The hallmark of a democratic nation lies in the freedom granted to its citizens. The freedom for individuals to express their thoughts and opinions and to have their voices heard by the public is of utmost importance. Equally significant is the unrestricted role of the press as a potent medium of mass communication, enabling its contribution to develop a robust and thriving society. The question of whether Press Freedom should be included as a statutory right under Part III of the Constitution was extensively deliberated by the Constituent Assembly. During these discussions, Dr B.R. Ambedkar argued that individuals and the press should enjoy the same rights to expression. He believed that singling out the press for special protection was unnecessary as the institution of the press reigns on similar grounds as an individual or a citizen.[1] This decision was made to ensure that the democratic principles of the country received the highest level of safeguarding.
However, the deliberate exclusion of an explicit mention of the Press in the constitution proved to be a disastrous move given the current situation in India. The democratic fabric of the nation is gradually unravelling due to the growing prevalence of censorship activities aimed at controlling the dissemination of information. In a democracy, the media plays a vital role as the fourth pillar, enabling the system to function transparently. Unfortunately, it is often one of the primary targets when democratic institutions come under attack. The media’s multifaceted role as a conduit for information, the voice of the people, and the evaluator of the government endows it with substantial power as a stakeholder capable of driving governance changes.
This influence and impact of the press on people have not been ignored in India’s different political structures that evolved with its history. A colonised India under the East India Company was a victim of stringent laws that suppressed nationalist voices. Publication houses were subjected to intense surveillance to monitor national newspapers and other regional papers for potentially disruptive language that could challenge the established ruling administration. This started the disturbing trend of free speech being associated with propaganda for anti-state activities, thus leading to brutal penal laws for publishing about the corrupt activities of the British Raj.
The era of suppression eventually tagged as censorship has now made a cosy place for itself as the dictator’s best friend and the democrat’s guardian. Censorship in tandem with sedition has superseded the applicability of Article 19 of the Indian Constitution. Free Speech in a democracy comes with the price of an arduous indictment process and tag that boldly associates impartial journalism with “Terrorism”. The British established a dual-edged sword in India, by introducing a free press with the nation’s first newspaper but with immense restrictions on the subjects for news coverage.
Press Freedom and Censorship Laws in British India
James Augustus Hickey, famously dubbed the father of the Indian Press, is known for introducing the first newspaper in India- the Bengal Gazette.[2] Despite being of English origin, he zealously wrote about the corruption the company attempted to bury without public knowledge. Indian nationalists, inspired by Hickey, started their publications in vernacular language sowing the seeds of nationalism.
These anti-colonial events leading up to the 1857 Revolt alerted the British that the previously imposed self-censorship had no real impact on the papers that were steadily publishing news articles criticising the government. The era of licence regulation commenced targeting regional newspapers where running a Press without a licence was declared an illegal and punishable offence. The aftermath of the Great Revolt of 1857 led to the tightening of British control over press freedom by the Gagging Act.[3] The Act, curtailed any publication against the British as seditious while strengthening their licensing system. The Press found ways to circumvent the Act and fearlessly continued its editorials against the British administration. The distinction between English language and Regional language newspapers grew steadily as the freedom movement gained momentum.
The Bengali weekly paper, Amrita Bazar Patrika, was under fire for reporting the deplorable condition of the exploited Indigo Farmers.[4] The paper was the first of its kind to delve into investigative journalism. The articles focused on criticising and exposing the antics of the British administration and campaigning for civil rights and the release of incarcerated nationalists. Lord Lytton, the then Governer- General of India found it appropriate to intervene at this stage by introducing the Vernacular Press Act of 1878, where the government was firm on suppressing seditious articles against its authority in regional text.[5] In response to the new rule, Amrita Bazar Patrika flaunted its bilingual capabilities by printing its paper solely in English.
By 1908, authorities demanded the examination of manuscripts before they went to publishing, by introducing the Press Act of 1908.[6] Licences were revoked, journalists were arrested, and capital punishment for seditious writing was all part of the bundle of British imposed censorship, trying to convert the print media to favour the British. The Press remained headstrong in its agenda and continued with its publication finding alternatives to every crackdown by the authorities.
The Evolution of the Sedition Law into Digital Censorship
The present law on sedition is the continuance of the 1870 law drafted by Lord Macaulay during the pre-independence period to curb nationalist speeches and writings by notable names like Mahatma Gandhi and Lokmanya Tilak, who remained unfazed by imperialist legislation.[7] It was included in the Indian Penal Code a decade later broadening its meaning to “exciting disaffection.” Disaffection as interpreted by Justice James Strachey in the conviction of Bal Gangadhar Tilak implies hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government.
