Centre's submission in Supreme Court on COVID-19 reporting: Undemocratic curtailment of freedom of press in the garb of a crisis?

The right of the media to report without any fear, favour, influence or interference was recognised in Indian mythology; Narad Muni was perhaps the first journalist. His birthday, which falls on May 8 this year, is celebrated as Patrakar Divas (Journalists’ Day).

He was considered as the official gossip monger, but his ultimate goal was always betterment of every soul, living or dead, with no vested interest of his own. Narada once also cursed Vishnu. Despite all this, the Gods never even once entertained the thought to restrict Narada’s untrammelled freedom.

Recently, in the Supreme Court, in the course of hearing a matter pertaining to migrant workers amid the Coronavirus outbreak, the government filed a status report.

It was prayed that “in the larger interest of justice” the Supreme Court issue a direction that “no electronic/ print media/web portal or social media shall print/publish or telecast anything without first ascertaining the true factual position from the separate mechanism provided by the Central Government…” (Emphasis supplied).

The aforesaid is an attempt to restrict the freedom of the press and media to report and comment. Inherent freedom of the press to report is an internationally recognised concept. Laws all over the world, especially in progressive societies of developed countries, have not just acknowledged this, but also upheld and celebrated this vested right of the press and media.

Concept of Freedom of Press in India

The British rule in India was oppressive. As such, the press in India was critical of their rule, which was naturally not liked by the colonial rulers and hence various laws were enacted to curtail the freedom of the Indian press.

Some of the laws relating to press enacted during the British rule are The First Regulation, 1799, Gagging Act, 1857, The Press and Registration of Books Act, 1867, Sea Customs Act, 1878, The Vernacular Press Act, 1878, The Indian Press Act, 1910, etc. All these laws were enacted to restrict the circulation of press and gag the expression of free opinion, which was contrary to British interests in India.

Post-Independence, the Press Council of India came into existence by virtue of the Press Council of India Act in 1965. The present Press Council functions under the 1978 Act, under which the Council is a statutory, adjudicating organization and self-regulatory watchdog of the press. The Council’s chairman traditionally is a retired Supreme Court Judge. While the Council cannot award damages to an aggrieved party, the power to censure, which the Council possesses, if properly used, can become extremely effective.

Judicial Pronouncements

The Supreme Court of India and High Courts throughout the country have, through various judicial pronouncements, championed the cause of a free press and have struck down any attempt by the government/s or powers that be, to interfere in their free functioning.

In Printers (Mysore) Ltd. & Ors. v. Asst. Commissioner Tax Officer & Ors, the Supreme Court held that freedom of press has always been a cherished right in all democratic countries and that the democratic credentials of a state are judged today by the extent of freedom the press enjoys in that State.

The Supreme Court of India in Life Insurance Corporation of India & Ors. v. Manubhai D. Shah stated that speech is God’s gift to mankind and therefore freedom of speech and expression is a basic human right and natural right, which a human being acquires by birth.

In the same judgment, while referring to the United Nations' Universal Declaration of Human Rights (1948), the Supreme Court stated, with respect to ‘reasonable restriction’ stated in Article 19 (2), that a constitutional provision is never static, it is ever evolving and therefore, does not admit a narrow, pedantic or syllogistic approach.

The Supreme Court almost prophetically warned in the following words,

“Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.” (Emphasis Supplied).

In S Rangarajan v. P Jagjivan Ram, the Supreme Court held that freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. Open criticism of government policies and operations is not a good ground for restricting expression.

The Court observed that tolerance towards views of others should be practised and stated that intolerance is as much dangerous to democracy as to the person himself.

The Calcutta High Court recently, in Dr. Indranil Khan v. State of West Bengal & Ors, observed that if an expression of opinion brings the government into disrepute, it cannot defend this allegation by intimidation of the person expressing the opinion by subjecting him to prolonged interrogation, seizing his mobile, etc.

Despite these judicial pronouncements upholding the freedom of the press, India ranks poorly at 140 in the Reporters Without Borders Press Freedom Index (RWBPFI), just above Pakistan which is at 142. Developed countries like USA and UK rank at 48 and 33 respectively.

Conclusion

Freedom of the press is one of the very important factors in determining the level of democracy enjoyed by a State, and India is lagging way behind developed countries in that aspect.

Seeking a direction to prohibit press/media from publishing anything without first ascertaining facts from the government’s bulletin impinges on the freedom of press.

Free dissemination of information is imperative for the masses to judge how well their representatives are performing, especially in times of crisis, and whether they have lived up to the promises they made before elections.

It also helps to thwart any attempt by the government to whitewash its shortcomings. Therefore, freedom of the press to function independently is sine qua non to keep a democracy alive.

The author is an Advocate-on-Record at the Supreme Court of India.