Protecting press: Will SC take a leaf out of Punjab High Court's book?

In a historic verdict, the Punjab and Haryana High Court last week reinforced the freedom of speech enshrined in the Constitution, and by that yardstick the freedom of the press in a criminal defamation suit against some senior journalists of The Indian Express.

Quashing a lawsuit brought on by an IPS officer of Haryana in toto, the court not only upheld the sanctity of journalism as a profession but also extended protection to journalists “to enable them to publish news without fear of harmful consequences”.

While hailing journalism as “civilisation’s mirror” and investigative journalism “its X-ray”, the High Court observed: “To ensure honest and correct reporting of actual events, such journalists require the protection of courts, especially constitutional courts, to enable them to publish news without fear of harmful consequences. Thus, all courts must be more vigilant and proactive while safeguarding the interests of such courageous humans.”

4th pillar of democracy

Noting that journalism is “the fourth pillar of any democracy”, the court defended journalists’ right to “serve as independent monitors of power” and also underlined the hurdles they face in “the fearless pursuit of their duties to uncover the truth” “for public good and safety”.

“As a journalist, the reporter’s sacrosanct duty is loyalty towards the citizenry. They serve as independent monitors of power, reporting information for public good and safety, addressing any problems or lacunae in the public system for its effective functioning and immediate redressal. In the fearless pursuit of their duties to uncover the truth and report such facts to the masses through media, these brave journalists do face various hurdles, e.g., pressures from influential parties, groups, or government agencies, etc.,” the High Court further said.

Verdict hailed

The verdict is being hailed by the likes of noted journalist-author Manoj Mitta.

Mitta welcomes the development, particularly at a time when journalists are increasingly being targeted not only by state actors but also by non-state actors, making their profession hazardous.

“An excellent judgment checking the abuse of the inherently problematic notion of providing a criminal remedy for defamation. This verdict comes as a morale booster to those still practising watchdog journalism in the current environment. It also serves to underscore the caution that an investigative story must not only be substantially true and in the public interest but also include the defence of the person being held to account,” says Mitta, the author of Caste Pride, who has also written books on the Delhi and Gujarat riots.

Prashant Bhushan, a noted Supreme Court lawyer well known for taking cudgels on behalf of the public, says the Supreme Court is not doing enough to protect the freedom of speech. “This is a very good judgment which protects freedom of speech and the freedom of the press. It rightly says that such defamation suits against journalists should not be brought up claiming a report is scurrilous. Otherwise, the freedom of the press gets stultified. The judgment will sure help journalists but more than that it is the Supreme Court which should be protecting the freedom of speech. However, it is not doing enough.”

The courts should go a long way

“The freedom of the press is enshrined in and protected by the Constitution as a fundamental right of freedom of speech. The High Court ruling reinforces that protection,” says Aman Preet Singh, a lawyer at the Punjab and Haryana High Court in Chandigarh.

“I think it is a welcome judgment. What is shocking about this case is that the criminal defamation was filed by the police. You know, the government or the police can’t file defamation cases against journalists. They could pass strictures, they could approach the Press Council of India, but filing a criminal defamation is shocking. But I think the court could go a long way in giving further protection to journalists,” observes Abhisar Sharma, a Delhi-based journalist, while welcoming the verdict.

However, Sharma underlines the perils that journalists in India face today at the hands of government agencies which can incarcerate you for years without any rhyme or reason under such draconian law as the Unlawful Activities (Prevention) Act (UAPA). He makes a point by illustrating the example of Kerala journalist Sidheeq Kappan, who was arrested by the Uttar Pradesh Police under the UAPA while he was on his way to Hathras to cover the brutal rape and murder of a Dalit girl in 2020. It took two years for Kappan to get bail and come out of jail.

Draconian laws

“Let’s not forget that Kerala journalist Sidheeq Kappan was in jail because of UAPA. They (police) had put him in jail for a report that he had not even filed, and similarly the editor of NewsClick Prabir Purkayastha is also in jail at the moment under the charges of UAPA, which is used against terrorists,” says Sharma.

He further brings into question the intent of the present-day government behind such acts in unequivocal terms and goes on to add, “This government is using draconian provisions against journalists originally meant for anti-national elements. So, courts could go a long way in giving protection to journalists like Sidheeq Kappan, and what is shocking even in the NewsClick case, they still haven’t filed a charge sheet. So, it shows how vindictive this government is against journalists.”

Slipping on the freedom index

In 2014, India ranked 140 on the world press freedom index, according to the Reporters Without Borders (RSF), a Paris-based non-profit non-government body, which works for safeguarding the rights of journalists and freedom of information. The RSF had put the number of journalists killed in India at eight in 2013. Before that India ranked 136 on the press freedom index.

However, with the ascension of the Bharatiya Janata Party (BJP) to the centre in 2014, the country’s record in terms of press freedom has consistently gone from bad to worse, with increasing incidents of journalists being targeted, with arrests by government agencies and killings by non-state actors. The broad daylight murders of journalists like Gauri Lankesh in 2018 and Shashikant Warishe in February last year is a case in point, and there have been many more journalists who have been killed in India in recent years.

According to a report by the Rights and Risks Analysis Group (RRAG), “194 journalists including seven women journalists were targeted across India by the State agencies, non-state political actors and criminals, and the armed opposition groups (AOGs) during 2022”. A year before, five journalists were killed in the country.

Turning into an inhospitable territory

If the RRAG report is any indication, India has become a hostile territory for journalists to ply their trade without fear of retribution from vested interests, government or non-government.

A report in 2022 by the Committee Against Assault on Journalists details the clampdown on journalists in Uttar Pradesh after the ascension of Yogi Adityanath to power in 2017. According to the report, 12 journalists were killed in Uttar Pradesh during this period, while 48 journalists were physically assaulted and 66 journalists were arrested by the state police.

The reason for arrest could be anything, even reporting on a mid-day meal or rape. For instance, Pawan Jaiswal, a journalist from Mirzapur, was arrested by UP police in 2019 when he reported on ‘roti and salt’ being served in mid-day meals in a government school instead of regulation meals. Kishor Ram, a Dalit journalist from Pithoragarh, was arrested by Uttarakhand Police after he reported on the gang rape of two Dalit girls in February 2022.

Even EGI is not immune

Even the Editors Guild of India (EGI), the apex body of journalists in the country, could face a backlash from the state. After a fact-finding team the EGI sent to Manipur during the raging ethnic violence amid government inaction made public its report, Manipur police registered an FIR against the team members and the EGI brass. Had it not been for the intervention of the Supreme Court, they would, well, have been cooling their heels behind bars.

Instances of journalists being murdered, or being arrested by police in midnight raids as in the case of former BBC scribe Vinod Verma, or their office premises searched and phones and equipment seized, are not too uncommon to discuss in detail here.

To be specific, if the Committee for Protection of Journalists is to be believed, 91 journalists and media workers have been killed in India between 1992 and 2023.

Will SC follow suit?

There seems to be no let-up in the worsening situation.

No surprise then that India finds itself to have slipped further on the press freedom index. At 161, out of 180 countries, India is seven notches below a country like Pakistan on the index, a barometer of how democracy in the country is functioning.

But the larger question remains. Can the Punjab and Haryana High Court verdict pave the way for the Supreme Court to act and frame guidelines for the protection of journalists to help them profess their trade without the “fear of harmful consequences’? Or, will the apex court, which is the custodian of the Constitution, simply twiddle its thumbs, as lawyer Bhushan has averred?