The section was cautiously approached in the Constituent Assembly after plenty of other Indian leaders were charged with sedition in an attempt to pause the Freedom Movement. The law was considered archaic and reminiscent of a grim era where free speech and expression were under a grave threat. Vallabhbhai Patel included the word while presenting the Rights of Freedom in 1947, exempting language that was “seditious, obscene, blasphemous, slanderous, libellous, or defamatory”.[8] Alternatively, Somnath Lahiri, a leader of the Communist Party of India, objected to the term “seditious,” stating that even in England, a speech is not considered a crime unless accompanied by an overt act.[9] Despite its conflicting implications, the law was introduced under the protection of Section 124A of the Indian Penal Code but removed from its previous Constitutional protection, for implementation.
In the past two decades, freedom of speech and expression has crossed the threshold of physical publications and expanded into digital media with information labelled as content posted on social media forums. With this new-found accessibility and the expanded broadband networks in India, the ordinary man could access the internet and share his perspective on national and global sensations, a privilege previously reserved for news reporters. Thus, the Information Technology Act 2000 established the regulatory rules for online content and e-communication.
A new phase of internet censorship ushered in with the law strictly striking down any content it deemed inappropriate, defamatory, obscene, or a threat to the unity and integrity of India. However, the IT Act received legitimate criticism for its ambiguously defined list of offences and the constitutional validity of its provisions. The case of Shreya Singhal v. Union of India garnered significant attention for raising an essential doubt on the legality of Section 66A of the IT Act.[10] An innocuous comment passed on the shutting down of Mumbai city for the death of a political leader led to the arrest of two women charged under Section 66A of the Act for posting allegedly offensive and objectionable comments on Facebook. Section 66(A) of the Act prohibits the act of transmitting offensive messages using a computer or any other form of communication device, making it a criminal offence.[11] After their release, the women filed a writ petition challenging the validity of the respective section as its incapable of being judged on objective standards. The section was susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution.[12] The petition eventually reached the Apex Court where it was ruled to declare the section unconstitutional and void.
The case also ruled on the controversial blocking powers of the government during emergencies, with no specific definition outlining what an emergency implies. This power rests under the infamous Section 69A of the IT Act.[13] Section 69A allows the government to issue confidential requests to block accounts, resulting in limited public access to the legal documents governing censorship. The rule promotes an authoritarian censorship model that exempts the government from parliamentary or judicial accountability.
Under this section, it is necessary to give prior notice before blocking any content on social media. However, this requirement was not fulfilled when 500 Twitter accounts were suspended and several others were blocked on government orders during the farmers’ protest.[14] These accounts specifically highlighted the government’s mishandling of the protest and amplified the farmers’ struggle against market-oriented farm laws. The government’s defence claims that these accounts were responsible for spreading inflammatory and misleading content, posing a potential risk to public opinion. When Twitter yielded to public pressure and restored the accounts, the government reminded them of their responsibility as an intermediary under Section 79 of the Information Technology Act.
In a striking juxtaposition to its actions in the United States of America, where Twitter suspended Donald Trump’s account for inciting violence at Capitol Hill after the presidential elections, Twitter complied with the arbitrary orders of the government in India under executive pressure. Former Twitter CEO Jack Dorsey disclosed that the Indian government made numerous requests for content removal and account suspension, with non-compliance risking a ban on Twitter in India. Despite management differences, both Dorsey and Elon Musk acknowledged the stringent regulations, posing a significant threat to Twitter’s presence in India.[15] The government displayed zealous determination to suppress pro-farmer news, issuing non-compliance notices and warning of potential imprisonment for unblocking accounts against orders. This clash was only the beginning of a long-standing battle between the central government and Twitter.
The Free Speech v. Censorship Debacle in Modi’s India
The Supreme Court finds the right to receive and impart information under the purview of freedom of speech. It places restrictions on free speech in a compliant manner promoting democratic ethics and giving the author of the contentious information a chance of defence. However, the government under Narendra Modi, post his election to office in 2014, failed to comply with the legally established guidelines on similar cases. The central government faced widespread criticism from national media on various platforms, including global networking sites, print, and broadcast media, for implementing a censorship regime resembling the colonial period.
Twitter’s ongoing feud with the government’s arbitrary blocking orders received centre-stage attention in 2023 with the release of BBC’s documentary on Narendra Modi. In January 2023, the Modi government imposed the emergency blocking provision listed in Rule 16(3) of the IT rules and Section 69A of the IT Act to block the BBC documentary on Narendra Modi titled, India: The Modi Question. 50 tweets containing links to the YouTube videos of the documentary were flagged, under direct orders by the central government. The documentary’s first part containing two episodes explored Modi’s rise in the nation as a prominent leader from the Bharatiya Janata Party to his eventual election as Gujarat’s Chief Minister. The part that caused the controversy around the documentary was about RSS’s involvement and Modi’s step back as a leader in the 2002 Gujarat riots that saw more than 1000 people, the majority being Muslims murdered in a religious pogrom.
