Securing the expression rights

The Chairman, Press Council of India (PCI) is intervening in a writ petition by a Kashmir Daily Newspaper Editor challenging the media blackout in the wake of bringing serious changes in Article 370, not in favour of press freedom but against it!

In conflict with objectives and statutory duties of PCI, it has chosen, that too without informing or discussing in Council meeting, to defend the restrictions on the Media in Jammu & Kashmir. The main function of the PCI is to work for preserving the freedom of the press and journalists could expect legitimate intervention of independent PCI to rescue their 'freedom of press'.

Anuradha Bhasin, Executive Editor of Kashmir Times, has filed a Writ Petition under Article 32 before Supreme Court seeking a writ to the Centre to relax total blackout of media, mobile, internet and landline services, on freedom of movement of journalists and media personnel in Kashmir and some districts of Jammu to enable journalists to practise their profession and exercise their right to report, in furtherance of their rights under Articles 14, 19(1)(a) and 19(1j)(g) and 21 as well as the Right to Know of the residents of the Kashmir Valley. Since August 4, mobile phone networks, internet services, and landline phones were discontinued and shut down, leaving Kashmir and some districts in Jammu completely isolated from all possible modes of communication and information. No formal orders under which such action was taken was communicated, and the authority behind such excessive and arbitrary action is still unknown. The communication blockade and strict restrictions on the movement of journalists resulted in a virtual blackout, and media reporting and publishing grievously impacted. The Civil Secretariat of J&K Home Department, justified saying that, ''Keeping in view the latest intelligence inputs of terror threats, with specific targeting of the Amarnath Yatra, and given the prevailing security situation in the Kashmir Valley, in the interest of safety and security of the tourists and Amarnath Yatris, it is advised that they may curtail their stay in the valley immediately and take necessary measures to return as soon as possible".

The Press Council of India is supposed to facilitate fair criticism and their proper publication. Fairness in the imposition of restrictions on freedom of speech needs to be reviewed and PCI should offer a way out. The PCI has a statutory duty to remove state obstructions to fair exercise of press freedom and to intervene to prevent shrinking of the speaking space.

Under section 13 of the Press Council Act, 1978 the PCI has a mandate to (i) maintain high standards of public taste, (ii) foster "a due sense of both the rights and responsibilities of citizenship" on part of newspapers, news agencies and journalists and (iii) to "keep under review any development likely to restrict the supply and dissemination of news of public interest and importance".

In Sakal Papers (Pvt) Ltd v Union of India (1962) 3 SCR 842, this manner of using indirect means to impinge, on the freedom of newspapers was held unconstitutional, stating inter-alia that, ''Its object thus is to regulate something which, as already stated is directly related to the circulation of a newspaper. Since circulation of newspaper is a part of the right of freedom of speech, the Act must be regarded as one directed against the freedom of speech…. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution".

Two PCI members found that the wording of the PCI intervention petition was dangerous and gives an impression that a free and open media was a threat to the nation's sovereignty.

Assuming that the restrictions on press freedom could be justified in 'national interest' or 'for national integrity' as claimed by PCI, the Supreme Court still has a huge scope to examine a) whether total blackout was warranted, b) could there be limits on such wide-open restrictions, some parts of happenings could have been allowed to be reported, etc. Even the period for which such total blackout and reasonability of a whole-sale blockade for an indefinite period could be examined on facts and circumstances. Reasonability of restriction in the context of the situation prevalent is what was envisaged by the Constitution. Still, there is a scope for the judiciary to examine the need and validity of the blockade, its duration, lethal effects on the right to know of the people in general. It is not just the freedom of speech of journalists in Kashmir, but the right to know, right to speak out and various other rights of the citizens in Kashmir which are totally curbed. It is a fundamental right of the citizen to enforce his right to constitutional remedy, which is a unique remedy incorporated in the Indian Constitution, under Article 32. The Press Council is supposed to act independently as an institution to secure the expression rights of the people at large and those of journalists. An independent Press Council cannot act as a subordinate office of the Union Home Ministry!

If there is any weapon that protects democracy, it's the freedom to express a critical opinion. Every democratic Constitution must facilitate, declare and protect the people's right to tell, write, represent, petition and challenge constitutionality of a policy that curbs expression en bloc.

Every citizen, like every journalist, has a right to inputs from the media or other sources to question the wrong steps of any government. Building up people's opinion and pressurising the government to revise or reverse the policy is a dynamic requirement.

(The author is Former Central Information Commissioner & Professor of Law at Bennett University, Greater Noida. The views expressed are strictly personal)