J&k's people right to know is curbed

Challenging the Media Block-Out

Two months have gone, but the restrictions on media and social media are yet to go in J&K. It is not just a media block-out in J & K, but because of the restrictions in that State, the right to know of the people, of the nation, and the world has been violated. The emergency of 1975 is ruling J&K now. It stands as an example of the total curbs on freedom of speech and expression, in the wake of the abrogation of the State’s special status and the Act passed by the Parliament to bifurcate it. A writ petition was filed in the Supreme Court by Anuradha Bhasin, the Executive Editor of Kashmir Times. She sought directions to ensure that media persons and journalists in Jammu and Kashmir are able to practise their profession freely and challenges the restrictions imposed through the complete shutdown on internet and telecommunication services and severe curbs on the movement of photojournalists and reporters.

Kashmir Times, published simultaneously from Jammu and Srinagar, is stated to be the largest circulated English daily in the State with a daily circulation of 3.5 lakh copies. Anuradha has not been able to print and publish the Kashmir edition of Kashmir Times as the complete and absolute restrictions on all communication services, and movement has resulted in the imposition of a blockade on media activities, including reporting and publishing on the situation in Kashmir. These restrictions were in breach of the rights of journalists under the provisions of Articles 14 and 19 of the Constitution of India and the right of the whole world to know the conditions of residents of Kashmir Valley(j&k).

There is absolute and complete internet and telecommunication shutdown, severe restrictions on mobility and sweeping curtailment on information sharing in the Kashmir valley. This is at a time when significant political and constitutional changes, being undertaken in Delhi to the status of J&K, has already fuelled anxiety, panic, alarm, insecurity and fear among Kashmir residents.

Anuradha has every right to challenge the information blackout, which is a direct and grave violation of the right of the people to know about the decisions that directly impact their lives and their future. Why can’t the media report on the aforesaid developments? Can the opinions of Kashmir residents be reported about?

Information block-out

In the information block-out from August 4, 2019, mobile phone networks, internet services, and landline phone connectivity were all discontinued and shut down, leaving Kashmir and some districts in Jammu completely isolated and cut off from all possible modes of communication and information. The communication blockade and strict restrictions on the movement of journalists resulted in a virtual blackout, and media reporting and publishing is grievously impacted.

Right to Constitutional Remedy

Article 32 of the Constitution of India gives every person the right to seek the issuance of a writ to the Centre to immediately relax all restrictions on mobile, internet and landline services. It also includes relaxing strict restrictions on freedom of movement of journalists and media personnel in Kashmir to enable journalists to practise their profession and exercise their right to report. This is in furtherance of their rights under Articles 14, 19(1)(a) and 19(1)(g) and 21 of the Constitution of India as well as the Right to Know of the residents of the Kashmir valley.

The block-out started on August 4, this year, on mobile phone networks, internet services, and landline phone connectivity. No formal order under which such action was taken was communicated by the respondents, and the authority under which such excessive and arbitrary action was ordered is still unknown to the people. On August 5, orders under Section 144 CrPC were issued, and all of Kashmir was placed under a de facto curfew with severe restrictions on movement. The Press Identity cards of news reporters were not given any attention, and they were effectively disabled from reporting on the situation in the region by restricting their movement.

This information blackout set in motion is a direct and grave violation of the right of the people to know about the decisions that directly impact their lives and their future. The internet and telecommunication shutdown also means that the media cannot report on the aforesaid developments, and neither can the opinions of the residents of Kashmir be reported about.

The drastic changes

The Constitution (Application to Jammu and Kashmir) Order, 2019, CO 272 was published in The Gazette of India, vide which under the powers vested by Article 370(1) of the Constitution of India, Article 367(4) was added to the Constitution. Further, the Jammu and Kashmir Reorganisation Bill 2019 introduced in the Rajya Sabha, and later in Lok Sabha, was passed.

In a news report in The Indian Express dated August 7, authored by Muzamil Jaleel, Bashaarat Masood and Adil Akhzer, titled, “Kashmir Valley has seen many a lockdown but why this time it is so different”, the manner in which media reporting is being throttled has been described. The report states: ‘” The Valley’s connection with the inside and the outside world has been cut — all internet connectivity, cellular, landline, and cable TV services have been snapped. Residents are not allowed outside their neighbourhoods. The administration hasn’t issued curfew passes to even its own employees and security personnel don’t accept government IDs as passes. The press isn’t welcome. Most of the TV crew that have flown in are parked in a 1-sq-km area of Zero Bridge in the city. There is some easing of security here, on the road to the airport and the Rajbagh-Jawaharnagar stretch — this is the one that visiting TV cameras film. Elsewhere, roads are barricaded with wire and regular checkpoints with police and armed paramilitary personnel on patrol.”