The IT rules used in the blocking of the documentary were formulated in 2021 known as the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, now dubbed as the infamous IT Rules. These rules introduce a system of self-censorship, similar to one imposed during the colonial era for media and OTT platforms, with government-controlled bodies having emergency blocking powers and imposing strict penalties for non-compliance. [16]There are rising concerns about the inclusion of news media under the purview of the IT rules when the parent legislation does not include news distributors anywhere in its framework. The subordinate legislation has surpassed the boundaries set by the IT Act by expanding the scope of Section 69A from Intermediaries to Publishers.[17] The guidelines exceed the authority granted by Section 79 of the IT Act, which offers an enabling safe harbour provision exempting platforms from certain liabilities. Additionally, the continued vague definitions of significant portions of the Rules will allow the government to exercise discretionary powers at their leisure. [18]
The aftermath of the documentary’s release proved to be the litmus test for the extent of tolerance and dissent in India. The Ministry of Information and Broadcasting criticised the BBC documentary, labelling it as a propaganda piece lacking objectivity and reflecting a colonial mindset. Students from Jawaharlal Nehru University in Delhi screened the documentary on their campus and were met with pelting stones and electricity and internet blackouts by right-wing groups.[19] A spokesperson for the Information Ministry even called it a hostile propaganda piece and accused it of anti-India garbage. The blocking of the documentary was received positively by RSS followers and Modi supporters, accusing it of its colonial propaganda and lack of objectivity.
NDTV (New Delhi Television), an independent news channel based in the capital city known for being among the last free-thinking news forums, sold 29.18% of its stake to Asia’s richest man and Modi’s ally, Gautam Adani.[20] The unparalleled editorial independence offered to NDTV journalists faces a dire threat with the Adani acquisition in an increasingly capitalistic industry. Several other independent journalism ventures like those of Mohammed Zubair, the founder of Alt News, circled the courts and jails for their unabashed jabs at the government. India also faced a concerning drop in ranking from 150 in 2022 to 161 in 2023 in the World Press Freedom Index out of the 180 countries surveyed in the report.[21] It is disheartening to witness the worrying state of press freedom in a country where journalists persistently work in the shadow of potential imprisonment and even loss of life due to their unbiased reporting.
Women in journalism are particularly vulnerable to rape threats, public assault and even murder for raising their voices against executive authority. The plight of Gauri Lankesh is still a reality for women who remain the prime victims of intimidation stunts by powerful political entities. According to the Coalition of Women in Journalism, a global study revealed 145 instances of threats and intimidation targeting women journalists between January 2020 and April 2020.[22] Both men and women in journalism encounter similar threats, but women often face additional harassment due to their gender. The RSS (Rashtriya Swayamsevak Sangh) and its online army routinely attempt to discredit female journalists critical of the government. A disturbing example of targeted hate is the “Sulli Deals” app, which auctions Muslim women and targets outspoken journalists and activists. This reprehensible platform aims to silence and humiliate these women, further exacerbating existing hate and discrimination.
Although there is vocal opposition to India’s sedition law, several private member bills propose its reform rather than repeal. Members such as Shashi Tharoor, Bhartruhari Mahtab, Saugata Roy and Baijayant Panda advocate for amending the provision.[23] The Law Commission’s consultation paper also acknowledges the importance of sedition in safeguarding national integrity. Given the country’s border disputes and potential for communal disharmony, the law has been effective in countering anti-national and secessionist elements. India has faced insurgencies in the Northeast and the Khalistan movement, posing threats to sovereignty. While press freedom should be regulated to prevent incitement of violence, the law is necessary to protect the elected government from violent overthrow attempts. Implementing a well-regulated reform to the law can strike a balance between safeguarding freedom of speech and dissent while addressing national security concerns. This streamlined approach ensures that both aspects are duly considered and promoted.
