Author:- Jigisha Khunteta
Every journalist dream of being a part of the most breaking headlines, and recently the government and courts are doing a great job in fulfilling the same, except in the worst way possible.
The present case of Kerala Union of Working Journalists v. Union of India & Ors. dealt with two aspects right to life of under trials and the freedom of media. For this article, we shall stick to the freedom of the press and media, all under the freedom to dissent against the government, analyzing the laws and sections being misused to curtail them and the judiciary’s reaction to the same.
Siddique Kappan was taken into custody while he was on his way to report the gruesome death of the Hathras gangrape victim. What set out to be a landmark had remained another coin in the wishing well of the Indian media and journalists, whose wish for freedom remained unheard.
THE SPIDER WEB OF LAWS
Coming straight to the laws, a set number of sections are copy pasted in every recent case. Ranging from terrorist prevention to technology laws, every law is somehow used in such a way as to cover every possible dissenting voice against the leadership.
UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 1967
UAPA is the anti-terrorism law of the country containing stringent provisions that differ from the procedure followed the commission of a typical crime. With several amendments in 2004 and 2008, the 2019 amendment provided designated individuals terrorists based on certain crimes. The definition of ‘terrorist act’ in the act is highly vague, stating that whoever does an act with an ‘intent to threaten or likely to threaten’ gives the state unlimited power to charge any suspect with the brutal act. It is further vague in defining that the act causes – the death of, or injuries to any person, destruction of property etc. This definition can virtually cover any act committed. After being charged and arrested, a grant of bail has also been made impossible by section 43D (5) of the act before the public prosecutor has been given a chance to be heard.
SEDITION AND OTHER IPC OFFENCES
The section 124A of the Indian Penal Code criminalises inciting hatred towards the government. The colonial sedition law of the Indian Penal Code was in a historical judgement by the court in S.G. Vombatkere vs Union of India, was effectively kept in abeyance by the courts till its constitutionality was under consideration. This was done after the court considered the situation in the country and how the law is used to suppress dissent. The conviction rate in these cases is close to 0 for approx. 80 people are arrested every year, according to the NCRB (National Crime Records Bureau) report. The provision of sedition is often coupled with Sections 153A and 295A of the Code of 1860, which penalize promoting enmity between different groups and malicious acts intended to outrage religious feelings, respectively. This was also seen in many cases like the Disha Ravi case, Umar Khalid case and, of course, with Siddique Kappan.
INFORMATION TECHNOLOGY ACT, 2008
Sections 65, 72, 76 of the Information Technology Act, 2008 were also used to book the journalist. This is done to curtail ‘defamatory’ content against politicians and people in power. One Ajay Hatewar was booked under Section 67(A) of the IT Act for a “defamatory” comment against Maharashtra Chief Minister Devendra Fadnavis’s picture with his family on a yacht. Incidents like this are just increasing over time.
PREVENTION OF MONEY LAUNDERING ACT, 2002
According to the UNODC (United Nation Office on Drugs and Crime), money laundering is processing criminal proceeds to disguise their illegal origin. The laws were basically enacted in the country to curtail money laundering from narcotics and other related activities; however, recently, the law has lost its meaning. It has been used as an excuse to detain activists and other dissenting voices. Kappan was granted bail after almost 2 years for other charges; however, he was kept inside the jail for a PMLA case imposed by Enforcement Directorate. The 2012 amendment in the act has made mere possession of proceeds of a crime an offence and has also gotten away with the minimum threshold. Siddique Kappan was granted bail by the Allahabad High Court in the PMLA case in December. Independent media house Newslaundry and News click’s offices were raided in the past year, disturbing their work, and trying to instil fear.
Government prosecutors are putting their heart and soul in imposing one case after another to put independent media behind bars. The cycle usually starts with them being framed for sedition, inciting riots and hatred and uploading hateful content and when all of this fail to work, money laundering becomes the safe net of the government, an excuse to destroy offices and vilify reputations. This has all become an easy cycle to guess by now. Talking about any issue of national importance and a bit of bad luck will land a person in jail and bail has become more of an exception than reality.
MEDIA V. MEDIA – DIFFERENT LAWS FOR DIFFERENT PEOPLE?
It is ironical how Kappan was arrested on the pretext of ‘inciting riots’, after the gruesome death of a 19-year-old girl at the hand of her rapists and her undignified cremation by the police in the middle of the night, however people are free to vandalize malls, burns busses and issue death threats over a movie. The standard of freedom in this country is becoming increasing problematic and lopsided.
Another interesting detail to note is that the 8 pm prime time media is immune to the inciting riots argument. Their us v them debates, shouting over vegetable prices in Pakistan and presenting WhatsApp forwards as news sounds like harmony to law enforcement. Add example. They leave with nothing more than a simple apology. Some examples of misinformation spread by news channels that went unpunished can be found here. Factors like changing ownership patterns in big media houses are among many others sabotaging the careers and life of smaller independently working journalists.
THE WAY AHEAD
The great Indian media is becoming a cause of worry worldwide seeing an important pillar of the world’s largest democracy tear down to ruins. If we wait more the ruins will turn antique along with the freedom of press in the country. The judiciary is trying to emerge as a ray of hope for freedom of speech.
Despite the delay in the grant of bail and many negative remarks by the learned judges of the High court and the Supreme court, there still is hope for freedom of dissent to prevail in the country. Particularly in UAPA cases where it is difficult for the accused to be granted bail the courts have drawn a relation between curtailing of rights and speedy trials. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial.
The supreme court in the 2021 case of Union Of India vs K.A. Najeebchecked the constitutionality of harsh conditions for bail in such special enactments. The court stated that the legality has been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. In cases were the accused is serving 2 to 5 years in jail without any conviction, he may be granted bail as per the circumstances. “It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the constitution”, the court added. Judgements like these throw a light on the importance of speedy trial and how it is important is serving justice.
India’s ranking in the Press Freedom Index (150th) is dangerously close to its infamous neighbors Afghanistan (156th) and Pakistan (157th). Whatever reason the ruling government provides for this, it can’t be denied that freedom of press and dissent is being strangled at their hands. Judiciary serving as a ray of hope won’t be enough in this regime and people need to voice their concerns instead of accepting to watch the nuisance uncover instead support independent media channels. Right to dissent can’t be the media’s last wish as they proceed to go into custody ending their careers and life.