Serve governed and not governors

The Official Secrets Act, sedition laws and contempt of court are emerging as new instruments to curb media freedom

By Author  |  Geetartha Pathak  |  Published: 18th Mar 2019  12:12 amUpdated: 17th Mar 2019  9:06 pm

The Fourth Estate in post-independent India was never under so much pressure from the other three Estates of Democracy. Not even in Emergency as it is now. The assault on media rights and free expression through a tirade of laws is conspicuous. The Official Secrets Act 1923 (OSA), IT Act, sedition laws, and, of late, the contempt of court are being extensively used to muzzle media and free expression.

The BJP government at the Centre has threatened to invoke OSA, an archaic Act enacted by the British to perpetuate an opaque colonial state, to cover up serious financial irregularities in the Rafale deal. Attorney General KK Venugopal, on March 6, threatened to invoke the OSA against The Hindu newspaper and news agency Asian News International (ANI) for their critical reporting on the Rafale deal, in which the government is accused of corruption.

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The Attorney General first alleged that the two media outlets had published reports based on stolen documents. Later, he clarified that the documents were photocopied and not stolen. However, the bench, headed by the Chief Justice of India, pointed out that the manner in which a document has been procured is immaterial if it is relevant to the adjudication.

Notwithstanding the recommendation of the second Press Commission, which was constituted in May 1978 under the chairmanship of Justice PC Goswami to repeal the OSA, the successive governments never acted on this recommendation. After regaining power at the Centre, Indira Gandhi reconstituted the second Press Commission with KK Mathew as its chairman and cut out almost all the decisions taken by the Justice Goswami Commission.

Shillong Times

Now contempt of court has emerged as a new instrument in fettering free speech and media freedom. The Meghalaya High Court imposed a fine of Rs 2 lakh each on Shillong Times Editor Patricia Mukhim and its publisher Shobha Chaudhury and imprisonment for six months and closure of the newspaper if they fail to pay the fine within a week. The high court bench also asked them, both senior ladies, to “sit in the corner of the courtroom” till the court adjourned its proceedings for the day.

The offence of the newspaper was that it had published reports on a row between the Meghalaya High Court and the Meghalaya government on salaries and perks for the retiring high court judges. The editor also expressed her critical comments on social media. Her criticism may have been harsh and unsavoury, but the newspaper did not publish anything baseless.

The Meghalaya High Court in its order said she published a statement issued by the outlawed Khasi-Jayantia extremist organisation The Hynniewtrep National Liberation Council criticising the High Court judges for judging their own salaries and perks. The court also took exception to the newspaper publishing statements of bandhs and strikes as it had earlier banned publications of such statements. Journalist organisations have opposed such court orders as it infringes on freedom of media and free speech.

Public Issues

Another recent example of contempt of court is against prominent lawyer and activist Prashant Bhushan by the Centre and the Attorney General. They accused him of contempt for his tweets on the appointment of M Nageshwar Rao as the interim chief of the CBI as the case was pending in the court. Prashant Bhushan has argued that there are many cases like the Ram Mandir dispute pending in the court for decades. Will people stop discussing and opining on such pending public issues?

In Perspective Publications (P) … vs State Of Maharashtra on 19 November 1968, the Supreme Court has beautifully culled out the principle of law of criminal contempt, observing:
“The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

US-Vietnam War

During the US-Vietnam war despite concrete knowledge that there is no chance of winning the war, successive governments escalated the war propaganda solely to reap political benefits.
The Washington Post published sensitive classified defence documents, which showed that successive US governments had been lying about the Vietnam War for years. They published this taking the risk of being sued in the court. The leaked documents made it clear that the US was waging a futile war, and thousands of young men were sent to die only for the sake of whipping up jingoistic frenzy.

The New York Times had earlier published a part of the documents, but could not publish the complete report as the newspaper was booked under the US Espionage Act for breaching national security, and the court restrained it from publishing. Both the newspapers had to ultimately approach the US supreme court to protect their right to publish. In the case, better known as Pentagon Papers case, the US supreme court held that the constitution did not permit prior restraint on press freedom. The court observed that:
‘The press was to serve the governed, not the governors. The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell”.

In the Indian context, it is the duty of the people’s media to prevent any part of the government from deceiving the people be it through the Rafale deal, air strikes or in the name of national security and religion.

(The author is a senior journalist from Assam)