It further goes on to talk about the past two days. “The Indian Express reporters have been holed up in their office from where they walk around to meet residents and then return. In the office building itself dozens of policemen have moved in, the corridors their temporary shelter. For, space is short — most government buildings, schools, colleges, courts have been occupied by paramilitary forces flown from outside the State. On Tuesday, half a dozen busloads of Border Security Force personnel came from Rajasthan and they moved into an empty parking lot in the city centre.”

Part II - Curbs on Media in J&K

Departure from Democratic Governance

The United Nations Special Rapporteur on Freedom of Speech, David Kaye, in a statement dated August 8, reported by The Guardian, commenting on the communication blackout in the Kashmir(j&k) Valley, has stated that the same is unprecedented and sets a worrying new standard for democratic states. The news report states, “The unprecedented communications blackout imposed on Indian-administered Kashmir, could signal a departure in the way in which democratic states clamp down on information in contentious areas.” He further stated, “Communications are often blocked in Indian-administered Kashmir, but the current clampdown is unprecedented in a time of relative peace. Unlike previous instances, landline phones and cable TV have been cut off. A strict curfew also means people are unable to leave their homes during the day, while only limited movement has been allowed at night. ‘I can’t recall a situation where there has been a total blackout of not only the two-way, multi-point communication systems that we are familiar with now — anything on the internet, WhatsApp, etc. — but also the one-direction communications like TV’.”

Supreme Court’s landmark order

In Indian Express Newspapers vs. Union of India (1985) 1 (Page 641), the role of the media and the essence of its freedoms have been detailed by Supreme Court, which held, today’s free world freedom of the press is the heart of social and political intercourse. “The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale, particularly in the developing world, where television and other kinds of modern communication are still not available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspaper being sawyers of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities.

“The authors of the articles which are published in newspapers have to be critical of the action of government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments naturally take recourse-to suppress newspapers publishing such articles in different ways. Over the years, the governments in different parts of the world have used diverse methods to keep press under control. They have followed carrot-stick methods. Secret payments of money, open monetary grants and subventions, grants of lands, postal concessions, Government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils etc. constitute one method of influencing the press. The other kind of pressure is using force against the press.

#Kashmir: Last year when militants warned people against participating in #Panchayat polls, Imran Dar risked his life to contest the elections. Not only he won #Sarpanch seat, his 12 associates became the Panches in this village. #PSA #PublicSafetyAct https://t.co/zNW3WCwGCS

— NewsMeter (@NewsMeter_In) October 22, 2019

“Enactment of laws providing for pre-censorship, seizures, interference with the transit of newspapers and demanding security deposit, imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier etc. are some of the ways in which Governments have tried to interfere with freedom of press. It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interfering with it. It is, therefore, the primary duty of all national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate.”

In Sakal Papers (Pvt) Ltd v Union of India (1962) 3 SCR 842, this manner of using indirect means to impinge, on the freedom of newspapers was held unconstitutional, stating inter-alia that, “Its object thus is to regulate something which, as already stated is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech, the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz., the right to circulate one’s views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the and by purporting to regulate the business aspect of a newspaper Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”

Part -III Curbs on Media in J&K

Access to the Internet: New Fundamental Right

The Kerala High Court on September 19, 2019, held that the right to have access to the internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution. Justice PV Asha made the observation while ordering the Principal of Sree Narayana Guru College, Kozhikode, to re-admit a student who had been expelled from the college hostel for using her mobile phone beyond the restricted hours. Explaining the right to access to internet, the High Court said: “When the Human Rights Council of the United Nations has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”

Faheema Shirin, a third-semester BA English student of the college at Chelanur, challenged her expulsion for not adhering to restrictions on the use of mobile phone. As per the rules of the girls’ hostel, inmates were restrained from using mobile phones from 6 pm to 10 pm every day. She contended that such restriction on the use of mobile phones amounted to a violation of fundamental right to freedom of speech and expression under Article 19(1) (a) of the Constitution. In fact, the internet, accessible through mobile phones or laptops, provided an avenue for the students to gather knowledge.

The judge observed that the action of the college authorities infringed the fundamental freedom as well as privacy and would adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such restriction could not be permitted to be enforced.

The Supreme Court in the S Rengarajan and others v. P Jagjivan Ram (1989) case said that “the fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency”.

The European Court on Human Rights has further reiterated the position of how the medium of communication also receives protections from interference in Cengiz and Others v. Turkey (applications nos. 48226/10 and 14027/11). Moreover, in respect of modem communication channels, and particularly the internet, the ECHR has held in Ahmet Yedlin mi v. Turkey (application no. 3111/10). In modern democracies, the internet has acquired significant importance in terms of the exercise of fundamental rights and freedoms, especially the freedom of expression. Social media constitute a transparent platform affording individuals the opportunity to participate in creating, publishing and interpreting media content. Social media platforms are thus indispensable tools for the exercise of the right to freedom to express, share, and impart information and ideas. Accordingly, the State and its administrative authorities must display considerable sensitivity not only when regulating this area but also in their practice, since these platforms have become one of the most effective and widespread means of both imparting ideas and receiving information.

