Silence is not a virtue

It was heartening to read all the glowing tributes to veteran journalist Kuldip Nayar and his relentless fight for a free press. The irony is that some of those who do not value the importance of a free press are celebrating his resistance to the Emergency. In the mid-1970s, the threat to media freedom was transparent as it was a top-down command. Now, it has taken myriad forms and operates in a subtle fashion. It is akin to a byzantine maze.

No prior restraint

One of the key tools used to silence a probing press, whose fundamental mandate is to scrutinise those in power, is the prepublication gag order. In recent times, gag orders have been coming as an avalanche. They are in gross violation of the Supreme Court’s 1994 order in R. Rajagopal v. State of Tamil Nadu. The Bench comprising Justices B.P. Jeevan Reddy and S.C. Sen categorically denied the option of prior restraint. The apex court observed that it was important to strike a balance between the freedom of the press and the right to privacy. The court said that the state and its officials do not have the right to impose prior restraints on the publication of materials that may be defamatory to the state. “No such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication,” the court said, but this does not prevent the state from initiating legal proceedings if it finds the published material to be defamatory. In other words, the ruling meant that no one can prevent the publication of potentially defamatory articles; one can only sue after such articles are published. But what constitutes defamation? Why should India permit both criminal and civil defamation? Legal experts have explored these contentious issues at length.

There seems to be a wide gap in the interpretation and application of laws between the higher judiciary and the lower judiciary in India. While the higher judiciary retains the space for freedom of expression, the lower judiciary tends to restrict it on untested legal grounds, often bordering on infringement of fundamental rights. For instance, in Karnataka, nearly 80 cases of blanket prior injunctions were issued against various media houses, including this newspaper. It takes months, if not years, to get these injunctions vacated. It is not just governments that opt for prior restraint to silence the media and hamper the flow of information but also powerful corporate houses.

Last year, the news website The Wire was forced to take down two articles following a court order in a defamation suit filed by Rajya Sabha member Rajeev Chandrasekhar, who is also the vice chairman of the National Democratic Alliance in Kerala. The City Civil Court in Bengaluru gave an ex parte order in the case without even giving the news organisation an opportunity to explain its reason for publishing the material.

The Rafale deal

In September 2016, a €7.87 billion Intergovernmental Agreement for 36 Rafale multi-role fighter jets in fly-away condition was signed between India and France. The deal has become a contentious issue since. It is the duty of the media to examine the deal closely, including the controversial offset deal. However, three companies owned by Anil Ambani served a “cease and desist” notice to the The Hindu against publishing “unverified and speculative” reports relating to the offset contract that was part of the Rafale deal. The notice comes after the Congress alleged that there were financial irregularities in the Intergovernmental Agreement. The party had also raised questions about the manner in which the companies were roped in as offset (export obligation) partners for the deal. The “cease and desist” notice was later sent to some other publications and to Congress leaders.

The Editors Guild of India condemned the “cease and desist” notice and asked the company to withdraw this notice. The Guild was equally disturbed by the gag order issued by the Patna High Court restraining the media from reporting on the investigation in the Muzaffarpur shelter home abuse case.

Only totalitarian regimes prefer silence. A vibrant democracy encourages debate and arguments, and values the need for the free flow of information.

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Printable version | May 6, 2021 11:23:50 PM |

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