar Muralidharan of the International Federation of Journalists (IFJ) argues that there has been ‘slow erosion in the constitutional assurances of the free speech right’.

It is now a ‘negotiated rather than institutionalized right’, enjoyed only by those ‘who are fortunate enough to be invited into the small tent where the negotiations take place’. “And negotiated freedom, it should be recognised is liable to be revoked at any time.”

Erosion or expansion?

He has arrived at this conclusion by tracing the history of the constitutional and legal basis of freedom of speech. In the early years, the Supreme Court – in the Romesh Thapar versus the State of Madras case – held that restrictions on Thapar’s journal, Crossroads, could not be sustained. On the same day, in the Brij Bhushan versus State of Delhi, regarding Organiser, the SC said there was no constitutional basis for prior censorship of newspaper content. But then began the era of slowly whittling down the freedom, with the first amendment inserting the term ‘in the interests of’ as the criterion which would necessitate ‘reasonable restrictions’ on free speech on a variety of grounds. ‘Friendly relations with a foreign state’ was added as one such condition then.

In 1957, the Punjab Special Powers (Press) Act prohibited publication of certain kinds of content. In 1962, in the Kedar Nath Singh versus the State of Bihar case, the Supreme Court pronounced that an earlier order holding sedition violative of fundamental rights was valid only up to a point. Mr Muralidharan added, “SC had moved from an insistence there should be demonstrable intent to undermine or overthrow the state….to merely requiring a tendency to create disorder or disturbance’. The 16 amendment in 1963 led to additional grounds for restrictions. In 1967, the Unlawful Activities (Prevention) Act was passed. He suggested 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’.

But others are more positive about the evolution of jurisdiction.

Lawrence Liang, co-founder of the Bangalore-based Alternative Law Forum (ALF), believes there is a wide gap between the ‘relatively decent standards’ of substantive case law on such issues and the practice on the ground.

Process is punishment

Jawahar Raja, a lawyer in Delhi agrees. “Look at the pattern. Somebody is offended; there is a furore; the police take action; someone is arrested; then the person, after a battle, is granted bail; and the case peters out of consciousness. In many instances, the case is dropped or there is an acquittal. But the process itself is a punishment. The trial is a punishment. The prosecution knows keeping you in jail pending bail is the punishment.”

He is right. Journalists at the forefront of the battle for free speech, fighting cases, pay a high price – literally and figuratively. They have to hire legal help; they have to appear before courts regularly; they have to navigate legal processes at a time when many of their organisations wash their hands off the case; they face regular intimidation; they spend years in prison as under-trials, which is what makes getting bail so crucial to at least providing temporary relief.

Raising concerns

Dealing with precisely this issue of process, and taking the discussion beyond the legal framework, Sevanti Ninan, who runs the media website, thehoot.org, raises the concerns of practicing journalists. It is not just cases, but the threat of cases; the threat of defamation; direct physical violence; the shift to becoming contract workers; the danger of facing contempt of court, or violation of Official Secrets Act, charges; the pressure to disclose sources, which worries journalists. Any new form of activism around press freedom, and protection of media personnel, will need to take into account precisely such issues.

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