Article 19(2) of the ICCPR says, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in ‘writing- or in print, in the form of art, or through any other media of his choice.”

The UN Human-Rights Committee in its 102nd Session held in Geneva on July 2011 issued General Comment No. 34, wherein the freedoms of the press under the ICCPR were detailed. The GC 34 states that:

1. i) The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.
2. ii) State parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There - is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.

iii) A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment, of other Covenant rights. It constitutes one of the cornerstones of a democratic society.

3. iv) Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3 [of Article 19 of the International Covenant on Civil and Political Rights, governing the restrictions that may be imposed on the exercise of the right to freedom of expression. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.

General Comment No. 27 of the UNHRC stated that restrictions must not be overbroad. The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law. (See also Communications No. 1128/2002, Margi/es v. Angola-, No. 1157/2003, Coleman v. Australia). When a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.

Part IV- Curbs on Media

Internet as Indispensable Tool

Universal access to internet was the subject matter of UN Human Rights Council discussion. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of May 16, 2011, to the Human Rights Council (A/HRC/17/27), had this to say:

“The internet, as a medium by which the right to freedom of expression can be exercised, can only secure its purpose if States assume their commitment to develop effective policies to attain universal access to the internet. Without concrete policies and plans of action, the internet will become a technological tool that is accessible only to a certain elite while perpetrating the digital divide.

“Given that the internet has become an indispensable tool for realising a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the internet should be a priority for all States. Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the internet widely available, accessible and affordable to all segments of population.”

The import of Article 19(l)(a) and 19(l)(g) in so far as it relates to news reporters and journalists is that the press shall have the right to report and that there is a positive obligation upon the State to provide an enabling environment for press freedoms to thrive in any given circumstance. There is no freedom of speech and expression of the media if there is a constant impending fear of harm to a reporter seeking to discharge her professional duties. Thus, the freedoms enshrined in the Constitution for the press become operational only when the State provides and creates a conducive environment for news reporting. This principle is also recognised in international law under provisions of the ICCPR and European Convention of Human Rights (Article 10).

The freedom of the press is a right enjoyed both by the press and the citizenry at large. The freedom of the press under Article 19(l) (a) further stems from the Right to Know available to all citizens under Article 21 of the Constitution of India. The Supreme Court in a series of judgments from Dinesh Trivedi v Union of India (1997) 4 SCC 306 onwards has held that citizens have a right to know about government decisions and actions.

The right of the petitioner to practise her profession and carry out business as the Executive Editor of Kashmir Times has been subjected to arbitrary and unreasonable restrictions and is violative of the Fundamental Rights as enshrined in Article 19(l) (g) of the Constitution of India.

Internet as a new platform of press freedom

The Internet services as a platform for exercising the right of freedom of speech and expression, along with acting as the backbone for a growing economy. The law laid down by Supreme Court In Re Ramlila Maidan (Supra) and Babulal Parate v State of Maharashtra AIR 1961 SC 884 states that power under Section 144 CrPC is to be used with caution and only when there is “an actual and prominent threat endangering public order and tranquillity”; it should not be arbitrary

The right to report and other allied freedoms of the press and media form the cornerstone of transparency and accountability, which fuels the ethos of a democratic society. Any curtailment of such an essential right through executive or administrative orders must thus withstand judicial scrutiny for the necessity and proportionality of the said order; and whether or not it is a constitutional fetter on the rights of the press and media.

The State has to restore internet access to the people of Jammu & Kashmir as soon as possible.

Review of Curbs

The executive magistrate has powers to curb the media freedom in the situations where the public order is threatened, and law order issues crop up. However, the orders passed by a Magistrate u/Sec 144 CrPC are amenable to judicial review as per the law laid down in a catena of judgments of Supreme Court, including in Madhu Limaye v Sub-Divisional magistrate Monghyr & Others (1970) 3 SCC 746, Gulam Abbas & Others V State of Uttar Pradesh & Others (1982) 1 SCC 71, and In Re Ramlila Maidan incident (2012) 5 SCC 1.

Press Council of India initially thought of intervening in support of restrictions on media but retreated in the wake of severe criticism. Press organisations also supported the journalist in this petition.

The whole of India is waiting for the decision of the Supreme Court, which so far protected the press freedom and people’s right to know in several judgements, to come to the rescue of the people from atrocious decisions of the executive. The Supreme Court on September 16 directed the Centre and the Jammu and Kashmir(j&k) government to restore normalcy in the State keeping in mind the “national interest”. SC is the only ray of hope.

The author is Dean, Bennett University & Former Central Information Commissioner.