Conclusion
“Media is considered the fourth pillar of democracy. During state repression, freedom of the press is the first casualty,”. The poignant words of Malini Subramaniam, a female journalist who spent nearly half a decade uncovering the truth among the depths of Chhattisgarh’s Maoist-ridden Bastar region serve as a stark reminder of a nation that has discarded its democratic values and now unites in the silencing of its journalists.[24] The erosion of press freedom in India signals a troubling shift away from the democratic values that once defined the nation. The decline of India’s once-vibrant press, which played a pivotal role in the national movement, is now but a distant memory under the shadow of the current authoritarian state. The current state of India’s legal framework fails to uphold the spirit of Article 19, neglecting the importance of free and independent media. As a result, citizens are being deprived of their fundamental right to access information, leaving them vulnerable to manipulation and a lack of transparency. To dismantle the prevailing censorship regime, it is crucial to acknowledge that a free press inherently strives to serve the public interest, even if it means diverging from the agendas of the government and other authorities. At the heart of the matter lies a flawed system of checks and balances, wherein the judiciary, tasked with upholding constitutional principles, often succumbs to executive pressures. India must urgently reevaluate its approach to censorship, recognizing the indispensable role of a dynamic press in sustaining a thriving democratic society. Restoring a resilient and unrestricted media is not only imperative for safeguarding citizens’ rights but also for fostering national well-being and progress.
[1]Freedom of the press: A Constitutional History, Centre for Law & Policy Research https://clpr.org.in/blog/freedom-of-the-press-a-constitutional-history/.
[2] Team, Press in British India: The history of Indian journalism, (2022) https://www.clearias.com/press-in-british-india/ (Accessed: 25 June 2023).
[3]Radhika Iyengar, A pre-Independence history of press freedom in India, Research News, The Indian Express (May 3, 2017), https://indianexpress.com/article/research/a-pre-independence-history-of-press-freedom-in-india.
[4] Iyengar, Supra 3
[5] Id
[6]Supra 2
[7]Atul Dev, A History of the Infamous Section 124A, (Feb. 25, 2016), https://caravanmagazine.in/vantage/section-124a-sedition-jnu-protests.
[8] Dev, Supra 7
[9] Id
[10] Shreya Singhal v. Union of India (2021) Global Freedom of Expression. Available at: https://globalfreedomofexpression.columbia.edu/cases/shreya-singhal-v-union-of-india/ (Accessed: 25 June 2023).
[11] A background to Section 66A of the IT Act, 2000, https://prsindia.org/theprsblog/a-background-to-section-66a-of-the-it-act-2000.A background to Section 66A of the IT Act, 2000, https://prsindia.org/theprsblog/a-background-to-section-66a-of-the-it-act-2000.
[12] Tiwari, Shishir and Ghosh, Gitanjali, Social Media and Freedom of Speech and Expression: Challenges Before the Indian Law,(2014), https://ssrn.com/abstract=2892537
[13] Supra 10
[14] Mahendra Ved, Censorship is plunging Modi’s India into darkness, East Asia Forum (June 1, 2021), https://www.eastasiaforum.org/2021/06/01/censorship-is-plunging-modis-india-into-darkness/.
[15] Bhatnagar, B.C. and Y, The sedition law: The past, present, and future, ORF, (2022), Available at: https://www.orfonline.org/expert-speak/the-sedition-law-the-past-present-and-future/ (Accessed: 25 June 2023).
[16] Explainer: How the New IT Rules Take Away Our Digital Rights, https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights.
[17] Arunima Bhattacharjee, #NAMA: Legality of the provisions of the IT Rules 2021 for news media, (June 10, 2021), https://www.medianama.com/2021/06/223-it-rules-2021-legality-news/.
[18]Explainer: How the New IT Rules Take Away Our Digital Rights, https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights.
[20] Hannah Ellis-Petersen, Billionaire Modi ally on verge of taking over independent Indian news channel, The Guardian (Dec. 1, 2022), https://www.theguardian.com/world/2022/dec/01/indian-billionaire-gautam-adani-ties-to-narendra-modi-to-control-independent-news-group-ndtv.
[21] The Hindu Bureau, India slips in World Press Freedom Index, ranks 161 out of 180 countries, The Hindu (May 3, 2023), https://www.thehindu.com/news/national/india-slips-in-world-press-freedom-index-ranks-161-out-of-180-countries/article66806608.ece.
[22] Ila Ananya, Do Women Journalists Have it Harder in India?, https://thewire.in/gender/do-women-journalists-have-it-harder-in-india.
[23] Bhatnagar, B.C. and Y, The sedition law: The past, present, and future, ORF. (2022), https://www.orfonline.org/expert-speak/the-sedition-law-the-past-present-and-future/ (Accessed: 25 June 2023).
[24] Rashmi Drolia, Chhattisgarh journo Malini Subramaniam forced to pack up, quit Bastar, Times of India (Feb. 19, 2016), https://timesofindia.indiatimes.com/city/raipur/Chhattisgarh-journo-Malini-Subramaniam-forced-to-pack-up-quit-Bastar/articleshow/51059878.cms.
Author: Nityashree B
Juris Centre 